AMENDED AND RESTATED BYLAWS
OF
HEMACARE CORPORATION
(Amended and Restated as of November 23, 2002)
ARTICLE I.
OFFICES
Section 1.1 PRINCIPAL OFFICES. The board of directors
shall fix the location of the principal executive office of the
corporation at any place within or outside the State of
California. If the principal executive office is located outside
this state, and the corporation has one or more business offices
in this state, the board of directors shall likewise fix and
designate a principal business office in the State of California.
Section 1.2 OTHER OFFICES. The board of directors may
at any time establish branch or subordinate offices at any place
or places where the corporation is qualified to do business.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. Meetings of
shareholders shall be held at any place within or outside the
State of California designated by the board of directors. In the
absence of any such designation, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2.2 ANNUAL MEETINGS OF SHAREHOLDERS. The
annual meeting of shareholders shall be held each year on a date
and at a time designated by the board of directors. Should said
day fall upon a legal holiday, the annual meeting of shareholders
shall be held at the same time on the next day thereafter which
is a full business day. At each annual meeting, directors shall
be elected and any other proper business may be transacted.
Section 2.3 SPECIAL MEETINGS. A special meeting of
shareholders may be called at any time by the board of directors,
or by the chairman of the board, or by the president, or by one
or more shareholders holding shares in the aggregate entitled to
cast not less than 10% of the votes at any such meeting.
If a special meeting is called by any person or persons
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 chairman of the board, the
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president or the secretary of the corporation. The officer
receiving such request forthwith shall cause notice to be given
to the shareholders entitled to vote, in accordance with the
provisions of Sections 2.4 and 2.5 of this Article II, that a
meeting will be held at the time requested by the person or
persons calling the meeting, not less than thirty-five (35) nor
more than sixty (60) days after the receipt of the request. If
the notice is not given within twenty (20) days after receipt of
the request, the person or persons requesting the meeting may
give the notice. Nothing contained in this paragraph of this
Section 2.3 shall be construed as limiting, fixing or affecting
the time when a meeting of shareholders called by action of the
board of directors may be held.
Section 2.4 NOTICE OF SHAREHOLDERS' MEETINGS. All
notices of meetings of shareholders shall be sent or otherwise
given in accordance with Section 2.5 of this Article II not less
than ten (10) nor more than sixty (60) days before the date of
the meeting being noticed. The notice shall specify the place,
date and hour of the meeting and (i) in the case of a special
meeting, the general nature of the business to be transacted, or
(ii) in the case of the annual meeting, those matters which the
board of directors or the shareholders (in accordance with
Section 2.14 herein), at the time of giving the notice, intend 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 which, at the time of the notice,
the board of directors or the shareholders (in accordance with
Section 2.14 herein) intend to present for election.
If action is proposed to be taken at any meeting for
approval of (i) a contract or transaction in which a director has
a direct or indirect financial interest, pursuant to Section 310
of the Corporations Code of California, (ii) an amendment of the
articles of incorporation, pursuant to Section 902 of such Code,
(iii) a reorganization of the corporation, pursuant to
Section 1201 of such Code, (iv) a voluntary dissolution of the
corporation, pursuant to Section 1900 of such Code, or (v) a
distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, pursuant to Section 2007
of such Code, the notice shall also state the general nature of
such proposal.
Section 2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF
NOTICE. Notice of any meeting of shareholders shall be given
either personally or by first-class mail, telegraphic, facsimile,
or other written communication, charges prepaid, 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. If no such address
appears on the corporation's books or is given, notice shall be
deemed to have been given if sent by first-class mail or telegram
to the corporation's principal executive office, or if published
at least once in a newspaper of general circulation in the county
where this 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, facsimile, or other means of
written communication.
If any notice addressed to a shareholder at the address
of such 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 such address,
all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available to
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 such notice.
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An affidavit of the mailing or other means of giving
any notice of any shareholders' meeting shall be executed by the
secretary, assistant secretary or any transfer agent of the
corporation giving such notice, and shall be filed and maintained
in the minute book of the corporation.
Section 2.6 QUORUM. The presence in person or by
proxy of the holders of a majority of the shares entitled to vote
at a meeting of shareholders shall constitute a quorum for the
transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum.
Section 2.7 ADJOURNED MEETING AND NOTICE THEREOF. 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 such meeting, either in
person or by proxy, but in the absence of a quorum, no other
business may be transacted at such meeting, except as provided in
Section 2.6 of this Article II.
When any meeting of shareholders, either annual or
special, is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof
are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or
unless the adjournment is for more than forty-five (45) days from
the date set for the original meeting, in which case the board of
directors shall set a new record date. Notice of any such
adjourned meeting shall be given to each shareholder of record
entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 2.4 and 2.5 of this Article II. At any
adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting.
Section 2.8 VOTING. The shareholders entitled to vote
at any meeting of shareholders shall be determined in accordance
with the provisions of Section 2.11 of this Article II, subject
to the provisions of Sections 702 to 704, inclusive, of the
Corporations Code of California (relating to voting shares held
by a fiduciary, in the name of a corporation or in joint
ownership). Such vote may be by voice vote or by ballot;
provided, however, that all elections for directors must be by
ballot upon demand by a shareholder at any election and before
the voting begins. Any shareholder entitled to vote on any
matter (other than elections of directors) may vote part of the
shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the
shareholder fails to specify the number of shares 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. Except as
provided in Section 2.6 of this Article II, 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 the
Corporations Code of California or the articles of incorporation.
At a shareholders' meeting involving the election of
directors, no shareholder shall be entitled to cumulate votes
(i.e., cast for any candidate a number of votes greater than the
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number of votes which such shareholder normally is entitled to
cast) unless such candidate or candidates' names have been placed
in nomination in accordance with the provisions of these bylaws
and all applicable law prior to the voting and a shareholder has
given notice at the meeting prior to the voting of the
shareholder's intention to cumulate votes. If any shareholder
has given such notice, then every shareholder entitled to vote
may cumulate such shareholder's 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 such shareholder's shares are normally entitled,
or distribute the shareholder's votes on the same principle among
any or all of the candidates, as the shareholder thinks fit. The
candidates receiving the highest number of affirmative votes up
to the number of directors to be elected, shall be elected.
Votes against a director and votes withheld shall have no legal
effect.
Section 2.9 WAIVER OF NOTICE OR CONSENT BY ABSENT
SHAREHOLDERS. The transactions at any meeting of shareholders,
either annual or special, however called and noticed, and
wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, not present in person or
by proxy, signs a written waiver of notice or a consent to a
holding of the meeting, or an approval of the minutes thereof.
The waiver of notice, consent to the holding of the meeting or
approval of the minutes thereof 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 the second paragraph of Section 2.4 of this Article
II, the waiver of notice, consent to the holding of the meeting
or approval of the minutes thereof shall state the general nature
of such proposal. All such waivers, consents or 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 also
constitute a waiver of notice of and presence at 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 Corporations Code of
California to be included in the notice but which were not
included in the notice, if such objection is expressly made at
the meeting.
Section 2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT
WITHOUT A MEETING. 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 such action at a meeting
at which all shares entitled to vote thereon were present and
voted. In the case of election of directors, such 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 not filled by the directors 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 prior to the time
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that written consents of the number of shares required to
authorize the proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote
have not been solicited in writing, and if the unanimous written
consent of all such shareholders shall not have been received,
the secretary shall give prompt notice of the corporate action
approved by the shareholders without a meeting. Such notice
shall be given in the manner specified in Section 2.5 of this
Article II. In the case of shareholder approval of (i) contracts
or transactions in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporations
Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of such Code, (iii) a
reorganization of the corporation, pursuant to Section 1201 of
such Code, and (iv) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares,
pursuant to Section 2007 of such Code, such notice shall be given
at least ten (10) days before the consummation of any such action
authorized by any such approval.
Section 2.11 RECORD DATE FOR SHAREHOLDER NOTICE,
VOTING, AND GIVING CONSENTS. For purposes of determining the
shareholders entitled to notice of any meeting or to vote or
entitled to give consent to corporate action without a meeting,
the board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) days nor less than ten (10)
days prior to the date of any such meeting nor more than
sixty (60) days prior to such action without a meeting, and in
such case only shareholders at the close of business on the
record date so fixed are entitled to notice and to vote or to
give consents, as the case may be, notwithstanding any transfer
of any shares on the books of the corporation after the record
date fixed as aforesaid, except as otherwise provided in the
Corporations Code of California.
If the board of directors does not so fix a record
date:
(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, (i) when no prior action by the board has been taken,
shall be the day on which the first written consent is given, or
(ii) when prior action of the board has been taken, shall be at
the close of business on the day on which the board adopts the
resolution relating thereto, or the sixtieth (60th) day prior to
the date of such other action, whichever is later.
Section 2.12 PROXIES. Every person entitled to vote
for directors or on any other matter shall have the right to do
so either in person or by one or more agents authorized by a
written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by
the shareholder or the shareholder's attorney in fact. A validly
executed proxy which does not state that it is irrevocable shall
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continue in full force and effect unless (i) revoked by the
person executing it, prior to the vote pursuant thereto, 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; or (ii) written notice of the death
or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted;
provided, however, that no such proxy shall be valid after the
expiration of eleven (11) months from the date of such proxy,
unless otherwise provided in the proxy. The revocability of a
proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 705(e) and (f) of the
Corporations Code of California.
Section 2.13 INSPECTORS OF ELECTION. Before any
meeting of shareholders, the board of directors may appoint any
persons other than nominees for office to act as inspectors of
election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and
on the request of any shareholder or a shareholder's proxy shall,
appoint inspectors of election at the meeting. The number of
inspectors shall be either one (1) or three (3). If inspectors
are appointed at a meeting on the request of one or more
shareholders or proxies, the holders of a majority of shares or
their proxies present at the meeting shall determine whether
one (1) or three (3) inspectors are to be appointed. If any
person appointed as inspector fails to appear or fails or refuses
to act, the chairman of the meeting may, and upon the request of
any shareholder or a shareholder's proxy shall, appoint a person
to fill such vacancy.
The duties of these inspectors shall be as follows:
(a) Determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity and effect
of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in
any way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
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 (3) 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.
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Section 2.14 ADVANCE NOTICE OF SHAREHOLDER PROPOSALS.
(a) The proposal of business to be considered by the
shareholders at an annual or special meeting of shareholders may
be made only (i) pursuant to the corporation's notice of meeting,
(ii) by or at the direction of the directors, or (iii) by any
shareholder of the corporation who was a shareholder of record at
the time of giving of the notice provided for in this
Section 2.14, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this
Section 2.14. For business to be properly brought before any
meeting of the shareholders by a shareholder, the shareholder
must have given notice thereof in writing to the secretary of the
corporation not less than ninety (90) days in advance of such
meeting or, if later, the seventh day following the first public
announcement of the date of such meeting. A shareholder's notice
to the secretary shall set forth as to each matter the
shareholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting; (ii) the name and address as they appear on the
corporation's books of the shareholder proposing such business;
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder; and (iv) any material
interest of the shareholder in such business. In addition, the
shareholder making such proposal shall promptly provide any other
information reasonably required by the corporation.
Notwithstanding anything in these bylaws to the contrary, no
business shall be conducted at any meeting of the shareholders
except in accordance with the procedures set forth in this
Section 2.14. The chairman of any such meeting shall direct that
any business not properly brought before the meeting shall not be
completed.
(b) Nominations for the election of directors may be
made by the directors or any shareholder entitled to vote in the
election of directors. However, a shareholder may nominate a
person for election as a director at a meeting only if written
notice of such shareholder's intent to make such nomination has
been given to the secretary of the corporation not later than the
later to occur of either (A) ninety (90) days in advance of such
meeting, or (B) the seventh day following the first public
announcement of the date of such meeting. Each such notice shall
set forth: (i) the name and address of the shareholder who
intends to make the nomination and of the person or persons to be
nominated; (ii) a representation that the shareholder is a
beneficial owner of stock of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting and nominate the person or persons specified in the
notice; (iii) a description of all arrangements or understandings
between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder;
(iv) such other information regarding each nominee proposed by
such shareholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the United States
Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of
Directors; and (v) the consent of each nominee to serve as a
director of the corporation if so elected. In addition, the
shareholder making such nomination shall promptly provide any
other information reasonably requested by the corporation. No
person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures
set forth in this Section 2.14. The chairman of any meeting of
shareholders shall direct that any nomination not made in
accordance with these procedures be disregarded.
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(c) Any action by the shareholders with respect to any
amendment to or the elimination of this Section 2.14, shall
require approval by the holders of 66 2/3% of the outstanding
shares of the corporation.
ARTICLE III.
DIRECTORS
Section 3.1 POWERS. Subject to the provisions of the
Corporations Code of California and any limitations in the
articles of incorporation and these bylaws relating to action
required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under
the direction of the board of directors.
Section 3.2 NUMBER AND QUALIFICATION OF DIRECTORS.
(a) The authorized number of directors shall be not
less than five nor more than nine. The exact number of directors
shall be fixed from time to time, within the limits specified in
this subsection, by an amendment of subsection (b) of this
section adopted by the board of directors.
(b) The exact number of directors shall be five until
changed as provided in subsection (a) of this section.
(c) The maximum or minimum authorized number of
directors may only be changed by an amendment of this section
approved by the voice or written consent of a majority of the
outstanding shares entitled to vote; provided, however, that an
amendment reducing the minimum number to a number less than five
shall not 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) exceed 16 2/3% of such outstanding shares; and
provided further, that in no case shall the stated maximum
authorized number of directors exceed two times the stated
minimum number of authorized directors minus one.
Section 3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of the
shareholders 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 or the
earlier of his or her resignation or removal.
Section 3.4 VACANCIES. Vacancies on the board of
directors may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director,
except that a vacancy created by the removal of a director by the
vote or written consent of the shareholders or by court order may
be filled only by the vote of a majority of the shares
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) or by the written
consent of holders of a majority of the outstanding shares
entitled to vote. Each director so elected shall hold office
until the next annual meeting of the shareholders and until a
successor has been elected and qualified or until the earlier of
his or her resignation or removal.
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A vacancy or vacancies in the board of directors shall
be deemed to exist in the case of the death, resignation or
removal of any director, or if the board of directors by
resolution declares vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of directors be increased, or
if the shareholders fail at any meeting of shareholders at which
any director or directors are elected, to elect the full
authorized number of directors to be voted for at that meeting.
The shareholders may elect a director or directors at
any time to fill any vacancy or vacancies not filled by the
directors, but any such election by written consent shall require
the consent of a majority of the outstanding shares entitled to
vote.
Any director may resign effective upon giving written
notice to the chairman of the board, the president, the secretary
or the board of directors, unless the notice specifies a later
time for the effectiveness of such resignation. If the
resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors
shall have the effect of removing any director prior to the
expiration of his term of office.
Section 3.5 PLACE OF MEETINGS AND TELEPHONIC MEETINGS.
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. In the
absence of such designation, regular meetings shall be held at
the principal executive office of the corporation. Special
meetings of the board shall be held at any place within or
without the State of California that has been designated in the
notice of the meeting or, if not stated in the notice or there is
no notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all
directors participating in such meeting can hear one another, and
all such directors shall be deemed to be present in person at
such meeting.
Section 3.6 ANNUAL MEETING. Immediately following
each annual meeting of shareholders, the board of directors shall
hold a regular meeting for the purpose of organization, any
desired election of officers and the transaction of other
business. Notice of this meeting shall not be required.
Section 3.7 OTHER REGULAR MEETINGS. Other regular
meetings of the board of directors shall be held without call at
such time as shall from time to time be fixed by the board of
directors. Such regular meetings may be held without notice and
may be called by the Chairman of the Board, or the President, or
any Vice-President, or the Secretary, or any director.
Section 3.8 SPECIAL MEETINGS. Special meetings of the
board of directors for any purpose or purposes may be called at
any time by the chairman of the board or the president or any
vice president or the secretary or any two directors.
Notice of the time and place of special meetings shall
be delivered personally or by telephone to each director or sent
by first-class mail or telegram, charges pre-paid, addressed to
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each director at his or her address as it is shown upon the
records of the corporation. In case such notice is mailed, it
shall be deposited in the United States mail at least four
(4) days prior to the time of the holding of the meeting. In
case such notice is delivered personally, or by telephone or
telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours prior to
the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated to either the
director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held
at the principal executive office of the corporation.
Section 3.9 QUORUM. A majority of the authorized
number of directors shall constitute a quorum for the transaction
of business, except to adjourn as hereinafter provided. Every
act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall
be regarded as the act of the board of directors, subject to the
provisions of Section 310 of the Corporations Code of California
(approval of contracts or transactions in which a director has a
direct or indirect material financial interest), Section 311 of
that Code (appointment of committees), and Section 317(e) of that
Code (indemnification of directors). A meeting at which a quorum
is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken
is approved by at least a majority of the required quorum for
such meeting.
Section 3.10 WAIVER OF NOTICE. 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. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents
and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Section 3.11 ADJOURNMENT. A majority of the directors
present, whether or not constituting a quorum, may adjourn any
meeting to another time and place.
Section 3.12 NOTICE OF ADJOURNMENT. Notice of the
time and place of holding an adjourned meeting need not be given,
unless the meeting is adjourned for more than twenty-four hours,
in which case notice of such time and place shall be given prior
to the time of the adjourned meeting, in the manner specified in
Section 3.8 of this Article III, to the directors who were not
present at the time of the adjournment.
Section 3.13 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 shall
individually or collectively consent in writing to such action.
Such action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. Such
written consent or consents shall be filed with the minutes of
the proceedings of the board.
Section 3.14 FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement
of expenses, as may be fixed or determined by resolution of the
board of directors. Nothing contained herein shall be construed
to preclude any director from serving the corporation in any
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other capacity as an officer, agent, employee, or otherwise, and
receiving compensation for such services.
Section 3.15 REMOVAL. Any or all of the directors may
be removed without cause if such removal is approved by the vote
of a majority of the outstanding shares entitled to vote, except
that no director may be removed (unless the entire board is
removed) when the votes cast against removal would be sufficient
to elect such director if voted cumulatively at an election at
which the same total number of votes were cast and the entire
number of directors authorized at the time of the director's most
recent election were then being elected.
ARTICLE IV.
COMMITTEES
Section 4.1 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 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
Corporations Code of California or in the articles of
incorporation, 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.
Section 4.2 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 3.5 (place of meetings), 3.7 (regular
meetings), 3.8 (special meetings and notice), 3.9 (quorum), 3.10
(waiver of notice), 3.11 (adjournment), 3.12 (notice of
adjournment) and 3.13 (action without meeting), with such changes
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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 V.
OFFICERS
Section 5.1 OFFICERS. The officers of the corporation
shall be a 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 vice-presidents,
one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 5.3 of this Article V.
Any number of offices may be held by the same person.
Section 5.2 ELECTION OF OFFICERS. The officers of the
corporation, except such officers as may be appointed in
accordance with the provisions of Section 5.3 or Section 5.5 of
this Article V, shall be chosen by the board of directors, and
each shall serve at the pleasure of the board, subject to the
rights, if any, of an officer under any contract of employment.
Section 5.3 SUBORDINATE OFFICERS, ETC. The board of
directors may appoint, and may empower the president to appoint,
such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time
determine.
Section 5.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract
of employment, any officer may be removed, either with or without
cause, by the board of directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the
board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written
notice to the corporation. Any 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 is without prejudice to the
rights, if any, of the corporation under any contract to which
the officer is a party.
Section 5.5 VACANCIES IN OFFICES. A vacancy in any
office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
Section 5.6 CHAIRMAN OF THE BOARD. The chairman of
the board, if such an officer be elected, shall, if present,
preside at all meetings of the board of directors and exercise
and perform such other powers and duties as may be from time to
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time assigned to him by the board of directors or prescribed by
the bylaws. If there is no president, the chairman of the board
shall in addition be the chief executive officer of the
corporation and shall have the powers and duties prescribed in
Section 5.7 of this Article V.
Section 5.7 PRESIDENT. Subject to such supervisory
powers, if any, as may be given by the board of directors to the
chairman of the board, if there be such an officer, 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
the officers of the corporation. The President shall 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. 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 the
bylaws.
Section 5.8 VICE PRESIDENTS. In the absence or
disability of the president, the vice presidents, if any, in
order of their rank as fixed by the board of directors or, if not
ranked, a vice 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 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 the
bylaws, the president or the chairman of the board.
Section 5.9 SECRETARY. The secretary shall keep or
cause to be kept, at the principal executive office or such other
place as the board of directors may order, a book of minutes of
all meetings and actions of directors, committees 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' and
committee meetings, the number of shares present or represented
at shareholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the
board of directors, a share register, or a duplicate share
register, showing the names of all shareholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation.
The secretary shall give, or cause to be given, notice
of all meetings of the shareholders and of the board of directors
required by the bylaws or by law to be given, and the Secretary
shall keep the seal of the corporation, if one be adopted, in
safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or by
the bylaws.
Section 5.10 CHIEF FINANCIAL OFFICER. The chief
financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
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corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer 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. The Chief Financial Officer 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 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
the bylaws.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
Section 6.1 INDEMNIFICATION - THIRD PARTY PROCEEDINGS.
The corporation shall indemnify any person (the "Indemnitee") who
is or was 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 Indemnitee is or was a director or officer of the
corporation, or any subsidiary of the corporation, and the
corporation may indemnify a person who is or was 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 employee or other agent of the corporation (the
"Indemnitee Agent") by reason of any action or inaction on the
part of Indemnitee or Indemnitee Agent while an officer, director
or agent or by reason of the fact that Indemnitee or Indemnitee
Agent is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including subject to Section 6.19, attorneys' fees and
any expenses of establishing a right to indemnification pursuant
to this Article VI or under California law), judgments, fines,
settlements (if such settlement is approved in advance by the
corporation, which approval shall not be unreasonably withheld)
and other amounts actually and reasonably incurred by Indemnitee
or Indemnitee Agent in connection with such proceeding if
Indemnitee or Indemnitee Agent acted in good faith and in a
manner Indemnitee or Indemnitee Agent reasonably believed to be
in or not opposed to the best interests of the corporation and,
in the case of a criminal proceeding, if Indemnitee or Indemnitee
Agent had no reasonable cause to believe Indemnitee's or
Indemnitee Agent's conduct 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 Indemnitee or Indemnitee Agent did not
act in good faith and in a manner which Indemnitee or Indemnitee
Agent reasonably believed to be in or not opposed to the best
interests of the corporation, or with respect to any criminal
proceedings, would not create a presumption that Indemnitee or
Indemnitee Agent had reasonable cause to believe that
Indemnitee's or Indemnitee Agent's conduct was unlawful.
Section 6.2 INDEMNIFICATION - PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION. The corporation shall indemnify
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Indemnitee and may indemnify Indemnitee Agent if Indemnitee, or
Indemnitee Agent, as the case may be, 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 or any
subsidiary of the corporation to procure a judgment in its favor
by reason of the fact that Indemnitee or Indemnitee Agent is or
was a director, officer, employee or other agent of the
corporation, or any subsidiary of the corporation, by reason of
any action or inaction on the part of Indemnitee or Indemnitee
Agent while an officer, director or agent or by reason of the
fact that Indemnitee or Indemnitee Agent is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including subject to
Section 6.19, attorneys' fees and any expenses of establishing a
right to indemnification pursuant to this Article VI or under
California law) and, to the fullest extent permitted by law,
amounts paid in settlement, in each case to the extent actually
and reasonably incurred by Indemnitee or Indemnitee Agent in
connection with the defense or settlement of the proceeding if
Indemnitee or Indemnitee Agent acted in good faith and in a
manner Indemnitee or Indemnitee Agent believed to be in or not
opposed to the best interests of the corporation and its
shareholders, except that no indemnification shall be made with
respect to any claim, issue or matter to which Indemnitee or
Indemnitee Agent shall have been adjudged to have been liable to
the corporation in the performance of Indemnitee's or Indemnitee
Agent'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, Indemnitee or Indemnitee Agent is
fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine.
Section 6.3 SUCCESSFUL DEFENSE ON MERITS. To the
extent that Indemnitee or Indemnitee Agent without limitation has
been successful on the merits in defense of any proceeding
referred to in Sections 6.1 or 6.2 above, or in defense of any
claim, issue or matter therein, the corporation shall indemnify
Indemnitee or Indemnitee Agent against expenses (including
attorneys' fees) actually and reasonably incurred by Indemnitee
or Indemnitee Agent in connection therewith.
Section 6.4 CERTAIN TERMS DEFINED. For purposes of
this Article VI, references to "other enterprises" shall include
employee benefit plans, references to "fines" shall include any
excise taxes assessed on Indemnitee or Indemnitee Agent with
respect to an employee benefit plan, and references to
"proceeding" shall include any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative. References to "corporation" include all
constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation, so that any
person who is or was a director, officer, employee, or other
agent of such a constituent corporation or who, being or having
been such a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust or other
enterprise shall stand in the same position under the provisions
of this Article VI with respect to the resulting or surviving
corporation as such person would if he or she had served the
resulting or surviving corporation in the same capacity.
Section 6.5 ADVANCEMENT OF EXPENSES. The corporation
shall advance all expenses incurred by Indemnitee and may advance
all or any expenses incurred by Indemnitee Agent in connection
with the investigation, defense, settlement (excluding amounts
actually paid in settlement of any action, suit or proceeding) or
appeal of any civil or criminal action, suit or proceeding
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referenced in Sections 6.1 or 6.2 hereof. Indemnitee or
Indemnitee Agent hereby undertakes to repay such amounts advanced
only if, and to the extent that, it shall be determined
ultimately that Indemnitee or Indemnitee Agent is not entitled to
be indemnified by the corporation as authorized hereby. The
advances to be made hereunder shall be paid by the corporation
(i) to Indemnitee within twenty (20) days following delivery of a
written request therefor by Indemnitee to the corporation; and
(ii) to Indemnitee Agent within twenty (20) days following the
later of a written request therefor by Indemnitee Agent to the
corporation and determination by the corporation to advance
expenses to Indemnitee Agent pursuant to the corporation's
discretionary authority hereunder.
Section 6.6 NOTICE OF CLAIM. Indemnitee shall, as a
condition precedent to his or her right to be indemnified under
this Article VI, and Indemnitee Agent shall, as a condition
precedent to his or her ability to be indemnified under this
Article VI, give the corporation notice in writing as soon as
practicable of any claim made against Indemnitee or Indemnitee
Agent, as the case may be, for which indemnification will or
could be sought under this Article VI. Notice to the corporation
shall be directed to the secretary of the corporation at the
principal business office of the corporation (or such other
address as the corporation shall designate in writing to
Indemnitee). In addition, Indemnitee or Indemnitee Agent shall
give the corporation such information and cooperation as it may
reasonably require and as shall be within Indemnitee's or
Indemnitee Agent's power.
Section 6.7 ENFORCEMENT RIGHTS. Any indemnification
provided for in Sections 6.1 or 6.2 or 6.3 shall be made no later
than sixty (60) days after receipt of the written request of
Indemnitee. If a claim or request under this Article VI, under
any statute, or under any provision of the corporation's Articles
of Incorporation providing for indemnification is not paid by the
corporation, or on its behalf, within sixty (60) days after
written request for payment thereof has been received by the
corporation, Indemnitee may, but need not, at any time thereafter
bring suit against the corporation to recover the unpaid amount
of the claim or request, and subject to Section 6.19, Indemnitee
shall also be entitled to be paid for the expenses (including
attorneys' fees) of bringing such action. It shall be a defense
to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action, suit
or proceeding in advance of its final disposition) that
Indemnitee has not met the standards of conduct which make it
permissible under applicable law for the corporation to indemnify
Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the corporation, and Indemnitee shall be
entitled to receive interim payments of expenses pursuant to
Section 6.5 unless and until such defense may be finally
adjudicated by court order or judgment for which no further right
of appeal exists. The parties hereto intend that if the
corporation contests Indemnitee's right to indemnification, the
question of Indemnitee's right to indemnification shall be a
decision for the court, and no presumption regarding whether the
applicable standard has been met will arise based on any
determination or lack of determination of such by the corporation
(including its Board or any subgroup thereof, independent legal
counsel or its shareholders). The board of directors may, in its
discretion, provide by resolution for similar or identical
enforcement rights for any Indemnitee Agent.
Section 6.8 ASSUMPTION OF DEFENSE. In the event the
corporation shall be obligated to pay the expenses of any
proceeding against the Indemnitee or Indemnitee Agent, as the
case may be, the corporation, if appropriate, shall be entitled
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to assume the defense of such proceeding with counsel approved by
Indemnitee or Indemnitee Agent, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee or
Indemnitee Agent of written notice of its election so to do.
After delivery of such notice, approval of such counsel by
Indemnitee or Indemnitee Agent and the retention of such counsel
by the corporation, the corporation will not be liable to
Indemnitee or Indemnitee Agent under this Article VI for any fees
of counsel subsequently incurred by Indemnitee or Indemnitee
Agent with respect to the same proceeding, unless (i) the
employment of counsel by Indemnitee or Indemnitee Agent is
authorized by the corporation, (ii) Indemnitee or Indemnitee
Agent shall have reasonably concluded that there may be a
conflict of interest of such counsel retained by the corporation
between the corporation and Indemnitee or Indemnitee Agent in the
conduct of such defense, or (iii) the corporation ceases or
terminates the employment of such counsel with respect to the
defense of such proceeding, in any of which events then the fees
and expenses of Indemnitee's or Indemnitee Agent's counsel shall
be at the expense of the corporation. At all times, Indemnitee
or Indemnitee Agent shall have the right to employ other counsel
in any such proceeding at Indemnitee's or Indemnitee Agent's
expense.
Section 6.9 APPROVAL OF EXPENSES. No expenses for
which indemnity shall be sought under this Article VI, other than
those in respect of judgments and verdicts actually rendered,
shall be incurred without the prior consent of the corporation,
which consent shall not be unreasonably withheld.
Section 6.10 SUBROGATION. In the event of payment
under this Article VI, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of the
Indemnitee or Indemnitee Agent, who shall do all things that may
be necessary to secure such rights, including the execution of
such documents necessary to enable the corporation effectively to
bring suit to enforce such rights.
Section 6.11 EXCEPTIONS. Notwithstanding any other
provision herein to the contrary, the corporation shall not be
obligated pursuant to this Article VI:
(a) Excluded Acts. To indemnify Indemnitee (i) as to
circumstances in which indemnity is expressly prohibited pursuant
to California law, or (ii) for any acts or omissions or
transactions from which a director may not be relieved of
liability pursuant to California law; or
(b) Claims Initiated by Indemnitee. To indemnify or
advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by
way of defense, except with respect to proceedings brought to
establish or enforce a right to indemnification under this
Article VI or any other statute or law or as otherwise required
under the Corporations Code of California, but such
indemnification or advancement of expenses may be provided by the
corporation in specific cases if the board of directors has
approved the initiation or bringing of such suit; or
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(c) Lack of Good Faith. To indemnify Indemnitee for
any expenses incurred by the Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this
Article VI, if a court of competent jurisdiction determines that
such proceeding was not made in good faith or was frivolous; or
(d) Insured Claims. To indemnify Indemnitee for
expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) which have been paid
directly to Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the
corporation; or
(e) Claims Under Section 16(b). To indemnify
Indemnitee for expenses and the payment of profits arising from
the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended,
or any similar successor statute.
Section 6.12 PARTIAL INDEMNIFICATION. If Indemnitee
is entitled under any provision of this Article VI to
indemnification by the corporation for some or a portion of the
expenses, judgments, fines or penalties actually or reasonably
incurred by the Indemnitee in the investigation, defense, appeal
or settlement of any civil or criminal action, suit or
proceeding, but not, however, for the total amount thereof, the
corporation shall nevertheless indemnify Indemnitee for the
portion of such expenses, judgments, fines or penalties to which
Indemnitee is entitled.
Section 6.13 COVERAGE. This Article VI shall, to the
extent permitted by law, apply to acts or omissions of
(i) Indemnitee which occurred prior to the adoption of this
Article VI if Indemnitee was a director or officer of the
corporation or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint
venture, trust or other enterprise, at the time such act or
omission occurred; and (ii) Indemnitee Agent which occurred prior
to the adoption of this Article VI if Indemnitee Agent was an
employee or other agent of the corporation or was serving at the
request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise at the time such act or omission occurred. All rights
to indemnification under this Article VI shall be deemed to be
provided by a contract between the corporation and the Indemnitee
in which the corporation hereby agrees to indemnify Indemnitee to
the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the
corporation's Articles of Incorporation, these Bylaws or by
statute. Any repeal or modification of these Bylaws, the
Corporations Code of California or any other applicable law shall
not affect any rights or obligations then existing under this
Article VI. The provisions of this Article VI shall continue as
to Indemnitee and Indemnitee Agent for any action taken or not
taken while serving in an indemnified capacity even though the
Indemnitee or Indemnitee Agent may have ceased to serve in such
capacity at the time of any action, suit or other covered
proceeding. This Article VI shall be binding upon the
corporation and its successors and assigns and shall inure to the
benefit of Indemnitee and Indemnitee Agent and Indemnitee's and
Indemnitee Agent's estate, heirs, legal representatives and
assigns.
Section 6.14 NON-EXCLUSIVITY. Nothing herein shall be
deemed to diminish or otherwise restrict any rights to which
Indemnitee or Indemnitee Agent may be entitled under the
corporation's Articles of Incorporation, these Bylaws, any
agreement, any vote of shareholders or disinterested directors,
or under the laws of the State of California.
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Section 6.15 SEVERABILITY. Nothing in this Article VI
is intended to require or shall be construed as requiring the
corporation to do or fail to do any act in violation of
applicable law. If this Article VI or any portion hereof shall
be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify
Indemnitee or Indemnitee Agent to the fullest extent permitted by
any applicable portion of this Article VI that shall not have
been invalidated.
Section 6.16 MUTUAL ACKNOWLEDGMENT. Both the
corporation and Indemnitee acknowledge that in certain instances,
Federal law or applicable public policy may prohibit the
corporation from indemnifying its directors and officers under
this Article VI or otherwise. Indemnitee understands and
acknowledges that the corporation has undertaken or may be
required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the
corporation's right under public policy to indemnify Indemnitee.
Section 6.17 OFFICER AND DIRECTOR LIABILITY INSURANCE.
The corporation shall, from time to time, make the good faith
determination whether or not it is practicable for the
corporation to obtain and maintain a policy or policies of
insurance with reputable insurance companies providing the
officers and directors of the corporation with coverage for
losses from wrongful acts, or to ensure the corporation's
performance of its indemnification obligations under this
Article VI. Among other considerations, the corporation will
weigh the costs of obtaining such insurance coverage against the
protection afforded by such coverage. Notwithstanding the
foregoing, the corporation shall have no obligation to obtain or
maintain such insurance if the corporation determines in good
faith that such insurance is not reasonably available, if the
premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such
insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a subsidiary or parent of the
corporation.
Section 6.18 NOTICE TO INSURERS. If, at the time of
the receipt of a notice of a claim pursuant to Section 6.6
hereof, the corporation has director and officer liability
insurance in effect, the corporation shall give prompt notice of
the commencement of such proceeding to the insurers in accordance
with the procedures set forth in the respective policies. The
corporation shall thereafter take all necessary or desirable
action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
Section 6.19 ATTORNEYS' FEES. In the event that any
action is instituted by Indemnitee under this Article VI to
enforce or interpret any of the terms hereof, Indemnitee shall be
entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect
to such action, unless as a part of such action, the court of
competent jurisdiction determines that the action was not
instituted in good faith or was frivolous. In the event of an
action instituted by or in the name of the corporation under this
Article VI, or to enforce or interpret any of the terms of this
Article VI, Indemnitee shall be entitled to be paid all court
costs and expenses, including attorneys' fees, incurred by
Indemnitee in defense of such action (including with respect to
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Indemnitee's counterclaims and cross-claims made in such action),
unless as a part of such action the court determines that
Indemnitee's defenses to such action were not made in good faith
or were frivolous. The board of directors may, in its
discretion, provide by resolution for payment of such attorneys'
fees to any Indemnitee Agent.
Section 6.20 NOTICE. All notices, requests, demands
and other communications under this Article VI shall be in
writing and shall be deemed duly given (i) if delivered by hand
and receipted for by the addressee, on the date of such receipt,
or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date
postmarked.
ARTICLE VII.
RECORDS AND REPORTS
Section 7.1 MAINTENANCE AND INSPECTION OF SHARE
REGISTER. The corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, if
either be appointed and as determined by resolution of the board
of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares
held by each shareholder.
A shareholder or shareholders of the corporation
holding at least five percent (5%) in the aggregate of the
outstanding voting shares of the corporation may (i) inspect and
copy the records of shareholders' names and addresses and
shareholdings during usual business hours upon five days prior
written demand upon the corporation, and/or (ii) obtain from the
transfer agent of the corporation, upon written demand and upon
the tender of such transfer agent's usual charges for such list,
a list of the shareholders' names and addresses, who are entitled
to vote for the election of directors, and their shareholdings,
as of the most recent record date for which such list has been
compiled or as of a date specified by the shareholder subsequent
to the date of demand. Such list shall be made available by the
transfer agent on or before the later of five (5) days after the
demand is received or the date specified therein as the date as
of which the list is to be compiled. The record of shareholders
shall also be open to inspection upon 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
such holder's interests as a shareholder or as the holder of a
voting trust certificate. Any inspection and copying under this
Section may be made in person or by an agent or attorney of the
shareholder or holder of a voting trust certificate making such
demand.
Section 7.2 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 this State and the corporation has no
principal business office in this state, the Secretary shall,
upon the written request of any shareholder, furnish to such
shareholder a copy of the bylaws as amended to date.
Section 7.3 MAINTENANCE AND INSPECTION OF OTHER
CORPORATE RECORDS. The accounting books and records and minutes
of proceedings of the shareholders and the board of directors and
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any committee or committees of the board of directors shall be
kept at such place or places designated by the board of
directors, or, in the absence of such designation, at the
principal executive office of the corporation. The minutes shall
be kept in written form and the accounting books and records
shall be kept either in written form or in any other form capable
of being converted into written form. Such 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 such holder's interests as a
shareholder or as the holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney, and
shall include the right to copy and make extracts. The foregoing
rights of inspection shall extend to the records of each
subsidiary of the corporation.
Section 7.4 INSPECTION BY DIRECTORS. Every director
shall have the absolute right at any reasonable time to inspect
all books, records, and documents of every kind and the physical
properties of the corporation and each of its subsidiary
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.
Section 7.5 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 deem appropriate.
Section 7.6 FINANCIAL STATEMENTS. A copy of any
annual financial statement and any income statement of the
corporation for each quarterly period of each fiscal year, and
any accompanying balance sheet of the corporation as of the end
of each such period, that has 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.
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 120 days after the
close of such fiscal year, deliver or mail to such shareholder,
within thirty (30) days after such request a balance sheet as of
the end of such fiscal year and an income statement and statement
of changes in financial position for such fiscal year.
If a shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of stock of
the corporation 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 prior to the date of the request and a
balance sheet of the corporation as of the end of such period
and, in addition, if no annual report for the last fiscal year
has been sent to shareholders, a balance sheet as of the end of
such fiscal year and an income statement and statement of changes
in financial position for such fiscal year, then, the chief
financial officer shall cause such statements to be prepared, if
not already prepared, and shall deliver personally or mail such
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statement or statements to the person making the request within
thirty (30) days after the receipt of such request.
The income statements and balance sheets referred to in
this section shall be accompanied by the report thereon, if any,
of any independent accountants engaged by the corporation or the
certificate of an authorized officer of the corporation that such
financial statements were prepared without audit from the books
and records of the corporation.
Section 7.7 ANNUAL STATEMENT OF GENERAL INFORMATION.
The corporation shall file annually with the Secretary of State
of the State of California, on the prescribed form, a statement
setting forth the names and complete business or residence
addresses of all incumbent directors, the number of vacancies on
the board of directors, if any, 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 VIII.
GENERAL CORPORATE MATTERS
Section 8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE
AND VOTING. For purposes of determining the shareholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or entitled to exercise any rights in
respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days prior to any such action, and in such
case only shareholders of record on the date so fixed are
entitled to receive the dividend, distribution or allotment of
rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date fixed as aforesaid, except as
otherwise provided in the Corporations Code of California.
If the board of directors does not so fix a record
date, the record date for determining shareholders for any such
purpose shall be at the close of business on the day on which the
board adopts the resolution relating thereto, or the
sixtieth (60th) day prior to the date of such action, whichever
is later.
Section 8.2 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS.
All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable
to the corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be
determined by resolution of the board of directors.
Section 8.3 CORPORATE CONTRACTS AND INSTRUMENTS; HOW
EXECUTED. The board of directors, except as otherwise provided
in these bylaws, may authorize any officer or officers, agent or
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agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
Section 8.4 CERTIFICATES FOR SHARES. A certificate or
certificates for shares of the capital stock of the corporation
shall be issued to each shareholder when any such shares are
fully paid, and the board of directors may authorize the issuance
of certificates for shares as partly paid provided that such
certificates shall state the amount of the consideration to be
paid therefor and the amount paid thereon. All certificates
shall be signed in the name of the corporation by the chairman of
the board or vice chairman of the board or the president or a
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 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 8.5 LOST CERTIFICATES. Except as hereinafter
in this Section provided, no new certificates for shares shall be
issued in lieu of an old certificate unless the latter is
surrendered to the corporation and cancelled at the same time.
The board of directors may in case any share certificate or
certificate for any other security is lost, stolen or destroyed,
authorize the issuance of a new certificate in lieu thereof, upon
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 such certificate or the issuance of
such new certificate.
Section 8.6 REPRESENTATION OF SHARES OF OTHER
CORPORATIONS. The chairman of the board, the president, or any
vice president, or any other person authorized by resolution of
the board of directors 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 herein granted to said 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 such officer in person or by any person
authorized to do so by proxy duly executed by said officer.
Section 8.7 CONSTRUCTION AND DEFINITIONS. Unless the
context requires otherwise, the general provisions, rules of
construction, and definitions in the Corporations Code of
California shall govern the construction of these bylaws.
Without limiting the generality of the foregoing, the singular
number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a
natural person.
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ARTICLE IX.
AMENDMENTS
Section 9.1 AMENDMENT BY SHAREHOLDERS. New bylaws may
be adopted or these bylaws may be amended or repealed by the vote
or written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that if the articles
of incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of
directors may be changed only by an amendment of the articles of
incorporation.
Section 9.2 AMENDMENT BY DIRECTORS. Subject to the
rights of the shareholders as provided in Section 9.1 of this
Article IX, bylaws, other than a bylaw or an amendment thereof
changing the authorized number of directors, may be adopted,
amended or repealed by the board of directors.
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CERTIFICATE OF INCORPORATOR
OF
HEMACARE CORPORATION
I, the undersigned, do hereby certify that:
(1) I am the Secretary of HEMACARE CORPORATION, a
California corporation; and
(2) The foregoing Bylaws consisting of 28 pages
constitute the Bylaws of such corporation as duly adopted by the
board of directors as of November 23, 2002.
IN WITNESS WHEREOF, I have executed this Certificate as
of December 17, 2002.
/s/ JoAnn Stover
_________________________________
JoAnn Stover, Secretary
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