Attached files
file | filename |
---|---|
EX-3.1 - EX-3.1 - McAfee, Inc. | d80032exv3w1.htm |
8-K - FORM 8-K - McAfee, Inc. | d80032e8vk.htm |
Exhibit 3.2
MCAFEE, INC.
FIFTH AMENDED AND RESTATED BYLAWS
ARTICLE I
Offices
Section 1. The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places both within and
without the State of Delaware as the board of directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. All meetings of the stockholders for the election of directors
shall be held in the City of Santa Clara, State of California, at such place as may be fixed from
time to time by the board of directors, or at such other place either within or without the State
of Delaware as shall be designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 2010, shall be
held on the first Tuesday of June, if not a legal holiday, and if a legal holiday, then on the next
business day following, at 10:30 A.M., or at such other date and time as shall be designated from
time to time by the board of directors and stated in the notice of the meeting, at which they shall
elect by a plurality vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote at such meeting not less than 10
nor more than 60 days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten 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 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
1
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute or by the certificate of incorporation, may be called by the
president and shall be called by the president or secretary at the request in writing of a majority
of the board of directors, or at the request in writing of stockholders owning a majority in amount
of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called, shall be given not less
than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to vote thereat, 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, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as originally notified.
If the adjournment is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. 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 certificate of incorporation a different vote is required, in
which case such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the 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, but no
proxy shall be voted on after three years from its date, unless the proxy provides for a longer
period.
Section 11. Unless otherwise provided in the certificate of incorporation, any action
required to be taken at any annual or special meeting of stockholders of the corporation, or any
action which may be taken at any annual or special meeting of such
2
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
Directors
Section 1. The number of directors which shall constitute the whole board shall not
be less than one (1) nor more than five (5). Within the limits specified, the number of directors
shall be determined by resolution of the board of directors or by the stockholders at the annual
meeting or at special meeting.
Section 2. Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of filling any vacancy or
any newly created directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the Court of Chancery
may, upon application of any stockholder or stockholders holding at least ten percent of the total
number of the shares at the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
Section 3. The business of the corporation shall be managed by or under the direction
of its board of directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
Meetings of the Board of Directors
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall be held
at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and
no notice of such meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the
3
time and place so fixed by the stockholders, the meeting may be held at such time and place
as shall be specified in a notice given as hereinafter provided for special meetings of the board
of directors, or as shall be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by the board.
Section 7. Special meetings of the board may be called by the chairman of the board
on one days notice to each director, either personally or by mail or by facsimile communication;
special meetings shall be called by the chairman of the board or secretary in like manner and on
like notice on the written request of two directors unless the board consists of only one director;
in which case special meetings shall be called by the president or secretary in like manner and on
like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors 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 of directors, except as may be
otherwise specifically provided by statute or by the certificate of incorporation. If a quorum
shall not be present at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the board of directors 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. Such filing shall be in paper form if the minutes are
maintained in paper form or shall be in electronic form if the minutes are maintained in electronic
form.
Section 10. Unless otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors, or any committee designated by the board of directors,
may participate in a meeting of the board of directors, or any committee, 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.
Committees of Directors
Section 11. The board of directors may 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,
4
whether or not he or they constitute a
quorum, may unanimously appoint another member of the board of directors to act at the meeting in
the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the board of directors, shall
have and may exercise all the powers and authority of the board of directors in the management of
the business and affairs of the corporation; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the General Corporation Law of Delaware to
be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the
corporation. Such committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required. Such filing shall be in paper form if the minutes
are maintained in paper form or shall be in electronic form if the minutes are maintained in
electronic form.
Compensation of Directors
Section 13. Unless otherwise restricted by the certificate of incorporation
or these bylaws, the board of directors 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 of directors and may be paid a fixed sum for attendance at each meeting of the board of
directors 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. Members of special or
standing committees may be allowed like compensation for attending committee meetings.
Removal of Directors
Section 14. Unless otherwise restricted by the certificate of incorporation
or by law, any director or the entire board of directors may be removed, with or without cause, by
the holders of a majority of shares entitled to vote at an election of directors.
ARTICLE IV
Notices
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, 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 or by a form of electronic transmission consented to by the stockholder or
director to whom the notice is given, except to the extent prohibited by Section 232(e) of the
Delaware General Corporation Law, addressed to such director or stockholder, at his address, or
electronic mail address, as it appears on the records of the corporation, with postage thereon
prepaid if applicable, and such notice shall be deemed to be given at the time when the same shall be deposited in the
United States mail or sent by a form of electronic transmission.
5
Section 2. Whenever any notice is required to be given under the provisions of the
statutes or of the certificate of incorporation or of these bylaws, 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.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a secretary and a treasurer. The board of directors may also
choose a chairman of the board (who shall be a member of the board of directors), one or more
vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation or these bylaws
otherwise provide.
Section 2. The board of directors at its first meeting after each annual meeting of
stockholders shall choose a president, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and agents as it
shall deem necessary who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall be fixed
by the board of directors.
Section 5. The officers of the corporation shall hold office until their successors
are chosen and qualify. Any officer elected or appointed by the board of directors may be removed
at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors.
Chairman of the Board
Section 6. The chairman of the board (if there be such an officer
appointed) shall preside at all meetings of the stockholders and the board of directors. The
chairman of the board shall perform such other duties and have such other powers as the board of
directors shall designate from time to time.
The President
Section 7. The president shall preside at all meetings of the stockholders
and the board of directors unless the chairman of the board has been appointed and is present,
shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect.
6
The Vice-Presidents
Section 8. In the absence of the president or in the event of his inability
or refusal to act, the vice-president (or in the event there be more than one vice-president, the
vice-presidents in the order designated by the directors, or in the absence of any designation,
then in the order of their election) shall perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as the board of
directors or the president may from time to time prescribe.
The Secretary and Assistant Secretaries
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of the meetings of
the corporation and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of directors or president,
under whose supervision he shall be.
Section 10. The assistant secretaries shall assist the secretary with his duties and
shall, in the absence of the secretary or in the event of his 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 the board of directors may from time to time prescribe.
The Treasurer and Assistant Treasurers
Section 11. The treasurer 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 of
directors.
Section 12. He shall disburse the funds of the corporation as may be ordered by the
board of directors, taking proper vouchers for such disbursements, and shall render to the
president and the board of directors, at its regular meetings, or when the board of directors so
requires, an account of all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the corporation a
bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall
be satisfactory to the board of directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the corporation.
Section 14. The assistant treasurers shall assist the treasurer in his duties and
shall, in the absence of the treasurer or in the event of his inability or refusal to act,
7
perform the duties and exercise the powers of the treasurer and shall perform such other duties and have
such other powers as the board of directors may from time to time prescribe.
ARTICLE VI
Execution of Contracts and Other Instruments
Section 1. The board of directors may, in its discretion, determine the
method and designate the signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without limitation, except where
otherwise provided by law, and such execution or signature shall be binding upon the corporation.
Unless otherwise specifically determined by the board of directors or otherwise required by
law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and certificates of shares of stock owned by the
corporation, shall be executed, signed or endorsed by the chairman of the board (if there be such
an officer appointed), the president, any vice president, the treasurer, any assistant treasurer,
the secretary or any assistant secretary. All other instruments and documents requiring the
corporate signature may be executed as aforesaid or in such other manner as may be authorized by
the board of directors.
All checks and drafts drawn on banks or other depositaries on funds to the credit of the
corporation, or in special accounts of the corporation, shall be signed by such person or persons
as the board of directors shall authorize to do so.
Voting of Securities Held by the Corporation
Section 2. All stock and other securities of other corporations owned or
held by the corporation for itself, or for other parties in any capacity, shall be voted, and all
proxies with respect thereto shall be executed, by the person authorized so to do by resolution of
the board of directors or, in the absence of such authorization, by the chairman of the board (if
there be such an officer appointed), or by the president or any vice president, or by the treasurer
or any assistant treasurer, or by the secretary or any assistant secretary.
ARTICLE VII
Certificates for Shares
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the
corporation by, the chairman or vice-chairman of the board of directors, 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.
Section 2. Any of or all the signatures on a certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
8
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.
Lost Certificates
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of 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 such issue of a new certificate or certificates or
uncertificated shares, the board of directors may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his 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.
Transfer of Stock
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for 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, 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.
Fixing Record Date
Section 5. 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, or to
express consent to corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the
board of directors may fix a new record date for the adjourned meeting.
Registered Stockholders
Section 6. 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 person
9
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.
ARTICLE VIII
General Provisions
Dividends
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by the board of
directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. 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.
Annual Statement
Section 3. The board of directors shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the stockholders, a full and
clear statement of the business and condition of the corporation.
Checks
Section 4. 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 of
directors may from time to time designate.
Fiscal Year
Section 5. The fiscal year of the corporation shall be fixed by resolution
of the board of directors.
ARTICLE IX
Indemnification
Section 1. Right to Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved (as a party, witness, or otherwise), in
10
any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a Proceeding), by reason of the fact that he, or a
person of whom he is the legal representative, 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 or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans, whether the basis of the
Proceeding is alleged action in an official capacity as a director, officer, employee, or agent or
in any other capacity while serving as a director, officer, employee, or agent (hereafter an
Agent), shall be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended
or interpreted (but, in the case of any such amendment or interpretation, only to the extent that
such amendment or interpretation permits the corporation to provide broader indemnification rights
than were permitted prior thereto) against all expenses, liability, and loss (including attorneys
fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in
settlement, and any interest, assessments, or other charges imposed thereon, and any federal,
state, local, or foreign taxes imposed on any Agent as a result of the actual or deemed receipt of
any payments under this Article) reasonably incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in (including on appeal), or
preparing for any of the foregoing in, any Proceeding (hereinafter Expenses); provided, however,
that except as to actions to enforce indemnification rights pursuant to Section 3 of this Article,
the corporation shall indemnify any Agent seeking indemnification in connection with a Proceeding
(or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized
by the board of directors of the corporation. The right to indemnification conferred in this
Article shall be a contract right.
Section 2. Authority to Advance Expenses. Expenses incurred by an officer or
director (acting in his capacity as such) in defending a Proceeding shall be paid by the
corporation in advance of the final disposition of such Proceeding, provided, however, that if
required by the Delaware General Corporation Law, as amended, such Expenses shall be advanced only
upon delivery to the corporation of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Article or otherwise. Expenses incurred by other Agents of
the corporation (or by the directors or officers not acting in their capacity as such, including
service with respect to employee benefit plans) may be advanced upon such terms and conditions as
the board of directors deems appropriate. Any obligation to reimburse the corporation for Expense
advances shall be unsecured and no interest shall be charged thereon.
Section 3. Right of Claimant to Bring Suit. If a claim under Section 1 or 2
of this Article is not paid in full by the corporation within thirty (30) days after a written claim has been received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense (including attorneys fees) of
prosecuting such claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending a Proceeding in advance of its final disposition
where the required
11
undertaking has been tendered to the corporation) that the claimant has not met
the standards of conduct that make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed. The burden of proving such a
defense shall be on the corporation. Neither the failure of the corporation (including its board
of directors, independent legal counsel, or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper under the
circumstances because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
Section 4. Provisions Nonexclusive. The rights conferred on any person by
this Article shall not be exclusive of any other rights that such person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, 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 any provision
of the Certificate, agreement, or vote of the stockholders or disinterested directors is
inconsistent with these Bylaws, the provision, agreement, or vote shall take precedence.
Section 5. Authority to Insure. The corporation may purchase and maintain
insurance to protect itself and any Agent against any Expense, whether or not the corporation would
have the power to indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
Section 6. Survival of Rights. The rights provided by this Article shall
continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 7. Settlement of Claims. The corporation shall not be liable to
indemnify any Agent under this Article (a) for any amounts paid in settlement of any action or
claim effected without the corporations written consent, which consent shall not be unreasonably
withheld; or (b) for any judicial award if the corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such action.
Section 8. Effect of Amendment. Any amendment, repeal, or modification of
this Article shall not adversely affect any right or protection of any Agent existing at the time
of such amendment, repeal, or modification.
Section 9. Subrogation. In the event of payment under this Article, the
corporation shall be subrogated to the extent of such payment to all of the rights of recovery of
the Agent, who shall execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to enable the corporation
effectively to bring suit to enforce such rights.
12
Section 10. No Duplication of Payments. The corporation shall not be liable
under this Article to make any payment in connection with any claim made against the Agent to the
extent the Agent has otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
ARTICLE X
Amendments
Section 1. These bylaws may be altered, amended or repealed or new bylaws
may be adopted by the stockholders or by the board of directors, when such power is conferred upon
the board of directors by the certificate of incorporation at any regular meeting of the
stockholders or of the board of directors or at any special meeting of the stockholders or of the
board of directors if notice of such alteration, amendment, repeal or adoption of new bylaws be
contained in the notice of such special meeting. If the power to adopt, amend or repeal bylaws is
conferred upon the board of directors by the certificate of incorporation it shall not divest or
limit the power of the stockholders to adopt, amend or repeal bylaws.
ARTICLE XI
Electronic Transmission
When used in these Bylaws, the terms written and in writing shall include any electronic
transmission, as defined in Section 232(c) of the Delaware General Corporation Law, including
without limitation any telegram, cablegram, facsimile transmission and communication by electronic
mail.
13
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of McAfee, Inc., a Delaware corporation;
and
2. That the foregoing bylaws, comprising 13 pages, constitute a true copy of the original
bylaws of said corporation as duly adopted by the Board of Directors thereof.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 28 day of February, 2011.
14