Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
QUALCOMM Incorporated
(a Delaware corporation)
AMENDED AND RESTATED BYLAWS
OF
QUALCOMM Incorporated
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in the State of
Delaware shall be in the City of Dover, County of Kent. (Del. Code Ann., tit. 8. Section 131).
Section 2. Other Offices. The corporation shall also have and maintain an office or
principal place of business in California, at such place as may be fixed by the Board of Directors,
and 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. (Del. Code Ann., tit. 8, Section 122(8)).
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The corporate seal shall consist of a die bearing the name
of the corporation and the inscription, Corporate Seal-Delaware. Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. (Del. Code Ann.,
tit. 8, Section 122(3)).
ARTICLE III
STOCKHOLDERS MEETINGS
Section 4. Place of Meetings. Meetings of the stockholders of the corporation shall be
held at such place, either within or without the State of Delaware, as may be designated from time
to time by the Board of Directors, or, if not so designated, then at the office of the corporation
required to be maintained pursuant to Section 2 hereof. (Del. Code Ann., tit. 8, Section 211(a)).
Section 5. Annual Meeting.
(a) The annual meeting of the stockholders of the corporation, for the purpose of election of
Directors and for such other business as may lawfully come before it, shall be held on such date
and at such time as may be designated from time to time by the Board of Directors. (Del. Code Ann.,
tit. 8, Section 211(b)).
(b) At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought 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 stockholder. For business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a stockholders notice must be received at the
corporations principal executive offices not earlier than the 120th day, and not later than the
close of business on the 90th day prior to the anniversary of the date of the previous years
annual meeting of stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been changed by more than 30 calendar days from the date of the
prior year s annual meeting as first specified in the corporations notice of meeting (without
regard to any postponements or adjournments of such meeting after such notice was first sent),
notice by the stockholder to be timely must be so received not earlier than the 120th day prior to
the date of such annual meeting and not later than the close of business on the later of the 90th
day prior to the date of such annual meeting or, if the first public announcement of the date of
such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day
following the day on which public announcement of the date of such annual meeting is first made by
the corporation. For purposes of these bylaws, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed or furnished by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended. In no event shall the public announcement of an adjournment or postponement, or an
adjournment or postponement, of a meeting commence a new time period (or extend any time period)
for the giving of a stockholders notice as described above. To be in proper form, a stockholders
notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before
the annual meeting: (i) a brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting, the text of the proposal
or business, including the text of any resolutions proposed for consideration and, in the event
that such business includes a proposal to amend the bylaws of the corporation, the language of the
proposed amendment, (ii) the name and address, as they appear on the corporations books, of the
stockholder proposing such business and the names and addresses of the beneficial owners, if any,
on whose behalf such business is being proposed, (iii) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote at the meeting on the date of such
notice and intends to appear in person or by proxy at the meeting to propose the business specified
in the notice, (iv) any material interest of the stockholder and any such beneficial owner of such
shares in such business, (v) the following information regarding the ownership interests of such
stockholder and any such beneficial owner, which shall be supplemented by such stockholder in
writing delivered to the Secretary of the corporation not later than 10 days after the record date
for the meeting to disclose such interests as of the record date: (A) the class or series and the
number of shares of the corporation which are, directly or indirectly, owned beneficially and of
record by such stockholder and any such beneficial owner, (B) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of shares of the
corporation or with a value derived in whole or in part from the value of any class or series of
shares of the corporation, whether or not such instrument or right shall be subject to settlement
in the underlying class or series of capital stock of the corporation or otherwise (a Derivative
Instrument) directly or indirectly owned beneficially by such stockholder and any other direct
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or indirect opportunity to profit or share in any profit derived from any increase or decrease
in the value of shares of the corporation, (C) any proxy, contract, arrangement, understanding, or
relationship pursuant to which such stockholder has a right to vote any shares of any security of
the corporation, (D) any short interest in any security of the corporation (for purposes of this
bylaw a person shall be deemed to have a short interest in a security if such person, directly or
indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the
opportunity to profit or share in any profit derived from any decrease in the value of the subject
security), (E) any rights to dividends on the shares of the corporation owned beneficially by such
stockholder that are separated or separable from the underlying shares of the corporation, (F) any
proportionate interest in shares of the corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such stockholder is a general partner or,
directly or indirectly, beneficially owns an interest in a general partner, and (G) any
performance-related fees (other than an asset-based fee) that such stockholder is entitled to based
on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such interests held by members
of such stockholders immediate family sharing the same household, and (vii) any other information
relating to such stockholder and beneficial owners, if any, that would be required to be disclosed
in a proxy statement or other filings in connection with solicitations of proxies for the proposal
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the 1934 Act).
The foregoing notice requirements shall be deemed satisfied by a stockholder with respect to
business other than a nomination if the stockholder has notified the corporation in compliance with
the applicable rules and regulations promulgated under the 1934 Act of such stockholders intention
to present a proposal at an annual meeting and such proposal has been included in a proxy statement
that has been prepared by the corporation to solicit proxies for such annual meeting. No business
shall be conducted at any annual meeting except in accordance with the procedures set forth in this
paragraph (b). The chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the meeting and in accordance
with the provisions of this paragraph (b), and, if he should so determine, he shall so declare at
the meeting that any such business not properly brought before the meeting shall not be transacted.
(c) Subject to any applicable provisions of the Certificate of Incorporation of the
corporation, only persons who are nominated in accordance with the procedures set forth in this
paragraph (c) shall be eligible for election as Directors. Nominations of persons for election to
the Board of Directors of the corporation may be made at a meeting of stockholders by or at the
direction of the Board of Directors or by any stockholder of the corporation entitled to vote in
the election of Directors at the meeting who complies with the notice procedures set forth in this
paragraph (c). For nominations to be properly made at a meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the corporation. To be
timely, such notice must be received at the corporations principal executive offices in accordance
with the timeliness provisions of paragraph (b) of this Section 5. In no event shall the public
announcement of an adjournment or postponement, or an adjournment or postponement, of a meeting
commence a new time period (or extend any time period) for the giving of such notice by a
stockholder. To be in proper form, such stockholders notice shall set forth (i) as to each
person, if any, whom the stockholder proposes to nominate for election or re-election as a
Director: (A) the name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the class and number of shares
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of the corporation which are beneficially owned by such person, (D) a description of all
direct and indirect compensation and other material monetary agreements, arrangements and
understandings during the past three years, and any other material relationships, between or among
such stockholder making the nomination and the beneficial owners, if any, on whose behalf the
nomination is being made and their respective affiliates and associates or others acting in concert
therewith (naming such persons), on the one hand, and each proposed nominee and his or her
respective affiliates and associates or others acting in concert therewith (naming such persons),
on the other hand, including, without limitation all information that would be required to be
disclosed pursuant to Item 404 of Regulation S-K promulgated by the Securities and Exchange
Commission if such stockholder making the nomination and any such beneficial owner on whose behalf
the nomination is made or any affiliate or associate thereof or person acting in concert therewith,
were the registrant for purposes of Item 404 of Regulation S-K and the nominee were a director or
executive officer of such registrant, and (E) any other information relating to such person 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 1934 Act (including without limitation
such persons written consent to being named in the proxy statement, if any, as a nominee and to
serving as a Director if elected); and (ii) as to such stockholder giving notice: (A) the name and
address, as they appear on the corporations books, of the stockholder making such nomination and
the names and addresses of the beneficial owners, if any, on whose behalf the nomination is being
made, (B) a representation that the stockholder is a holder of record of stock of the corporation
entitled to vote at the meeting on the date of such notice and intends to appear in person or by
proxy at the meeting to make the nomination specified in the notice, (C) the following information
regarding the ownership interests of such stockholder and any such beneficial owner, which shall be
supplemented by such stockholder in writing delivered to the Secretary of the corporation not later
than 10 days after the record date for the meeting to disclose such interests as of the record
date: (1) the class or series and the number of shares of the corporation which are, directly or
indirectly, owned beneficially and of record by such stockholder and any such beneficial owner, (2)
any Derivative Instrument directly or indirectly owned beneficially by such stockholder and any
other direct or indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the corporation, (3) any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder has a right to vote any shares of
any security of the corporation, (4) any short interest in any security of the corporation (for
purposes of this bylaw a person shall be deemed to have a short interest in a security if such
person, directly or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any decrease in the
value of the subject security), (5) any rights to dividends on the shares of the corporation owned
beneficially by such stockholder that are separated or separable from the underlying shares of the
corporation, (6) any proportionate interest in shares of the corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such stockholder is a
general partner or, directly or indirectly, beneficially owns an interest in a general partner, and
(7) any performance-related fees (other than an asset-based fee) that such stockholder is entitled
to based on any increase or decrease in the value of shares of the corporation or Derivative
Instruments, if any, as of the date of such notice, including without limitation any such interests
held by members of such stockholders immediate family sharing the same household, and (D) any
other information relating to such stockholder and beneficial owners, if any, that would be
required to be disclosed
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in a proxy statement or other filings in connection with solicitations of proxies for the
proposal pursuant to Regulation 14A under the 1934 Act. At the request of the Board of Directors,
any person nominated by a stockholder for election as a Director shall furnish to the Secretary of
the corporation that information required to be set forth in the stockholders notice of nomination
which pertains to the nominee. No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in this paragraph (c). The
chairman of the meeting shall, if the facts warrant, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these Bylaws, and if he
should so determine, he shall so declare at the meeting, and the defective nomination shall be
disregarded.
(d) Notwithstanding the foregoing provisions of this Section 5, a stockholder shall also
comply with all applicable requirements of the 1934 Act and the rules and regulations thereunder
with respect to the matters set forth in this Section 5; provided, however, that any references in
these bylaws to the 1934 Act or the rules and regulations thereunder are not intended to and shall
not limit any requirements applicable to nominations or other proposals to be considered pursuant
to this Section 5, and compliance with this Section 5 shall be the exclusive means for a
stockholder to make nominations or submit other proposals at an annual meeting (other than, as
provided in the third to last sentence of paragraph (b) of this Section 5, matters brought properly
under and in compliance with Rule 14a-8 of the 1934 Act). Nothing in this Section 5 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the corporations proxy
statement pursuant to Rule 14a-8 under the 1934 Act.
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation may be called, for any purpose or
purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, (iii)
the President, or (iv) the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized Directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the Board of Directors for
adoption), and shall be held at such place, on such date, and at such time as the Board of
Directors shall fix.
(b) If a special meeting is called by any person or persons other than the Board of Directors,
the request shall be in writing, specifying the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or the Secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The Board of Directors shall determine the time
and place of such special meeting, which shall be held not less than thirty-five (35) nor more than
one hundred twenty (120) days after the date of the receipt of the request. Upon determination of
the time and place of the meeting, the officer receiving the request shall cause notice to be given
to the stockholders entitled to vote, in accordance with the provisions of Section 7 of these
Bylaws. If the notice is not given within sixty (60) days after the receipt of the request, the
person or persons requesting the meeting may set the time and place of the meeting and give the
notice. Nothing contained in this paragraph (b) shall be construed as
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limiting, fixing, or affecting the time when a meeting of stockholders called by action of the
Board of Directors may be held.
Section 7. Notice of Meetings. Except as otherwise provided by law or the Certificate
of Incorporation, written notice of each meeting of stockholders 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, such notice to specify the place, date and hour and of the meeting. Notice of
the time, place and purpose of any meeting of stockholders may be waived in writing, signed by the
person entitled to notice thereof, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when the stockholder attends a
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. Any stockholder so waiving
notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if
due notice thereof had been given. (Del. Code Ann., tit. 8, Sections 222, 229).
Section 8. Quorum. At all meetings of stockholders, except where otherwise provided by
statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person or by
proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to
vote shall constitute a quorum for the transaction of business. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting
or by vote of the holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. The stockholders present at a duly called or convened meeting,
at which a quorum is present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a
majority of the vote cast, excluding abstentions, at any meeting at which a quorum is present shall
be valid and binding upon the corporation; provided, however, that except as provided in the
Certificate of Incorporation, Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote on the election of
Directors. Where a separate vote by a class or classes is required, a majority of the outstanding
shares of such class or classes, present in person or represented by proxy, shall constitute a
quorum entitled to take action with respect to that vote on that matter and the affirmative vote of
the majority (plurality, in the case of the election of Directors) of shares of such class or
classes present in person or represented by proxy at the meeting shall be the act of such class.
(Del. Code Ann., tit. 8, Section 216).
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders,
whether annual or special, may be adjourned from time to time either by the chairman of the meeting
or by the vote of a majority of the shares casting votes, excluding abstentions. When a meeting is
adjourned to another time or place, 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 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 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. (Del. Code Ann., tit. 8, Section
222(c)).
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Section 10. Voting Rights. For the purpose of determining those stockholders entitled
to vote at any meeting of the stockholders, except as otherwise provided by law, only persons in
whose names shares stand on the stock records of the corporation on the record date, as provided in
Section 12 of these Bylaws, shall be entitled to vote ay any meeting of stockholders. Every person
entitled to vote or execute consents shall have the right to do so either in person or by an agent
or agents authorized by a written proxy executed by such person or his duly authorized agent, which
proxy shall be filed with the Secretary at or before the meeting at which it is to be used. An
agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years from
its date of creation unless the proxy provides for a longer period. All elections of Directors
shall be by written ballot, unless otherwise provided in the Certificate of Incorporation. (Del.
Code Ann., tit. 8, Sections 211(e), 212(b)).
Section 11. Joint Owners of Stock. If shares or other securities having voting power
stand of record in the names of two (2) or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2)
or more persons have the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect: (a) if only one (1) votes, his act binds all;
(b) if more than one (1) votes, the act of the majority so voting binds all; (c) if more than one
(1) votes, but the vote is evenly split on any particular matter, each faction may vote the
securities in question proportionally, or may apply to the Delaware Court of Chancery for relief as
provided in the General Corporation Law of Delaware, Section 217(b). If the instrument filed with
the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split
for the purpose of subsection (c) shall be a majority or even-split in interest. (Del. Code Ann.,
tit. 8, Section 217(b)).
Section 12. List of Stockholders. The Secretary shall prepare and make, at least ten
(10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and
the number of shares registered in the name of each stockholder. 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 specified, at the place where the meeting is to be held. The list shall be produced and
kept at the time and place of meeting during the whole time thereof and may be inspected by any
stockholder who is present. (Del. Code Ann., tit. 8, Section 219(a)).
Section 13. Action Without Meeting. Any action required or permitted to be taken by
the stockholders of the corporation must be effected at a duly called annual or special meeting of
stockholders of the corporation and may not be effected by any consent in writing by such
stockholders.
Section 14. Organization.
(a) At every meeting of stockholders, the Chairman of the Board of Directors or an officer or
director designated by the Chairman of the Board of Directors, or, if a Chairman
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has not been appointed, is absent or has not designated another officer or director, the Chief
Executive Officer, or, if the Chief Executive Officer has not been appointed or is absent, an
officer or director designated by the Board of Directors, or, if the Board of Directors has not
made any such designation, the President, or, if the President is absent, the most senior Vice
President present, or in the absence of any such officer, a chairman of the meeting chosen by a
majority in interest of the stockholders entitled to vote, present in person or by proxy, shall act
as chairman. The Secretary or his designee, or, in his absence, an Assistant Secretary or other
officer directed to do so by the Chief Executive Officer or the President, shall act as secretary
of the meeting.
(b) The Board of Directors of the corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman
of the meeting shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such meeting to
stockholders of record of the corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the meeting after the
time fixed for the commencement thereof, limitations on the time allotted to questions or comments
by participants and regulation of the opening and closing of the polls for balloting on matters
which are to be voted on by ballot. Unless and to the extent determined by the Board of Directors
or the chairman of the meeting, meetings of stockholders shall not be required to be held in
accordance with rules of parliamentary procedure.
ARTICLE IV
DIRECTORS
Section 15. Number and Term of Office. Subject to any limitations imposed by the
Certificate of Incorporation, the authorized number of Directors of the corporation shall be fixed
from time to time by the Board of Directors by a resolution duly adopted by the Board of Directors.
Directors need not be stockholders unless so required by the Certificate of Incorporation. At the
2006 annual meeting of stockholders, the successors of the Directors whose terms expire at that
meeting shall be elected for a term expiring at the 2007 annual meeting of stockholders. At the
2007 annual meeting of stockholders, the successors of the Directors whose terms expire at that
meeting shall be elected for a term expiring at the 2008 annual meeting of stockholders. At the
2008 annual meeting of stockholders, all Directors shall be elected for a term expiring at the 2009
annual meeting of stockholders. At each annual meeting of stockholders thereafter, the Directors
shall be elected for terms expiring at the next annual meeting of stockholders. If for any cause,
the Directors shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called for that purpose in the
manner provided in these Bylaws. (Del. Code Ann., tit. 8, Sections 141(b), 211(b), (c)).
Section 16. Powers. The powers of the corporation shall be exercised, its business
conducted and its property controlled by the Board of Directors, except as may be otherwise
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provided by statute or by the Certificate of Incorporation. (Del. Code Ann., tit. 8, Section
141(a)).
Section 17. Successors. Notwithstanding the foregoing provisions of this Article, each
Director shall serve until his successor is duly elected and qualified or until his death,
resignation or removal. No decrease in the number of Directors constituting the Board of Directors
shall shorten the term of any incumbent Director.
Section 18. Vacancies. Unless otherwise provided in the Certificate of Incorporation,
any vacancies on the Board of Directors resulting from death, resignation, disqualification,
removal or other causes shall be filled by either (i) the affirmative vote of the holders of a
majority of the voting power of the then-outstanding shares of voting stock of the corporation
entitled to vote generally in the election of Directors (the Voting Stock) voting together as a
single class; or (ii) by the affirmative vote of a majority of the remaining Directors then in
office, even though less than a quorum of the Board of Directors. Newly created Directorships
resulting from any increase in the number of Directors shall, unless the Board of Directors
determines by resolution that any such newly created directorship shall be filled by the
stockholders, be filled only by the affirmative vote of the Directors then in office, even though
less than a quorum of the Board of Directors. Any Director elected in accordance with this
paragraph shall hold office for a term expiring at the next annual meeting of stockholders and
until such Directors successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Bylaw in the case of the death, removal or
resignation of any Director, or if the stockholders fail at any meeting of stockholders at which
Directors are to be elected (including any meeting referred to in Section 21 below) to elect the
number of Directors then constituting the whole Board of Directors. (Del. Code Ann., tit. 8,
Section 223(a), (b)).
Section 19. Resignation. Any Director may resign at any time by delivering his written
resignation to the Secretary, such resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If no
such specification is made, it shall be deemed effective at the pleasure of the Board of Directors.
When one or more Directors shall resign from the Board of Directors, effective at a future date, a
majority of the Directors then in office, including those who have so resigned, shall have 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 for a term
expiring at the next annual meeting of stockholders and until his successor shall have been duly
elected and qualified. In the event that the Board of Directors shall request the resignation of
any Director in accordance with the Majority Vote Policy (or any successor to such policy) of the
corporations Corporate Governance Principles and Practices in effect from time to time, such
Director shall promptly tender his or her resignation. Any failure to so tender such a resignation
shall constitute grounds for removal of such Director for cause in accordance with Section 20
below. (Del. Code Ann., tit. 8, Sections 141(b), 223(d)).
Section 20. Removal. Subject to any limitations imposed by law or the Certificate of
Incorporation, the Board of Directors, or any individual Director, may be removed from office at
any time (a) with cause by the affirmative vote of the holders of at least a majority of the then
outstanding shares of the capital stock of the corporation entitled to vote at an election of
Directors; or (b) without cause by an affirmative vote of the holders of at least sixty-six and
two-
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thirds percent (66-2/3%) of such outstanding shares. If the holders of any class or series of
capital stock are entitled to elect one (1) or more Directors by the Certificate of Incorporation,
as amended from time to time, the removal of such Directors without cause shall be by a vote of the
outstanding shares of that series or class of capital stock and not the outstanding shares of
capital stock as a whole. (Del. Code Ann., tit. 8, Section 141(k)).
Section 21. Meetings.
(a) Annual Meetings. The annual meeting of the Board of Directors shall be held
immediately after the annual meeting of stockholders and at the place where such meeting is held.
No notice of an annual meeting of the Board of Directors shall be necessary and such meeting shall
be held for the purpose of transacting such business as may lawfully come before it.
(b) Regular Meetings. Except as hereinafter otherwise provided, regular meetings of
the Board of Directors shall be held in the office of the corporation required to be maintained
pursuant to Section 2 hereof. Unless otherwise restricted by the Certificate of Incorporation,
regular meetings of the Board of Directors may also be held at any place within or without the
State of Delaware which has been designated by resolution of the Board of Directors or the written
consent of all Directors. (Del. Code Ann., tit. 8, Section 141(g)).
(c) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation,
special meetings of the Board of Directors may be held at any time and place within or without the
State of Delaware whenever called by the Chairman of the Board, the Chief Executive Officer, the
President or any two of the Directors. (Del. Code Ann., tit. 8, Section 141(g)).
(d) Telephone Meetings. Any member of the Board of Directors, or of any committee
thereof, may participate in a meeting by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at such meeting. (Del.
Code Ann., tit. 8, Section 141(i)).
(e) Notice of Meetings. Written notice of the time and place of all special meetings
of the Board of Directors shall be given at least twenty-four (24) hours before the date of the
meeting. Notice of any meeting may be waived in writing at any time before or after the meeting and
will be waived by any Director by attendance thereat, except when the Director 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. (Del. Code Ann., tit. 8, Section
229).
(f) Waiver of Notice. The transaction of all business at any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid
as though had at a meeting duly held after regular call and notice, if a quorum be present and if,
either before or after the meeting, each of the Directors not present shall sign a written waiver
of notice, or a consent to holding such meeting, or an approval of the minutes
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thereof. All such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting. (Del. Code Ann., tit. 8, Section 229).
Section 22. Quorum and Voting.
(a) Unless the Certificate of Incorporation requires a greater number, a quorum of the Board
of Directors shall consist of a majority of the exact number of Directors fixed from time to time
by the Board of Directors in accordance with the Certificate of Incorporation, but not less than
one (1); provided, however, at any meeting whether a quorum be present or otherwise, a majority of
the Directors present may adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by announcement at the meeting. (Del.
Code Ann., tit. 8, Section 141(b)).
(b) At each meeting of the Board of Directors at which a quorum is present, all questions and
business shall be determined by a vote of a majority of the Directors present, unless a different
vote be required by law, the Certificate of Incorporation or these Bylaws. (Del. Code Ann., tit. 8,
Section 141(b)).
Section 23. Action Without Meeting. 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, 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 of Directors or committee. (Del. Code Ann.,
tit. 8, Section 141(f)).
Section 24. Fees and Compensation. Directors shall be entitled to such compensation
for their services as may be approved by the Board of Directors, including, if so approved, by
resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for
attendance at each regular or special meeting of the Board of Directors and at any meeting of a
committee of the Board of Directors. Nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity as an officer, agent, employee, or
otherwise and receiving compensation therefor. (Del. Code Ann., tit. 8, Section 141(h)).
Section 25. Committees.
(a) Executive Committee. The Board of Directors may by resolution passed by a majority
of the whole Board of Directors appoint an Executive Committee to consist of one (1) or more
members of the Board of Directors. The Executive Committee, to the extent permitted by law and
specifically granted by the Board of Directors, shall have and may exercise when the Board of
Directors is not in session all powers of the Board of Directors in the management of the business
and affairs of the corporation, including, without limitation, the power and authority to declare a
dividend or to authorize the issuance of stock, except such committee shall not have the power or
authority to amend the Certificate of Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease or exchange of all or substantially
all of the corporations property and assets, to recommend to
11
the stockholders of the corporation a dissolution of the corporation or a revocation of a
dissolution or to amend these Bylaws. (Del. Code Ann., tit. 8, Section 141(c)).
(b) Other Committees. The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board of Directors shall consist of one
(1) or more members of the Board of Directors and shall have such powers and perform such duties as
may be prescribed by the resolution or resolutions creating such committees, but in no event shall
such committee have the powers denied to the Executive Committee in these Bylaws. (Del. Code Ann.,
tit. 8, Section 141(c)).
(c) Term. Each member of a committee of the Board of Directors shall serve a term on
the committee coexistent with such members term on the Board of Directors. The Board of Directors,
subject to the provisions of subsections (a) or (b) of this Bylaw, may at any time increase or
decrease the number of members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his death or voluntary resignation
from the committee or from the Board of Directors. The Board of Directors may at any time for any
reason remove any individual committee member and the Board of Directors may fill any committee
vacancy created by death, resignation, removal or increase in the number of members of the
committee. 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, and,
in addition, in the absence or disqualification of any 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. (Del. Code Ann., tit. 8, Section
141(c)).
(d) Meetings. Unless the Board of Directors shall otherwise provide, regular meetings
of the Executive Committee or any other committee appointed pursuant to this Section 25 shall be
held at such times and places as are determined by the Board of Directors, or by any such
committee, and when notice thereof has been given to each member of such committee, no further
notice of such regular meetings need be given thereafter. Special meetings of any such committee
may be held at any place which has been determined from time to time by such committee, and may be
called by any Director who is a member of such committee, upon written notice to the members of
such committee of the time and place of such special meeting given in the manner provided for the
giving of written notice to members of the Board of Directors of the time and place of special
meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived by any Director by attendance
thereat, except when the Director attends such special 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. A majority of the authorized number of members of any such
committee shall constitute a quorum for the transaction of business, and the act of a majority of
those present at any meeting at which a quorum is present shall be the act of such committee. (Del.
Code Ann., tit. 8, Sections 141(c), 229).
12
Section 26. Organization. At every meeting of the Directors, the Chairman of the Board
of Directors or an officer or director designated by the Chairman of the Board, or, if a Chairman
has not been appointed, is absent or has not designated another officer or director, the Chief
Executive Officer, or if the Chief Executive Officer is absent or not a member of the Board of
Directors, the President, or if the President is absent or not a member of the Board of Directors,
the most senior Vice President, provided that such person is a member of the Board of Directors,
or, in the absence of any such officer, a chairman of the meeting chosen by a majority of the
Directors present, shall preside over the meeting. The Secretary or his designee, or in his
absence, an Assistant Secretary or other officer directed to do so by the Chief Executive Officer
or the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 27. Officers Designated.
(a) Officer Positions. The officers of the corporation shall include, if and when
appointed and elected as set forth in this Section 27, the Chairman of the Board of Directors, the
Chief Executive Officer, the President, one or more Vice Presidents, the Chief Technical Officer,
the Chief Financial Officer, the Chief Operating Officer, the Secretary, the Treasurer and the
Controller. The order of the seniority of the Vice Presidents shall be determined as set forth in
Section 28(e), unless otherwise determined by the Board of Directors. The officers of the
corporation may also include one or more Assistant Secretaries, Assistant Treasurers, Assistant
Controllers and such other officers and agents with such powers and duties as may be deemed
necessary or advisable by the Board of Directors, the Chairman of the Board of Directors, the Chief
Executive Officer or the President, all of whom shall be appointed or elected as set forth in this
Section 27. The Board of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer or the President may assign such additional titles to one or more of the officers appointed
or elected in accordance with this Section 27 as may be deemed appropriate. Any one person may hold
any number of offices of the corporation at any one time unless specifically prohibited therefrom
by law. The salaries and other compensation of the Senior Officers (as defined below) shall be
fixed by or in the manner designated by the Board of Directors. The salaries and other compensation
of the Junior Officers (as defined below) shall be fixed by or in the manner designated by the
Chairman of the Board, the Chief Executive Officer or the President, or as otherwise directed by
the Board of Directors. (Del. Code Ann., tit. 8, Sections 122(5), 142(a), (b)).
(b) Appointment of Senior Officers. In its discretion, the Board of Directors shall
appoint the Chairman of the Board of Directors, the Chief Executive Officer, the President, the
Chief Technical Officer, the Chief Financial Officer, the Chief Operating Officer, the Secretary,
the Treasurer and one or more Vice Presidents who are designated as Executive Vice Presidents (the
foregoing officers referred to collectively as the Senior Officers).
(c) Appointment of Junior Officers. Each of the Chairman of the Board of Directors,
the Chief Executive Officer and the President shall have the authority to appoint, in their
discretion, the Controller, one or more Vice Presidents (including one or more Vice Presidents who
are designated as Senior Vice Presidents or Group Presidents), Assistant
13
Secretaries, Assistant Treasurers, Assistant Controllers and such other officers and agents
(in each case other than Senior Officers, who shall be designated as set forth above in accordance
with Section 27(b)), with such powers and duties as deemed necessary or advisable (the foregoing
officers referred to collectively as the Junior Officers).
Section 28. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the Board of Directors
and until their successors shall have been duly elected and qualified, unless sooner removed. Any
officer may be removed at any time by the Board of Directors, and any Junior Officer may be removed
at any time by any of the Chairman of the Board of Directors, the Chief Executive Officer or the
President, or by any other Designated Officer upon whom such authority has been conferred by the
Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the
President. If the office of any officer becomes vacant for any reason, the vacancy may be filled in
accordance with Section 27. (Del. Code Ann., tit. 8, Section 141(b), (e)).
(b) Duties of Chairman of the Board of Directors. The Chairman of the Board of
Directors, when present, shall preside at all meetings of the Board of Directors and stockholders
unless he or she has designated another officer or director to so preside. The Chairman of the
Board of Directors shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors shall designate from
time to time. (Del. Code Ann., tit. 8, Section 142(a)).
(c) Chief Executive Officer. The Chief Executive Officer, if such an officer be
elected, shall, subject to the control of the Board of Directors, have general supervision,
direction and control of the business and the officers of the Corporation. The Chief Executive
Officer may preside at meetings of the stockholders and the Board of Directors as provided
elsewhere in these Bylaws. The Chief Executive Officer shall exercise and perform such other
powers and duties as may from time to time be assigned to him by the Board of Directors.
(d) Duties of President. The President may preside at meetings of the stockholders
and the Board of Directors as provided elsewhere in these Bylaws. The President shall perform
other duties commonly incident to his office and shall also perform such other duties and have such
other powers as the Board of Directors shall designate from time to time. (Del. Code Ann., tit. 8,
Section 142(a)).
(e) Duties of Vice Presidents. The Vice Presidents, in the order of their seniority
(which shall be the order of their nomination and appointment, provided that any Vice President
designated as a Senior Vice President shall be deemed senior to any Vice President not so
designated, and any Vice President designated as an Executive Vice President shall be deemed senior
to any Senior Vice President or any Vice President not so designated), may assume and perform the
duties of the President in the absence or disability of the President or whenever the office of
President is vacant. The Vice Presidents shall perform other duties commonly incident to their
office and shall also perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the President shall designate from time to time. (Del.
Code Ann., tit. 8, Section 142(a)).
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(f) Duties of Chief Technical Officer. The Chief Technical Officer shall be
responsible for overall technical direction and strategy and such duties as are commonly incident
to such office and shall also perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the President shall designate from time to time.
(g) Duties of Chief Financial Officer. Unless otherwise designated by the Board of
Directors, the Chief Financial Officer shall be the Treasurer of the corporation. The Chief
Financial Officer shall keep or cause to be kept the books of account of the corporation in a
thorough and proper manner and shall render statements of the financial affairs of the corporation
in such form and as often as required by the Board of Directors, the Chief Executive Officer or the
President. The Chief Financial Officer, subject to the order of the Board of Directors, shall have
the custody of all funds and securities of the corporation. The Chief Financial Officer, and if
there be a separate office of the Treasurer, the Treasurer, shall perform such duties and have such
powers, as are commonly incident to such office and shall also perform such other duties and have
such other powers as the Board of Directors or the President or Chief Executive Officer shall
designate from time to time. The Chief Executive Officer or the President may direct the Treasurer
or any Assistant Treasurer, or the Controller or any Assistant Controller, to assume and perform
the duties of the Chief Financial Officer in the absence or disability of the Chief Financial
Officer, and each Assistant Treasurer shall perform other duties commonly incident to his office
and shall also perform such other duties and have such other powers as the Board of Directors, the
Chief Executive Officer or the President shall designate from time to time. (Del. Code Ann., tit.
8, Section 142(a)).
(h) Duties of Secretary. The Secretary shall record, or cause to be recorded, all acts
and proceedings of all meetings of the stockholders and of the Board of Directors in the minute
book of the corporation. The Secretary shall give, or cause to be given, notice in conformity with
these Bylaws of all meetings of the stockholders and of all meetings of the Board of Directors and
any committee thereof requiring notice. The Secretary shall perform all other duties bestowed on
the Secretary in these Bylaws and other duties commonly incident to such office and shall also
perform such other duties and have such other powers as the Board of Directors, the Chief Executive
Officer or the President shall designate from time to time. The Chief Executive Officer or the
President may direct any Assistant Secretary to assume and perform the duties of the Secretary in
the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties
commonly incident to such office and shall also perform such other duties and have such other
powers as the Board of Directors, the Chief Executive Officer or the President shall designate from
time to time. (Del. Code Ann., tit. 8, Section 142(a)).
Section 29. Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or agent, notwithstanding any
provision hereof. The Chairman of the Board of Directors, the Chief Executive Officer or the
President may from time to time delegate the powers or duties of any Junior Officer to any other
officer or agent, notwithstanding any provision hereof.
Section 30. Resignations. Any officer may resign at any time by giving written notice
to the Board of Directors or to the Chairman of the Board of Directors, the Chief Executive
Officer, the President or the Secretary. Any such resignation shall be effective when received by
15
the person or persons to whom such notice is given, unless a later time is specified therein,
in which event the resignation shall become effective at such later time. Unless otherwise
specified in such notice, the acceptance of any such resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights, if any, of the corporation
under any contract with the resigning officer. (Del. Code Ann., tit. 8, Section 142(b)).
Section 31. Removal. Any officer may be removed from office at any time, either with
or without cause, as set forth in Section 28(a).
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS
AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 32. Execution of Corporate Instruments. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or officers, or other person
or persons, to execute on behalf of the corporation any corporate instrument or document, or to
sign on behalf of the corporation the corporate name without limitation, or to enter into contracts
on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such
execution or signature shall be binding upon the corporation. (Del. Code Ann., tit. 8, Sections
103(a), 142(a), 158).
Unless otherwise specifically determined by the Board of Directors or otherwise required by
law, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents requiring the corporate seal shall be
executed, signed or endorsed by the Chairman of the Board of Directors, the Chief Executive
Officer, the President or any Vice President, and by the Secretary or Chief Financial Officer or
Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be executed as
aforesaid or in such other manner as may be directed by the Board of Directors. (Del. Code Ann.,
tit. 8, Sections 103(a), 142(a), 158).
All checks and drafts drawn on banks or other depositories on funds to the credit of the
corporation or in special accounts of the corporation shall be signed by such person or persons as
the Board of Directors shall authorize so to do.
Unless authorized or ratified by the Board of Directors or within the agency power of an
officer, no officer, agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for any purpose or for
any amount. (Del. Code Ann., tit. 8, Sections 103(a), 142(a), 158).
Section 33. Voting of Securities Owned by the Corporation. All stock and other
securities of other corporations owned or held by the corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the
person authorized so to do by resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President. (Del. Code Ann., tit. 8, Section 123).
16
ARTICLE VII
SHARES OF STOCK
Section 34. Form and Execution of Certificates. The shares of stock of the corporation
may be represented by certificates or uncertificated, as provided under the General Corporation Law
of Delaware. Certificates for the shares of stock of the corporation shall be in such form as is
consistent with the Certificate of Incorporation and applicable law. 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 of the Board of Directors, the Chief Executive Officer, the President or any Vice
President and by the Chief Financial Officer, the Treasurer, Assistant Treasurer, the Secretary or
Assistant Secretary, certifying the number of shares owned by him in the corporation. Where such
certificate is countersigned by a transfer agent other than the corporation or its employee, or by
a registrar other than the corporation or its employee, any other signature on the certificate may
be a 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 with the same effect as if he were
such officer transfer agent, or registrar at the date of issue. Each certificate shall state upon
the face or back thereof, in full or in summary, all of the designations, preferences, limitations,
restrictions on transfer and relative rights of the shares authorized to be issued; provided,
however, 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 a statement that the corporation will furnish without charge to each stockholder who so
requests the powers, the designations, the preferences, and the 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. (Del. Code Ann., tit. 8, Section
158).
Section 35. Lost Certificates. A new certificate or certificates shall 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. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, 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 or to give the corporation a surety bond in such form and amount 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. (Del. Code Ann., tit. 8, Section
167).
Section 36. Transfers.
(a) Transfers of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and with regard to
certificated shares, upon the surrender of a properly endorsed certificate or certificates for a
like number of shares. (Del. Code Ann., tit. 8, Section 201, tit. 6, Section 8-401(1)).
(b) The corporation shall have power to enter into and perform any agreement with any number
of stockholders of any one or more classes of stock of the corporation to restrict
17
the transfer of shares of stock of the corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the General Corporation Law of Delaware. (Del. Code
Ann., tit. 8, Section 160(a)).
Section 37. Fixing Record Dates.
(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, in
advance, 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, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
(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 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 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 10 days of the date on which such a request is received, 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 meetings of stockholders are recorded. Delivery made to the corporations
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 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, in advance, a record date, which record
date shall not precede the date upon which the resolution fixing the
18
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. (Del. Code Ann., tit. 8, Section 213).
Section 38. Registered Stockholders. 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 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.
(Del. Code Ann., tit. 8; Sections 213(a), 219).
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 39. Execution of Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered in Section 34), may be signed
by the Chairman of the Board of Directors, the Chief Executive Officer, the President or any Vice
President, or such other person as may be authorized by the Board of Directors, and the corporate
seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature
of the Secretary or an Assistant Secretary, or the Chief Financial Officer or Treasurer or an
Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be issued, the signatures of the
persons signing and attesting the corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as
aforesaid, shall be signed by the Chief Financial Officer, the Treasurer or an Assistant Treasurer
of the corporation or such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer who shall have signed
or attested any bond, debenture or other corporate security, or whose facsimile signature shall
appear thereon or on any such interest coupon, shall have ceased to be such officer before the
bond, debenture or other corporate security so signed or attested shall have been delivered, such
bond, debenture or other corporate security nevertheless may be adopted by the corporation and
issued and delivered as though the person who signed the same or whose facsimile signature shall
have been used thereon had not ceased to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
Section 40. Declaration of Dividends. 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 pursuant to law at any regular or special meeting. Dividends may be paid
in cash, in property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. (Del. Code Ann., tit. 8, Sections 170, 173).
19
Section 41. Dividend Reserve. 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 their 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
interests of the corporation, and the Board of Directors may modify or abolish any such reserve in
the manner in which it was created. (Del. Code Ann., tit. 8, Section 171).
ARTICLE X
FISCAL YEAR
Section 42. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. Indemnification of Directors, Officers, Employees and Other Agents.
(a) Directors and Executive Officers. The corporation shall indemnify its Directors,
Senior Officers and Vice Presidents who are designated as Executive Vice Presidents, Senior Vice
Presidents or Group Presidents (collectively with the Senior Officers, the Designated
Officers) to the fullest extent not prohibited by the Delaware General Corporation Law;
provided, however, that the corporation may modify the extent of such indemnification by individual
contracts with its Directors and Designated Officers; and, provided, further, that the corporation
shall not be required to indemnify any Director or Designated Officer in connection with any
proceeding (or part thereof) initiated by such person or any proceeding by such person against the
corporation or its Directors, officers, employees or other agents unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by the Board of
Directors of the corporation or (iii) such indemnification is provided by the corporation, in its
sole discretion, pursuant to the powers vested in the corporation under the Delaware General
Corporation Law.
(b) Junior Officers, Employees and Other Agents. The corporation shall have power to
indemnify its officers other than Designated Officers, employees and other agents as set forth in
the Delaware General Corporation Law. The Board of Directors shall have the power to delegate the
determination of whether indemnification shall be given to any such person to such officers or
other persons as the Board of Directors shall determine.
(c) Good Faith.
(1) For purposes of any determination under this Bylaw, a Director or Designated Officer shall
be deemed to have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action
is based on information, opinions, reports and statements, including financial statements and other
financial data, in each case prepared or presented by:
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(i) one or more officers or employees of the corporation as to the matters the Director or
Designated Officer believed to be reliable and competent in the matters presented;
(ii) counsel, independent accountants or other persons as to matters which the Director or
Designated Officer believed to be within such persons professional competence; and
(iii) a committee of the Board of Directors upon which such Director or Designated Officer
does not serve, as to matters within such Committees designated authority, which committee such
Director or Designated Officer believes to merit confidence;
so long as, in each case, the Director or Designated Officer acts without knowledge that would
cause such reliance to be unwarranted.
(2) The termination of any proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal proceeding,
that he had reasonable cause to believe that his conduct was unlawful.
(3) The provisions of this paragraph (c) shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the applicable standard of
conduct set forth by the Delaware General Corporation Law.
(d) Expenses. The corporation shall advance, prior to the final disposition of any
proceeding, promptly following request therefor, all expenses incurred by any Director or
Designated Officer in connection with such proceeding upon receipt of an undertaking by or on
behalf of such person to repay said amounts if it should be determined ultimately that such person
is not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this
Bylaw, no advance shall be made by the corporation if a determination is reasonably and promptly
made (i) by the Board of Directors by a majority vote of a quorum consisting of Directors who were
not parties to the proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested Directors so directs, by independent legal counsel in a written opinion,
that the facts known to the decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the corporation.
(e) Enforcement. Without the necessity of entering into an express contract, all
rights to indemnification and advances to Directors and Designated Officers under this Bylaw shall
be deemed to be contractual rights and be effective to the same extent and as if provided for in a
contract between the corporation and the Director or Designated Officer. Any right to
indemnification or advances granted by this Bylaw to a Director or executive officer shall be
enforceable by or on behalf of the person holding such right in any court of competent jurisdiction
if (i) the claim for indemnification or advances is denied, in whole or in part, or
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(ii) no disposition of such claim is made within ninety (90) days of request therefor. The claimant
in such enforcement action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. The corporation shall be entitled to raise as a defense to
any such action that the claimant has not met the standards of conduct that make it permissible
under the Delaware General Corporation Law for the corporation to indemnify the claimant for the
amount claimed. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel or its 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 has met the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant has not met the
applicable standard of conduct.
(f) Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall
not be exclusive of any other right which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his official capacity and as to action
in another capacity while holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its Directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the Delaware General
Corporation Law.
(g) Survival of Rights. The rights conferred on any person by this Bylaw shall
continue as to a person who has ceased to be a Director, officer, employee or other agent and shall
inure to the benefit of the heirs, executors and administrators of such a person.
(h) Insurance. To the fullest extent permitted by the Delaware General Corporation
Law, the corporation may purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Bylaw.
(i) Amendments. Any repeal or modification of this Bylaw shall only be prospective and
shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any
action or omission to act that is the cause of any proceeding against any agent of the corporation.
(j) Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify
each Director and Designated Officer to the full extent not prohibited by any applicable portion of
this Bylaw that shall not have been invalidated, or by any other applicable law.
(k) Certain Definitions. For the purposes of this Bylaw, the following definitions
shall apply:
(1) The term proceeding shall be broadly construed and shall include, without limitation,
the investigation, preparation, prosecution, defense, settlement,
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arbitration and appeal of, and the giving of testimony in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
(2) The term expenses shall be broadly construed and shall include, without limitation,
court costs, attorneys fees, witness fees, fines, amounts paid in settlement or judgment and any
other costs and expenses of any nature or kind incurred in connection with any proceeding.
(3) The term the corporation shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its Directors, officers, and employees or agents, so that any person who is or was a
Director, officer, employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a Director, officer, manager, employee or agent of
another corporation, limited liability company, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this Bylaw with respect to the
resulting or surviving corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
(4) References to a Director, officer, employee, or agent of the corporation shall
include, without limitation, situations where such person is serving as a Director, officer,
manager, employee, trustee or agent of (A) a subsidiary of the corporation of which the corporation
holds equity securities constituting a majority of the voting power with respect to such
subsidiary, or (B) at the request of the corporation, another corporation, limited liability
company, partnership, joint venture, trust or other enterprise.
(5) 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 serving at the request of the corporation shall include any service as a
Director, officer, employee or agent of the corporation which imposes duties on, or involves
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 the
corporation as referred to in this Bylaw.
ARTICLE XII
NOTICES
Section 44. Notices.
(a) Notice to Stockholders. Whenever, under any provisions of these Bylaws, notice is
required to be given to any stockholder, it shall be given in writing, timely and duly deposited in
the United States mail, postage prepaid, and addressed to his last known post office address as
shown by the stock record of the corporation or its transfer agent. (Del. Code Ann., tit. 8,
Section 222).
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(b) Notice to Directors. Any notice required to be given to any Director may be given
by the method stated in subsection (a), or by facsimile, telex, telegram, commercial courier
service, personal delivery, telephone, voice message system or electronic transmission, except that
such notice other than one which is delivered personally shall be sent to such address as such
Director shall have filed in writing with the Secretary, or, in the absence of such filing, to the
last known post office address of such Director.
(c) Address Unknown. If no address of a stockholder or Director be known, notice may
be sent to the office of the corporation required to be maintained pursuant to Section 2 hereof.
(d) Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with respect to the class of
stock affected, specifying the name and address or the names and addresses of the stockholder or
stockholders, or Director or Directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive evidence of the statements therein
contained. (Del. Code Ann., tit. 8, Section 222).
(e) Time Notices Deemed Given. All notices given by mail or commercial courier service
shall be deemed to have been given as at the time of dispatch, all notices by personal delivery or
telephone shall be deemed to have been given as of receipt by the designee or a person accepting
notice on behalf of such Director, and all notices given by facsimile, telex, telegram, voice
message system or electronic transmission shall be deemed to have been given as of the sending time
recorded at the time of transmission.
(f) Methods of Notice. It shall not be necessary that the same method of giving notice
be employed in respect of all Directors, but one permissible method may be employed in respect of
any one or more, and any other permissible method or methods may be employed in respect of any
other or others.
(g) Failure to Receive Notice. The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any privilege or benefit, or be required to
act, or within which any Director may exercise any power or right, or enjoy any privilege, pursuant
to any notice sent him in the manner above provided, shall not be affected or extended in any
manner by the failure of such stockholder or such Director to receive such notice.
(h) Notice to Person with Whom Communication Is Unlawful. Whenever notice is required
to be given, under any provision of law or of the Certificate of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or meeting which
shall be taken or held without notice to any such person with whom communication is unlawful shall
have the same force and effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate under any provision of
the Delaware General Corporation Law, the certificate shall
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state, if such is the fact and if notice is required, that notice was given to all persons
entitled to receive notice except such persons with whom communication is unlawful.
(i) Notice to Person with Undeliverable Address. Whenever notice is required to be
given, under any provision of law or the Certificate of Incorporation or Bylaws of the corporation,
to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of
meetings or of the taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if
sent by first class mail) of dividends or interest on securities during a twelve- month period,
have been mailed addressed to such person at his address as shown on the records of the corporation
and have been returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to such person shall
have the same force and effect as if such notice had been duly given. If any such person shall
deliver to the corporation a written notice setting forth his then current address, the requirement
that notice be given to such person shall be reinstated. In the event that the action taken by the
corporation is such as to require the filing of a certificate under any provision of the Delaware
General Corporation Law, the certificate need not state that notice was not given to persons to
whom notice was not required to be given pursuant to this paragraph. (Del. Code Ann., tit. 8,
Section 230).
ARTICLE XIII
AMENDMENTS
Section 45. Amendments. Except as otherwise set forth in paragraph (i) of Section 43
of these Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the Voting Stock. The Board of Directors shall also have the power, if
such power is conferred upon the Board of Directors by the Certificate of Incorporation, to adopt,
amend or repeal Bylaws. (Del. Code Ann., tit. 8, Sections 109(a), 122(6)).
ARTICLE XIV
LOANS TO OFFICERS
Section 46. Loans to Officers. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director of the corporation or its
subsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or
assistance may reasonably be expected to benefit the corporation, except as prohibited by law. The
loan, guarantee or other assistance may be with or without interest and may be unsecured, or
secured in such manner as the Board of Directors shall approve, including, without limitation, a
pledge of shares of stock of the corporation. Nothing in this Bylaw shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of the corporation at common law or under any
statute. (Del. Code Ann., tit. 8, Section 143).
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ARTICLE XV
MISCELLANEOUS
Section 47. Annual Report.
(a) Subject to the provisions of paragraph (b) of this Bylaw, the Board of Directors shall
cause an annual report to be sent to each stockholder of the corporation not later than one hundred
twenty (120) days after the close of the corporations fiscal year. Such report shall include a
balance sheet as of the end of such fiscal year and an income statement and statement of changes in
financial position for such fiscal year, accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized officer of the
corporation that such statements were prepared without audit from the books and records of the
corporation. When there are more than 100 stockholders of record of the corporations shares, as
determined by Section 605 of the California Corporations Code, additional information as required
by Section 1501(b) of the California Corporations Code shall also be contained in such report,
provided that if the corporation has a class of securities registered under Section 12 of the 1934
Act, that Act shall take precedence. Such report shall be sent to stockholders at least fifteen
(15) days prior to the next annual meeting of stockholders after the end of the fiscal year to
which it relates.
(b) If and so long as there are fewer than 100 holders of record of the corporations shares,
the requirement of sending of an annual report to the stockholders of the corporation is hereby
expressly waived.
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