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EXHIBIT 3.4
BYLAWS
Bylaws for the regulation, except as otherwise provided by statute or
its Articles of Incorporation ("Articles"), of
REMEC COMPONENTS ENGINEERING INC.
(a California corporation)
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meeting of shareholders shall
be held between 30 and 120 days following the end of the fiscal year of the
corporation and at such precise date and time and at such place as fixed by the
resolution of the Board of Directors ("Board"). At such meeting, directors
shall be elected, reports of the affairs of the corporation shall be
considered, and any other business may be transacted which is within the powers
of the shareholders.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes whatsoever, may be called at any time by the Board,
the Chairman of the Board, the President, or by the holders of shares entitled
to cast not less than 10% of the votes at the meeting or by such other persons
as may be provided in the Articles or in these Bylaws.
SECTION 3. NOTICE. Written notice of each meeting shall be given to
each shareholder entitled to vote, either personally or by mail or other means
of written communication, charges prepaid, addressed to such shareholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. If no such address appears or is given,
notice shall be deemed to have been given to him if sent by mail or other means
of written communication addressed to the place where the principal executive
office of the corporation is situated, or by publication of notice at least
once in some newspaper of general circulation in the county in which said
office is located, All such notices shall be sent to each shareholder entitled
thereto not less than 10 nor more than 60 days before such meeting. Such
notice shall specify the place, the date, and the hour of such meeting.
In the case of a special meeting, the notice shall
state the general nature of business to be transacted and no other business
shall be transacted at such meeting.
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In the case of an annual meeting, the notice shall
state those matters which the Board, at the time of the mailing of the notice,
intends to present for action by the shareholders. However, any proper matter
may be presented at the meeting for action but action on the following matters
shall be valid only if the general nature of the proposal so approved was
stated in the notice of the meeting or in a written notice, unless the matter
was unanimously approved by those entitled to vote:
(a) The approval of a contract or other
transaction between the corporation and one or more of its directors or with
any corporation, firm, or association in which one or more of its directors has
a material financial interest;
(b) An amendment to the Articles;
(c) A reorganization (as defined in Section 181
of the General Corporation Law) required to be approved by Section 1201 of the
General Corporation Law;
(d) The voluntary winding up and dissolution of
the corporation; or
(e) A plan of distribution under Section 2007 of
the General Corporation Law in respect of a corporation in the process of
winding up.
The notice of any meeting at which directors are to
be elected shall include the names of the nominees intended at the time of the
notice to be presented by management for election.
The notice shall state such other matters, if any, as
may be expressly required by statute.
SECTION 4. ADJOURNED MEETING AND NOTICE THEREOF. When a shareholders'
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at 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 5. QUORUM. Unless otherwise provided in the Articles, the
presence in person or by proxy of the persons entitled to vote a majority of
the voting shares at any meeting shall constitute a quorum for the transaction
of business. 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. In the absence of a
quorum, any meeting of shareholders may be adjourned from time to time by the
vote of a majority of the shares represented either in person or by proxy, but
no other business may be transacted, except as provided above.
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SECTION 6. 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.
SECTION 7. ACTION WITHOUT MEETING, Unless otherwise provided in the
Articles, any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted; provided, however,
that:
(a) Unless the consents of all shareholders
entitled to vote have been solicited in writing, notice of any shareholder
approval:
(1) Of a contract or other transaction
between the corporation and one or more of its directors or with any
corporation, firm, or association in which one or more of its directors has a
material financial interest;
(2) Of an indemnity pursuant to Section
317 of the General Corporation Law;
(3) Of a reorganization (as defined in
Section 181 of the General Corporation Law) required to be approved by Section
1201 of the General Corporation Law; or
(4) Of a plan of distribution under
Section 2007 of the General Corporation Law in respect of a corporation in the
process of winding up, which approval was obtained without a meeting by less
than unanimous written consent, shall be given at least 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 who have
not consented in writing. Notice of such approval shall be given in the same
manner as required by Article I, Section 3, of these Bylaws.
Any shareholder giving a written consent, or the
shareholder's proxyholder or proxyholders, or a transferee of the shares, or a
personal representative of the shareholder, or his respective proxyholder or
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.
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Notwithstanding the above provisions, directors may
not be elected by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors.
SECTION 8. RECORD DATES. For purposes of determining the shareholders
entitled to notice of any meeting or to vote or entitled to exercise any other
rights, the Board 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. If no record date is fixed by the Board:
(a) The record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held;
(b) The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting, when
no prior action by the Board is necessary, shall be the day on which the first
written consent is given; and
(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. 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 45 days.
SECTION 9. PROXIES. Every person entitled to vote shares may
authorize another person or persons to act by proxy with respect to such
shares. 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
fun force and effect until revoked as specified in Section 705(b) of the
General Corporation Law or unless it states that it is irrevocable. A proxy
which states that it is irrevocable is irrevocable for the period specified
therein when it is held by a person specified in Section 705(e) of the General
Corporation Law.
SECTION 10. VOTING; CUMULATIVE VOTING AND NOTICE THEREOF. Votes on
any matter may be viva voce but shall be by ballot upon demand made by a
shareholder at any election and before the voting begins. No shareholder shall
be entitled to cumulate votes for election of directors (i.e., cast for any one
or more candidates for election as directors a number of votes greater than the
number of the shareholder's shares) 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 shareholder has given such
notice, all shareholders may cumulate their votes for candidates in nomination.
If cumulative voting is proper, every shareholder 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. In any election of directors,
the candidates receiving the highest number of votes of the shares entitled to
be voted.
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Except for election of directors, provided above,
votes on other substantive and procedural matters shall be taken on the basis
of one vote for each share represented at the meeting.
Fractional shares shall not be entitled to any voting
rights.
SECTION 11. CHAIRMAN OF MEETING. The Board may select any person to
preside as Chairman of any meeting of shareholders, and if such person shall be
absent from the meeting, or fail or be unable to preside, the Board may name
any other person in substitution therefor as Chairman. In the absence of an
express selection by the Board of a Chairman or substitute therefor, the
Chairman of the Board shall preside as Chairman. If the Chairman of the Board
shall be absent, fail or be unable to preside, the President shall preside. If
the President shall be absent, fail or be unable to preside, the Vice President
or Vice Presidents in order of their rank as fixed by the Board, the Secretary,
or the Chief Financial Officer, shall preside as Chairman, in that order. The
Chairman of the meeting shall designate a Secretary for such meeting, who shall
take and keep or cause to be taken and kept minutes of the proceedings thereof.
The conduct of all shareholders' meetings shall at
all times be within the discretion of the Chairman of the meeting and shall be
conducted under such rules as he may prescribe.
SECTION 12. INSPECTORS OF ELECTION, In advance of any meeting of
shareholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at the meeting and any adjournment thereof.
If inspectors of election are not so appointed, or if any such persons 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, make such appointment 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 present in person or by proxy shall determine whether one or
three inspectors are to be appointed.
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.
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.
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ARTICLE II
DIRECTORS
SECTION 1. POWERS. Subject to any limitations in the Articles or
these Bylaws and to any provision of the General Corporation Law relating to
action required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board.
The Board may delegate the management of the day-to-day operation of the
business of the corporation to a management company or other person 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. NUMBER. The authorized number of directors of the
corporation shall be five (5).
After the issuance of shares, a Bylaw specifying or
changing a fixed number of directors or the maximum or minimum number of
directors or changing from a fixed to a variable board or vice versa may only
be adopted by approval of the outstanding shares; provided, however, that a
Bylaw or amendment of the Articles reducing the number or the minimum number of
directors to a number less than five 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 16-2/3 percent 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, and 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 hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified.
SECTION 4. ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders the Board shall hold a regular meeting for the purpose
of organization, election of officers, and the transaction of other business.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board shall be
held at such times and places within or without the state as may be designated
in the notice of the meeting or which are designated by resolution of the
Board. In the absence of designation of place, regular meetings shall be held
at the principal office of the corporation.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President, or by any Vice President or the Secretary or any two Directors.
Special meetings of the Board may be held at such times and places within or
without the state as may be designated in the notice of the meeting or which
are designated by resolution of the Board.
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SECTION 7. NOTICE OF MEETINGS. When notice of a meeting of the Board
is required, at least four days notice by mail or 48 hours notice delivered
personally or by telephone or telegraph shall be given to each director. Such
notice need not specify the purpose of the meeting. Notice of a meeting need
not be given to any director who signs a waiver of notice, whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to such director.
SECTION 8. PARTICIPATION BY TELEPHONE. Members of the Board may
participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section
constitutes presence in person at such meeting.
SECTION 9. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the required quorum for such meeting. A majority of the
directors present, whether or not a quorum is present, may adjourn any meeting
to another time and place.
SECTION 10. VOTING. 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, subject to Section 9 of this Article and to:
(a) The provisions of Section 310 of the General
Corporation Law regarding votes in respect of a contract or other transaction
between the corporation and one or more of its directors or with any
corporation, firm, or association in which one or more of its directors has a
material financial interest, and
(b) The provisions of Section 317 of the General
Corporation Law regarding votes in respect of indemnification of agents of the
corporation who are members of the Board.
SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted
to be taken by the Board may be taken without a meeting if all members of the
Board shall individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors.
SECTION 12. VALIDATION OF MEETING. The transactions of any meeting of
the Board, however called and noticed or wherever held, 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 signs a written waiver of notice, a consent to holding the meeting or
an approval of the minutes thereof. An such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
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SECTION 13. RESIGNATION. Any director may resign effective upon
giving written notice to the Chairman of the Board, the President, the
Secretary, or the Board 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 14. VACANCIES. 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, Vacancies occurring in the Board by reason of the removal
of directors may be filled only by approval of the shareholders. The
shareholders may elect a director at any time to fill any vacancy not filled by
the directors. Any such election by written consent requires the consent of a
majority of the outstanding shares entitled to vote.
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 15. 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 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. Such notice need not comply with the time in which notice must be
given prior to a meeting as required by Section 7 of Article II of the Bylaws,
but should be given as far in advance as is reasonably practicable under all
the circumstances existing at the time of adjournment.
SECTION 16. VISITORS. No person other than a director may attend any
meeting of the Board without the consent of a majority of the directors
present; provided, however, that a representative of legal counsel for the
corporation and a representative of the independent certified public accountant
for the corporation may attend any such meeting upon the invitation of any
director.
SECTION 17. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation for their services and such
reimbursement for expenses as may be fixed or determined by resolution of the
Board.
SECTION 18. COMMITTEES. The Board 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. Any such committee, to the extent provided in the resolution of
the Board or in the Bylaws, shall have all the authority of the Board, except
with respect to:
(a) The approval of any action for which the General
Corporation Law also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board or in
any committee;
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(c) The fixing of compensation of the directors
for serving on the Board or on any committee;
(d) The amendment or repeal of Bylaws or the
adoption of new Bylaws;
(e) The amendment or repeal of any resolution of
the Board which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the
corporation (as defined in Section 166 of the General Corporation Law), except
at a rate or in the 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.
SECTION 19. MEETINGS AND ACTION OF COMMITTEES. Meetings and action
of committees shall be governed by, and held and taken in accordance with, the
provisions of this Article, Sections 5 (Regular Meetings), 6 (Special
Meetings), 7 (Notice of Meetings), 8 (Participation by Telephone), 9 (Quorum),
10 (Voting), 11 (Action without Meeting), 12 (Validation of Meeting), and 15
(Adjournment), with such changes in the context of those Bylaws as are
necessary to substitute the committee and its members for the Board and its
members, except that the time of regular meetings of committees may be
determined by resolution of the Board as well as the committee, special
meetings of committees may also be called by resolutions of the Board and
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
Board may adopt rules for the government of any committee not inconsistent with
the provisions of these Bylaws.
ARTICLE III
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, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Financial Officers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article, One person may
hold two or more offices.
SECTION 2. ELECTION. 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, shall be chosen annually by the Board, and each
shall hold office until resignation or removal or other disqualification to
serve, or the election of a successor.
SECTION 3. SUBORDINATE OFFICERS. The Board may appoint, and may
empower the Chairman of the Board or President to appoint, such other officers
as the business of the corporation may require, each of whom shall hold office
for such period.
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have such authority and perform such duties as are provided in the Bylaws or as
the Board may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION. Any officer may be removed,
either with or without cause, by action of the Board duly taken, or, except in
case of an officer chosen by the Board, by any officer upon whom such power of
removal may be conferred by the Board.
Any officer may resign at any time by giving written
notice to the corporation, to the attention of the Secretary, Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 5. VACANCIES. A vacancy in any office shall be filled in the
manner prescribed in the Bylaws for regular appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board, cause minutes thereof to be taken, and exercise and perform such other
powers and duties as may be from time to time assigned to him by the Board or
prescribed by the Bylaws. In the event the corporation shall not have an
elected President, the Chairman of the Board shall also have the authority and
perform the duties as provided for the President in the following Section of
this Article.
SECTION 7. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman of the Board, if there be such an
officer, the President shall be the Chief Executive Officer of the corporation
and shall, subject to the control of the Board, have general supervision,
direction, and control of the business and officers of the corporation. In the
absence of the Chairman of the Board, or if there is none, the President shall
preside at all meetings of the Board. He shall be ex officio a member of all
the standing committees, including the Executive Committee, if any, and shall
have the general powers and duties of management usually vested in the office
of President of a corporation, and shall have such other powers and duties as
may be prescribed by the Board or the Bylaws.
SECTION 8. VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board or,
if not ranked, the Vice President designated by the Board, shall perform all
the duties of the President, or, if there be none, the Chairman of the Board,
and when so acting shall have all the powers of, and be subject to all the
restrictions upon, the President or Chairman of the Board. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for each of them by the Board or the Bylaws.
SECTION 9. SECRETARY. The Secretary shall keep or cause to be kept at
the principal executive office a book of minutes of all meetings and consents
to action without a meeting of directors, committees, and shareholders, with
the time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at directors'
and committee meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof.
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The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer agent
or registrar, a record of its shareholders 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 the same, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given,
notice of all the meetings of the shareholders and of the Board required by the
Bylaws or by law to be given.
The Secretary shall keep the seal of the corporation
in safe custody, and shall have such other powers and perform such other duties
as may be prescribed by the Board or by the Bylaws.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the
corporation, including changes in financial position, accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus, and
shares. Any surplus shall be classified according to source and shown in a
separate account.
The Chief Financial Officer shall deposit all monies
and other valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board. He shall disburse the funds of
the corporation as may be ordered by the Board or by any officer having
authority therefor, shall render to the President and directors, whenever they
request it, an account of all of his transactions and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board or the Bylaws.
ARTICLE IV
MISCELLANEOUS
SECTION 1. LOANS TO OR GUARANTIES FOR THE BENEFIT OF OFFICERS OR
DIRECTORS; LOANS UPON THE SECURITY OF SHARES OF THE CORPORATION.
(a) Except as expressly provided in subsection
(b) hereof, the corporation shall not make any loan of money or property to or
guarantee the obligation of:
(1) Any director or officer of the
corporation or of its parent or any subsidiary, or
(2) Any person upon the security of
shares of the corporation or of its parent, unless the loan or guaranty is
otherwise adequately secured, except by the vote of the holders of a majority
of the shares of all classes, regardless of limitations or restrictions on
voting rights, other than shares held by the benefited director, officer, or
shareholder.
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(b) The corporation may lend money to, or
guarantee any obligation of or otherwise assist any officer or other employee
of the corporation or of any subsidiary, including any officer or employee who
is also a director, pursuant to an employee benefit plan (including, without
limitation, any stock purchase or stock option plan) available to executives or
other employees, whenever the Board determines that such loan or guaranty may
reasonably be expected to benefit the corporation. If such plan includes
officers or directors, it shall be approved by the shareholders after
disclosure of the right under such plan to include officers or directors
thereunder. Such loan or guaranty or other assistance may be with or without
interest and may be unsecured or secured in such manner as the Board shall
approve, including, without limitation, a pledge of shares of the corporation.
The corporation may advance money to a director or officer of the corporation
or of its parent or any subsidiary for expenses reasonably anticipated to be
incurred in the performance of the duties of such director or officer, provided
that in the absence of such advance such director or officer would be entitled
to be reimbursed for such expenses by such corporation, its parent, or any
subsidiary.
SECTION 2. RECORD DATE AND CLOSING STOCK BOOKS. When a record date is
fixed, only shareholders of record on that date are entitled to notice of and
to vote at the meeting or 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.
The Board may close the books of the corporation
against transfers of shares during the whole or any part of a period not more
than 60 days prior to the date of a shareholders' meeting, the date when the
right to any dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion, or exchange of shares.
SECTION 3. INSPECTION OF CORPORATE RECORDS. The record of
shareholders, the accounting books and records of the corporation, and minutes
of proceedings of the shareholders, the Board and committees of the Board shall
be open to inspection upon the written demand of any shareholder or holder of a
voting trust certificate, at any time during usual business hours for a purpose
reasonably related to his interests as a shareholder or as the holder of a
voting trust certificate. Such inspection may be made in person or by an agent
or attorney, and shall include the right to copy and make extracts. Demand of
inspection shall be made in writing upon the corporation to the attention of
the Secretary.
A shareholder or shareholders holding at least five
percent in the aggregate of the outstanding voting shares of the corporation or
who hold at least one percent of such voting shares and has filed a Schedule
14-B with the United States Securities and Exchange Commission relating to the
election of directors of the corporation shall have an absolute right to access
to a list of shareholders as provided in S1600(a) of the General Corporation
Law.
SECTION 4. ANNUAL REPORT. The Board shall cause an annual report to be
sent to the shareholders not later than 120 days after the close of the fiscal
year. Such report shall contain a balance sheet as of the end of such fiscal
year and an income statement and statement of changes in financial position for
such fiscal year, accompanied by any report thereon of independent accountants,
or if there is no such report, the
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13
certificate of an authorized officer of the corporation that such statements
were prepared without audit from the books and records of the corporation.
Such report shall be sent to the shareholders at least 15 days prior to the
annual meeting of shareholders to be held during the next fiscal year, but this
requirement shall not limit the requirement for holding an annual meeting as
required by Section 1 of Article I of the Bylaws.
SECTION 5. EXECUTION OF CONTRACTS. Any contract or other instrument in
writing entered into by the corporation, when signed by the Chairman of the
Board, the President or any Vice President and the Secretary, any Assistant
Secretary, the Chief Financial Officer or any Assistant Financial Officer is
not invalidated as to the corporation by any lack of authority of the signing
officers in the absence of actual knowledge on the part of the other party to
the contract or other instrument that the signing officers had no authority to
execute the same. Contracts or other instruments in writing made in the name of
the corporation which are authorized or ratified by the Board, or are done
within the scope of authority, actual or apparent, conferred by the Board or
within the agency power of the officer executing it, bind the corporation.
SECTION 6. SHARE CERTIFICATES. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any such shares are fully paid. Every shareholder in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman of the Board or the President or a Vice President
and by the Secretary or any Assistant Secretary or the Chief Financial Officer
or an Assistant Financial Officer, 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.
The corporation may issue the whole or any part of
its shares as partly paid and subject to call for the remainder of the
consideration to be paid therefor. On the certificates issued to represent any
partly paid shares the total amount of the consideration to be paid therefor
and the amount paid thereon shall be stated.
No new certificate for shares shall be issued in lieu
of an old certificate 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:
(a) The old certificate is lost, stolen, or
destroyed;
(b) The request for the issuance of the new
certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft;
(c) The request for the issuance of a new
certificate is made prior to the receipt of notice by the corporation that the
old certificate has been acquired by a bona fide purchaser; and
(d) The owner satisfies any other reasonable
requirements imposed by the corporation including, at the election of the
Board, the filing of sufficient indemnity bond or undertaking with the
corporation or its transfer agent, In the event of the issuance of a new
certificate, the rights and liabilities of the corporation, and of the
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14
holders of the old and new certificates, shall be governed by the provisions of
Sections 8104 and 8405 of the California Commercial Code.
SECTION 7. REPRESENTATION OF SECURITIES OF OTHERS. Unless otherwise
determined by the Board or the Executive Committee, the President, or any other
officer of the corporation designated in writing by the President, is
authorized to vote, represent, and exercise on behalf of the corporation all
rights incident to any and all securities of any other person or entity
standing in the name of the corporation. The authority herein granted may be
exercised either in person, or by proxy.
SECTION 8. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive or business office in this state, the original or a copy of
its Bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours.
SECTION 9. EMPLOYEE STOCK PURCHASE AND OPTION PLANS. The corporation
may adopt and carry out a stock purchase plan or agreement or stock option plan
or agreement providing for the issue and sale for such consideration as may be
fixed of its unissued shares, or of issued shares acquired or to be acquired,
to one or more of the employees or directors of the corporation or of a
subsidiary or to a trustee on their behalf and for the payment for such shares
in installments or at one time, and may provide for aiding any such persons in
paying for such shares by compensation for services rendered, promissory notes
or otherwise.
A stock purchase plan or agreement or stock option
plan or agreement may include, among other features, the fixing of eligibility
for participation therein, the class and price of shares to be issued or sold
under the plan or agreement, the number of shares which may be subscribed for,
the method of payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment, an option or obligation
on the part of the corporation to repurchase the shares upon termination of
employment, subject to the provisions of Chapter 5 of the California
Corporations Code, restrictions upon transfer of the shares and the time limits
of and termination of the plan.
SECTION 10. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the California 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.
SECTION 11. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation
shall, at the times required by law, file with the Secretary of State of the
State of California, on the prescribed form, a statement setting forth the
authorized number of directors, the names and complete business or residence
addresses of all incumbent directors, the Chief Executive Officer, Secretary,
and Chief Financial Officer, the street address of its principal executive
office or principal business office in this state and the general type of
business constituting the principal business activity of the corporation,
together with a designation of the agent of the corporation for the purpose of
service of process, all in compliance with Section 1502 of the Corporations
Code of California.
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SECTION 12. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time
to time, shall be determined by resolution of the Board.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
The corporation shall, to the maximum extent permitted by the
California General Corporation Law, indemnify each of its agents against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact any such person is or was an agent of the corporation. For purposes of
this Section, an "agent" of the corporation includes 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 corporation, partnership, joint venture, trust or other
enterprise, or was a director, officer, employee, or agent of a corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
ARTICLE VI
AMENDMENTS TO BYLAWS
SECTION 1. POWER OF SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the vote or written consent of
shareholders entitled to exercise a majority of the voting power of the
corporation.
SECTION 2. POWER OF DIRECTORS. Subject to the right of shareholders
as provided in Section 1 of Article III above to adopt, amend, or repeal
Bylaws, Bylaws may be adopted, amended, or repealed by the Board provided,
however, that after the issuance of shares a Bylaw specifying or changing a
fixed number of directors or the maximum or minimum number or changing from a
fixed to a variable Board or vice versa may only be
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adopted by the vote or written consent of shareholders entitled to exercise a
majority of the voting power of the corporation,
WHEREFORE:
The undersigned, being the incorporator of REMEC Components
Engineering Inc. hereby assents to the foregoing bylaws, and adopts the same as
the bylaws of said corporation.
IN WITNESS THEREOF, the undersigned has hereunto set his hand this
14th day of March, 1983.
/s/ RONALD E. RAGLAND
-----------------------------
Ronald E. Ragland
Incorporator
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CERTIFICATE OF SECRETARY
I certify:
That I am the duly elected and acting Secretary of REMEC Components
Engineering Inc., a California corporation; and
That the foregoing Bylaws, comprising 17 pages, constitute the Bylaws
of such corporation on the date hereof.
IN WITNESS WHEREOF I have executed this Certificate and affixed the
seal of such corporation on March 14, 1983.
/s/ DENNY MORGAN
-----------------------------
Secretary
(SEAL)
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AMENDMENT NO. ONE TO BYLAWS
OF
REMEC COMPONENTS ENGINEERING INC.
A California Corporation
The Bylaws of REMEC COMPONENTS ENGINEERING INC. ("Company"), a
California corporation, are amended to read as follows:
Article II, Section 2, is hereby deleted and the following substituted
therefor:
"The authorized number of directors of the corporation shall be seven
(7).
After the issuance of shares, a Bylaw specifying or changing a fixed
number of directors or the maximum or minimum number of directors or
changing from a fixed to a variable board or vice versa may only be
adopted by approval of the outstanding shares; provided, however, that
a Bylaw or amendment of the Articles reducing the number or the
minimum number of directors to a number less than seven 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 16-2/3 percent of the outstanding shares entitled
to vote."
CERTIFICATE OF SECRETARY
I certify:
That I am the duly elected and acting Secretary of REMEC COMPONENTS
ENGINEERING INC., a California corporation; and that the foregoing Amendment
No. One to Bylaws, comprising one page, constitutes the Amendment No. One to
the Bylaws of such corporation on the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate and affixed the
seal of such corporation on April 4, 1984.
/s/ DENNY E. MORGAN
-------------------------------
DENNY E. MORGAN, Secretary
19
AMENDMENT NO. TWO
TO
BYLAWS
OF
REMEC, INC.
(A CALIFORNIA CORPORATION)
This Amendment No. Two to the Bylaws of REMEC, INC., a California
corporation, is entered into this 27th day of April, 1988.
Article V shall be deleted in its entirety and the following
substituted therefor:
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
SECTION 1. DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its directors and executive officers to the fullest extent not
prohibited by the California General Corporation Law; provided, however, that
the corporation may limit the extent of such indemnification by individual
contracts with its directors and executive officers; and, provided, further,
that the corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof) initiated
by such person or any proceeding by such person against the corporation or its
directors, officers, employees or other agents unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by
the board of directors of the corporation or (iii) such indemnification is
provided by the corporation, in its sole discretion, pursuant to the powers
vested in the corporation under the California General Corporation Law.
SECTION 2. OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The
corporation shall have the power to indemnify its other officers, employees and
other agents as set forth in the California General Corporation Law.
SECTION 3. DETERMINATION BY THE CORPORATION. Promptly after receipt
of a request for indemnification hereunder (and in any event within 90 days
thereof) a reasonable good faith determination as to whether indemnification of
the director or executive officer is proper under the circumstances because
such director or executive officer has met the applicable standard of care
shall be made by:
(a) a majority vote of a quorum consisting of
directors who are not parties to such proceeding;
20
(b) if such quorum is not obtainable by
independent legal counsel in a written opinion; or
(c) approval or ratification by the affirmative
vote of a majority of the shares of this corporation represented and voting at
a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) or by
written consent of a majority of the outstanding shares entitled to vote; where
in each case the shares owned by the person to be indemnified shall not be
considered entitled to vote thereon.
SECTION 4. GOOD FAITH.
(a) For purposes of any determination under this
bylaw, a director or executive officer shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in the best interests of the
corporation and its shareholders, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his conduct was
unlawful, if his action is based on information, opinions, reports and
statements, including financial statements and other financial data, in each
case prepared or presented by:
(i) one or more officers or employees of
the corporation whom the director or executive officer believed to be reliable
and competent in the matters presented;
(ii) counsel, independent accountants or
other persons as to matters which the director or executive officer believed to
be within such person's professional competence; and
(iii) with respect to a director, a
committee of the Board upon which such director does not serve, as to matters
within such committee's designated authority, which committee the director
believes to merit confidence;
so long as, in each case, the director or executive officer acts without
knowledge that would cause such reliance to be unwarranted.
(b) The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in the
best interests of the corporation and its shareholders or that he had
reasonable cause to believe that his conduct was unlawful.
(c) The provisions of this paragraph (4) shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have me the applicable standard of conduct set forth
by the California General Corporation Law.
SECTION 5. EXPENSES. The corporation shall advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by any director or executive officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such person to
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21
repay said amounts if it shall be determined ultimately that such person is not
entitled to be indemnified under this bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise
determined pursuant to Section 6 of this bylaw, no advance shall be made by the
corporation if a determination is reasonably and promptly made by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to the proceeding (or, if no such quorum exists, by independent legal
counsel in a written opinion) that the facts known to the decision making party
at the time such determination is made demonstrate clearly and convincingly
that such person acted in bad faith or in a manner that such person did not
believe to be in the best interests of the corporation and its shareholders.
SECTION 6. ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to directors and
executive officers under this bylaw shall be deemed to be contractual rights
and be effective to the same extent and as if provided for in a contract
between the corporation and the director or executive officer. Any right to
indemnification or advances granted by this bylaw to a director or executive
officer shall be enforceable by or on behalf of the person holding such right
in the forum in which the proceeding is or was pending or, if such forum is not
available or a determination is made that such forum is not convenient, in any
court of competent jurisdiction if (i) the claim for indemnification or
advances is denied, in whole or in part, or (ii) no disposition of such claim
is made within ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting his claim. The corporation shall be
entitled to raise by pleading as an affirmative defense to any such action that
the claimant has not met the standards of conduct that make it permissible
under the California General Corporation Law for the corporation to indemnify
the claimant for the amount claimed. Neither the failure of the corporation
(including its board of directors, independent legal counsel or its
shareholder(s) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the
California General Corporation Law, nor an actual determination by the
corporation (including its board of directors, independent legal counsel or its
shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
SECTION 7. NON-EXCLUSIVITY OF RIGHTS. To the fullest extent permitted
by the corporation's Articles of Incorporation and the California General
Corporation Law, the rights conferred on any person by this bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, bylaws,
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent permitted
by the California General Corporation Law and the corporation's Articles of
Incorporation.
SECTION 8. SURVIVAL OF RIGHTS. The rights conferred on any person by
this bylaw shall continue as to a person who has ceased to be a director
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22
or executive officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 9. INSURANCE. The corporation, upon approval by the board of
directors, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant to this bylaw.
SECTION 10. AMENDMENTS. Any repeal or modification of this bylaw
shall only be prospective and shall not affect the rights under this bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the corporation.
SECTION 11. EMPLOYEE BENEFITS PLANS. The Corporation shall indemnify
the directors and officers of the Corporation who serve at the request of the
Corporation to serve as trustees, investment managers or other fiduciaries of
employee benefit plans to the fullest extent permitted by the California
General Corporation Law.
SECTION 12. SAVING CLAUSE. If this bylaw or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and executive officer to
the fullest extent permitted by any applicable portion of this bylaws that
shall not have been invalidated, or by any other applicable law.
SECTION 13. CERTAIN DEFINITIONS. For the purposes of this bylaw, the
following definitions shall apply:
(a) The term "proceeding" shall be broadly
construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement and appeal of any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative.
(b) The term "expenses" shall be broadly
construed and shall include, without limitation, court costs, attorneys' fees,
witness fees, fines, amounts paid in settlement or judgment and any other costs
and expenses of any nature or kind incurred in connection with any proceeding,
including expenses of establishing a right to indemnification under this law or
any applicable law.
(c) The term the "corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidated or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this bylaw with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(d) References to a "director," "officer,"
"employee," or "agent" of the corporation shall include, without limitation,
situations where such person is serving at the request of the corporation as a
director, officer,
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employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
CERTIFICATE OF SECRETARY
I certify:
That I am the duly elected and acting Secretary of REMEC, INC., a
California corporation; and
That the foregoing Amendment to Bylaws, comprising 5 pages, constitute
Amendment No. Two to the Bylaws of such corporation on the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate and affixed the
seal of such corporation on 4/27, 1988.
/s/ D. MORGAN
-----------------------------
D. Morgan, Secretary
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AMENDMENT NO. THREE TO BYLAWS
OF
REMEC, INC,
A CALIFORNIA CORPORATION
I, THOMAS A. GEORGE certify that:
1. I am the duly elected and acting and Secretary of said
corporation.
2. The Bylaws of said corporation shall be amended by deleting
Article 11, Section 2, and substituting the following
therefor:
"The authorized number of directors of the
corporation shall be not less than a five (5) nor
more than nine (9). The exact number of directors
shall be set within these limits specified above and
may be changed from time to time by the Board. The
maximum or minimum number of directors cannot be
changed, except by a duly adopted amendment to the
bylaws approved by the majority of the outstanding
shares entitled to vote. An amendment that would
reduce the minimum number of directors to less than
five (5) cannot be adopted if the votes cast against
its adoption at a shareholders' meeting or the shares
not consenting to an action by written consent are
equal to more than 16-2/3 percent of the outstanding
shares entitled to vote."
3. The foregoing amendment has been approved by the Shareholders
of said corporation.
Dated: January 10, 1996
/s/ THOMAS A. GEORGE
-----------------------------
THOMAS A. GEORGE
25
AMENDMENT NO. FOUR TO BYLAWS
OF
REMEC, INC.
A CALIFORNIA CORPORATION
I, THOMAS A. GEORGE certify that:
1. I am the duly elected and acting and Secretary of said
corporation.
2. The Bylaws of said corporation shall be amended by deleting
Article 11, Section 2, and substituting the following
therefor:
"The authorized number of directors of the
corporation shall be not less than a seven (7) nor
more than eleven (1 1). The exact number of
directors shall be set within these limits specified
above and may be changed from time to time by the
Board. The maximum or minimum number of directors
cannot be changed, except by a duly adopted amendment
to the bylaws approved by the majority of the
outstanding shares entitled to vote. An amendment
that would reduce the minimum number of directors to
less than five (5) cannot be adopted if the votes
cast against its adoption at a shareholders' meeting
or the shares not consenting to an action by written
consent are equal to more than 16-2/3 percent of the
outstanding shares entitled to vote."
3. The foregoing amendment has been approved by the Shareholders
of said corporation.
Dated: May 29, 1996
/s/ THOMAS A. GEORGE
------------------------------
THOMAS A. GEORGE