Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - PALM INC | d8k.htm |
| EX-3.2 - BYLAWS - PALM INC | dex32.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PALM, INC.
| FIRST: | The name of the corporation is Palm, Inc. (the “Corporation”). | |
| SECOND: | The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. | |
| THIRD: | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. | |
| FOURTH: | The total number of shares that the Corporation shall have authority to issue is one thousand (1,000), each with a par value of $0.01. The Corporation is authorized to issue one class of stock to be designated as Common Stock. The shares of Common Stock may be issued from time to time for such consideration as the board of directors of the Corporation (the “Board of Directors”) may determine. Each holder of shares of Common Stock shall be entitled to one vote for each share of Common Stock held of record on all matters on which the holders of Common Stock are entitled to vote. | |
| FIFTH: | The Corporation is to have perpetual existence. | |
| SIXTH: | Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Except as otherwise required by law and subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, special meetings of stockholders of the Corporation for any purpose or purposes may be called only by the Board of Directors or by the Chairman of the Board of Directors and any power of stockholders to call a special meeting is specifically denied. No business other than that stated in the notice shall be transacted at any special meeting. | |
| SEVENTH: | For the management of the business and for the conduct of affairs of the Corporation, and in further definition, limitation and regulation of 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 the Board of Directors. The number of directors of this Corporation shall be fixed and may be changed from time to time by resolution of the Board of Directors. | ||
| (b) The directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, one class (which shall be initially comprised of Lester D. Ezrati) to have a term expiring at the annual meeting of stockholders to be held in 2010, another class (which shall be initially comprised of Catherine A. Lesjak) to have a term expiring at the annual meeting of stockholders to be held in 2011, and another class (which shall be initially comprised of Paul T. Porrini) to have a term expiring at the annual meeting of stockholders to be held in 2012, with each class to hold office until its successor is duly elected and qualified. At each succeeding annual meeting of stockholders, directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. | ||
| (c) Notwithstanding the foregoing provisions of this Article Seventh, each director shall serve until his or her successor is duly elected and qualified or until his or her death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. | ||
| (d) Any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other causes unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, and except as otherwise provided by law, shall be filled only 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 and not by the stockholders. | ||
| (e) In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation. | ||
| (f) The directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation so provide. | ||
| (g) Advance notice of stockholder nomination for the election of directors and of any other 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. | ||
| EIGHTH: | To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, no present or former director | |
| of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Neither any amendment nor repeal of this Article, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit, claim or proceeding that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. | ||
| NINTH: | The Corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact such person or his or her testator or intestate is or was a director, officer or employee or agent of the Corporation or any predecessor of the Corporation, or is or was serving at the request of the Corporation or any predecessor of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the fullest extent permitted by law, and the Corporation may adopt bylaws or enter into agreements with any such person for the purpose of providing for such indemnification. Neither any amendment nor repeal of this Article, nor the adoption of any provision of this Amended and Restated Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit, claim or proceeding that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. | |
| TENTH: | The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors then outstanding, voting together as a single class shall be required to alter, amend, adopt any provision inconsistent with or repeal Article Sixth or Seventh or this sentence. | |