e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 19, 2009
HARRIS STRATEX NETWORKS, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware
|
|
001-33278
|
|
20-5961564 |
|
|
|
|
|
(State or other jurisdiction
of incorporation)
|
|
(Commission File
Number)
|
|
(I.R.S. Employer
Identification No.) |
|
|
|
Address of principal executive offices:
|
|
637 Davis Drive, Morrisville, NC 27560 |
Registrants telephone number, including area code:
|
|
(919) 767- 3250 |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
o |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
o |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 40.13e-4(c)) |
TABLE OF CONTENTS
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
On November 19, 2009, at the Annual Meeting of Stockholders (the Annual Meeting) of Harris
Stratex Networks, Inc. (the Company), the Companys stockholders approved the amendment and
restatement of the Companys 2007 Stock Equity Plan (the Amended 2007 Plan), which was approved
by the Companys Board of Directors (the Board) on September 14, 2009, subject to stockholder
approval. Like the original 2007 Stock Equity Plan, the Amended 2007 Plan provides for the grant
of incentive and nonstatutory stock options, stock appreciation rights, restricted stock,
restricted stock units, performance units and stock grant awards to employees, officers,
consultants and directors of the Company and its affiliates. The Amended 2007 Plan increases the
maximum number of shares of common stock that may be granted under the plan by 5,400,000 from
5,000,000 to 10,400,000. Also, the Amended 2007 Plan now provides that each share subject to a
stock option grant or a stock-settled stock appreciation right shall be counted as one share and
any grant of any other award denominated and settled in shares, such as restricted stock,
restricted stock units or performance units, will be counted as 1.31 shares against the maximum
number of shares reserved under the Amended 2007 Plan.
A brief description of the terms and conditions of the Amended 2007 Plan is set forth in the
Companys definitive proxy statement on Schedule 14A filed with the Securities and Exchange
Commission on October 7, 2009 (File No. 001-33278) (the 2009 Proxy Statement) under the heading
Proposal No. 4 Approval of the Amended and Restated 2007 Stock Equity Plan, and such
description is incorporated herein by reference. This description of the Amended 2007 Plan is
qualified in its entirety by reference to a copy of the Amended 2007 Plan that is attached as
Appendix B to the 2009 Proxy Statement and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Amended and Restated Certificate of Incorporation
At the Annual Meeting, the Companys stockholders approved the Amended and Restated
Certificate of Incorporation of the Company, which previously had been approved by the Board on
September 1, 2009, subject to stockholder approval. On November 19, 2009, the Company filed the
Amended and Restated Certificate of Incorporation with the Secretary of State of the State of
Delaware. A copy of the Amended and Restated Certificate of Incorporation is filed herewith as
Exhibit 3.1 and is incorporated herein by reference.
Amended and Restated Bylaws
On November 19, 2009, the Board, upon the recommendation of the Companys Governance and
Nominating Committee, approved amendments to the Companys Amended and Restated Bylaws, effective
as of such date. A summary of material changes is set forth below. In addition to the changes set
forth below, and in connection with the Companys Amended and Restated Certificate of Incorporation
described above, the Amended and Restated Bylaws have been updated to eliminate references to
Class B Directors and to refer to Class A Directors without class designation. The following
is a summary of the amendments:
|
|
|
Article II, Section 2 was amended to specify that the date and time of the annual
meeting of the Companys stockholders shall be designated by the Board. |
|
|
|
|
Article II, Section 5 was amended to provide that special meetings of stockholders
may be called only by the president or secretary of the Company at the request in
writing of a majority of the Board. |
|
|
|
|
Article II, Section 8 was amended to allow the chairman of any meeting of the
stockholders, whether or not a quorum is present, to adjourn such meeting, without
notice, except as otherwise provided by law. |
|
|
|
|
Article II, Section 13 was amended to clarify that only stockholders of record may
submit proposals for consideration at the annual meeting of stockholders. The section
was also amended to require additional information, covenants and representations from
stockholders submitting such proposals. |
|
|
|
|
Article II, Section 14 was amended to clarify that only stockholders of record may
submit nominations for the election of directors at meetings of the stockholders. The
section was also amended to require additional information, covenants and
representations from stockholders submitting such nominations. |
|
|
|
Article II, Section 15 was added to include a definition of Interests. A
description of a nominating or proposing stockholders Interests is now required by
Article II, Sections 13 and 14, as amended. |
|
|
|
|
Article III, Section 2 was amended to specify that the Board has the sole right to
fill vacancies on the Board in the event of newly created directorships resulting from
any increase in the authorized number of directors. |
|
|
|
|
Article III, Section 8 was amended to require the presence of at least a majority of
the authorized number of directors in order for a quorum to be present for the
transaction of business by the Board. |
The foregoing summary is a brief description of the approved amendments to the Companys prior
Amended and Restated Bylaws and is qualified in its entirety by reference to the full text of the
Amended and Restated Bylaws, a copy of which is filed herewith as Exhibit 3.2 and is incorporated
herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are furnished herewith:
|
|
|
Exhibit No. |
|
Description |
3.1
|
|
Amended and Restated Certificate of Incorporation of Harris
Stratex Networks, Inc. as filed with the Secretary of State of
the State of Delaware on November 19, 2009 |
|
|
|
3.2
|
|
Amended and Restated Bylaws of Harris Stratex Networks, Inc. |
|
|
|
10.1
|
|
Harris Stratex Networks, Inc. 2007 Stock Equity Plan (As
Amended and Restated Effective November 19, 2009)
(incorporated by reference to Appendix B to the Registrants
Schedule 14A filed with the Securities and Exchange Commission
on October 7, 2009, File No. 001-33278) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
HARRIS STRATEX NETWORKS, INC.
|
|
|
By: |
/s/ Thomas L. Cronan, III
|
|
|
|
Name: |
Thomas L. Cronan, III |
|
|
|
Title: |
Senior Vice President and Chief Financial Officer |
|
|
Date: November 20, 2009
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation of Harris
Stratex Networks, Inc. as filed with the Secretary of State of
the State of Delaware on November 19, 2009 |
|
|
|
3.2
|
|
Amended and Restated Bylaws of Harris Stratex Networks, Inc. |
|
|
|
10.1
|
|
Harris Stratex Networks, Inc. 2007 Stock Equity Plan (As
Amended and Restated Effective November 19, 2009)
(incorporated by reference to Appendix B to the Registrants
Schedule 14A filed with the Securities and Exchange Commission
on October 7, 2009, File No. 001-33278) |
exv3w1
Exhibit
3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HARRIS STRATEX NETWORKS, INC.
Harris Stratex Networks, Inc. (the Corporation), a corporation organized and
existing under, and by virtue of, the General Corporation Law of the State of Delaware
(DGCL) hereby certifies as follows:
(1) The name of the Corporation is Harris Stratex Networks, Inc.
(2) The original certificate of incorporation of the Corporation was filed with the Secretary
of the State of Delaware on October 5, 2006. The Amended and Restated Certificate of Incorporation
of the Corporation was filed with the Secretary of State of Delaware on January 26, 2007. A
Certificate of Designations of Series A Junior Participating Preferred Stock was filed with the
Secretary of State of Delaware on April 21, 2009.
(3) This amended and restated certificate of incorporation which restates, integrates and
amends the Corporations certificate of incorporation, as heretofore amended or supplemented, has
been duly adopted by the board of directors of the Corporation (the Board) and by the
stockholders of the Corporation in accordance with Sections 242 and 245 of the DGCL, and has been
duly executed by an officer of the Corporation and filed in accordance with Section 103 of the
DGCL.
(4) As of the date of the filing with the Secretary of State of the State of Delaware of this
certificate of incorporation of the Corporation, as restated, integrated and amended (the
Amended and Restated Certificate of Incorporation), no shares of the Corporations Class
B common stock, par value $0.01 per share, are issued and outstanding;
(5) The text of the Amended and Restated Certificate of Incorporation shall read, in its
entirety, as follows:
Article I
Name
The name of the Corporation is Harris Stratex Networks, Inc.
Article II
Registered Agent
The address of the registered office of the Corporation in the State of Delaware is 1209
Orange Street, the City of Wilmington, County of New Castle, and the name of its registered agent
at that address is The Corporation Trust Company.
Article III
Purpose
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
Article IV
Capitalization
(a) Capitalization. The total number of shares of all classes that this Corporation
is authorized to issue is 350,000,000 shares, of which (i) 50,000,000 shares shall be designated as
preferred stock, par value $0.01 per share (the Preferred Stock), and (ii) 300,000,000
shares shall be designated as common stock, par value $0.01 per share (the Common Stock).
Upon the filing of this Amended and Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware (the Filing Time), each share of common stock of the
Corporation, however designated, issued and outstanding immediately prior thereto (Old Common
Stock), shall be automatically reclassified as one validly issued, fully paid and
non-assessable share of Common Stock without any further action on the part of the Corporation or
by the holder thereof. Each certificate formerly representing a share or shares of Old Common
Stock shall automatically represent from and after the Filing Time, without any further action on
the part of the Corporation or any holder thereof, a number of shares of Common Stock equal to the
number of shares of Old Common Stock represented by such certificate immediately prior to the
Filing Time.
(b) Preferred Stock. Shares of Preferred Stock may be issued in one or more series
from time to time by the Board, and the Board is expressly authorized to fix by resolution or
resolutions the designations and the powers, preferences and rights, and the qualifications,
limitations and restrictions thereof, of the shares of each series of Preferred Stock, including
without limitation the following:
(i) the distinctive serial designation of such series which shall distinguish it from
other series;
(ii) the number of shares included in such series;
(iii) the dividend rate (or method of determining such rate) payable to the holders of
the shares of such series, any conditions upon which such dividends shall be paid and the
date or dates upon which such dividends shall be payable;
(iv) whether dividends on the shares of such series shall be cumulative and, in the
case of shares of any series having cumulative dividend rights, the date or dates or method
of determining the date or dates from which dividends on the shares of such series shall be
cumulative;
(v) the amount or amounts which shall be payable out of the assets of the corporation
to the holders of the shares of such series upon voluntary or involuntary liquidation,
dissolution or winding up the Corporation, and the relative rights of priority, if any, of
payment of the shares of such series;
2
(vi) the price or prices at which, the period or periods within which and the terms and
conditions upon which the shares of such series may be redeemed, in whole or in part, at the
option of the Corporation or at the option of the holder or holders thereof or upon the
happening of a specified event or events;
(vii) the obligation, if any, of the Corporation to purchase or redeem shares of such
series pursuant to a sinking fund or otherwise and the price or prices at which, the period
or periods within which and the terms and conditions upon which the shares of such series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(viii) whether or not the shares of such series shall be convertible or exchangeable,
at any time or times at the option of the holder or holders thereof or at the option of the
Corporation or upon happening of a specified event or events, into shares of any other class
or classes of stock of the Corporation, and the price or prices or rate or rates of exchange
or conversion and any adjustments applicable thereto; and
(ix) whether or not the holders of the shares of such series shall have voting rights,
in addition to the voting rights provided by law, and if so the terms of such voting rights.
Subject to the rights of the holders of any series of Preferred Stock, the number of authorized
shares of any class or series of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of
the outstanding shares of such class or series, voting together as a single class, irrespective of
the provisions of Section 242(b)(2) of the DGCL. The Board has designated a series of its Series A
Junior Participating Preferred Stock pursuant to a Certificate of Designations duly filed with the
Secretary of State of Delaware on April 21, 2009, a copy of which is attached hereto as Exhibit
A and incorporated herein by reference.
Article V
Directors
The number of directors (the Directors) that shall constitute the whole Board shall
be fixed from time to time pursuant to the amended and restated bylaws of the Corporation, as may
be further amended from time to time (the Bylaws).
Article VI
Limitation of Liability
A Director shall not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the DGCL as currently in effect or as the same may
hereafter be amended. If the DGCL is hereafter amended to authorize corporate action further
limiting or eliminating the liability of Directors to the Corporation or its stockholders, then
without any further action by any individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, joint venture, estate, trust, association,
organization, government entity or other entity of any kind or nature such liability shall be so
3
limited or eliminated to the fullest extent permitted by the DGCL as so amended. No adoption,
amendment, modification or repeal of this Article VI or any other provision of this Amended and
Restated Certificate of Incorporation shall adversely affect any right or protection of a Director
existing at the time of such adoption, amendment, modification or repeal with respect to acts or
omissions occurring prior to such time.
Article VII
Bylaws
In furtherance and not in limitation of the powers conferred by statute, the Board is
expressly authorized to adopt, repeal, alter, amend and rescind from time to time any or all of the
Bylaws of the Corporation.
Article VIII
Amendment of Amended and Restated Certificate of Incorporation
This Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred on stockholders herein are granted subject to this
reservation.
4
IN WITNESS WHEREOF, I have signed this Amended and Restated Certificate of Incorporation this
19th day of November, 2009.
|
|
|
|
|
|
HARRIS STRATEX NETWORKS, INC.
|
|
|
By: |
/s/ Harald J. Braun
|
|
|
|
Name: |
Harald J. Braun |
|
|
|
Title: |
Chief Executive Officer and
President |
|
|
5
Exhibit A
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
HARRIS STRATEX NETWORKS, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Harris Stratex Networks, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the Corporation), DOES
HEREBY CERTIFY that pursuant to the authority vested in the Board of Directors of the Corporation
(hereinafter called the Board of Directors or the Board) by the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors on
April 20, 2009 adopted a resolution providing for the authorization of a series of preferred stock,
as follows:
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
the Corporation in accordance with the provisions of the Amended and Restated Certificate of
Incorporation, the Board of Directors hereby creates a series of preferred stock, par value $0.01
per share (the Series A Junior Participating Preferred Stock), of the Corporation and
hereby states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series A Junior Participating Preferred Stock and the number of shares constituting the
Series A Junior Participating Preferred Stock shall be 1,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Junior Participating Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A Junior Participating Preferred
Stock.
Section 2. Dividends and Distributions. Subject to the rights of the holders of any
shares of any series of preferred stock (or any similar stock) ranking prior and superior to the
Series A Junior Participating Preferred Stock with respect to dividends, the holders of shares of
Series A Junior Participating Preferred Stock, in preference to the holders of common stock, par
value $0.01 per share (the Common Stock), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and December in each year
(each such date being referred to herein as a Quarterly Dividend Payment Date),
commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A
-2-
Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, one thousand (1,000) times the aggregate per share amount of all
cash dividends, and one thousand (1,000) times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the Series A Junior Participating
Preferred Stock as provided in the first paragraph of this section immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Junior Participating
Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Junior Participating Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior Participating
Preferred Stock shall have the following voting rights:
Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder thereof to one thousand votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at
any time
declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or
-3-
lesser number of shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Except as otherwise provided herein, in any other Certificate of Designations creating a
series of preferred stock or any similar stock, or by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of Common Stock and any other capital stock
of the Corporation having general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
Except as set forth herein, or as otherwise provided by law, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions. Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange for shares of any
stock of the Corporation ranking junior (as to dividends and upon dissolution, liquidation and
winding up) to the Series A Junior Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A
Junior Participating Preferred Stock, or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or classes.
The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Corporation could, under
this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
-4-
Section 5. Reacquired Shares. Any shares of Series A Junior Participating Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be reissued as part of a new
series of preferred stock subject to the conditions and restrictions on issuance set forth herein,
in the Amended and Restated Certificate of Incorporation, or in any other Certificate of
Designations creating a series of preferred stock or any similar stock or as otherwise required by
law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of
Series A Junior Participating Preferred Stock shall have received $1,000.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment, provided that the holders of shares of Series A Junior Participating
Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one thousand (1,000) times the aggregate
amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of
shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating Preferred Stock, except distributions made
ratably on the Series A Junior Participating Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which holders of shares
of Series A Junior Participating Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Junior Participating Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating Preferred
Stock shall not be redeemable.
-5-
Section 9. Rank. The Series A Junior Participating Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporations preferred stock.
Section 10. Amendment. The Amended and Restated Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior Participating Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least a majority of the
outstanding shares of Series A Junior Participating Preferred Stock, voting together as a single
class.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Company by
its Chief Executive Officer and President, this 20th day of April 2009.
|
|
|
HARRIS STRATEX NETWORKS, INC. |
|
|
|
|
|
/s/ Harald J. Braun
Harald J. Braun
|
|
|
Chief Executive Officer and President |
|
|
exv3w2
Exhibit
3.2
AMENDED AND RESTATED
BYLAWS OF
HARRIS STRATEX NETWORKS, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section 2. The corporation may also have offices at such other places both within and without
the State of Delaware as the Board of Directors may from time to time determine or the business of
the corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors shall be held at
such place as may be fixed from time to time by the Board of Directors, or at such other place
either within or without the State of Delaware as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the date and at the time in
November as the Board of Directors may designate from time to time, or at such other date and time
as shall be designated from time to time by the Board of Directors and, in each case, stated in the
notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and
transact such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10)
nor more than sixty (60) days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, (i) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, or (ii) during ordinary business hours, at the
principal place of business of the Corporation a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder provided however that the Corporation
shall not be required to include electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of stockholders shall be called by the president or secretary at
the request in writing of a majority of the Board of Directors. Such request of the Board of
Directors shall state the purpose or purposes of the proposed special meeting. The place, date and
time of any special meeting shall be determined by the Board of Directors. Such determination
shall include the record date for determining the stockholders having the right to notice of and to
vote at such meeting.
Section 6. Written notice of a special meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called, shall be given not less than
ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled
to vote at such meeting.
Section 7. Only such business shall be conducted at a special meeting as shall have been
stated in the written notice of the meeting as the purpose or purposes for the meeting.
Section 8. The holders of capital stock entitled to cast a majority of the voting power of
all the capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the certificate of
incorporation. At any meeting of the stockholders, whether or not a quorum is present in person or
represented by proxy, the chairman of the meeting shall have the power to adjourn the meeting from
time to time, without notice, except as otherwise provided by law, other than announcement at the
meeting. At such adjourned meeting any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 9. In all matters other than the election of directors, the affirmative vote by the
holders of capital stock entitled to cast a majority of the voting power of all the capital stock
present in person or represented by proxy at any meeting and entitled to vote on the subject matter
shall be the act of the stockholders, unless the question is one upon which, by express provision
of any statute or of the certificate of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation, each stockholder
shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each
share of the capital stock having voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a longer period.
2
Section 11. Unless otherwise provided in the certificate of incorporation, and subject to the
provisions of Article II, Section 12 of these amended and restated bylaws (these Bylaws),
any action required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent
in writing setting forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
Section 12. In order that the corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting pursuant to Article II, Section 11 of these
Bylaws, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of Directors, and which
record date shall not be more than ten (10) days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent shall, by written notice to
the secretary, request the Board of Directors to fix a record date. The Board of Directors shall
promptly, but in all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been fixed by the Board
of Directors within such ten (10) day period, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in the State of Delaware, its principal place of business, or an officer
or agent of the corporation having custody of the book in which proceedings of stockholders
meetings are recorded, to the attention of the secretary of the corporation. Delivery shall be by
hand or by certified or registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 13. At any annual meeting of the stockholders, only such business shall be conducted
as shall be properly before the meeting. To be properly before an annual meeting, business must be
(a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of
the Board of Directors, or (c) otherwise properly brought before the meeting by a record
stockholder. For business to be properly brought before an annual meeting by a record stockholder,
the stockholder must have given timely notice thereof in writing to the secretary. To be timely,
the stockholders notice must be delivered to or mailed and received at the principal place of
business of the corporation not fewer than sixty (60) days nor more than ninety (90) days prior to
the meeting; provided, however, that in the event that less than seventy (70) days notice or prior
public disclosure of the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of
3
business on the tenth day following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. The stockholders written notice to the secretary
shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a
description of the business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address as they appear on the
corporations books of the stockholder proposing such business, (c) as of the date of such
stockholders notice, separate descriptions in reasonable detail of each of the stockholders
Interests (as defined in Article II, Section 15), (d) a covenant that such stockholder shall
supplement and deliver to the corporation updated information regarding its Interests promptly, and
in any event no later than ten (10) days, following the later of the record date or the date notice
of the record date is first publicly disclosed, (e) a representation that such stockholder is a
holder of record of shares of the corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to propose such business, (f) a representation as to whether
such stockholder intends to deliver a proxy statement and/or form of proxy to any stockholders
and/or otherwise to solicit proxies from any stockholders in support of the proposal, and (g) any
other information relating to such stockholder and such stockholders Interests that is required to
be disclosed in solicitations of proxies required pursuant to Regulation 14A under the Securities
and Exchange Act of 1934, as amended (the Exchange Act). Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted at any annual meeting unless properly
brought before such meeting in accordance with the procedures set forth in this Section 13. The
requirements of this Section 13 shall apply to any business to be brought before an annual meeting
by a stockholder (other than the nomination of a person for election as a director, which is
governed by Article II, Section 14) whether such business is to be included in the corporations
proxy statement pursuant to Rule 14a-8 under the Exchange Act or presented to stockholders by means
of an independently financed proxy solicitation or otherwise. The chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 13 and if it shall be so
determined, the chairman of the meeting shall so declare this to the meeting and such business not
properly brought before the meeting shall not be transacted.
Section 14. Only persons who are nominated in accordance with the procedures set forth in
this Section 14 shall be eligible for election by the stockholders as a director. Nominations of
persons for election as a director may be made at a meeting of stockholders by or at the direction
of the directors or by any record stockholder of the corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set forth in this Section 14.
Such nominations, other than those made by or at the direction of the directors, shall be made
pursuant to timely notice in writing to the secretary. To be timely, the stockholders notice
shall be delivered to or mailed and received at the principal place of business of the corporation
not fewer than sixty (60) nor more than ninety (90) days prior to the meeting; provided, however,
that in the event that less than seventy (70) days notice or prior public disclosure of the date
of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so
received not less than the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made. Such
stockholders notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of such person, (iii)
as of the date of such stockholders notice, separate descriptions in reasonable detail of each
4
of each nominees Interests (as defined in Article II, Section 15), (iv) a covenant that such
stockholder shall supplement and deliver to the corporation updated information regarding each
nominees Interests promptly, and in any event no later than ten (10) days, following the later of
the record date or the date notice of the record date is first publicly disclosed and (v) any other
information relating to each nominee and each nominees Interests that is required to be disclosed
in solicitations of proxies for election of directors or is otherwise required in each case
pursuant to Regulation 14A under the Exchange Act (including without limitation such persons
written consent to being named in the proxy statement as a nominee and to serving as a director if
elected); and (b) as to the stockholder giving the notice (i) the name and address, as they appear
on the corporations books of such stockholder, (ii) as of the date of such stockholders notice,
separate descriptions in reasonable detail of each of the stockholders Interests (as defined in
Article II, Section 15 of these Bylaws), (iii) a covenant that such stockholder will update and
deliver to the corporation information regarding its Interests promptly, and in any event no later
than ten (10) days, following the later of the record date or the date notice of the record date is
first publicly disclosed, (iv) a representation that such stockholder is a holder of record of
shares of the corporation entitled to vote at the meeting, (v) a representation as to whether such
stockholder intends to deliver a proxy statement and/or form of proxy to any stockholders and/or
otherwise to solicit proxies from any stockholders in support of any nominees election and (vi)
any other information relating to such stockholder and such stockholders Interests that is
required to be disclosed in solicitations of proxies required pursuant to Regulation 14A under the
Exchange Act. At the request of the Board of Directors any person nominated by the Board of
Directors for election as a director shall furnish to the secretary that information required to be
set forth in a stockholders notice of nomination which pertains to the nominee. No person shall
be eligible for election as a director unless nominated in accordance with the procedures set forth
in this Section 14. The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the provisions of this Section 14
and if it shall be so determined, the chairman shall so declare this to the meeting and the
defective nomination shall be disregarded.
Section 15. As used in these Bylaws, Interests shall mean, with respect to any
stockholder or nominee (a Person), (a) shares of the corporation (by class and number)
held of record by such Person, (b) shares (by class and number) of the corporation beneficially
owned by such Person, (c) any agreement, arrangement or understanding (including any derivative,
including any cash-settled derivative, or short position, profit interest, option, hedging
transaction and borrowed or loaned shares) entered into by or on behalf of such Person or any of
its affiliates or associates or owned or beneficially owned by such Person, the effect or intent of
which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or
decrease the voting power of such Person or any of its affiliates or associates with respect to
shares of the corporation or any other economic interests, and (d) with respect to any business a
stockholder proposes to be brought before the annual meeting or any nominee that a stockholder
proposes to nominate for election as a director, (i) any material interest of the stockholder in
such business or any relationship of the stockholder with the nominee, as the case may be, and (ii)
any agreement, arrangement or understanding with respect to such business or nominee, as the case
may be, between or among the stockholder and any of its affiliates or associates, and any person
acting in concert with any of the foregoing (including, in each case, their names). As used in
this Section 15, beneficial ownership shall be determined in accordance with Rule 13d-3 and Rule
13d-5 under the Exchange Act.
5
ARTICLE III
DIRECTORS
Section 1. Subject to any requirements in the certificate of incorporation, the number of
directors that shall constitute the whole Board of Directors shall be fixed by resolution of the
Board of Directors but in no event shall be less than six (6). The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each
director elected shall hold office until his or her successor is elected and qualified. Directors
need not be stockholders, but shall not be older than 75 years of age on the date of their election
or appointment to be eligible to serve as a director unless otherwise specifically approved by
resolution passed by the directors then in office or by the sole remaining director.
Section 2. Except as otherwise provided in the certificate of incorporation, vacancies and
newly created directorships resulting from any increase in the authorized number of directors may
be filled solely by a majority of the directors then in office, though less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and qualified, unless sooner removed. If
there are no directors in office, then an election of directors may be held in the manner provided
by statute. If, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole Board of Directors (as
constituted immediately prior to any such increase), the Court of Chancery may, upon application of
any stockholder or stockholders holding at least ten percent (10%) of the total voting power of all
the outstanding capital stock entitled to vote generally in the election of such directors,
summarily order an election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under the direction of its
Board of Directors which may exercise all such powers of the corporation and do all such lawful
acts and things as are not by statute or by the certificate of incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Section 4. The Board of Directors of the corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors shall be held at such
time and place as shall be fixed by the vote of the stockholders at the annual meeting and no
notice of such meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held without notice at such time
and at such place as shall from time to time be determined by the Board of Directors.
6
Section 7. Special meetings of the Board of Directors may be called by the Chairman of the
Board of Directors, the president, the secretary, any officer appointed by the Board of Directors
or any two (2) directors on four (4) days notice to each director by mail or two (2) days notice
to each director either personally or by telephone or electronic communication (e.g., electronic
mail or similar means of communication).
Section 8. Subject to any requirements in the certificate of incorporation, at all meetings
of the Board of Directors, a majority of the authorized number of directors shall constitute a
quorum for the transaction of business and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute, by the certificate of incorporation or by Article III,
Section 9 of these Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to time without notice
other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of Directors or
committee thereof, as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or committee thereof.
Section 10. Unless otherwise restricted by the certificate of incorporation or these Bylaws,
members of the Board of Directors or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee thereof, by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 11. The Board of Directors may, by resolution passed by a majority of the whole Board
of Directors, designate one or more committees, each committee to consist of one or more of the
directors of the corporation. The Board of Directors may designate one or more directors as
alternate members of any committee who may replace any absent or disqualified member at any meeting
of the committee.
In the absence or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of Directors in the management of
the business and affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it, but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the corporations property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the
7
Bylaws of the corporation, and, unless the resolution or the certificate of incorporation
expressly so provide, no such committee shall have the power or authority to declare a dividend or
to authorize the issuance of stock. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of Directors.
Section 12. Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
Section 13. Unless otherwise restricted by the certificate of incorporation or these Bylaws,
the Board of Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee meetings.
Section 14. Unless otherwise provided in the certificate of incorporation or these Bylaws,
any director or the entire Board of Directors may be removed, with or without cause, by the holders
of a majority of shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of statutes or of the certificate of incorporation
or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice to directors may also be given by telephone or
electronic communication (e.g., electronic mail or similar means of communication).
Section 2. Whenever any notice is required to be given under the provisions of the statutes
or of the certificate of incorporation or of these Bylaws, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the Board of Directors and
shall be a Chairman of the Board, a president, a secretary and a chief financial officer. The
Board of Directors may elect from among its members a Vice Chairman of the Board and may also
choose one or more assistant secretaries and assistant treasurers, and such other officers as it
may determine. Any number of offices may be held by the same person, unless the certificate of
incorporation or these Bylaws otherwise provide.
8
Section 2. The Board of Directors at its first meeting after each annual meeting of
stockholders shall choose the officers of the corporation.
Section 3. The Board of Directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.
Section 4. The salaries of all officers and agents of the corporation shall be fixed by the
Board of Directors.
Section 5. The officers of the corporation shall hold office until their successors are duly
elected and qualified. Any officer elected or appointed by the Board of Directors may be removed
at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the corporation shall be filled by the Board of Directors.
Section 6. The Chairman of the Board shall preside at all meetings of the Board of Directors
and of the stockholders at which he shall be present and shall have and may exercise such powers as
are, from time to time, assigned by the Board of Directors and as may be provided by law.
Section 7. In the absence of the Chairman of the Board, the Vice Chairman, if any, shall
preside at all meetings of the Board of Directors and of the stockholders at which he shall be
present. The Vice Chairman shall have and may exercise such powers as are, from time to time,
assigned by the Board of Directors and as may be provided by law.
Section 8. The president shall be the general manager and chief executive officer of the
corporation, and in the absence of the Chairman of the Board and Vice Chairman, shall preside at
all meetings of the stockholders and the Board of Directors. The president shall have general and
active management of the business of the corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect.
Section 9. The president shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation.
Section 10. In the absence of the president or in the event of his inability or refusal to
act, such officer as may be designated by the directors, shall perform the duties of the president,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the
president.
Section 11. The secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the meetings of the corporation and
of the Board of Directors in a book to be kept for that purpose and shall perform like duties for
the standing committees when required. The secretary shall give or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board of Directors and shall perform
such other duties as may be prescribed by the Board of Directors or president, under whose
supervision he shall be. The secretary shall have custody of the corporate seal of the
9
corporation, and the secretary or an assistant secretary shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by his signature or by
the signature of such assistant secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the corporation and to attest the affixing by his signature.
Section 12. The assistant secretary, or if there be more than one, the assistant secretaries
in the order determined by the Board of Directors (or if there be no such determination, then in
the order of their election) shall, in the absence of the secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 13. The chief financial officer may also be designated by the alternate title of
treasurer. The chief financial officer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated by the Board of
Directors.
Section 14. The chief financial officer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render
to the president and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 15. If required by the Board of Directors, the chief financial officer shall give the
corporation a bond (which shall be renewed every six years) in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the corporation.
Section 16. The assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the Board of Directors (or if there be no such determination,
then in the order of their election) shall, in the absence of the chief financial officer or in the
event of his inability or refusal to act, perform the duties and exercise the powers of the chief
financial officer and shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
ARTICLE VI
STOCK
Section 1. The shares of the corporation shall be represented by certificates, provided
however that some or all of any or all classes or series of its stock may be uncertificated shares.
However, every holder of stock in the corporation shall be entitled to have a certificate, signed
by, or in the name of the corporation by, the Chairman or Vice Chairman of the Board of
10
Directors, or the president or the chief financial officer and the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of
shares owned by the stockholder in the corporation.
Certificates may be issued for partly paid shares and in such case upon the face or back of
the certificates issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor, and the amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any or all of the signatures on the certificate may be facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. The Board of Directors may direct a new certificate or certificates to be issued
in place of any certificate or certificates theretofore issued by the corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation
or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 5. In order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or entitled to exercise
11
any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting:
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. The corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of
the certificate of incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the corporation, or for such
other purpose as the Board of Directors shall think conducive to the interest of the corporation,
and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 3. All checks or demands for money and notes of the corporation shall be signed by
such officer or officers or such other person or persons as the Board of Directors may from time to
time designate.
Section 4. The fiscal year of the corporation shall be fixed by resolution of the Board of
Directors.
Section 5. The Board of Directors may adopt a corporate seal having inscribed thereon the
name of the corporation, the year of its organization and the words Corporate Seal, Delaware.
The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
Section 6. Each person who was or is made a party to or witness or other participant in or is
threatened to be made a party to or witness or other participant in or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative, investigative or other
(hereinafter a proceeding), by reason of the fact that he or she, or a person for whom he
or she is the legal representative, is or was a director or officer of the corporation or is or was
serving at
12
the request of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise (hereinafter a
designee), whether the basis of the proceeding is alleged action in an official capacity
as a director, officer or designee or in any other capacity while serving as a director, officer or
designee, shall be indemnified and held harmless by the corporation to the fullest extent permitted
by the General Corporation Law of Delaware, as the same exists or may hereafter be amended, against
all expenses (including attorneys fees), judgments, fines, penalties, amounts paid in settlement,
liability and loss (including, without limitation, all interest, assessments and other charges paid
or payable in connection with or in respect of any of the foregoing) (hereinafter collectively
expenses, which expenses shall also include without limitation any expenses of
establishing a right to indemnification or advancement under this Section 6 or Article VII,
Section 7 or 8) reasonably incurred or suffered by such director, officer or designee in connection
therewith; provided, however, that, except as provided in Article VII, Section 8, the corporation
shall indemnify any such director, officer or designee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such director, officer or designee only if such
proceeding (or part thereof) was authorized by the Board of Directors of the corporation. The
corporation may, by action of the Board of Directors, provide indemnification to employees and
agents of the corporation with the same scope and effect as the foregoing indemnification of
directors, officers and designees.
Section 7. Expenses incurred by or on behalf of any person in defending any proceeding by
reason of the fact that such person is or was a director, officer or designee of the corporation
shall be advanced by the corporation prior to the final disposition of such proceeding; provided,
however, that if the General Corporation Law of Delaware requires, the payment of such expenses
incurred by a director, officer or designee in his or her capacity as a director, officer or
designee (and not in any other capacity in which service was or is rendered by such person while a
director, officer or designee, including, without limitation, service to an employee benefit plan)
in advance of the final disposition of a proceeding shall be made only upon delivery to the
corporation of an undertaking by or on behalf of such director, officer or designee to repay all
amounts so advanced if it shall ultimately be determined that such director, officer or designee is
not entitled to be indemnified under Article VII, Section 6 or this Section 7 or otherwise.
Section 8. If a claim under either Article VII, Section 6 or 7 is not paid in full by the
corporation within 30 days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the
expense of prosecuting such claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of Delaware for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including the Board of Directors, independent legal counsel or the
stockholders) to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of Delaware, nor an actual
determination by the corporation (including the Board of
13
Directors, independent legal counsel or the stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 9. Article VII, Sections 6 and 7 shall be deemed to be a contract between the
corporation and each director who serves in such capacity at any time while this Bylaw is in
effect, and any repeal or modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought based in whole or in part upon any such state of
facts.
Section 10. The foregoing rights of indemnification shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office, to the extent such
additional rights to indemnification are authorized in the certificate of incorporation. Persons
seeking indemnification or advancement may seek either or both at his or her discretion and the
pursuit of one shall neither be deemed a waiver of such persons rights to pursue the other, nor
shall it have any effect on the outcome of such persons pursuit of the other. Nothing contained
in Article VII, Section 6, 7, 8 or 9 or this Section 10 shall affect any right to indemnification
to which persons other than directors, officers or designees may be entitled by contract or
otherwise. Nothing in this section shall restrict the power of the corporation to indemnify its
directors, officers, designees, employees or agents under any provision of the General Corporation
Law of Delaware, as amended from time to time, or under any other provision of law from time to
time applicable to the corporation, nor shall anything in Article VII, Section 6, 7, 8 or 9 or this
Section 10 authorize the corporation to indemnify its directors, officers, designees, employees or
agents in situations prohibited by the General Corporation Law of Delaware or other applicable law.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by
the stockholders or by the Board of Directors, when such power is conferred upon the Board of
Directors by the certificate of incorporation, at any regular meeting of the stockholders or of the
Board of Directors or at any special meeting of the stockholders or of the Board of Directors if
notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice
of such special meeting. If the power to adopt, amend or repeal Bylaws is conferred upon the Board
of Directors by the certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal Bylaws.
Section 2. Notwithstanding any other provision in these Bylaws, Sections 5, 12, 13, and 14 of
Article II of these Bylaws and this Section 2 shall not be amended, modified or repealed, directly
or indirectly except by (i) the affirmative vote of two-thirds (2/3) or more of the Continuing
Directors (as defined below) and the approval of the stockholders otherwise required by applicable
law or these Bylaws for such amendment; or (ii) the affirmative vote of the holders
14
of capital stock entitled to cast a majority of all the votes entitled to be cast by the
holders of all the capital stock entitled to vote generally in the election of directors.
Continuing Director shall mean any person then serving as a director of this corporation
(i) who was a member of the Board of Directors of this corporation on January 26, 2007, or (ii) who
becomes a director after January 26, 2007 and whose election, or nomination for election by this
corporations stockholders, was approved by a majority of the directors who at that time are
Continuing Directors, either by a specific vote or by approval of the proxy statement issued by
this corporation on behalf of the Board of Directors in which such person is named as nominee for
director.
15