Attached files
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10-Q - FORM 10-Q - QUALCOMM INC/DE | a54942e10vq.htm |
EX-31.2 - EX-31.2 - QUALCOMM INC/DE | a54942exv31w2.htm |
EX-31.1 - EX-31.1 - QUALCOMM INC/DE | a54942exv31w1.htm |
EX-32.1 - EX-32.1 - QUALCOMM INC/DE | a54942exv32w1.htm |
EX-32.2 - EX-32.2 - QUALCOMM INC/DE | a54942exv32w2.htm |
EX-10.86 - EX-10.86 - QUALCOMM INC/DE | a54942exv10w86.htm |
EXCEL - IDEA: XBRL DOCUMENT - QUALCOMM INC/DE | Financial_Report.xls |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
QUALCOMM INCORPORATED
OF
QUALCOMM INCORPORATED
QUALCOMM Incorporated, a corporation organized and existing under the General Corporation Law
of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The name of this corporation is QUALCOMM Incorporated. This corporation was
originally incorporated under the name QUALCOMM, Inc. through the filing of a Certificate of
Incorporation with the Secretary of State of the State of Delaware on August 15, 1991. A Restated
Certificate of Incorporation was filed on September 10, 1991 changing the name of the corporation
to QUALCOMM Incorporated.
SECOND: The Restated Certificate of Incorporation of QUALCOMM Incorporated, in the form
attached hereto as Exhibit A, has been duly adopted in accordance with the provisions of
Section 245 of the General Corporation Law of the State of Delaware. The Restated Certificate of
Incorporation attached hereto as Exhibit A only restates and integrates and does not
further amend the provisions of this corporations Certificate of Incorporation as heretofore
amended or supplemented, and there is no discrepancy between those provisions and the provisions of
the Restated Certificate of Incorporation attached hereto as Exhibit A.
THIRD: The Restated Certificate of Incorporation so adopted reads in full as set forth on
Exhibit A attached hereto and hereby incorporated by reference.
IN WITNESS WHEREOF, QUALCOMM Incorporated has caused this certificate to be signed by its
Secretary this 7th day of March, 2006.
QUALCOMM Incorporated |
||||
By: | ||||
Cameron Jay Rains, | ||||
Secretary |
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
OF
QUALCOMM INCORPORATED
I.
The name of this corporation is QUALCOMM Incorporated.
II.
The address of the registered office of the corporation in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, and the name of the
registered agent of the corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
III.
The purpose of this corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of the State of Delaware.
IV.
This corporation is authorized to issue two classes of stock to be designated, respectively,
Common Stock and Preferred Stock. The total number of shares which the corporation is
authorized to issue is six billion eight million (6,008,000,000) shares. Six billion
(6,000,000,000) shares shall be Common Stock, each having a par value of one one-hundredth of one
cent ($0.0001). Eight million (8,000,000) shares shall be Preferred Stock, each having a par value
of one one-hundredth of one cent ($0.0001).
V.
The relative rights, preferences, privileges and restrictions granted to or imposed upon the
respective classes and series of shares are as follows:
A. COMMON STOCK.
The voting, dividend and liquidation rights of the Common Stock are subject to and qualified
by the rights of the holders of the Preferred Stock of any series as designated herein and as may
be designated by the Board of Directors of the corporation upon any issuance of the Preferred Stock
of any series.
B. PREFERRED STOCK.
The Preferred Stock may be issued from time to time in one or more series. The Board of
Directors is hereby authorized, by filing a certificate pursuant to the Delaware General
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Corporation Law, to fix or alter from time to time the designation, powers, preferences and
rights of the shares of each such series and the qualifications, limitations or restrictions
thereof, including without limitation the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preferences of any wholly unissued series of Preferred Stock, and to
establish from time to time the number of shares constituting any such series and the designation
thereof, or any of them (a Preferred Stock Designation); and to increase or decrease the number
of shares of any series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares of any series shall
be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall
resume the status that they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
On September 26, 1995, the Board of Directors created a series of Preferred Stock designated
as the Series A Junior Participating Preferred Stock. The relative designations and the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof (in addition
to the provisions otherwise set forth in this Restated Certificate of Incorporation, which are
applicable to the Preferred Stock of all classes and series), as such were amended by the Board of
Directors on September 26, 2005, are as set forth in the resolutions attached hereto as
Attachment 1.
VI.
For the management of the business and for the conduct of the affairs of the corporation, and
in further definition, limitation and regulation of the powers of the corporation, of its directors
and of its stockholders or any class thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs of the corporation shall be
vested in its Board of Directors. The number of directors which shall constitute the whole Board
of Directors shall be fixed exclusively by one or more resolutions adopted from time to time by the
Board of Directors. The candidates receiving the highest number of votes of the shares entitled to
be voted for them up to the number of directors to be elected by such shares shall be declared
elected.
At the 2006 annual meeting of stockholders, the successors of the directors whose terms expire
at that meeting shall be elected for a term expiring at the 2007 annual meeting of stockholders.
At the 2007 annual meeting of stockholders, the successors of the directors whose terms expire at
that meeting shall be elected for a term expiring at the 2008 annual meeting of stockholders. At
the 2008 annual meeting of stockholders, all directors shall be elected for a term expiring at the
2009 annual meeting of stockholders. At each annual meeting of stockholders thereafter, the
directors shall be elected for terms expiring at the next annual meeting of stockholders.
Notwithstanding the foregoing provisions of this Article, each director shall serve until his
successor is duly elected and qualified or until his death, resignation or removal. No decrease
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in the number of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Any vacancies on the Board of Directors resulting from death, resignation, disqualification,
removal or other causes shall be filled by either (i) the affirmative vote of the holders of a
majority of the voting power of the then-outstanding shares of voting stock of the corporation
entitled to vote generally in the election of directors (the Voting Stock) voting together as a
single class; or (ii) by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors. Newly created directorships
resulting from any increase in the number of directors shall, unless the Board of Directors
determines by resolution that any such newly created directorship shall be filled by the
stockholders, be filled only by the affirmative vote of the directors then in office, even though
less than a quorum of the Board of Directors. Any director elected in accordance with this
paragraph shall hold office for a term expiring at the next annual meeting of stockholders and
until such directors successor shall have been elected and qualified.
B. The Bylaws may be altered or amended or new Bylaws adopted by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock. In furtherance and not in limitation of the power conferred by
statute, the Board of Directors is expressly authorized to adopt, amend, supplement or repeal the
Bylaws.
C. The directors of the corporation need not be elected by written ballot unless the Bylaws so
provide.
D. No action shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws and no action shall be taken
by the stockholders by written consent.
E. Advance notice of stockholder nominations for the election of directors and of business to
be brought by stockholders before any meeting of the stockholders of the corporation shall be given
in the manner provided in the Bylaws of the corporation.
F. Any director, or the entire Board of Directors, may be removed from office at any time (i)
with cause by the affirmative vote of the holders of at least a majority of the voting power of all
of the then-outstanding shares of the Voting Stock, voting together as a single class; or (ii)
without cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the Voting Stock. If the
holders of any class or series of capital stock are entitled to elect one (1) or more directors by
this certificate of incorporation, as amended from time to time, the removal of such directors
without cause shall be by a vote of the outstanding shares of that series or class of capital stock
and not the outstanding shares of capital stock as a whole.
VII.
A director of the corporation shall, to the full extent not prohibited by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be amended, not
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be liable to the corporation or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director.
VIII.
A. (1) In addition to any affirmative vote required by law, by this Certificate of
Incorporation or by any Preferred Stock Designation, and except as otherwise expressly provided in
Section B of this Article VIII:
(i) any merger or consolidation of the corporation or any Subsidiary (as hereinafter defined)
with (a) any Interested Stockholder (as hereinafter defined) or (b) any other corporation (whether
or not itself an Interested Stockholder) which is, or after such merger or consolidation would be,
an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate of
any Interested Stockholder of any assets of the corporation or any Subsidiary having an aggregate
Fair Market Value (as hereinafter defined) equal to or greater than 15% of the Corporations assets
as set forth on the Corporations most recent audited consolidated financial statements; or
(iii) the issuance or transfer by the corporation or any Subsidiary (in one transaction or a
series of transactions) of any securities of the corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value equal to or greater
than 15% of the Corporations assets as set forth on the Corporations most recent audited
consolidated financial statements; or
(iv) the adoption of any plan or proposal for the liquidation or dissolution of the
corporation proposed by or on behalf of any Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock split), or
recapitalization of the corporation, or any merger or consolidation of the corporation with any of
its Subsidiaries or any other transaction (whether or not with or into or otherwise involving any
Interested Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or convertible securities of
the corporation or any Subsidiary which is Beneficially Owned (as hereinafter defined) by any
Interested Stockholder or any Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of voting power of all of the then-outstanding shares of the Voting Stock, voting
together as a single class. Such affirmative vote shall be required notwithstanding any other
provisions of this Certificate of Incorporation or any provision of law or of any agreement with
any national securities exchange or otherwise which might otherwise permit a lesser vote or no
vote.
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(2) The term Business Combination as used in this Article VIII shall mean any transaction
which is referred to in any one or more of subparagraphs (i) through (v) of paragraph (1) of this
Section A.
B. The provisions of Section A of this Article VIII shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such affirmative vote as is
required by law, any other provision of this Certificate of Incorporation and any Preferred Stock
Designation, if, in the case of a Business Combination that does not involve any cash or other
consideration being received by the stockholders of the corporation, solely in their respective
capacities as stockholders of the corporation, the condition specified in the following paragraph
(1) is met, or, in the case of any other Business Combination, the conditions specified in either
of the following paragraph (1) or paragraph (2) are met:
(1) The Business Combination shall have been approved by a majority of the Continuing
Directors (as hereinafter defined); provided however, that this condition shall not be capable of
satisfaction unless there are at least two Continuing Directors.
(2) All of the following conditions shall have been met:
(i) The consideration to be received by holders of shares of a particular class (or series) of
outstanding Voting Stock (including Common Stock and other than Excluded Preferred Stock (as
hereinafter defined)) shall be in cash or in the same form as the Interested Stockholder or any of
its Affiliates has previously paid for shares of such class (or series) of Voting Stock. If the
Interested Stockholder or any of its Affiliates have paid for shares of any class (or series) of
Voting Stock with varying forms of consideration, the form of consideration to be received per
share by holders of shares of such class (or series) of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such class (or series) of Voting Stock
previously acquired by the Interested Stockholder.
(ii) The aggregate amount of (x) the cash and (y) the Fair Market Value, as of the date (the
Consummation Date) of the consummation of the Business Combination, of the consideration other
than cash to be received per share by holders of Common Stock in such Business Combination shall be
at least equal to the higher of the following (in each case appropriately adjusted in the event of
any stock dividend, stock split, combination of shares or similar event):
(a) (if applicable) the highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers fees) paid by the Interested Stockholder or any of its Affiliates for
any shares of Common Stock acquired by them within the two-year period immediately prior to the
date of the first public announcement of the proposal of the Business Combination (the
Announcement Date) or in any transaction in which the Interested Stockholder became an Interested
Stockholder, whichever is higher, plus interest compounded annually from the first date on which
the Interested Stockholder became an Interested Stockholder (the Determination Date) through the
Consummation Date at the publicly announced reference rate of interest of Bank of America, N.T. &
S.A. (or such other major bank headquartered in the State of California as may be selected by the
Continuing Directors) from time to time in effect in the City of San Francisco less the aggregate
amount of
5
any cash dividends paid, and the Fair Market Value of any dividends paid in other than cash,
on each share of Common Stock from the Determination Date through the Consummation Date in an
amount up to but not exceeding the amount of interest so payable per share of Common Stock; and
(b) the Fair Market Value per share of Common Stock on the Announcement Date or the
Determination Date, whichever is higher.
(iii) The aggregate amount of (x) the cash and (y) the Fair Market Value, as of the
Consummation Date, of the consideration other than cash to be received per share by holders of
shares of any class (or series), other than Stock or Excluded Preferred Stock, of outstanding
Voting Stock shall be at least equal to the highest of the following (in each case appropriately
adjusted in the event of any stock dividend, stock split, combination of shares or similar event),
it being intended that the requirements of this paragraph (2)(iii) shall be required to be met with
respect to every such class (or series) of outstanding Voting Stock whether or not the Interested
Stockholder or any of its Affiliates has previously acquired any shares of a particular class (or
series) of Voting Stock):
(a) (if applicable) the highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers fees) paid by the Interested Stockholder or any of its Affiliates for
any shares of such class (or series) of Voting Stock acquired by them within the two-year period
immediately prior to the Announcement Date or in any transaction in which it became an Interested
Stockholder, whichever is higher, plus interest compounded annually from the Determination Date
through the Consummation Date at the publicly announced reference rate of interest of Bank of
America, N.T. & S.A. (or such other major bank headquartered in the State of California as may be
selected by the Continuing Directors) from time to time in effect in the City of San Francisco less
the aggregate amount of any cash dividends paid, and the Fair Market Value of any dividends paid in
other than cash, on each share of such class (or series) of Voting Stock from the Determination
Date through the Consummation Date in an amount up to but not exceeding the amount of interest so
payable per share of such class (or series) of Voting Stock;
(b) the Fair Market Value per share of such class (or series) of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher; and
(c) the highest preferential amount per share, if any, to which the holders of shares of such
class (or series) of Voting Stock would be entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the corporation.
(iv) After such Interested Stockholder has become an Interested Stockholder and prior to the
consummation of such Business Combination; (a) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on any outstanding Preferred Stock; (b) there
shall have been (I) no reduction in the annual rate of dividends paid on the Common Stock (except
as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of
the Continuing Directors, and (II) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including
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any reverse stock split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure
so to increase such annual rate is approved by a majority of the Continuing Directors; and (c)
neither such Interested Stockholder nor any of its Affiliates shall have become the beneficial
owner of any additional shares of Voting Stock except as part of the transaction which results in
such Interested Stockholder becoming an Interested Stockholder; provided, however, that no approval
by Continuing Directors shall satisfy the requirements of this subparagraph (iv) unless at the time
of such approval there are at least two Continuing Directors.
(v) After such Interested Stockholder has become an Interested Stockholder, such Interested
Stockholder and any of its Affiliates shall not have received the benefit, directly or indirectly
(except proportionately, solely in such Interested Stockholders or Affiliates capacity as a
stockholder of the corporation), of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by the corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to all stockholders of the corporation at least 30 days prior to the consummation
of such Business Combination (whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
(vii) Such Interested Stockholder shall have supplied the corporation with such information as
shall have been requested pursuant to Section E of this Article VIII within the time period set
forth therein.
C. For the purposes of this Article VIII:
(1) A person means any individual, limited partnership, general partnership, corporation or
other firm or entity.
(2) Interested Stockholder means any person (other than the corporation or any Subsidiary)
who or which:
(i) is the Beneficial Owner (as hereinafter defined), directly or indirectly, of fifteen
percent (15%) or more of the voting power of all of the then-outstanding shares of the Voting
Stock; or
(ii) if an Affiliate of the corporation and at any time within the two-year period immediately
prior to the date in question was the Beneficial Owner, directly or indirectly, of fifteen percent
(15%) or more of the voting power of all of the then-outstanding shares of the Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of Voting Stock which were at
any time within the two-year period immediately prior to the date in
7
question beneficially owned by an Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series of transactions not involving a public
offering within the meaning of the 1933 Act.
(3) A person shall be a Beneficial Owner of, or shall Beneficially Own, any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as in effect on the adoption date of this Certificate of Incorporation; or
(ii) which such person or any of its Affiliates or Associates has (a) the right to acquire
(whether such right is exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any agreement, arrangement
or understanding (but shall not be deemed to be the Beneficial Owner of any shares of Voting Stock
solely by reason of a revocable proxy granted for a particular meeting of stockholders, pursuant to
a public solicitation of proxies for such meeting, and with respect to which shares neither such
person nor any such Affiliate or Associate is otherwise deemed the Beneficial Owner); or
(iii) which is beneficially owned, directly or indirectly, within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as in effect on the adoption date of this Certificate of
Incorporation, by any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting
(other than solely by reason of a revocable proxy as described in subparagraph (ii) of this
paragraph (3) or disposing of any shares of Voting Stock; provided, however, that in case of any
employee stock ownership or similar plan of the corporation or of any Subsidiary in which the
beneficiaries thereof possess the right to vote any shares of Voting Stock held by such plan, no
such plan nor any trustee with respect thereto (nor any Affiliate of such trustee), solely by
reason of such capacity of such trustee, shall be deemed, for any purposes hereof, to beneficially
own any shares of Voting Stock held under any such plan.
(4) For the purposes of determining whether a person is an Interested Stockholder pursuant to
paragraph (2) of this Section C, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of paragraph (3) of this Section C but shall
not include any other unissued snares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(5) Affiliate or Associate shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the adoption date of this Certificate of Incorporation.
(6) Subsidiary means any corporation of which a majority of any class of equity security is
owned, directly or indirectly, by the corporation; provided, however, that for
8
the purposes of the definition of Interested Stockholder set forth in paragraph (2) of this
Section C, the term Subsidiary shall mean only a corporation of which a majority of each class of
equity security is owned directly or indirectly, by the corporation.
(7) Continuing Director means any member of the Board of Directors of the corporation who is
unaffiliated with the Interested Stockholder and was a member of the Board of Directors prior to
the time that the Interested Stockholder became an Interested Stockholder and any director who is
thereafter chosen to fill any vacancy on the Board of Directors or who is elected and who, in
either event, is unaffiliated with the Interested Stockholder and in connection with his or her
initial assumption of office is recommended for an appointment or election by a majority of
Continuing Directors then on the Board.
(8) Fair Market Value means: (i) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such stock is not listed on such Exchange,
on the principal United States securities exchange registered under the Securities Exchange Act of
1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the
highest closing sale price quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined by the Board in
accordance with Section D of this Article VIII; and (ii) in the case of property other than cash or
stock, the fair market value of such property on the date in question as determined by the Board in
accordance with Section D of this Article VIII.
(9) In the event of any Business Combination in which the corporation survives, the phrase
consideration other than cash to be received as used in paragraphs (2)(ii) and (2)(iii) of
Section B of this Article VIII shall include the shares of Common Stock and/or the shares of any
other class (or series) of outstanding Voting Stock retained by the holders of such shares.
(10) Whole Board means the total number of directors which this corporation would have if
there were no vacancies.
(11) Excluded Preferred Stock means any series of Preferred Stock with respect to which the
Preferred Stock Designation creating such series expressly provides that the provisions of this
Article VIII shall not apply.
D. A majority of the Whole Board but only if a majority of the Whole Board shall then consist
of Continuing Directors or, if a majority of the Whole Board shall not then consist of Continuing
Directors, a majority of the then Continuing Directors, shall have the power and duty to determine,
on the basis of information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article VIII, including, without limitation, (i) whether a person is
an Interested Stockholder, (ii) the number of shares of Voting Stock beneficially owned by any
person, (iii) whether a person is an Affiliate or Associate of another, (iv) whether the applicable
conditions set forth in paragraph (2) of Section B have been met with
9
respect to any Business Combination, (v) the Fair Market Value of stock or other property in
accordance with paragraph (8) of Section C of this Article VIII, and (vi) whether the assets which
are the subject of any Business Combination referred to in paragraph (l)(ii) of Section A have or
the consideration to be received for the issuance or transfer of securities by the corporation or
any Subsidiary in any Business Combination referred to in paragraph (l)(iii) of Section A has, an
aggregate Fair Market Value equal to or greater than 15% of the Corporations assets as set forth
on the Corporations most recent audited consolidated financial statements.
E. A majority of the Whole Board shall have the right to demand, but only if a majority of the
Whole Board shall then consist of Continuing Directors, or, if a majority of the Whole Board shall
not then consist of Continuing Directors, a majority of the then Continuing Directors shall have
the right to demand, that any person who it is reasonably believed is an Interested Stockholder (or
holds of record shares of Voting Stock Beneficially Owned by any Interested Stockholder) supply
this corporation with complete information as to (i) the record owner(s) of all shares Beneficially
Owned by such person who it is reasonably believed is an Interested Stockholder, (ii) the number
of, and class or series of, shares Beneficially Owned by such person who it is reasonably believed
is an Interested Stockholder and held of record by each such record owner and the number(s) of the
stock certificate(s) evidencing such shares, and (iii) any other factual matter relating to the
applicability of effect of this Article VIII, as may be reasonably requested of such person, and
such person shall furnish such information within 10 days after receipt of such demand.
F. Nothing contained in this Article VIII shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
IX.
Notwithstanding any other provisions of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote
of the holders of any particular class or series of the Voting Stock required by law, this
Certificate of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal Article VI, Article VII, Article VIII or this Article IX.
X.
The corporation is to have perpetual existence.
XI.
The corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, except
as provided in Article IX of this Certificate, and all rights conferred upon the stockholders
herein are granted subject to this right.
10
ATTACHMENT 1
Resolutions of the Board of Directors
of QUALCOMM Incorporated
Creating the Designations, Powers, Preferences and Rights
of the Series A Junior Participating Preferred Stock
of QUALCOMM Incorporated
Creating the Designations, Powers, Preferences and Rights
of the Series A Junior Participating Preferred Stock
RESOLVED, that, pursuant to the authority granted to and vested in the Board of Directors of
the Corporation in accordance with the provisions of its Restated Certificate of Incorporation, the
designation and terms of the Series A Junior Participating Preferred Stock of the Corporation
established pursuant to the Certificate of Designation of Series A Junior Participating Preferred
Stock, filed with the Delaware Secretary of State on October 17, 1995 and incorporated into
Attachment 1 to the Corporations Restated Certificate of Incorporation filed with the Delaware
Secretary of State March 10, 2005, shall be amended in their entirety to read as follows:
Series A Junior Participating Preferred Stock:
SECTION 1: DESIGNATION AND AMOUNT. Four Million (4,000,000) shares of Preferred Stock, $.0001
par value, are designated Series A Junior Participating Preferred Stock with the designations and
the powers, preferences and rights, and the qualifications, limitations and restrictions specified
herein (the Junior Preferred Stock). Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares
of Junior Preferred Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants
or upon the conversion of any outstanding securities issued by the Corporation convertible into
Junior Preferred Stock.
SECTION 2: DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Junior Preferred Stock with respect to
dividends, the holders of shares of Junior Preferred Stock, in preference to the holders of Common
Stock, par value $.0001 per share (the Common Stock), of the Corporation and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on the first day of
April, July, October and January in each year (each such date being referred to herein as a
Quarterly Dividend Payment Date), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Junior Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise) declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of Junior Preferred
Stock. In the event the Corporation shall at any time after September 26, 2005 (the Designation
Date) declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the amount to which
holders of shares of Junior Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Junior Preferred Stock as
provided in paragraph (A) of this Section immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the Junior Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Junior
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Junior Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Junior Preferred Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Junior Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more than 60 days prior
to the date fixed for the payment thereof.
SECTION 3: VOTING RIGHTS. The holders of shares of Junior Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Junior
Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the Corporation shall at any time after the
Designation Date declare or pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common
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Stock, then in each such case the number of votes per share to which holders of shares of
Junior Preferred Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of Designation creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Junior
Preferred Stock and the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders of Junior Preferred
Stock shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
SECTION 4: CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Junior
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior
Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except dividends paid ratably on the Junior Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior
Preferred stock, provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the
Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Junior Preferred
Stock, or any shares of stock ranking on a parity with the Junior Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
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(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
SECTION 5: REACQUIRED SHARES. Any shares of Junior Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may by reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the Restated
Certificate of Incorporation, or in any other Certificate of Designation creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
SECTION 6: LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation, dissolution or
winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Junior Preferred stock unless, prior thereto, the holders of shares of Junior Preferred Stock shall
have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Junior Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Junior Preferred Stock, except distributions made ratably on
the Junior Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time after the Designation Date declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of shares of Junior
Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
SECTION 7: CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Junior Preferred stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time after the Designation Date
declare or pay any dividend on the Common Stock
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payable in shares of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Junior Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8: NO REDEMPTION. The shares of Junior Preferred Stock shall not be redeemable.
SECTION 9: RANK. The Junior Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other class of the
Corporations Preferred Stock.
SECTION 10: AMENDMENT. The Restated Certificate of Incorporation of the Corporation shall not
be amended in any manner which would materially alter or change the powers, preferences or special
rights of the Junior Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Junior Preferred Stock, voting
together as a single class.
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