BYLAWS
OF
ILC TECHNOLOGY, INC.,
a California corporation
AMENDED AND RESTATED
as of November 21, 1996
ARTICLE 1
OFFICES
Section 1.1. Principal Office. The principal office for the transaction of the
business of the corporation shall be located at 399 Java Drive, Sunnyvale,
California 94089. The Board of Directors is hereby granted full power and
authority to change said principal office to another location within or without
the State of California.
Section 1.2. Other Offices. One or more branch or other subordinate offices may
at any time be fixed and located by the Board of Directors at such place or
places within or without the State of California as it deems appropriate.
ARTICLE 2
DIRECTORS
Section 2.1. Exercise of Corporate Powers. Except as otherwise provided by the
Articles of Incorporation of the corporation or by the laws of the State of
California now or hereafter in force, 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. The Board may delegate the
management of the day-to-day operation of the business of the corporation as
permitted by law provided that the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised under the ultimate
direction of the Board.
Section 2.2. Number.
(a) The number of the corporation's directors shall be not less than six
(6) nor more than eleven (11).
(b) The exact number of the corporation's directors shall be six (6) until
changed, within the limits specified above, by a resolution duly
approved by the Board or shareholders.
Section 2.3. Need Not Be Shareholders. The directors of the corporation need not
be shareholders of the corporation.
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Section 2.4. Compensation. Directors shall receive such compensation for their
services as directors and such reimbursement for their expenses of attendance at
meetings as may be determined from time to time by resolution of the Board.
Nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
Section 2.5. Election and Term of Office. At each annual meeting of
shareholders, directors shall be elected to hold office until the next annual
meeting, provided that if for any reason said annual meeting or an adjournment
thereof is not held or the directors are not elected thereat, then the directors
may be elected at any special meeting of the shareholders called and held for
that purpose. The term of office of the directors shall begin immediately after
their election and shall continue until the expiration of the term for which
elected and until their respective successors have been elected and qualified.
Section 2.6. Vacancies. A vacancy or vacancies in the Board of Directors shall
exist when any authorized position of director is not then filled by a duly
elected director, whether caused by death, resignation, removal, change in the
authorized number of directors (by the Board or the shareholders) or otherwise.
The Board of Directors may declare vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony. A
vacancy created by the removal of a director may be filled only by the approval
of the shareholders. Except for a vacancy created by the removal of a director,
vacancies on the Board may be filled by a majority of the directors then in
office, whether or not less than a quorum, or by a sole remaining director. The
shareholders may elect a director at any time to fill any vacancy not filled by
the directors, but any such election by written consent other than to fill a
vacancy created by removal requires the consent of a majority of the outstanding
shares entitled to vote. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary, or the Board
of Directors of the corporation, unless the notice specifies a later time for
the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
Section 2.7. Removal.
2.7.1. General Rule. Any and 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 at an election of directors, except as set
forth in subsections 2.7.2 and 2.7.3.
2.7.2. Supermajority Vote Required. No director may be removed (unless the
entire Board is removed) when the votes cast against removal, or not consenting
in writing to such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were cast
(or, if such action is taken by written consent, all shares entitled to vote
were voted) and the entire number of directors authorized at the time of the
director's most recent election were then being elected;
2.7.3. Class Vote. When by the provisions of the Articles the holders of the
shares of any class or series, voting as a class or series, are entitled to
elect one or more directors,
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any director so elected may be removed only by the applicable vote of the
holders of the shares of that class or series.
2.7.4. Effect of Reduction of Size of Board. Any reduction of the authorized
number of directors does not remove any director prior to the expiration of such
director's term of office.
Section 2.8. Meetings of Directors.
2.8.1. Place of Meetings. Unless otherwise specified in the notice thereof,
meetings (whether regular, special or adjourned) of the Board of Directors of
the corporation shall be held at the principal office of the corporation for the
transaction of business, as specified in accordance with Section 1.1, which is
hereby designated as an office for such purpose in accordance with the laws of
the State of California, or at any other place within or without the State which
has been designated from time to time by resolution of the Board or by written
consent of all members of the Board.
2.8.2. Regular Meetings. Regular meetings of the Board of Directors, of which no
notice need be given except as required by the laws of the State of California,
shall be held after the adjournment of each annual meeting of the shareholders
(which meeting shall be designated the Regular Annual Meeting) and at such other
times as may be designated from time to time by resolution of the Board of
Directors. Such regular meetings shall be held at the principal office of the
corporation for the transaction of business as specified in accordance with
Section 1.1 or at any other place within or without the State of California
which has been designated from time to time by resolution of the Board or by
written consent of all members of the Board, unless notice of the place thereof
be given in the same manner as for special meetings.
2.8.3. Special Meetings. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board, the President, any Vice
President, the Secretary, or any two or more of the directors.
2.8.4. Notice of Meetings. Except in the case of regular meetings, notice of
which has been dispensed with, all meetings of the Board of Directors shall be
held upon four (4) days' notice by mail or forty-eight (48) hours' notice
delivered personally or by telephone, telegraph, or other electronic or wireless
means. If the address of a director is not shown on the records and is not
readily ascertainable, notice shall be addressed to him at the city or place in
which the meetings of the directors are regularly held. Except as set forth in
subsection 2.8.6, notice of the time and place of holding an adjourned meeting
need not be given to absent directors if the time and place be fixed at the
meeting adjourned.
2.8.5. Quorum. A majority of the authorized number of directors constitutes a
quorum of the Board for the transaction of business. 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 except
as otherwise provided by law. A meeting at which a quorum is initially present
may continue to transact business notwithstanding the
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withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
2.8.6. Adjourned Meetings. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. If the
meeting is adjourned for more than 24 hours, notice of any adjournment to
another time or place shall be given prior to the time of the adjourned meeting
to the directors who were not present at the time of the adjournment.
2.8.7. Waiver of Notice and Consent. Notice of a meeting need not be given to
any director who signs a waiver of notice or a consent to holding the meeting or
an approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
2.8.8. Action Without a Meeting. Any action required or permitted to be taken by
the Board may be taken without a meeting, if all members of the Board shall
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. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
2.8.9. Conference Telephone Meetings. Members of the Board may participate in a
meeting through use of conference telephone or similar communications equipment,
so long as all members participating in such meeting can hear one another.
Participation in a meeting pursuant to this Section constitutes presence in
person at such meeting.
2.8.10. Meetings of Committees. The provisions of this Section apply also to
committees of the Board and action by such committees, with such changes in
points of detail as may be necessary.
ARTICLE 3
OFFICERS
Section 3.1. Election and Qualifications. The officers of the corporation shall
consist of a President, one or more Vice Presidents, a Secretary, and a Chief
Financial Officer who shall be chosen by the Board of Directors and such other
officers, including a Chairman of the Board, as the Board of Directors shall
deem expedient, who shall be chosen in such manner and hold their offices for
such terms as the Board of Directors may prescribe. Any two or more of such
offices may be held by the same person. Any Vice President, Assistant Treasurer,
or Assistant Secretary may exercise any of the powers of the President, the
Chief Financial Officer, or the Secretary, respectively, as directed by the
Board of Directors, and shall perform such other duties as are imposed upon such
officer by the Bylaws or the Board of Directors.
Section 3.2. Term of Office and Compensation. The term of office and salary of
each of said officers and the manner and time of the payment of such salaries
shall be fixed and
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determined by the Board of Directors and may be altered by said Board from time
to time at its pleasure, subject to the rights, if any, of said officers under
any contract of employment.
Section 3.3. Removal and Vacancies. Any officer of the corporation may be
removed at the pleasure of the Board of Directors at any meeting or at the
pleasure of any officer who may be granted such power by a resolution of the
Board of Directors. Any officer may resign at any time upon written notice to
the corporation without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. If any vacancy occurs in any
office of the corporation, the Board of Directors may elect a successor to fill
such vacancy for the remainder of the unexpired term and until a successor is
duly chosen and qualified.
ARTICLE 4
CHAIRMAN OF THE BOARD
The Chairman of the Board of Directors, if there be one, shall have the power to
preside at all meetings of the Board of Directors, and to call meetings of the
shareholders and of the Board of Directors to be held within the limitations
prescribed by law or by these Bylaws, at such times and at such places as the
Chairman of the Board shall deem proper. The Chairman of the Board shall have
such other powers and shall be subject to such other duties as the Board of
Directors may from time to time prescribe.
ARTICLE 5
PRESIDENT
Section 5.1. Powers and Duties. The powers and duties of the President are:
(a) To act as the chief executive officer of the corporation and, subject
to the control of the Board of Directors, to have general supervision,
direction, and control of the business and affairs of the corporation.
(b) To preside at all meetings of the shareholders and, in the absence of
the Chairman of the Board, or if there be none, at all meetings of the
Board of Directors.
(c) To call meetings of the shareholders and also of the Board of
Directors to be held, subject to the limitations prescribed by law or
by these Bylaws, at such times and at such places as the President
shall deem proper.
(d) Subject to the direction of the Board of Directors, to have general
charge of the property of the corporation and to supervise and control
all officers, agents, and employees of the corporation.
Section 5.2. President Pro Tem. If neither the Chairman of the Board, the
President, nor any Vice President is present at any meeting of the Board of
Directors, a President pro tem may be chosen to preside and act at such meeting.
If neither the President nor any Vice
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President is present at any meeting of the shareholders, a President pro tem may
be chosen to preside at such meeting.
ARTICLE 6
VICE PRESIDENT
In case of the absence, disability, or death of the President, the Vice
President, or one of the Vice Presidents, shall exercise all the powers and
perform all the duties of the President. If there is more than one Vice
President, the order in which the Vice Presidents shall succeed to the powers
and duties of the President shall be fixed by the Board of Directors. The Vice
President or Vice Presidents shall have such other powers and perform such other
duties as may be granted or prescribed by the Board of Directors.
ARTICLE 7
SECRETARY
The powers and duties of the Secretary are:
(a) To keep a book of minutes at the principal office of the corporation,
or such other place as the Board of Directors may order, of all
meetings of its 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) To keep the seal of the corporation and to affix the same to all
instruments which may require it.
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a share
register, or duplicate share registers, 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 shares,
and the number and date of cancellation of every certificate
surrendered for cancellation.
(d) To keep a supply of certificates for shares of the corporation, to
fill in all certificates issued, and to make a proper record of each
such issuance; provided, that so long as the corporation shall have
one or more duly appointed and acting transfer agent of the shares, or
any class or series of shares, of the corporation, such duties with
respect to such shares shall be performed by such transfer agent or
transfer agents.
(e) To transfer upon the share books of the corporation any and all shares
of the corporation; provided, that so long as the corporation shall
have one or more duly appointed and acting transfer agent of the
shares, or any class or series of shares, of the corporation, such
duties with respect to such shares shall be performed by such transfer
agent or transfer agents, and the method of transfer of each
certificate shall be subject to the reasonable regulations of the
transfer agent to which the certificate is presented for transfer, and
also, if the corporation then has one or more duly appointed and
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acting registrars, to the reasonable regulations of the registrar to
which the new certificate is presented for registration; and provided,
further, that no certificate for shares of stock shall be issued or
delivered or, if issued or delivered, shall have any validity
whatsoever until and unless it has been signed or authenticated in the
manner provided in Section 12.2.
(f) To make service and publication of all notices that may be necessary
or proper, and without command or direction from anyone. In case of
the absence, disability, refusal, or neglect of the Secretary to make
service or publication of any notices, then such notices may be served
and/or published by the President, a Vice President, any person
thereunto authorized by either of them, the Board of Directors, or the
holders of a majority of the outstanding shares of the corporation.
(g) Generally to do and perform all such duties as pertain to the office
of Secretary and as may be required by the Board of Directors.
ARTICLE 8
CHIEF FINANCIAL OFFICER
The powers and duties of the Chief Financial Officer are:
(a) To supervise and control the keeping and maintaining of adequate and
correct accounts of the corporation's properties and business
transactions, 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.
(b) To have the custody of all funds, securities, evidences of
indebtedness, and other valuable documents of the corporation, and, at
the Chief Financial Officer's discretion, to cause any or all thereof
to be deposited for the account of the corporation with such
depositary as may be designated from time to time by the Board of
Directors.
(c) To receive or cause to be received, and to give or cause to be given,
receipts and acquittances for moneys paid in for the account of the
corporation.
(d) To disburse, or cause to be disbursed, all funds of the corporation as
may be directed by the Board of Directors, taking proper vouchers for
such disbursements.
(e) To render to the President and the Board of Directors, whenever they
may require, accounts of all transactions and of the financial
condition of the corporation.
(f) Generally to do and perform all such duties as pertain to the office
of Chief Financial Officer and as may be required by the Board of
Directors.
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ARTICLE 9
COMMITTEES OF THE BOARD
Section 9.1. Appointment and Procedure. 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 at least 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. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors.
Section 9.2. Powers. Any committee appointed by the Board of Directors, to the
extent provided in the resolution of the Board or in these Bylaws, shall have
all the authority of the Board except with respect to:
(a) the approval of any action which requires the approval or vote of the
shareholders;
(b) the filling of vacancies on the Board or on 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 which by its
express terms is not so amendable or repealable;
(f) a distribution as defined at Section 166 of the California
Corporations Code, except at a rate or in a periodic amount or within
a price range set forth in the Articles of Incorporation or determined
by the Board;
(g) the appointment of other committees of the Board or the members
thereof.
Section 9.3. Executive Committee. In the event that the Board of Directors
appoints an Executive Committee, such Executive Committee, in all cases in which
specific directions to the contrary shall not have been given by the Board of
Directors, shall have and may exercise, during the intervals between the
meetings of the Board of Directors, all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation
(except as provided in Section 9.2) in such manner as the Executive Committee
may deem best for the interests of the corporation.
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ARTICLE 10
MEETINGS OF SHAREHOLDERS
Section 10.1. Place of Meetings. Meetings (whether regular, special, or
adjourned) of shareholders of the corporation shall be held at the principal
office for the transaction of business as specified in accordance with Section
1.1, or any place within or without the State which may be designated by written
consent of all the shareholders entitled to vote thereat, or which may be
designated by the Board of Directors.
Section 10.2. Time of Annual Meetings. The annual meeting of the shareholders
shall be at the hour of 4:00 o'clock in the afternoon on the second Wednesday in
February in each year, if not a legal holiday, and if a legal holiday, then on
the next succeeding business day not a legal holiday, or such other time or date
within fifteen months of the date of incorporation or the date of the last
annual meeting of shareholders (whichever is later) as may be set by the Board
of Directors.
Section 10.3. Special Meetings. Special meetings of the shareholders may be
called by the Board of Directors, the Chairman of the Board, the President, or
the holders of shares entitled to cast not less than ten percent (10%) of the
votes at the meeting.
Section 10.4. Notice of Meetings. Whenever shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given not less than 10 (or, if sent by third-class mail, 30) nor more than 60
days before the day of the meeting to each shareholder entitled to vote thereat.
Such notice shall state the place, date, and hour of the meeting and (a) in the
case of a special meeting, the general nature of the business to be transacted,
and no other business may be transacted, or (b) in the case of the annual
meeting, those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders, but subject to the
provisions of Section 10.8 hereof 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 names of nominees intended at the time of the notice
to be presented by the Board of Directors for election.
Section 10.5. Delivery of Notice. Notice of a shareholders' meeting or the
furnishing of any report shall be given either personally or by first-class
mail, or, if the corporation has outstanding shares held of record by 500 or
more persons on the record date for the shareholders' meeting, notice may be
sent third-class mail, or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or if no such address appears or is given, at the place where the
principal executive office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice or report shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication. A verified statement of mailing
of any notice or report in accordance with the provisions of this Section,
executed by the secretary, assistant secretary, or any transfer agent, shall be
prima facie evidence of the giving of the notice or report. If any notice or
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report addressed to the shareholders at the address of such shareholder
appearing on the books of the corporation is returned to the corporation by
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice or report to the shareholder at such
address, all future notices or reports shall be deemed to have been duly given
without further mailing if the same shall be available for the shareholder upon
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.
Section 10.6. Adjourned Meetings. When a shareholders' meeting is adjourned to
another time or place, unless these Bylaws otherwise require, notice need not be
given of the adjourned meeting if the time and place thereof is 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 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.
Section 10.7. Consent to Shareholders' Meeting. The transactions of any meeting
of shareholders, 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 consent to the holding of the meeting or an
approval of the minutes thereof. All such waivers, consents, and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting. Attendance of a person at a meeting shall constitute a waiver of notice
of such 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 the California
General Corporation Law to be included in the notice but not so included in the
notice if such objection is expressly made at the meeting. Neither the business
to be transacted at nor the purpose of any regular or special meeting of
shareholders need be specified in any written notice, consent to the holding of
the meeting or approval of the minutes thereof, unless otherwise provided in the
Articles of Incorporation or Bylaws, except as provided in Section 10.8.
Section 10.8. Notice of Business to be Transacted in Certain Cases. Any
shareholder approval at a meeting, other than unanimous approval by those
entitled to vote, on any of the matters listed below shall be valid only if the
general nature of the proposal so approved was stated in the notice of meeting
or in any written waiver of notice:
(a) a proposal to approve a contract or other transaction between a
corporation and one or more of its directors, or between a corporation
and any corporation, firm, or association in which one or more
director has a material financial interest;
(b) a proposal to amend the Articles of Incorporation;
(c) a proposal regarding a reorganization, merger, or consolidation
involving the corporation;
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(d) a proposal to wind up and dissolve the corporation;
(e) a proposal to adopt a plan of distribution of the shares, obligations,
or securities of any other corporation, domestic or foreign, or assets
other than money which is not in accordance with the liquidation
rights of any preferred shares as specified in the Articles of
Incorporation.
Section 10.9. Quorum; Vote Required.
10.9.1. Quorum Required. The presence in person or by proxy of the persons
entitled to vote a majority of the voting shares at any meeting shall constitute
a quorum for the transaction of business. If a quorum is present, the
affirmative vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by law, the Articles of Incorporation, or these Bylaws, and except as
provided in subsection 10.9.2.
10.9.2. Continuation of Business Despite Lack of Quorum. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment notwithstanding the withdrawal
of the number 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.
10.9.3. No Votes Without Quorum. In the absence of a quorum, any meeting of
shareholders may be adjourned from time to time by the vote of a majority of the
shares represented either in person or by proxy, but no other business may be
transacted, except as provided in subsection 10.9.2.
Section 10.10. Actions Without Meeting.
10.10.1. Majority Consent. 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, shall be
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted;
provided that, subject to the provisions of Section 2.6, directors may not be
elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors.
10.10.2. Notice to Nonconsenting Shareholders. Unless the consents of all
shareholders entitled to vote have been solicited in writing,
(a) notice of any shareholder approval on matters described in subsections
(a), (c), or (e) of Section 10.8 or respecting indemnification of
agents of the corporation without a meeting by less than unanimous
written consent shall be given at least ten (10) days before the
consummation of the action authorized by such approval, and
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(b) prompt notice shall be given of the taking of any other corporate
action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote but
who have not consented in writing; the provisions of Section 10.5
shall apply to such notice.
10.10.3. Setting of Record Date. In order that the corporation may determine the
shareholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. Any shareholder of record seeking to have the
shareholders authorize or take corporate action by written consent shall, by
written notice to the secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within ten (10)
days after the date on which such a request is received, adopt a resolution
fixing the record date (unless a record date has previously been fixed by the
Board of Directors pursuant to the first sentence of this Section). If no record
date has been fixed by the Board of Directors pursuant to the first sentence of
this Section or otherwise within ten (10) days of the date on which such a
request is received, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the corporation by delivery to the secretary at the
principal executive offices of the corporation. Delivery shall be by hand or by
certified mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining shareholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking such prior action.
10.10.4. Inspection. In the event of the delivery, in the manner provided by
Section 10.10.3, to the corporation of the requisite written consent or consents
to take corporate action and/or any related revocation or revocations, the
corporation shall engage independent inspectors of elections for the purpose of
performing promptly a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective until
such date as the independent inspectors certify to the corporation that the
consents delivered to the corporation in accordance with Section 10.10.3
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this Section 10.10.4 shall in any way
be construed to suggest or imply that the Board of Directors or any shareholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution, or defense of any litigation with respect thereto,
and the seeking of injunctive relief in such litigation).
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10.10.5. Time Period for Consents. Every written consent shall bear the date of
signature of each shareholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days of the earliest dated written consent received in accordance
with Section 10.10.3, a written consent or consents signed by a sufficient
number of holders to take such action are delivered to the Corporation in the
manner prescribed in Section 10.10.3.
Section 10.11. Revocation of Consent. 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 corporation prior to the time that
written consents of the number of shares required to authorize the proposed
action have been filed with the secretary of the corporation, but may not do so
thereafter. Such revocation is effective upon its receipt by the secretary of
the corporation.
Section 10.12. Voting Rights. Except as provided in Section 10.14, in the
Articles of Incorporation, or in any statute relating to the election of
directors or to other particular matters, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of
shareholders. Any holder of shares entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal, other than elections to office, but,
if the shareholder fails to specify the number of shares such shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares such shareholder is entitled to
vote.
Section 10.13. Determination of Holders of Record.
10.13.1. Record Date. In order that the corporation may determine the
shareholders entitled to notice of any meeting, to vote, to receive payment of
any dividend or other distribution or allotment of any rights, or 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 60 nor less than 10
days prior to the date of such meeting nor more than 60 days prior to any other
action.
10.13.2. Absence of Determination By Board. In the absence of any record date
set by the Board of Directors pursuant to subsection 10.13.1, then:
(a) 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.
(b) 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.
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(c) 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 60th day prior to the date of
such other action, whichever is later.
10.13.3. Adjournments. A determination of shareholders of record entitled to
notice of or to a vote at a meeting of shareholders shall apply to any
adjournment of the meeting unless the Board fixes a new record date for the
adjourned meeting, but the Board shall fix a new record date if the meeting is
adjourned for more than 45 days from the date set for the original meeting.
10.13.4. Effect of Post Record Date Transfers. Shareholders at the close of
business on the record date are 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 Articles,
these Bylaws, agreement, or applicable law.
Section 10.14. Elections for Directors.
10.14.1. Right to Cumulate. Every shareholder complying with subsection 10.14.2
and normally entitled to vote at any election of directors may cumulate such
shareholder's votes 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 the
shareholder's shares are entitled, or distribute the shareholder's votes on the
same principle among as many candidates as the shareholder thinks fit.
10.14.2. Procedure for Cumulating Votes. No shareholder shall be entitled to
cumulate votes (i.e., cast for any candidate a number of votes greater than the
number of the votes which such shareholder normally is entitled to cast) unless
such candidate or candidates' names have been placed in nomination prior to the
voting and the shareholder has given written notice to the chairman of the
meeting at the meeting prior to the voting of the shareholder's intention to
cumulate the shareholder's votes. If any one shareholder has given such notice,
all shareholders may cumulate their votes for candidates in nomination.
10.14.3. Directors Elected. In any election of directors, the candidates
receiving the highest number of affirmative votes of the shares entitled to be
voted for them up to the number of directors to elected by such shares are
elected; votes against directors and votes withheld shall have no effect.
10.14.4. Ballot Optional. Elections for directors need not be by ballot unless a
shareholder demands election by ballot at the meeting and before the voting
begins.
Section 10.15. Proxies.
10.15.1. Proxies Authorized. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. Any proxy
purporting to be executed in accordance with the provisions of the General
Corporation Law of the State of California shall be presumptively valid.
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10.15.2. Term of Proxy. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the proxy. Every proxy
continues in full force and effect until revoked by the person executing it
prior to the vote pursuant thereto, except as otherwise provided in this
Section. Such revocation may be effected by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy executed
by the person executing the prior proxy and presented to the meeting, or as to
any meeting by attendance at such meeting and voting in person by the person
executing 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.
10.15.3. Death of Proxy Maker. A proxy is not revoked by the death or incapacity
of the maker unless, before the vote is counted, written notice of such death or
incapacity is received by the corporation.
Section 10.16. Inspectors of Election.
10.16.1. Appointment. In advance of any meeting of shareholders, the Board may
appoint inspectors of election to act at the meeting and any adjournment
thereof. If inspectors of election are not so appointed, or if any persons so
appointed fail to appear or refuse to act, the chairman of any meeting of
shareholders may, and on the request of any shareholder or a shareholder's proxy
shall, appoint inspectors of election (or persons to replace those who so fail
or refuse) at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more shareholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed.
10.16.2. Duties. The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity, and effect of proxies,
receive votes, ballots, or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count, and
tabulate all votes and consents, determine when the polls shall close, determine
the result, and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
10.16.3. Good Faith; Acts. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability, and as expeditiously
as is practical. If there are three inspectors of election, the decision, act,
or certificate of a majority is effective in all respects as the decision, act,
or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
Section 10.17. Nominations and Proposals at Annual Meetings.
10.17.1. Nominations and Proposals. Nominations of persons for election to the
Board of Directors and the proposal of business to be transacted by the
shareholders may be made at an annual meeting of shareholders (a) pursuant to
the corporation's notice with respect to such meeting, (b) by or at the
direction of the Board of Directors or (c) by any shareholder of the corporation
who was a shareholder of record at the time of giving of the notice provided for
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in this section, who is entitled to vote at the meeting and who has complied
with the notice procedures set forth in this section.
10.17.2. Prior Notice. For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to Section 10.17.1(c), the
shareholder must have given timely notice thereof in writing to the secretary of
the corporation and such business must be a proper matter for shareholder action
under the California General Corporation Law. To be timely, a shareholder's
notice shall be delivered to the secretary at the principal executive offices of
the corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting of shareholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 60 days after such anniversary date, notice by
the shareholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made. Such
shareholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); (b)
as to any other business that the shareholder proposes to bring before the
meeting, a brief description of such business, the reasons for conducting such
business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the corporation
that are owned beneficially and of record by such shareholder and such
beneficial owner.
10.17.3. Increase in Number of Directors to be Elected. Notwithstanding anything
in the second sentence of Section 10.17.2 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the corporation
at least 70 days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this Section shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the corporation.
10.17.4. No Other Business. Only persons nominated in accordance with the
procedures set forth in this section shall be eligible to serve as directors and
only such business shall be conducted at an annual meeting of shareholders as
shall have been brought before the meeting in accordance with the procedures set
forth in this section. The chair of the meeting shall have the power and the
duty to determine whether a nomination or any business proposed to be
16
brought before the meeting has been made in accordance with the procedures set
forth in these Bylaws and, if any proposed nomination or business is not in
compliance with these Bylaws to declare that such defective proposed business or
nomination shall not be presented for shareholder action at the meeting and
shall be disregarded.
10.17.5. Definition. For purposes of this section, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
10.17.6. No Effect On Exchange Act Requirements. Notwithstanding the foregoing
provisions of this Section, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section. Nothing in this section shall be
deemed to affect any rights of shareholders to request inclusion of proposals in
the Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 10.18. Special Meetings; Other Provisions. The Board of Directors may
postpone, reschedule or cancel any previously scheduled special meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of Shareholders at which directors are to be selected pursuant
to the Company's notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided for in these Bylaws, who shall
be entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section. Nominations by shareholders of persons for election
to the Board of Directors may be made at such a special meeting of shareholders
if the shareholder's notice required by Section 10.17.2 of these Bylaws shall be
delivered to the secretary at the principal executive offices of the corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be selected at such meeting.
ARTICLE 11
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND AGENTS
Section 11.1. Indemnification For Third Party Actions. The corporation shall
indemnify any officer or director of the corporation, and may indemnify any
other 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 the corporation to
procure a judgment in its favor) by reason of the fact that such person is or
was an agent of the 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 the 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 contendre or its
equivalent shall not, of itself, create a presumption that the person did not
17
act in good faith and in a manner which the person reasonably believed to be in
the best interests of the corporation or that the person had reasonable cause to
believe that the person's conduct was unlawful.
Section 11.2. Indemnification For Claims By the Corporation. The corporation
shall indemnify any officer or director of the corporation, and may indemnify
any other 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 the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was an agent of the 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 the corporation and its shareholders.
Section 11.3. Indemnification For Successful Defense. To the extent that an
agent of the corporation is successful on the merits in defense of any
proceeding 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.
Section 11.4. Advances of Expenses. Expenses incurred by an officer or director
of the corporation in defending a proceeding shall be advanced by the
corporation, and expenses incurred by a person other than an officer or director
of the corporation in defending a proceeding may be advanced by the corporation,
before final disposition of the proceeding. As a condition to any such advance,
the corporation shall receive an undertaking by or on behalf of the officer,
director, or agent to repay such amount if it is determined ultimately that the
agent is not entitled to be indemnified. With respect to advances to persons
other than officers or directors, the corporation may require such terms and
collateral as it deems appropriate as a condition to any such advance. The
corporation shall pay expenses of officers and directors required to be paid
under this Section within 45 days after the corporation receives evidence of the
expenses in form sufficient to document them for tax purposes.
Section 11.5. Prohibitions on Indemnification.
11.5.1. Inconsistent With Controlling Documents or Court Orders, or Culpable
Acts. No indemnification or advance shall be made under this Article, except as
provided in Section 11.3 or Section 11.6(c), in any circumstance where it
appears that:
(a) it would be inconsistent with a provision of the Articles of
Incorporation of the corporation, these 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
(b) it would be inconsistent with any condition expressly imposed by a
court in approving a settlement.
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11.5.2. Selfish or Reckless Actions. No indemnification or advance shall be made
under this Article, except as provided in Section 11.3, in any circumstance
where it appears that the agent may be liable:
(a) for acts or omissions that involve intentional misconduct or a knowing
and culpable violation of law;
(b) for acts or omissions that the agent believes to be contrary to the
best interests of the corporation or its shareholders or that involve
the absence of good faith on the part of the agent;
(c) for any transaction from which the agent derived an improper personal
benefit;
(d) for acts or omissions that show a reckless disregard for the agent's
duty to the corporation or its shareholders in circumstances in which
the agent was aware, or should have been aware, in the ordinary course
of performing the agent's duties, of a risk of serious injury to the
corporation or its shareholders;
(e) for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the agent's duty to the
corporation or its shareholders; or
(f) under Section 310 or Section 316 of the California Corporations Code.
11.5.3. Additional Prohibitions on Indemnification of Claims by the Corporation.
No indemnification shall be made under Section 11.2,
(a) in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the 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 expenses and then only
to the extent that the court shall determine;
(b) of amounts paid in settling or otherwise disposing of a pending action
without court approval; or
(c) of expenses incurred in defending a pending action which is settled or
otherwise disposed of without court approval.
Section 11.6. Authorization of Indemnification. Except as provided in Section
11.3, any indemnification under this Article shall be made by the 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 Section 11.1 or 11.2, by
any of the following:
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(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) If such quorum of directors is not obtainable, by independent legal
counsel in a written opinion;
(c) Approval of the shareholders, with the shares owned by the person to
be indemnified not being entitled to vote thereon; or
(d) The court in which such proceeding is or was pending upon application
made by the corporation or the agent or 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 the
corporation.
Section 11.7. Bylaws Not Exclusive. The corporation may agree that it shall
indemnify or advance expenses in situations where such indemnification or
advance is not mandatory as the Board of Directors deems appropriate. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, other provisions of these Bylaws, the corporation's Articles of
Incorporation, 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, as authorized in the Articles of
Incorporation of the corporation. The rights to indemnification under this
Article shall continue as to a person who has ceased to be an agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
Nothing contained in this Article shall affect any right to indemnification to
which persons other than such directors and officers may be entitled by contract
or otherwise.
Section 11.8. Insurance. The corporation may purchase and maintain insurance on
behalf of any agent 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 the corporation has the power to indemnify the agent against such liability
under this subsection.
Section 11.9. Optional Means of Assuring Payment. The corporation may, but is
not required to, create a trust fund, grant a security interest, obtain a letter
of credit, or use other means to ensure the payment of such sums as may be
necessary to indemnify its agents as provided herein.
Section 11.10. Savings Clause. If any portion of this Article is invalid, then
the corporation shall nevertheless indemnify each officer and director, and each
agent the corporation elects to indemnify, to the full extent permitted by any
applicable portion of this Article that is not invalid, or by any applicable
agreement or law. Without limiting the foregoing, if any portion of this Article
is invalid because it is too broad, the corporation shall be required or
entitled, as the case may be, to indemnify its agents to the full extent
permitted as if all necessary limitations had been included herein.
20
Section 11.11. Application of Other Laws. Nothing in this Article shall restrict
the power of the corporation to indemnify its agents under any provision of law
from time to time applicable to the corporation, nor shall anything in this
Article authorize the corporation to indemnify its agents in situations
prohibited by law.
Section 11.12. Definitions. For the purpose of this Article 11:
(a) "agent" means any person who is or was a director, officer, employee,
or other agent of the corporation, or is or was serving at the request
of the 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 the corporation or of another enterprise at the request
of such predecessor corporation;
(b) "officer" means the chief executive officer, chief operating officer,
chief financial officer, president, treasurer, secretary, and any vice
president, assistant treasurer, and assistant secretary of the
corporation;
(c) "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative;
and
(d) "expenses" includes without limitation attorneys' fees and any
expenses establishing a right to indemnification.
ARTICLE 12
SUNDRY PROVISIONS
Section 12.1. Shares Held by the Corporation. Shares in other corporations
standing in the name of this corporation may be voted or represented and all
rights incident thereto may be exercised on behalf of this corporation by the
President or by any other officer of this corporation authorized so to do by
resolution of the Board of Directors.
Section 12.2. Certificates of Stock. There shall be issued to each holder of
fully paid shares of the capital stock of the corporation a certificate or
certificates for such shares. Every holder of shares in the corporation shall be
entitled to have a certificate signed in the name of the corporation by the
Chairman or Vice Chairman of the Board, the President, or a Vice President and
by the Chief Financial Officer, an Assistant Treasurer, 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
certificates may be facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were an officer, transfer agent, or registrar at the date of
issue.
Section 12.3. Lost Certificates. The corporation may issue a new share
certificate or a new certificate for any other security in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen, or
21
destroyed, and the corporation may require the owner of the lost, stolen, or
destroyed certificate or the owner's legal representative to give the
corporation a bond (or other adequate security) sufficient to indemnify it
against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of such new certificate. The Board of Directors may
adopt such other provisions and restrictions with reference to lost
certificates, not inconsistent with applicable law, as it shall in its
discretion deem appropriate.
Section 12.4. Certification and Inspection of Bylaws. The corporation shall keep
at its principal executive office in this state, or if its principal executive
office is not in this state at its principal business office in this state, the
original or a copy of these 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 this state and the
corporation has no principal business office in this state, it shall upon the
written request of any shareholder furnish to such shareholder a copy of the
Bylaws as amended to date.
Section 12.5. Notices. Any reference in these Bylaws to the time a notice is
given or sent means, unless otherwise expressly provided, the time a written
notice by mail is deposited in the United States mails, postage prepaid; or the
time any other written notice is personally delivered to the recipient or is
delivered to a common carrier for transmission, or actually transmitted by the
person giving the notice by electronic means, to the recipient; or the time any
oral notice is communicated, in person or by telephone or wireless, to the
recipient or to a person at the office of the recipient who the person giving
the notice has reason to believe will promptly communicate it to the recipient.
Section 12.6. Reports to Shareholders. Except as may otherwise be required by
law, the rendition of an annual report to the shareholders is waived so long as
there are less than 100 holders of record of the shares of the corporation
(determined as provided in Section 605 of the California General Corporation
Law). At such time or times, if any, that the corporation has 100 or more
holders of record of its shares, the Board of Directors shall cause an annual
report to be sent to the shareholders not later than 120 days after the close of
the fiscal year or within such shorter time period as may be required by
applicable law, and such annual report shall contain such information and be
accompanied by such other documents as may be required by applicable law.
Section 12.7. Loans to Officers. The Board may approve loans of money or
property to, and guaranties of the obligations of, officers of the corporation,
and may adopt employee benefit plans authorizing such loans and guaranties to
officers of the corporation, without the approval of the shareholders of the
corporation, provided that:
(a) the corporation has outstanding shares held of record by more than 100
persons;
(b) the vote of any interested director or directors is not counted; and
(c) the Board determines that such loan, guaranty, or plan may reasonably
be expected to benefit the corporation.
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ARTICLE 13
CONSTRUCTION OF BYLAWS WITH
REFERENCE TO PROVISIONS OF LAW
Section 13.1. Definitions. Unless defined otherwise in these Bylaws or unless
the context otherwise requires, terms used herein shall have the same meaning,
if any, ascribed thereto in the California General Corporation Law, as amended
from time to time.
Section 13.2. Bylaw Provisions Additional and Supplemental to Provisions of Law.
All restrictions, limitations, requirements, and other provisions of these
Bylaws shall be construed, insofar as possible, as supplemental and additional
to all provisions of law applicable to the subject matter thereof and shall be
fully complied with in addition to the said provisions of law unless such
compliance shall be illegal.
Section 13.3. Bylaw Provisions Contrary to or Inconsistent with Provisions of
Law. Any portion of these Bylaws that, upon being construed in the manner
provided in Section 13.2, is contrary to or inconsistent with any applicable
law, shall not apply so long as said law remains in effect. Such result shall
not, however, affect the validity or application of any other portion of these
Bylaws. Each portion of these Bylaws would have been adopted even if any other
portion were invalid or unenforceable.
ARTICLE 14
ADOPTION, AMENDMENT, OR REPEAL OF BYLAWS
Section 14.1. By Shareholders. Bylaws may be adopted, amended, or repealed by
the approval of the affirmative vote of a majority of the outstanding shares of
the corporation entitled to vote.
Section 14.2. By the Board of Directors. Subject to the right of shareholders to
adopt, amend, or repeal Bylaws, Bylaws other than a Bylaw or amendment thereof
changing the authorized number of directors or any provision of this Article may
be adopted, amended, or repealed by the Board of Directors. A Bylaw adopted by
the shareholders may restrict or eliminate the power of the Board of Directors
to adopt, amend, or repeal any or all Bylaws.
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CERTIFICATE OF SECRETARY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby certify that the undersigned is the Secretary
of ILC Technology, Inc., a corporation duly organized and existing under and by
virtue of the laws of the State of California; that the above and foregoing
Bylaws of said corporation were duly and regularly adopted as such by the Board
of Directors of said corporation; and that the above and foregoing Bylaws are
now in full force and effect.
Dated: November 21, 1996
/s/ Ronald E. Fredianelli
Ronald E. Fredianelli, Secretary
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