AMENDED AND RESTATED
BYLAWS
OF
PROTEIN DESIGN LABS, INC.
ARTICLE I
OFFICES
Section 1. Principal Executive Office. The Board of Directors
shall fix the location of the principal executive office of the
Corporation at any place within or outside the State of Delaware.
The Board of Directors shall fix and designate a registered business
office and registered agent in the State of Delaware regardless of
whether the Corporation maintains a place of business there.
Section 2. Other Offices. The Board of Directors may at any time
establish branch or subordinate offices at any place or places where
the Corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be
held at any place within or outside the State of Delaware designated
by the Board of Directors. In the absence of any such designation,
stockholders' meetings shall be held at the principal executive
office of the Corporation.
Section 2. Annual Meetings. The annual meetings of stockholders
shall be held on such day and at such hour as may be fixed by the
Board of Directors within thirteen months subsequent to the later of
the date of incorporation of the Corporation or the last annual
meeting of stockholders. At such meeting, directors shall be elected
and any other proper business may be transacted.
Section 3. Special Meeting. A special meeting of the
stockholders for any purpose or purposes described in the notice of
the meeting may be called at any time by a majority of the number of
authorized directors of the Board of Directors or the holders of not
less than a majority of the number of shares entitled to vote at the
meeting. Notice of such special meeting shall be given in the same
manner as for the annual meeting of stockholders.
Section 4. Notice of Stockholders' Meetings. All notices of
meetings of stockholders shall be sent or otherwise given in
accordance with Section 5 of this Article II not fewer than ten (10)
nor more than sixty (60) days before the date of the meeting. The
notice shall specify the place, date and hour of the meeting and (i)
in the case of a special meeting, the nature of the business to be
transacted, or (ii) in the case of the annual meeting, those matters
which the Board of Directors, at the time of giving the notice,
intends to present for action by the stockholders. The notice of any
meeting at which directors are to be elected shall include the name
of any nominee or nominees whom, at the time of the notice,
management intends to present for election.
Section 5. Manner of Giving Notice; Affidavit of Notice. Written
notice of any meeting of stockholders shall be given. If mailed,
notice shall be deemed to have been given at the time when delivered
personally or deposited in the United States mail, postage prepaid.
An affidavit of the mailing or other means of giving any notice of
any stockholders' meeting shall be executed by the secretary,
assistant secretary, or any transfer agent of the Corporation giving
the notice, and shall be filed and maintained in the minute book of
the Corporation.
Section 6. Quorum. The presence in person or by proxy of the
holders of a majority of the shares entitled to vote at any meeting
of stockholders shall constitute a quorum for the transaction of
business. If a quorum shall fail to attend any meeting, the
chairperson of the meeting or the holders of a majority of the shares
of stock entitled to vote who are present, in person or by proxy, may
adjourn the meeting to another place, date, or time.
Section 7. Conduct of the Stockholders' Meeting. At every
meeting of the stockholders, the Chairperson of the Board of
Directors, or in his or her absence, the Chief Executive Officer of
the Corporation, or in his or her absence, the person designated by
the Chairperson of the Board of Directors, or in the absence of such
designation, a chairperson chosen by the majority of the voting
shares represented in person or by proxy, shall act as Chairperson of
the meeting. The Secretary of the Corporation or a person designated
by the Chairperson of the meeting shall act as Secretary of the
meeting. Unless otherwise approved by the Chairperson, attendance at
the Stockholders' Meeting is restricted to stockholders of record,
persons authorized in accordance with Section 14 of this Article II
to act by proxy, and officers of the Corporation.
Section 8. Conduct of Business. The Chairperson of the meeting
shall call the meeting to order, establish the agenda, and conduct
the business of the meeting in accordance therewith or, at the
Chairperson's discretion, it may be conducted otherwise in accordance
with the wishes of the stockholders in attendance. The date and time
of the opening and closing of the polls for each matter upon which
the stockholders will vote at the meeting shall be announced at the
meeting.
The Chairperson of the meeting shall also conduct the meeting in
an orderly manner, rule on the precedence of, and procedure on,
motions and other procedural matters, and exercise discretion with
respect to such procedural matters with fairness and good faith
toward all those entitled to take part. The Chairperson may impose
reasonable limits on the amount of time taken up at the meeting on
discussion in general or on remarks by any one stockholder. Should
any person in attendance become unruly or obstruct the meeting
proceedings, the Chairperson shall have the power to have such person
removed from participation. Notwithstanding anything in the bylaws
to the contrary, no business shall be conducted at a meeting except
in accordance with the procedures set forth in this Section 8 and
Section 9, below. The Chairperson of a meeting shall, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the
provisions of this Section 8 and Section 9, and if he or she should
so determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 9. Notice of Stockholder Business. At an annual or
special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To
be properly brought before a 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) properly brought before
the meeting by or at the direction of the Board of Directors, (c)
properly brought before an annual meeting by a stockholder, or (d)
properly brought before a special meeting by a stockholder, but if,
and only if, the notice of a special meeting provides for business to
be brought before the meeting by stockholders. For business to be
properly brought before a meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder proposal to be
presented at an annual meeting shall be received at the Corporation's
principal executive office not less than one hundred twenty (120)
calendar days in advance of the date that the Corporation's (or the
Corporation's predecessor's) proxy statement was released to
stockholders in connection with the previous year's annual meeting of
stockholders. However, if no annual meeting was held in the previous
year or the date of the annual meeting has been changed by more than
thirty (30) calendar days from the date contemplated at the time of
the previous year's proxy statement, or in the event of a special
meeting, notice by the stockholder to be timely must be received not
later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes
to bring before the annual or special meeting (a) a brief description
of the business desired to be brought before the annual or special
meeting and the reasons for conducting such business at the annual or
special meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c)
the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business.
Section 10. Adjourned Meetings and Notice Thereof. When a
stockholders' meeting is adjourned to another time or place, notice
of the adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment is
taken; except that if the adjournment is for more than thirty (30)
days or if the Board of Directors shall set a new record date, notice
of any adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting in accordance with Sections
4 and 5 of this Article II.
At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting.
Section 11. Voting. Except as otherwise required by the
Certificate of Incorporation or the General Corporation Law of
Delaware, each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote of
stockholders. All voting, including on the election of directors but
excepting where otherwise required by law, may be by a voice vote;
provided, however, that upon demand therefor by a stockholder
entitled to vote or his or her proxy, a stock vote shall be taken.
Every stock vote shall be taken by ballots, each of which shall state
the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for
the meeting. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairperson of the meeting.
The Corporation may, and to the extent required by law, shall, in
advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report thereof.
The Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders,
the person presiding at the meeting may, and to the extent required
by law, shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of
his or her ability. Each inspector shall:
(a) Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and
effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the
right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the results; and
(g) Do any other acts that may be proper to conduct the
elections or votes with fairness to all stockholders.
Any holder of shares entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal but if the
stockholder fails to specify the number of shares such stockholder is
voting affirmatively, it shall be conclusively presumed that the
stockholder's approving vote is with respect to all shares said
stockholder is entitled to vote.
All elections shall be determined by a plurality of the votes
cast, and except as otherwise required by law, all other matters
shall be determined by a majority of the votes cast affirmatively or
negatively.
Section 12. Waiver of Notice or Consent by Absent Stockholders.
The transactions of any meeting of stockholders, either annual or
special, however called and noticed, and wherever held, shall be as
valid as though had at a meeting duly held after regular call and
notice, if a quorum is present either in person or by proxy, and if,
either before or after the meeting, each person entitled to vote, not
present in person or by proxy, signs a written waiver of notice, or a
consent to the holding of such meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any annual or special
meeting of stockholders. All such waivers, consents, or approvals
shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when a person objects, at the
beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened; and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters not included in the notice of the meeting if
that objection is expressly made at the meeting.
Section 13. Stockholder Action by Written Consent. Any action
which may be taken at any annual or special meeting of stockholders
may be taken without a meeting and without prior notice, if a consent
in writing, setting forth the actions so taken, is signed by the
holders of outstanding shares having not less than the minimum number
of votes which would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were present
and voted. All such consents shall be filed with the Secretary of
the Corporation and shall be maintained in the corporate records.
Prompt notice of the taking of a corporate action without a meeting
by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 14. Proxies. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted
by law filed in accordance with the procedure established for the
meeting. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this
paragraph may be substituted or used in lieu of the original writing
or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy,
facsimile transmission or other reproduction shall be a complete
reproduction of the entire original writing or transmission. A
validly executed proxy which does not state that it is irrevocable
and is not coupled with an interest shall continue in full force and
effect unless (i) revoked by the person executing it, before the vote
pursuant to that proxy, by a writing delivered to the Corporation
stating that the proxy is revoked, or by a subsequent proxy executed
by, or attendance at the meeting and voting in person by, the person
executing the proxy; or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the Corporation
before the vote pursuant to that proxy is counted; provided, however,
that no proxy shall be valid after the expiration of three years from
the date of the proxy, unless otherwise provided in the proxy.
Section 15. Stock List. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical
order for each class of stock and showing the address of each such
stockholder and the number of shares registered in his or her name,
shall be open to the examination of any such stockholder, for any
purpose germane to the meeting, during ordinary business hours for a
period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting
during the whole time thereof and shall be open to the examination of
any such stockholder who is present. This list shall presumptively
determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. Subject to the limitations stated in the
Certificate of Incorporation, these bylaws, and the General
Corporation Law of Delaware as to actions which shall be approved by
the stockholders or by the affirmative vote of a majority of the
outstanding shares entitled to vote, all corporate powers shall be
exercised by, or under the direction of, and the business and affairs
of the Corporation shall be managed by, the Board of Directors.
Section 2. Number and Term of Office. The number of directors
shall be fixed from time to time exclusively by 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 for adoption). The directors
shall be divided into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to
expire at the 1993 annual meeting of stockholders, the term of office
of the second class to expire at the 1994 annual meeting of
stockholders and the term of office of the third class to expire at
the 1995 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. All directors
shall hold office until the expiration of the term for which elected,
and until their respective successors are elected, except in the case
of the death, resignation or removal of any director.
Section 3. Vacancies and Newly Created Directorships. Subject to
the rights of the holders of any series of Preferred Stock then
outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, removal
from office, disqualification or other cause may be filled only by a
majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires. No decrease in
the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 4. Resignations. Any director may resign effective on
giving written notice to the Chairperson of the Board, the Chief
Executive Officer, the Secretary, or the Board of Directors, unless
the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future
time, the Board of Directors may elect a successor to take office
when the resignation becomes effective.
Section 5. Place of Meetings and Meetings by Telephone. Meetings
of the Board of Directors shall be held at any place within or
without the State of Delaware which may be designated in the notice
of the meeting, or, if not stated in the notice or there is no
notice, designated by resolution of the Board. In the absence of
such designation, meetings of the Board of Directors shall be held at
the principal executive office of the Corporation. Members of the
Board may participate in a regular or special meeting through use of
conference telephone or similar communications equipment, so long as
all members participating in such meeting can hear one another.
Participation in a meeting pursuant to this Section 5 of this Article
III constitutes presence in person at such meeting.
Section 6. Annual Meeting. Immediately following each annual
meeting of stockholders, the Board of Directors shall hold a regular
meeting for the purpose of organization, the election of officers and
the transaction of other business. No notice of such meeting need be
given.
Section 7. Other Regular Meetings. The Board of Directors may
provide by resolution the time and place for the holding of regular
meetings of the Board; provided, however, that if the date so
designated falls upon a legal holiday, then the meeting shall be held
at the same time and place on the next succeeding day which is not a
legal holiday. No notice of such regular meetings of the Board need
be given.
Section 8. Special Meetings. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by
the Chairperson of the Board or the Chief Executive Officer or the
President or any Vice President or the Secretary or any two
directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail or telegram, charges prepaid, addressed to each
director at that director's address as it is shown on the records of
the Corporation. In case the notice is mailed, it shall be deposited
in the United States mail at least four (4) days before the time of
the holding of the meeting. In case the notice is delivered
personally, or by telephone or telegram, it shall be delivered
personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting.
Any oral notice given personally or by telephone may be communicated
either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at
the principal executive office of the Corporation.
Section 9. Quorum. A majority of the total number of authorized
directors shall constitute a quorum for all purposes at any meeting
of the Board of Directors. If a quorum shall fail to attend any
meeting, a majority of those present may adjourn the meeting to
another place, date, or time, without further notice or waiver
thereof.
Section 10. Waiver of Notice. Notice of a meeting shall be
deemed given to any director who attends the meeting without
protesting before or at its commencement, the lack of notice to such
director.
The transactions of any meeting of the Board of Directors, however
called and noticed or wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes thereof. The
waiver of notice or consent need not specify the purpose of the
meeting. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the
meeting.
Section 11. Adjournment. Any meeting of the Board of Directors,
whether or not a quorum is present, may be adjourned to another time
and place by the vote of a majority of the votes of the directors
present. If a meeting is adjourned for more than twenty-four (24)
hours, notice of the time and place of the reconvened adjourned
meeting shall be given to directors absent at the time of adjournment
before the time of the reconvened adjourned meeting.
Section 12. Conduct of Business and Action Without Meeting. At
any meeting of the Board of Directors, business shall be transacted
in such order and manner as the Board may from time to time
determine, and all matters shall be determined by the vote of a
majority of the directors then present, except as otherwise provided
herein or required by law. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a
meeting, if all members of the Board shall individually or
collectively consent in writing to such action. Such written consent
or consents shall be filed with the minutes of the proceedings of the
Board of Directors. Such action by written consent shall have the
same force and effect as a unanimous vote of such directors.
Section 13. Fees and Compensation of Directors. Directors shall
not receive any stated salary for their services as directors, but,
by resolution of the Board, a fixed fee, with or without expenses of
attendance, may be allowed for attendance at each meeting. Nothing
herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity as an officer, agent,
employee, member of a committee of the Board of Directors or
otherwise, and receiving compensation therefor.
Section 14. Nomination of Director Candidates. Subject to the
rights of holders of any Preferred Stock then outstanding,
nominations for the election of directors may be made by the Board of
Directors or a proxy committee appointed by the Board of Directors or
by any stockholder entitled to vote in the election of directors
generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election
as directors at a meeting only if timely notice of such stockholder's
intent to make such nomination or nominations has been given in
writing to the Secretary of the Corporation. To be timely, a
stockholder nomination for a director to be elected at an annual
meeting shall be received at the Corporation's principal executive
offices not less than one hundred twenty (120) calendar days in
advance of the date that the Corporation's (or Corporation's
predecessor's) proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders.
However, if no annual meeting was held in the previous year or the
date of the annual meeting has been changed by more than thirty (30)
calendar days from the date contemplated at the time of the previous
year's proxy statement, or in the event of a nomination for director
to be elected at a special meeting, notice by the stockholders to be
timely must be received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date
of the special meeting was mailed or such public disclosure was made.
Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is
a holder of record of stock of the Corporation entitled to vote for
the election of directors on the date of such notice and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each
nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of
the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the
Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 14 and shall thereafter become unable or
unwilling to stand for election to the Board of Directors, the Board
of Directors or the stockholder who proposed such nominee, as the
case may be, may designate a substitute nominee upon delivery, not
fewer than thirty (30) days prior to the date of the meeting for the
election of such nominee, of a written notice to the Secretary
setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to
this Section 14 had such substitute nominee been initially proposed
as a nominee. Such notice shall include a signed consent to serve as
a director of the Corporation, if elected, of each such substitute
nominee.
If the chairperson of the meeting for the election of directors
determines that a nomination of any candidate for election as a
director at such meeting was not made in accordance with the
applicable provisions of this Section 14, such nomination shall be
void.
ARTICLE IV
COMMITTEES
Section 1. Committees. The Board of Directors may, by resolution
adopted by a majority of the authorized number of directors,
designate such committees, each consisting of one or more directors,
as it may from time to time deem advisable to perform such general or
special duties as may from time to time be delegated to any such
committee by the Board of Directors, subject to the limitations
contained in the General Corporations Law of Delaware, or imposed by
the Certificate of Incorporation or by these bylaws. Any committee
so designated may exercise the power and authority of the Board of
Directors to declare a dividend, to authorize the issuance of stock
or to adopt a certificate of ownership and merger pursuant to Section
253 of the General Corporation Law of Delaware if the resolution
which designates the committees or a supplemental resolution of the
Board of Directors so provides. The Board may designate one or more
directors as alternate members of any committee, who may replace any
absent member at any meeting of the committee.
Section 2. Minutes. Each committee shall keep regular minutes of
its proceedings, which shall be filed with the Secretary.
Section 3. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall
act in accordance therewith, except as otherwise provided herein or
required by law. Adequate provision shall be made for notice to
members of all meetings; one-third (1/3) of the authorized members
shall constitute a quorum unless the committee shall consist of one
or two members, in which event one member shall constitute a quorum;
and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such
committee.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chief Executive Officer, one or more Presidents, one or more Vice
Presidents, a Secretary, and a Chief Financial Officer of the
Corporation. The Corporation may also have, at the discretion of the
Board of Directors, a Chairperson of the Board, a Treasurer, one or
more Assistant Secretaries, a General Counsel and such other officers
as may be appointed in accordance with the provisions of Section 3 of
this Article V. The Chairperson of the Board, if there shall be such
an officer, shall be a member of the Board of Directors. One person
may hold two or more offices.
Section 2. Election. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions
of Sections 3 and 5 of this Article V, shall be chosen annually by
the Board of Directors and each shall hold office until such officer
shall resign or shall be removed or otherwise disqualified to serve,
or such officer's successor shall be elected and qualified.
Section 3. Subordinate Officers, etc. The Board of Directors may
appoint, or may empower the Chief Executive Officer to appoint, such
other officers as the business of the Corporation may require, each
of whom shall hold office for such period, have such authority and
perform such duties as are provided in these bylaws or as the Board
of Directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Any officer may
be removed, either with or without cause, by a majority of the
directors at the time in office, at any regular or special meeting of
the Board, or by an officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Vacancies in Office. A vacancy in any office because
of death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these bylaws for regular
appointments to such office.
Section 6. Chairperson of the Board. The Chairperson of the
Board, if there shall be such an officer, shall, if present, preside
at all meetings of the Board of Directors, and exercise and perform
such other powers and duties as may be from time to time assigned to
him or her by the Board of Directors or prescribed by these bylaws.
He or she shall preside at all meetings of the stockholders.
Section 7. Chief Executive Officer. Subject to the powers, if
any, as may be given by the Board of Directors to the Chairperson of
the Board, if there be such an officer, the Chief Executive Officer
shall be the general manager and chief executive officer of the
Corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction, and control of the
business and affairs of the Corporation. In the absence of a
Chairperson of the Board, he or she shall preside at all meetings of
the stockholders. He or she shall have the general powers and duties
of management usually vested in the office of Chief Executive Officer
of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or by these bylaws.
Section 8. Presidents. Each President shall, subject to the
control of the Chief Executive Officer and the Board of Directors,
have the responsibility for the supervision, direction, and control
of such portions of the business and such officers of the Corporation
as report to him or her and shall exercise such powers and perform
such duties as may from time to time be assigned to him or her by the
Board of Directors, the Chairperson of the Board or the Chief
Executive Officer, or as may be prescribed by these bylaws.
Section 9. Vice Presidents. . Each Vice President shall ,
subject to the control of the Chief Executive Officer and the Board
of Directors and any officer to whom he or she reports, have the
responsibility for the supervision, direction, and control of such
portions of the business and such officers of the Corporation as
report to him or her and shall exercise such powers and perform such
duties as may from time to time be assigned to him or her by the
Board of Directors, the Chairperson of the Board or the Chief
Executive Officer or any officer to whom he or she reports, or as may
be prescribed by these bylaws. "Vice President(s)" as used in these
bylaws shall include Senior Vice President(s).
Section 10. Secretary. The Secretary shall keep, or cause to be
kept, a book of minutes in written form of the proceedings of the
Board of Directors, committees of the Board, and stockholders. Such
minutes shall include all waivers of notice, consents to the holding
of meetings, or approvals of the minutes of meetings executed
pursuant to these bylaws or the General Corporation Law of Delaware.
The Secretary shall keep, or cause to be kept at the principal
executive office or at the office of the Corporation's transfer agent
or registrar, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares held
by each.
The Secretary shall give or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors required
by these bylaws or by law to be given, and shall keep the seal of the
Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of
Directors or these bylaws.
Section 11. Chief Financial Officer. The Chief Financial Officer
shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of account in written form or any other
form capable of being converted into written form.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He or
she shall disburse all funds of the Corporation as may be ordered by
the Board of Directors, shall render to the Chief Executive Officer
and directors, whenever they request it, an account of all of his or
her transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and
duties as may be prescribed by the Board of Directors or by these
bylaws.
Section 12. Treasurer. The Treasurer shall have the powers and
duties prescribed by these bylaws, the Chief Executive Officer, the
Chief Financial Officer or by the Board of Directors. In the absence
or disability of the Chief Financial Officer, she or he shall have
all of her or his powers and duties.
Section 13. Assistant Treasurers. The Assistant Treasurers
shall have the powers and duties prescribed by these bylaws or
assigned by the Chief Financial Officer, if there be such
an officer, or the Treasurer. In the absence or disability of the
Treasurer, they shall have all of his or her powers and duties.
Section 14. Assistant Secretaries. The Assistant Secretaries
shall have the powers and duties prescribed by these bylaws or
assigned by these bylaws or assigned by the Secretary. In the
absence or disability of the Secretary, they shall have all of the
powers and duties of such officer.
Section 15. General Counsel. Subject to the control and
supervision by the Chief Executive Officer or such officer as the
Chief Executive Officer may designate, and by the Board of Directors,
the General Counsel shall be the chief legal officer of the Company,
and she or he shall have such other powers and duties as may be
prescribed by these bylaws or by the Board of Directors, the Chief
Executive Officeror such officer as the Chief Executive Officer may
designate, and the usual powers and duties pertaining to her or his
office.
Section 16. Compensation. The compensation of the officers shall
be fixed from time to time by the Board of Directors or by a
committee of the Board of Directors authorized to do so, and no
officer shall be prevented from receiving such compensation by reason
of the fact that he or she is also a director of the Corporation.
ARTICLE VI
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal
representative, is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as
a director, officer or employee of another Corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of
such Proceeding is alleged action in an official capacity as a
director, officer or employee or in any other capacity while serving
as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
General Corporation Law of Delaware, 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 said Law permitted the
Corporation to provide prior to such amendment) against all expenses,
liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement and amounts expended in seeking indemnification granted to
such person under applicable law, this bylaw or any agreement with
the Corporation) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer or employee and shall
inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in
Section 2 of this Article VI, the Corporation shall indemnify any
such person seeking indemnity in connection with an action, suit or
Proceeding (or part thereof) initiated by such person only if (a)
such indemnification is expressly required to be made by law, (b) the
action, suit or Proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation, (c) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to the
powers vested in the Corporation under the General Corporation Law of
Delaware, or (d) the action, suit or Proceeding (or part thereof) is
brought to establish or enforce a right to indemnification under an
indemnity agreement or any other statute or law or otherwise as
required under Section 145 of the General Corporation Law of
Delaware. Such right shall be a contract right and shall include the
right to be paid by the Corporation expenses incurred in defending
any such Proceeding in advance of its final disposition; provided,
however, that, if required by the General Corporation Law of
Delaware, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of
such Proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined ultimately
that such director or officer is not entitled to be indemnified under
this Section or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under
Section 1 of this Article VI is not paid in full by the Corporation
within ninety (90) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim
and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending
any Proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of Delaware for the
Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors,
independent legal counsel, or it stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the General Corporation Law of Delaware, nor an actual
determination by the Corporation (including 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.
Section 3. Non-Exclusivity of Rights. The rights conferred on
any person by Sections 1 and 2 of this Article VI 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 or these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Indemnification Contracts. The Board of Directors is
authorized to enter into a contract with any director, officer,
employee or agent of the Corporation, or any person 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 employee benefit plans, providing for
indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VI.
Section 5. Insurance. The Corporation may maintain insurance to
the extent reasonably available, at its expense, to protect itself
and any such director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation
Law of Delaware.
Section 6. Effect of Amendment. Any amendment, repeal or
modification of any provision of this Article VI by the stockholders
or the directors of the Corporation shall not adversely affect any
right or protection of a director or officer of the Corporation
existing at the time of such amendment, repeal or modification.
Section 7. Savings Clause. In the event that a court of
competent jurisdiction should, by a decision which the Corporation
chooses not to appeal or which is beyond all right of review, declare
any portion or all of this Article VI invalid or unenforceable by
reason of the operation of California Corporations Code Section 2115,
or for any other reason, then the provisions of this Article VI and
the corresponding provisions of any indemnification contracts entered
into pursuant hereto shall be automatically amended and modified to
eliminate any provision thereof which is found to be invalid or
unenforceable and shall be deemed and construed to grant
indemnification to the fullest extent permitted by applicable law,
including the Corporations Code of the State of California if held to
be controlling.
ARTICLE VII
NOTICES
Section 1. Notices. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any
stockholder, director, officer, employee or agent shall be in writing
and may in every instance be effectively given by hand delivery to
the recipient thereof, by depositing such notice in the mails,
postage paid, or by sending such notice by prepaid telegram,
mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the
books of the Corporation. The time when such notice shall be deemed
to be given shall be the time such notice is received by such
stockholder, director, officer, employee or agent, or by any person
accepting such notice on behalf of such person, if hand delivered, or
the time such notice is dispatched, if delivered through the mails or
by telegram or mailgram.
Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or
after the time of the event for which notice is to be given, shall be
deemed equivalent to the notice required to be given to such
stockholder, director, officer, employee or agent. Neither the
business nor the purpose of any meeting need be specified in such a
waiver.
ARTICLE VIII
STOCK
Section 1. Certificates of Stock. Each stockholder shall be
entitled to a certificate signed by, or in the name of the
Corporation by, the Chairperson of the Board, President or a Vice
President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him or her. Any of or all the signatures on the certificate
may be facsimile.
Section 2. Transfers of Stock. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of
the Corporation or by transfer agents designated to transfer shares
of the stock of the Corporation. Except where a certificate is
issued in accordance with Section 4 of this Article VIII of these
bylaws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is
issued therefor.
Section 3. Record Date. The Board of Directors may fix a record
date, which shall not be more than sixty (60) nor fewer than ten (10)
days before the date of any meeting of stockholders, nor more than
sixty (60) days prior to the time for the other action hereinafter
described, as of which there shall be determined the stockholders who
are entitled: to notice of or to vote at any meeting of stockholders
or any adjournment thereof; to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any
rights with respect to any change, conversion or exchange of stock or
with respect to any other lawful action.
Section 4. Lost, Stolen or Destroyed Certificates. In the event
of the loss, theft or destruction of any certificate of stock,
another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss,
theft or destruction and concerning the giving of a satisfactory bond
or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE IX
GENERAL CORPORATE MATTERS
Section 1. Checks, Drafts, Evidences of Indebtedness. All
checks, drafts, or other orders for payment of money, notes, or other
evidences of indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or persons
and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors.
Section 2. Corporate Contracts and Instruments; How Executed.
The Board of Directors, except as otherwise provided in these bylaws,
may authorize any officer or officers, agent or agents, to enter into
any contract or execute any instrument in the name of and on behalf
of the Corporation, and this authority may be general or confined to
specific instances; and, unless so 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.
Section 3. Representation of Shares of Other Corporations. The
Chairperson of the Board, the Chief Executive Officer, any President,
or any Vice President, or any other person authorized by resolution
of the Board of Directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the Corporation, in
person or by proxy, at any meeting of stockholders of or with respect
to any action of stockholders of any other corporation, any and all
shares of any other corporation or corporations, foreign or domestic,
standing in the name of the Corporation. The authority granted to
these officers to vote or represent on behalf of the Corporation any
and all shares held by the Corporation in any other corporation or
corporations may be exercised by any of these officers in person or
by any person authorized to do so by a proxy duly executed by these
officers.
Section 4. Construction and Definitions. Unless the context
requires otherwise, the general provisions, rules of construction,
and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the
generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
Section 5. Maintenance and Inspection of Books and Records. The
Corporation shall keep at its principal executive office, or at the
office of its transfer agent or registrar, if either be appointed and
as determined by resolution of the Board of Directors, a record of
its stockholders, giving the names and addresses of all stockholders
and the number and class of shares held by each stockholder. The
Corporation shall also keep at its principal executive office the
original or a copy of the bylaws as amended to date and its other
books and records.
Any stockholder of the Corporation of record, in person or by
attorney or other agent shall, upon written demand under oath stating
the purpose thereof, have the right during the usual hours for
business to inspect for any proper purpose the Corporation's stock
ledger, a list of its stockholders, and its other books and records
and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other
writing which authorizes the attorney or other agent to so act on
behalf of the stockholder.
Section 6. Inspection by Directors. Any director shall have the
right to examine the Corporation's stock ledger, a list of its
stockholders and its other books and records for a purpose reasonably
related to his or her position as a director.
ARTICLE X
AMENDMENTS
Section 1. Amendments. The Board of Directors is expressly
empowered to adopt, amend or repeal bylaws of the Corporation. Any
adoption, amendment or repeal of bylaws of the Corporation by the
Board of Directors shall require the approval of a majority of the
total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is presented
to the Board). The stockholders shall also have power to adopt,
amend or repeal the bylaws of the Corporation.
AMENDMENTS TO BYLAWS
July 24, 1986
Original bylaws were adopted by the Action of Sole Incorporator.
April 19, 1989
Board adopted amendments to Article II, Section 3, and Article VI,
Sections 1 and 2, to reflect comments received from the California
Department of Corporations in connection with qualification of the
1986 Stock Purchase Plan (see UWC dated 04-19-89).
October 27, 1989
Board adopted amendment to Article VI to add Section 7, entitled
"Savings Clause" (see 10-27-89 Minutes).
August 24, 1992
Board adopted amendments to Sections 2 and 3 of Article III to
provide for the establishment of a classified board of directors (see
UWC dated 08-24-92).
October 20, 1992
Amendments to Article III were adopted by the stockholders at the
1992 Annual Meeting (see 10-20-92 Minutes of Annual Meeting).
February 16, 1995
Board adopted amendments to Article V, including the addition of a
new Section 7 (Chief Executive Officer, 12 (Treasurer), 13 (Assistant
Treasurers), 14 (Assistant Secretaries), 15 (General Counsel), 16
(Controller) and the revision of Section 8 (President) as well as
certain other conforming changes throughout the text (see Minutes of
Meeting of 02-16-95).
February 11, 1999
Board adopted amendments removing Section 16 (Controller) of Article
V, and certain related conforming changes throughout the text (see
Minutes of Meeting February 11, 1999).
April 26, 2000
Board adopted amendments providing for one or more Presidents by
amending Article V, Section 8, and made certain related and
conforming changes throughout the text (see Unanimous Written Consent
dated April 26, 2000).
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