Bylaws - Liberate Technologies

AMENDED AND RESTATED



BYLAWS OF



LIBERATE TECHNOLOGIES



A DELAWARE CORPORATION



AS OF JULY 18, 2002









TABLE OF CONTENTS    
  




 

 
Page



ARTICLE I OFFICE AND RECORDS
 
1


 
Section 1.1 Delaware Office
 
1


 
Section 1.2 Other Offices
 
1


 
Section 1.3 Books and Records
 
1




ARTICLE II STOCKHOLDERS

 


1


 
Section 2.1 Annual Meeting
 
1


 
Section 2.2 Special Meeting
 
1


 
Section 2.3 Place of Meeting
 
1


 
Section 2.4 Notice of Meeting
 
1


 
Section 2.5 Quorum and Adjournment
 
1


 
Section 2.6 Proxies
 
2


 
Section 2.7 Notice of Stockholder Business and Nominations
 
2


 
Section 2.8 Procedure for Election of Directors
 
4


 
Section 2.9 Inspectors of Elections; Opening and Closing the Polls
 
4


 
Section 2.10 Consent of Stockholders in Lieu of Meeting
 
4




ARTICLE III BOARD OF DIRECTORS

 


4


 
Section 3.1 General Powers
 
4


 
Section 3.2 Number, Tenure and Qualifications
 
4


 
Section 3.3 Regular Meetings
 
5


 
Section 3.4 Special Meetings
 
5


 
Section 3.5 Notice
 
5


 
Section 3.6 Conference Telephone Meetings
 
5


 
Section 3.7 Quorum
 
5


 
Section 3.8 Vacancies
 
5


 
Section 3.9 Committee
 
5


 
Section 3.10 Removal
 
6


 
Section 3.11 Action by Unanimous Consent of Directors
 
6




ARTICLE IV OFFICERS

 


6


 
Section 4.1 Elected Officers
 
6


 
Section 4.2 Election and Term of Office
 
6


 
Section 4.3 Chairman of the Board
 
6


 
Section 4.4 President and Chief Executive Officer
 
6


 
Section 4.5 Secretary
 
7


 
Section 4.6 Treasurer
 
7


 
Section 4.7 Removal
 
7


 
Section 4.8 Vacancies
 
7




ARTICLE V STOCK CERTIFICATES AND TRANSFERS

 


7


 
Section 5.1 Stock Certificates and Transfers
 
7




ARTICLE VI INDEMNIFICATION

 


8


 
Section 6.1 Right to Indemnification
 
8


 
Section 6.2 Right to Advancement of Expenses
 
8


 
Section 6.3 Right of Indemnitee to Bring Suit
 
8


 
Section 6.4 Non-Exclusivity of Rights
 
9


 
Section 6.5 Insurance
 
9


 
Section 6.6 Indemnification of Employees and Agents of the Corporation
 
9



ii









ARTICLE VII MISCELLANEOUS PROVISIONS

 


9


 
Section 7.1 Fiscal Year
 
9


 
Section 7.2 Dividends
 
9


 
Section 7.3 Seal
 
9


 
Section 7.4 Waiver of Notice
 
9


 
Section 7.5 Audits
 
10


 
Section 7.6 Resignations
 
10


 
Section 7.7 Contracts
 
10


 
Section 7.8 Proxies
 
10




ARTICLE VIII AMENDMENTS

 


10


 
Section 8.1 Amendments
 
10




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ARTICLE I
  OFFICES AND RECORDS    


        Section 1.1    Delaware Office.    The registered office of the Corporation in the State of Delaware will be 
located in the City of Wilmington, County of New Castle. 

        Section 1.2    Other Offices.    The Corporation may have such other offices, either within or without the 
State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time require. 

        Section 1.3    Books and Records.    The books and records of the Corporation may be kept at the Corporation's 
headquarters in San Carlos, California or at such other locations outside the State of Delaware as may from time to time be designated by the Board of Directors. 




ARTICLE II
  STOCKHOLDERS    


        Section 2.1    Annual Meeting.    The annual meeting of the stockholders of the Corporation will be held at 
such date, place and/or time as may be fixed by resolution of the Board of Directors. 


        Section 2.2    Special Meeting.    Special meetings of stockholders of the Corporation may be called only by 
the Chairman of the Board, the President or by the Board of Directors or at the request in writing of stockholders owning at least fifty percent (50%) in amount of the entire capital stock of the 
Corporation issued and outstanding and entitled to vote. 

        Section 2.3    Place of Meeting.    The Board of Directors may designate the place of meeting for any meeting 
of the stockholders. If no designation is made by the Board of Directors, the place of meeting will be the principal office of the Corporation. 


        Section 2.4    Notice of Meeting.    Except as otherwise required by law, written, printed, or electronic 
notice, stating the place, day and hour of the meeting and the purposes for which the meeting is called, will be prepared and delivered by the Corporation not less than ten days nor more than sixty 
days before the date of the meeting, either personally, by mail, or in the case of stockholders who have consented to such delivery, by electronic transmission (as such term is defined in the Delaware 
General Corporation Law), to each stockholder of record entitled to vote at such meeting. If mailed, such notice will be deemed to be delivered when deposited in the United States mail with postage 
thereon prepaid, addressed to the stockholder at his or her address as it appears on the stock transfer books of the Corporation. Notice given by electronic transmission will be effective 
(A) if by facsimile, when faxed to a number where the stockholder has consented to receive such notice; (B) if by electronic mail, when mailed electronically to an electronic mail 
address at which the stockholder has consented to receive such notice; (C) if by posting on an electronic network together with a separate notice of such posting, upon the later to occur of 
(1) the posting or (2) the giving of separate notice of the posting; or (D) if by other form of electronic communication, when directed to the stockholder in the manner consented 
to by the stockholder. Such further notice will be given as may be required by law. Meetings may be held without notice if all stockholders entitled to vote are present (except as otherwise provided 
by law), or if notice is waived by those not present. Any previously scheduled meeting of the stockholders may be postponed and (unless the Corporations's Amended and Restated Certificate of 
Incorporation (the "Certificate of Incorporation") otherwise provides) any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors upon public notice given prior 
to the time previously scheduled for such meeting of stockholders. 

        Section 2.5    Quorum and Adjournment.    Except as otherwise provided by law or by the Certificate of 
Incorporation, the holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), represented in 
person or by proxy, will constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series voting separately as a class or series, the 
holders of a majority of the voting power of the shares of such class or series will constitute a quorum for the transaction of such business. The chairman of the meeting or a majority of the shares 
of Voting Stock 







 
so represented may adjourn the meeting from time to time, whether or not there is such a quorum (or, in the case of specified business to be voted on by a class or series, the chairman or a majority 
of the shares of such class or series so represented may adjourn the meeting with respect to such specified business). No notice of the time and place of adjourned meetings need be given except as 
required by law. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a 
quorum. 

        Section 2.6    Proxies.    At all meetings of stockholders, a stockholder may vote by proxy executed in writing 
by the stockholder or as may be permitted by law, or by his or her duly authorized attorney-in-fact. Such proxy must be filed with the Secretary of the Corporation or his or 
her representative, or otherwise 
delivered telephonically or electronically as set forth in the applicable proxy statement, at or before the time of the meeting. 

        Section 2.7    Notice of Stockholder Business and Nominations.    



        A.    Nominations 
of persons for election to the Board of Directors and the proposal of business to be transacted by the stockholders may be made at an annual meeting of 
stockholders (1) pursuant to the Corporation's notice with respect to such meeting, (2) by or at the direction of the Board of Directors or (3) by any stockholder of record of the 
Corporation who was a stockholder of record at the time of the giving of the notice provided for in the following paragraph, who is entitled to vote at the meeting and who has complied with the notice 
procedures set forth in this Section 2.7. 

        B.    For 
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to paragraph (A)(3) of this Section 2.7, 
(1) the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, (2) such business must be a proper matter for stockholder action under the 
Delaware General Corporation Law, (3) if the stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Corporation with a Solicitation 
Notice, as that term is defined in subclause (c)(iii) of this paragraph, such stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy 
to holders of at least the percentage of the Corporation's voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered prior 
to the meeting a proxy statement and form of proxy to holders of a percentage of the Corporation's voting shares reasonably believed by such stockholder or beneficial holder to be sufficient to elect 
the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials the Solicitation Notice and (4) if no Solicitation Notice 
relating thereto has been timely provided pursuant to this section, the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to 
have required the delivery of such a Solicitation Notice under this section. To be timely, a stockholder's notice will be delivered to the Secretary at the principal executive offices of the 
Corporation not less than 45 or more than 75 days prior to the first anniversary (the "Anniversary") of the date on which the Corporation first mailed its proxy materials for the preceding 
year's annual meeting of stockholders; provided, however, that if no proxy materials were mailed by the Corporation in connection with the preceding year's annual meeting, or if the date of the annual 
meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year's annual meeting, notice by the stockholder to be timely must 
be so delivered not later than the close of business on the later of (x) the 90th day prior to such annual meeting or (y) the 10th day following the day on which public announcement of 
the date of such meeting is first made. Such stockholder's notice will 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 as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the 
Securities Exchange Act of 1934, as amended (the 


2








 
"Exchange Act"), and such person's written consent to serve as a director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief 
description of such business, 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 (i) the name and address of such stockholder, as they appear on the 
Corporation's books, and of such beneficial owner, (ii) the class and number of shares of the Corporation that are owned beneficially and of record by such stockholder and such beneficial 
owner, and (iii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of 
the Corporation's voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation's voting shares to 
elect such nominee or nominees (an affirmative statement of such intent, a "Solicitation Notice"). 

        C.    Notwithstanding 
anything in the second sentence of paragraph (B) of this Section 2.7 to the contrary, in the event that the number of directors to be 
elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at 
least 55 days prior to the Anniversary, a stockholder's notice required by this Bylaw will also be considered timely, but only with respect to nominees for any new positions created by such 
increase, if it will be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public 
announcement is first made by the Corporation. 

        D.    Only 
persons nominated in accordance with the procedures set forth in this Section 2.7 will be eligible to serve as directors and only such business will be 
conducted at an annual meeting of stockholders as will have been brought before the meeting in accordance with the procedures set forth in this Section 2.7. The chair of the meeting will have 
the power and the duty to determine whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these Bylaws and, if any 
proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposed business or nomination will not be presented for stockholder action at the meeting and 
will be disregarded. 

        E.    Only 
such business will be conducted at a special meeting of stockholders as will have been brought before the meeting pursuant to the Corporation's notice of 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 meeting 
(1) by or at the direction of the Board of Directors or (2) by any stockholder of record of the Corporation who is a stockholder of record at the time of giving of notice provided for in 
this paragraph, who will be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.7. Nominations by stockholders of persons for election to the 
Board of Directors may be made at such a special meeting of stockholders if the stockholder's notice required by paragraph (B) of this Section 2.7 will be delivered to the Secretary at 
the principal executive offices of the Corporation not later than the close of business on the later of the 90th day prior to such special meeting or the 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 to be elected at such meeting. 


        F.    For 
purposes of this Section 2.7, "public announcement" will mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a 
comparable national news 


3








 
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. 


        G.    Notwithstanding 
the foregoing provisions of this Section 2.7, a stockholder will also comply with all applicable requirements of the Exchange Act and the rules and 
regulations thereunder with respect to matters set forth in this Section 2.7. Nothing in this Section 2.7 will 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. 



        Section 2.8    Procedure for Election of Directors.    Election of directors at all meetings of the 
stockholders at which directors are to be elected will be by written ballot, and, except as otherwise set forth in the Certificate of Incorporation with respect to the right of the holders of any 
series of Preferred Stock or any other series or class of stock to elect additional directors under specified circumstances, a plurality of the votes cast thereat will elect directors. Except as 
otherwise provided by law, the Certificate of Incorporation or these Bylaws, all matters other than the election of directors submitted to the stockholders at any meeting will be decided by the 
affirmative vote of a majority of the voting power of the outstanding Voting Stock present in person or represented by proxy at the meeting and entitled to vote thereon. 


        Section 2.9    Inspectors of Elections; Opening and Closing the Polls.    



        A.    The 
Board of Directors by resolution will appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other 
capacities, including, without limitation, as officers, employees, agents or representatives of the Corporation, to act at the meeting and make a written report thereof. One or more persons may be 
designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act, or if all inspectors or alternates who have been appointed are 
unable to act, at a meeting of stockholders, the chairman of the meeting will appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, will take and 
sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors will have the duties prescribed by the Delaware 
General Corporation Law. 

        B.    The 
chairman of the meeting will fix and announce at the meeting 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. 



        Section 2.10    Consent of Stockholders in Lieu of Meeting.    Any action required or permitted to be taken by 
the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such 
stockholders. 




ARTICLE III
  BOARD OF DIRECTORS    



        Section 3.1    General Powers.    The business and affairs of the Corporation will be managed by or under the 
direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by the Certificate of Incorporation or by these Bylaws, the directors are 
hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation. 

        Section 3.2    Number, Tenure and Qualifications.    Subject to the rights of the holders of any series of 
Preferred Stock to elect additional directors under specified circumstances, the number of directors will be fixed from time to time exclusively by the Board of Directors, and each director elected 
will hold office until his or her successor is elected and qualified. 

4







        Section 3.3    Regular Meetings.    The Board of Directors may, by resolution, provide the time and place for 
the holding of regular meetings without notice other than such resolution. 


        Section 3.4    Special Meetings.    Special meetings of the Board of Directors will be called at the request of 
the Chairman of the Board, the Chief Executive Officer, the President, the Lead Independent Director, or a majority of the Board of Directors. The person or persons authorized to call special meetings 
of the Board of Directors may fix the place and time of the meetings. The "Lead Independent Director" is the Chairman of the Corporate Governance Committee of the Board of Directors. 

        Section 3.5    Notice.    Notice of any special meeting will be given to each director at his or her business 
or residence in writing or by facsimile transmission, telephone communication, electronic transmission (provided, with respect to electronic transmission, that the director has consented to receive 
the form of transmission at the address to which it is directed), or overnight courier. If mailed, such notice will be deemed adequately delivered when deposited in the United States mails so 
addressed, with postage thereon prepaid, at least five days before such meeting. If by facsimile transmission or other electronic transmission, such notice will be transmitted at least 
twenty-four hours before such meeting. If by telephone, the notice will be given at least twelve hours prior to the time set for the meeting. If by overnight courier, the notice will be 
given to a nationally recognized overnight courier, with delivery costs prepaid and delivery scheduled for the business day preceding the day of the meeting. Neither the business to be transacted at, 
nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these Bylaws as provided under Section 8.1 
of Article VIII hereof. A meeting may be held at any time without notice if 
all the directors are present (except as otherwise provided by law) or if those not present waive notice of the meeting in writing, either before or after such meeting. 

        Section 3.6    Conference Telephone Meetings.    Members of the Board of Directors, or any committee thereof, 
may participate in a meeting of the Board of Directors 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 such participation in a meeting will constitute presence in person at such meeting. 

        Section 3.7    Quorum.    A whole number of directors equal to at least a majority of the elected and qualified 
directors of the Corporation who are currently serving as such will constitute a quorum for the transaction of business, provided that a quorum may never be less than 1/3 of the total 
number of directors authorized (including any vacancies). If at any meeting of the Board of Directors there is less than a quorum present, a majority of the directors present may adjourn the meeting 
from time to time without further notice. The act of the majority of the directors present at a meeting at which a quorum is present will be the act of the Board of Directors. 

        Section 3.8    Vacancies.    Subject to the rights of the holders of any series of Preferred Stock then 
outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, 
disqualification, removal from office or other cause will, unless otherwise provided by law or by resolution of the Board of Directors, be filled only by a majority vote of the directors then in 
office, though less than a quorum, and directors so chosen will hold office until their respective successors are elected and qualified. No decrease in the authorized number of directors will shorten 
the term of any incumbent director. 

        Section 3.9    Committees.    



        A.    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 


5






 
member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or she or they 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 permitted by law and to the extent provided in the 
resolution of the Board of Directors, will 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 which may require it; provided, however, that no committee will have power or authority in reference to the following matters: 
(1) approving, adopting, or recommending to stockholders any action or matter required by law to be submitted to stockholders for approval or (2) adopting, amending, or repealing any 
bylaw. 

        B.    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 will conduct its business in the same manner as the Board of Directors conducts its business pursuant to these Bylaws. 



        Section 3.10    Removal.    Subject to the rights of the holders of any series of Preferred Stock then 
outstanding, any directors, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least 
sixty-six and two-thirds percent (662/3%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to 
vote generally in the election of directors, voting together as a single class. 

        Section 3.11    Action by Unanimous Consent of Directors.    The Board of Directors may take action without the 
necessity of a meeting by unanimous consent of directors. Such consent may be in writing or given by electronic transmission, as such term is defined in the Delaware General Corporation Law. 




ARTICLE IV
  OFFICERS    


        Section 4.1    Elected Officers.    The elected officers of the Corporation will be a Chairman of the Board, a 
President, a Secretary, a Treasurer, and such other officers as the Board of Directors from time to time may deem proper. The Chairman of the Board will be chosen from the directors. All officers 
chosen by the Board of Directors will each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article IV. Such officers 
will also have powers and duties as from time to time may be conferred by the Board of Directors or by any committee thereof. 

        Section 4.2    Election and Term of Office.    The elected officers of the Corporation will be elected annually 
by the Board of Directors at the regular meeting of the Board of Directors held after each annual meeting of the stockholders. If the election of officers will not be held at such meeting, such 
election will be held as soon thereafter as convenient. Subject to Section 4.7 of these Bylaws, each officer will hold office until his or her successor is duly elected and qualified or until 
his or her death or until he or she resigns. 

        Section 4.3    Chairman of the Board.    The Chairman of the Board will preside at all meetings of the Board. 

        Section 4.4    President and Chief Executive Officer.    The President and Chief Executive Officer will be the 
general manager of the Corporation, subject to the control of the Board of Directors, and as such will 
preside at all meetings of stockholders, will have general supervision of the affairs of the Corporation, will sign or countersign or authorize another officer to sign all certificates, contracts, and 
other instruments of the Corporation as authorized by the Board of Directors, will make reports to the Board of Directors and stockholders, and will perform all such other duties as are incident to 
such 

6







 
office or are properly required by the Board of Directors. If the Board of Directors creates the office of Chief Executive Officer as a separate office from President, the President will be the chief 
operating officer of the corporation and will be subject to the general supervision, direction, and control of the Chief Executive Officer unless the Board of Directors provides otherwise. 

        Section 4.5    Secretary.    The Secretary will give, or cause to be given, notice of all meetings of 
stockholders and directors and all other notices required by law or by these Bylaws, and in case of his or her absence or refusal or neglect so to do, any such notice may be given by any person 
thereunto directed by the Chairman of the Board or the President, or by the Board of Directors, upon whose request the meeting is called as provided in these Bylaws. The Secretary will record all the 
proceedings of the meetings of the Board of Directors, any committees thereof and the stockholders of the Corporation in a book to be kept for that purpose, and will perform such other duties as may 
be assigned to him by the Board of Directors, the Chairman of the Board or the President. He or she will have custody of the seal of the Corporation and will affix the same to all instruments 
requiring it, when authorized by the Board of Directors, the Chairman of the Board or the President, and attest to the same. 

        Section 4.6    Treasurer.    The Treasurer will have the custody of the corporate funds and securities and will 
keep full and accurate receipts and disbursements in books belonging to the Corporation. The Treasurer will deposit all moneys and other valuables in the name and to the credit of the Corporation in 
such depositaries as may be designated by the Board of Directors. The Treasurer will disburse the funds of the Corporation as may be ordered by the Board of Directors the Chairman of the Board, or the 
President, taking proper vouchers for such disbursements. The Treasurer will render to the Chairman of the Board, the President and the Board of Directors, whenever requested, an account of all his or 
her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer will give the Corporation a bond for the faithful discharge of his 
or her duties in such amount and with such surety as the Board of Directors will prescribe. 

        Section 4.7    Removal.    Any officer elected by the Board of Directors may be removed by the Board of 
Directors whenever, in their judgment, the best interests of the Corporation would be served thereby. No elected officer will have any contractual rights against the Corporation for compensation by 
virtue of such election beyond the date of the election of his or her successor or his or her death,resignation, or removal, whichever event will first occur, except as otherwise provided in an 
employment contract or an employee plan. 

        Section 4.8    Vacancies.    A newly created office and a vacancy in any office because of death, resignation, 
or removal may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors. 




ARTICLE V
  STOCK CERTIFICATES AND TRANSFERS    


        Section 5.1    Stock Certificates and Transfers.    



        A.    The 
interest of each stockholder of the Corporation will be evidenced by certificates for shares of stock in such form as the appropriate officers of the Corporation may 
from time to time prescribe. The shares of the stock of the Corporation will be transferred on the books of the Corporation by the holder thereof in person or by his or her attorney, upon surrender 
for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of 
the signature as the Corporation or its agents may reasonably require. 

        B.    The 
certificates of stock will be signed, countersigned and registered in such manner as the Board of Directors may by resolution prescribe, which resolution may permit 
all or any of the signatures on such certificates to be in facsimile. In case any officer, transfer agent or registrar who 


7








 
has signed or whose facsimile signature has been placed upon a certificate has 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 that person were such officer, transfer agent or registrar at the date of issue. 





ARTICLE VI
  INDEMNIFICATION    


        Section 6.1    Right to Indemnification.    Each person who was or is made a party or is threatened to be made 
a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or 
was a director or officer of the Corporation or, while a director, officer, or employee of the Corporation, 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 an employee benefit plan (hereinafter an "indemnitee"), where the basis of 
such proceeding is alleged action within the course and scope of his or her duties as a director, officer, employee or agent, will 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 (but, in the case of any such amendment, only to the extent that such amendment permits the 
Corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or 
penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection 
therewith and such indemnification will continue as to an indemnitee who has ceased to be a director, officer, employee or agent and will inure to the benefit of the indemnitee's heirs, executors and 
administrators; provided, however, that, except as provided in Section 6.3 hereof with respect to proceedings to enforce rights to 
indemnification, the Corporation will indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was 
authorized by the Board of Directors of the Corporation. 

        Section 6.2    Right to Advancement of Expenses.    The right to indemnification conferred in 
Section 6.1 will include the right to be paid by the Corporation the expenses incurred in defending any proceeding for which such right to indemnification is applicable in advance of its final 
disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of 
expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, 
service to an employee benefit plan) will be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so 
advanced if it is ultimately determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be 
indemnified for such expenses under this Section or otherwise. 

        Section 6.3    Right of Indemnitee to Bring Suit.    The rights to indemnification and to the advancement of 
expenses conferred in Section 6.1 and Section 6.2, respectively, will be contract rights. If a claim under Section 6.1 or Section 6.2 is not paid in full by the Corporation 
within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period will be twenty days, the 
indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the 
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee will be entitled to be paid also the expense of prosecuting or defending such suit. In 
(A) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it will be 
a defense that, and (B) in any suit by the Corporation to recover 

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an advancement of expenses pursuant to the terms of an undertaking the Corporation will be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable 
standard for indemnification set forth in the Delaware General Corporation Law. 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 suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee 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 indemnitee has not met such applicable standard of conduct, will create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought 
by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover 
an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 
or otherwise will be on the Corporation. 

        Section 6.4    Non-Exclusivity of Rights.    The rights to indemnification and to the advancement 
of expenses conferred in this Section will not be exclusive of any other right which any person may have or hereafter acquire under the Certificate of Incorporation, these Amended and Restated Bylaws, 
or any statute, agreement, vote of stockholders or disinterested directors or otherwise. 

        Section 6.5    Insurance.    The Corporation may maintain insurance, at its expense, to protect itself and any 
director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the 
Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. 


        Section 6.6    Indemnification of Employees and Agents of the Corporation.    The Corporation may, to the 
extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the advancement of expenses, to any employee or agent of the Corporation to the fullest extent of 
the provisions of this Article VI regarding the indemnification and advancement of expenses of directors and officers of the Corporation. 




ARTICLE VII
  MISCELLANEOUS PROVISIONS    



        Section 7.1    Fiscal Year.    The fiscal year of the Corporation will begin on the first day of June and end 
on the thirty-first day of May of each year. 

        Section 7.2    Dividends.    The Board of Directors may from time to time declare, and the Corporation may pay, 
dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Certificate of Incorporation. 


        Section 7.3    Seal.    The corporate seal will have inscribed the name of the Corporation thereon and will be 
in such form as may be approved from time to time by the Board of Directors. 

        Section 7.4    Waiver of Notice.    Whenever any notice is required to be given to any stockholder or director 
of the Corporation under the provisions of the Delaware General Corporation Law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time 
stated therein, will be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders of the Board of 
Directors need be specified in any waiver of notice of such meeting. 

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        Section 7.5    Audits.    The accounts, books and records of the Corporation will be audited upon the 
conclusion of each fiscal year by an independent certified public accountant selected by the Board of Directors, and it will be the duty of the Board of Directors to cause such audit to be made 
annually. 

        Section 7.6    Resignations.    Any director or any officer, whether elected or appointed, may resign at any 
time by serving written notice of such resignation on the Chairman of the Board, the President or the Secretary, or by submitting such resignation by electronic transmission (as such term is defined 
in the Delaware General Corporation Law), and such resignation will be deemed to be effective as of the close of business on the date said notice is received by the Chairman of the Board, the 
President, or the Secretary or at such later date as is stated therein. No formal action will be required of the Board of Directors or the stockholders to make any such resignation effective. 

        Section 7.7    Contracts.    Except as otherwise required by law, the Certificate of Incorporation or these 
Bylaws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may 
from time to time direct. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the President or any Vice President may execute bonds, 
contracts, deeds, leases and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairman of the Board, 
the President or any Vice President of the Corporation may delegate contractual powers to others under his or her jurisdiction, it being understood, however, that any such delegation of power will not 
relieve such officer of responsibility with respect to the exercise of such delegated power. 

        Section 7.8    Proxies.    Unless otherwise provided by resolution adopted by the Board of Directors, the 
Chairman of the Board, the President or any Vice President may from time to time appoint any attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, 
to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held 
by the Corporation, at meetings of the holders of the stock and other securities of such other corporation or other entity, or to consent in writing, in the name of the Corporation as such holder, to 
any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be 
executed in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper in the 
premises. 




ARTICLE VIII
  AMENDMENTS    


        Section 8.1    Amendments.    Subject to the provisions of the Certificate of Incorporation, these Bylaws may 
be amended, altered, added to, rescinded or repealed at any meeting of the Board of Directors or of the stockholders, provided notice of the proposed change was given in the notice of the meeting and, 
in the case of a meeting of the Board of Directors, in a notice given no less than twenty-four hours prior to the meeting. 

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CERTIFICATE OF SECRETARY OF    
    
    LIBERATE TECHNOLOGIES    
    


        The undersigned, Kent Walker, hereby certifies that he is the duly elected and acting Secretary of Liberate Technologies, a Delaware corporation ("Liberate"), and 
that the Bylaws attached hereto constitute the Bylaws of Liberate as duly adopted by its Directors on July 18, 2002. 




/s/ KENT WALKER
 Kent Walker
 Senior Vice President, General Counsel, and Secretary
 
August 1, 2002
 Date