EXHIBIT 3.2
BYLAWS
OF
VDI MEDIA
A CALIFORNIA CORPORATION
TABLE OF CONTENTS
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ARTICLE I
OFFICES
Section 1. Principal Executive Office . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Qualification to do Business . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . 2
Section 3. Special Meetings. . . . . . . . . . . . . . . . . . . . . . 2
Section 4. Notice of Meetings of Shareholders. . . . . . . . . . . . . 2
Section 5. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Adjourned Meetings and Notice
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 7. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Voting Rights of Shares and
Shareholders. . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Record Date Requirements. . . . . . . . . . . . . . . . . . 5
(c) Voting of Shares by Fiduciaries,
Receivers, Pledgeholders and Minors . . . . . . . . . . . . 6
(d) Voting of Shares by Corporations. . . . . . . . . . . . . . 7
(e) Voting of Shares Owned of Record
by Two or More Persons. . . . . . . . . . . . . . . . . . . 8
(f) Election of Directors; Cumulative
Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 8. Waiver of Notice and Consent of
Absentees . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 9. Action Without a Meeting . . . . . . . . . . . . . . . . . 10
Section 10. Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 11. Inspectors of Election . . . . . . . . . . . . . . . . . . 13
ARTICLE III
DIRECTORS
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2. Number and Qualification of
Directors. . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3. Election and Term of Office. . . . . . . . . . . . . . . . 14
Section 4. Resignation and Removal of Directors . . . . . . . . . . . 14
Section 5. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . 15
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Section 6. Place of Meetings. . . . . . . . . . . . . . . . . . . . . 15
Section 7. Regular Meetings . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Special Meetings . . . . . . . . . . . . . . . . . . . . . 16
Section 9. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 10. Waiver of Notice or Consent. . . . . . . . . . . . . . . . 16
Section 11. Adjournment. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 12. Meetings by Conference Telephone . . . . . . . . . . . . . 17
Section 13. Action Without a Meeting . . . . . . . . . . . . . . . . . 17
Section 14. Fees and Compensation. . . . . . . . . . . . . . . . . . . 17
Section 15. Committees . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV
OFFICERS
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2. Elections. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3. Other Officers . . . . . . . . . . . . . . . . . . . . . . 19
Section 4. Removal and Resignation. . . . . . . . . . . . . . . . . . 20
Section 5. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6. Chairman of the Board. . . . . . . . . . . . . . . . . . . 20
Section 7. President. . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8. Vice Presidents. . . . . . . . . . . . . . . . . . . . . . 21
Section 9. Secretary. . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 10. Chief Financial Officer. . . . . . . . . . . . . . . . . . 22
ARTICLE V
MISCELLANEOUS
Section 1. Record Date. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2. Inspection of Corporate Records. . . . . . . . . . . . . . 23
Section 3. Checks, Drafts, etc. . . . . . . . . . . . . . . . . . . . 24
Section 4. Annual and Other Reports . . . . . . . . . . . . . . . . . 24
Section 5. Contracts, etc., How Executed. . . . . . . . . . . . . . . 25
Section 6. Certificate for Shares . . . . . . . . . . . . . . . . . . 26
Section 7. Representation of Shares of Other
Corporations . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8. Inspection of Bylaws . . . . . . . . . . . . . . . . . . . 27
Section 9. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10. Construction and Definitions . . . . . . . . . . . . . . . 27
ARTICLE VI
INDEMNIFICATION
Section 1. Indemnification of Agents. . . . . . . . . . . . . . . . . 28
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ARTICLE VII
AMENDMENTS
Section 1. Power of Shareholders. . . . . . . . . . . . . . . . . . . 28
Section 2. Power of Directors . . . . . . . . . . . . . . . . . . . . 28
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BYLAWS
OF
VDI MEDIA
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL EXECUTIVE OFFICE.
The principal executive office of the corporation shall be located at
such place as the board of directors shall from time to time determine.
SECTION 2. OTHER OFFICES.
Other offices may at any time be established by the board of directors
at any place or places where necessary or appropriate to carry out the business
of the corporation.
SECTION 3. QUALIFICATION TO DO BUSINESS.
The corporation shall qualify to do business in any jurisdiction in
which its business, properties or activities require it to do so.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.
All meetings of shareholders shall be held at the principal executive
office of the corporation or at any other place within or without the State of
California which may be designated either by the board of directors or by the
shareholders in accordance with these bylaws.
SECTION 2. ANNUAL MEETINGS.
The board of directors by resolution shall designate the time, place
and date (which shall be in the case of
the first annual meeting, not more than fifteen (15) months after the
organization of the corporation and, in the case of all other annual meetings,
no more than fifteen (15) months after the date of the last annual meeting) of
the annual meeting of the shareholders for the election of directors and the
transaction of any other proper business.
SECTION 3. SPECIAL MEETINGS.
Special meetings of the shareholders, for the purpose of taking any
action which is within the powers of the shareholders, may be called by the
chairman of the board, or by the president, or by the board of directors, or by
the holders of shares entitled to cast not less than ten percent (10%) of the
votes at the meeting.
SECTION 4. NOTICE OF MEETINGS OF SHAREHOLDERS.
(a) Written notice of each meeting of shareholders, whether annual or
special, shall be given to each shareholder entitled to vote thereat, either
personally or by first class mail or other means of written communication,
charges prepaid, addressed to such shareholder at the address of such
shareholder appearing on the books of the corporation or given by such
shareholder to the corporation for the purpose of notice. If any notice
addressed to the shareholder at the address of such shareholder appearing on the
books of the corporation is returned to the corporation by the United States
Postal Service marked to indicate that the United States Postal Service is
unable to deliver the notice to the shareholder at such address, all future
notices 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 (1) year from the date of the giving of the notice to all other
shareholders. If no address appears on the books of the corporation or is given
by the shareholder to the corporation for the purpose of notice, notice shall be
deemed to have been given to such shareholder if given either personally or by
first class mail or other means of written communication addressed to the place
where the principal executive office of the corporation is located, or if
published at least once in a newspaper of general circulation in the county in
which the principal executive office is located.
(b) All such notices shall be given not less than ten (10) days nor
more than sixty (60) days before the meeting to each shareholder entitled to
vote thereat. Any such notice shall be deemed to have been given at the time
when
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delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such notice in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or any
transfer agent of the corporation shall be prima facie evidence of the giving of
the notice.
(c) All such notices shall state the place, date and hour of such
meeting. In the case of a special meeting such notice shall also state the
general nature of the business to be transacted at such meeting, and no other
business may be transacted thereat. In the case of an annual meeting, such
notice shall also state those matters which the board of directors at the time
of the mailing of the notice intends to present for action by the shareholders.
Any proper matter may be presented at an annual meeting of shareholders though
not stated in the notice, provided that unless the general nature of a proposal
to be approved by the shareholders relating to the following matters is stated
in the notice or a written waiver of notice, any such shareholder approval will
require unanimous approval of all shareholders entitled to vote:
(1) A proposal to approve a contract or other transaction between the
corporation and one or more of its directors or any corporation, firm or
association in which one or more of its directors has a material financial
interest or is also a director;
(2) A proposal to amend the articles of incorporation;
(3) A proposal to approve the principal terms of a reorganization as
defined in Section 181 of the General Corporation Law;
(4) A proposal to wind up and dissolve the corporation;
(5) If the corporation has both preferred and common shares
outstanding and the corporation is in the process of winding up, a proposal to
adopt a plan of distribution of shares, obligations or securities of any other
corporation or assets other than money which is not in accordance with the
liquidation rights of the preferred shares as specified in the articles.
(d) 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 management for election.
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(e) Upon request in writing that a special meeting of shareholders be
called for any proper purpose, directed to the chairman of the board, president,
vice president or secretary by any person (other than the board) entitled to
call a special meeting of shareholders, the officer forthwith shall cause notice
to be given to the shareholders entitled to vote that a meeting will be held at
a time requested by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after receipt of the request.
SECTION 5. QUORUM.
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at any meeting shall constitute a quorum for the
transaction of business. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum.
SECTION 6. ADJOURNED MEETINGS AND NOTICE
THEREOF.
(a) Any shareholders' meeting, annual or special. whether or not a
quorum is present, may be adjourned from time to time by vote of a majority of
the shares, the holders of which are either present in person or by proxy
thereat, but in the absence of a quorum, no other business may be transacted at
any such meeting, except as provided in Section 8 of this Article II.
(b) When a shareholders' meeting is adjourned to another time or
place, except as provided in this subsection (b), notice need not be given of
the adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting the corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than forty-five (45) days or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at the meeting.
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SECTION 7. VOTING.
(a) VOTING RIGHTS OF SHARES AND SHAREHOLDERS.
(1) Except as provided in Section 708 of the General Corporation
Law (Election of Directors) and except as may be otherwise provided in the
articles of incorporation of this corporation, each outstanding share,
regardless of class, shall be entitled to one (1) vote on each matter submitted
to a vote of shareholders.
(2) 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.
(b) RECORD DATE REQUIREMENTS.
(1) In order that the corporation may determine the shareholders
entitled to notice of any meeting or to vote or entitled to receive payment of
any dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the board may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days prior to the date of such meeting nor more than sixty (60) days
prior to any other action.
(2) If no record date is fixed:
(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 preceding the day on which notice is given or, if
notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
(b) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting, when no prior
action by the board has been taken, shall be the day on which the first written
consent is given.
(c) The record date for determining shareholders for any
other purpose shall be at the close of
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business on the day on which the board adopts the resolution relating thereto,
or the sixtieth (60th) day prior to the date of such other action, whichever is
later.
(3) A determination of shareholders of record entitled to notice
of or to 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
forty-five (45) days from the date set for the original meeting.
(4) 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 or by agreement or
in the General Corporation Law.
(c) VOTING OF SHARES BY FIDUCIARIES, RECEIVERS,
PLEDGEHOLDERS AND MINORS.
(1) Subject to subdivision (3) of subsection (d) hereof, shares
held by an administrator, executor, guardian, conservator or custodian may be
voted by such holder either in person or by proxy, without a transfer of such
shares into the holder's name; and shares standing in the name of a trustee may
be voted by the trustee, either in person or by proxy, but no trustee shall be
entitled to vote shares held by such trustee without a transfer of such shares
into the trustee's name.
(2) Shares standing in the name of a receiver may be voted by
such receiver; and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into the receiver's name if
authority to do so is contained in the order of the court by which such receiver
was appointed.
(3) Subject to the provisions of Section 10 and except where
otherwise agreed in writing between the parties, a shareholder whose shares are
pledged shall be entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the pledgee shall be
entitled to vote the shares so transferred.
(4) Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the minor,
person or by proxy, whether or not the corporation has notice, actual or
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constructive, of the nonage, unless a guardian of the minor's property has been
appointed and written notice of such appointment given to the corporation.
(5) If authorized to vote the shares by the power of attorney by
which the attorney in fact was appointed, shares held by or under the control of
an attorney in fact may be voted and the corporation may treat all rights
incident thereto as exercisable by the attorney in fact, in person or by proxy,
without the transfer of the shares into the name of the attorney in fact.
(d) VOTING OF SHARES BY CORPORATIONS.
(1) Shares of this corporation standing in the name of another
corporation, domestic or foreign, may be voted by an officer, agent or
proxyholder as the bylaws of the other corporation may prescribe or, in the
absence of such provision, as the board of the other corporation may determine
or, in the absence of that determination, by the chairman of the board,
president or any vice president of the other corporation, or by any other person
authorized to do so by the chairman of the board, president or any vice
president of the other corporation. Shares which are purported to be voted or
any proxy purported to be executed in the name of a corporation (whether or not
any title of the person signing is indicated) shall be presumed to be voted or
the proxy executed in accordance with the provisions of this subdivision, unless
the contrary is shown.
(2) Shares of this corporation owned by a subsidiary of this
corporation shall not be entitled to vote on any matter.
(3) Shares of this corporation held by this corporation in a
fiduciary capacity, and any of its shares held in a fiduciary capacity by a
subsidiary of this corporation, shall not be entitled to vote on any matter,
except as follows: To the extent that the settlor or beneficial owner possesses
and exercises a right to vote or to give this corporation or the subsidiary of
this corporation binding instructions as to how to vote such shares, or (ii)
where there are one or more cotrustees who are not affected by the prohibitions
of this subsection 7.(d), in which case the shares may be voted by the
cotrustees as if it or they are the sole trustee.
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(e) VOTING OF SHARES OWNED OF RECORD BY TWO OR MORE PERSONS.
(1) If shares stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants
in common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a shareholder voting agreement
or otherwise, or if two or more persons (including proxyholders) have the same
fiduciary relationship respecting the same shares, unless the secretary of the
corporation is given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following
effect:
(a) If only one votes, such act binds all;
(b) If more than one vote, the act of the majority so
voting binds all;
(c) If more than one vote, but the vote is evenly split on
any particular matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this section shall be a majority or even split in interest.
(f) ELECTION OF DIRECTORS; CUMULATIVE VOTING.
(1) Every shareholder complying with subsection (2) and entitled
to vote in any election of directors may cumulate such shareholder's votes and
give one (1) candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which the shareholders' shares are
normally entitled, or distribute the shareholder's votes on the same principle
among as many candidates as the shareholder thinks fit.
(2) No shareholder shall be entitled to cumulate votes (i.e.,
cast for any candidate a number of votes greater than the number of votes which
such shareholder normally is entitled to cast) unless such candidate or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one (1)
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shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination.
(3) 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 the director and votes withheld shall have no legal effect.
(4) Elections for directors need not be by ballot unless a
shareholder demands election by ballot at the meeting and before the voting
begins.
SECTION 8. WAIVER OF NOTICE AND CONSENT OF
ABSENTEES.
The transactions of any meeting of shareholders, however called and
noticed and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy, signs a written waiver of notice or
a 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 and presence at such meeting,
except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by law or these bylaws to be
included in the notice but was not so included if such objection is expressly
made at the meeting, provided however, that any person making such objection at
the beginning of the meeting or to the consideration of matters required to be
but not included in the notice may orally withdraw such objections at the
meeting or thereafter waive such objection by signing a written waiver thereof
or a consent to the holding of the meeting or the consideration of the matters
or an approval of the minutes of the meeting. Neither the business to be
transacted at nor the purpose of any annual or special meeting of shareholders
need be specified in any written waiver of notice, consent to the holding of the
meeting or approval of the minutes thereof, except that the general nature of
the proposals specified in subdivisions (1) through (5) of subsection (c) of
Section 4 of this Article II, shall be so stated.
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SECTION 9. ACTION WITHOUT A MEETING.
(a) Directors may be elected without a meeting by a consent in
writing, setting forth the action so taken, signed by all of the persons who
would be entitled to vote for the election of directors, provided that, a
director may be elected at any time to fill a vacancy not filled by the
directors, other than to fill a vacancy created by removal, by the written
consent of a majority of the outstanding shares entitled to vote for the
election of directors.
(b) Any other action which, under any provision of the General
Corporation Law may be taken at any annual or special meeting of the
shareholders, may be taken without a meeting, and without prior notice except as
hereinafter set forth, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
(c) Unless the consents of all shareholders entitled to vote have
been solicited in writing:
(1) Notice of any shareholder approval without a meeting, by
less than unanimous written consent, of, (i) a contract or other transaction
between the corporation and one or more of its directors or any corporation,
firm or association in which one or more of its directors has a material
financial interest or is also a director, indemnification of an agent of the
corporation as authorized by Section 16, of Article III, of these bylaws, (iii)
a reorganization of the corporation as defined in Section 181 of the General
Corporation Law, or (iv) the distribution of shares, obligations or securities
of any other corporation or assets other than money which is not in accordance
with the liquidation rights of preferred shares if the corporation is in the
process of winding up, shall be given at least ten (10) days before the
consummation of the action authorized by such approval; and
(2) Prompt notice shall be given of the taking of any other
corporate action including the filling of a vacancy on the board of directors
approved by shareholders without a meeting by less than unanimous written
consent, to those shareholders entitled to vote who have not consented in
writing. Such notices shall be given in the manner and shall be deemed to have
been given as provided in Section 4 of Article II of these bylaws.
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(d) Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a personal representative of the
shareholder or their respective proxyholders, 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. PROXIES.
(a) 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 this Section 10 shall be
presumptively valid.
(b) No proxy shall be valid after the expiration of eleven (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.
(c) A proxy is not revoked by the death or incapacity of the maker
unless, before the vote is counted, written notice of such death or incapacity
is received by the corporation.
(d) Except when other provision shall have been made by written
agreement between the parties, the record holder of shares which such person
holds as pledgee or otherwise as security or which belong to another shall issue
to the pledgor or to the owner of such shares, upon demand therefor and payment
of necessary expenses thereof, a proxy to vote or take other action thereon.
(e) A proxy which states that it is irrevocable is irrevocable for
the period specified therein (notwithstanding subsection (c)) when it is held by
any of the following or a nominee of any of the following:
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(1) A pledgee;
(2) A person who has purchased or agreed to purchase or holds an
option to purchase the shares or a person who has sold a portion of such
person's shares in the corporation to the maker of the proxy;
(3) A creditor or creditors of the corporation or the
shareholder who extended or continued credit to the corporation or the
shareholder in consideration of the proxy if the proxy states that it was given
in consideration of such extension or continuation of credit and the name of the
person extending or continuing credit;
(4) A person who has contracted to perform services as an
employee of the corporation, if a proxy is required by the contract of
employment and if the proxy states that it was given in consideration of such
contract of employment, the name of the employee and the period of employment
contracted for; or
(5) A person designated by or under an agreement under Section
706 of the General Corporation Law;
(6) A beneficiary of a trust with respect to shares held by the
trust.
Notwithstanding the period of irrevocability specified, the proxy
becomes revocable when the pledge is redeemed, the option or agreement to
purchase is terminated or the seller no longer owns any shares of the
corporation or dies, the debt of the corporation or the shareholder is paid, the
period of employment provided for in the contract of employment has terminated,
the agreement under Section 706 of the General Corporation Law has terminated,
or the person ceases to be a beneficiary of the trust. In addition to the
foregoing subdivisions (1) through (6), a proxy may be made irrevocable
(notwithstanding subsection (c)) if it is given to secure the performance of a
duty or to protect a title, either legal or equitable, until the happening of
events which, by its terms discharge the obligations secured by it.
(f) A proxy may be revoked notwithstanding a provision making it
irrevocable, by a transferee of shares without knowledge of the existence of the
provision unless the existence of the proxy and its irrevocability appears on
the certificate representing such shares.
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SECTION 11. INSPECTORS OF ELECTION.
(a) In advance of any meeting of shareholders, the board of directors
may appoint any persons as inspectors of election to act at such 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 such
meeting may, and on the request of any shareholder or his 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 (1) or three (3). 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 (1) or three (3) inspectors are to be appointed.
(b) 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 and 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 or 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.
(c) The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three (3) inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made in the inspectors of
election is prima facie evidence of the facts stated therein.
ARTICLE III
DIRECTORS
SECTION 1. POWERS.
Subject to the General Corporation Law and any limitations in the
articles of incorporation of this corporation relating to action requiring
approval by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
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SECTION 2. NUMBER AND QUALIFICATION OF
DIRECTORS.
The number of directors of this corporation shall be two (2). After
the issuance of shares this number may be changed only by an amendment to the
articles of incorporation or the bylaws approved by the affirmative vote or
written consent of a majority of the outstanding shares entitled to vote. If
the number of directors is or becomes five (5) or more, an amendment of the
articles of incorporation or the bylaws reducing the fixed number of directors
to less than five (5) cannot be adopted if the votes cast against its adoption
at a meeting or the shares not consenting in the case of action by written
consent are equal to more than sixteen and two-thirds percent (16-2/3%) of the
outstanding shares entitled to vote.
SECTION 3. ELECTION AND TERM OF OFFICE.
The directors shall be elected at each annual meeting of shareholders,
but if any such annual meeting is not held or the directors are not elected at
any annual meeting, the directors may be elected at any special meeting of
shareholders held for that purpose. Each director, including a director elected
to fill a vacancy, shall, subject to Section 4, hold office until the expiration
of the term for which elected and until his successor has been elected and
qualified.
SECTION 4. RESIGNATION AND REMOVAL OF DIRECTORS.
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.
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. Any or
all of the directors may be removed without cause if such removal is approved by
the affirmative vote of a majority of the outstanding shares entitled to vote;
provided, however, that no director may be removed (unless the entire board is
removed) when the votes cast against removal (or, if such action is taken by
written consent, the shares held by persons 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
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voted) and the entire number of directors authorized at the time of the
director's most recent election were then being elected. No reduction of the
authorized number of directors shall have the effect of removing any director
prior to the expiration of his term of office.
SECTION 5. VACANCIES.
A vacancy or vacancies on the board of directors shall exist on the
death, resignation or removal of any director, or if the board declares vacant
the office of a director if he is declared of unsound mind by an order of court
or is convicted of a felony, or if the authorized number of directors is
increased or if the shareholders fail to elect the full authorized number of
directors to be voted for at any shareholders' meeting at which an election of
directors is held. Vacancies on the board of directors (except vacancies
created by the removal of a director) may be filled by a majority of the
directors then in office, or by a sole remaining director. The shareholders may
elect a director at any time to fill any vacancy not filled by the directors or
which occurs by reason of the removal of a director. Any such election by
written consent of shareholders other than to fill a vacancy created by removal,
shall require the consent of a majority of the outstanding shares entitled to
vote. If the resignation of a director states that it is to be effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
SECTION 6. PLACE OF MEETINGS.
Regular and special meetings OF the board of directors may be held at
any place within or without the State of California which has been designated in
the notice of the meeting, or, if not stated in the notice or there is no
notice, designated by resolution or by written consent of all of the members of
the board of directors. If the place of a regular or special meeting is not
designated in the notice or fixed by a resolution of the board or consented to
in writing by all members of the board of directors, it shall be held at the
corporation's principal executive office.
SECTION 7. REGULAR MEETINGS.
Immediately following each annual shareholders' meeting the board of
directors shall hold a regular meeting to elect officers and transact other
business. Such meeting shall be held at the same place as the annual
shareholders' meeting or such other place as shall be fixed by the board
15
of directors. Other regular meetings of the board of directors shall be held at
such times and places as are fixed by the board. Call and notice of regular
meetings of the board of directors shall not be required and is hereby dispensed
with.
SECTION 8. SPECIAL MEETINGS.
Special meetings of the board of directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two (2) directors. Notice of the time and place
of special meetings shall be delivered personally to each director or by
telephone or telegraph or sent to the director by mail. In case notice is given
by mail or telegram, it shall be sent, charges prepaid, addressed to the
director at his address appearing on the corporate records, or if it is not on
these records or is not readily ascertainable, at the place where the meetings
of directors are regularly held. If notice is delivered personally or given by
telephone or telegraph, it shall be given or delivered to the telegraph office
at least forty-eight (48) hours before the meeting. If notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
meeting. Such mailing, telegraphing or delivery, personally or by telephone, as
provided in this section, shall be due, legal and personal notice to such
director. A notice need not specify the purpose of any regular or special
meeting of the board of directors.
SECTION 9. QUORUM
A majority of the authorized number of directors shall constitute 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 is the act of the board of directors, subject to the
provisions of Section 310 (Transactions with Interested Directors) and
subdivision (e) of Section 317 (Indemnification of Corporate Agents) of the
General Corporation Law. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors,
provided that any action taken is approved by at least a majority of the
required quorum for such meeting.
SECTION 10. WAIVER OF NOTICE OR CONSENT.
The transactions of any meeting of the board of directors, however
called and noticed or wherever held,
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shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum is present and if, either before or after the meeting, each
of the directors not present or who, though present, has prior to the meeting or
at its commencement, protested the lack of proper notice to him, signs a written
waiver of notice, or a consent to holding the meeting, or an approval of the
minutes of the meeting. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the board of directors. Notice of a meeting need not be given to any
director who attends the meeting without protesting, prior to or at its
commencement, the lack of notice to such director.
SECTION 11. ADJOURNMENT.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than twenty-four (24) hours, notice of the 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.
SECTION 12. MEETINGS BY CONFERENCE TELEPHONE.
Members of the board of directors may participate in a meeting through
use of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participation by
directors in a meeting in the manner provided in this section constitutes
presence in person at such meeting.
SECTION 13. ACTION WITHOUT A MEETING.
Any action required or permitted to be taken by the board of directors
may be taken without a meeting, if all members of the board shall individually
or collectively consent in writing to such action. Such 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.
SECTION 14. FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the board.
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SECTION 15. COMMITTEES.
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the board. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent member at any meeting of the committee. The
appointment of members or alternate members of a committee requires the vote of
a majority of the authorized number of directors. The board may delegate to any
such committee, to the extent provided in such resolution, any of the board's
powers and authority in the management of the corporation's business and affairs
except with respect to:
(a) The approval of any action for which the General Corporation Law
or the articles of incorporation of this corporation also requires shareholders'
approval or approval of the outstanding shares;
(b) The filling of vacancies on the board of directors or any
committee;
(c) The fixing of compensation of 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 of the corporation, except at
a rate or in a periodic amount or within a price range determined by the board;
and
(g) The appointment of other committees of the board or the members
thereof.
The board may prescribe appropriate rules, not inconsistent with these
bylaws, by which proceedings of any such committee shall be conducted. The
provisions of these bylaws relating to the calling of meetings of the board,
notice of meetings of the board and waiver of such notice, adjournments of
meetings of the board, written consents to board meetings and approval of
minutes, action by the board by consent in writing without a meeting, the place
of holding such meetings, meetings by conference telephone or similar
communications equipment, the quorum for such meetings,
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the vote required at such meetings and the withdrawal of directors after
commencement of a meeting shall apply to committees of the board and action by
such committees. In addition, any member of the committee designated by the
board as the chairman or as secretary of the committee or any two (2) members of
a committee may call meetings of the committee. Regular meetings of any
committee may be held without notice if the time and place of such meetings are
fixed by the board of directors or the committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS.
The officers of the corporation shall be a chairman of the board or a
president, or both, a secretary and a chief financial officer. The corporation
may also have, at the discretion of the board of directors, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article IV. Any number of offices may be held by the same
person.
SECTION 2. ELECTIONS.
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 3 or Section 5 of this
Article IV, shall be chosen no less frequently than annual meetings of
shareholders shall be held, by the board of directors, and each such officer
shall serve at the pleasure of the board of directors until the regular meeting
of the board of directors following the annual meeting of shareholders and until
his successor is elected and qualified.
SECTION 3. OTHER OFFICERS.
The board of directors may appoint, and may empower the chairman of
the board or the president or both of them to appoint such other officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
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SECTION 4. REMOVAL AND RESIGNATION.
Any officer may be removed with or without cause either by the board
of directors or, except for an officer chosen by the board, by any officer upon
whom the power of removal may be conferred by the board (subject, in each case,
to the rights, if any, of an officer under any contract of employment). Any
officer may resign at any time upon written notice to the corporation (without
prejudice however, to the rights, if any, of the corporation under any contract
to which the officer is a party). Any such resignation shall take effect upon
receipt of such notice or at any later time specified therein. If the
resignation is effective at a future time, a successor may be elected to take
office when the resignation becomes effective. Unless a resignation specifies
otherwise, its acceptance by the corporation shall not be necessary to make it
effective.
SECTION 5. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
the bylaws for regular appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD.
The board of directors may, in its discretion, elect a chairman of the
board, who, unless otherwise determined by the board of directors, shall preside
at all meetings of the board of directors at which he is present and shall
exercise and perform any other powers and duties assigned to him by the board or
prescribed by the bylaws. If the office of president is vacant, the chairman of
the board shall be the general manager and chief executive officer of the
corporation and shall exercise the duties of the president as set forth in
Section 7. He shall preside as chairman at all meetings of the shareholders
unless otherwise determined by the board of directors.
SECTION 7. PRESIDENT.
Subject to any supervisory powers, if any, that may be given by the
board of directors or the bylaws to the chairman of the board, if there be such
an officer, the president shall be the corporation's general manager and chief
executive officer and shall, subject to the control of the board of directors,
have general supervision, direction and control of the business, affairs and
officers of the corporation. Unless otherwise determined by the board of
directors, and in the absence of the chairman of the board,
20
or if there be none, he shall preside as chairman at all meetings of the board
of directors and of the shareholders. He shall have the general powers and
duties of management usually vested in the office of president of a corporation;
shall have any other powers and duties that are prescribed by the board of
directors or the bylaws; and shall be primarily responsible for carrying out all
orders and resolutions of the board of directors.
SECTION 8. VICE PRESIDENTS.
In the absence or disability of the chief executive officer, the vice
presidents in order of their rank as fixed by the board of directors, or if not
ranked, the vice president designated by the board of directors, or if there has
been no such designation, the vice president designated by the chief executive
officer, shall perform all the duties of the chief executive officer, and when
so acting, shall have all the powers of, and be subject to all the restrictions
on, the chief executive officer. Each vice president shall have any of the
powers and perform any other duties that from time to time may be prescribed for
him by the board of directors or the bylaws or the chief executive officer.
SECTION 9. SECRETARY.
The secretary shall keep or cause to be kept a book of minutes of all
meetings and actions by written consent of all directors, shareholders and
committees of the board of directors. The minutes of each meeting shall state
the time and place that it was held and such other information as shall be
necessary to determine whether the meeting was held in accordance with law and
these bylaws and the actions taken thereat. The secretary shall keep or cause
to be kept at the corporation's principal executive office, or at the office of
its transfer agent or registrar, a record of the shareholders of the
corporation, giving the names and addresses of all shareholders and the number
and class of shares held by each. The secretary shall give, or cause to be
given, notice of all meetings of shareholders, directors and committees required
to be given under these bylaws or by law, shall keep or cause the keeping of the
corporate seal in safe custody and shall have any other powers and perform any
other duties that are prescribed by the board of directors or the bylaws or the
chief executive officer. If the secretary refuses or fails to give notice of
any meeting lawfully called, any other officer of the corporation may give
notice of such meeting. The assistant secretary, or if there be more than one,
any assistant secretary, may perform any or all of the duties and exercise any
or all of the
21
powers of the secretary unless prohibited from doing so by the board of
directors, the chief executive officer or the secretary, and shall have such
other powers and perform any other duties as are prescribed for him by the board
of directors or the chief executive officer.
SECTION 10. CHIEF FINANCIAL OFFICER.
The chief financial officer, who shall also be deemed to be the
treasurer, when a treasurer may be required, shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of account.
The chief financial officer shall cause all money and other valuables in the
name and to the credit of the corporation to be deposited at the depositories
designated by the board of directors or any person authorized by the board of
directors to designate such depositories. He shall render to the chief
executive officer and board of directors when requested by either of them, an
account of all his transactions as chief financial officer and of the financial
condition of the corporation; and shall have any other powers and perform any
other duties that are prescribed by the board of directors or the bylaws or the
chief executive officer. The assistant treasurer, or if there be more than one,
any assistant treasurer, may perform any or all of the duties and exercise any
or all of the powers of the chief financial officer unless prohibited from
doing so by the board of directors, the chief executive officer or the chief
financial officer, and shall have such other powers and perform any other duties
as are prescribed for him by the board of directors, the chief executive officer
or the chief financial officer.
ARTICLE V
MISCELLANEOUS
SECTION 1. RECORD DATE.
The board of directors may fix, in advance, a record date for the
determination of the shareholders entitled to notice of any meeting of
shareholders or to vote or entitled to receive payment of any dividend or
distribution or allotment of any rights or entitled to exercise any rights in
respect of any other lawful action. The record date so fixed shall be not more
than sixty (60) days nor less than ten (10) days prior to the date of such
meeting, nor more than sixty (60) days prior to any other action for the
purposes of which it is fixed. When a record date is so
22
fixed, only shareholders of record at the close of business on that date are
entitled to notice of and to vote at any such meeting, to receive a 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 of
incorporation or bylaws.
SECTION 2. INSPECTION OF CORPORATE RECORDS.
The accounting books and records and record of shareholders, and
minutes of proceedings of the shareholders and the board and committees of the
board of this corporation or of a subsidiary of this corporation shall be open
to inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any time during usual business hours,
for a purpose reasonably related to such holder's interests as a shareholder or
as the holder of such voting trust certificate. Such inspection by a
shareholder or holder of a voting trust certificate may be made in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
A shareholder or shareholders holding at least five percent (5%) in
the aggregate of the outstanding voting shares of the corporation or who hold at
least one percent (1%) of such voting shares and have filed a Schedule 14B with
the United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
absolute right to inspect and copy the record of shareholders' names and
addresses and shareholdings during usual business hours upon five (5) business
days' prior written demand upon the corporation or to obtain from the transfer
agent for the corporation, upon written demand and upon the tender of its usual
charges, a list of the shareholders' names and addresses, who are entitled to
vote for the election of directors, and their shareholdings, as of the most
recent record date for which it has been compiled or as of a date specified by
the shareholder subsequent to the date of demand. The list shall be made
available on or before the later of five (5) business days after the demand is
received or the date specified therein as the date as of which the list is to be
compiled.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of this corporation and any subsidiary of this
23
corporation. Such inspection by a director may be made in person or by agent or
attorney and the right of inspection includes the right to copy and make
extracts.
SECTION 3. CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable to the
corporation, shall be signed or endorsed by such person or persons and in such
manner as, from time to time, shall be determined by resolution of the board of
directors. The board of directors may authorize one or more officers of the
corporation to designate the person or persons authorized to sign such documents
and the manner in which such documents shall be signed.
SECTION 4. ANNUAL AND OTHER REPORTS.
(a) The statutory requirement that the board of directors cause an
annual report to be sent to shareholders is hereby waived.
(b) If no annual report for the last fiscal year has been sent to the
shareholders, the corporation shall, upon the written request of any
shareholder made more than one hundred twenty (120) days after the close of such
fiscal year, deliver or mail to the person making the request within thirty (30)
days thereafter the annual report for the last year. A shareholder or
shareholders holding at least five percent (5%) of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
income statement of the corporation for the three (3) month, six (6) month or
nine (9) month period of the current fiscal year ended more than thirty (30)
days prior to the date of the request and a balance sheet of the corporation as
of the end of such period and, in addition, if no annual report for the last
fiscal year has been sent to shareholders, then the annual report for the last
fiscal year. The statements shall be delivered or mailed to the person making
the request within thirty (30) days thereafter. A copy of such statements shall
be kept on file in the principal executive office of the corporation for twelve
(12) months and they shall be exhibited at all reasonable times to any
shareholder demanding an examination of them or a copy shall be mailed to such
shareholder.
(c) The quarterly income statements and balance sheets referred to in
this section shall be accompanied by the report thereon, if any, of any
independent accountants engaged by the corporation or the certificate of an
authorized officer of the corporation that such financial
24
statements were prepared without audit from the books and records of the
corporation.
(d) Unless otherwise determined by the board of directors or the
chief executive officer, the chief financial officer and any assistant treasurer
are each authorized officers of the corporation to execute the certificate that
the annual report and quarterly income statements and balance sheets referred to
in this section were prepared without audit from the books and records of the
corporation.
Any report sent to the shareholders shall be given personally or by
mail or other means of written communication, charges prepaid, addressed to such
shareholder at the address of such shareholder appearing on the books of the
corporation or given by such shareholder to the corporation for the purpose of
notice or set forth in the written request of the shareholder as provided in
this section. If any report addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the report to the shareholder
at such address, all future 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 (1) year from the date of the giving of the
report to all other shareholders. If no address appears on the books of the
corporation or is given by the shareholder to the corporation for the purpose of
notice or is set forth in the written request of the shareholder as provided in
this section, such report shall be deemed to have been given to such shareholder
if sent by mail or other means of written communication addressed to the place
where the principal executive office of the corporation is located, or if
published at least once in a newspaper of general circulation in the county in
which the principal executive office is located. Any such report shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication. An affidavit of
mailing of any such report in accordance with the foregoing provisions, executed
by the secretary, assistant secretary or any transfer agent of the corporation
shall be prima facie evidence by the giving of the report.
SECTION 5. CONTRACTS, ETC., HOW EXECUTED.
The board of directors, except as the bylaws or articles of
incorporation otherwise provide, may authorize
25
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 6. CERTIFICATE FOR SHARES.
(a) 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 or the president or a vice president and by the chief
financial officer or an assistant treasurer or the secretary or any assistant
secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
(b) Any such certificate shall also contain such legend or other
statement as may be required by Section 418 of the General Corporation Law, the
Corporate Securities Law of 1968, and any agreement between the corporation and
the issuee thereof, and may contain such legend or other statement as may be
required by any other applicable law or regulation or agreement.
(c) Certificates for shares may be issued prior to full payment
thereof, under such restrictions and for such purposes, as the board of
directors or the bylaws may provide, provided, however, that any such
certificates so issued prior to full payment shall state the total amount of the
consideration to be paid therefor and the amount paid thereon.
(d) No new certificate for shares shall be issued in place of any
certificate theretofore issued unless the latter is surrendered and cancelled at
the same time; provided, however, that a new certificate may be issued without
the surrender and cancellation of the old certificate if the certificate
theretofore issued is alleged to have been lost, stolen or destroyed. In case
of any such allegedly lost, stolen or destroyed certificate, the corporation may
require the owner thereof or the legal representative of such owner 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
26
expense or liability) on account of the alleged loss, theft or destruction of
any such certificate or the issuances of such new certificate.
SECTION 7. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS.
Unless the board of directors shall otherwise determine, the chairman
of the board, the president, any vice president and the secretary of this
corporation are each authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to such officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
person authorized so to do by proxy or power of attorney or other document duly
executed by any such officer.
SECTION 8. INSPECTION OF BYLAWS.
The corporation shall keep in its principal executive office in
California, or if its principal executive office is not in California, at its
principal business office in California, the original or a copy of the bylaws as
amended to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours. If the corporation has no office in
California, it shall upon the written request of any shareholder, furnish him a
copy of the bylaws as amended to date.
SECTION 9. SEAL.
The corporation may have a common seal.
SECTION 10. CONSTRUCTION AND DEFINITIONS.
Unless the context otherwise requires, the general provisions, rules
of construction and definitions contained in the General Corporation Law shall
govern the construction of these bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the
term "Person" includes a corporation as well as a natural person.
27
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF AGENTS.
The board of directors of this corporation is authorized to enter into
an agreement or agreements with any agent or agents of the corporation,
providing for or permitting indemnification in excess of that permitted under
Section 317 of the General Corporation Law, subject to the limitations of
Section 204 of the General Corporation Law.
ARTICLE VII
AMENDMENTS
SECTION 1. POWER OF SHAREHOLDERS.
New bylaws may be adopted or these bylaws may be amended or repealed
by the affirmative vote of a majority of the outstanding shares entitled to vote
or by the written assent of shareholders entitled to vote such shares, except as
otherwise provided by law or by the articles of incorporation of this
corporation.
SECTION 2. POWER OF DIRECTORS.
Subject to the right of shareholders as provided in Section 1 of this
Article VII to adopt, amend or repeal bylaws, bylaws other than a bylaw or
amendment thereof changing the authorized number of directors may be adopted,
amended or repealed by the board of directors.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting secretary of D2D, INC., a
California corporation; and
(2) That the foregoing bylaws, comprising twenty-eight (28) pages,
constitute the bylaws of such corporation as duly adopted by unanimous written
consent action of the board of directors of the corporation duly taken as of May
1, 1990.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of such corporation this 11th of May 1990.
/s/ Kim Bajorek
-----------------------------------------
Kim Bajorek
Secretary
OFFICERS' CERTIFICATE OF
AMENDMENT OF BYLAWS
OF
VDI MEDIA
VDI Media, a corporation organized and existing under and by virtue of the
Corporations Code of the State of California (hereafter the "Corporation") does
hereby certify:
1. This Amendment of the Bylaws of the Corporation has been unanimously
approved by the Board of Directors of the Corporation and has been approved by
the shareholders owning a majority of the outstanding shares of the
Corporation's common stock, the sole class of stock currently outstanding.
2. Article II, Section 7(f) of the Bylaws of the Corporation was restated
to read in its entirety as follows:
At such time as this Corporation shall become a "listed corporation",
as that term was used in Section 301.5 of the California Corporations
Code, the shareholders of the Corporation shall have no right to
cumulative votes for the election of directors, and any such rights
are hereby eliminated as permitted in said Section 301.5.
3. Article III, Section 2 of the Bylaws of the Corporation was restated
to read in its entirety as follows:
The number of directors of this corporation shall be five(5). After
the issuance of shares this number may be changed only by an amendment
to the articles of incorporation or Bylaws approved by the affirmative
vote or written consent of a majority of the directors of this
Corporation.
4. Article VI of the Bylaws of this Corporation was restated to read in
its entirety as follows:
SECTION 1. INDEMNIFICATION OF AGENTS.
The board of directors of this Corporation was authorized to enter
into an agreement or agreements with any agent or agents of the Corporation,
providing for or permitting indemnification in excess of that permitted under
Section 317 of the General Corporation Law, subject to the limitations of
Section 204 of the General Corporation Law.
SECTION 2. INSURANCE.
The Corporation may purchase and maintain insurance to the extent
provided by Section 317(i) on behalf of any Agent against any liability by him
in any such position, or arising out of his status as such, whether or not the
Corporation would have the power to
indemnify him against such liability under Section 317, the articles of
incorporation or hereunder.
5. Article VII, Section 2 of the Bylaws of the Corporation was restated
to read in its entirety as follows:
Subject to the right of shareholders, as provided in Section 1 of this
Article VII, to adopt, amend or repeal bylaws, bylaws may be adopted,
amended or repealed by the board of directors without the approval of
shareholders.
The following officers of the Corporation declare under penalty of perjury
under the laws of the State of California that the matters set forth in this
certificate are true and correct to the best of our knowledge.
Date: May 15, 1996 /s/ R. Luke Stefanko
-------------------------
R. Luke Stefanko
Chief Executive Officer
/s/ Donald R. Stine
-------------------------
Donald R. Stine
Secretary