EXHIBIT 3.2
BYLAWS OF SDO PARENT CO., INC.
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ARTICLE ONE
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Corporate Management
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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"), subject to the Articles of Incorporation and the
California Corporations Code.
ARTICLE TWO
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Officers
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Section 1. Designation. The officers of the Corporation shall consist of
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a Chairman of the Board (the "Chairman") or a President, or both, one or more
Vice Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer,
one or more Assistant Treasurers, a Controller, one or more Assistant
Controllers, and such other officers as the Board may from time to time elect.
Any two or more of such offices may be held by the same person.
Section 2. Term. The officers shall be elected by the Board as soon as
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possible after the annual meeting of the Shareholders, and shall hold office for
one year or until their successors are duly elected. Any officers may be
removed from office at any time, with or without cause, by the vote of a
majority of the authorized number of Directors. The Board may fill vacancies or
elect new officers at any time.
Section 3. Chairman. The Chairman shall preside over meetings of the
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Shareholders and of the Board, make a full report to each Shareholders' annual
meeting covering the next preceding fiscal year, and perform all other duties
designated by the Board.
Section 4. The President. The President shall have the general
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management and direction of the affairs of the Corporation, subject to the
control of the Board. In the absence or disability of the Chairman, the
President shall perform the duties and exercise the powers of the Chairman.
Section 5. Vice Presidents. The Vice Presidents, one of whom shall be
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the chief financial officer, shall have such duties as the President or the
Board shall designate.
Section 6. Chief Financial Officer. The Chief Financial Officer shall be
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responsible for the issuance of securities and the management of the
Corporation's cash, receivables and temporary investments.
Section 7. Secretary and Assistant Secretary. The Secretary shall attend
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all meetings of the Shareholders and the Board, keep a true and accurate record
of the proceedings of all such meetings and attest the same by his or her
signature, have charge of all books, documents and papers which appertain to the
office, have custody of the corporate seal and affix it to all papers and
documents requiring sealing, give all notices of meetings, have the custody of
the books of stock certificates and transfers, issue all stock certificates, and
perform all other duties usually appertaining to the office and all duties
designated by the bylaws, the President or the Board. In the absence of the
Secretary, any Assistant Secretary may perform the duties and shall have the
powers of the Secretary.
Section 8. Treasurer and Assistant Treasurer. The Treasurer shall
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perform all duties usually appertaining to the office and all duties designated
by the President or the Board. In the absence of the Treasurer, any Assistant
Treasurer may perform the duties and shall have all the powers of the Treasurer.
Section 9. Controller and Assistant Controller. The Controller shall be
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responsible for establishing financial control policies for the Corporation,
shall be its principal accounting officer, and shall perform all duties usually
appertaining to the office and all duties designated by the President or the
Board. In the absence of the Controller, any Assistant Controller may perform
the duties and shall have all the powers of the Controller.
Section 10. Chief Executive Officer. Either the Chairman or the
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President shall be the chief executive officer.
Section 11. Chief Operating Officer. Either the President or any Vice
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President shall be the chief operating officer.
ARTICLE THREE
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Directors
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Section 1. Number. The authorized number of Directors shall be
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determined as set forth in the Articles of Incorporation.
Section 2. Election. A Board shall be elected as set forth in the
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Articles of Incorporation. Any candidate nominated by management for election
to the Board shall be so nominated without regard to his or her sex, race, color
or creed.
Section 3. Vacancies. Vacancies in the Board may be filled as set forth
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in the Articles of Incorporation.
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Section 4. Compensation. Members of the Board shall receive such
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compensation as the Board may from time to time determine.
Section 5. Regular Meetings. The regular meetings of the Board shall be
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held immediately after each annual meeting of the Shareholders in April, and on
the fourth Monday of each other month, at 1:00 p.m. at the principal office of
the Corporation in San Diego, California. If any such date is a legal holiday,
the meeting shall be held on the next day which is not a holiday. The Board may
cancel, or designate a different date, time or place for any regular meeting.
Section 6. Special Meetings. Special meetings of the Board may be called
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at any time by the Chairman, the President or any two Directors.
Section 7. Notice of Meetings. Written notice shall be given to each
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Director of the date, time and place of each regular meeting and each special
meeting of the Board. If given by mail, such notice shall be mailed to each
Director at least four days before the date of such meeting, or such notice may
be given to each Director personally or by telegram at least 48 hours before the
time of such meeting. Every notice of special meeting shall state the purpose
for which such meeting is called. Notice of a meeting need not be given to any
Director who signs a waiver of notice, 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.
Section 8. Quorum. A majority of the authorized number of Directors
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shall be necessary to constitute a quorum for the transaction of business, and
every act or decision of a majority of the Directors present at a meeting at
which a quorum is present shall be valid as the act of the Board, provided that
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. A
majority of Directors present at any meeting, in the absence of a quorum, may
adjourn to another time.
Section 9. Action Upon Consent. Any action required or permitted to be
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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.
Section 10. Telephonic Participation. Members of the Board may
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participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in the meeting
can hear one another. Such participation constitutes presence in person at the
meeting.
Section 11. Directors Emeritus. The Board may from time to time elect
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one or more Directors Emeritus. Each Director Emeritus shall have the privilege
of attending meetings of the Board, upon invitation of the Chairman or the
President. No Director Emeritus shall be entitled to vote on any business
coming before the Board or be counted as a member of the Board for any purpose
whatsoever.
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ARTICLE FOUR
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Committees
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Section 1. Executive Committee. The Board shall appoint an Executive
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Committee. The Chairman shall be ex officio the Chairman thereof, unless the
Board shall appoint another member as Chairman. The Executive Committee shall
be composed of members of the Board, and shall at all times be subject to its
control. The Executive Committee shall have all the authority of the Board,
except with respect to:
(a) The approval of any action which also requires Shareholders'
approval.
(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 to the Shareholders.
(g) The appointment of other committees of the Board or the
members thereof.
Section 2. Audit Committee. The Board shall appoint an Audit
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Committee comprised solely of Directors who are neither officers nor employees
of the Corporation and who are free from any relationship that, in the opinion
of the Board, would interfere with the exercise of independent judgment as
committee members. The Audit Committee shall review and make recommendations to
the Board with respect to:
(a) The engagement of an independent accounting firm to audit the
Corporation's financial statements and the terms of such
engagement.
(b) The policies and procedures for maintaining the Corporation's
books and records and for furnishing appropriate information
to the independent auditor.
(c) The evaluation and implementation of any recommendations made
by the independent auditor.
(d) The adequacy of the Corporation's internal audit controls and
related personnel.
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(e) Such other matters relating to the Corporation's financial
affairs and accounts as the Committee deems desirable.
Section 3. Other Committees. The Board may appoint such other
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committees of its members as it shall deem desirable, and, within the
limitations specified for the Executive Committee, may vest such committees with
such powers and authorities as it shall see fit, and all such committees shall
at all times be subject to its control.
Section 4. Notice of Meetings. Notice of each meeting of any
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committee of the Board shall be given to each member of such committee, and the
giving of such notice shall be subject to the same requirements as the giving of
notice of meetings of the Board, unless the Board shall establish different
requirements for the giving of notice of committee meetings.
Section 5. Conduct of Meetings. The provisions of these bylaws with
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respect to the conduct of meetings of the Board shall govern the conduct of
committee meetings. Written minutes shall be kept of all committee meetings.
ARTICLE FIVE
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Shareholder Meetings
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Section 1. Annual Meeting. The annual meeting of the Shareholders
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shall be held at 11:00 a.m. on the fourth Tuesday in April in each year or on a
date and at a time determined to be appropriate by the Board of Directors. If
such day is a legal holiday, the meeting shall be held on the next day which is
not a holiday.
Section 2. Special Meetings. Special meetings of the Shareholders
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for any purpose whatsoever may be called at any time by the Chairman, the
President, or the Board, or by one or more Shareholders holding not less than
one-tenth of the voting power of the Corporation.
Section 3. Place of Meetings. All meetings of the Shareholders
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shall be held at the principal office of the Corporation in San Diego,
California, or at such other locations as may be designated by the Board.
Section 4. Notice of Meetings. Written notice shall be given to
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each Shareholder entitled to vote of the date, time, place and general purpose
of each meeting of Shareholders. Notice may be given personally, or by mail, or
by telegram, charges prepaid, to the Shareholder's address appearing on the
books of the Corporation. If a Shareholder supplies no address to the
Corporation, notice shall be deemed to be given if mailed to the place where the
principal office of the Corporation is situated, or published at least once in
some newspaper of general circulation in the county of said principal office.
Notice of any meeting shall be sent to each Shareholder entitled thereto not
less than 10 or more than 60 days before such meeting.
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Section 5. Voting. The Board may fix a time in the future not less than
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10 or more than 60 days preceding the date of any meeting of Shareholders, or
not more than 60 days preceding the date fixed for the payment of any dividend
or distribution, or for the allotment of rights, or when any change or
conversion or exchange of shares shall go into effect, as a record date for the
determination of the Shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or distribution, or any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion, or exchange of shares. In such case only Shareholders of record at
the close of business on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such dividend, distribution or allotment of
rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as aforesaid. The Board may close the books of the Corporation against any
transfer of shares during the whole or any part of such period.
Section 6. Quorum. At any Shareholders' meeting a majority of the
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shares entitled to vote must be represented in order to constitute a quorum for
the transaction of business, but a majority of the shares present, or
represented by proxy, though less than a quorum, may adjourn the meeting to some
other date, and from day to day or from time to time thereafter until a quorum
is present.
ARTICLE SIX
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Certificate of Shares
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Section 1. Form. Certificates for shares of the Corporation shall
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state the name of the registered holder of the shares represented thereby, and
shall be signed by the Chairman or the President or a Vice President, and by the
Secretary or an Assistant Secretary. Any such signature may be by facsimile
thereof.
Section 2. Surrender. Upon a surrender to the Secretary, or to a
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transfer agent or transfer clerk of the Corporation, of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
party entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 3. Right of Transfer. When a transfer of shares on the
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books is requested, and there is a reasonable doubt as to the rights of the
persons seeking such transfer, the Corporation, or its transfer agent or
transfer clerk, before entering the transfer of the shares on its books or
issuing any certificate therefor, may require from such person reasonable proof
of his or her rights, and, if there remains a reasonable doubt in respect
thereto, may refuse a transfer unless such person shall give adequate security
or a bond of indemnity executed by a corporate surety, or by two individual
sureties, satisfactory to the Corporation as to form, amount and responsibility
of sureties.
Section 4. Conflicting Claims. The Corporation shall be entitled to
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treat the holder of record of any shares as the holder in fact thereof and shall
not be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not it shall
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have express or other notice thereof, save as expressly provided by the laws of
the State of California.
Section 5. Loss Theft and Destruction. In the case of the alleged
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loss, theft or destruction of any certificate of shares, another may be issued
in its place as follows: (1) the owner of the lost, stolen or destroyed
certificate shall file with the transfer agent of the Corporation a duly
executed Affidavit or Loss and Indemnity Agreement and Certificate of Coverage,
accompanied by a check representing the cost of the bond as outlined in any
blanket lost securities and avoid administration bond previously approved by the
Directors of the Corporation and executed by a surety company satisfactory to
them, which bond shall indemnify the Corporation, its transfer agents and
registrars; or (2) the Board may, in its discretion, authorize the issuance of a
new certificate to replace a lost, stolen or destroyed certificate on such other
terms and conditions as it may determine to be reasonable.
ARTICLE SEVEN
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Indemnification of Agents of the Corporation
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Section 1. Definitions. For the purposes of this Article Seven,
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"agent" means any person who (i) is or was a Director, officer, employee or
other agent of the Corporation, (ii) 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
(iii) 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; "proceeding" means
any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses" includes, without
limitation, attorneys' fees and any expenses of establishing a right to
indemnification under Sections 4 or 5(c) of this Article Seven.
Section 2. Indemnification for Third Party Actions. The Corporation
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shall have the power to indemnify any 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 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 contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the Corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 3. Indemnification for Derivative Actions. The Corporation
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shall have the power to indemnify any person who is or was a party, or is
threatened to be made a party, to any
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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 and in a manner such person believed to be in the
best interests of the Corporation and its Shareholders. No indemnification
shall be made under this Section 3:
(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; or
(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 4. Successful Defense. Notwithstanding any other provision
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of this Article, to the extent that an agent of the Corporation has been
successful on the merits or otherwise (including the dismissal of an action
without prejudice or the settlement of a proceeding or action without admission
of liability) in defense of any proceeding referred to in Sections 2 or 3 of
this Article, or in defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred in connection therewith.
Section 5. Discretionary Indemnification. Except as provided in
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Section 4 of this Article Seven, any indemnification under Section 3 hereof
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 3, by:
(a) A majority vote of a quorum consisting of Directors who are
not parties to such proceeding;
(b) If such a quorum of Directors is not obtainable, by
independent legal counsel in a written opinion;
(c) Approval by the affirmative vote of a majority of the shares
of this Corporation represented and voting at a duly held
meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the
required quorum) or by the written consent of holders of a
majority of the outstanding shares which would be entitled to
vote at
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such meeting and, for such purpose, the shares owned by the
person to be indemnified shall not be considered outstanding
or entitled to vote; or
(d) The court in which such proceeding is or was pending, upon
application made by the Corporation, the agent or the attorney
or other person rendering services in connection with the
defense, whether or not such application by said agent,
attorney or other person is opposed by the Corporation.
Section 6. Advancement of Expenses. Expenses incurred in defending
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any proceeding may be advanced by the Corporation prior to the final disposition
of such proceeding upon receipt of an undertaking by or on behalf of the agent
to repay such amount if it shall be determined ultimately that the agent is not
entitled to be indemnified as authorized in this Article Seven.
Section 7. Restriction on Indemnification. No indemnification or
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advance shall be made under this Article Seven, except as provided in Sections 4
and 6 hereof, in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles
of Incorporation of the Corporation, its 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) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 8. Non-Exclusive. In the absence of any other basis for
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indemnification of an agent, the Corporation can indemnify such agent pursuant
to this Article Seven. The indemnification provided by this Article Seven shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, bylaw, agreement, vote of
Shareholders or disinterested Directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. The rights to indemnification under this Article Seven shall continue
as to a person who has ceased to be a Director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of the
person. Nothing contained in this Section 8 shall affect any right to
indemnification to which persons other than such Directors and officers may be
entitled by contract or otherwise.
Section 9. Expenses as a Witness. To the extent that any agent of
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the Corporation is by reason of such position, or a position with another entity
at the request of the Corporation, a witness in any action, suit or proceeding,
he or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
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Section 10. Insurance. The Board may purchase and maintain
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directors and officers liability insurance, at its expense, to protect itself
and any Director, officer or other named or specified agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss 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 would have the power to indemnify the agent against such
expense, liability or loss under the provisions of this Article Seven or under
California Law.
Section 11. Separability. Each and every paragraph, sentence, term
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and provision of this Article Seven is separate and distinct so that if any
paragraph, sentence, term or provision hereof shall be held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
affect the validity or unenforceability of any other paragraph, sentence, term
or provision hereof. To the extent required, any paragraph, sentence, term or
provision of this Article may be modified by a court of competent jurisdiction
to preserve its validity and to provide the claimant with, subject to the
limitations set forth in this Article and any agreement between the Corporation
and claimant, the broadest possible indemnification permitted under applicable
law. If this Article Seven or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless have the power to indemnify each Director, officer, employee, or
other agent against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative, and whether internal
or external, including a grand jury proceeding and including an action or suit
brought by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article Seven that shall not have been
invalidated or by any other applicable law.
Section 12. Agreements. Upon, and in the event of, a determination
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of the Board to do so, the Corporation is authorized to enter into
indemnification agreements with some or all of its Directors, officers,
employees and other agents providing for indemnification to the fullest extent
permissible under California law and the Corporation's Articles of
Incorporation.
Section 13. Retroactive Appeal. In the event this Article Seven is
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repealed or modified so as to reduce the protection afforded herein, the
indemnification provided by this Article shall remain in full force and effect
with respect to any act or omission occurring prior to such repeal or
modification.
ARTICLE EIGHT
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Obligations
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All obligations of the Corporation, including promissory notes, checks,
drafts, bills of exchange, and contracts of every kind, and evidences of
indebtedness issued in the name of, or payable to, or executed on behalf of the
Corporation, shall be signed or endorsed by such officer or officers, or agent
or agents, of the Corporation and in such manner as, from time to time, shall be
determined by the Board.
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ARTICLE NINE
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Corporate Seal
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The corporate seal shall set forth the name of the Corporation, state, and
date of incorporation.
ARTICLE TEN
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Amendments
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These bylaws may be amended or repealed as set forth in the Articles of
Incorporation.
ARTICLE ELEVEN
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Availability of Bylaws
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A current copy of these bylaws shall be mailed or otherwise furnished
to any Shareholder of record within five days after receipt of a request
therefor.
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