Exhibit 3.10
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SECOND AMENDED AND RESTATED
BYLAWS
OF
PACIFIC ENVIRONMENTAL GROUP, INC.,
a California corporation
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ARTICLE 1
OFFICES
Section 1.1. Principal Office. The principal office for the
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transaction of the business of the corporation shall be located at 1601 Civic
Center Drive, Suite 202, Santa Clara, California 95050. The Board of Directors
is hereby granted full power and authority to change said principal office to
another location within or without the State of California.
Section 1.2. Other Offices. One or more branch or other subordinate
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offices may at any time be fixed and located by the Board of Directors at such
place or places within or without the State of California as it deems
appropriate.
ARTICLE 2
DIRECTORS
Section 2.1. Exercise of Corporate Powers. Except as otherwise
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provided by the Articles of Incorporation of the corporation or by the laws of
the State of California now or hereafter in force, the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. The Board may delegate the
management of the day-to-day operation of the business of the corporation as
permitted by the law provided that the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised under the ultimate
direction of the Board.
Section 2.2. Number. The number of the corporation's directors shall
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be six (6). After issuance of shares, no amendment to this Section reducing the
number of directors to a number below five (5) shall be enacted if the votes
cast against its adoption at a meeting, or the shares not consenting in the case
of action by written consent, are equal to more than 16-2/3 percent of the
outstanding shares entitled to vote.
Section 2.3. Need Not Be Shareholders. The directors of the
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corporation need not be shareholders of the corporation.
Section 2.4. Compensation. Directors shall receive such compensation
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for their services as directors and such reimbursement for their expenses of
attendance at meetings as may be determined from time to time by resolution of
the Board. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
Section 2.5. Election and Term of Office. At each annual meeting of
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shareholders, directors shall be elected to hold office until the next annual
meeting, provided that if for any reason said annual meeting or an adjournment
thereof is not held or the directors are not elected thereat, then the directors
may be elected at any special meeting of the shareholders called and held for
that purpose. The term of office of the directors shall begin immediately after
their election and shall continue until the expiration of the term for which
elected and until their respective successors have been elected and qualified.
Section 2.6. Vacancies. A vacancy or vacancies in the Board of
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Directors shall exist when any authorized position of director is not then
filled by a duly elected director, whether caused by death, resignation,
removal, change in the authorized number of directors (by the Board or the
shareholders) or otherwise. The Board of Directors may declare vacant the office
of a director who has been declared of unsound mind by an order of court or
convicted of a felony. A vacancy created by the removal of a director may be
filled only by the approval of the shareholders. Except for a vacancy created by
the removal of a director, vacancies on the Board may be filled by a majority of
the directors then in office, whether or not less than a quorum, or by a sole
remaining director. The shareholders may elect a director at any time to fill
any vacancy not filled by the directors, but any such election by written
consent other than to fill a vacancy created by removal requires the consent of
a majority of the outstanding shares entitled to vote. Any director may resign
effective upon giving written notice to the Chairman of the Board, the
President, the Secretary, or the Board of Directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation. If
the resignation is effective at a future time, a successor may be elected to
take office when the resignation becomes effective.
Section 2.7. Removal.
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2.7.1. General Rule. Any and all of the directors may be
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removed without cause if such removal is approved by the affirmative vote of a
majority of the outstanding shares entitled to vote at an election of directors,
except as set forth in subsections 2.7.2 and 2.7.3.
2.7.2. Supermajority Vote Required. No director may be removed
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(unless the entire Board is removed) when the votes cast against removal, or not
consenting in writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which the same total number of
votes were cast (or, if such action is taken by written consent, all shares
entitled to vote were voted) and the entire number of directors authorized at
the time of the director's most recent election were then being elected.
2.7.3. Class Vote. When the provisions of the Articles the
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holders of the shares of any class or series, voting as a class or series, are
entitled to elect one or more
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directors, any director so elected may be removed only by the applicable vote of
the holders of the shares of that class or series.
2.7.4. Effect of Reduction of Size of Board. Any reduction of
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the authorized number of directors does not remove any director prior to the
expiration of such director's term of office.
Section 2.8. Meetings of Directors.
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2.8.1. Place of Meetings. Unless otherwise specified in the
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notice thereof, meetings (whether regular, special or adjourned) of the Board of
Directors of the corporation shall be held at the principal office of the
corporation for the transaction of business, as specified in accordance with
Section 1.1, which is hereby designated as an office for such purpose in
accordance with the laws of the State of California, or at any other place
within or without the State which has been designated from time to time by
resolution of the Board or by written consent of all members of the Board.
2.8.2. Regular Meetings. Regular meetings of the Board of
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Directors, of which no notice need be given except as required by the laws of
the State of California, shall be held after the adjournment of each annual
meeting of the shareholders (which meeting shall be designated the Regular
Annual Meeting) and at such other times as may be designated from time to time
by resolution of the Board of Directors. Such regular meetings shall be held at
the principal office of the corporation for the transaction of business as
specified in accordance with Section 1.1 or at any other place within or without
the State of California which has been designated from time to time by
resolution of the Board or by written consent of all members of the Board,
unless notice of the place thereof be given in the same manner as for special
meetings.
2.8.3. Special Meetings. Special meetings of the Board of
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Directors may be called at any time by the Chairman of the Board, the President,
any Vice President, the Secretary, or any two or more of the directors.
2.8.4. Notice of Meetings. Except in the case of regular
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meetings, notice of which has been dispensed with, all meetings of the Board of
Directors shall be held upon four (4) days' notice by mail or forty-eight (48)
hours' notice delivered personally or by telephone, telegraph, or other
electronic or wireless means. If the address of a director is not shown on the
records and is not readily ascertainable, notice shall be addressed to him at
the city or place in which the meetings of the directors are regularly held.
Except as set forth in subsection 2.8.6, notice of the time and place of holding
an adjourned meeting need not be given to absent directors if the time and place
be fixed at the meeting adjourned.
2.8.5. Quorum. A majority of the authorized number of directors
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constitutes a quorum of the Board for the transaction of business. Every act or
decision done or made by a majority of the directors present at a meeting duly
held at which a quorum is present shall be regarded as the act of the Board of
Directors except as otherwise provided by law. A meeting at which a quorum is
initially present may continue to transact business notwithstanding
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the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
2.8.6. Adjourned Meetings. A majority of the directors present,
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whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, notice of any
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
2.8.7. Waiver of Notice and Consent. Notice of meeting need not
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be given to any director who signs a waiver of notice or a consent to holding
the meeting or an approval of the minutes thereof, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such waivers, consents,
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
2.8.8. Action Without a Meeting. Any action required or
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permitted to be taken by the Board may be taken without a meeting, if all
members of the Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes of
the proceedings of the Board. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors.
2.8.9. Conference Telephone Meetings. Members of the Board may
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participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section
constitutes presence in person at such meeting.
2.8.10. Meetings of Committees. The provisions of this Section
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apply also to committees of the Board and action by such committees, with such
changes in points of detail as may be necessary.
ARTICLE 3
OFFICERS
Section 3.1. Election and Qualifications. The officers of the
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corporation shall consist of a President, one or more Vice Presidents, a
Secretary, and a Chief Financial Officer who shall be chosen by the Board of
Directors and such other officers, including a Chairman of the Board, as the
Board of Directors shall deem expedient, who shall be chosen in such manner and
hold their offices for such term as the Board of Directors may prescribe. Any
two or more of such offices may be held by the same person. Any Vice President,
Assistant Treasurer, or Assistant Secretary may exercise any of the powers of
the President, the Chief Financial Officer, or the Secretary, respectively, as
directed by the Board of Directors, and shall perform such other duties as are
imposed upon such officer by the Bylaws or the Board of Directors.
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Section 3.2. Term of Office and Compensation. The term of office and
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salary of each of said officers and the manner and time of the payment of such
salaries shall be fixed and determined by the Board of Directors and may be
altered by said Board from time to time at its pleasure, subject to the rights,
if any, of said officers under any contract of employment.
Section 3.3. Removal and Vacancies. Any officer of the corporation
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may be removed at the pleasure of the Board of Directors at any meeting or at
the pleasure of any officer who may be granted such power by a resolution of the
Board of Directors. Any officer may resign at any time upon written notice to
the corporation without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. If any vacancy occurs in any
office of the corporation, the Board of Directors may elect a successor to fill
such vacancy for the remainder of the unexpired term and until a successor is
duly chosen and qualified.
ARTICLE 4
CHAIRMAN OF THE BOARD
The Chairman of the Board of Directors, if there be one, shall have
the power to preside at all meetings of the Board of Directors, and to call
meetings of the shareholders and of the Board of Directors to be held within the
limitations prescribed by law or by these Bylaws, at such times and at such
places as the Chairman of the Board shall deem proper. The Chairman of the Board
shall have such other powers and shall be subject to such other duties as the
Board of Directors may from time to time prescribe.
ARTICLE 5
PRESIDENT
Section 5.1. Powers and Duties. The powers and duties of the
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President are:
(a) To act as the chief executive officer of the corporation and,
subject to the control of the Board of Directors, to have general supervision,
direction, and control of the business and affairs of the corporation.
(b) To preside at all meetings of the shareholders and, in the absence
of the Chairman of the Board, or if there be none, at all meetings of the Board
of Directors.
(c) To call meetings of the shareholders and also of the Board of
Directors to be held, subject to the limitations prescribed by law or by these
Bylaws, at such times and at such places as the President shall deem proper.
(d) Subject to the direction of the Board of Directors, to have
general charge of the property of the corporation and to supervise and control
all officers, agents, and employees of the corporation.
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Section 5.2. President Pro Tem. If neither the Chairman of the Board,
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the President, nor any Vice President is present at any meeting of the Board of
Directors, a President pro tem may be chosen to preside and act at such meeting.
If neither the President nor any Vice President is present at any meeting of the
shareholders, a President pro tem may be chosen to preside at such meeting.
ARTICLE 6
VICE PRESIDENT
In the case of the absence, disability, or death of the President, the
Vice President, or one of the Vice Presidents, shall exercise all the powers and
perform all the duties of the President. If there is more than one Vice
President, the order in which the Vice Presidents shall succeed to the powers
and duties of the President shall be fixed by the Board of Directors. The Vice
President or Vice Presidents shall have such other powers and perform such other
duties as may be granted or prescribed by the Board of Directors.
ARTICLE 7
SECRETARY
The powers and duties of the Secretary are:
(a) To keep a book of minutes at the principal office of the
corporation, or such other place as the Board of Directors may order, of all
meetings of its directors and shareholders with the time and place of holding,
whether regular or special, and, if special, how authorized, the notice thereof
given, the names of those present at directors' meetings, the number of shares
present or represented at shareholders' meetings, and the proceedings thereof.
(b) To keep the seal of the corporation and to affix the same to all
instruments which may require it.
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a share register,
or duplicate share registers, showing the names of the shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for shares, and the number and date of cancellation of every
certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the corporation, to
fill in all certificates issued, and to make a proper record of each such
issuance; provided, that so long as the corporation shall have one or more duly
appointed and acting transfer agent of the shares, or any class or series of
shares, of the corporation, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the corporation any and all
shares of the corporation; provided, that so long as the corporation shall have
one or more duly appointed
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and acting transfer agent of the shares, or any class or series of shares, of
the corporation, such duties with respect to such shares shall be performed by
such transfer agent or transfer agents, and the method of transfer of each
certificate shall be subject to the reasonable regulations of the transfer agent
to which the certificate is presented for transfer, and also, if the corporation
then has one or more duly appointed and acting registrars, to the reasonable
regulations of the registrar to which the new certificate is presented for
registration; and provided, further, that no certificate for shares of stock
shall be issued or delivered or, if issued or delivered, shall have any validity
whatsoever until and unless it has been signed or authenticated in the manner
provided in Section 12.2.
(f) To make service and publication of all notices that may be
necessary or proper, and without command or direction from anyone. In case of
the absence, disability, refusal, or neglect of the Secretary to make service or
publication of any notices, then such notices may be served and/or published by
the President, a Vice President, any person thereunto authorized by either of
them, the Board of Directors, or the holders of a majority of the outstanding
shares of the corporation.
(g) Generally to do and perform all such duties as pertain to the
office of Secretary and as may be required by the Board of Directors.
ARTICLE 8
CHIEF FINANCIAL OFFICER
The powers and duties of the Chief Financial Officer are:
(a) To supervise and control the keeping and maintaining of adequate
and correct accounts of the corporation's properties and business transactions,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings, and shares. The books of account shall at
all reasonable times be open to inspection by any director.
(b) To have the custody of all funds, securities, evidences of
indebtedness, and other valuable documents of the corporation, and, at the Chief
Financial Officer's discretion, to cause any or all thereof to be deposited for
the account of the corporation with such depositary as may be designated from
time to time by the Board of Directors.
(c) To receive or cause to be received, and to give or cause to be
given, receipts and acquittances for moneys paid in for the account of the
corporation.
(d) To disburse, or cause to be disbursed, all funds of the
corporation as may be directed by the Board of Directors, taking proper vouchers
for such disbursements.
(e) To render to the President and the Board of Directors, whenever
they may require, accounts of all transactions and of the financial condition of
the corporation.
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(f) Generally to do and perform all such duties as pertain to the
office of Chief Financial Officer and as may be required by the Board of
Directors.
ARTICLE 9
COMMITTEES OF THE BOARD
Section 9.1. Appointment and Procedure. The Board of Directors may,
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by resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of at least two or more
directors, to serve at the pleasure of the Board. The Board may designate, one
or more directors as alternate members of any committee, who may replace any
absent member at any meeting of the committee. The appointment of members or
alternate members of a committee requires the vote of a majority of the
authorized number of directors.
Section 9.2. Powers. Any committee appointed by the Board of
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Directors, to the extent provided in the resolution of the Board or in these
Bylaws, shall have all the authority of the Board except with respect to:
(a) the approval of any action which requires the approval or vote of
the shareholders;
(b) the filling of vacancies on the Board or on any committee;
(c) the fixing of compensation of the directors for serving on the
Board or on any committee;
(d) the amendment or repeal of Bylaws or the adoption of new Bylaws;
(e) the amendment or repeal of any resolution of the Board which by
its express terms is not so amendable or repealable;
(f) a distribution as defined in Section 166 of the California
Corporations Code, except at a rate or in a periodic amount or within a price
range set forth in the Articles of Incorporation or determined by the Board;
(g) the appointment of other committees of the Board or the members
thereof.
Section 9.3. Executive Committee. In the event that the Board of
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Directors appoints an Executive Committee, such Executive Committee, in all
cases in which specific directions to the contrary shall not have been given by
the Board of Directors, shall have and may exercise, during the intervals
between the meetings of the Board of Directors, all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation (except as provided in Section 9.2) in such manner as the Executive
Committee may deem best for the interests of the corporation.
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ARTICLE 10
MEETINGS OF SHAREHOLDERS
Section 10.1. Place of Meetings. Meetings (whether regular, special,
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or adjourned) of shareholders of the corporation shall be held at the principal
office for the transaction of business as specified in accordance with Section
1.1, or any place within or without the State which may be designated by written
consent of all the shareholders entitled to vote thereat, or which may be
designated by the Board of Directors.
Section 10.2. Time of Annual Meetings. The annual meeting of the
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shareholders shall be held not earlier than February 15 and not later than May
15 of each year on such date and at such time as may be set by the Board of
Directors or, if it does not act, by the Chairman of the Board. If, through
inadvertence or other reason, no annual meeting is called within fifteen months
after the organization of the corporation or the date of the last annual
meeting, the Board of Directors or, if it does not act, the Chairman of the
Board, may immediately call an annual meeting of the shareholders, to be noticed
in accordance with these Bylaws and appropriate state law.
Section 10.3. Special Meetings. Special meetings of the shareholders
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may be called by the Board, the Chairman of the Board, the President, or the
holders of shares entitled to cast not less than ten percent (10%) of the votes
at the meeting.
Section 10.4. Notice of Meetings. Whenever shareholders are required
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or permitted to take any action at a meeting, a written notice of the meeting
shall be given not less than 10 (or, if sent by third-class mail, 30) nor more
than 60 days before the day of the meeting to each shareholder entitled to vote
thereat. Such notice shall state the place, date, and hour of the meeting and
(a) in the case of a special meeting, the general nature of the business to be
transacted, and no other business may be transacted, or (b) in the case of the
annual meeting, those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders, but subject to the
provisions of Section 10.8 hereof any proper matter may be presented at the
meeting for such action. The notice of any meeting at which directors are to be
elected shall include the names of nominees intended at the time of the notice
to be presented by the Board of Directors for election.
Section 10.5. Delivery of Notice. Notice of a shareholders' meeting
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or the furnishing of any report shall be given either personally or by first-
class mail, or, if the corporation has outstanding shares held of record by 500
or more persons on the record date for the shareholder's meeting, notice may be
sent third-class mail, or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or if no such address appears or is given, at the place where the
principal executive office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located. The notice or report shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other
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means of written communication. A verified statement of mailing of any notice or
report in accordance with the provisions of this Section, executed by the
secretary, assistant secretary, or any transfer agent, shall be prima facie
evidence of the giving of the notice or report. If any notice or report
addressed to the shareholders at the address of such shareholder appearing on
the books of the corporation is returned to the corporation by United States
Postal Service marked to indicate that the United States Postal Service marked
to indicate that the United States Postal Service is unable to deliver the
notice or report to the shareholder at such address, all future notices or
reports shall be deemed to have been duly given without further mailing if the
same shall be available for the shareholder upon written demand of the
shareholder at the principal executive office of the corporation for a period of
one year from the date of the giving of the notice to all other shareholders.
Section 10.6. Adjourned Meetings. When a shareholders' meeting is
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adjourned to another time or place, unless these Bylaws otherwise require,
notice need not be given of the adjourned meeting if the time and place thereof
is announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 45 days
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 10.7. Consent to Shareholders' Meeting. The transactions of
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any meeting of shareholders, however called and noticed, and wherever held, are
as valid as though had at a meeting duly held after regular call and notice, if
a quorum is present either in person or by proxy, and if, either before or after
the meeting, each of the persons entitled to vote not present in person or by
proxy signs a written waiver of notice or consent to the holding of the meeting
or an approval of the minutes thereof. All such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by the California
General Corporation Law to be included in the notice but not so included in the
notice if such objection is expressly made at the meeting. Neither the business
to be transacted at nor the purpose of any regular or special meeting of
shareholders need be specified in any written notice, consent to the holding of
the meeting or approval of the minutes thereof, unless otherwise provided in the
Articles of Incorporation or Bylaws, except as provided in Section 10.8.
Section 10.8. Notice of Business to be Transacted in Certain Cases.
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Any shareholder approval at a meeting, other than unanimous approval by those
entitled to vote, on any of the matters listed below shall be valid only if the
general nature of the proposal so approved was stated in the notice of meeting
or in any written waiver of notice:
(a) a proposal to approve a contract or other transaction between a
corporation and one or more of its directors, or between a corporation and any
corporation, firm, or association in which one or more director has a material
financial interest;
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(b) a proposal to amend the Articles of Incorporation;
(c) a proposal regarding a reorganization, merger, or
consolidation involving the corporation;
(d) a proposal to wind up and dissolve the corporation;
(e) a proposal to adopt a plan of distribution of the shares,
obligations, or securities of any other corporation, domestic or foreign, or
assets other than money which is not in accordance with the liquidation rights
of any preferred shares as specified in the Articles of Incorporation.
Section 10.9. Quorum; Vote Required.
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10.9.1. Quorum Required. The presence in person or by
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proxy of the persons entitled to vote a majority of the voting shares at any
meeting shall constitute a quorum for the transaction of business. If a quorum
is present, the affirmative vote of a majority of the shares represented and
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitutes at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number or voting by
classes is required by law, the Articles of Incorporation, or these Bylaws, and
except as provided in subsection 10.9.2.
10.9.2. Continuation of Business Despite Lack of Quorum.
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The shareholders present at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment notwithstanding the
withdrawal of the number of enough shareholders to leave less than a quorum, if
any action taken (other than adjournment) is approved by at least a majority of
the shares required to constitute a quorum.
10.9.3. No Votes Without Quorum. In the absence of a
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quorum, any meeting of shareholders may be adjourned from time to time by the
vote of a majority of the shares represented either in person or by proxy, but
no other business may be transacted, except as provided in subsection 10.9.2.
Section 10.10. Actions Without Meeting.
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10.10.1. Majority Consent. Any action which may be taken
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at any annual or special meeting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted; provided that, subject to the provisions of Section 2.6, directors
may not be elected by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors.
10.10.2. Notice to Nonconsenting Shareholders. Unless the
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consents of all shareholders entitled to vote have been solicited in writing,
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(a) notice of any shareholder approval on matters described in
subsections (a), (c), or (e) of Section 10.8 or respecting indemnification of
agents of the corporation without a meeting by less than unanimous written
consent shall be given at least ten (10) days before the consummation of the
action authorized by such approval, and
(b) prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent,
to those shareholders entitled to vote but who have not consented in writing;
the provisions of Section 10.5 shall apply to such notice.
Section 10.11. Revocation of Consent. Any shareholder giving a
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written consent, or the shareholder's proxy-holders, or a transferee of the
shares or a personal representative of the shareholder or their respective
proxy-holders, may revoke the consent by a writing received by the corporation
prior to the time that written consents of the number of shares required to
authorize the proposed action have been filed with the secretary of the
corporation, but may not do so thereafter. Such revocation is effective upon its
receipt by the secretary of the corporation.
Section 10.12. Voting Rights. Except as provided in Section 10.14,
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in the Articles of Incorporation, or in any statute relating to the election of
directors or to other particular matters, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of
shareholders. Any holder of shares entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal, other than elections to office, but,
if the shareholder fails to specify the number of shares such shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares such shareholder is entitled to
vote.
Section 10.13. Determination of Holders of Record.
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10.13.1. Record Date. In order that the corporation may
------- -----------
determine the shareholders entitled to notice of any meeting, to vote, to
receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any other lawful action, the
Board of Directors may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days prior to the date of such meeting nor more than 60
days prior to any other action.
10.13.2. Absence of Determination by the Board. In the absence
------- -------------------------------------
of any record date set by the Board of Directors pursuant to subsection 10.13.1,
then:
(a) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
12
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board has been taken, shall be the day on which the first written consent
is given.
(c) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto, or the 60th day prior to the date of such other
action, whichever is later.
10.13.3. Adjournments. A determination of shareholders of record
------- ------------
entitled to notice of or to a vote at a meeting of shareholders shall apply to
any adjournment of the meeting unless the Board fixes a new record date for the
adjourned meeting, but the Board shall fix a new record date if the meeting is
adjourned for more than 45 days from the date set for the original meeting.
10.13.4. Effect of Post Record Date Transfers. Shareholders at
------- ------------------------------------
the close of business on the record date are entitled to notice and to vote or
to receive the dividend, distribution, or allotment of rights or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date, except as otherwise provided in
the Articles, these Bylaws, agreement, or applicable law.
Section 10.14. Elections for Directors.
------------- -----------------------
10.14.1. Right to Cumulate. Every shareholder complying with
------- -----------------
subsection 10.14.2 and normally entitled to vote at any election of directors
may cumulate such shareholder's votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of votes
to which the shareholder's shares are entitled, or distribute the shareholder's
votes on the same principle among as many candidates as the shareholder thinks
fit.
10.14.2. Procedure for Cumulating Votes. No shareholder shall
------- ------------------------------
be entitled to cumulate votes (i.e., cast for any candidate a number of votes
greater than the number of the votes which such shareholder normally is entitled
to cast) unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given written notice to
the chairman of the meeting at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination.
10.14.3. Directors Elected. In any election of directors, the
------- -----------------
candidates receiving the highest number of affirmative votes of the shares
entitled to be voted for them up to the number of directors to be elected by
such shares are elected; votes against directors and votes withheld shall have
no effect.
10.14.4. Ballot Optional. Elections for directors need not be
------- ---------------
by ballot unless a shareholder demands election by ballot at the meeting and
before the voting begins.
13
Section 10.15. Proxies.
------------- -------
10.15.1. Proxies Authorized. Every person entitled to vote
------- ------------------
shares may authorize another person or persons to act by proxy with respect to
such shares. Any proxy purporting to be executed in accordance with the
provisions of the General Corporation Law of the State of California shall be
presumptively valid.
10.15.2. Term of Proxy. No proxy shall be valid after the
------- -------------
expiration of 11 months from the date thereof unless otherwise provided in the
proxy. Every proxy continues in full force and effect until revoked by the
person executing it prior to the vote pursuant thereto, except as otherwise
provided in this Section. Such revocation may be effected by a writing delivered
to the corporation stating that the proxy is revoked or by a subsequent proxy
executed by the person executing the prior proxy and presented to the meeting,
or as to any meeting by attendance at such meeting and voting in person by the
person executing the proxy. The dates contained on the forms of proxy
presumptively determine the order of execution, regardless of the postmark dates
on the envelopes in which they are mailed.
10.15.3. Death of Proxy Maker. A proxy is not revoked by the
------- --------------------
death or incapacity of maker unless, before the vote is counted, written notice
of such death or incapacity is received by the corporation.
Section 10.16. Inspection of Election.
------------- ----------------------
10.16.1 Appointment. In advance of any meeting of shareholders,
------- -----------
the Board may appoint inspectors of election to act at the meeting and any
adjournment thereof. If inspectors of election are not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to replace
those who so fail or refuse) at the meeting. The number of inspectors shall be
either one or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one or three inspectors are to be appointed.
10.16.2 Duties. The inspectors of election shall determine the
------- ------
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity, and effect of proxies, receive votes, ballots, or consents, hear and
determine all challenges and questions in any way arising in connection with the
right to vote, count, and tabulate all votes and consents, determine when the
polls shall close, determine the result, and do such acts as may be proper to
conduct the election or vote with fairness to all shareholders.
10.16.3 Good Faith; Acts. The inspectors of election shall
------- ----------------
perform their duties impartially, in good faith, to the best of their ability,
and as expeditiously as is practical. If there are three inspectors of election,
the decision, act, or certificate of a majority is effective in all respects as
the decision, act, or certificate of all. Any report or certificate made by the
inspectors of election is prima facie evidence of the facts stated therein.
14
ARTICLE 11
INDEMNIFICATION OF DIRECTORS, OFFICERS, AND AGENTS
Section 11.1. Indemnification for Third Party Actions. Except as
------------ ---------------------------------------
provided elsewhere in this Article, the corporation shall indemnify any officer
or director of the corporation, and may indemnify any other person, who was or
is a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in its favor)
by reason of the fact that such person is or was an agent of the corporation,
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendre or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 11.2. Indemnification for Claims by the Corporation. Except
------------ ---------------------------------------------
as provided elsewhere in this Article, the corporation shall indemnify any
officer or director of the corporation, and may indemnify any other person, who
was or is a party or is threatened to be made a party to any threatened,
pending, or completed action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was an agent
of the corporation, against expenses actually and reasonably incurred by such
person in connection with the defense or settlement of such action if such
person acted in good faith, in a manner such person believed to be in the best
interest of the corporation and its shareholders.
Section 11.3. Prerequisite for Indemnification. Except as provided
------------ --------------------------------
in Section 11.5, any indemnification under Sections 11.1 and 11.2 shall be made
by the corporation only if authorized in the specific case, upon a determination
that indemnification of the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Section 11.1 or
11.2, by any of the following:
(a) a majority vote of a quorum consisting of directors who are
not parties to such proceeding;
(b) if such quorum of directors is not obtainable, by independent
legal counsel in a written opinion;
(c) approval, of the shareholders (within the meaning of Section
153 of the California Corporations Code), with the shares owned by the person to
be indemnified not being entitled to vote thereon; or
(d) the court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other person
rendering
15
services in connection with the defense, whether or not such application by the
agent, attorney, or other person is opposed by the corporation.
Section 11.4. Additional Indemnification when Permitted by Law.
------------ ------------------------------------------------
In addition to the indemnification provided in Sections 11.1 and 11.2 and except
as provided elsewhere in this Article, the corporation shall indemnify any
officer or director of the corporation, and may indemnify any other person, who
was or is a party or is threatened to be made a party to any proceeding (other
than an action by or in the right of the corporation to procure a judgment in
its favor) by reason of the fact that such person is or was an agent of the
corporation, against expenses, judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with such proceeding, to the
fullest extent permitted by law.
Section 11.5. Indemnification for Successful Defense. To the
------------ --------------------------------------
extent that an agent of the corporation is successful on the merits in defense
of any proceeding or in defense of any claim, issue, or matter therein, the
agent shall be indemnified against expenses actually and reasonably incurred by
the agent in connection therewith.
Section 11.6. Advances of Expenses. Expenses incurred by an
------------ --------------------
officer or director of the corporation in defending a proceeding shall be
advanced by the corporation, and expenses incurred by a person other than an
officer or director of the corporation in defending a proceeding may be advanced
by the corporation, before final disposition of proceeding. As a condition to
any such advance, the corporation shall receive an undertaking by or on behalf
of the officer, director, or agent to repay such amount if it is determined
ultimately that the agent is not entitled to be indemnified. With respect to
advances to persons other than officer or directors, the corporation may require
such terms and collateral as it deems appropriate as a condition to any such
advance. The corporation shall pay expenses of officers and directors required
to be paid under this Section within 45 days after the corporation receives
evidence of the expenses in form sufficient to document them for tax purposes.
Section 11.7. Prohibitions on Indemnification.
------------ -------------------------------
11.7.1 Limits on Indemnification that would be Inconsistent with
------ ---------------------------------------------------------
Controlling Documents or Court Orders. No indemnification or advance shall be
- -------------------------------------
made under this Article, except as provided in Sections 11.3(c) or 11.5, in any
circumstance where it appears that:
(a) it would be inconsistent with a provision of the Articles of
Incorporation of the corporation, these Bylaws, a resolution of the
shareholders, or an agreement in effect at the time of the accrual of the
alleged cause of action asserted in the proceeding in which the expenses were
incurred or other amounts were paid, which prohibits or otherwise, limits
indemnification; or
(b) it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
16
11.7.2. Limits on Indemnification for Selfish or Reckless Actions. No
------ ---------------------------------------------------------
indemnification or advance shall be made under this Article, except as provided
in Section 11.5, in any circumstance where it appears that the agent may be
liable:
(a) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law;
(b) for acts or omissions that the agent believes to be contrary to
the best interests of the corporation or its shareholders or that involve the
absence of good faith on the part of the agent;
(c) for any transaction from which the agent derived an improper
personal benefit;
(d) for acts or omissions that show a reckless disregard for the
agent's duty to the corporation or its shareholders in circumstances in which
the agent was aware, or should have been aware, in the ordinary course of
performing the agent's duties, of a risk of serious injury to the corporation or
its shareholders;
(e) for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the agent's duty to the corporation
or its shareholders; or
(f) under Section 310 or Section 316 of California Corporations Code.
11.7.3. Limits on Indemnification for Claims by the Corporation.
------ -------------------------------------------------------
No indemnification shall be made under Section 11.2,
(a) in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable to the corporation in the performance of
such person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which such proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine;
(b) of amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(c) of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
11.7.4. Limits on Indemnification for Unauthorized Prosecutions,
------ --------------------------------------------------------
Double Payments, and 16(b) Violations. No indemnification or advance shall be
- -------------------------------------
made under this Article, except as provided in Section 11.5, in any
circumstances where it appears that:
(a) the proceedings or claims are initiated or brought voluntarily by
the agent and not by way of defense without the approval of the Board of
Directors, unless
17
indemnification is approved by the board of directors or the shareholders
pursuant to clauses (a) or (c), respectively, of Section 11.3;
(b) the indemnifiable expense has been paid by insurance or by any
other person on behalf of the corporation; or
(c) the claims arises from a purchase and sale of securities
determined to be in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.
Section 11.8. Procedure Regarding Claims By Third Parties.
------------ -------------------------------------------
11.8.1. Notice. An agent whom the corporation is obligated or
------ ------
has agreed to indemnify under Section 11.1, shall, give notice to the
corporation promptly after the agent has actual knowledge of any claim as to
which indemnity may be sought pursuant to this Article. Failure to give notice
as provided herein shall not relieve the corporation of its obligations under
this Article unless and to the extent that the corporation is materially
prejudiced thereby.
11.8.2. Conduct of Defense. The agent shall permit the
------ ------------------
corporation to assume the defense of any claim, at the corporation's option. The
agent may approve the counsel the corporation selects to conduct the defense of
the claim, and shall not withhold consent unreasonably. The agent may
participate in the defense of the claim at the agent's expense.
11.8.3. Settlements. The corporation shall not, in the defense
------ -----------
of any claim, consent to entry of any judgment or enter into any settlement that
does not include as an unconditional term thereof a release of the agent by the
claimant or plaintiff from all liability in respect to such claim, unless the
agent agrees otherwise.
11.8.4. Conflict of Interest. If an agent is advised by its own
------ --------------------
counsel that there may be one or more legal defenses available to it that are
different from or additional to those available to other agents entitled to
indemnification, the corporation shall not have the right to assume the defense
of the action on behalf of the agent and shall reimburse the agent for the
reasonable fees and expenses of counsel retained by the agent. The corporation
shall not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for such agent.
Section 11.9. Separate Agreements Authorized; Bylaws Not Exclusive.
------------ ----------------------------------------------------
The corporation may agree with individual agents that it shall indemnify or
advance expenses in situations where such indemnification or advance is not
mandatory as the Board of Directors deems appropriate. The corporation may also
enter into separate indemnification agreements with its officers, directors, and
other agents. Such separate agreements may modify, expand, duplicate, or limit
any provision of this Article. Any such separate agreement shall govern to the
extend permitted by law if it conflicts with these Bylaws. The indemnification
provided by this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification
18
may be entitled under any law, other provisions of these Bylaws, the
corporation's Articles of Incorporation, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office, as authorized in
the Articles of Incorporation of the corporation. The rights to indemnification
under this Article shall continue as to a person who has ceased to be an agent
and shall inure to the benefit of the heirs, executors, and administrators of
such person. Nothing contained in this Article shall affect any right to
indemnification to which persons other than such directors and officers may be
entitled by contract or otherwise.
Section 11.10. Insurance. The corporation may purchase and maintain
------------- ---------
insurance on behalf of any agent against any liability asserted against or
incurred by the agent in such capacity or arising out of the agent's status as
such, whether or not the corporation has the power to indemnify the agent
against such liability under this Section.
Section 11.11. Optional Means of Assuring Payment. The corporation
------------- ----------------------------------
may, but is not required to, create a trust fund, grant a security interest,
obtain a letter of credit, or use other means to ensure the payment of such sums
as may be necessary to indemnify its agents as provided herein.
Section 11.12. Savings Clause. If any portion of this Article is
------------- --------------
invalid, then the corporation shall nevertheless indemnify each officer and
director, and each agent the corporation elects to indemnify, to the full extent
permitted by any applicable portion of this Article that is not invalid, or by
any applicable agreement or law. Without limiting the foregoing, if any portion
of this Article is invalid because it is too broad, the corporation shall be
required or entitled, as the case may be, to indemnify its agents to the full
extent permitted as if all necessary limitations had been included herein.
Section 11.13. Application of Other Laws. Nothing in this Article
------------- -------------------------
shall restrict the power of the corporation to indemnify its agents under any
provision of law from time to time applicable to the corporation, nor shall
anything in this Article authorize the corporation to indemnify its agents in
situations prohibited by law.
Section 11.14. Definitions. For the purpose of this Article:
------------- -----------
(a) "agent" means any person who is or was a director, officer,
employee, or other agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, or other enterprise,
or was a director, officer, employee, or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation;
(b) "officer" means the chief executive officer, chief operating
officer, chief financial officer, president, treasurer, secretary, and any vice
president, assistant treasurer, and assistant secretary of the corporation;
19
(c) "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative;
and
(d) "expenses" includes without limitation attorneys' fees and
any expenses of enforcing a right to indemnification.
ARTICLE 12
SUNDRY PROVISIONS
Section 12.1. Shares Held by the Corporation. Shares in other
------------ ------------------------------
corporations standing in the name of this corporation may be voted or
represented and all rights incident thereto may be exercised on behalf of this
corporation by the President or by any other officer of this corporation
authorized so to do by resolution of the Board of Directors.
Section 12.2. Certificates of Stock. There shall be issued to each
------------- ---------------------
holder of fully paid shares of the capital stock of the corporation a
certificate or certificates for such shares. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman or Vice Chairman of the Board, the President, or a
Vice President and by the Chief Financial Officer, an Assistant Treasurer, the
Secretary, or any Assistant Secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any or all of the signatures
on the certificates may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if such person were an officer, transfer agent, or registrar at
the date of issue.
Section 12.3. Lost Certificates. The corporation may issue a new
------------- -----------------
share certificate or a new certificate for any other security in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen, or
destroyed, and the corporation may require the owner of the lost, stolen, or
destroyed certificate or the owner's legal representative to give the
corporation a bond (or other adequate security) sufficient to indemnify it
against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of such new certificate. The Board of Directors may
adopt such other provisions and restriction with reference to lost certificates,
not inconsistent with applicable law, as it shall in its discretion deem
appropriate.
Section 12.4. Certification and Inspection of Bylaws. The
------------ --------------------------------------
corporation shall keep at its principal executive office in this state, or if
its principal executive office is not in this state at its principal business
office in this state, the original or a copy of these Bylaws as amended to date,
which shall be open to inspection by the shareholders at all reasonable times
during office hours. If the principal executive office of the corporation is
outside this state and the corporation has no principal business office in this
state, it shall upon the written request of any shareholder furnish to such
shareholder a copy of the Bylaws as amended, to date.
20
Section 12.5. Notices. Any reference in these Bylaws to the time a
------------ -------
notice is given or sent means, unless otherwise expressly provided, the time a
written notice by mail is deposited in the United States mails, postage prepaid;
or the time any other written notice is personally delivered to the recipient or
is delivered to a common carrier for transmission, or actually transmitted by
the person giving the notice by electronic means, to the recipient; or the time
any oral notice is communicated, in person or by telephone or wireless, to the
recipient or to a person at the office of the recipient who the person giving
the notice has reason to believe will promptly communicate it to the recipient.
Section 12.6. Reports to Shareholders. Except as may otherwise be
------------ -----------------------
required by law, the rendition of an annual report to the shareholders is waived
so long as there are less than 100 holders of record of the shares of the
corporation (determined as provided in Section 605 of the California General
Corporation Law). At such time or times, if any, that the corporation has 100 or
more holders of record of its shares, the Board of Directors shall cause an
annual report to be sent to the shareholders not later than 120 days after the
close of the fiscal year or within such shorter time period as may be required
by applicable law, and such annual report shall contain such information and be
accompanied by such other documents as may be required by applicable law.
Section 12.7. Loans to Officers. The Board may approve loans of
------------ -----------------
money or property to, and guaranties of the obligations of, officers of the
corporation, and may adopt employee benefit plans authorizing such loans and
guaranties to officers of the corporation, without the approval of the
shareholders of the corporation, provided that:
(a) the corporation has outstanding shares held of record by more
than 100 persons;
(b) the vote of any interested director or directors is not
counted; and
(c) the Board determines that such loan, guaranty or plan may
reasonably be expected to benefit the corporation.
ARTICLE 13
CONSTRUCTION OF BYLAWS WITH
REFERENCE TO PROVISIONS OF LAW
Section 13.1. Definitions. Unless defined otherwise in these Bylaws
------------ -----------
or unless the context otherwise requires, terms used herein shall have the same
meaning, if any, ascribed thereto in the California General Corporation Law, as
amended from time to time.
Section 13.2. Bylaw Provisions Additional and Supplemental to
------------ -----------------------------------------------
Provisions of Law. All restrictions, limitations, requirements, and other
- -----------------
provisions of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in addition to the said
provisions of law unless such compliance shall be illegal.
21
Section 13.3. Bylaw Provisions Contrary to or Inconsistent with
------------ -------------------------------------------------
Provisions of Law. Any portion of these Bylaws that, upon being construed in
- -----------------
the manner provided in Section 13.2, is contrary to or inconsistent with any
applicable law, shall not apply so long as said law remains in effect. Such
result shall not, however, affect the validity or application of any other
portion of these Bylaws. Each portion of these Bylaws would have been adopted
even if any other portion were invalid or unenforceable.
ARTICLE 14
ADOPTION, AMENDMENT, OR REPEAL OF BYLAWS
Section 14.1. By Shareholders. Bylaws may be adopted, amended, or
------------ ---------------
repealed by the approval of the affirmative vote of a majority of the
outstanding shares of the corporation entitled to vote.
Section 14.2. By the Board of Directors. Subject to the right of
------------ -------------------------
shareholders to adopt, amend, or repeal Bylaws, Bylaws other than a Bylaw or
amendment thereof changing the authorized number of directors or any provision
of this Article may be adopted, amended, or repealed by the Board of Directors.
A Bylaw adopted by the shareholders may restrict or eliminate the power of the
Board of Directors to adopt, amend, or repeal any or all Bylaws.
22