Attached files
file | filename |
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10-K - FORM 10-K - OCLARO, INC. | f56758e10vk.htm |
EX-31.2 - EX-31.2 - OCLARO, INC. | f56758exv31w2.htm |
EX-10.9 - EX-10.9 - OCLARO, INC. | f56758exv10w9.htm |
EX-21.1 - EX-21.1 - OCLARO, INC. | f56758exv21w1.htm |
EX-23.1 - EX-23.1 - OCLARO, INC. | f56758exv23w1.htm |
EX-31.1 - EX-31.1 - OCLARO, INC. | f56758exv31w1.htm |
EX-32.2 - EX-32.2 - OCLARO, INC. | f56758exv32w2.htm |
EX-10.6 - EX-10.6 - OCLARO, INC. | f56758exv10w6.htm |
EX-10.7 - EX-10.7 - OCLARO, INC. | f56758exv10w7.htm |
EX-32.1 - EX-32.1 - OCLARO, INC. | f56758exv32w1.htm |
EX-10.11 - EX-10.11 - OCLARO, INC. | f56758exv10w11.htm |
EX-10.10 - EX-10.10 - OCLARO, INC. | f56758exv10w10.htm |
Exhibit 3.2
RESTATED CERTIFICATE OF INCORPORATION OF OCLARO, INC.
FIRST: The name of the Corporation is Oclaro, Inc.
SECOND: The address of the Corporations registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have
authority to issue is 91,000,000 shares, consisting of (i) 90,000,000 shares of Common Stock, $0.01
par value per share (Common Stock), and (ii) 1,000,000 shares of Preferred Stock, $0.01 par value
per share (Preferred Stock). Effective as of 6:00 p.m., Eastern time, on April 29, 2010 (the
Effective Time), each five (5) shares of the Corporations Common Stock, par value $0.01 per
share, issued and outstanding immediately prior to the Effective Time (Old Common Stock) shall,
automatically and without any action on the part of the respective holders thereof, be combined and
reclassified into one (1) share of Common Stock, par value $0.01 per share, of the Corporation
(New Common Stock). Notwithstanding the immediately preceding sentence, no fractional shares of
New Common Stock shall be issued and, in lieu thereof, upon receipt after the Effective Time by the
exchange agent selected by the Corporation of a properly completed and duly executed transmittal
letter and, where shares are held in certificated form, the surrender of the stock certificate(s)
formerly representing shares of Old Common Stock, any stockholder who would otherwise be entitled
to a fractional share of New Common Stock as a result of the foregoing combination and
reclassification of the Old Common Stock (such combination and reclassification, the Reverse Stock
Split), following the Effective Time (after taking into account all fractional shares of New
Common Stock otherwise issuable to such stockholder), shall be entitled to receive a cash payment
(without interest) equal to the fractional share of New Common Stock to which such stockholder
would otherwise be entitled multiplied by the closing sales price (as adjusted to give effect to
the Reverse Stock Split) of a share of the Corporations Common Stock on the NASDAQ Global Market
(or, if the Corporations Common Stock is not then listed on the NASDAQ Global Market, any other
national securities exchange, market or trading or quotation facility on which the Corporations
Common Stock is then listed or quoted) on April 29, 2010. Each stock certificate that, immediately
prior to the Effective Time, represented shares of Old Common Stock shall, from and after the
Effective Time, automatically and without any action on the part of the respective holders thereof,
represent that number of whole shares of New Common Stock into which the shares of Old Common Stock
represented by such certificate shall have been combined and reclassified (as well as the right to
receive cash in lieu of any fractional shares of New Common Stock as set forth above); provided,
however, that each holder of record of a certificate that represented shares of Old Common Stock
shall receive, upon surrender of such certificate, a new certificate representing the number of
whole shares of New Common Stock into which the shares of Old Common Stock represented by such
certificate shall have been combined and reclassified, as well as any cash in lieu of fractional
shares of New Common Stock to which such holder may be entitled as set forth above.
The following is a statement of the designations and the powers, privileges and rights, and
the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation.
A COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any
series as may be designated by the Board of Directors upon any issuance of the Preferred Stock of
any series.
2. Voting. The holders of the Common Stock shall have voting rights at all meetings of
stockholders, each such holder being entitled to one vote for each share thereof held by such
holder; provided, however, that, except as otherwise required by law, holders of
Common Stock shall not be entitled to vote on any amendment to this
Certificate of Incorporation
(which, as used herein, shall mean the certificate of incorporation of the Corporation, as amended
from time to time, including the terms of any certificate of designations of any series of
Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either separately or together as a class
with the holders of one or more other such series, to vote thereon pursuant to this Certificate of
Incorporation. There shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of the State of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock from funds
lawfully available therefor as and when determined by the Board of Directors and subject to any
preferential dividend or other rights of any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation, whether
voluntary or involuntary, holders of Common Stock will be entitled to receive all assets of the
Corporation available for distribution to its stockholders, subject to any preferential or other
rights of any then outstanding Preferred Stock.
B PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such series to
have such terms as stated or expressed herein and in the resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the Corporation as hereinafter
provided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law.
Authority is hereby expressly granted to the Board of Directors from time to time to issue the
Preferred Stock in one or more series, and in connection with the creation of any such series, by
resolution or resolutions providing for the issuance of the shares thereof, to determine and fix
the number of shares of such series and such voting powers, full or limited, or no voting powers,
and such designations, preferences and relative participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, including without limitation thereof,
dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be
stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the
General Corporation Law of the State of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may provide that such
series shall be superior or rank equally or be junior to the Preferred Stock of any other series to
the extent permitted by law.
The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of the State of Delaware.
FIFTH: Except as otherwise provided herein, 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 and this Certificate of Incorporation, and all rights
conferred upon stockholders herein are granted subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the
State of Delaware, and subject to the terms of any series of Preferred Stock, the Board of
Directors shall have the power to adopt, amend, alter or repeal the Corporations By-laws. The
affirmative vote of a majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present shall be required to adopt, amend, alter or repeal
the Corporations By-laws. The Corporations By-laws also may be adopted, amended, altered or
repealed by the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the
stockholders would be entitled to cast in any annual election of directors or class
of directors, in addition to any other vote required by this Certificate of Incorporation.
Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-Laws of
the Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast in any annual election of directors or class of directors
shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article
SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of the State of Delaware
prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty,
no director of the Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision
of law imposing such liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such amendment or repeal.
EIGHTH: The Corporation shall provide indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in the Right of the Corporation.
The Corporation shall indemnify each person who was or is a party or threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer, partner, employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) (all such persons being referred to hereafter as an Indemnitee), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom,
if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his or her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to have been taken or
omitted in such capacity, against all expenses (including attorneys fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no indemnification shall be made
under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court of
Chancery of Delaware shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses (including attorneys fees) which the Court of Chancery of
Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding any other
provisions of this Article, to the extent that an Indemnitee has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this
Article EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys fees) actually and reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on the
merits or otherwise (including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation, (iii) a
plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee did
not act in good faith and in a manner he reasonably believed to be in
or not opposed to the
best
interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication
that Indemnitee had reasonable cause to believe his conduct was unlawful, Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect thereto.
4. Notification and Defense of Claim. As a condition precedent to an Indemnitees
right to be indemnified, such Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving such Indemnitee for which
indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of
which the Corporation is so notified, the Corporation will be entitled to participate therein at
its own expense and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to Indemnitee for any legal
or other expenses subsequently incurred by Indemnitee in connection with such action, suit,
proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall have
the right to employ his or her own counsel in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel to
Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and Indemnitee in the conduct of the defense of such
action, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding or investigation, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent of Indemnitee, to assume the
defense of any claim brought by or in the right of the Corporation or as to which counsel for
Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. The
Corporation shall not be required to indemnify Indemnitee under this Article EIGHTH for any amounts
paid in settlement of any action, suit, proceeding or investigation effected without its written
consent. The Corporation shall not settle any action, suit, proceeding or investigation in any
manner which would impose any penalty or limitation on Indemnitee without Indemnitees written
consent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay its consent to
any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this Article EIGHTH,
in the event that the Corporation does not assume the defense pursuant to Section 4 of this Article
EIGHTH of any action, suit, proceeding or investigation of which the Corporation receives notice
under this Article, any expenses (including attorneys fees) incurred by or on behalf of Indemnitee
in defending an action, suit, proceeding or investigation or any appeal therefrom shall be paid by
the Corporation in advance of the final disposition of such matter; provided,
however, that the payment of such expenses incurred by or on behalf of Indemnitee in
advance of the final disposition of such matter shall be made only upon receipt of an undertaking
by or on behalf of Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Article; and further provided that no such advancement of expenses shall be made
under this Article EIGHTH if it is determined (in the manner described in Section 6) that (i)
Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, or (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe his conduct was unlawful. Such undertaking
shall be accepted without reference to the financial ability of Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or advancement of
expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH, an Indemnitee shall submit to the
Corporation a written request. Any such advancement of expenses shall be made promptly, and in any
event within 30 days after receipt by the Corporation of the written request of Indemnitee, unless
the Corporation determines within such 30-day period that Indemnitee did not meet the applicable
standard of conduct set forth in Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Any
such indemnification, unless ordered by a court, shall be made with respect to requests under
Section 1 or 2 only as authorized in the specific case upon a determination by the Corporation that
the indemnification of Indemnitee is proper because Indemnitee has met the applicable standard of
conduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in each
instance (a) by a majority vote of the directors of the Corporation consisting of persons who are
not at that time parties to the action, suit or proceeding in question (disinterested directors),
whether or not a quorum, (b) by a committee of disinterested directors designated by majority vote
of disinterested directors, whether or not a quorum, (c) if there are no disinterested
directors,
or if the disinterested directors so direct, by independent legal counsel (who may, to the extent
permitted by law, be regular legal counsel to the Corporation) in a written opinion, or (d) by the
stockholders of the Corporation.
7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article shall be enforceable by Indemnitee in any court of competent jurisdiction. Neither the
failure of the Corporation to have made a determination prior to the commencement of such action
that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation pursuant to Section 6 of this
Article EIGHTH that Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable standard of
conduct. Indemnitees expenses (including attorneys fees) reasonably incurred in connection with
successfully establishing Indemnitees right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
8. Limitations. Notwithstanding anything to the contrary in this Article, except as
set forth in Section 7 of the Article EIGHTH, the Corporation shall not indemnify an Indemnitee
pursuant to this Article EIGHTH in connection with a proceeding (or part thereof) initiated by such
Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation.
Notwithstanding anything to the contrary in this Article, the Corporation shall not indemnify an
Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in the
event the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee is
subsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refund
indemnification payments to the Corporation to the extent of such insurance reimbursement.
9. Subsequent Amendment. No amendment, termination or repeal of this Article or of the
relevant provisions of the General Corporation Law of the State of Delaware or any other applicable
laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the
provisions hereof with respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
10. Other Rights. The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common or statutory),
agreement or vote of stockholders or disinterested directors or otherwise, both as to action in
Indemnitees official capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of Indemnitee.
Nothing contained in this Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing indemnification rights
and procedures different from those set forth in this Article. In addition, the Corporation may, to
the extent authorized from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this Article.
11. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article to indemnification by the Corporation for some or a portion of the expenses (including
attorneys fees), judgments, fines or amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such expenses (including attorneys fees),
judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation Law of the State of Delaware.
13. Savings Clause. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
each Indemnitee as to any expenses (including attorneys fees), judgments, fines and amounts paid
in settlement in connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i) of
the General Corporation Law of the State of Delaware shall have the respective meanings assigned to
such terms in such Section 145(h) and Section 145(i).
NINTH: This Article is inserted for the management of the business and for the conduct of the
affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
2. Number of Directors; Election of Directors. Subject to the rights of holders of any
series of Preferred Stock to elect directors, the number of directors of the Corporation shall be
established by the Board of Directors. Election of directors need not be by written ballot, except
as and to the extent provided in the By-laws of the Corporation.
3. Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes: Class
I, Class II and Class III.
4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock
to elect directors, each director shall serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected; provided, that each
director initially appointed to Class I shall serve for a term expiring at the Corporations annual
meeting of stockholders held in 2005; each director initially appointed to Class II shall serve for
a term expiring at the Corporations annual meeting of stockholders held in 2006; and each director
initially appointed to Class III shall serve for a term expiring at the Corporations annual
meeting of stockholders held in 2007; provided further, that the term of each director shall
continue until the election and qualification of his successor and be subject to his earlier death,
resignation or removal.
5. Quorum. The greater of (a) a majority of the directors at any time in office and
(b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shall
constitute a quorum. If at any meeting of the Board of Directors there shall be less
than such a quorum, a majority of the directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting, until a quorum shall be present.
6. Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be regarded as the act
of the Board of Directors unless a greater number is required by law or by this Certificate of
Incorporation.
7. Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the Corporation may be removed only for cause and only by the affirmative vote of the
holders of at least seventy-five percent (75%) of the votes which all the stockholders would be
entitled to cast in any annual election of directors or class of directors.
8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancy or newly created directorships in the Board of Directors, however occurring, shall be
filled only by vote of a majority of the directors then in office, although less than a quorum, or
by a sole remaining director and shall not be filled by the stockholders. A director elected to
fill a vacancy shall hold office until the next election of the class for which such director shall
have been chosen, subject to the election and qualification of a successor and to such directors
earlier death, resignation or removal.
9. Stockholder Nominations and Introduction of Business, Etc. Advance notice of
stockholder nominations for election of directors and other business to be brought by stockholders
before a meeting of stockholders shall be given in the manner provided by the By-laws of the
Corporation.
10. Amendments to Article. Notwithstanding any other provisions of law, this
Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article NINTH.
TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provisions of law, this Certificate of Incorporation or the
By-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast in any annual election of directors or class
of directors shall be required to amend or repeal, or to adopt any provision inconsistent with,
this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, the Chairman of the Board or the Chief Executive Officer, but such
special meetings may not be called by any other person or persons. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting. Notwithstanding any other provision of law, this Certificate of
Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast in any annual
election of directors or class of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article ELEVENTH.
TWELFTH: Section 203 of the General Corporation Law of the State of Delaware, as it may be
amended from time to time, shall not apply to the Corporation.