Exhibit
4.03


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


(a Delaware corporation)


Adopted August 18, 1999


Effective September 9, 1999


As Amended December 10,
2002


 


 


 

















 


 


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


a Delaware
corporation


TABLE OF CONTENTS


	
   

  	
   

  	
   

  
	
  Article
  I - STOCKHOLDERS

  	
   

  
	
   

  	
   

  
	
  Section 1.1:

  	
  Annual Meetings

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.2:

  	
  Special Meetings

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.3:

  	
  Notice of Meetings

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.4:

  	
  Adjournments

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.5:

  	
  Quorum

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.6:

  	
  Organization

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.7:

  	
  Voting; Proxies

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.8:

  	
  Fixing Date for Determination of Stockholders of
  Record

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.9:

  	
  List of Stockholders Entitled to Vote

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.10:

  	
  Inspectors of Elections

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.11:

  	
  Notice of Stockholder Business; Nominations

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article
  II - BOARD OF DIRECTORS

  	
   

  
	
   

  	
   

  
	
  Section 2.1:

  	
  Number; Qualifications

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.2:

  	
  Election; Resignation; Removal; Vacancies

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.3:

  	
  Regular Meetings

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.4:

  	
  Special Meetings

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.5:

  	
  Telephonic Meetings Permitted

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.6:

  	
  Quorum; Vote Required for Action

  	
  7

  
				



 


 


i

















 


 


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


a Delaware corporation


TABLE OF CONTENTS (cont’d)


 


	
   

  	
   

  	
   

  
	
  Section 2.7:

  	
  Organization

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.8:

  	
  Written Action by Directors

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.9:

  	
  Powers

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.10:

  	
  Compensation of Directors

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article
  III - COMMITTEES

  	
   

  
	
   

  	
   

  
	
  Section 3.1:

  	
  Committees

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.2:

  	
  Committee Rules

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article
  IV - OFFICERS

  	
   

  
	
   

  	
   

  
	
  Section 4.1:

  	
  Generally

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 4.2:

  	
  Chief Executive Officer

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 4.3:

  	
  Chairperson of the Board

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 4.4:

  	
  President

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.5:

  	
  Vice President

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.6:

  	
  Chief Financial Officer

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.7:

  	
  Treasurer

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.8:

  	
  Secretary

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.9:

  	
  Delegation of Authority

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.10:

  	
  Removal

  	
  10

  
	
   

  	
   

  	
   

  



 


 


ii

















 


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


a Delaware corporation


TABLE OF CONTENTS (cont’d)


 


 


	
  Article
  V - STOCK

  	
   

  
	
   

  	
   

  
	
  Section 5.l:

  	
  Certificates

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 5.2:

  	
  Lost, Stolen or Destroyed Stock Certificates; Issuance
  of New Certificate

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 5.3:

  	
  Other Regulations

  	
  11

  
	
   

  	
   

  	
   

  
	
  Article
  VI - INDEMNIFICATION

  	
   

  
	
   

  	
   

  
	
  Section 6.1:

  	
  Indemnification of Officers and Directors

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 6.2:

  	
  Advance of Expenses

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 6.3:

  	
  Non-Exclusivity of Rights

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 6.4:

  	
  Indemnification Contracts

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 6.5:

  	
  Effect of Amendment

  	
  12

  
	
   

  	
   

  	
   

  
	
  Article
  VII - NOTICES

  	
   

  
	
   

  	
   

  
	
  Section 7.l:

  	
  Notice

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 7.2:

  	
  Waiver of Notice

  	
  13

  
	
   

  	
   

  	
   

  
	
  Article
  VIII - INTERESTED DIRECTORS

  	
   

  
	
   

  	
   

  
	
  Section 8.1:

  	
  Interested Directors; Quorum

  	
  13

  
	
   

  	
   

  	
   

  
	
  Article
  IX - MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 9.1:

  	
  Fiscal Year

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 9.2:

  	
  Seal

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 9.3:

  	
  Form of Records

  	
  14

  
	
   

  	
   

  	
   

  



 


 


iii

















 


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


a Delaware corporation


TABLE OF CONTENTS (cont’d)


 


 


	
  Section 9.4:

  	
  Reliance Upon Books and Records

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 9.5:

  	
  Certificate of Incorporation Governs

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 9.6:

  	
  Severability

  	
  14

  
	
   

  	
   

  	
   

  
	
  Article
  X - AMENDMENT

  	
   

  
	
   

  	
   

  
	
  Section 10.1:

  	
  Amendments

  	
  15

  



 


 


 


iv

















 


RESTATED BYLAWS


OF


SILICON IMAGE, INC.


(a Delaware
corporation)


Adopted August 18,
1999


Effective
September 9, 1999


As Amended December 10, 2002


ARTICLE
I


STOCKHOLDERS


Section 1.1:            Annual Meetings.  Unless directors are elected by written
consent in lieu of an annual meeting as permitted by Section 211 of the
Delaware General Corporation Law, an annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as the Board of Directors shall each year
fix.  Any other proper business may be
transacted at the annual meeting.


Section 1.2:            Special Meetings.  Special meetings of stockholders for any
purpose or purposes may be called at any time by the Board of Directors, and
shall be called upon the request of the Chairperson of the Board of Directors,
the Chief Executive Officer, the President, or by a majority of the members of
the Board of Directors.  Special meetings
may not be called by any other person or persons.  If a special meeting of stockholders is called at the request of
any person or persons other than by a majority of the members of the
Board of Directors, then such person or persons shall request such meeting by
delivering a written request to call such meeting to each member of the Board
of Directors, and the Board of Directors shall then determine the time, date
and place of such special meeting, which shall be held not more than one
hundred twenty (120) nor less than thirty-five (35) days after the written
request to call such special meeting was delivered to each member of the Board
of Directors.


Section 1.3:            Notice of Meetings.  Written notice of all meetings of
stockholders shall be given in writing or in electronic transmission in the manner
provided by law (including without limitation, as set forth in Section 7.1 of
these Bylaws) stating the place, date and time of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.  Unless otherwise required by applicable law
or the Certificate of Incorporation of the Corporation, such notice shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting.


Section 1.4:            Adjournments.  Any meeting of stockholders may adjourn from
time to time to reconvene at the same or another place, and notice need not be
given of any such adjourned meeting if the time, date and place thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, then a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at 


 

















 


the meeting.  At the adjourned meeting the Corporation may
transact any business that might have been transacted at the original meeting.


Section 1.5:            Quorum.  At each meeting of stockholders the holders
of a majority of the shares of stock entitled to vote at the meeting, present
in person or represented by proxy, shall constitute a quorum for the
transaction of business, except if otherwise required by applicable law.  If a quorum shall fail to attend any meeting,
the chairperson of the meeting or the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, at the meeting may
adjourn the meeting.  Shares of the
Corporation’s stock belonging to the Corporation (or to another corporation, if
a majority of the shares entitled to vote in the election of directors of such
other corporation are held, directly or indirectly, by the Corporation), shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation
or any other corporation to vote any shares of the Corporation’s stock held by
it in a fiduciary capacity.


Section 1.6:            Organization.  Meetings of stockholders shall be presided
over by such person as the Board of Directors may designate, or, in the absence
of such a person, the Chairperson of the Board of Directors, or, in the absence
of such person, the President of the Corporation, or, in the absence of such
person, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, at the meeting.  Such person shall be chairperson of the
meeting and, subject to Section 1.10 hereof, shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seems to him or her to be in
order.  The Secretary of the Corporation
shall act as secretary of the meeting, but in such person’s absence the chairperson
of the meeting may appoint any person to act as secretary of the meeting.


Section 1.7:            Voting; Proxies.  Unless otherwise provided by law or the
Certificate of Incorporation, and subject to the provisions of Section 1.8 of
these Bylaws, each stockholder shall be entitled to one (1) vote for each share
of stock held by such stockholder.  Each
stockholder entitled to vote at a meeting of stockholders, or to express
consent or dissent to corporate action in writing without a meeting, may
authorize another person or persons to act for such stockholder by proxy.  Such a proxy may be prepared, transmitted
and delivered in any manner permitted by applicable law.  Voting at meetings of stockholders need not
be by written ballot unless such is demanded at the meeting before voting
begins by a stockholder or stockholders holding shares representing at least
one percent (1%) of the votes entitled to vote at such meeting, or by such
stockholder’s or stockholders’ proxy; provided, however, that an
election of directors shall be by written ballot if demand is so made by any
stockholder at the meeting before voting begins.  If a vote is to be taken by written ballot, then each such ballot
shall state the name of the stockholder or proxy voting and such other
information as the chairperson of the meeting deems appropriate and, if
authorized by the Board of Directors, the ballot may be submitted by electronic
transmission in the manner provided by law. 
Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote
on the election of directors.  Unless
otherwise provided by applicable law, the Certificate of Incorporation or these
Bylaws, every matter other than the election of directors shall be decided by
the affirmative vote of the holders of a majority of the shares of stock
entitled to vote thereon that are present in person or represented by proxy at
the meeting and are voted for or against the matter.


 


2

















 


Section 1.8:            Fixing Date for
Determination of Stockholders of Record. 
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 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 precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. 
If no record date is fixed by the Board of Directors, then the record
date shall be as provided by applicable law. 
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.


Section 1.9:            List of
Stockholders Entitled to Vote.  A
complete list of stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each stockholder, shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either on a reasonably accessible electronic network as permitted
by law (provided that the information required to gain access to the list
provided with the notice of the meeting) or at the principal place of business
of the Corporation.  If the meeting is
held at a place, 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 at the meeting. 
If the meeting is held solely by means of remote communication, then the
list shall be open to the examination of any stockholder during the whole time
of the meeting on a reasonably accessible electronic network, and the
information required to access the list, shall be posted with the notice of the
meeting.


Section 1.10:          Inspectors of
Elections.


(a)           Applicability.  Unless otherwise provided in the
Corporation’s Certificate of Incorporation or required by the Delaware General
Corporation Law, the following provisions of this Section 1.10 shall apply only
if and when the Corporation has a class of voting stock that is:  (i) listed on a national securities
exchange; (ii) authorized for quotation on an automated interdealer quotation
system of a registered national securities association; or (iii) held of record
by more than 2,000 stockholders; in all other cases, observance of the
provisions of this Section 1.10 shall be optional, and at the discretion of the
Corporation.


(b)           Appointment.  The Corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. 
The Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act.  If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting.


(c)           Inspector’s
Oath.  Each inspector of election,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector’s ability.


 


3

















 


(d)           Duties
of Inspectors.  At a meeting of
stockholders, the inspectors of election shall (i) ascertain the number of
shares outstanding and the voting power of each share, (ii) determine the
shares represented at a meeting and the validity of proxies and ballots, (iii)
count all votes and ballots, (iv) determine and retain for a reasonable period
of time a record of the disposition of any challenges made to any determination
by the inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots.  The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties
of the inspectors.


(e)           Opening
and Closing of Polls.  The date and
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced by the chairperson of
the meeting.  No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be accepted by the
inspectors after the closing of the polls unless the Court of Chancery upon
application by a stockholder shall determine otherwise.


(f)            Determinations.  In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any information provided
in connection with proxies in accordance with Section 212(c)(2) of the Delaware
General Corporation Law, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent
more votes than the holder of a proxy is authorized by the record owner to cast
or more votes than the stockholder holds of record.  If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their
certification of their determinations pursuant to this Section 1.10 shall
specify the precise information considered by them, including the person or
persons from whom they obtained the information, when the information was
obtained, the means by which the information was obtained and the basis for the
inspectors’ belief that such information is accurate and reliable.


Section 1.11:          Notice
of Stockholder Business; Nominations.


(a)           Annual
Meeting of Stockholders.


(i)            Nominations of persons for election
to the Board of Directors and the proposal of business to be considered by the
stockholders shall be made at an annual meeting of stockholders (A) pursuant to
the Corporation’s notice of such meeting, (B) by or at the direction of the
Board of Directors or (C) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of the notice provided for in this
Section 1.11, who is entitled to vote at such meeting and who complies with the
notice procedures set forth in this Section 1.11.


(ii)           For nominations or other business to
be properly brought before an annual meeting by a stockholder pursuant to
clause (C) of subparagraph (a)(i) of this Section 1.11, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation
and such other business must otherwise be a proper matter for stockholder
action.  To be timely, a stockholder’s
notice must be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the sixtieth (60th) day
nor earlier than the close of business on the ninetieth (90th) day prior to the
first anniversary of the preceding year’s annual meeting (except in the case of
the 2000 annual meeting, for which such notice shall be 


 


4

















 


timely if delivered in
the same time period as if such meeting were a special meeting governed by
subparagraph (b) of this Section 1.11); provided, however, that in
the event that the date of the annual meeting is more than thirty (30) days
before or more than sixty (60) days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to
such annual meeting or the close of business on the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made
by the Corporation.  Such stockholder’s
notice shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
including such person’s written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made (1) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner, and (2) the class and number
of shares of the Corporation that are owned beneficially and held of record by
such stockholder and such beneficial owner.


(iii)          Notwithstanding anything in the second
sentence of subparagraph (a)(ii) of  this Section 1.11 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased
board  of directors at
least seventy (70) days prior to the first anniversary of the preceding year’s
annual meeting (or, if the annual meeting is held more than thirty (30) days
before or sixty (60) days after such anniversary date, at least seventy (70)
days prior to such annual meeting), a stockholder’s notice required by this
Section 1.11 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation at the principal executive office of the Corporation
not later than the close of business on the tenth (10th) day following the day
on which such public announcement is first made by the Corporation.


(b)           Special
Meetings of Stockholders.  Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation’s notice of such
meeting.  Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation’s
notice of such meeting (i) by or at the direction of the Board of Directors or
(ii) provided that the Board of Directors has determined that directors shall
be elected at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice of the special meeting,
who shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 1.11. 
In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation’s notice of meeting,
if the stockholder’s notice required by subparagraph (a)(ii) of this Section
1.11 shall be 


 


5

















 


delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the ninetieth (90th) day prior to such special
meeting and not later than the close of business on the later of the sixtieth
(60th) day prior to such special meeting or the tenth (10th) day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting.


(c)           General.


(i)            Only such persons who are nominated
in accordance with the procedures set forth in this Section 1.11 shall be
eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 1.11.  Except as otherwise provided by law or these
Bylaws, the chairperson of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 1.11 and, if any proposed nomination or
business is not in compliance herewith, to declare that such defective proposal
or nomination shall be disregarded.


(ii)           For purposes of this Section 1.11,
the term “public announcement”
shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to section 13, 14 or 15(d) of the Exchange Act.


(iii)          Notwithstanding the foregoing
provisions of this Section 1.11, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein.  Nothing in this Section 1.11 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.


ARTICLE
II


BOARD OF
DIRECTORS


Section 2.1:            Number;
Qualifications.  The Board of
Directors shall consist of one or more members.  The initial number of directors shall be six (6), and thereafter
shall be fixed from time to time by resolution of the Board of Directors.  No decrease in the authorized number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.  Directors need not
be stockholders of the Corporation.


Section 2.2:            Election;
Resignation; Removal; Vacancies. 
The Board of Directors shall initially consist of the person or persons
elected by the incorporator or named in the Corporation’s initial Certificate
of Incorporation.  Subject to the rights
of the holders of any series of Preferred Stock to elect additional directors
under specified circumstances, following the closing of the corporation’s
initial public offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended, covering the offer and sale of Common
Stock to the public (the “Initial Public Offering”), the directors
shall be divided, with respect to the time for which they severally hold
office, into three classes designated as Class I, Class II and Class III,
respectively.  Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted by
the Board of Directors, with the number of directors in each class to be
divided as equally as reasonably possible. 
The term of office of the Class I directors 


 


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shall expire at
the corporation’s first annual meeting of stockholders following the closing of
the Initial Public Offering, the term of office of the Class II directors shall
expire at the corporation’s second annual meeting of stockholders following the
closing of the Initial Public Offering, and the term of office of the Class III
directors shall expire at the corporation’s third annual meeting of
stockholders following the closing of the Initial Public Offering.  At each annual meeting of stockholders
commencing with the first annual meeting of stockholders following the closing
of the Initial Public Offering, directors elected to succeed those directors of
the class 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.  Prior to the closing of the
Initial Public Offering, or in the event the corporation is prohibited from
dividing its board of directors through the operation of Section 2115 of the
California General Corporation Law following the record date of the
corporation’s first annual meeting of stockholders following the closing of the
Initial Public Offering, each director shall hold office until the next annual
meeting of stockholders and until such director’s successor is elected and qualified,
or until such director’s earlier death, resignation or removal.  Any director may resign at any time upon
notice to the Corporation given in writing or by electronic transmission.  Subject to the rights of the holders of any
series of Preferred Stock, any director or the entire Board of Directors may be
removed by the holders of at least sixty-six and two-thirds percent (66-2/3%)
of the shares then entitled to vote at an election of directors.  Subject to the rights of the holders of any
series of Preferred Stock, any vacancy occurring in the Board of Directors for
any cause, and any newly created directorship resulting from any increase in
the authorized number of directors, shall, unless  otherwise provided by law,
be filled only by the affirmative vote of a majority of the directors then in
office, although less than a quorum, or by a sole remaining director, and not
by the stockholders.


Section 2.3:            Regular Meetings.  Regular meetings of the Board of Directors
may be held at such places, within or without the State of Delaware, and at
such times as the Board of Directors may from time to time determine.  Notice of regular meetings need not be given
if the date, times and places thereof are fixed by resolution of the Board of
Directors.


Section 2.4:            Special Meetings.  Special meetings of the Board of Directors
may be called by the Chairperson of the Board of Directors, the President or a
majority of the members of the Board of Directors then in office and may be
held at any time, date or place, within or without the State of Delaware, as
the person or persons calling the meeting shall fix.  Notice of the time, date and place of such meeting shall be
given, orally, in writing or by electronic transmission (including electronic
email), by the person or persons calling the meeting to all directors at least
four (4) days before the meeting if the notice is mailed, or at least
twenty-four (24) hours before the meeting if such notice is given by telephone,
hand delivery, telegram, telex, mailgram, facsimile, electronic mail or other
means of electronic transmission. 
Unless otherwise indicated in the notice, any and all business may be
transacted at a special meeting.


Section 2.5:            Telephonic
Meetings Permitted.  Members of the
Board of Directors, or any committee of the Board, may participate in a meeting
of the Board or such 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 participation in a meeting pursuant to
conference telephone or similar communications equipment shall constitute
presence in person at such meeting.


Section 2.6:            Quorum; Vote
Required for Action.  At all
meetings of the Board of Directors a majority of the total number of authorized
directors shall constitute a quorum for the 


 


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transaction of
business.  Except as otherwise provided
herein or in the Certificate of Incorporation, or required by law, the vote of
a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.


Section 2.7:            Organization.  Meetings of the Board of Directors shall be
presided over by the Chairperson of the Board of Directors, or in such person’s
absence by the President, or in such person’s absence by a chairperson chosen
at the meeting.  The Secretary shall act
as secretary of the meeting, but in such person’s absence the chairperson of
the meeting may appoint any person to act as secretary of the meeting.


Section 2.8:            Written Action by
Directors.  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 such committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board or
committee, respectively.  Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.


Section 2.9:            Powers.  The Board of Directors may, except as
otherwise required by law or the Certificate of Incorporation, exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation.


Section 2.10:          Compensation of
Directors.  Directors, as such, may
receive, pursuant to a resolution of the Board of Directors, fees and other
compensation for their services as directors, including without limitation
their services as members of committees of the Board of Directors.


ARTICLE
III


COMMITTEES


Section 3.1:            Committees.  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 of Directors
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 the committee, the member or members thereof
present at any meeting of such committee who are not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. 
Any such committee, to the extent provided in a 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 and may authorize the seal of the Corporation to be affixed to all
papers that may require it; 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 Delaware General Corporation Law
to be submitted to stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the Corporation.


Section 3.2:            Committee Rules.  Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business.  In the absence of such rules each committee shall conduct its
business in the 


 


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same manner as the
Board of Directors conducts its business pursuant to Article II of these
Bylaws.


ARTICLE
IV


OFFICERS


Section 4.1:            Generally.  The officers of the Corporation shall
consist of a Chief Executive Officer and/or a President, a Secretary, a
Treasurer and such other officers as may from time to time be appointed by the
Board of Directors.  All officers shall
be elected by the Board of Directors; provided, however, that the
Board of Directors may empower the Chief Executive Officer of the Corporation
to appoint officers other than the Chairperson of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer or the Treasurer.  Each officer shall hold office until such
person’s successor is elected and qualified or until such person’s earlier
resignation or removal.  Any number of
offices may be held by the same person. 
Any officer may resign at any time upon written notice to the Corporation.  Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors.


Section 4.2:            Chief Executive
Officer.  Subject to the control of
the Board of Directors and such supervisory powers, if any, as may be given by
the Board of Directors, the powers and duties of the Chief Executive Officer of
the Corporation are:


(a)           To
act as the general manager and, subject to the control of the Board of
Directors, to have general supervision, direction and control of the business
and affairs of the Corporation;


(b)           To
preside at all meetings of the stockholders;


(c)           To
call meetings of the stockholders to be held at such times and, subject to the
limitations prescribed by law or by these Bylaws, at such places as he or she
shall deem proper; and


(d)           To
affix the signature of the Corporation to all deeds, conveyances, mortgages,
guarantees, leases, obligations, bonds, certificates and other papers and
instruments in writing which have been authorized by the Board of Directors or
which, in the judgment of the Chief Executive Officer, should be executed on
behalf of the Corporation; to sign certificates for shares of stock of the
Corporation; and, subject to the direction of the Board of Directors, to have
general charge of the property of the Corporation and to supervise and control
all officers, agents and employees of the Corporation.


The President shall be
the Chief Executive Officer of the Corporation unless the Board of Directors
shall designate another officer to be the Chief Executive Officer.  If there is no President, and the Board of
Directors has not designated any other officer to be the Chief Executive
Officer, then the Chairperson of the Board of Directors shall be the Chief
Executive Officer.


Section 4.3:            Chairperson of the
Board.  The Chairperson of the Board
of Directors shall have the power to preside at all meetings of the Board of
Directors and shall have such other powers and duties as provided in these
Bylaws and as the Board of Directors may from time to time prescribe.


 


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Section 4.4:            President.  The President shall be the Chief Executive
Officer of the Corporation unless the Board of Directors shall have designated
another officer as the Chief Executive Officer of the Corporation.  Subject to the provisions of these Bylaws
and to the direction of the Board of Directors, and subject to the supervisory
powers of the Chief Executive Officer (if the Chief Executive Officer is an officer
other than the President), and subject to such supervisory powers and authority
as may be given by the Board of Directors to the Chairperson of the Board of
Directors, and/or to any other officer, the President shall have the
responsibility for the general management the control of the business and
affairs of the Corporation and the general supervision and direction of all of
the officers, employees and agents of the Corporation (other than the Chief
Executive Officer, if the Chief Executive Officer is an officer other than the
President) and shall perform all duties and have all powers that are commonly
incident to the office of President or that are delegated to the President by
the Board of Directors.


Section 4.5:            Vice President.  Each Vice President shall have all such
powers and duties as are commonly incident to the office of Vice President, or
that are delegated to him or her by the Board of Directors or the Chief
Executive Officer.  A Vice President may
be designated by the Board to perform the duties and exercise the powers of the
Chief Executive Officer in the event of the Chief Executive Officer’s absence
or disability.


Section 4.6:            Chief Financial
Officer.  The Chief Financial
Officer shall be the Treasurer of the Corporation unless the Board of Directors
shall have designated another officer as the Treasurer of the Corporation.  Subject to the direction of the Board of
Directors and the Chief Executive Officer, the Chief Financial Officer shall
perform all duties and have all powers that are commonly incident to the office
of Chief Financial Officer.


Section 4.7:            Treasurer.  The Treasurer shall have custody of all
monies and securities of the Corporation. 
The Treasurer shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account of
all such transactions.  The Treasurer
shall also perform such other duties and have such other powers as are commonly
incident to the office of Treasurer, or as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.


Section 4.8:            Secretary.  The Secretary shall issue or cause to be
issued all authorized notices for, and shall keep, or cause to be kept, minutes
of all meetings of the stockholders and the Board of Directors.  The Secretary shall have charge of the
corporate minute books and similar records and shall perform such other duties
and have such other powers as are commonly incident to the office of Secretary,
or as the Board of Directors or the Chief Executive Officer may from time to
time prescribe.


Section 4.9:            Delegation of
Authority.  The Board of Directors
may from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.


Section 4.10:          Removal.  Any officer of the Corporation shall serve
at the pleasure of the Board of Directors and may be removed at any time, with
or without cause, by the Board of Directors. 
Such removal shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation.


 


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ARTICLE
V


STOCK


Section 5.1:            Certificates.  Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the
Chairperson or Vice-Chairperson 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, certifying the number
of shares owned by such stockholder in the Corporation.  Any or all of the signatures on the
certificate may be a facsimile.


Section 5.2:            Lost, Stolen or
Destroyed Stock Certificates; Issuance of New Certificates.  The Corporation may issue a new certificate
of stock in the place of any certificate previously issued by it, alleged to
have been lost, stolen or destroyed, and the Corporation may require the owner
of the lost, stolen or destroyed certificate, or such owner’s legal
representative, to agree to indemnify the Corporation and/or to give the
Corporation a bond sufficient to indemnify it, against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.


Section 5.3:            Other Regulations.  The issue, transfer, conversion and
registration of stock certificates shall be governed by such other regulations
as the Board of Directors may establish.


ARTICLE
VI


INDEMNIFICATION


Section 6.1             Indemnification of
Officers and Directors.  Each person
who was or is made a party to, or is threatened to be made a party to, or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of the fact that such person (or
a person of whom such person is the legal representative), is or was a director
or officer of the Corporation or a Reincorporated Predecessor (as defined
below) or is or was serving at the request of the Corporation or a
Reincorporated Predecessor (as defined below) as a director or officer of
another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, provided such
person acted in good faith and in a manner which the person 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
the person’s conduct was unlawful.  Such
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of such person’s heirs, executors and
administrators.  Notwithstanding the
foregoing, the Corporation shall indemnify any such person seeking indemnity in
connection with a Proceeding (or part thereof) initiated by such person only if
such Proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.  As used herein, the
term “Reincorporated
Predecessor” means a corporation that is merged with and into
the Corporation in a statutory merger where (a) the Corporation is the
surviving corporation of such merger; (b) the primary 


 


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purpose of such
merger is to change the corporate domicile of the Reincorporated Predecessor to
Delaware.


Section 6.2:            Advance of
Expenses.  The Corporation shall pay
all expenses (including attorneys’ fees) incurred by such a director or officer
in defending any such Proceeding as they are incurred in advance of its final
disposition; provided, however, that if the Delaware General
Corporation Law then so requires, the payment of such expenses incurred by such
a director or officer in advance of the final disposition of such Proceeding
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled
to be indemnified under this Article VI or otherwise; and provided, further,
that the Corporation shall not be required to advance any expenses to a person
against whom the Corporation directly brings a claim, in a Proceeding, alleging
that such person has breached such person’s duty of loyalty to the Corporation,
committed an act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law, or derived an improper personal
benefit from a transaction.


Section 6.3:            Non-Exclusivity
of Rights.  The rights conferred on
any person in this Article VI shall not be exclusive of any other right that
such person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaw, agreement, vote or consent of stockholders
or disinterested directors, or otherwise. 
Additionally, nothing in this Article VI shall limit the ability of the
Corporation, in its discretion, to indemnify or advance expenses to persons
whom the Corporation is not obligated to indemnify or advance expenses pursuant
to this Article VI.


Section 6.4:            Indemnification
Contracts.  The Board of Directors
is authorized to cause the Corporation to enter into indemnification contracts
with any director, officer, employee or agent of the Corporation, or any person
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing indemnification rights
to such person.  Such rights may be
greater than those provided in this Article VI.


Section 6.5:            Effect of
Amendment.  Any amendment, repeal or
modification of any provision of this Article VI shall be prospective only, and
shall not adversely affect any right or protection conferred on a person
pursuant to this Article VI and existing at the time of such amendment, repeal
or modification.


ARTICLE
VII


NOTICES


Section 7.1:            Notice.  (a) Except as otherwise specifically
provided herein (including without limitation, Section 7.1(b) below) or
required by law, all notices required to be given pursuant to these Bylaws
shall be in writing and may in every instance be effectively given by hand
delivery (including use of a delivery service), by depositing such notice in
the mail, postage prepaid, or by sending such notice by prepaid telegram,
telex, overnight express courier, mailgram, facsimile, electronic mail or other
means of electronic transmission.  Any
such notice shall be addressed to the person to whom notice is to be given at
such person’s address, facsimile number or electronic mail address (as
applicable) as it appears on the records of the Corporation.  


 


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The notice shall
be deemed given (i) in the case of hand delivery, when received by the person
to whom notice is to be given or by any person accepting such notice on behalf
of such person, (ii) in the case of delivery by mail, upon deposit in the mail,
(iii) in the case of delivery by overnight express courier, when dispatched,
and (iv) in the case of delivery via telegram, telex or mailgram, when
dispatched, (v) in the case of delivery by facsimile telecommunication, when
directed to a number at which the person to whom the notice is given has
consented to receive notice; (vi) in the case of delivery by electronic mail,
when directed to an electronic mail address at which the person to whom the
notice is to be given has consented to receive notice; and (vii) in the case of
delivery by any other form of electronic transmission, when directed to the
person whom notice is to be given.


(b) Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders
given by the Corporation under any provision of the Delaware General
Corporation Law, the Certificate of Incorporation, or these Bylaws shall be
effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Corporation. Any such consent shall be
deemed revoked if (i) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance
with such consent and (ii) such inability becomes known to the Secretary or an
Assistant Secretary of the Corporation or to the transfer agent, or other
person responsible for the giving of notice; provided, however, the inadvertent
failure to treat such inability as a revocation shall not invalidate any
meeting or other action.  Notice given
pursuant to this Section 7.1(b) shall be deemed given: (i) if by facsimile
telecommunication, when directed to a number at which the stockholder has
consented to receive notice; (ii) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (iii) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and (iv) if by any other
form of electronic transmission, when directed to the stockholder.


(c) An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Corporation that the
notice has been given in writing or by a form of electronic transmission shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.


Section 7.2:            Waiver of Notice.  Whenever notice is required to be given
under any provision of these Bylaws, a written waiver of notice, signed by the
person entitled to notice, or waiver by electronic transmission by such person,
whether before or after the time stated therein, shall be deemed equivalent to
notice.  Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.  Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors
need be specified in any written waiver of notice.


ARTICLE
VIII


INTERESTED
DIRECTORS


Section 8.1:            Interested
Directors; Quorum.  No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any 


 


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other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof that authorizes the contract or transaction, or
solely because his, her or their votes are counted for such purpose, if: (i)
the material facts as to his, her or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; (ii) the material facts as to his, her or
their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board
of Directors, a committee thereof, or the stockholders.  Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.


ARTICLE
IX


MISCELLANEOUS


Section 9.1:            Fiscal Year.  The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.


Section 9.2:            Seal.  The Board of Directors may provide for a
corporate seal, which shall have the name of the Corporation inscribed thereon
and shall otherwise be in such form as may be approved from time to time by the
Board of Directors.


Section 9.3:            Form of Records.  Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account and minute books, may be kept on, or be in the form of, magnetic tape,
diskettes, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.  The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect the same.


Section 9.4:            Reliance Upon
Books and Records.  A member of the
Board of Directors, or a member of any committee designated by the Board of
Directors shall, in the performance of such person’s duties, be fully protected
in relying in good faith upon records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by
any of the Corporation’s officers or employees, or committees of the Board of
Directors, or by any other person as to matters the member reasonably believes
are within such other person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Corporation.


Section 9.5:            Certificate of
Incorporation Governs.  In the event
of any conflict between the provisions of the Corporation’s Certificate of
Incorporation and Bylaws, the provisions of the Certificate of Incorporation
shall govern.


Section 9.6:            Severability.  If any provision of these Bylaws shall be
held to be invalid, illegal, unenforceable or in conflict with the provisions
of the Corporation’s Certificate of 


 


14

















 


Incorporation,
then such provision shall nonetheless be enforced to the maximum extent
possible consistent with such holding and the remaining provisions of these
Bylaws (including without limitation, all portions of any section of these
Bylaws containing any such provision held to be invalid, illegal, unenforceable
or in conflict with the Certificate of Incorporation, that are not themselves
invalid, illegal, unenforceable or in conflict with the Certificate of
Incorporation) shall remain in full force and effect.


ARTICLE
X


AMENDMENT


Section 10.1:          Amendments.  Following the closing of the initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of Common Stock to the
public (the “Initial Public
Offering”), stockholders of the Corporation holding at least
sixty-six and two-thirds percent (66-2/3%) of the Corporation’s outstanding
voting stock then entitled to vote at an election of directors shall have the
power to adopt, amend or repeal Bylaws. 
Prior to the Initial Public Offering, stockholders of the Corporation
holding a majority of the Corporation’s outstanding voting stock then entitled
to vote at an election of directors shall have the power to adopt, amend or
repeal Bylaws.  To the extent provided
in the Corporation’s Certificate of Incorporation, the Board of Directors of
the Corporation shall also have the power to adopt, amend or repeal Bylaws of
the Corporation.


 


 


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