sunpower8k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
___________________
FORM
8-K
___________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of report (Date
of earliest event reported): November 7,
2008
___________________
SunPower
Corporation
|
(Exact
Name of Registrant as Specified in
Charter)
|
___________________
Delaware
|
001-34166
|
94-3008969
|
(State
or Other Jurisdiction
|
(Commission
|
(IRS
Employer
|
of
Incorporation)
|
File
No.)
|
Identification
No.)
|
3939
North First Street, San Jose, California 95134
|
(Address
of Principal Executive Offices) (Zip
Code)
|
Registrant’s
telephone number, including area code: (408) 240-5500
N/A
|
(Former
Name or Former Address, if Changed Since Last
Report)
|
___________________
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (see General Instruction
A.2. below):
|
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
November 7, 2008, the board of directors of SunPower Corporation (the “Company”)
amended and restated the By-laws of the Company. The amendments to
the By-laws provide, among other things, that stockholders must give advance
notice to the Company of any business that they propose to bring before an
annual meeting or of any person that they propose to be nominated as a director
and must follow the other procedures set forth in the amended and restated
By-Laws.
The
advance notice provisions specify information that must be set out in a
stockholder’s notice in respect of a shareholder proposal or stockholder
nominee, including the disclosure all stock ownership and derivative positions
in the Company’s stock. Under the advance notice provisions, to be
timely, a stockholder’s notice must be delivered or mailed to the Secretary of
the Company at the Company’s principal executive offices not less than 90 days
nor more than 120 days prior to the anniversary date of the immediately
preceding annual meeting of stockholders. These provisions are
designed to ensure that the Company and its stockholders have adequate
information to evaluate any proposal or stockholder nominee in advance of any
stockholders meeting.
The
foregoing summary description of the amended and restated By-laws does not
purport to be complete and is qualified in its entirety by reference to the full
text of the amended and restated By-laws, a copy of which is attached as Exhibit
3.1 and incorporated herein by reference.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits
Exhibit No.
|
|
Description
|
3.1
|
|
Amended
and Restated By-Laws of SunPower
Corporation
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
SUNPOWER
CORPORATION
|
|
|
Date:
November 7, 2008
|
By:
/s/ Bruce Ledesma
|
|
Name:
Bruce Ledesma
|
|
Title:
General Counsel and Corporate
Secretary
|
Exhibit No.
|
|
Description
|
3.1
|
|
Amended
and Restated By-Laws of SunPower
Corporation
|
exhibit31.htm
BY-LAWS
OF
SUNPOWER
CORPORATION
(a
Delaware corporation)
As
Amended and Restated on November 7, 2008
SUNPOWER
CORPORATION
BY-LAWS
--
BY-LAWS
OF
SUNPOWER
CORPORATION
(a
Delaware corporation)
OFFICES
1.1 Principal
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.
1.2 Additional
Offices. The
Board of Directors (the “Board”) may at any time establish branch or subordinate
offices at any place or places.
MEETING OF
STOCKHOLDERS
2.1 Place of
Meeting.
Meetings of stockholders may be held at such place, either within or without
Delaware, as determined by the Board. The Board may, in its sole discretion,
determine that the meeting shall not be held at any place, but may instead be
held solely by means of remote communication as authorized by Delaware law. If
authorized by the Board in its sole discretion, and subject to such guidelines
and procedures as the Board may adopt, stockholders and proxy holders not
physically present at a meeting of stockholders may, by means of
remote communication: (i) participate in a meeting of stockholders; and (ii) be
deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (A) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxy holder, (B)
the Corporation shall implement reasonable measures to provide such stockholders
and proxy holders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (C) if any stockholder or proxy holder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the Corporation.
2.2 Annual
Meeting. Annual
meetings of stockholders shall be held at such date and time as shall be
designated from time to time by the Board and stated in the notice of the
meeting. At such annual meetings, the stockholders shall elect directors and
transact such other business as may properly be brought before the meetings
pursuant to Sections 2.5 and 2.6.
2.3 Special
Meetings. Special
meetings of the stockholders may be called for any purpose or purposes, unless
otherwise prescribed by statute or by the Restated Certificate of Incorporation
of the Corporation (the “Restated Certificate of Incorporation”), at the request
of the Board, the Chairman of the Board or the Chief Executive
Officer. The ability of the stockholders to call a special meeting of
stockholders is hereby specifically denied.
2.4 Notice of
Meetings. Written
notice of stockholders’ meetings, stating the place, if any, date and time of
the meeting, the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, and the purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote at such meeting not less than ten
(10), nor more than sixty (60), days prior to the meeting.
When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, if any, date and time thereof and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken; provided, however, that if the date
of any adjourned meeting is more than thirty (30) days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
2.5 Business Matter of an Annual
Meeting. Only
such business (other than nominations for election to the Board, which must
comply with the provisions of Section 2.7) may be transacted at an annual
meeting of stockholders as is (a) specified in the notice (or any supplement
thereto) given by or at the direction of the Board (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board (or any duly authorized committee thereof), or
(c) otherwise properly brought before the annual meeting by any stockholder of
the Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 2.5 and on the record date for the
determination of stockholders entitled to notice of and to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.5.
In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to
the Secretary must be delivered to or be mailed and received at the principal
executive offices of the Corporation not less than ninety (90) days nor more
than one hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within twenty
five (25) days before or after such anniversary date, notice by the stockholder
in order to be timely must be so 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 annual meeting was mailed or such public disclosure (as defined
below) of the date of the annual meeting was made, whichever first
occurs. In no event shall the public disclosure of an adjournment of
an annual meeting commence a new time period for the giving of a stockholder’s
notice as described above.
To be in proper written form, a
stockholder's notice to the Secretary must set forth as to each matter such
stockholder proposes to bring before the annual meeting a brief description of
the business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting and as to the stockholder giving
the notice and any Stockholder Associated Person (as defined below), (i) the
name and record address of such person, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such person, (iii) the nominee holder for, and number of, shares owned
beneficially but not of record by such person, (iv) whether and the extent to
which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options or borrowed or loaned shares) has been made, the effect or intent of
which is to mitigate loss to or manage risk or benefit of share price changes
for, or to increase or decrease the voting power of, such person with respect to
any share of stock of the Corporation, (v) to the extent known by the
stockholder giving the notice, the name and address of any other stockholder
supporting the proposal of business on the date of such stockholder's notice,
(vi) a description of all arrangements or understandings between or among such
persons in connection with the proposal of such business by such stockholder and
any material interest in such business and (vii) a representation that the
stockholder giving the notice intends to appear in person or by proxy at the
annual meeting to bring such business before the meeting. Any information
required pursuant to this paragraph shall be supplemented by the stockholder
giving the notice not later than ten (10) days after the record date for the
meeting as of the record date.
No business shall be conducted at the
annual meeting of stockholders except business brought before the annual meeting
in accordance with the procedures set forth in this Section 2.5 (including the
provision of the information required pursuant to the immediately preceding
paragraph); provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 2.5 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
For purposes of Sections 2.5 and 2.7
hereof:
"public disclosure" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
"Stockholder Associated Person" of any
stockholder shall mean (i) any person acting in concert, directly or indirectly,
with such stockholder and (ii) any person controlling, controlled by or under
common control with such stockholder or any Stockholder Associated
Person.
2.6 Business Matter of a Special
Meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
2.7 Nomination of
Directors. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Restated Certificate of Incorporation with respect to
the right of holders of preferred stock of the Corporation to nominate and elect
a specified number of directors in certain circumstances. Nominations
of persons for election to the Board may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose
of electing directors, (a) by or at the direction of the Board (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 2.7 and on the record date for the determination of
stockholders entitled to notice of and to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 2.7.
In addition to any other applicable
requirements, for a nomination to be made by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to
the Secretary must be delivered to or be mailed and received at the principal
executive offices of the Corporation (a) in the case of an annual meeting, not
less than ninety (90) days nor more than one hundred twenty (120) days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within twenty five (25) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
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 annual meeting was mailed or
such public disclosure (as defined in Section 2.5) of the date of the annual
meeting was made, whichever first occurs; and (b) in the case of a special
meeting of stockholders called for the purpose of electing directors, not later
than the close of business on the tenth (10th) day following the day on which
notice of the date of the special meeting was mailed or public disclosure of the
date of the special meeting was made, whichever first occurs. In no
event shall the public disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder’s notice as described
above.
To be in proper written form, a
stockholder's notice to the Secretary must set forth as to each person whom the
stockholder proposes to nominate for election as a director and as to the
stockholder giving the notice and any Stockholder Associated Person (as defined
in Section 2.5) (i) the name, age, business address, residence address and
record address of such person, (ii) the principal occupation or employment of
such person, (iii) the class or series and number of
shares
of capital stock of the Corporation which are owned beneficially or of record by
such person, (iv) any information relating to such person that would be required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder, (v) the nominee
holder for, and number of, shares owned beneficially but not of record by such
person, (vi) whether and the extent to which any hedging or other transaction or
series of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding (including any derivative or short
positions, profit interests, options or borrowed or loaned shares) has been
made, the effect or intent of which is to mitigate loss to or manage risk or
benefit of share price changes for, or to increase or decrease the voting power
of, such person with respect to any share of stock of the Corporation, (vii) to
the extent known by the stockholder giving the notice, the name and address of
any other stockholder supporting the nominee for election or reelection as a
director on the date of such stockholder's notice, (viii) a description of all
arrangements or understandings between or among such persons pursuant to which
the nomination(s) are to be made by the stockholder and any relationship between
or among the stockholder giving notice and any Stockholder Associated Person, on
the one hand, and each proposed nominee, on the other hand, and (ix) a
representation that the stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice. Any information
required pursuant to this paragraph shall be supplemented by the stockholder
giving the notice not later than ten (10) days after the record date for the
meeting as of the record date. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the Corporation to determine the eligibility of such proposed nominee to
serve as an independent director of the Corporation or that could be material to
a reasonable stockholder's understanding of the independence, or lack thereof,
of such nominee.
No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 2.7 (including the provision of the
information required pursuant to the immediately preceding paragraph). If the
chairman of the meeting determines that a nomination was not made in accordance
with the foregoing procedures, the chairman shall declare to the meeting that
the nomination was defective and such defective nomination shall be
disregarded.
2.8 List of
Stockholders. The
officer in charge of the stock ledger of the Corporation or the transfer agent
shall prepare and make, at least ten (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
ten (10) days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the principal place of business of
the
Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
Corporation. If the meeting is to be held at a place, then the list shall 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. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the
meeting.
2.9 Organization and Conduct of
Business. The
Chairman of the Board or, in his or her absence, the Chief Executive Officer of
the Corporation or, in their absence, such person as the Board may have
designated or, in the absence of such a person, such person as may be chosen by
the holders of a majority of the shares entitled to vote who are present, in
person or by proxy, shall call to order any meeting of the stockholders and act
as chairman of the meeting. In the absence of the Secretary of the Corporation,
the Secretary of the meeting shall be such person as the Chairman
appoints.
The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seems to him or her in order.
2.10 Quorum and
Adjournments. Except
where otherwise provided by law or in the Restated Certificate of Incorporation
or these By-laws, the holders of a majority of the stock issued and outstanding
and entitled to vote, present in person or represented in proxy, shall
constitute a quorum at all meetings of the stockholders. The stockholders
entitled to vote at the meeting, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting. At such adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed.
2.11 Voting
Rights. Unless
otherwise provided in the Restated Certificate of Incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder.
2.12 Majority
Vote. When a
quorum is present at any meeting, the vote of the holders of a majority of the
stock having voting power present in person or represented by proxy shall decide
any question brought before such meeting, unless the question is one upon which,
by express provision of the statutes or of the Restated Certificate of
Incorporation or of these By-laws, a different vote is required, in which case
such express provision shall govern and control the decision of such
question.
2.13 Record Date for Stockholder Notice and
Voting
(a) In order
that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more
than sixty or fewer than ten days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day
on which the meeting is held.
(b) In order
that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution, or allotment of any rights,
or the stockholders entitled to exercise any rights in respect of
any change, conversion, or exchange of capital stock, or for the purpose of
any other lawful action, except as may otherwise be provided in these
Bylaws, the Board of Directors may fix a record date. Such record date
shall not precede the date upon which the resolution fixing such record
date is adopted, and shall not be more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto.
2.14 Proxies. Every
person entitled to vote for directors or on any other matter shall have the
right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the Secretary of the Corporation. A
proxy shall be deemed signed if the stockholder’s name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission, electronic
transmission or otherwise) by the stockholder or the stockholder’s
attorney-in-fact. A validly executed proxy which does not state that it is
irrevocable shall continue in full force and effect unless (a) 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 the maker of the proxy, or by that person’s
attendance and vote at the meeting; or (b) 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 eleven months from the date of the proxy,
unless otherwise provided in the proxy.
2.15 Inspectors of
Election. Before
any meeting of stockholders, the Board may appoint any person other than
nominees for office to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the chairman of the
meeting may, and on the request of any stockholder or a stockholder’s proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one (1) or three (3). If inspectors are appointed at a meeting
on the request of one or more stockholders or proxies, the holders of a majority
of shares or their proxies present at the meeting shall determine whether one
(1) or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the chairman of the
meeting may, and upon the request of any
stockholder
or a stockholder’s proxy shall, appoint a person to fill that vacancy or to act
in place of such inspector.
2.16 No Action Without Meeting by Written
Consent. No
action required or permitted to be taken at any annual or special meeting of the
stockholders of the Corporation may be taken without a meeting and the power of
the stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied.
DIRECTORS
3.1 Number; Qualifications;
Election. The
Board shall consist of the number of directors as provided in the Restated
Certificate of Incorporation.
On
September 29, 2008, a Consolidation Triggering Event (as defined in the Restated
Certificate of Incorporation) occurred as a result of the distribution by
Cypress Semiconductor Corporation (“Cypress”) to its stockholders of all of the
shares of the Company’s Class B common stock held by Cypress. As a
result of the Consolidation Triggering Event, as provided in the Restated
Certificate of Incorporation and the bylaws of the Company as in effect at the
time of the Consolidation Triggering Event, the Board of Directors was divided
into three classes, designated Class I, Class II and Class III, with each class
to serve for a term of three (3) years and to be as nearly equal in number as
possible. As provided in the Restated Certificate of Incorporation and the
bylaws of the Company as in effect at the time of the Consolidation Triggering
Event, the initial classification of directors was determined by the Board of
Directors as follows: Class I was comprised of Dr. Uwe-Ernst Bufe and
Mr. Pat Wood III; Class II was comprised of Ms. Betsy S. Atkins and Mr. W. Steve
Albrecht; and Class III was comprised of Messrs. T.J. Rodgers and Thomas H.
Werner. Additional directorships resulting from an increase in number of
directors shall be apportioned among the classes as determined by the decision
of the affirmative vote of a majority of the entire Board of Directors, subject
to the requirement that the classes be as nearly equal in number as
possible.
The
initial term of office of directors of Class I shall expire at the next annual
meeting of stockholders to be held in 2009, the initial term of office of
directors of Class II shall expire at the annual meeting of stockholders to be
held in 2010 and the initial term of office of directors of Class III shall
expire at the annual meeting of stockholders to be held in 2011, and in all
cases as to each director until his or her successor shall be elected and shall
qualify or until his or her earlier resignation, removal from office, death or
incapacity. Subject to the provisions of the Restated Certificate of
Incorporation, at each annual meeting of stockholders the number of directors
equal to the number of directors of the class whose term expires at the time of
such meeting (or, if less, the number of directors properly nominated and
qualified for election) shall be elected to hold office until the third
succeeding annual meeting of stockholders after their election. Directors need
not be stockholders. All elections of directors shall be by written ballot,
unless otherwise provided in the Restated Certificate of Incorporation; if
authorized by the Board, such requirement of a written ballot shall be satisfied
by a ballot submitted by electronic
transmission,
provided that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the electronic
transmission was authorized by the stockholder or proxy holder.
3.2 Resignation and
Vacancies. A
vacancy or vacancies in the Board, however occurring, shall be filled in the
manner specified in the Restated Certificate of Incorporation. If the Board
accepts the resignation of a director tendered to take effect at a future time,
the Board shall have power to elect a successor to take office when the
resignation is to become effective. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. In the
event of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law, the Corporation’s Restated Certificate of
Incorporation or these By-laws, may exercise the powers of the full Board of
Directors until the vacancy is filled.
3.3 Removal of
Directors. Any
director or the entire Board may be removed from office by stockholders in the
manner specified in the Restated Certificate of Incorporation.
3.4 Powers. Subject
to the provisions of the Delaware General Corporation Law and the Corporation’s
Restated Certificate of Incorporation, the business of the Corporation shall be
managed by or under the direction of the Board which may exercise all such
powers of the Corporation and do all such lawful acts and things which are not
by statute or by the Restated Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
Without prejudice to these general
powers, the directors shall have the power to:
(a) Select
and remove all officers, agents, and employees of the
Corporation; prescribe any powers and duties for them that are consistent
with law, with the Restated Certificate of Incorporation, and with these
By-laws and fix their compensation;
(b) Confer
upon any office the power to appoint, remove and suspend
subordinate officers, employees and agents;
(c) Change
the principal executive office or the principal business office in the
State of California, or any other state, from one location to
another; cause the Corporation to be qualified to do business in any other
state, territory, dependency or country, and conduct business within or
without the State of California; and designate any place within or without
the State of California for the holding of any stockholders meeting, or
meetings, including annual meetings;
(d) Adopt,
make, and use a corporate seal; prescribe the forms of certificates of
stock; and alter the form of the seal and certificates;
(e) Authorize
the issuance of shares of stock of the Corporation on any
lawful terms;
(f) Borrow
money and incur indebtedness on behalf of the Corporation, and cause to be
executed and delivered for the Corporation’s purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecation and other evidences of debt and
securities;
(g) Declare
dividends from time to time in accordance with law;
(h) Adopt
from time to time such stock option, stock purchase, bonus or
other compensation plans for directors, officers, employees and agents of
the Corporation and its subsidiaries as it may determine; and
(i) Adopt
from time to time policies not inconsistent with these By-laws for the
management of the Corporation’s business and affairs.
3.5 Place of
Meetings. The
Board may hold meetings, both regular and special, either within or without the
State of Delaware.
3.6 Annual
Meetings. The
annual meeting of the Board shall be held immediately following the annual
meeting of stockholders, and no notice of such meeting shall be necessary to the
Board, provided a quorum shall be present. The annual meetings shall be for the
purposes of organization, for an election of officers, and for the transaction
of other business.
3.7 Regular
Meetings. Regular
meetings of the Board may be held without notice at such time and place as may
be determined from time to time by the Board.
3.8 Special
Meetings. Special
meetings of the Board may be called by the Chairman of the Board, the Chief
Executive Officer or any two members of the Board, upon one (1) day’s notice to
each director.
3.9 Quorum and
Adjournments. At all
meetings of the Board, a majority of the directors then in office shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board, except as may otherwise be specifically provided by law or by
the Restated Certificate of Incorporation. If a quorum is not present at any
meeting of the Board, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting at which the
adjournment is taken, until a quorum shall be present. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved of by at least a
majority of the required quorum for that meeting.
3.10 Action Without
Meeting. Unless
otherwise restricted by the Restated Certificate of Incorporation or these
By-laws, 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 all members
of the Board or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
3.11 Telephone
Meetings. Unless
otherwise restricted by the Restated Certificate of Incorporation or these
By-laws, any member of the Board or of any committee may participate in a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in person at the
meeting.
3.12 Waiver of
Notice. Notice
of a meeting need not be given to any director who signs a waiver of notice or
provides a waiver by electronic transmission or a consent to holding the meeting
or an approval of the minutes thereof, whether before or after the meeting, or
who attends the meeting without protesting, either prior thereto or at its
commencement, the lack of notice to such director. All such waivers, consents
and approvals or any waiver by electronic transmission shall be filed with the
corporate records or made a part of the minutes of the meeting.
3.13 Fees and Compensation of
Directors. Unless
otherwise restricted by the Restated Certificate of Incorporation or these
By-laws, the Board shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board, and may be paid a fixed sum for attendance at each
meeting of the Board or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor; provided, that, no person who concurrently
serves as a member of the Board and also serves as an officer of the Corporation
or as an officer of any “Parent” (as defined in Article III, Section D.8.(c) of
the Corporation’s Restated Certificate of Incorporation) of the Corporation
shall receive additional compensation from the Corporation, other
than the reimbursement of expenses, for service on the Board of Directors of the
Corporation. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
COMMITTEES OF
DIRECTORS
4.1 Selection. The
Board may, by resolution passed by a majority of the entire Board, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or she or they constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member.
4.2 Power. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to
be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Restated Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in section 151(a) of the General Corporation Law of
Delaware, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation), adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation’s property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of
dissolution, removing or indemnifying directors or amending the By-laws of the
Corporation; and, unless the resolution or the Restated Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board.
4.3 Committee
Minutes. Each
committee shall keep regular minutes of its meetings and report the same to the
Board when required.
OFFICERS
5.1 Officers
Designated. The
officers of the Corporation shall be chosen by the Board and shall be a Chief
Executive Officer, a President, a Secretary and a Chief Financial Officer. The
Board may also choose a Chairman of the Board, Chief Operating Officer, one or
more Vice Presidents and one or more assistant Secretaries. Any number of
offices may be held by the same person, unless the Restated Certificate of
Incorporation or these By-laws otherwise provide.
5.2 Appointment of
Officers. The
officers of the Corporation, except such officers as may be appointed in
accordance with the provisions of Section 5.3 or 5.5 hereof, shall be appointed
by the Board, and each shall serve at the pleasure of the Board, subject to the
rights, if any, of an officer under any contract of employment.
5.3 Subordinate
Officers. The
Board or any duly authorized committee may appoint, and may empower the Chief
Executive Officer to appoint, such other officers and agents 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 the By-laws or as
the Board or duly authorized committee may from time to time
determine.
5.4 Removal and Resignation of
Officers. Subject
to the rights, if any, of an officer under any contract of employment, any
officer may be removed, either with or without cause, by an affirmative vote of
the majority of the Board or authorized committee, at any
regular
or special meeting of the Board or such committee, or, except in case of an
officer chosen by the Board or authorized committee, by any officer upon whom
such power of removal may be conferred by the Board or authorized
committee.
Any officer may resign at any time by
giving written notice to the Corporation. Any resignation shall take effect at
the date of the receipt of that notice or at any later time specified in that
notice; and, unless otherwise specified in that notice, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Corporation under any contract
to which the officer is a party.
5.5 Vacancies in
Offices. A
vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in these By-laws for
regular appointment to that office.
5.6 Compensation. The
salaries of all officers of the Corporation shall be fixed from time to time by
the Board, and no officer shall be prevented from receiving a salary because he
is also a director of the Corporation.
5.7 The Chairman of the
Board. If the
Board of Directors appoints a Chairman of the Board, such Chairman shall, when
present, preside at all meetings of the stockholders and the Board. The Chairman
shall perform such duties and possess such powers as are customarily vested in
the office of the Chairman of the Board or as may be vested in the Chairman by
the Board of Directors.
5.8 The Chief Executive
Officer. Subject
to such supervisory powers, if any, as may be given by the Board to the Chairman
of the Board, the Chief Executive Officer shall preside at all meetings of the
stockholders and in the absence of the Chairman of the Board, or if there be
none, at all meetings of the Board, shall have general and active management of
the business of the Corporation and shall see that all orders and resolutions of
the Board are carried into effect. He or she shall execute bonds, mortgages and
other contracts requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board to some other officer or agent of the Corporation.
5.9 The
President. The
President shall, in the event there be no Chief Executive Officer or in the
absence of the Chief Executive Officer or in the event of his or her disability
or refusal to act, perform the duties of the Chief Executive Officer, and when
so acting, shall have the powers of and subject to all the restrictions upon the
Chief Executive Officer. The President shall perform such other duties and have
such other powers as may from time to time be prescribed for such person by the
Board, the Chairman of the Board, the Chief Executive Officer or these
By-laws.
5.10 The Vice
President. The
Vice President (or in the event there be more than one, the Vice Presidents in
the order designated by the directors, or in the absence of any designation, in
the order of their election), shall, in the absence of the President or in the
event of
his
disability or refusal to act, perform the duties of the President, and when so
acting, shall have the powers of and be subject to all the restrictions upon the
President. The Vice President(s) shall perform such other duties and have such
other powers as may from time to time be prescribed for them by the Board, the
Chief Executive Officer, the President, the Chairman of the Board or these
By-laws.
5.11 The
Secretary. The
Secretary shall attend all meetings of the Board and the stockholders and record
all votes and the proceedings of the meetings in a book to be kept for that
purpose, and shall perform like duties for the standing committees, when
required. The Secretary shall give, or cause to be given, notice of all meetings
of stockholders and special meetings of the Board, and shall perform such other
duties as may from time to time be prescribed by the Board, the Chairman of the
Board, the Chief Executive Officer or the President, under whose supervision he
or she shall act. The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to affix the same to any instrument requiring it, and, when so affixed, the seal
may be attested by his or her signature or by the signature of such Assistant
Secretary. The Board may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing thereof by his or her
signature. 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, as determined by resolution of the Board, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
5.12 The Assistant
Secretary. The
Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order designated by the Board (or in the absence of any designation, in the
order of their election) shall, in the absence of the Secretary, or in the event
of his or her inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board.
5.13 The Chief Financial
Officer. The
Chief Financial Officer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board. The Chief Financial Officer
shall disburse the funds of the Corporation as may be ordered by the Board,
taking proper vouchers for such disbursements, and shall render to the Chief
Executive Officer and the Board, at its regular meetings, or when the Board so
requires, an account of all his or her transactions as Chief Financial Officer
and of the financial condition of the Corporation.
5.14 The Chief Technical
Officer. The
Chief Technical Officer shall be the senior technical officer of the
Corporation. He or she shall be responsible for the creation and maintenance of
appropriate records as to the design, technical specifications, and performance
criteria of the Corporation’s products. As directed by the Board and the Chief
Executive Officer,
the Chief
Technical Officer shall be responsible for research, technical development and
manufacturing of existing and future products of the Corporation.
5.15 Representation of Shares of
Other Corporations. The
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or the Secretary or Assistant Secretary of this Corporation,
or any other person authorized by the Board of Directors or the Chief Executive
Officer, is 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 the Corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
INDEMNIFICATION OF
DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER
AGENTS
6.1 Indemnification of Directors
And Officers. The
Corporation shall, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys’ fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise, arising by reason of the fact that such person is or
was an agent of the Corporation. For purposes of this Section 6.1, a “director”
or “officer” of the Corporation includes any person (a) who is or was a director
or officer of the Corporation, (b) who, while serving as a director of officer
of the Corporation, is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or (c) who was a director or officer of a corporation which
was a predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation.
6.2 Indemnification of
Others. The
Corporation shall have the power, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of its
employees and agents (other than directors and officers) against expenses
(including attorneys’ fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the Corporation. For
purposes of this Section 6.2, an “employee” or “agent” of the Corporation (other
than a director or officer) includes any person (a) who is or was an employee or
agent of the Corporation, (b) who is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (c) who was an employee or agent of a
corporation which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation.
6.3 Payment Of Expenses In
Advance.
Expenses incurred in defending any action or proceeding for which
indemnification is required pursuant to Section 6.1 hereof, or for
which
indemnification is permitted pursuant to Section 6.2 hereof, following
authorization thereof by the Board of Directors, shall be paid by the
Corporation in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of the indemnified party to repay
such amount, if it shall ultimately be determined that the indemnified party is
not entitled to be indemnified as authorized in this Article 6.
6.4 Indemnity Not Exclusive. The
indemnification provided by this Article 6 shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office, to the extent that such additional rights to
indemnification are authorized in the Restated Certificate of
Incorporation.
6.5 Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
6.6 Conflicts. No
indemnification or advance shall be made under this Article 6, except where such
indemnification or advance is mandated by law or the order, judgment or decree
of any court of competent jurisdiction, in any circumstance where it
appears:
(a) That it
would be inconsistent with a provision of the Restated Certificate of
Incorporation, these By-laws, a resolution of the stockholders or
an agreement in effect at the time of the accrual of the alleged cause of
the action asserted in the proceeding in which the expenses were incurred
or other amounts were paid, which prohibits or otherwise limits
indemnification; or
(b) That it
would be inconsistent with any condition expressly imposed by a court in
approving a settlement.
6.7 Amendment. The
duties of the Corporation to indemnify and to advance expenses to any Person as
provided in the Restated Certificate of Incorporation or these By-laws shall be
in the nature of a contract between the Corporation and each such Person, and
neither any amendment nor repeal of the Restated Certificate of Incorporation or
these By-laws, nor the adoption of any provision of these By-laws inconsistent
with this Article VI, shall eliminate or reduce the effect of this Article VI in
respect of any matter occurring, or action or proceeding accruing or arising or
that, but for this Article VI, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
STOCK
CERTIFICATES
7.1 Certificates for
Shares. The
shares of the Corporation shall be represented by certificates or shall be
uncertificated. Certificates shall be signed by, or be in the name of the
Corporation by, the Chairman of the Board, the Chief Executive Officer or the
President or a Vice President and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation.
Within a reasonable time after the
issuance or transfer of uncertified stock, the Corporation shall send to the
registered owner thereof a written notice containing the information required by
the General Corporation Law of the State of Delaware or a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights.
7.2 Signatures on
Certificates. Any or
all of the signatures on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
7.3 Transfer of
Stock. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate of shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, to cancel
the old certificate and record the transaction upon its books. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares,
such uncertificated shares shall be canceled, and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto, and the transaction shall be recorded upon the books of the
Corporation.
7.4 Registered
Stockholders. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a percent registered
on its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
7.5 Lost, Stolen or Destroyed
Certificates. The
Board may direct that a new certificate or certificates be issued to replace any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing the issue of a new certificate or certificates, the
Board may, in its discretion and as a
condition
precedent to the issuance thereof, require the owner of the lost, stolen or
destroyed certificate or certificates, or his or her legal representative, to
advertise the same in such manner as it shall require, and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
NOTICES
8.1 Notice.
Whenever, under the provisions of the statutes or of the Restated Certificate of
Incorporation or of these By-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his or her address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram, telephone or electronic
transmission.
8.2 Waiver.
Whenever any notice is required to be given under the provisions of the statutes
or of the Restated Certificate of Incorporation or of these By-laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
GENERAL
PROVISIONS
9.1 Dividends.
Dividends upon the capital stock of the Corporation, subject to any restrictions
contained in the General Corporation Laws of Delaware or the provisions of the
Restated Certificate of Incorporation, if any, may be declared by the Board at
any regular or special meeting. Dividends may be paid in cash, in property or in
shares of the capital stock, subject to the provisions of the Restated
Certificate of Incorporation.
9.2 Dividend
Reserve. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends, such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
9.3 Checks. All
checks or demands for money and notes of the Corporation shall be signed by such
officer or officers or such other person or persons as the Board may from time
to time designate.
9.4 Corporate
Seal. The
Board may provide a suitable seal, containing the name of the Corporation, which
seal shall be in charge of the Secretary. If and when so directed by the Board
or a committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by an Assistant Secretary or Assistant Treasurer.
9.5 Execution of Corporate
Contracts and Instruments. The
Board, except as otherwise provided in these By-laws, may authorize any officer
or officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the Corporation; such authority may
be general or confined to specific instances. Unless so authorized or ratified
by the Board 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.
9.6 Books and
Records. The
Corporation shall keep at its principal executive office or, if its principal
executive office is not in the State of California, at its principal business
office in California the original or a copy of these By-laws as amended to date,
which By-laws shall be open to inspection by the stockholders at all reasonable
times during office hours. If the principal executive office of the Corporation
is outside the State of California and the Corporation has no principal business
office in such state, then the secretary shall, upon the written request of any
stockholder, furnish to that stockholder a copy of these By-laws as amended to
date.
AMENDMENTS
In
addition to the right of the stockholders of the Corporation to make, alter,
amend, change, add to or repeal the By-laws of the Corporation, the Board of
Directors is expressly authorized to adopt, amend or repeal the By-laws of the
Corporation by vote of at least a majority of the members of the Board of
Directors.
SUNPOWER
CORPORATION
BY-LAWS
--
CERTIFICATE
OF SECRETARY
I, the
undersigned, hereby certify:
1.
|
That
I am the duly elected, acting and qualified Secretary of SunPower
Corporation, a Delaware corporation;
and
|
2.
|
That
the foregoing By-laws, comprising 19 pages (excluding this Certificate),
constitute the By-laws of such corporation as duly adopted by resolution
of the Board of Directors at a meeting duly called, convened and held on
November 7, 2008, and restate, integrate and amend the provisions of the
By-laws of such corporation as heretofore in
effect.
|
IN
WITNESS WHEREOF, I have hereunto subscribed my name as of this 7 day of
November, 2008.
/s/ Bruce
Ledesma
Bruce
Ledesma
Secretary