BYLAWS
OF
SYMMETRICOM, INC.
(a California corporation)
ARTICLE I
OFFICES;
Section 1. PRINCIPAL OFFICES;. The board of directors
shall fix the location of the principal executive office of the
corpora-tion at any place within or outside the State of
California. If the principal executive office is located outside
this state, and the corporation has one or more business offices
in this state, the board of directors shall fix and designate a
principal business office in the State of California.
Section 2. OTHER OFFICES;. The board of directors or
officers of the corporation may at any time establish branch or
subordinate offices at any place or places wherein such board or
officers shall deem advisable.
ARTICLE II
MEETINGS OF SHAREHOLDERS;
Section 1. PLACE OF MEETINGS;. Meetings of
shareholders shall be held at any place within or outside of the
State of California designated by the board of directors. In the
absence of any such designation, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. ANNUAL MEETING;. The annual meeting of
share-holders shall be held each year on the date and at a time
designated by the board of directors. In the absence of such
designation, the annual meeting of shareholders shall be held on
the third Thursday of October in each year at 10:00 a.m. However,
if such day falls on a legal holiday, then the meeting shall be
held at the same time and place on the next succeeding full
business day. At each annual meeting directors shall be elected,
and any other proper business may be transacted.
Section 3. SPECIAL MEETING;. A special meeting of
share-holders may be called at any time by the board of directors,
or by the chairman of the board, or by the president, or by one or
more shareholders holding shares in the aggregate entitled to cast
not less than 10% of the votes at that meeting.
If a special meeting is called by any person or persons other
than the board of directors or the president or the chairman of
the board, then, the request shall be in writing, specifying the
time of such meeting and the general nature of the business
proposed to be transacted, and shall be delivered personally or
sent by regis-tered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, any vice
president, or the secretary of the corporation. The officer
receiving the request shall cause notice to be promptly given to
the shareholders enti-tled to vote, in accordance with the
provisions of Sections 4 and 5 of this Article II, that a meeting
will be held at the time requested by the person or persons
calling the meeting, so long as that time is not less than thirty-
five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after
receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing contained in this paragraph
of this Section 3 shall be construed as limiting, fixing or
affecting the time when a meeting of shareholders called by action
of the board of directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETING;. All
notices of meetings of shareholders shall be sent or otherwise
given in accordance with Section 5 of this Article II not less
than ten (10) (or, if sent by third-class mail pursuant to
Section 5 of this Article II, thirty (30)) nor more than sixty
(60) days before the date of the meeting. The notice shall
specify the place, date and hour of the meeting and (i) in the
case of a special meeting, the general nature of the business to
be transacted (no business other than that specified in the notice
may be transacted), or (ii) in the case of the annual meeting,
those matters which the board of directors, at the time of giving
the notice, intends to present for action by the share-holders (but
subject to the provisions of the following paragraph of this
Section 4 of Article II, any proper matter may be presented at the
meeting for such action). The notice of any meeting at which
directors are to be elected shall include the name of any nominee
or nominees whom, at the time of the notice, management intends to
present for election.
If action is proposed to be taken at any meeting for approval
of (i) a contract or transaction in which a director has a direct
or indirect financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) an amendment to the articles
of incorporation, pursuant to Section 902 of that Code, (iii) a
reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation,
pursuant to Section 1900 of that Code, or (v) a distribution in
dissolution other than in accordance with the rights of
outstanding preferred
shares, pursuant to Section 2007 of that Code, the notice shall
also state the general nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF
NOTICE;. Written notice of any meeting of shareholders given shall
be given either (i) personally or (ii) by first-class mail or
(iii) by third-class mail but only if the corporation has
outstanding shares held of record by five hundred (500) or more
persons (determined as provided in Section 605 of the Code) on the
record date for the shareholders' meeting, or (iv) telegraphic or
other written com-muni-cation. Notices not personally delivered
shall be sent charges prepaid, addressed to the shareholder at the
address of that share-holder appearing on the books of the corpora-
tion or given by the shareholder to the corporation for the
purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have
been given if sent to that share-holder by mail or telegraphic or
other written communication to the corporation's principal execu-
tive office, or if published at least once in a newspaper of
general circulation in the county where that office is located.
Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram
or other means of written communication.
If any notice addressed to a shareholder at the address of
that shareholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is unable
to deliver the notice to the shareholder at that address, all
future notices or reports shall be deemed to have been duly given
without further mailing if these shall be available to the
shareholder on written demand of the shareholder at the principal
executive office of the corporation for a period of one year from
the date of the giving of the notice.
An affidavit of mailing or other means of giving any notice
of any shareholders' meeting shall be executed by the secretary,
assistant secretary, or any transfer agent of the corporation
giving the notice, and shall be filed and maintained in the minute
book of the corporation, and shall be prima facie evidence of the
giving of such notice.
Section 6. QUORUM;. The presence in person or by
proxy of the holders of a majority of the shares entitled to vote
at any meeting of shareholders shall constitute a quorum for the
trans-action of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE;. Any
shareholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the
majority of the shares represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other
business may be transacted at that meeting, except as provided in
Section 6 of this Article II.
When any meeting of shareholders, either annual or special,
is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place are announced at a
meeting at which the adjournment is taken, unless a new record
date for the adjourned meeting is fixed, or unless the adjournment
is for more than forty-five (45) days from the date set for the
original meeting, in which case the board of directors shall set a
new record date. Notice of any such adjourned meeting shall be
given to each shareholder of record entitled to vote at the
adjourned meeting in accordance with the provisions of Sections 4
and 5 of this Article II. At any adjourned meeting the
corporation may transact any business which might have been
transacted at the original meeting.
Section 8. VOTING;. The shareholders entitled to vote
at any meeting of shareholders shall be determined in accordance
with the provisions of Section 11 of this Article II, subject to
the provi-sions of Sections 702 to 704, inclusive of the
Corporations Code of California (relating to voting shares held by
a fiduciary, in the name of a corporation, or in joint ownership).
The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by
ballot if demanded by any share-holder before the voting has begun.
Except as provided in the last paragraph of this Section 8, or as
may be otherwise provided in the articles of incorporation, each
outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote of the shareholders. On
any matter other than elections of directors, any shareholder may
vote part of the shares in favor of the proposal and refrain from
voting the remaining shares or vote them against the proposal,
but, if the shareholder fails to specify the number of shares
which the shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder's approving vote is
with respect to all shares that the shareholder is entitled to
vote. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and voting on
any matter (other than the election of directors) shall be the act
of the shareholders, unless the vote of a greater number or voting
by classes or cumulative voting is required by California General
Corporation Law or by the articles of incorporation or by these
bylaws.
At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e.,
cast for any one or more candidates a number of votes greater than
the number of the shareholder's shares) unless the candidates'
names have been placed in nomination prior to commencement of the
voting and a shareholder has given notice prior to commencement of
the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder
entitled to vote may cumulate votes for candidates in nomination
and give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which
that shareholder's shares are entitled, or distribute the share-
holder's votes on the same principle among any or all of the
candidates, as the shareholder thinks fit. The candidates
receiving the highest number of votes, up to the number of
directors to be elected, shall be elected; votes against any
candidate and votes withheld shall have no legal effect.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT
SHARE-HOLDERS;. The transactions of any meeting of shareholders,
either annual or special, however called and noticed, and wherever
held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person
or by proxy, and if, either before or after the meeting, each
person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to a holding
of the meeting, or an approval of the minutes. The waiver of
notice or consent need not specify either the business to be
transacted or the purpose of any annual or special meeting of the
shareholders, except that if action is taken or proposed to be
taken for approval of any of those matters specified in the second
paragraph of Sec-tion 4 of this Article II, the waiver of notice or
consent shall state the general nature of the proposal. All such
waivers, consent, or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a
waiver of notice of that meeting, except when the person objects,
at the beginning of the meeting, to the transaction of any busi-
ness because the meeting is not lawfully called or convened, and
except that attendance at a meeting is not a waiver of any right
to object to the consideration of matters not included in the
notice of the meeting if that objection is expressly made at the
meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING;. Any action which may be taken at any annual
or special meting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth
the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that would
be necessary to
authorize or take that action at a meeting at which all shares
entitled to vote on that action were present and voted. In the
case of election of directors, such a consent shall be effective
only if signed by the holders of all outstanding shares entitled
to vote for the election of directors; provided, however, that a
director may be elected at any time to fill a vacancy on the board
of directors (provided that the vacancy was not created by removal
of a director and that it has not been filled by the directors) by
a majority of the outstanding shares entitled to vote for the
election of directors. All such consents shall be filed with the
secretary of the corpora-tion and shall be maintained in the corpo-
rate records. Any share-holder giving a written consent, or the
shareholders' proxy holders, or a transferee of the shares or a
personal representative of the shareholder or their respective
proxy holders, may revoke the consent by a writing received by the
secretary of the corpora-tion before written consents of the number
of shares required to authorize the proposed action have been
filed with the secretary.
If the consents of all shareholders entitled to vote have not
been solicited in writing, and if the unanimous written consent of
all such shareholders shall not have been received, the secretary
shall give prompt notice of the corporate action approved by the
shareholders without a meeting. This notice shall be given to
those shareholders entitled to vote who have not consented in
writing and shall be given in the manner specified in Section 5 of
this Article II. In the case of approval of (i) contracts or
trans-actions in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporations
Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a
reorganization of the corporation, pursuant to Section 1201 of
that Code, and (iv) a distribution in dissolution other than in
accor-dance with the rights of outstanding preferred shares,
pursuant to Section 2007 of that Code, the notice shall be given
at least ten (10) days before the consummation of any action
authorized by that approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING,
AND GIVING CONSENTS;. For purposes of determining the
shareholders entitled to notice of any meeting or to vote or
entitled to give consent to corporate action without a meeting,
the board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) days nor less than ten (10) days
before the date of any such meeting nor more than sixty (60) days
before any such action without a meeting, and in this event only
shareholders of record on the date so fixed are entitled to notice
and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in
the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders
enti-tled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(b) The record date for determining shareholders
enti-tled to give consent to corporate action in writing without a
meeting, (i) when no prior action by the board has been taken,
shall be the day on which the first written consent is given, or
(ii) when prior action of the board has been taken, shall be at
the close of business on the day on which the board adopts the
reso-lu-tion relating to that action, or the sixtieth (60th) day
before the date of such other action, whichever is later.
The record date for any other purpose shall be as provided in
Article VIII of these bylaws.
Section 12. PROXIES;. Every person entitled to vote
for directors or on any other matter shall have the right to do so
either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the secretary of the
corporation. A proxy shall be deemed signed if the shareholder's
name is placed on the proxy (whether by manual signature, type-
writing, telegraphic transmission, or otherwise) by the share-
holder or the shareholder's attorney in fact. A validly executed
proxy which does not state that it is irrevocable shall continue
in full force and effect unless (i) revoked by the person
executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked, or
by a subse-quent proxy executed by, or attendance at the meeting
and voting in person by, the person executing the proxy; or
(ii) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote pursuant
to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of eleven (11) months from the date
of the proxy, unless otherwise provided in the proxy. The dates
contained on the forms of proxy presumptively determine the order
of execution, regardless of the postmark dates on the envelopes in
which they are mailed. The revocability of a proxy that states on
its face that it is irrevocable shall be governed by the
provisions of Sections 705(e) and 705(f) of the Corporations Code
of California.
Section 13. INSPECTORS OF ELECTION;. Before any
meeting of shareholders, the board of directors may appoint any
person or persons other than nominees for office to act as an
inspector or inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the
chairman of the meet-ing may, and on the request of any shareholder
or a share-holder's proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the
request of one or more shareholders or proxies, the holders of a
majority of shares or their proxies present at the meeting shall
determine whether one (1) or three (3) inspectors are to be
appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and upon
the request of any shareholder or a shareholder's proxy shall,
appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting,
the existence of a quorum, and the authenticity, validity, and
effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions
in any way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS;
Section 1. POWERS;. Subject to the provisions of the
California General Corporation Law and any limitations in the
articles of incorporation and these bylaws relating to the action
required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under
the direction of the board of directors.
Section 2. NUMBER OF DIRECTORS;.
(a) The number of directors shall be not less than a
minimum of three nor more than a maximum of five. After adoption
or amendment of this bylaw by the shareholders, the exact number
of directors shall be fixed, within the limits specified in this
bylaw, by the following bylaw which may be amended from time to
time by the Board of Directors. The indefinite number of
directors may be changed, or a definite number may be fixed
without provision for an indefinite number, by a duly adopted
amendment to the articles of incorporation or by an amendment to
this bylaw duly adopted by the vote or written consent of holders
of a majority of the outstanding shares entitled to vote;
provided, however, that an amendment reducing the fixed number or
the minimum number of directors to a number less than five (5)
cannot be adopted if the votes cast against its adoption at a
meeting, or the shares not consenting in the case of an action by
written consent, are equal to more than sixteen and two-thirds
percent (16-2/3%) of the outstanding shares entitled to vote
thereon. No amendment may change the stated maximum number of
authorized directors to a number greater than two (2) times the
stated minimum number of directors minus one (1).
(b) The number of directors of the corporation shall
be five.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS;.
Directors shall be elected at each annual meeting of the share-
holders to hold office until the next annual meeting. Each
director, including a director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and
until a successor has been elected and qualified. No reduction of
the authorized number of directors shall have the effect of
removing any director before the director's term of office
expires.
Section 4. VACANCIES;. Vacancies in the board of
directors may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director, except
that a vacancy created by the removal of a director by the vote or
written consent of the shareholders or by court order may be
filled only by the vote of a majority of the shares entitled to
vote represented at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute a
majority of the required quorum), or by the written consent of
holders of a majority of the outstanding shares entitled to vote.
Each director so elected shall hold office until the next annual
meeting of shareholders and until a successor has been elected and
qualified.
A vacancy or vacancies in the board of directors shall be
deemed to exist in the event of the death, resignation, or removal
of any director, or if the board of directors by resolution
declares vacant the office of a director who has been declared of
unsound mind by an order of court or convicted of a felony, or if
the authorized number of directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the number of
directors to be voted for at that meeting.
The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the directors,
but any such election by written consent shall require the consent
of a majority of the outstanding shares entitled to vote.
Any director may resign effective on giving written notice to
the chairman of the board, the president, the secretary, or the
board of directors, unless the notice specifies a later time for
that resignation to become effective. If the resignation of a
director is effective at a future time, the board of directors may
elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of directors shall have
the effect of removing any director before that director's terms
of office expires.
Section 5. PLACE OF MEETINGS AND MEETINGS BY
TELEPHONE;. Regular meetings of the board of directors may be held
at any place within or outside the State of California that has
been designated from time to time by resolution of the board. In
the absence of such designation, regular meetings shall be held at
the principal executive office of the corporation. Special
meetings of the board shall be held at any place within or outside
the State of California that has been designated in the notice of
the meeting or, if not stated in the notice or there is no notice,
at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone
or similar communication equipment, so long as all directors
participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
Section 6. ANNUAL MEETING;. Immediately following
each annual meeting of shareholders, the board of directors shall
hold a regular meeting for the purpose of organization, any
desired elec-tion of officers, and the transaction of other
business. Notice of this meeting shall not be required.
Section 7. OTHER REGULAR MEETINGS;. Other regular
meetings of the board of directors shall be held without call at
such time as shall from time to time be fixed by the board of
directors. Such regular meetings may be held without notice.
Section 8. SPECIAL MEETINGS;. Special meetings of the
board of directors for any purpose or purposes may be called at
any time by the chairman of the board or the president or any vice
president or the secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail or telegram, charges prepaid, addressed to each
director at that director's address as it is shown on the records
of the corporation. In case the notice is mailed, it shall be
deposited in the United States mail at least four (4,) days before
the time of the holding of the meeting. In case notice is
delivered personally, or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph company
at least forty-eight (48) hours before the time of the holding of
the meeting. Any oral notice given personally or by telephone may
be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The
notice need not specify the purpose of the meeting nor the place
if the meeting is to be held at the principal executive office of
the corporation.
Section 9. QUORUM;. A majority of the authorized
number of directors shall constitute a quorum for the transaction
of business, except to adjourn as provided in Section 11 of this
Article III. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the board of directors,
subject to the provisions of Section 310 of the Corporations Code
of California (as to approval of contracts or transactions in
which a director has a direct or indirect material financial
interest), Section 311 of that Code (as to appointment of commit-
tees), and Section 317(e) of that Code (as to indemnification of
directors), the articles of incorporation, and other applicable
laws. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
Section 10. WAIVER OF NOTICE;. The transactions of any
meeting of the board of directors, however called and noticed or
wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice if a quorum is present and if,
either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes. The waiver of notice or
consent need not specify the purpose of the meeting. All such
waivers, consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Notice of a
meeting shall also be deemed given to any director who attends the
meeting without protesting before or at its commencement, the lack
of notice to that director.
Section 11. ADJOURNMENT;. A majority of the directors
present, whether or not constituting a quorum, may adjourn any
meeting to another time and place.
Section 12. NOTICE OF ADJOURNMENT;. Notice of the time
and place of holding an adjourned meeting need not be given,
unless the meeting is adjourned for more than twenty-four (24)
hours, in which case notice of the time and place shall be given
before the time of the adjourned meeting, in the manner specified
in Section 8 of this Article III, to the directors who were not
present at the time of adjournment.
Section 13. ACTION WITHOUT MEETING;. Any action
required or permitted to be taken by the board of directors may be
taken with-out a meeting, if all members of the board shall
individually or collectively consent in writing to that action.
Such action by written consent shall have the same force and
effect as an unani-mous vote of the board of directors. Such
written consent or consents shall be filed with the minutes of the
proceedings of the board.
Section 14. FEES AND COMPENSATION OF DIRECTORS;.
Directors and members of committees may receive such compensation,
if any, for their services, and reimbursement of expenses, as may
be fixed or determined by resolution of the board of directors.
This Section 14 shall not be construed to preclude any director
from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for
those services.
ARTICLE IV
COMMITTEES;
Section 1. COMMITTEE OF DIRECTORS;. The board of
directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees,
each consisting of two or more directors, to serve at the pleasure
of the board. The board may designate one or more directors as
alternate members of any committee, who may replace any absent
member at any meeting of the committee. Any committee, to the
extent provided in the resolution of the board, shall have all the
authority of the board, except with respect to:
(a) the approval of any action which, under the
General Corporation Law of California, also requires shareholders'
approval or approval of the outstanding shares;
(b) the filling of vacancies on the board of
directors or in any committee;
(c) the fixing of compensation of the directors for
serving on the board or on any committee;
(d) the amendment or repeal of bylaws or the adoption
of new bylaws;
(e) the amendment or repeal of any resolution of the
board of directors which by its express terms is not so amendable
or repealable;
(f) a distribution to the shareholders of the
corpora-tion, except at a rate or in a periodic amount or within a
price range determined by the board of directors; or
(g) the appointment of any other committees of the
board of directors or the members of these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES;.
Meetings and actions of committees shall be governed by, and held
and taken in accordance with, the provisions of Article III of
these bylaws, Section 5 (place of meetings) Section 7 (regular
meetings), Section 8 (special meetings and notice), Section 9
(quorum), Section 10 (waiver of notice), Section 11 (adjournment),
Section 12 (notice of adjournment) and Section 13 (action without
meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the
board of directors and its members, except that the time of
regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the
committee; special meetings of committees may also be called by
resolution of the board of directors; and notice of special
meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions
of these bylaws.
ARTICLE V
OFFICERS;
Section 1. OFFICERS;. The officers of the corporation
shall be a chairman of the board or a president, or both, a
secretary and a chief financial officer. The corporation may also
have, at the discretion of the board of directors, a chief
executive officer, a chief operating officer, one or more vice
presidents, one or more assistant secretaries, one or more
assistant treasurers, and such other officers as may be appointed
in accordance with the provi-sions of Section 3 of this Article V.
Any number of offices may be held by the same person.
Section 2. ELECTION OF OFFICERS;. The officers of the
corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be chosen by the board of directors, and each
shall serve at the pleasure of the board, subject to the rights,
if any, of an officer under any contract of employment. Any
contract of employ-ment with an officer shall be unenforceable
unless in writing and specifically authorized by the board of
directors.
Section 3. SUBORDINATE OFFICERS;. The board of
directors may appoint, and may empower the president to appoint,
such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such
authority and perform such duties as are provided in the bylaws or
as the board of directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS;.
Subject to the rights, if any, of any officer under any contract
of employ-ment, any officer may be removed, either with or without
cause, by the board of directors, at any regular or special
meeting of the board, or, except in case of an officer chosen by
the board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice
to the corporation. Any resignation shall take effect at the date
of receipt of that notice or at any later time specified in that
notice; and, unless otherwise specified in that notice, the
acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is
a party.
Section 5. VACANCIES IN OFFICES;. A vacancy in any
office because of death, resignation, removal, disqualification or
any
other cause shall be filled in the manner prescribed in these
bylaws for regular appointments to that office.
Section 6. CHAIRMAN OF THE BOARD;. The chairman of
the board, if such officer be elected, shall, if present, preside
at meeting of the board of directors and exercise and perform such
other powers and duties as may from time to time be assigned to
him by the board of directors or prescribed by the bylaws. If
there is no president or chief executive officer, the chairman of
the board shall act as chief executive officer of the corporation
and shall have the powers and duties prescribed in Section 7 of
this Article V.
Section 7. PRESIDENT;. Subject to any supervisory
powers, if any, as may be given by the board of directors to the
chairman of the board and/or chief executive officer, if there be
such an officer or officers, the president shall, subject to the
control of the board of directors, have general supervision,
direction, and control of the business and the affairs of the
corporation. In the absence of the chairman of the board, or if
there be none, he shall preside at all meetings of the
shareholders and at all meetings of the board of directors. He
shall have the general powers and duties of management usually
vested in the office of president of a corporation, and shall have
such other powers and duties as may be prescribed by the board of
directors or the bylaws.
Section 8. VICE PRESIDENTS;. In the absence or
disability of the chairman of the board, the chief executive
officer and the president, the vice presidents, if any, in order
of their rank as fixed by the board of directors or, if not
ranked, a vice presi-dent designated by the board of directors,
shall perform all the duties of the such officers, and when so
acting shall have all the powers of, and be subject to all the
restrictions upon, such officers. The vice presidents shall have
such other powers and perform such other duties as from time to
time may be prescribed for them respectively by the board of
directors, the chairman of the board, the chief executive officer,
or the president.
Section 9. SECRETARY;. The secretary shall keep or
cause to be kept, at the principal executive office or such other
place as the board of directors may direct, a book of minutes of
all meetings and action of the directors, committees of directors,
and shareholders, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice
given, the names of those present at directors' meetings or
committee meet-ings, the number of shares present or represented at
shareholders' meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of
the corporation's transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a
duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares,
and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the board of directors
required by the bylaws or by law to be given, and he shall keep
the seal of the corporation if one be adopted, in safe custody,
and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by the bylaws.
Section 10. CHIEF FINANCIAL OFFICER; TREASURER;. The
chief financial officer or, if there be none, the treasurer shall
keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and
busi-ness transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings, and shares. The books of account
shall at all reasonable times be open to inspection by any
director.
The chief financial officer (or the treasurer) shall deposit
all moneys and other valuables in the name and to the credit of
the corporation with such depositories as may be designated by the
board of directors. He shall disburse the funds of the corpora-
tion as may be ordered by the board of directors, shall render to
the chairman of the board, the chief executive officer, the
president and board of directors, whenever they request it, an
account of all of his transactions as chief financial officer (or
treasurer) and of the financial condition of the corporation, and
shall have other powers and perform such other duties as may be
prescribed by the board of directors or the bylaws.
Should there be no one serving in the capacity of chief
finan--cial officer, the treasurer (or, in his absence, the
assistant treasurer) shall exercise all of the duties and assume
all of the responsibilities of the chief financial officer.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS;
Section 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS;.
The corporation shall, to the maximum extent and in the manner
per-mitted by the Code, indemnify each of its directors and
officers
against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding (as defined
in Section 317(a) of the Code), arising by reason of the fact that
such person is or was an agent of the corporation. For purposes
of this Article VI, a "director" or "officer" of the corporation
includes any person (i) who is or was a director or officer of the
corporation, (ii) who is or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
Section 2. INDEMNIFICATION OF OTHERS;. The
corporation shall have the power, to the extent and in the manner
permitted by the Code, to indemnify each of its employees and
agents (other than directors and officers) against expenses (as
defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably incurred in
connection with any proceeding (as defined in Section 317(a) of
the Code), arising by reason of the fact that such person is or
was an agent of the corporation. For purposes of this Article VI,
an "employee" or "agent" of the corporation (other than a director
or officer) includes any person (i) who is or was an employee or
agent of the corporation, (ii) who is or was serving at the
request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation
which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation.
Section 3. PAYMENT OF EXPENSES IN ADVANCE;. Expenses
incurred in defending any civil or criminal action or proceeding
for which indemnification is required pursuant to Section 6.1 or
for which indemnification is permitted pursuant to Section 6.2
following authorization thereof by the Board of Directors shall be
paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on
behalf of the indemnified party to repay such amount if it shall
ultimately be determined that the indemnified party is not
entitled to be indemnified as authorized in this Article VI.
Section 4. INDEMNITY NOT EXCLUSIVE;. The
indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another
capacity while holding such office, to
the extent that such additional rights to indemnification are
authorized in the Articles of Incorporation.
Section 5. INSURANCE INDEMNIFICATION;. The
corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation against any
liability asserted against or incurred by such person in such
capacity or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article VI.
Section 6. CONFLICTS.; No indemnification or advance
shall be made under this Article VI, except where such
indemnification or advance is mandated by law or the order,
judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of
the Articles of Incorporation, these bylaws, a resolution of the
shareholders or an agreement in effect at the time of the accrual
of the alleged cause of the action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
ARTICLE VII
RECORDS AND REPORTS;
Section 1. MAINTENANCE AND INSPECTION OF SHARE
REGISTER;. The corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, if
either be appointed and as determined by resolution of the board
of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares
held by each shareholder.
A shareholder or shareholders of the corporation holding at
least five percent (5%) in the aggregate of the outstanding voting
shares of the corporation or who holds at least once percent (1%)
of such voting shares and has filed a Schedule 14B with the
Securities and Exchange Commission relating to the election of
directors may (i) inspect and copy the records of the
shareholders' names and addresses and shareholdings during usual
business hours on five (5) days' prior written demand on the
corporation and (ii) obtain from the transfer agent of the
corporation, on written
demand and on the tender of such transfer agent's usual charges
for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that
list has been compiled or as of a date specified by the
shareholder after the date of demand. This list shall be made
available to any shareholder by the transfer agent on or before
the later of five (5) days after the demand is received or five
(5) days after the date specified in the demand as the date as of
which the list is to be compiled. The record of shareholders
shall also be open to inspection on the written demand of any
shareholder or holder of a voting trust certificate, at any time
during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a
voting trust certificate. Any inspection and copying under this
Section 1 may be made in person or by an agent or attorney of the
shareholder or holder of a voting trust certificate making the
demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS;. The
corporation shall keep at its principal executive office, or if
its principal office is not in the State of California, at its
principal business office in this state, the original or a copy of
the bylaws as amended to date, which shall be open to inspection
by the shareholders at all reasonable times during office hours.
If the principal executive office of the corporation is outside
the State of California and the corporation has no principal
business in this state, the secretary shall, upon the written
request of any shareholder, furnish to that shareholder a copy of
the bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER
CORPORATE RECORDS;. The accounting books and records and minutes
of proceedings of the shareholders and the board of directors and
any committee or committees of the board of directors shall be
kept at such place or places designated by the board of directors,
or, in the absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept in written
form and the accounting books and records shall be kept either in
written form or in any form capable of being converted into
written form. The minutes and accounting books and records shall
be open to inspection upon the written demand of any shareholder
or holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to
the holder's interest as a shareholder or as the holder of a
voting trust certificate. The inspection may be made in person or
by an agent or attorney, and shall include the right to copy and
make extracts. These rights of inspection shall extend to the
records of each subsidiary corporation of the corporation.
Section 4. INSPECTION BY DIRECTORS;. Every director
shall have the absolute right at any reasonable time to inspect
all books, records, and documents of every kind and the physical
properties of the corporation and each of its subsidiary corpora-
tions. This inspection by a director may be made in person or by
an agent or attorney and the right of inspection includes the
right to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS;. The
corporation shall prepare and send to its shareholders an annual
report to shareholders as required by Section 1501 of the
California General Corporation Law.
ARTICLE VIII
GENERAL CORPORATE POWERS;
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE
AND VOTING;. For purposes of determining the shareholders
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 other lawful action (other than action by
shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action, and in that case
only shareholders of record on the date so fixed are entitled to
receive the dividend, distribution, or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the
record date so fixed, except as otherwise provided in the
California General Corporation Law.
If the board of directors does not so fix a record
date, the record date for determining shareholders for any such
purpose shall be at the close of business on the day on which the
board adopts the applicable resolution or the sixtieth (60th) day
before the date of that action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS;.
All checks, drafts, or other orders for payment of money, notes,
or other evidences of indebtedness, issued in the name of or
payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall
be determined by resolution of the board of directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW
EXECUTED;. The board of directors, except as otherwise provided
in these bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation, and this authority
may be
general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent, or employee shall
have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
Section 4. CERTIFICATE FOR SHARES;. A certificate or
certificates for shares of the capital stock of the corporation
shall be issued to each shareholder when any of these shares are
fully paid, and the board of directors may authorize the issuance
of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be
paid for them and the amount paid. All certificates shall be
signed in the name of the corporation by the chairman of the board
or vice chairman of the board or the president or vice president
and by the chief financial officer or an assistant treasurer or
the secretary or any assistant secretary, certifying the number of
shares and the class or series of shares owned by the shareholder.
Any or all of the signatures on the certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed on a certificate
shall have ceased to be that officer, transfer agent, or registrar
before that certificate is issued, it may be issued by the
corporation with the same effect as if that person were an
officer, transfer agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES;. Except as provided in
this Section 5, no new certificates for shares shall be issued to
replace an old certificate unless the latter is surrendered to the
corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for
any other security is lost, stolen or destroyed, authorize the
issuance of a replacement certificate on such terms and conditions
as the board may require, including provision for indemnification
of the corporation secured by a bond or other adequate security
sufficient to protect the corporation against any claim that may
be made against it, including any expense or liability, on account
of the alleged loss, theft, or destruction of the certificate or
the issuance of the replacement certificate.
Section 6. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS;. The chairman of the board, the president, or any
vice president, or any other person authorized by resolution of
the board of directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any
and all shares of any other corporation or corporations, foreign
or domestic, standing in the name of the corporation. The
authority granted to these officers to vote or represent on behalf
of the corporation any and all shares held by the corporation in
any other corporation or corpo-ra-
- - -tions may be exercised by any of these officers in person or by
any person authorized to do so by a proxy duly executed by these
officers.
Section 7. CONSTRUCTION AND DEFINITIONS;. Unless the
context requires otherwise, the general provisions, rules of
construction, and definitions in the California General
Corporation Law shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS;
Section 1. AMENDMENTS BY SHAREHOLDERS;. New bylaws
may be adopted or these bylaws may be amended or repealed by the
vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that if
the articles of incorporation of the corporation set forth the
number of authorized directors of the corporation, the authorized
number of directors may be changed only by an amendment of the
articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS;. Subject to the
rights of the shareholders as provided in Section 1 of this
Article IX, bylaws, other than a bylaw or an amendment of a bylaw
changing the authorized number of directors (except to fix the
authorized number of directors pursuant to a bylaw providing for a
variable number of directors), may be adopted, amended, or
repealed by the board of directors.
CERTIFICATE OF AMENDMENT NO. 1
OF THE BYLAWS OF
SYMMETRICOM, INC.
1. Article III, Section 15, was added to the Bylaws of this
corporation, effective July 21, 1993 by the Board of Directors to
read in its entirety as follows:
"Section 15. APPROVAL OF LOANS TO OFFICERS. The
corporation may, upon the approval of the board of directors
alone, make loans of money or property to, or guarantee the
obligations of, any officer of the corporation or its parent or
subsidiary, whether or not a director, or adopt an employee
benefit plan or plans authorizing such loans or guaranties
provided that (i) the board of directors determines that such a
loan or guaranty or plan may reasonably be expected to benefit the
corporation, (ii) the corporation has outstanding shares held of
record by 100 or more persons (determined as provided in Section
605 of the California Corporations Code) on the date of approval
by the board of directors, and (iii) the approval of the board of
directors is by a vote sufficient without counting the vote of any
interested director or directors."
BYLAWS
OF
SYMMETRICOM, INC.
BYLAWS
OF
SYMMETRICOM, INC.
TABLE OF CONTENTS
Page
ARTICLE I - OFFICES 1
Section 1. PRINCIPAL OFFICES 1
Section 2. OTHER OFFICES 1
ARTICLE II - MEETINGS OF SHAREHOLDERS 1
Section 1. PLACE OF MEETINGS 1
Section 2. ANNUAL MEETING 1
Section 3. SPECIAL MEETING 1
Section 4. NOTICE OF SHAREHOLDERS' MEETING 2
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF
NOTICE 3
Section 6. QUORUM 3
Section 7. ADJOURNED MEETING; NOTICE 4
Section 8. VOTING 4
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT
SHARE-HOLDERS 5
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING 5
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING,
AND GIVING CONSENTS 6
Section 12. PROXIES 7
Section 13. INSPECTORS OF ELECTION 8
ARTICLE III - DIRECTORS 8
Section 1. POWERS 8
Section 2. NUMBER OF DIRECTORS 9
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS 9
Section 4. VACANCIES 9
Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE 10
Section 6. ANNUAL MEETING 10
Section 7. OTHER REGULAR MEETINGS 10
Section 8. SPECIAL MEETINGS 11
Section 9. QUORUM 11
Section 10. WAIVER OF NOTICE 11
Section 11. ADJOURNMENT 12
Section 12. NOTICE OF ADJOURNMENT 12
Section 13. ACTION WITHOUT MEETING 12
Section 14. FEES AND COMPENSATION OF DIRECTORS 12
ARTICLE IV - COMMITTEES 12
Section 1. COMMITTEE OF DIRECTORS 12
Section 2. MEETINGS AND ACTION OF COMMITTEES 13
ARTICLE V - OFFICERS 14
Section 1. OFFICERS 14
Section 2. ELECTION OF OFFICERS 14
Section 3. SUBORDINATE OFFICERS 14
Section 4. REMOVAL AND RESIGNATION OF OFFICERS 14
Section 5. VACANCIES IN OFFICES 14
Section 6. CHAIRMAN OF THE BOARD 15
Section 7. PRESIDENT 15
Section 8. VICE PRESIDENTS 15
Section 9. SECRETARY 15
Section 10. CHIEF FINANCIAL OFFICER; TREASURER 16
ARTICLE VI - INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS 16
Section 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS 16
Section 2. INDEMNIFICATION OF OTHERS 17
Section 3. PAYMENT OF EXPENSES IN ADVANCE 17
Section 4. INDEMNITY NOT EXCLUSIVE 17
Section 5. INSURANCE INDEMNIFICATION 18
Section 6. CONFLICTS. 18
ARTICLE VII - RECORDS AND REPORTS 18
Section 1. MAINTENANCE AND INSPECTION OF SHARE
REGISTER 18
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS 19
Section 3. MAINTENANCE AND INSPECTION OF OTHER
CORPORATE RECORDS 19
Section 4. INSPECTION BY DIRECTORS 20
Section 5. ANNUAL REPORT TO SHAREHOLDERS 20
ARTICLE VIII - GENERAL CORPORATE POWERS 20
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE
AND VOTING 20
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS 20
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW
EXECUTED 20
Section 4. CERTIFICATE FOR SHARES 21
Section 5. LOST CERTIFICATES 21
Section 6. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS 21
Section 7. CONSTRUCTION AND DEFINITIONS 22
ARTICLE IX - AMENDMENTS 22
Section 1. AMENDMENTS BY SHAREHOLDERS 22
Section 2. AMENDMENT BY DIRECTORS 22