EXHIBIT 3.1
WESTERN DIGITAL CORPORATION
(A DELAWARE CORPORATION)
AMENDED AND RESTATED BY-LAWS
ARTICLE I
OFFICES
1.01 REGISTERED OFFICE. The registered office of Western Digital
Corporation (hereinafter this "Corporation") in the State of Delaware shall be
at 9 East Loockerman Street, Dover, and the name the registered agent in charge
thereof shall be National Registered Agents, Inc.
1.02 PRINCIPAL OFFICE. The principal office for the transaction of the
business of this Corporation shall be 20511 Lake Forest Drive, in the City of
Lake Forest, County of Orange, State of California. The Board of Directors
(hereinafter the Board) is hereby granted full power and authority to change
said principal office from one location to another.
1.03 OTHER OFFICES. This Corporation may also have such other offices at
such other places, either within or without the State of Delaware, as the Board
may from time to time determine or as the business of this Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of this
Corporation for the purpose of electing directors and for the transaction of
such proper business as may come before such meetings may be held at such time,
date and place as the Board shall determine by resolution.
2.02 SPECIAL MEETINGS. Special meetings of the stockholders may be
called at any time by the Board, the Chairman of the Board, or the President.
2.03 PLACE OF MEETINGS. All meetings of the stockholders shall be held
at such places, within or without the State of Delaware, as may from time to
time be designated by the person or persons calling the respective meeting and
specified in the respective notices or waivers of notice thereof.
2.04 NOTICE OF MEETINGS. Except as otherwise required by law, notice of
each meeting of the stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder of record entitled to vote at such meeting by delivering a printed
notice thereof to the stockholder personally, by depositing such notice in the
United States mail, in a postage-prepaid envelope, directed to the stockholder
at the post office address furnished by the stockholder to the Secretary of this
Corporation for such purpose or, if the stockholder shall not have furnished to
the Secretary the stockholder's address for such purpose, then at the
stockholder's post office address last known to the Secretary, or by
transmitting a notice thereof to the stockholder by any other means, including
electronic, directed to the stockholder at the location furnished by such
stockholder to the Secretary of this Corporation for such purpose. Except as
otherwise expressly required by law, no publication of any notice of a meeting
of the stockholders shall be required. Every notice of a meeting of the
stockholders shall state the place, date and hour of the meeting, and in the
case of a special meeting, shall also state the purpose or purposes for which
the meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder to whom notice may be omitted pursuant
to applicable Delaware law or who shall have waived such notice and such notice
shall be deemed waived by any stockholder who shall attend such meeting in
person or by proxy except a stockholder who shall attend such meeting for the
express purpose of objecting at the beginning of the meeting to the transaction
of business because the meeting is not lawfully called or convened. Except as
otherwise expressly required by law, notice of any adjourned meeting of the
stockholder need not be given if the time and place thereof are announced at the
meeting at which the adjournment is taken.
2.05 QUORUM. Except as otherwise required by law, the holders of record
of a majority in voting interest of the shares of stock of this Corporation
entitled to be voted at any meeting of stockholders of this Corporation, present
in person or by proxy, shall constitute a quorum at any meeting or any
adjournment thereof. A majority in voting interest of the stockholders present
in person or by proxy and entitled to vote at a meeting or, in the absence
therefrom of all stockholders, any officer entitled to preside at, or to act as
secretary of, such meeting may adjourn such meeting from time to time. At any
such adjourned meeting at which a quorum is present any business may be
transacted which might have been transacted at the meeting as originally called.
2.06 VOTING.
(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy each share or fractional share of the
stock of this Corporation having voting rights on the matter in question and
which shall have been held by and registered in the name of the stockholder on
the books of this Corporation:
(i) on the date fixed pursuant to Section 2.09 of these Amended
and Restated By-Laws as the record for the determination of stockholder entitled
to notice of and to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (A) at
the close of business on the day next preceding the day on which notice of the
meeting shall be given or (B) if notice of the meeting shall be waived, at the
close of business on the day next preceding the day on which the meeting shall
be held.
(b) Shares of its own stock belonging to this Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by this
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of this Corporation in a fiduciary capacity
shall be entitled to vote such stock. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of this
Corporation the pledgor shall have expressly empowered the pledge to vote
thereon. Stock having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants in
common, tenants by entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by the stockholder's proxy, provided, however, that no
proxy shall be voted or acted upon after eleven months from its date unless said
proxy shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless the stockholder shall in writing so notify the
secretary of the meeting prior to the voting of the proxy. At any meeting of the
stockholders all matters, except as otherwise provided in the Certificate of
Incorporation, in these Amended and Restated By-Laws or by law, shall be decided
by the vote of a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat and thereon, a quorum being
present. The vote at any meeting of the stockholders on any question need not be
by ballot, unless so directed by the chairman of the meeting. On a vote by
ballot each ballot shall be signed by the stockholder voting, or by his or her
proxy, if there be such proxy, and it shall state the number of shares voted.
2.07 LIST OF STOCKHOLDERS. The Secretary of this Corporation shall
prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. 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 10 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
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2.08 JUDGES. If at any meeting of the stockholder a vote by written
ballot shall be taken on any questions, the chairman of such meeting may appoint
a judge or judges to act with respect to such vote. Each judge so appointed
shall first subscribe an oath faithfully to execute the duties of a judge at
such meeting with strict impartiality and according to the best of his ability.
Such judges shall decide upon the qualification of the voters and shall report
the number of shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted respectively for and
against the question. Reports of judges shall be in writing and subscribed and
delivered by them to the Secretary of this Corporation. The judges need not be
stockholders of this Corporation, and any officer of this Corporation may be a
judge on any question other than a vote for or against a proposal in which he
shall have a material interest.
2.09 FIXING DATE FOR DETERMINATION OF STOCKHOLDER OF RECORD. In order
that this Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any other change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any other action. If in any case involving the determination of
stockholders for any purpose other than notice of or voting at a meeting of
stockholders the Board shall not fix such a record date, the record date for
determining stockholders for such purpose shall be the close of business on the
day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of such meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
2.10 STOCKHOLDER PROPOSALS AND NOMINATIONS.
(a) At any meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
brought before the meeting (1) by or at the direction of a majority of the
directors or (2) by any stockholder of this Corporation who complies with the
notice procedures set forth in this Section 2.10(a). For a proposal to be
properly brought before a meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of this Corporation. To
be timely, a stockholder's notice must be delivered to, or mailed and received
at, the principal executive offices of this Corporation not less than 60 days
nor more than 120 days prior to the scheduled meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled meeting is given or made, notice by the
stockholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled meeting was mailed or the day on which
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 meeting
(i) a brief description of the proposal desired to be brought before the meeting
and the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on this Corporation's books, of the stockholder
proposing such business and any other stockholders known by such stockholder to
be supporting such proposal, (iii) the class and number of shares of this
Corporation's stock which are beneficially owned by the stockholder on the date
of such stockholder notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder
notice, and (iv) any financial interest of the stockholder in such proposal. In
addition, the stockholder making such proposal shall promptly provide any other
information reasonably requested by this Corporation. The presiding officer of
the meeting shall determine at the meeting whether the stockholder proposal was
made in accordance with the terms of this Section 2.10(a). If the presiding
officer determines that a stockholder proposal was not made in accordance with
the terms of this Section 2.10(a), he or she shall so declare at the meeting and
any such proposal shall not be acted upon at the meeting. This provision shall
not prevent the consideration and approval or disapproval at the meeting of
reports of officers, directors and committees or the Board, but, in connection
with such reports, no new business shall be acted upon at such meeting that is
brought by a stockholder unless stated, filed and received as herein provided.
(b) Subject to the rights, if any, of the holders of shares of preferred
stock of this Corporation then outstanding, only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of this Corporation
may be made at a meeting of stockholders (1) by or at the direction of the
Board, (2) by any nominating committee or person appointed by the Board or (3)
by any stockholder of this Corporation entitled to vote for the election of
directors at the meeting who
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complies with the notice procedures set forth in this Section 2.10(b). Such
nominations, other than those made by or at the direction of the Board, shall be
made pursuant to timely notice in writing to the Secretary of this Corporation.
To be timely, a stockholder's notice must be delivered to, or mailed and
received at, the principal executive offices of this Corporation not less than
60 days nor more than 120 days prior to the scheduled meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled meeting is given or made, notice by the
stockholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled meeting was mailed or the day on which
such public disclosure was made. A stockholder's notice to the Secretary shall
set forth (i) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class and number of shares of capital stock of this
Corporation which are beneficially owned by the person, (D) the consent of the
person to serve as a director of the Corporation if so elected, and (E) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to applicable rules
and regulations of the Securities and Exchange Commission promulgated under the
Securities Exchange Act of 1934, as amended; and (ii) as to the stockholder
giving the notice (A) the name and address, as they appear on this Corporation's
books, of the stockholder, (B) the class and number of shares of this
Corporation's stock which are beneficially owned by the stockholder on the date
of such stockholder notice and (C) a description of all arrangements or
understandings between the stockholder and each nominee and any other person(s)
(naming such person(s)) pursuant to which the nomination is to be made by the
stockholder. This Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by this Corporation to determine
the eligibility of such proposed nominee to serve as director of this
Corporation. In addition, the stockholder making such nomination shall promptly
provide any other information reasonably requested by this Corporation. The
presiding officer of the meeting shall determine and declare at the meeting
whether the nomination was made in accordance with the terms of this Section
2.10(b). If the presiding officer determines that a nomination was not made in
accordance with the terms of this Section 2.10(b), he or she shall so declare at
the meeting and any such defective nomination shall be disregarded.
ARTICLE III
BOARD OF DIRECTORS
3.01 GENERAL POWERS. Subject to the requirements of the General
Corporation Law of the State of Delaware, the property, business and affairs of
this Corporation shall be managed by the Board.
3.02 NUMBER AND TERM OF OFFICE. The number of directors shall be not
less than five nor more than twelve until this Section 3.02 is amended by a
resolution duly adopted by the Board or by the stockholders, in either case, in
accordance with the provisions of the Certificate of Incorporation of this
Corporation. The specific number of directors at any time shall be that number
between five and twelve as may be determined from time to time by the Board by
resolution. Directors need not be stockholders. Each of the directors of this
Corporation shall hold office until his successor shall have been duly elected
and shall qualify or until he shall resign or shall have been removed in the
manner provided in these Amended and Restated By-Laws.
3.03 ELECTION OF DIRECTORS. The directors shall be elected annually by
the stockholders of this Corporation and the persons receiving the greatest
number of votes, up to the number of directors to be elected, shall be the
directors.
3.04 RESIGNATIONS. Any director of this Corporation may resign at any
time by giving written notice to the Board or to the Secretary of this
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately upon
its receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.05 VACANCIES. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filed by vote of the majority of the remaining directors, although less
than a quorum. Each director so chosen to fill a vacancy shall hold office until
his successor shall have been elected and shall qualify or until he shall resign
or shall have been removed in the manner provided in these Amended and Restated
By-Laws.
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3.06 PLACE OF MEETING, ETC. The Board may hold any of its meetings at
such place or places within or without the State of Delaware as the Board may
from time to time by resolution designate or as shall be designated by the
person or persons calling the meeting or in the notice or a waiver of notice of
any such meeting. Directors may participate in any regular or special meeting of
the Board by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board can hear
each other, and such participation shall constitute presence in person at such
meeting.
3.07 FIRST MEETING. The Board shall meet as soon as practicable after
each annual election of directors and notice of such first meeting shall not be
required.
3.08 REGULAR MEETINGS. Regular meetings of the Board shall be held at
such times as the Board shall from time to time by resolutions determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day not a legal holiday. Except as provided by
law, notice of regular meetings need not be given.
3.09 SPECIAL MEETINGS. Special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
any Vice President, the Secretary or any two directors. Special meetings of the
Board shall not be held upon not less than four days' written notice or not less
than 48 hours' given personally or by telephone, facsimile or other similar
means of communication. Any such notice shall be addressed or delivered to each
director at such director's address as it is shown upon the records of this
Corporation or as may have been given to this Corporation by the director for
such purpose or if no such address has been provided or is in the records of
this Corporation, then to the place in which the meetings of the directors are
regularly held. Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or it is actually communicated to the recipient or to a person at
the office of the recipient who the person giving the notice has reason to
believe will promptly communicate it to the recipient. Any other notice shall be
deemed to have been given at the time it is communicated, in person or by
telephone or similar means, to the recipient or to a person at the office of the
recipient who the person giving the notice has reason to believe will promptly
communicate it to the recipient.
3.10 QUORUM AND MANNER OF ACTING. Except as otherwise provided in these
Amended and Restated By-Laws, the Certificate of Incorporation, or by law, the
presence of a majority of the authorized number of directors shall be required
to constitute a quorum for the transaction of business at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present. A
meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, provided any action taken is
approved by at least a majority of the required quorum for such meeting. In the
absence of a quorum, a majority of directors present at any meeting may adjourn
the same from time to time until a quorum shall be present. Notice of any
adjourned meeting need not be given. The directors shall act only as a Board,
and the individual directors shall have no power as such.
3.11 ACTION BY CONSENT. Any action required or permitted to be taken at
any meeting of the Board or of any committee thereof may be taken without a
meeting if a written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or committee.
3.12 REMOVAL OF DIRECTORS. Subject to the provisions of the Certificate
of Incorporation, any director may be removed at any time, either with or
without cause, by the affirmative vote of the stockholders having a majority of
the voting power of this Corporation given at a special meeting of the
stockholders called for the purpose.
3.13 COMPENSATION. The directors shall receive only such compensation
for their services as directors as may be allowed by resolution of the Board.
The Board may also provide that this Corporation shall reimburse each such
director for any expense incurred by such director on account of his or her
attendance at any meetings of the Board or committees of the Board. Neither the
payment of such compensation nor the reimbursement of such expenses shall be
construed to preclude any director from serving this Corporation or its
subsidiaries in any other capacity and receiving compensation therefor.
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3.14 COMMITTEES. The Board may appoint one or more committees, each
consisting of one or more directors, and delegate to such committees any of the
authority of the Board permitted by law except with respect to:
(a) The approval of any action for which the General Corporation Law of
the State of Delaware also requires stockholders approval or approval of the
outstanding shares;
(b) The filing of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for serving on the Board
or on any committee;
(d) The amendment or repeal of these Amended and Restated By-Laws or the
adoption of new By-Laws;
(e) The amendment or repeal of any resolution of the Board which by its
express terms in not so amendable or repealable;
(f) A distribution to the stockholders of this Corporation except at a
rate or in a periodic amount or within a price range determined by the Board;
(g) The appointment of other committees of the Board or the members
thereof.
Any such committee must be appointed by resolution adopted by a majority
of the authorized number of directors and may be designated an Executive
Committee or by such other name as the Board shall specify. 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. The appointment of
members or alternate members of a committee requires the vote of a majority of
the authorized number of directors. The Board shall have the power to prescribe
the manner in which proceedings of any such committee shall be conducted. In the
absence of any such prescription, such committee shall have the power to
prescribe the manner in which its proceedings shall be conducted. Unless the
Board or such committee shall provide, the regular and special meetings of any
such committee shall be governed by the provisions of this Article applicable to
meetings and actions of the Board. Minutes shall be kept of each meeting of such
committee.
3.15 EXECUTIVE COMMITTEE. The passage of any resolution of the committee
designated by the Board as the Executive Committee shall, in addition to any
other limitations prescribed by the Board in accordance with the provisions of
Section 3.14, require the affirmative vote of a majority of directors present
and voting on such resolution who are not employees of this Corporation.
3.16 RIGHTS OF INSPECTION. Every director shall have the right to any
reasonable time to inspect and copy all books, records, and documents of every
kind and to inspect the physical properties of this Corporation and also of its
subsidiary corporations, domestic or foreign. Such inspection by a director may
be made in person or by agent or attorney and includes the right to copy and
obtain extracts.
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ARTICLE IV
OFFICERS
4.01 CORPORATE OFFICERS.
(a) The Officers of the Corporation shall consist of a Chief Executive
Officer, a President, a Secretary and a Chief Financial Officer. The Corporation
may have, at the discretion of the Board, a Chairman of the Board.
(b) In addition to the officers specified in Section 4.01(a), the Board
may appoint such additional officers as the Board may deem necessary or
desirable, including one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers, each of whom
shall hold office for such period, have such authority and perform such duties
as the Board may from time to time determine. The Board may delegate to any
officer of the Corporation or any committee of the Board the power to appoint,
remove and prescribe the term and duties of any officer provided for in this
Section 4.01(b).
(c) One person may hold two or more offices, except that the Secretary
may not hold the office of President.
4.02 APPOINTMENT AND TERM OF OFFICE. Each officer shall serve at the
pleasure of the Board of Directors and shall hold office until a successor shall
have been appointed or until such officer's death, disqualification, resignation
or removal. Any officer may be removed, either with or without cause, by the
Board of Directors or, except in case of an officer appointed by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors.
4.03 RESIGNATIONS. Any officer may resign at any time by giving written
notice of such officer's resignation to the Corporation. Any such resignation
shall take effect at the time specified therein, or, if the time be not
specified, upon receipt thereof by the Corporation. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
4.04 VACANCIES. A vacancy in any office because of death, resignation,
removal or disqualification or other event, may be filled in the manner
prescribed in these By-Laws for regular appointments to such office.
4.05 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer is elected, shall preside at all meetings of the stockholders and the
Board and shall have such other powers and duties as may from time to time be
assigned to him or her by the Board or as may be prescribed by the By-Laws.
4.06 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have,
subject to the control of the Board, general and active supervision, direction
and control of the business of the Corporation and its officers, agents and
employees, and shall perform all duties as may from time to time be assigned to
him or her by the Board. In the absence of the Chairman of the Board, or if
there be none, the Chief Executive Officer shall preside at all meetings of the
stockholders and at all meetings of the Board.
4.07 PRESIDENT. The President of the Corporation shall have the general
powers and duties of management usually vested in the office of president and
general manager of a corporation and shall have such other authority and shall
perform such other duties as may from time to time be assigned to him or her by
the Board or Chief Executive Officer.
4.08 SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office of the Corporation or at such other place as the
Board may order, a book of minutes of all meetings of the stockholders, the
Board and its committees, the time and place of holding such meetings, whether
regular or special, and, if special, how authorized, the notice thereof given,
the names of those present at Board and committee meetings, the number of shares
present or represented at stockholder meetings and the proceedings thereof. The
Secretary shall keep, or shall cause to be kept, at the principal executive
office or at the office of the Corporation's transfer agent or registrar, a
share register, or a duplicate share register, showing the names of stockholders
and their addresses, the number and classes of shares of stock held by each, the
number and date of certificates issued for such shares and the number and date
of cancellation of every certificate surrendered for cancellation. The Secretary
shall give, or shall cause to be given, in conformity with these Amended and
Restated By-Laws, notice of all meetings of the stockholders and of the Board
and of any committees thereof requiring notice. The Secretary shall keep the
seal of the Corporation in safe custody and shall have such other powers and
shall perform such other duties as may from time to time be assigned to him or
her by the Board.
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4.09 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep and
maintain, or shall cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the Corporation, and
shall send or shall cause to be sent to the stockholders of the Corporation such
financial statements and reports as are by law or by these Amended and Restated
By-Laws required to be sent to them. The books of account shall at all
reasonable times be open to inspection by any director. The Chief Financial
Officer shall render to the Chief Executive Officer and directors, whenever they
request it, an account of all transactions as Chief Financial Officer and of the
financial condition of the Corporation, and shall have such other powers and
perform such other duties as may from time to time be assigned to him or her by
the Board.
4.10 COMPENSATION. The compensation of those officers appointed by the
Board pursuant to Section 4.01(a) or (b) of these By-Laws shall be fixed from
time to time by the Board or a committee of the Board delegated with such
authority. No officer shall be prevented from receiving compensation by reason
of the fact that the officer is also a director of the Corporation or of any
subsidiary corporation. Nothing contained herein shall preclude any officer from
serving the Corporation, or any subsidiary corporation, in any other capacity
and receiving compensation therefore.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.01 EXECUTION OF CONTRACTS. The Board, except as in these Amended and
Restated By-Laws otherwise provided, 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 this Corporation, and such authority may be general or
confined to specific instances. Unless so authorized by the Board or by these
Amended and Restated By-Laws, no officer, agent or employee shall have any power
or authority to bind this Corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or in any amount.
5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment
of money, notes or other evidence of indebtedness, issued in the name of or
payable to this 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. Each authorized person shall give such bond, if any, as
the Board may require.
5.03 DEPOSITS. All funds of this Corporation not otherwise employed
shall be deposited from time to time to the credit of this Corporation in such
banks, trust companies and other depositories as the Board may select, or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of this Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of this Corporation, the President and Vice
President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of this Corporation who
shall from time to time be determined by the Board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of this Corporation.
5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to time
authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of this Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Amended and Restated By-Laws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.01 CERTIFICATES FOR STOCK.
(a) The shares of this Corporation shall be represented by certificates,
provided that the Board may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to this
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Corporation. Notwithstanding the adoption of such a resolution by the Board
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate, in such form
as the Board shall prescribe, signed by, or in the name of this Corporation by
the Chairman or Vice Chairman of the Board, or the President or Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of this Corporation representing the number of shares registered in
certificate form. Any of or all of the signatures on the certificates may be by
facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any such certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by this Corporation with
the same effect as though the person who signed such certificate, or whose
facsimile signature shall have been place thereupon, were such officer, transfer
agent or registrar at the date of issue.
(b) A record shall be kept of the respective names of the persons, firms
or corporations owning the stock represented by such certificates, the number
and class of shares represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to this Corporation for exchange or
transfer shall be cancelled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so cancelled, except in cases provided for in Section 6.04
6.02 TRANSFERS OF STOCK. Transfers of shares of stock of this
Corporation shall be made only on the books of this Corporation by the
registered holder thereof, or by such holder's attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or with a transfer
clerk or a transfer agent appointed as provided in Section 6.03, and upon
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon. The person in whose name shares of stock
stand on the books of this Corporation shall be deemed the owner thereof for all
purposes as regards this Corporation. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be so
expressed in the entry of transfer if, when the certificate or certificates
shall be presented to this Corporation for transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
6.03 REGULATIONS. This Board may make such rules and regulations as it
may deem expedient, not inconsistent with these Amended and Restated By-Laws,
concerning the issue, transfer and registration of certificates for shares of
the stock of this Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
6.04 LOST, STOLEN, DESTROYED, AND MUTILATED CERTIFICATES. In any case of
loss, theft, destruction, or mutilation of any certificate of stock, another may
be issued in its place upon proof of such loss, theft, destruction, or
mutilation and upon the giving of a bond of indemnity to this Corporation in
such form and in such sum as the Board may direct; provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper to do so.
ARTICLE VII
INDEMNIFICATION
7.01 SCOPE OF INDEMNIFICATION. This Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that such person
is or was a director, officer, employee or agent of this Corporation, or is or
was serving at the request of this Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding to the fullest extent permitted
by Delaware law and the Certificate of Incorporation.
7.02 ADVANCE OF EXPENSES. Costs and expenses (including attorneys' fees)
incurred by or on behalf of a director, officer, employer or agent in defending
or investigating any action, suit proceeding or investigation shall be paid by
this Corporation in advance of the final disposition of such matter, if such
director, officer, employee or agent shall undertake in writing to repay any
such advances in the event that it is ultimately determined that he or she is
not entitled to indemnification. Notwithstanding the foregoing, no advance shall
be made by this Corporation if a
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determination is reasonably and promptly made by the Board by a majority vote of
a quorum of disinterested directors, or (if such a quorum is not obtained or,
even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to the Board or
counsel at the time such determination is made, (a) the director, officer,
employee or agent acted in bad faith or deliberately breached his or her duty to
this Corporation or its stockholders, and (b) as a result of such actions by the
director, officer, employee or agent, it is more likely than not that it will
ultimately be determined that such director, officer, employee or agent is not
entitled to indemnification.
7.03 OTHER RIGHTS AND REMEDIES. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any Amended and
Restated By-Laws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
7.04 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
7.05 INSURANCE. Upon resolution passed by the Board, this Corporation
may purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of this Corporation, or is or was serving
at the request of this Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not this Corporation would have the power to indemnify such person against such
liability under the provisions of this Article.
ARTICLE VIII
MISCELLANEOUS
8.01 SEAL. The Board shall adopt a corporate seal, which shall be in the
form of a circle and shall bear the name of this Corporation and words and
figures showing that this Corporation was incorporated in the State of Delaware
and the year of incorporation.
8.02 WAIVER OF NOTICES. Whenever notice is required to be given by these
Amended and Restated By-Laws or the Certificate of Incorporation or by law, the
person entitled to said notice may waive such notice in writing, either before
or after the time stated therein, and such waiver shall be deemed equivalent to
notice. Attendance of a person at a meeting (whether in person or by proxy in
the case of a meeting of stockholders) shall constitute a waiver of notice of
such meeting, except when the person 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. Neither the
business to be transacted at, nor the purpose of any regular or special meeting
of the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
8.03 AMENDMENTS. These Amended and Restated By-Laws, or any of them, may
be altered, amended or repealed, and new By-Laws may be made, (i) by the Board,
by vote of a majority of the number of directors then in office as directors,
acting at any meeting of the Board, or (ii) by the stockholders, provided that
notice of such proposed amendment, modification, repeal or adoption is given in
the notice of special meeting.
8.04 REPRESENTATION OF OTHER CORPORATIONS. The President, any Vice
President, or the Secretary of this Corporation are each authorized to vote,
represent and exercise on behalf of this Corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
this Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation in any other corporation or corporations may be exercised either by
such officers in person or by any person authorized so to do by proxy or power
of attorney duly executed by said officers.
# # #
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CERTIFICATE OF SECRETARY
The undersigned, being the duly elected Secretary of Western Digital
Corporation (formerly, Western Digital Holdings, Inc.), a Delaware corporation,
hereby certifies that the Amended and Restated By-Laws to which this Certificate
is attached were duly adopted by the Board of Directors of such corporation as
of March 28, 2002.
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Michael A. Cornelius
Secretary
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