Exhibit 3.01(b)
BYLAWS
OF
ROSEVILLE COMTECH
TABLE OF CONTENTS
ARTICLE 1. Offices
1.01 Principal Office
1.02 Other Offices
ARTICLE 2. Meetings of Shareholders
2.01 Place
2.02 Annual Meeting
2.03 Special Meetings
2.04 Notice of Meetings
2.05 Manner of Giving Notice; Affidavit of Notice
2.06 Quorum
2.07 Adjourned Meetings and Notice Thereof
2.08 Consent of Absentees
2.09 Voting
2.10Shareholder Action by Written Consent Without a Meeting
2.11 Record Date for Shareholders
2.12 Proxies
ARTICLE 3. Directors
3.01 Powers
3.02 Number and Qualification of Directors
3.03 Election and Term of Office
3.04 Vacancies
3.05 Place of Meetings and Meetings by Telephone
3.06 Annual Meeting
3.07 Other Regular Meetings
3.08 Special Meetings -- Call and Notice
3.09 Waiver of Notice
3.10 Quorum
3.11 Action Without Meeting
3.12 Adjournment -- Notice
3.13 Fees and Compensation
3.15 Committees of Directors
3.16 Meetings And Action of Committees
ARTICLE 4. Officers
4.01 Number and Titles
4.02 Election
4.03 Removal, Resignation and Disqualification
4.04 Vacancies
4.05 President
4.06 Vice President
4.07 Secretary
4.08 Chief Financial Officer
4.09 Salaries
ARTICLE 5. Corporate Records and Reports
5.01Maintenance and Inspection of the Record of Shareholders
5.02 Maintenance and Inspection of Bylaws
5.03Maintenance and Inspection of Other Corporate Records
5.04 Inspection by Directors
5.05 Annual Report to Shareholders
5.06 Financial Statements
5.07 Annual Statement of General Information
ARTICLE 6. General Corporate Matters
6.01 Checks, Drafts and Evidences of Indebtedness
6.02Corporate Contracts and Instruments; How Executed
6.03 Certificates for Shares
6.04 Lost Certificates
6.05 Representation of Shares of Other Corporations
ARTICLE 7. Construction and Definitions
7.01 Construction and Definitions
ARTICLE 8. Amendments
8.01 Power of Shareholders
8.02 Power of Directors
BYLAWS
OF
ROSEVILLE COMTECH
ARTICLE 1.
Offices
1.01 Principal Office. The principal executive
office of the corporation shall be located in the City of
Roseville, County of Placer, State of California. The board of
directors shall have the power and authority to change the
principal office from one location to another in said County.
1.02 Other Offices. Branch or subordinate offices
may be established at any time by the board of directors at any
place or places where the corporation is qualified to do
business.
ARTICLE 2.
Meetings of Shareholders
2.01 Place. Meetings of shareholders, whether annual
or special, shall be held either at the principal executive
office or at any other place within or without the State of
California which may be designated either by the board of
directors in writing or by the written consent of all
shareholders entitled to vote thereat, which consent may be given
either before or after the meeting and filed with the secretary
of the corporation.
2.02 Annual Meeting. The annual meeting of
shareholders shall be held on the third Friday of June of each
year at a time designated by the board of directors. The date so
designated shall be within five months after the end of the
fiscal year of the corporation and within 15 months after the
last annual meeting. At each annual meeting directors shall be
elected and any other proper business may be transacted.
2.03 Special Meetings.
(a) Special meetings of the shareholders,
for any purpose or purposes whatsoever, may be called at any time
by the board of directors, the president, or by one or more
shareholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes at that meeting.
(b) If a special meeting is called by any
person other than the board of directors, 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 registered mail or by telegraphic
or other facsimile transmission to 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 entitled to vote, in accordance with the
provisions of Sections 2.04 and 2.05 hereof, that a meeting will
be held at the time requested by the person or persons calling
the meeting, not less than thirty (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 Section 2.03 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.
2.04 Notice of Meetings.
(a) All notices of meetings of shareholders
shall be sent or otherwise given in accordance with Section 2.05
hereof not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Such notice shall state the
place, date and hour of the meeting and (1) in the case of a
special meeting, the general nature of the business to be
transacted, and no other business may be transacted, or (2) 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 shareholders. 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, the board of
directors intends to present for election.
(b) If action is proposed to be taken at any
meeting for approval of (1) 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, (2) an
amendment of the articles of incorporation pursuant to Section
902 of that Code, (3) a reorganization of the corporation
pursuant to Section 1201 of that Code, (4) a voluntary
dissolution of the corporation pursuant to Section 1900 of that
Code or (5) 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.
2.05 Manner of Giving Notice; Affidavit of Notice.
(a) Notice of any meeting of shareholders
shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid,
addressed to each shareholder entitled to vote thereat at the
address of that shareholder appearing on the books of the
corporation 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 so given, notice shall be deemed to
have been given if it is sent to that shareholder by first-class
mail or telegraphic or other written communication to the
corporation's principal executive office or is 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.
(b) 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 to that shareholder without further mailing
if they 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 to all other shareholders.
(c) An affidavit of the mailing or other
means of giving any notice of any shareholders' meeting may be
executed by the secretary, assistant secretary or any transfer
agent of the corporation giving the notice, and filed and
maintained in the minute book of the corporation.
2.06 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
transaction of business at such meeting. 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.
2.07 Adjourned Meetings and Notice Thereof.
(a) 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
except as provided in Section 2.06.
(b) When a shareholders' meeting is
adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the
adjournment is for more than forty-five (45) days or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting, in
accordance with Sections 2.04 and 2.05 hereof.
2.08 Consent of Absentees.
(a) The transactions of any meeting of
shareholders, either annual or special, however called and
noticed, and wherever held, are as valid as though had at a
meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or
after the meeting, each of the persons entitled to vote, not
present in person or by proxy, signs a written waiver of notice
or a consent to the holding of the meeting or an approval of the
minutes thereof. Such waiver, consent or approval need not
specify either the business to be transacted or the purpose of
any annual or special meeting of shareholders, except that if
action is taken or proposed to be taken for approval of any of
those matters specified in Section 2.04(b) hereof, such waiver,
consent or approval shall state the general nature of the
proposal. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of
the meeting.
(b) 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 business 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 required by law to be included in the notice of the
meeting but not so included, if that objection is expressly made
at the meeting.
2.09 Voting.
(a) The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with
the provisions of Section 2.11 hereof, subject to the provisions
of Sections 702 to 704, inclusive, of the Corporations Code of
California (relating to voting shares held by a fiduciary and
others, in the name of a corporation or in joint ownership).
Except as provided in subsection (b) of this Section 2.09, each
outstanding share shall be entitled to one vote on each matter
submitted to a vote of the shareholders. The shareholders' vote
may be by voice vote or by ballot; provided, however, that any
election of directors must be by ballot if demanded by any
shareholder at the meeting and before the voting has begun. On
any matter other than elections to office, any shareholder may
vote part of his or her 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 a majority
of the shares represented and voting at a duly held meeting
(which shares voting affirmatively also shall constitute at least
a majority of the required quorum) shall be the act of the
shareholders (other than in respect of the election of
directors), unless the vote of a greater number or voting by
classes is required by California General Corporation Law or by
the articles of incorporation.
(b) No shareholder shall be entitled to
cumulate votes (i.e., cast for any one candidate a number of
votes greater than the number of votes which such shareholder
normally is entitled to cast) unless such candidate or
candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice at
the meeting prior to commencement of the voting of the
shareholder's intention to cumulate his or her votes. If any
shareholder has given such a notice, then every shareholder
entitled to vote may cumulate his or her 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 shareholder's votes on the same principle among
any or all of the candidates. The candidates receiving the
highest number of affirmative votes, up to the number of
directors to be elected, shall be elected.
2.10 Shareholder Action by Written Consent Without a
Meeting.
(a) Any action which may be taken at any
annual or special meeting 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 an 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 that has not
been filled by the directors, if such vacancy was created other
than by removal, by the written consent of the holders of 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 corporation and shall be maintained in the
corporate records. Any shareholder giving a written consent or
the shareholder's 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 corporation before written consents of the
number of shares required to authorize the proposed action have
been filed with the secretary, but may not do so thereafter.
(b) 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 has not been
received, the secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting to those
shareholders entitled to vote who have not consented in writing.
This notice shall be given in the manner specified in Section
2.05 hereof. In the case of approval of (1) contracts or
transactions in which a director has a direct or indirect
financial interest pursuant to Section 310 of the Corporations
Code of California, (2) indemnification of agents of the
corporation pursuant to Section 317 of that Code, (3) a
reorganization of the corporation pursuant to Section 1201 of
that Code or (4) 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 be given
at least (10) ten days before the consummation of any action
authorized by that approval.
2.11 Record Date for Shareholders.
(a) For purposes of determining the
shareholders entitled to notice of any meeting or to vote or
entitled to receive payment of any dividend or other distribution
or allotment of any rights or entitled to exercise any rights in
respect of any other lawful action, the board of directors may
fix, in advance, a record date, which shall not be more than
sixty (60) days nor less than ten days before the date of any
such meeting nor more than sixty (60) days before any other
action.
(b) If the board of directors does not fix a
record date, the record date for determining shareholders
entitled 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.
(c) If the board of directors does not fix a
record date, the record date for determining shareholders
entitled to give consent to corporate action in writing without a
meeting, when no prior action by the board has been taken, shall
be the day on which the first written consent is given.
(d) The record date for determining
shareholders for any other purpose shall be at the close of
business on the day on which the board adopts the resolution
relating thereto or the sixtieth (60th) day before the date of
such other action, whichever is later.
(e) Only shareholders of record at the close
of business on the record date shall be entitled to notice and to
vote or 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, except as otherwise provided
in the California General Corporation Law.
2.12 Proxies.
(a) Every person entitled to vote shares
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, typewriting, telegraphic
transmission or otherwise) by the shareholder or the
shareholder's attorney in fact.
(b) A validly executed proxy which does not
state that it is irrevocable shall continue in full force and
effect unless (1) revoked by the person executing it, before the
vote pursuant to that proxy, by (i) a writing delivered to the
corporation stating that the proxy is revoked, (ii) by a
subsequent proxy executed by the person executing the prior proxy
and presented to the meeting or (iii) as to any meeting, by
attendance at such meeting and voting in person by the person
executing the proxy, or (2) 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.
(c) 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.
ARTICLE 3.
Directors
3.01 Powers. Subject to limitations of the articles
of incorporation, these bylaws and the California General
Corporation Law as to action to be authorized or approved by
shareholders, and subject to the duties of directors as
prescribed by these bylaws, 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.
3.02 Number and Qualification of Directors. The
authorized number of directors of the corporation shall be five
(5). The authorized number of directors may be changed only by
an amendment of this Section 3.02 duly adopted by the vote or
written consent of the holders of a majority of the outstanding
shares entitled to vote; provided, however, that an amendment
reducing the number to 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 action by written consent, are
equal to more than 16-2/3 percent of the outstanding shares
entitled to vote.
3.03 Election and Term of Office. At each annual
meeting of the shareholders, directors shall be elected 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.
3.04 Vacancies.
(a) A vacancy on the board of directors
shall be deemed to exist when any authorized position of director
is not filled by a duly elected director, whether caused by
death, resignation, removal, change in the authorized number of
directors or otherwise.
(b) The board of directors may remove for
cause any director who has been declared of unsound mind by an
order of court or convicted of a felony.
(c) Any or all of the directors may be
removed without cause if such removal is approved by the
affirmative vote of a majority of the outstanding shares entitled
to vote, subject to the provisions of Section 303 of the
Corporations Code of California.
(d) Vacancies on the board of directors may
be filled by a majority of the directors then in office, or, if
the number of directors then in office is less than a quorum, by
(1) the unanimous written consent of directors then in office,
(2) the affirmative vote of a majority of directors then in
office at a meeting complying with Section 307 of the Corporation
Code of California, or (3) a sole remaining director, except that
a vacancy created by the removal of a director may be filled only
by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote.
(e) Each director elected to fill a vacancy
shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and
qualified.
(f) The shareholders may elect a director at
any time to fill any vacancy not filled by the board of
directors. Any such election by written consent shall require
the consent of the holders of a majority of the outstanding
shares entitled to vote.
(g) Any director may resign effective on
giving written notice to the president, the secretary or the
board of directors. The notice may specify that the resignation
is effective at a later time, in which case a successor may be
elected to take office when the resignation becomes effective.
(h) Reduction of the authorized number of
directors shall not have the effect of removing any director
prior to the expiration of the director's term of office.
3.05 Place of Meetings and Meetings by Telephone.
(a) Regular meetings of the board of
directors may be held at any place within or without the State of
California that has been designated from time to time by
resolution of the board of directors. In the absence of such a
designation, regular meetings shall be held at the principal
executive office of the corporation.
(b) Special meetings of the board of
directors shall be held at any place within or without the State
of California that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice,
at the principal executive office of the corporation.
(c) 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. All such directors shall be deemed to be present in
person at the meeting.
3.06 Annual Meeting. Immediately following each
annual meeting of shareholders, the board of directors shall hold
a regular meeting for the purpose of organization, election of
officers, and the transaction of other business. Notice of such
meeting shall not be required.
3.07 Other Regular Meetings. Other regular meetings
of the board of directors may be held without notice at such time
as shall from time to time be fixed by the board of directors.
3.08 Special Meetings -- Call and Notice.
(a) Special meetings of the board for any
purpose or purposes may be called at any time by the president,
any vice president, the secretary or any two (2) directors.
(b) Notice of the time and place of special
meetings shall be (1) delivered personally or by telephone or
telegraph at least forty-eight (48) hours in advance of the
meeting or (2) sent by first-class mail, postage prepaid, at
least four days in advance of the meeting. The notice or waiver
of notice need not specify the purpose of the meeting.
3.09 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 the notice, a consent to
holding such meeting or an approval of the minutes thereof. All
such waivers, consents or 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, prior thereto or at
its commencement, the lack of notice to that director.
3.10 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 3.12 hereof.
Every act or decision by a majority of the directors present at a
meeting duly held at which a quorum is present shall be regarded
as the act of the board of directors, unless a greater number is
required by law or by the articles of incorporation. Business
may continue to be transacted at a meeting at which a quorum is
initially present notwithstanding the withdrawal of directors,
provided that any action taken is approved by at least a majority
of the required quorum for such meeting.
3.11 Action Without Meeting. Any action required or
permitted to be taken by the board of directors may be taken
without a meeting if all members of the board of directors
individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes
of the proceedings of the board of directors. Action by written
consent shall have the same force and effect as the unanimous
vote of the board of directors.
3.12 Adjournment -- Notice. A majority of the
directors present, whether or not a quorum is present, may
adjourn any directors' meeting to another time and place. If the
meeting is adjourned for more than twenty-four (24) hours, notice
of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to all directors not present
at the time of the adjournment.
3.13 Fees and Compensation. Directors shall not
receive any stated salary for their services as directors, but,
by resolution of the board of directors, a fixed fee, with or
without expenses of attendance, may be allowed for attendance at
each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and
receiving compensation therefor.
3.14 Indemnification.
(a) For the purpose of this Section 3.14,
"agent" means any person who is or was a director, officer,
employee, or other agent of this corporation, or is or was
serving at the request of this corporation as a director,
officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other
enterprise, or was a director, officer, employee, or agent of a
foreign or domestic corporation which was a predecessor
corporation of this corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative, or investigative; and "expenses"
includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under Section (d) or
Section (e)(iii) of this Section 3.14.
(b) This corporation shall indemnify any
person who was or is a party, or is threatened to be made a
party, to any proceeding (other than an action by or in the right
of this corporation to procure a judgment in its favor) by reason
of the fact that such person is or was an agent of this
corporation, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best
interests of this corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of
such person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best
interests of this corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
(c) This corporation shall indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action by or in
the right of this corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of this
corporation, against expenses actually and reasonably incurred by
such person in connection with the defense or settlement of such
action if such person acted in good faith, in a manner such
person believed to be in the best interests of this corporation.
No indemnification shall be made under this Section 3.14(c) for
any of the following:
(i) In respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to this corporation and its shareholders, unless and only
to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for the expenses which the court shall
determine; or
(ii) Of amounts paid in settling or
otherwise disposing of a pending action without court approval;
or
(iii) Of expenses incurred in defending
a pending action which is settled or otherwise disposed of
without court approval.
(d) To the extent that an agent of this
corporation has been successful on the merits in defense of any
proceeding referred to in Section (b) or (c) of this Section 3.14
or in defense of any claim, issue, or matter therein, the agent
shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
(e) Except as provided in Section (d) of
this Section 3.14, any indemnification under this Section shall
be made by this corporation only if authorized in the specific
case upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections (b) and (c)
of this Section 3.14, by any of the following:
(i) A majority vote of a quorum
consisting of directors who are not parties to such proceeding;
or
(ii) If such a quorum of directors is
not obtainable, by independent legal counsel in a written
opinion; or
(iii) Approval of the shareholders,
with the shares owned by the person to be indemnified not being
entitled to vote thereon. For the purposes of this subsection,
"approval of the shareholders" means approved or ratified by the
affirmative vote of a majority of the shares of this corporation
represented and voting at a duly held meeting at which a quorum
is present (which shares voting affirmatively shall also
constitute at least a majority of the required quorum) or by the
written consent signed by the holders of a majority of the
outstanding shares entitled to vote, which written consent shall
be procedurally procured in the manner provided by law; or
(iv) The court in which the proceeding
is or was pending upon application made by this corporation or
the agent of the attorney or other person rendering services in
connection with the defense, whether or not such application by
the agent, attorney, or other person is opposed by this
corporation.
(f) Expenses incurred in defending any
proceeding shall be advanced by this corporation before the final
disposition of the proceedings on receipt of an undertaking by or
on behalf of the agent to repay the amount of the advance unless
it shall be determined ultimately that the agent is entitled to
be indemnified as authorized in this Section 3.14.
(g) The indemnification provided by this
Section 3.14 shall not be exclusive of any other rights to which
those seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders, or vote of 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 such additional rights to indemnification are
authorized in the Articles of Incorporation of this corporation.
Nothing contained in this Section 3.14 shall affect any right to
indemnification to which persons other than directors and
officers of this corporation or any subsidiary hereof may be
entitled by contract or otherwise.
(h) No indemnification or advance shall be
made under this Section 3.14, except as provided in Section (d)
or Section (e)(iii), in any circumstance where it appears:
(i) That it would be inconsistent with
a provision of the articles, bylaws, a resolution of the
shareholders, or an agreement in effect at the time of the
accrual of the alleged cause of action asserted in the proceeding
in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(ii) That it would be inconsistent with
any condition expressly imposed by a court in approving a
settlement.
(i) Upon and in the event of a determination
by the board of directors of this corporation to purchase such
insurance, this corporation shall purchase and maintain insurance
on behalf of any agent of the corporation against any liability
asserted against or incurred by the agent in such capacity or
arising out of the agent's status as such whether or not this
corporation would have the power to indemnify the agent against
that liability under the provisions of this Section 3.14.
(j) This Section 3.14 does not apply to any
proceeding against any trustee, investment manager, or other
fiduciary of an employee benefit plan in that person's capacity
as such, even though that person may also be an agent of the
corporation as defined in Section (a) of this Section 3.14.
Nothing contained in this Section 3.14 shall limit any right to
indemnification to which such a trustee, investment manager, or
other fiduciary may be entitled by contract or otherwise, which
shall be enforceable to the extent permitted by applicable law
other than this Section 3.14.
(k) The rights to indemnity provided for in
this Section 3.14 shall continue as to a person who has ceased to
be a director, office, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of the
person.
(l) If a claim under this Section 3.14 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 shall be twenty days, the indemnitee may at any
time thereafter bring suit against this corporation to recover
the unpaid amount of the claim. If successful in whole or in part
in any suit or in a suit brought by this corporation to recover
an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. The indemnitee's
failure to meet any applicable standard of conduct set forth in
the General Corporation Law of the State of California shall
(i) be a defense in 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) and (ii) entitle this corporation to recover expenses
advanced pursuant to an undertaking that this corporation shall
be entitled to recover such expenses upon a final adjudication
that the indemnitee failed to meet applicable standards of
conduct. Neither the failure of this corporation (including the
Board of Directors, independent legal counsel, or its
shareholders) 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 any
applicable standard of conduct set forth in the General
Corporation Law of the State of California, nor an actual
determination by this corporation (including the Board of
Directors, independent legal counsel, or its shareholders) that
the indemnitee has not met any such applicable standard of
conduct, shall 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 hereunder,
or by this 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 3.14 or otherwise
shall be on the corporation.
(m) The Board of Directors may, without
shareholder approval, authorize the corporation to enter into
agreements, including any amendments or modifications thereto,
with any of its directors, officers or other persons described in
paragraph (a) providing for indemnification of such persons to
the maximum extent permitted under applicable law and the
corporation's Articles of Incorporation and Bylaws.
3.15 Committees 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 (2) 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. The appointment of
members or alternate members of a committee requires the vote of
a majority of the authorized number of directors. Any such
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 corporation, 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 thereof.
3.16 Meetings And Action of Committees. Meetings and
action of committees shall be governed by, and held and taken in
accordance with, the provisions of Article III of these bylaws,
Sections 3.05 (place of meetings), 3.06 and 3.07 (regular
meetings), 3.08 (special meetings and notice), 3.09 (waiver of
notice), 3.10 (quorum), 3.11 (action without meeting), and 3.12
(adjournment and notice), 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 by
resolution of the board of directors as well as 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 4.
Officers
4.01 Number and Titles. The officers of the
corporation shall be a president, a vice president, a secretary
and a chief financial officer. The corporation may also have, at
the discretion of the board of directors, a chairman of the
board, one or more additional vice presidents, one or more
assistant secretaries, one or more assistant treasurers and such
other officers as may be appointed by the board of directors,
each of whom shall hold office for such period, have such
authority and perform such duties as the board of directors may
from time to time determine. Officers other than the chairman of
the board need not be directors. Any number of offices may be
held by the same person.
4.02 Election. The officers of the corporation shall
be chosen by and serve at the pleasure of the board of directors,
subject to the rights, if any, of an officer under any contract
of employment. Each officer of the corporation shall hold office
until such person resigns or is removed or until a successor is
elected and has qualified or until such person becomes
disqualified to serve.
4.03 Removal, Resignation and Disqualification.
(a) Subject to the rights, if any, of an
officer under a contract of employment, any officer may be
removed, either with or without cause, by the board of directors
or, except in the 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.
(b) Any officer may resign at any time by
giving written notice to the board of directors, president, or
secretary of the corporation. Any such resignation shall take
effect at the date of the receipt of such notice or at any later
time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make
it effective. Any such resignation shall be without prejudice to
the rights, if any, of the corporation under any contract to
which the officer is a party.
4.04 Vacancies. 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 such office.
4.05 President. The president shall be the chief
executive officer of the corporation and shall, subject to the
control of the board of directors, have general supervision,
direction and control of the business and officers of the
corporation. In the absence or disability of the chairman of the
board, the president shall preside at all meetings of the
shareholders and at all meetings of the board of directors. The
president 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 these bylaws.
4.06 Vice President. In the absence or disability of
the president, the vice presidents in order of their rank as
fixed by the board of directors, or if not ranked, the vice
president designated by the board of directors, shall perform all
the duties of the president, and when so acting shall have all
the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall 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 or these bylaws.
4.07 Secretary.
(a) The secretary shall keep, or cause to be
kept at the principal executive office or such other place as the
board of directors may order, a book of minutes of all meetings
and actions of directors and shareholders, with the time and
place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those
present at directors' meetings, the number of shares present or
represented at shareholders' meetings and the proceedings
thereof.
(b) The secretary shall keep or cause to be
kept at the principal executive office a record of shareholders
or a duplicate record of shareholders, showing the names of the
shareholders and their addresses, the number and classes of
shares held by each, the number and date of certificates issued
for the same and the number and date of cancellation of every
certificate surrendered for cancellation.
(c) The secretary shall give, or cause to be
given, notice of all the meetings of the shareholders and of the
board of directors required by these bylaws to be given and shall
have such other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
4.08 Chief Financial Officer.
(a) The chief financial officer (who may
also use the title of treasurer) shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and
records of account of the properties and business 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 times be
open to inspection by any director.
(b) The chief financial officer shall
deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositaries as may be
designated by the board of directors. Such person shall disburse
the funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever
they request it, an account of all of his or her transactions as
chief financial officer and of the financial condition of the
corporation, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or
these bylaws.
4.09 Salaries. The salaries of the officers shall be
fixed from time to time by the board of directors, and no officer
shall be prevented from receiving such salary by reason of the
fact that such person is also a director of the corporation.
ARTICLE 5.
Corporate Records and Reports
5.01 Maintenance and Inspection of the Record of
Shareholders.
(a) The corporation shall keep at its
principal executive office a record of its shareholders, giving
the names and addresses of all shareholders and the number and
class of shares held by each shareholder.
(b) A shareholder or shareholders of the
corporation holding at least five percent (5%) in the aggregate
of the outstanding voting shares of the corporation may inspect
and copy the records of shareholders' names and addresses and
shareholdings during usual business hours on five (5) days' prior
written demand upon the corporation.
(c) 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.
(d) Any inspection and copying under this
Section 5.01 may be made in person or by an agent or attorney of
the shareholder or holder of a voting trust certificate making
the demand.
5.02 Maintenance and Inspection of Bylaws. The
corporation shall keep at its principal executive office, or, if
its principal executive 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 office 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.
5.03 Maintenance and Inspection of Other Corporate
Records.
(a) The accounting books and records and
minutes of proceedings of the shareholders and 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 other form
capable of being converted into written form.
(b) 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.
5.04 Inspection by Directors. Every director shall
have the absolute right at any reasonable time to inspect and
copy all books, records and documents of every kind and the
physical properties of the corporation and each of its subsidiary
corporations. 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.
5.05 Annual Report to Shareholders. The annual
report to shareholders referred to in Section 1501 of the
Corporations Code of California is expressly dispensed with, but
nothing herein shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the
shareholders of the corporation as they consider appropriate.
5.06 Financial Statements.
(a) A copy of any annual, semi-annual or
quarterly income statements and any accompanying balance sheets
that have been prepared by the corporation shall be kept on file
in the principal executive office of the corporation for twelve
(12) months and each such statement shall be exhibited at all
reasonable times to any shareholder demanding an examination of
any such statement or a copy shall be mailed to any such
shareholder.
(b) If no annual report for the last fiscal
year has been sent to shareholders, the corporation shall, upon
the written request of any shareholder made more than one hundred
twenty (120) days after the close of such fiscal year, deliver or
mail the annual report to the person making the request within
thirty (30) days thereafter. A shareholder or shareholders
holding at least five percent (5%) of the outstanding shares of
any class of stock of the corporation may make a written request
to the corporation for an income statement of the corporation for
the three-month, six-month or nine-month period of the then
current fiscal year ended more than thirty (30) days before the
date of the request, a balance sheet of the corporation as of the
end of that period and an annual report for the last fiscal year
if none has been sent to shareholders. The chief financial
officer shall deliver personally or mail the statement or
statements requested to the person making the request within
thirty (30) days after the receipt of the request.
(c) The quarterly income statements and
balance sheets referred to in this section shall be accompanied
by the report, if any, of any independent accountants engaged by
the corporation or the certificate of an authorized officer of
the corporation that the financial statements were prepared
without audit from the books and records of the corporation.
5.07 Annual Statement of General Information. The
corporation shall file with the Secretary of State of the State
of California, on the prescribed form, a statement setting forth
the authorized number of directors, the names and complete
business or residence addresses of all incumbent directors, the
names and complete business or residence addresses of the chief
executive officer, secretary and chief financial officer, the
street address of its principal executive office or principal
business office in this state and the general type of business
constituting the principal business activity of the corporation,
together with a designation of the agent of the corporation for
the purpose of service of process, all in compliance with Section
1502 of the Corporations Code of California.
ARTICLE 6.
General Corporate Matters
6.01 Checks, Drafts and Evidences of Indebtedness.
All checks, drafts, or other orders for payment of money, notes
or other evidence 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.
6.02 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.
6.03 Certificates for Shares.
(a) A certificate or certificates for shares
of the capital stock of the corporation shall be issued to each
shareholder when such 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.
(b) All certificates shall be signed in the
name of the corporation by 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 cease 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.
6.04 Lost Certificates. Except as provided in this
section, no new certificate 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 alleged to have been 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.
6.05 Representation of Shares of Other Corporations.
The president, 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 corporations 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.
ARTICLE 7.
Construction and Definitions
7.01 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 8.
Amendments
8.01 Power of 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.
8.02 Power of Directors. Subject to the right of
shareholders as provided in Section 8.01 to adopt, amend, or
repeal bylaws, bylaws other than a bylaw or amendment thereof
changing the authorized number of directors may be adopted,
amended or repealed by the board of directors.