8-K

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

April 25, 2011

Date of Report

(Date of earliest event reported)

Novell, Inc.

(Exact name of registrant as specified in its charter)

Delaware	0-13351	87-0393339
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification Number)

404 Wyman Street, Suite 500

Waltham, MA 02451

(Address of principal executive offices, including zip code)

(781) 464-8000

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

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.

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

As previously publicly disclosed, Novell, Inc., a Delaware corporation (the “Company”), and CPTN Holdings LLC (“CPTN”), a consortium of technology companies organized by Microsoft Corporation (“Microsoft”), entered into a Patent Purchase Agreement, dated as of November 21, 2010, as amended by Amendment No. 1 to Patent Purchase Agreement, dated as of April 20, 2011 (as so amended, the “Patent Purchase Agreement”).

On April 25, 2011, the Company and CPTN entered into Amendment No. 2 to Patent Purchase Agreement, which substituted one U.S. issued patent for another U.S. issued patent for purposes of addressing a potential terminal disclaimer issue.

The Company and Microsoft are parties to a Business Collaboration Agreement, a Technical Collaboration Agreement and a Patent Cooperation Agreement that collectively were designed to build, market and support a series of new solutions to enhance the interoperability of the Company’s products with Microsoft’s products.

Item 2.01 Completion of Acquisition or Disposition of Assets.

On April 27, 2011, upon the terms and subject to the conditions of the Patent Purchase Agreement, as amended, the Company sold all of its right, title and interest in certain identified issued patents and patent applications to CPTN for $450 million in cash. The patents and patent applications sold pursuant to the Patent Purchase Agreement, as amended, relate to enterprise-level computer systems management software, enterprise-level file management and collaboration software in addition to patents relevant to the Company’s identity and security management business. The $450 million consideration for the patents and patent applications sold pursuant to the Patent Purchase Agreement, as amended, was the proposed purchase price set forth in a letter of intent received by the Company from Microsoft on October 29, 2010.

The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Company’s agreements with Microsoft is incorporated by reference into this Item 2.01.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

As previously publicly disclosed, on November 21, 2010, the Company entered into an Agreement and Plan of Merger (as subsequently amended, the “Merger Agreement”) with Attachmate Corporation (“Attachmate”) and Longview Software Acquisition Corp., a wholly owned subsidiary of Attachmate (“Merger Sub”). On April 27, 2011, immediately following the consummation of the patent sale described in Item 2.01 of this Current Report on Form 8-K and upon the terms and subject to the conditions of the Merger Agreement, Merger Sub was merged with and into the Company, and the Company, as the surviving corporation in the merger, became a wholly owned subsidiary of Attachmate.

Pursuant to the terms of the Merger Agreement, at the effective time of the merger, each issued and outstanding share of the Company’s common stock, other than treasury shares, shares held by Attachmate, Merger Sub or any other direct or indirect wholly owned subsidiary of Attachmate or the Company and shares held by stockholders who perfected their appraisal rights in accordance with the General Corporation Law of the State of Delaware, were converted into the right to receive $6.10 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”).

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As a result of the merger, the Company no longer fulfills the numerical listing requirements of The NASDAQ Global Select Market (“NASDAQ”), and at the close of business on April 27, 2011, the Company’s common stock ceased trading on NASDAQ. Also on April 27, 2011, at the Company’s request, NASDAQ filed with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, or Form 25, to delist the Company’s common stock from NASDAQ and deregister the Company’s common stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company expects to file with the SEC a Certification and Notice of Termination of Registration Under Section 12(g) of the Securities Exchange Act of 1934 or Suspension of Duty to File Reports Under Sections 13 and 15(d) of the Securities Exchange Act of 1934, or Form 15, whereupon the Company’s reporting obligations under Sections 13 and 15 of the Exchange Act will be suspended.

Item 3.03 Material Modification to Rights of Security Holders.

At the effective time of the merger on April 27, 2011 and pursuant thereto, the Company’s Restated Certificate of Incorporation was amended to read in its entirety as the certificate of incorporation of Merger Sub in effect immediately prior to the effective time, except that the name of the company set forth therein is “Novell, Inc.” (the “Amended Certificate of Incorporation”). The Amended Certificate of Incorporation reflects, among other things, changes to authorize the issuance of voting and non-voting common stock of the Company and to remove authority to issue preferred stock of the Company.

Also, pursuant to the Merger Agreement, at the effective time of the merger on April 27, 2011, the bylaws of Merger Sub, as in effect immediately prior to the effective time, became the bylaws of the Company, as the surviving corporation in the merger (the “Amended Bylaws”).

The foregoing descriptions of the Amended Certificate of Incorporation and Amended Bylaws are not complete and are subject to and qualified in their entirety by reference to the Amended Certificate of Incorporation and Amended Bylaws, copies of which are attached as Exhibit 3.1 and Exhibit 3.2, respectively, hereto and are incorporated herein by reference.

Item 5.01 Changes in Control of Registrant.

At the effective time of the merger on April 27, 2011, the Company became a wholly owned subsidiary of Attachmate, as described in Item 3.01 of this Current Report on Form 8-K, and the composition of the Company’s board of directors changed as described in Item 5.02 of this Current Report on Form 8-K.

The information set forth in Item 3.01 and Item 5.02, under the caption, “Change in Composition of Board of Directors,” of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

The Merger Consideration was funded through a combination of: (i) equity financing provided by Elliott Associates, L.P., Elliott International, L.P., and certain affiliates of each of Golden Gate Capital, Francisco Partners and Thoma Bravo LLC, (ii) debt financing provided by Credit Suisse, RBC Capital Markets, Goldman Sachs and Citadel Securities and consisting of first lien senior secured credit facilities made up of a $875 million term loan facility and a $40 million revolving credit facility and a second lien senior secured loan facility for $275 million and (iii) cash and cash equivalents available to Attachmate (including, without limitation, cash held by the Company and its subsidiaries and cash available to the Company in connection with the closing of the patent sale).

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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Amendments to Severance Agreements

The Company is party to a severance agreement with each of Ronald W. Hovsepian, Dana C. Russell, John K. Dragoon, Colleen A. O’Keefe, Scott N. Semel and James P. Ebzery, executive officers of the Company, as well as certain other of the Company’s executive and other officers (collectively, the “Severance Agreements”). The Severance Agreements generally provide for certain payments and benefits upon termination of employment under specified circumstances in connection with a change in control of the Company.

In connection with the closing of the merger with Attachmate, the Company entered into amendments to the Severance Agreements with each of Mr. Hovespian, Mr. Russell, Mr. Dragoon, Ms. O’Keefe, Mr. Semel, Mr. Ebzery and certain other of the Company’s executive and other officers, respectively, to clarify the officers’ respective rights with respect to a termination on or following the closing of the Company’s merger with Attachmate pursuant to the Merger Agreement. Each officer’s amendment revises the definition of a “Constructive Termination Associated With a Change in Control” to expressly provide that any termination of such officer’s employment on or following the closing of the merger entitles such officer to the payments and benefits under the agreement with respect to a Constructive Termination Associated With a Change in Control. Under the amendments, the Company waives certain rights to notice or to challenge determinations with respect to any such termination.

On April 27, 2011, each of Mr. Hovespian, Mr. Russell, Mr. Dragoon, Ms. O’Keefe, Mr. Semel and Mr. Ebzery terminated their employment with the Company and are eligible to receive payments and benefits under their respective Severance Agreement, as amended.

Change in Composition of Board of Directors

At the effective time of the merger on April 27, 2011, Albert Aiello, Fred Corrado, Richard L. Crandall, Gary G. Greenfield, Judith H. Hamilton, Ronald W. Hovsepian, Patrick S. Jones, Richard L. Nolan and John W. Poduska, Sr. ceased to be directors of the Company and members of any committee of the Company’s Board of Directors, which cessation was not because of any disagreements with the Company relating to the Company’s operations, policies or practices.

Pursuant to the Merger Agreement, the directors of Merger Sub, Jeff Hawn and Jennifer Guild, immediately prior to the effective time of the merger became the directors of the Company, as the surviving corporation in the merger, at the effective time.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

Item 8.01 Other Events.

Cancellation of 2011 Annual Meeting

As a result of the consummation of the Company’s merger with Merger Sub on April 27, 2011, the Company no longer has public stockholders, and, therefore, the Company’s 2011 Annual Meeting of Stockholders, scheduled to be held on May 13, 2011, has been canceled.

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Item 9.01 Financial Statements and Exhibits.

(b) Pro Forma Financial Information.

The pro forma effects of the patent sale are presented in the following unaudited pro forma condensed consolidated balance sheet as though the patent sale closed at the end of the Company’s first fiscal quarter of 2011 (January 31, 2011). The patents sold as part of this transaction have no carrying value. The patent sale is a nonrecurring event and is not expected to have a material ongoing impact on the Company’s results of operations. As such, no unaudited pro forma condensed consolidated statements of operations are presented.

For purposes of the pro forma condensed consolidated balance sheet, the Company assumed that the receipt of the $450 million of cash from CPTN was entirely in the U.S. and applied a 38.25% statutory tax rate to the gain. The Company did not evaluate the impact of the patent sale on certain deferred tax assets which were subject to a valuation allowance.

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NOVELL, INC.

PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET

(Unaudited)

	January 31, 2011 As Reported			Pro Forma Adjustments			January 31, 2011 Pro Forma
		ASSETS
Current assets:
Cash and cash equivalents	$	981,426		$	450,000	(1)	$	1,431,426
Short-term investments		150,009			—			150,009
Receivables, net		89,465			—			89,465
Other current assets		72,543			—			72,543
Total current assets		1,293,443			450,000			1,743,443
Property, plant and equipment, net		151,378			—			151,378
Goodwill		353,818			—			353,818
Intangible assets, net		26,988			—			26,988
Deferred income taxes		227,363			—			227,363
Other assets		48,013			—			48,013
Total assets	$	2,101,003		$	450,000		$	2,551,003
		LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable	$	30,102		$	—		$	30,102
Accrued compensation		49,319			—			49,319
Other accrued liabilities		66,412			172,125	(2)		238,537
Deferred revenue		448,744			—			448,744
Total current liabilities		594,577			172,125			766,702
Long-term deferred revenue		144,065			—			144,065
Other long-term liabilities		43,619			—			43,619
Total liabilities		782,261			172,125			954,386
Stockholders’ equity:
Common stock, par value $0.10 per share,		36,802			—			36,802
Additional paid-in capital		481,568			—			481,568
Treasury stock		(124,224	)		—			(124,224	)
Retained earnings		919,857			277,875	(3)		1,197,732
Accumulated other comprehensive income		4,739			—			4,739
Total stockholders’ equity		1,318,742			277,875			1,596,617
Total liabilities and stockholders’ equity	$	2,101,003		$	450,000		$	2,551,003

(1) Represents the cash received from the patent sale.

(2) Represents the income taxes payable assuming a statutory tax rate of 38.25% on the $450 million gain from the patent sale. As discussed above, the tax consequences have been limited to the impact of the statutory tax rate on the $450 million gain.

(3) Represents the impact to net income assuming the transaction had closed on the last day of the period.

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(d) Exhibits.

Exhibit Number	Description
3.1	Amended and Restated Certificate of Incorporation of Novell, Inc.
3.2	Amended and Restated Bylaws of Novell, Inc.

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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.

	Novell, Inc.
Date: April 28, 2011	By:	/s/ Jeff Hawn
		Jeff Hawn
		Chief Executive Officer, President and Assistant Secretary

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EXHIBIT INDEX

Exhibit Number	Description
3.1	Amended and Restated Certificate of Incorporation of Novell, Inc.
3.2	Amended and Restated Bylaws of Novell, Inc.

EX-3.1

Exhibit 3.1

SIXTH AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

NOVELL, INC.

1. The name of the corporation is Novell, Inc. (the “Corporation”).

2. The address of its registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

4. The aggregate number of shares of stock which the Corporation shall have authority to issue is 100,000 shares of stock, divided into two classes consisting of: (i) 98,000 shares to be designated as Voting Common Stock, par value of $0.01 per share (“Voting Common Stock”) and (ii) 2,000 shares to be designated as Non-Voting Common Stock, par value of $0.01 per share (“Non-Voting Common Stock”). Each holder of Voting Common Stock shall be entitled to one (1) vote for each share of Voting Common Stock held on the record date therefor on any matter submitted to a vote of the Stockholders of the Corporation. Except as may be required by law, the holders of shares of Non-Voting Common Stock shall not be entitled to vote on any matter submitted to a vote of the stockholders of the Corporation. Except with regard to voting rights, shares of Voting Common Stock and Non-Voting Common Stock are identical in all respects.

5. The business and affairs of the Corporation shall by managed by and under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute or this Sixth Amended and Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders.

6. No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages (including, without limitation, any judgment, amount paid in settlement, fine, penalty, punitive damages, or expense of any nature including attorneys’ fees) for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director’s duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article 6 shall apply to or have any effect on the

liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

7. The Corporation reserves the right to amend, change or repeal any provision contained in this Sixth Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed herein and by statutes or laws of the State of Delaware (“Delaware Law”), and all rights conferred upon stockholders herein are granted subject to this reservation.

8. In furtherance and not in limitation of the rights, powers, privileges, and discretionary authority granted or conferred by the DGCL or other Delaware Law, the Board of Directors is expressly authorized to make, alter, amend or repeal the bylaws of the Corporation, without any action on the part of the stockholders, but the stockholders may make additional bylaws and may alter, amend or repeal any bylaw whether adopted by them or otherwise. The Corporation may in its bylaws confer powers upon the Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law.

9. Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.

****

EX-3.2

Exhibit 3.2

AMENDED AND RESTATED BYLAWS

OF

LONGVIEW SOFTWARE ACQUISITION CORP.

(and, immediately following the merger with Novell, Inc., NOVELL, INC.)

*****

ARTICLE 1

OFFICES

Section 1.01. Registered Office. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 1.02. Other Offices. 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.

Section 1.03. Books. The books of the Corporation may be kept within or 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 2

MEETINGS OF STOCKHOLDERS

Section 2.01. Time and Place of Meetings. All meetings of stockholders shall be held at such place, either within or without the State of Delaware, on such date and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a designation by the Board of Directors).

Section 2.02. Annual Meetings. Unless directors are elected by written consent in lieu of an annual meeting as permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (“Delaware Law”), an annual meeting of stockholders, commencing with the year 2012, shall be held for the election of directors and to transact such other business as may properly be brought before the meeting. Stockholders may, unless the certificate of incorporation otherwise provides, act by written consent to elect directors; provided, however, that, if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.

Section 2.03. Special Meetings. Special meetings of stockholders may be called by the Board of Directors or the Chairman of the Board and shall be called by the Secretary at the request in writing of holders of record of a majority of the outstanding capital stock of the Corporation entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of Notice.

(a) Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by Delaware Law, such notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Unless these bylaws otherwise require, when a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or 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.

(b) A written waiver of any such notice signed by the person entitled thereto, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 2.05. Quorum. Unless otherwise provided under the certificate of incorporation or these bylaws and subject to Delaware Law, the presence, in person or by proxy, of the holders of a majority of the outstanding capital stock of the Corporation entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders present in person or represented by proxy shall adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.

Section 2.06. Voting.

(a) Unless otherwise provided in the certificate of incorporation and subject to Delaware Law, each stockholder shall be entitled to one vote for each outstanding share of capital stock of the Corporation held by such stockholder. Any share of capital stock of the Corporation held by the Corporation shall have no voting rights. Unless otherwise provided in Delaware Law, the certificate of incorporation or these bylaws, the affirmative vote of a majority

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of the shares of capital stock of the Corporation present, in person or by written proxy, at a meeting of stockholders and entitled to vote on the subject matter shall be the act of the stockholders.

(b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to a corporate action in writing without a meeting may authorize another person or persons to act for him by written proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.

Section 2.07. Action by Consent. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital 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 and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.

Section 2.08. Organization. At each meeting of stockholders, the Chairman of the Board, if one shall have been elected, or in the Chairman’s absence or if one shall not have been elected, the director designated by the vote of the majority of the directors present at such meeting, shall act as chairman of the meeting. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairman of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof.

Section 2.09. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting.

ARTICLE 3

DIRECTORS

Section 3.01. General Powers. Except as otherwise provided in Delaware Law or the certificate of incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

Section 3.02. Number, Election and Term of Office. The number of directors which shall constitute the whole Board shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two (2) or more than nine (9). The directors shall be elected at the annual meeting of the stockholders by written ballot, except as provided in Section 2.02

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and Section 3.12 herein, and each director so elected shall hold office until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal, Directors need not be stockholders.

Section 3.03. Quorum and Manner of Acting. Unless the certificate of incorporation or these bylaws require a greater number, a majority of the total number of directors shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat shall adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present.

Section 3.04. Time and Place of Meetings. The Board of Directors shall hold its meetings at such place, either within or without the State of Delaware, and at such time as may be determined from time to time by the Board of Directors (or the Chairman in the absence of a determination by the Board of Directors).

Section 3.05. Annual Meeting. The Board of Directors shall meet for the purpose of organization, the election of officers and the transaction of other business, as soon as practicable after each annual meeting of stockholders, on the same day and at the same place where such annual meeting shall be held. Notice of such meeting need not be given. In the event such annual meeting is not so held, the annual meeting of the Board of Directors may be held at such place either within or without the State of Delaware, on such date and at such time as shall be specified in a notice thereof given as hereinafter provided in Section 3.07 herein or in a waiver of notice thereof signed by any director who chooses to waive the requirement of notice.

Section 3.06. Regular Meetings. After the place and time of regular meetings of the Board of Directors shall have been determined and notice thereof shall have been once given to each member of the Board of Directors, regular meetings may be held without further notice being given.

Section 3.07. Special Meetings. Special meetings of the Board of Directors may be called by the President, any Vice President, the Secretary or any member of the Board of Directors. Notice of special meetings of the Board of Directors shall be given to each director by the person or persons calling the meeting at least twenty-four (24) hours before the date of the meeting.

Section 3.08. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board 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 present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may

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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 the following matter: (a) approving or adopting, or recommending to the stockholders, any action or matter expressly required by Delaware Law to be submitted to the stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.

Section 3.09. Action by Consent. 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 or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions, are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 3.10. Telephonic Meetings. 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 such committee, as the case may be, by means of conference telephone or other 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 3.11. Resignation. Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 3.12. Vacancies. Unless otherwise provided in the certificate of incorporation, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected. Each director so chosen shall hold office until his successor is elected and qualified, or until his earlier death, resignation or removal. If there are no directors in office, then an election of directors may be held in accordance with Delaware Law. Unless otherwise provided in the certificate of incorporation, when one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in the filling of other vacancies.

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Section 3.13. Removal. Any director or the entire Board of Directors may be removed, with or without cause, at any time by the affirmative vote of the holders of a majority of the outstanding capital stock of the Corporation then entitled to vote at any election of directors and the vacancies thus created maybe filled in accordance with Section 3.12 herein.

Section 3.14. Compensation. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have authority to fix the compensation of directors, including fees and reimbursement of expenses.

ARTICLE 4

OFFICERS

Section 4.01. Principal Officers. The principal officers of the Corporation shall include a President and a Secretary who shall have the duty, among other things, to record the proceedings of the meetings of stockholders and directors in a book kept for that purpose. The Corporation may also have such other principal officers, including one or more Treasurers, Controllers or Vice Presidents as the Board may in its discretion appoint. One person may hold the offices and perform the duties of any two or more of said offices, except that no one person shall hold the offices and perform the duties of President and Secretary.

Section 4.02. Election, Term of Office and Remuneration. The principal officers of the Corporation shall be elected annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold office until his successor is elected and qualified, or until his earlier death, resignation or removal. The remuneration of all officers of the Corporation shall be fixed by the Board of Directors. Any vacancy in any office shall be filled in such manner as the Board of Directors shall determine.

Section 4.03. Subordinate Officers. In addition to the principal officers enumerated in Section 4.01 herein, the Corporation may have one or more Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers, agents and employees as the Board of Directors may deem necessary, each of whom shall hold office for such period as the Board of Directors may from time to time determine. The Board of Directors may delegate to any principal officer the power to appoint and to remove any such subordinate officers, agents or employees.

Section 4.04. Removal. Except as otherwise permitted with respect to subordinate officers, any officer may be removed, with or without cause, at any time, by resolution adopted by the Board of Directors.

Section 4.05. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors (or to a principal officer if the Board of Directors has delegated to such principal officer the power to appoint and to remove such officer). The resignation of any officer shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

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Section 4.06. Powers and Duties. The officers of the Corporation shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors.

ARTICLE 5

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER AUTHORIZED

REPRESENTATIVES OF THE CORPORATION

All references to “the Corporation” in this Article 5 shall mean “the Corporation or Longview Software Acquisition Corp., as applicable.” With regard only to (i) Jeff Hawn, Charles Sansbury, Jennifer Guild, Jim Beck, Scott Crabill, David Golob, Ezra Perlman, Prescott Ashe, John Gilligan, Jim Schaper and Rajeev Amara for acts or omissions occurring prior to the effective time of the Merger as defined in and contemplated by that certain Agreement and Plan of Merger, dated as of November 21, 2010 by and among Attachmate Corporation, Novell, Inc. and the Corporation (the “Effective Time”) and (ii) Indemnitees at or following the Effective Time for acts or omissions occurring at or following the Effective Time:

Section 5.01. Right to Indemnification. Each person who was or is a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that the person is or was a director or an officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted or required by Delaware Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that, except as provided in Section 5.03 herein with respect to Proceedings to enforce rights to indemnification, the Corporation shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.

Section 5.02. Right to Advancement of Expenses. The right to indemnification conferred in Section 5.01 herein shall include the right to be paid by the Corporation the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any such Proceeding in advance of its final disposition (an “Advancement of Expenses”); provided, however, that, if Delaware Law so requires, an Advancement of Expenses incurred by an Indemnitee in such person’s capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it

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shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expenses under this Section 5.02 or otherwise. The rights to indemnification and to the Advancement of Expenses conferred in Sections 5.01 and 5.02 herein shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.

Section 5.03. Right of Indemnitee to Bring Suit. If a claim under Sections 5.01 and 5.02 herein is not paid in full by the Corporation within sixty (60) calendar days after a written claim has been received by the Corporation, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be twenty (20) calendar days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Corporation shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in Delaware Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in Delaware Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the Corporation to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, under this Article 5 or otherwise shall be on the Corporation.

Section 5.04. Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of Expenses conferred in this Article 5 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s certificate of incorporation, bylaws, any agreement, vote of stockholders or disinterested directors or otherwise.

Section 5.05. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under Delaware Law.

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Section 5.06. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the Advancement of Expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article 5 with respect to the indemnification and Advancement of Expenses of directors and officers of the Corporation.

ARTICLE 6

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER AUTHORIZED

REPRESENTATIVES OF PRE-MERGER NOVELL, INC.

For the purposes of this Article “Subsidiaries” shall mean any corporation, partnership, limited liability company, association, trust or other entity or organization (whether or not disregarded under United States Treasury Regulation section 301.7701-3 for United States federal tax purposes) (A) of which Novell, Inc. directly or indirectly at the Effective Date owns securities or other equity interests representing more than fifty percent (50%) of the aggregate voting power or (B) of which Novell, Inc. possesses at the Effective Date more than fifty percent (50%) of the right to elect directors or person holding similar positions).

With regard only to those persons who served as authorized representatives (as defined below) of Novell, Inc. or any of its Subsidiaries prior to the Effective Time, and only for acts or omissions occurring at or prior to the Effective Time:

Section 6.01. Indemnification of Authorized Representative in Third Party Proceedings. The Corporation shall indemnify, to the fullest extent permitted by the General Corporation Law of Delaware (the “DGCL”) as now or hereafter in effect, any individual who was prior to the Effective Time an “authorized representative” of Novell, Inc. (which shall mean for purposes of this Article a director or officer of Novell, Inc. or any of its Subsidiaries, or any such individual that served prior to the Effective Time at the request of Novell, Inc. as a director, officer, or trustee, of another corporation, partnership, joint venture, trust or other enterprise) and who was or is a “party” (which shall include for purposes of this Article the giving of testimony or similar involvement) or is threatened to be made a party to any “third party proceeding” (which shall mean for purposes of this Article any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of, prior to the Effective Time, Novell, Inc. or, at or following the Effective Time, the Corporation) by reason of the fact that such person was an authorized representative of Novell, Inc., against expenses (which shall include for purposes of this Article attorneys’ fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such third party proceeding if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of Novell, Inc. and, with respect to any criminal third party proceeding (including any action or investigation which could or does lead to a criminal third party proceeding) had no reasonable cause to believe such conduct was unlawful. The termination of any third party proceeding by judgment, order, settlement, indictment, conviction or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the authorized representative did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to, the best interests of Novell, Inc., or, with respect to any criminal third party proceeding, had reasonable cause to believe that such conduct was unlawful.

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Section 6.02. Indemnification of Authorized Representatives in Corporate Proceedings. The Corporation shall indemnify, to the fullest extent permitted by the DGCL as now or hereafter in effect, any person who was or is an authorized representative of Novell, Inc. and who was or is a party or is threatened to be made a party to any “corporate proceeding” (which shall mean for the purposes of this Article any threatened, pending or competed action or suit by or in the right of, prior to the Effective Time, Novell, Inc. or, at or following the Effective Time, the Corporation to procure a judgment in its favor or investigative proceeding by Novell, Inc. or, at or following the Effective Time, the Corporation) by reason of the fact that such person was or is an authorized representative of Novell, Inc., against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such corporate action if such person acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of Novell, Inc., except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of such person’s duty to Novell, Inc. unless and only to the extent that the Court of Chancery or the court in which such corporate proceeding was pending shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such authorized representative is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 6.03. Mandatory Indemnification of Authorized Representatives. To the extent that an authorized representative of Novell, Inc. has been successful on the merits or otherwise in defense of any third party or corporate proceeding or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses actually and reasonably incurred by such person in connection therewith without the necessity of a determination set forth in Section 6.04 hereof.

Section 6.04. Determination of Entitlement to Indemnification. Any indemnification under Section 6.01, 6.02, or 6.03 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the authorized representative is proper in the circumstances because such person has either met the applicable standard of conduct set forth in Section 6.01 or 6.02 or had been successful on the merits or otherwise as set forth in Section 6.03 and that the amount requested has been actually and reasonably incurred. Such determination, prior to the Effective Time, shall have been made by Novell, Inc., or, at or following the Effective Time, shall be made by the Corporation: (a) by a majority vote of directors who are not parties to such third party or corporate proceeding, even though less than a quorum, or (b) by a committee of such directors designated by a majority vote of directors who are not parties to such third party or corporate proceeding, even though less than a quorum, or (c) if there are no such directors, or, even if such directors are available and a majority of such director so directs, by independent legal counsel in written opinion, or (d) by the stockholders.

Section 6.05. Advancing Expenses. To the fullest extent not prohibited by the DGCL or by any other applicable law, expenses actually and reasonably incurred in defending a third party

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or corporate proceeding shall be paid on behalf of an authorized representative by the Corporation in advance of the final disposition of such third party or corporate proceeding as authorized in the manner provided in Section 6.04 upon receipt of an undertaking by or on behalf of the authorized representative to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the Corporation as authorized in this Article. The financial ability of such authorized representative to make such repayment shall not be a prerequisite to the making of an advance.

Section 6.06. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 6.04, and notwithstanding the absence of any determination thereunder, any authorized representative may apply to the Court of Chancery in the State of Delaware for indemnification to the extent otherwise permissible under Sections 6.01 and 6.02. The basis of such indemnification by a court shall be a determination by such court that indemnification of the authorized representative is proper in the circumstances because such person has met the applicable standards of conduct set forth in Sections 6.01 and 6.02, as the case may be. Neither a contrary determination in the specific case under Section 6.04 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the authorized representative seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 6.06 shall, prior to the Effective Time, have been given to Novell, Inc. or, at or following the Effective Time, be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the authorized person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

Section 6.07. Limitation on Indemnification. Notwithstanding anything contained in this Article 6 to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 6.06 hereof), the Corporation shall not be obligated to indemnify any authorized representative in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to, prior to the Effective Time, by the Board of Directors of Novell, Inc. or, at or following the Effective Time, the Board of Directors of Corporation.

Section 6.08. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of Novell, Inc. similar to those conferred in this Article 6 to directors and officers of Novell, Inc.

Section 6.09. Effect of Amendment or Repeal. Neither any amendment or repeal of any Section of this Article 6, nor the adoption of any provision of the certificate of incorporation or the by-laws inconsistent with this Article 6 shall adversely affect any right or protection of any authorized representative established pursuant to this Article 6 existing at the time of such amendment, repeal or adoption of an inconsistent provision, including without limitation by eliminating or reducing the effect of this Article 6, for or in respect of any act, omission or other matter occurring, or any action or proceeding accruing or arising (or that, but for this Article 6, would accrue or arise), prior to such amendment, repeal or adoption of an inconsistent provision.

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Section 6.10. Employee Benefit Plans. For purposes of this Article, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “served prior to the Effective Time at the request of Novell, Inc.” shall include any service as a director, officer, employee or agent of Novell, Inc. which imposed duties on, or involved services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of Novell, Inc.” as referred to in this Article.

Section 6.11. Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the Corporation may purchase and maintain insurance on behalf of any authorized representative against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article 6.

Section 6.12. Scope of Article. The indemnification and advancement of expenses of authorized representatives, as authorized by this Article, shall (a) not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any statute, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity, (b) continue as to a person who has ceased to be an authorized representative and (c) inure to the benefit of the heirs, executors and administrators of such a person

Section 6.13. Reliance on Provisions. Each person who shall act or have acted as an authorized representative of Novell, Inc. shall be deemed to be or have been doing so in reliance upon rights of indemnification provided by this Article.

ARTICLE 7

GENERAL PROVISIONS

Section 7.01. Fixing the Record Date.

(a) 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, 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 sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 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 that the Board of Directors may fix a new record date for the adjourned meeting.

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(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, 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 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. If no record date has been fixed by the Board of Directors, 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 Delaware 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 Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office 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 Delaware 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 day on which the Board of Directors adopts the resolution taking such prior action.

(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise 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 a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

Section 7.02. Dividends. Subject to limitations contained in Delaware Law and the certificate of incorporation, the Board of Directors may declare and pay dividends upon the shares of capital stock of the Corporation, which dividends may be paid either in cash, in property or in shares of the capital stock of the Corporation.

Section 7.03. Year. The fiscal year of the Corporation shall commence on April 1 and end on March 31 of each year.

Section 7.04. Corporate Seal. The corporate seal shall have 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, affixed or otherwise reproduced.

Section 7.05. Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person, on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.

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Section 7.06. Amendments. These bylaws or any of them, may be altered, amended or repealed, or new bylaws may be made, by the stockholders entitled to vote thereon at any annual or special meeting thereof or by the Board of Directors.

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