EXHIBIT 4.02
CERTIFICATION OF BYLAWS BY SECRETARY
KNOWN ALL BY THESE PRESENCE:
I, Narendra K. Gupta, certify that I am Secretary of Integrated
Systems, Inc., a California corporation (the "Company"), that I am duly
authorized to make this Certification, that the attached Bylaws are a true and
correct copy of the Bylaws duly adopted by the Board of Directors of the Company
and that the same are the Bylaws of the Company now in effect without amendment
thereto.
Dated: June 12, 1996
/s/ Narendra K. Gupta
-------------------------------
Narendra K. Gupta, Secretary
BYLAWS
OF
INTEGRATED SYSTEMS, INC.
TABLE OF CONTENTS
PAGE
Article I OFFICES................................................ 1
Section 1.1: Principal Office.............................. 1
Section 1.2: Other Offices................................. 1
Article II DIRECTORS.............................................. 1
Section 2.1: Exercise of Corporate Powers.................. 1
Section 2.2: Number........................................ 1
Section 2.3: Need Not Be Shareholders...................... 2
Section 2.4: Compensation.................................. 2
Section 2.5: Election and Term of Office................... 2
Section 2.6: Vacancies..................................... 2
Section 2.7: Removal....................................... 3
Section 2.8: Powers and Duties............................. 3
Article III MEETINGS OF DIRECTORS.................................. 5
Section 3.1: Place of Meetings............................. 5
Section 3.2: Regular Meetings.............................. 6
Section 3-3: Special Meetings.............................. 6
Section 3.4: Notice of Special Meetings.................... 6
Section 3.5: Quorum........................................ 6
Section 3.6: Conference Telephone.......................... 7
Section 3.7: Waiver of Notice and Consent.................. 7
Section 3.8: Action Without A Meeting...................... 7
Section 3.9: Committees.................................... 7
PAGE
Article IV COMMITTEES................................................ 7
Section 4.1: Appointment and Procedure..................... 7
Section 4.2: Executive Committee Powers.................... 8
Section 4.3: Powers of Other Committees.................... 8
Section 4.4: Limitation on Powers of Committees............ 8
Article V OFFICERS.................................................. 8
Section 5.1: Election and Qualifications................... 8
Section 5.2: Term of Office and Compensation............... 9
Section 5.3: Chairman of the Board......................... 9
Section 5.4: President..................................... 9
Section 5.5: President Pro Tem............................. 10
Section 5.6: Vice President................................ 10
Section 5.7: Secretary..................................... 10
Section 5.8: Chief Financial Officer....................... 11
Section 5.9: Instruments in Writing........................ 12
Article VI INDEMNIFICATION OF AGENTS................................ 12
Section 6.1: Indemnification of Directors,
Officers and Employees........................ 12
Section 6.2: Advancement of Expenses....................... 13
Section 6.3: Non-Exclusivity of Rights..................... 13
Section 6.4: Indemnification Contracts..................... 13
Section 6.5: Effect of Amendment........................... 13
Article VII MEETINGS OF SHAREHOLDERS................................ 14
Section 7.1: Place of Meetings............................. 14
Section 7.2: Annual Meetings............................... 14
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PAGE
Section 7.3: Special Meetings.............................. 14
Section 7.4: Notice of Meetings............................ 14
Section 7.5: Consent to Shareholders....................... 15
Section 7.6: Quorum........................................ 16
Section 7.7: Adjourned Meetings............................ 16
Section 7.8: Voting Rights................................. 17
Section 7.9: Action by Written Consents.................... 17
Section 7.10: Election of Directors......................... 18
Section 7.11: Proxies....................................... 18
Section 7.12: Inspectors of Election........................ 19
Article VIII SUNDRY PROVISIONS...................................... 19
Section 8.1: Shares Held By the Company.................... 19
Section 8.2: Certificates for Shares....................... 20
Section 8.3: Lost Certificates............................. 20
Section 8.4: Certification and
Inspection of Bylaws.......................... 20
Section 8.5: Annual Reports................................ 20
Article IX CONSTRUCTION OF BYLAWS WITH
REFERENCE TO PROVISIONS OF LAW......................... 20
Section 9.1: Bylaw Provisions Construed as
Additional and Supplemental to
Provisions of Law............................. 20
Section 9.2: Bylaws Provisions Contrary to or
Inconsistent with Provisions of Law........... 21
Article X ADOPTION, AMENDMENT OR REPEAL
OF BYLAWS.............................................. 21
Section 10.1: By Shareholders............................... 21
Section 10.2: By the Board of Directors..................... 21
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PAGE
Article XI RESTRICTIONS ON TRANSFER OF STOCK...................... 21
Section 11.1: Transfer of Shares............................ 21
Section 11.2: Subsequent Agreement or Bylaw................. 21
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BYLAWS
OF
INTEGRATED SYSTEMS, INC.
(a California corporation)
As Amended through June 12, 1996
Article I
OFFICES
Section 1.1: Principal Office. The principal executive office for the
transaction of the business of this corporation (the "Company") shall be located
at such place as the Board of Directors may from time to time decide. The Board
of Directors is hereby granted full power and authority to change the location
of the principal executive office from one location to another.
Section 1.2: Other Offices. One or more branch or other subordinate
offices may at any time be fixed and located by the Board of Directors at such
place or places within or outside the State of California as it deems
appropriate.
Article II
DIRECTORS
Section 2.1: Exercise of Corporate Powers. Except as otherwise provided
by these Bylaws, by the Articles of Incorporation of the Company or by the laws
of the State of California now or hereafter in force, the business and affairs
of the Company shall be managed and all corporate powers shall be exercised by
or under the ultimate direction of a board of directors (the "Board of
Directors").
Section 2.2: Number. The number of directors of this Company shall not
be less than four (4) nor more than seven (7) with the exact number of directors
to be fixed from time to time by resolution of the Board of Directors of this
Company. There shall be six (6) directors until such number is changed by
resolution of the Board of Directors. The number of directors of this Company
shall be so variable until changed by an amendment of this Article II, Section
2.2 adopted by the affirmative vote or written consent of holders of a majority
of the outstanding shares of the Company entitled to vote. No amendment may
change the stated maximum number of authorized directors to a number greater
than two (2) times the stated minimum number of directors minus one (1).
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Section 2.3: Need Not Be Shareholders. The directors of the Company
need not be shareholders of this Company.
Section 2.4: Compensation. Directors and members of committees may
receive such compensation, if any, for their services as may be fixed or
determined by resolution of the Board of Directors. Nothing herein contained
shall be construed to preclude any director from serving the Company in any
other capacity and receiving compensation therefor.
Section 2.5: Election and Term of Office. The directors shall be
elected annually by the shareholders at the annual meeting of the shareholders.
The term of office of the directors shall begin immediately after their election
and shall continue until the next annual meeting of the shareholders and until
their respective successors are elected and qualified.
Section 2.6: Vacancies. A vacancy or vacancies on the Board of
Directors shall exist in case of the death, resignation or removal of any
director, or if the authorized number of directors is increased, or if the
shareholders fail, at any annual meeting of shareholders at which any director
is elected, to elect the full authorized number of directors at that meeting.
The Board of Directors may declare vacant the office of a director if he or she
is declared of unsound mind by an order of court or convicted of a felony or if,
within 60 days after notice of his election, he or she does not accept the
office. Any vacancy, except for a vacancy created by removal of a director as
provided in Section 2.7 hereof, may be filled by a person selected by a majority
of the remaining directors then in office, whether or not less than a quorum, or
by a sole remaining director. Vacancies occurring in the Board of Directors by
reason of removal of directors shall be filled only by approval of 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, other than to fill a
vacancy created by removal, requires the consent of a majority of the
outstanding shares entitled to vote. If, after the filling of any vacancy by the
directors, the directors then in office who have been elected by the
shareholders shall constitute less than a majority of the directors then in
office, any holder or holders of an aggregate of 5% or more of the total number
of shares at the time outstanding having the right to vote for such directors
may call a special meeting of shareholders to be held to elect the entire Board
of Directors. The term of office of any director then in office shall terminate
upon such election and qualification of a successor. Any director may resign
effective upon giving written notice to the Chairman of the Board, if any, the
President, the Secretary or the Board of Directors, unless the notice specifies
a later time for the effectiveness of such resignation. If the resignation is
effective at a future time, a successor may be elected to take office when the
resignation becomes effective. A reduction of the authorized number of directors
shall not remove any director prior to the expiration of such director's term of
office.
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Section 2.7: Removal. The entire Board of Directors or any individual
director may be removed from office without cause by an affirmative vote of a
majority of the outstanding shares entitled to vote; provided that, unless the
entire Board of Directors is removed, no director shall be removed when the
votes cast against removal, or not consenting in writing to such removal, would
be sufficient to elect such director if voted cumulatively at an election at
which the same total number of votes were cast, or, if such action is taken by
written consent, all shares entitled to vote were voted, and the entire number
of directors authorized at the time of the director's most recent election were
then being elected. if any or all directors are so removed, new directors may be
elected at the same meeting or at a subsequent meeting. If at any time a class
or series of shares is entitled to elect one or more directors under authority
granted by the Articles of Incorporation, the provisions of this Section 2.7
shall apply to the vote of that class or series and not to the vote of the
outstanding shares as a whole.
Section 2.8: Powers and Duties. Without limiting the generality or
extent of the general corporate powers to be exercised by the Board of Directors
pursuant to Section 2.1 of these Bylaws, it is hereby provided that the Board of
Directors shall have full power with respect to the following matters:
(a) To purchase, lease and acquire any and all kinds of
property, real, personal or mixed, and at its discretion to pay therefor in
money, in property and/or in stocks, bonds, debentures or other securities of
the Company.
(b) To enter into any and all contracts and agreements which
in its judgment may be beneficial to the interests and purposes of the Company.
(c) To fix and determine and to vary from time to time the
amount or amounts to be set aside or retained as reserve funds or as working
capital of the Company or for maintenance, repairs, replacements or enlargements
of its properties.
(d) To declare and pay dividends in cash, shares and/or
property out of any funds of the Company at the time legally available for the
declaration and payment of dividends on its shares.
(e) To adopt such rules and regulations for the conduct of its
meetings and the management of the affairs of the Company as it may deem proper.
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(f) To prescribe the manner in which and the person or persons
by whom any or all of the checks, drafts, notes, bills of exchange, contracts
and other corporate instruments shall be executed.
(g) To accept resignations of directors; to declare vacant the
office of a director as provided in Section 2.6 hereof; and, in case of vacancy
in the office of directors, to fill the same to the extent provided in Section
2.6 hereof.
(h) To create offices in addition to those for which provision
is made by law or these Bylaws; to elect and remove at pleasure all officers of
the Company, fix their terms of office, prescribe their titles, powers and
duties, limit their authority and fix their salaries in any way it may deem
advisable that is not contrary to law or these Bylaws.
(i) To designate one or more persons to perform the duties and
exercise the powers of any officer of the Company during the temporary absence
or disability of such officer.
(j) To appoint or employ and to remove at pleasure such agents
and employees as it may see fit, to prescribe their titles, powers and duties,
limit their authority and fix their salaries in any way it may deem advisable
that is not contrary to law or these Bylaws.
(k) To fix a time in the future, which shall not be more than
60 days nor less than 10 days prior to the date of the meeting nor more than 60
days prior to any other action for which it is fixed, as a record date for the
determination of the shareholders entitled to notice of and to vote at any
meeting, or entitled to receive any 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; and in such case only shareholders of record
on the date so fixed shall be entitled to notice of and to vote at the meeting
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 Company after any record date fixed as aforesaid. The Board of
Directors may close the books of the Company against transfers of shares during
the whole or any part of such period.
(l) To fix and locate from time to time the principal office
for the transaction of the business of the Company and one or more branch or
other subordinate offices of the Company within or without the State of
California; to designate any place within or without the State of California for
the holding of any meeting or meetings of the shareholders or the Board of
Directors, as provided in Sections 3.1 and 7.1 hereof; to adopt, make and use a
corporate seal, and to prescribe the forms of certificates for shares and to
alter the form of such seal and of such certificates from time to time as in its
judgment it may deem best, provided such seal and such certificates shall at all
times comply with the provisions of law now or hereafter in effect.
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(m) To authorize the issuance of shares of stock of the
Company in accordance with the laws of the State of California and the Articles
of Incorporation.
(n) Subject to the limitation provided in Section 10.2 hereof,
to adopt, amend or repeal from time to time and at any time these Bylaws and any
and all amendments thereof.
(o) To borrow money and incur indebtedness on behalf of the
Company, including the power and authority to borrow money from any of the
shareholders, directors or officers of the Company; and to cause to be executed
and delivered therefor in the corporate name promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations, or other
evidences of debt and securities therefor; and the note or other obligation
given for any indebtedness of the Company, signed officially by any officer or
officers thereunto duly authorized by the Board of Directors, shall be binding
on the Company.
(p) To approve a loan of money or property to any officer or
director of the Company or any parent or subsidiary company, guarantee the
obligation of any such officer or director, or approve an employee benefit plan
authorizing such a loan or guaranty to any such officer or director; provided
that, on the date of approval of such loan or guaranty, the Company has
outstanding shares held of record by 100 or more persons. Such approval shall
require a determination by the Board of Directors that the loan or guaranty may
reasonably be expected to benefit the Company and must be by vote sufficient
without counting the vote of any interested director.
(q) Generally to do and perform every act and thing whatsoever
that may pertain to the office of a director or to a board of directors.
Article III
MEETINGS OF DIRECTORS
Section 3 1: Place of Meetings. Meetings (whether regular, special or
adjourned) of the Board of Directors of the Company shall be held at the
principal executive office of the Company or at any other place within or
outside the State of California which may be designated from time to time by
resolution of the Board of Directors or which is designated in the notice of the
meeting.
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Section 3.2: Regular Meetings. Regular meetings of the Board of
Directors shall be held after the adjournment of each annual meeting of the
shareholders (which regular directors' meeting shall be designated the "Regular
Annual Meeting") and at such other times as may be designated from time to time
by resolution of the Board of Directors. Notice of the time and place of all
regular meetings shall be given in the same manner as for special meetings,
except that no such notice need be given if (a) the time and place of such
meetings are fixed by the Board of Directors or (b) the Regular Annual Meeting
is held at the principal executive office of this Corporation and on the date
specified by the Board of Directors.
Section 3.3: Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, if any, or the
President, or any Vice President, or the Secretary or by any two or more
directors.
Section 3.4: Notice of Special Meetings. Special meetings of the Board
of Directors shall be held upon no less than 4 days' notice by mail or 48 hours'
notice delivered personally or by telephone or telegraph to each director.
Notice need not be given to any director who signs a waiver of notice or a
consent to holding the meeting or an approval of the minutes thereof, whether
before or after the meeting, or who attends the meeting without protesting,
prior thereto or at its commencement, the lack of notice to such director. All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting. Any oral notice given personally
or by telephone may be communicated either to the director or to a person at the
home or office of the director who the person giving the notice has reason to
believe will promptly communicate it to the director. A notice or waiver of
notice need not specify the purpose of any meeting of the Board of Directors. If
the address of a director is not shown on the records of the Company and is not
readily ascertainable, notice shall be addressed to him at the city or place in
which meetings of the directors are regularly held. If a 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 all directors not present
at the time of adjournment.
Section 3.5: Quorum. A majority of the authorized number of directors
constitutes a quorum of the Board of Directors 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 provisions of law relating to interested directors and
indemnification of agents of the Company. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. 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.
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Section 3.6: 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 directors participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section
constitutes presence in person at such meeting.
Section 3.7: Waiver of Notice and Consent. The transactions of any
meeting of the Board of Directors, 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 such 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 3.8: Action Without a Meeting. Any action required or permitted
by law to be taken by the Board of Directors may be taken without a meeting, if
all members of the Board of Directors 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 of Directors. Such action by written
consent shall have the same force and effect as the unanimous vote of such
directors.
Section 3.9: Committees. The provisions of this Article apply also to
committees of the Board of Directors and action by such committees.
Article IV
COMMITTEES
Section 4.1: Appointment and Procedure. The Board of Directors may, by
resolution adopted by a majority of the authorized number of directors, appoint
from among its members one or more committees, including without limitation an
executive committee, an audit committee and a compensation committee, of two or
more directors. Each committee may make its own rules of procedure subject to
Section 3.9 hereof, and shall meet as provided by such rules or by a resolution
adopted by the Board of Directors (which resolution shall take precedence). A
majority of the members of the committee shall constitute a quorum, and in every
case the affirmative vote of a majority of all members of the committee shall be
necessary to the adoption of any resolution.
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Section 4.2: Executive Committee Powers. During the intervals between
the meetings of the Board of Directors, the Executive Committee, if any, in all
cases in which specific directions shall not have been given by the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Company in
such manner as the Executive Committee may deem best for the interests of the
Company.
Section 4.3: Powers of Other Committees. Other committees shall have
such powers as are given them in a resolution of the Board of Directors.
Section 4.4: Limitations on Powers of Committees. No committee shall
have the power to act with respect to:
(a) any action for which the laws of the State of California
also require shareholder approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in
any committee;
(c) the fixing of compensation of the directors for serving on
the Board of Directors or on any committee;
(d) the amendment or repeal of these Bylaws or the adoption of
new Bylaws;
(e) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not amendable or repealable;
(f) a distribution to the shareholders of the Company, except
at a rate or in a periodic amount or within a price range as setforth in the
articles or determined by the Board of Directors; and
(g) the appointment of other committees of the Board of
Directors or the members thereof.
Article V
OFFICERS
Section 5.l: Election and Qualifications. The officers of the Company
shall consist of a President, a Secretary, a Chief Financial Officer and such
other officers, including, but not limited to, a Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, one or more Vice Presidents,
a Treasurer, and Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, as the Board of Directors shall deem expedient, who shall be chosen
in such manner and hold their offices for such terms as the Board of Directors
may prescribe. Any number of offices may be held by the same person. Any Vice
President, Assistant Treasurer or Assistant Secretary, respectively, may
exercise any of the powers of the President, the Chief Financial Officer or the
Secretary, respectively, as directed by the Board of Directors, and shall
perform such other duties as are imposed upon him or her by these Bylaws or the
Board of Directors.
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Section 5.2: Term of Office and Compensation. The term of office
and salary of each of said officers and the manner and time of the payment of
such salaries shall be fixed and determined by the Board of Directors and may be
altered by said Board of Directors from time to time at its pleasure, subject to
the rights, if any, of any officer under any contract of employment. Any officer
may resign at any time upon written notice to the Company, without prejudice to
the rights, if any, of the Company under any contract to which the officer is a
party. If any vacancy occurs in any office of the Company, the Board of
Directors may appoint a successor to fill such vacancy.
Section 5.3: Chairman of the Board; Vice Chairman of the Board.
The Chairman of the Board of Directors, if there be one, shall have the power to
preside at all meetings of the Board of Directors and shall have such other
powers and shall be subject to such other duties as the Board of Directors may
from time to time prescribe. The Vice Chairman of the Board of Directors, if
there be one, shall have such powers and shall be subject to such other duties
as the Board of Directors may from time to time prescribe.
Section 5.4: President. The powers and duties of the President
are:
(a) To act as the general manager and, unless otherwise
designated by the Board of Directors, the chief executive officer of the Company
and, subject to the control of the Board of Directors, to have general
supervision, direction and control of the business and affairs of this company.
(b) To preside at all meetings of the shareholders and, in the
absence of the Chairman and Vice Chairman of the Board of Directors, at all
meetings of the Board of Directors.
(c) To call meetings of the shareholders and meetings of the
Board of Directors to be held at such times and, subject to the limitations
prescribed by law or by these Bylaws, at such places as he or she shall deem
proper.
(d) To affix the signature of the Company to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates and other
papers and instruments in writing which have been authorized by the Board of
Directors or which, in the judgment of the President, should be executed on
behalf of the Company; to sign certificates for shares of stock of the Company;
and, subject to the direction of the Board of Directors, to have general charge
of the property of the Company and to supervise and control all officers, agents
and employees of the Company.
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Section 5.5: President Pro Tem. If neither the Chairman or Vice
Chairman of the Board of Directors, the President, nor any Vice President is
present at any meeting of the Board of Directors, a President pro tem may be
chosen by the directors present at the meeting to preside and act at such
meeting. If neither the President nor any Vice President is present at any
meeting of the shareholders, a President pro tem may be chosen by the
shareholders present at the meeting to preside at such meeting.
Section 5.6: Vice President. The titles, powers and duties of the Vice
President or Vice Presidents, if any, shall be as prescribed by the Board of
Directors. In case of the resignation, disability or death of the President, the
Vice President, or one of the Vice Presidents, shall exercise all powers and
duties of the President. If there is more than one Vice President, the order in
which the Vice Presidents shall succeed to the powers and duties of the
President shall be as fixed by the Board of Directors.
Section 5.7: Secretary. The powers and duties of the Secretary are:
(a) To keep a book of minutes at the principal executive
office of the Company, or such other place as the Board of Directors may order,
of all meetings of its directors and shareholders with the time and place of
holding of such meeting, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders' meetings
and the proceedings thereof.
(b) To keep the seal of the Company and to affix the same to
all instruments which may require it.
(c) To keep or cause to be kept at the principal executive
office of the Company, or at the office of the transfer agent or agents, a
record of the shareholders of the Company, giving the names and addresses of all
shareholders and the number and class of shares held by each, the number and
date of certificates issued for shares and the number and date of cancellation
of every certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the
Company, to fill in all certificates issued, and to make a proper record of each
such issuance; provided that, so long as the Company shall have one or more duly
appointed and acting transfer agents of the shares, or any class or series of
shares, of the Company, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
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(e) To transfer upon the share books of the Company any and
all shares of the Company; provided that, so long as the Company shall have one
or more duly appointed and acting transfer agents of the shares, or any class or
series of shares, of the Company, such duties with respect to such shares shall
be performed by such transfer agent or transfer agents, and the method of
transfer of each certificate shall be subject to the reasonable regulations of
the transfer agent to whom the certificate is presented for transfer and, if the
Company then has one or more duly appointed and acting registrars, subject
to-the reasonable regulations of the registrar to which a new certificate is
presented for registration; and, provided further, that no certificate for
shares of stock shall be issued or delivered or, if issued or delivered, shall
have any validity whatsoever until and unless it has been signed or
authenticated in the manner provided in Section 8.2 hereof.
(f) To make service and publication of all notices that may be
necessary or proper in connection with meetings of the Board of Directors of the
shareholders of the Company. In case of the absence, disability, refusal or
neglect of the Secretary to make service or publication of any notices, then
such notices may be served and/or published by the President or a Vice
President, or by any person thereunto authorized by either of them, or by the
Board of Directors, or by the holders of a majority of the outstanding shares of
the Company.
(g) Generally to do and perform all such duties as pertain to
such office and as may be required by the Board of Directors.
Section 5.8: Chief Financial Officer. The powers and duties of the
Chief Financial Officer are:
(a) To supervise and control the keeping and maintaining of
adequate and correct accounts of the Company's properties and business
transactions, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares. The books of account
shall at all reasonable times be open to inspection by any director.
(b) To have the custody of all funds, securities, evidences of
indebtedness and other valuable documents of the Company and, at his or her
discretion, to cause any or all thereof to be deposited for the account of the
Company with such depository as may be designated from time to time by the Board
of Directors.
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(c) To receive or cause to be received, and to give or cause
to be given, receipts and acquittances for monies paid in for the account of the
Company.
(d) To disburse, or cause to be disbursed, all funds of the
Company as may be directed by the President or the Board of Directors, taking
proper vouchers for such disbursements.
(e) To render to the President or to the Board of Directors,
whenever either may require, accounts of all transactions as Chief Financial
Officer and of the financial condition of the Company.
(f) Generally to do and perform all such duties as pertain to
such office and as may be required by the Board of Directors.
Section 5.9: Instruments in Writing. All checks, drafts, demands for
money, notes and written contracts of the Company shall be signed by such
officer or officers, agent or agents, as the Board of Directors may from time to
time designate. No officer, agent, or employee of the Company shall have the
power to bind the Company by contract or otherwise unless authorized to do so by
these Bylaws or by the Board of Directors.
Article VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.1: Indemnification of Directors and Officers. The Company
shall indemnify each person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding") by reason of
the fact that such person is or was a director or officer of the Company, or is
or was serving at the request of the Company as a director or officer of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or was a director or officer of a foreign or domestic corporation
which was a predecessor corporation of the Company or of another enterprise at
the request of such predecessor corporation, to the fullest extent permitted by
the California Corporations Code, against all expenses, including, without
limitation, attorneys' fees and any expenses of establishing a right to
indemnification, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such Proceeding, and such indemnification
shall continue as to a person who has ceased to be such a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such person; provided, however, that the Company shall indemnify any such person
seeking indemnity in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Board of Directors of the Company.
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Section 6.2: Advancement of Expenses. The Company shall pay all
expenses incurred by such a director or officer in defending any Proceeding as
they are incurred in advance of its final disposition; provided, however, that
the payment of such expenses incurred by a director or officer in advance of the
final disposition of a Proceeding shall be made only upon receipt by the Company
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall be determined ultimately that such person is not entitled to
be indemnified under this Article VI or otherwise; and provided further that the
Company shall not be required to advance any expenses to a person against whom
the Company directly brings an action, alleging that such person committed an
act or omission not in good faith or that involved intentional misconduct or a
knowing violation of law, or that was contrary to the best interest of the
Company, or derived an improper personal benefit from a transaction.
Section 6.3: Non-Exclusivity of Rights. The rights conferred on any
person in this Article VI shall not be deemed exclusive of any other rights that
such person may have or hereafter acquire under any statute, bylaw, agreement,
vote of shareholders or disinterested directors or otherwise, both as to action
in an official capacity and as to action in another capacity while holding such
office. Additionally, nothing in this Article VI shall limit the ability of the
Company, in its discretion, to indemnify or advance expenses to persons whom the
Company is not obligated to indemnify or advance expenses to pursuant to this
Article VI.
Section 6.4: Idemnification Contracts. The Board of Directors is
authorized to cause the Company to enter into a contract with any director,
officer, employee or agent of the Company, or any person serving at the request
of the Company as a director, officer, employee or agent of another corporation,
'partnership, joint venture, trust or other enterprise, providing for
indemnification rights, which rights may be greater than (to the extent
permitted by the Company's Articles of Incorporation and the California
Corporations Code), those provided for in this Article VI.
Section 6.5: Effect of Amendment. Any amendment, repeal or modification
of any provision of this Article VI shall be prospective only, and shall not
adversely affect any right or protection conferred on a person pursuant to this
Article VI and existing at the time of such amendment, repeal or modification.
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Article VII
MEETINGS OF SHAREHOLDERS
Section 7.1: Place of Meetings. Meetings (whether regular, special or
adjourned) of the shareholders of the Company shall be held at the principal
executive office for the transaction of business of the Company, or at any place
within or outside the State of California which may be designated by written
consent of all the shareholders entitled to vote thereat, or which may be
designated by resolution of the Board of Directors. Any meeting shall be valid
wherever held if held by the written consent of all the shareholders entitled to
vote thereat, given either before or after the meeting and filed with the
Secretary of the Company.
Section 7.2: Annual Meeting. The annual meetings of the shareholders
shall be held at the place provided pursuant to Section 7.1 hereof and at such
time in a particular year as may be designated by written consent of all the
shareholders entitled to vote thereat or which may be designated by resolution
of the Board of Directors of the Company. Said annual meetings shall be held for
the purpose of the election of directors, for the making of reports of the
affairs of the Company and for the transaction of such other business as may
properly come before the meeting.
Section 7.3: Special Meetings. Special meetings of the shareholders for
any purpose or purposes whatsoever may be called at any time by the President,
the Chairman of the Board of Directors or by the Board of Directors, or by two
or more members thereof, or by one or more holders of shares entitled to cast
not less than 10% of the votes at the meeting. Upon request in writing sent by
registered mail to the Chairman of the Board of Directors, President, Vice
President or Secretary, or delivered to any such officer in person, by any
person entitled to call a special meeting of shareholders, it shall be the duty
of such officer forthwith to 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, which (except where called by the Board of
Directors) shall be not less than 35 days nor more than 60 days after the
receipt of such request. If the notice is not given within 20 days after receipt
of the request, the person entitled to call the meeting may give the notice.
Notices of meetings called by the Board of Directors shall be given in
accordance with Section 7.4.
Section 7.4: Notice of Meetings. Notice of any meeting of shareholders
shall be given in writing not less than 10 (or, if sent by third-class mail, 30)
nor more than 60 days before the date of the meeting to each shareholder
entitled to vote thereat by the Secretary or an Assistant Secretary, or such
other person charged with that duty, or if there be no such officer or person,
or in case of his or her neglect or refusal, by any director or shareholder. The
notice shall state the place, date and hour of the meeting and (a) in the case
of a special meeting, the general nature of the business to be transacted, and
no other business may be transacted, or (b) in the case of the annual meeting,
those matters which the Board of Directors, at the time of the mailing of the
notice, intends to present for action by the shareholders, but any proper matter
may be presented at the meeting for such action, except that notice must be
given or waived in writing of any proposal relating to approval of contracts
between the Company and any director of the Company, amendment of the Articles
of Incorporation, reorganization of the Company or winding up of the affairs of
the Company. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by the Board of Directors for election. Notice of a shareholders'
meeting or any report shall be given to any shareholder, either (a) personally
or (b) by first-class mail, or, in case the Company has outstanding shares held
of record by 500 or more persons on the record date for the shareholders'
meeting, notice may be sent by third-class mail, or other means of written
communication, charges prepaid, addressed to
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such shareholder at such shareholder's address appearing on the books of the
Company or given by such shareholder to the Company for the purpose of notice.
If a shareholder gives no address or no such address appears on the books of the
Company, notice shall be deemed to have been given if sent by mail or other
means of written communication addressed to the place where the principal
executive office of the Company is located, or if published at least once in a
newspaper of general circulation in the county in which such office is located.
The notice or report shall be deemed to have been given at the time when
delivered personally or deposited in the United States mail, postage prepaid, or
sent by other means of written communication and addressed as hereinbefore
provided. An affidavit or declaration of delivery or mailing of any notice or
report in accordance with the provisions of this Section 7.4, executed by the
Secretary, Assistant Secretary or any transfer agent, shall be prima facie
evidence of the giving of the notice or report. If any notice or report
addressed to the shareholder at the address of such shareholder appearing on the
books of the Company is returned to the Company by the United States Postal
Service marked to indicate that the United States Postal Service is unable to
deliver the notice or report to the shareholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available for the shareholder upon written demand
of the shareholder at the principal executive office of the Company for a period
of one year from the date of the giving of the notice or report to all other
shareholders.
Section 7.5: Consent to Shareholders' Meetings. 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 shareholders entitled to vote, not present in person or
by proxy, signs a written waiver of notice or a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person at a meeting shall 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 to be included in the notice but not so
included, if such objection is expressly made at the meeting. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of shareholders need be specified in any written waiver of notice, consent to
the holding of the meeting or approval of the minutes thereof, except as to
approval of contracts between the Company and any of its directors, amendment of
the Articles of Incorporation, reorganization of the Company or winding up the
affairs of the Company.
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Section 7.6: Quorum. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting of the shareholders
shall constitute a quorum for the transaction of business. Shares shall not be
counted to make up a quorum for a meeting if voting of such shares at the
meeting has been enjoined or for any reason they cannot be lawfully voted at the
meeting. 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. Except as provided herein, the affirmative vote
of a majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required.
Section 7.7: Adjourned Meetings. Any shareholders' meeting, whether or
not a quorum is present, may be adjourned from time to time by the vote of a
majority of the shares, the holders of which are either present in person or
represented by proxy thereat, but, except as provided in Section 7.6 hereof, in
the absence of a quorum, no other business may be transacted at such meeting.
When a meeting is adjourned for more than 45 days or if after 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 a
meeting. Except as aforesaid, it shall not be necessary to give any notice of
the time and place of the adjourned meeting or of the business to be transacted
thereat other than by announcement at the meeting at which such adjournment is
taken. At any adjourned meeting the shareholders may transact any business which
might have been transacted at the original meeting.
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Section 7.8: Voting Rights. Only persons in whose names shares entitled
to vote stand on the stock records of the Company 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 or, if some other day be fixed for the
determination of shareholders of record pursuant to Section 2.8(k) hereof, then
on such other day, shall be entitled to vote at such meeting. 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 of Directors has
been taken, shall be the day on which the first written consent is given. In the
absence of any contrary provision in the Articles of Incorporation or in any
applicable statute relating to the election of directors or to other particular
matters, each such person shall be entitled to one vote for each share.
Section 7.9: Action by Written Consents. 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 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. Unless the consents of all shareholders entitled to vote have been
solicited in writing, notice of any shareholder approval of (a) contracts
between the Company and any of its directors, (b) indemnification of any person,
(c) reorganization of the Company or (d) distributions to shareholders upon
winding up of the affairs of the Company 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 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. All notices given hereunder
shall conform to the requirements of Section 7.4 hereto and applicable law. When
written consents are given with respect to any shares, they shall be given by
and accepted from the persons in whose names such shares stand on the books of
the Company at the time such respective consents are given or their proxies. Any
shareholder giving a written consent, or any shareholder's proxy holder, or a
transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received by
the Company 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 Company, but may not do so thereafter. Such revocation is effective upon its
receipt by the Secretary of the Company. Notwithstanding anything herein to the
contrary, and subject to Section 305 (b) of the California Corporations Code,
directors may not be elected by writ-ten consent except by unanimous written
consent of all shares entitled to vote for the election of directors.
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Section 7.10: Election of Directors. Every shareholder entitled to vote
at any election of directors of the Company 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 normally entitled, or distribute the shareholder's votes on the same
principle among as many candidates as such shareholder thinks fit. No
shareholder, however, may cumulate such shareholder's votes for one or more
candidates unless such candidate's or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting, prior to voting, of such shareholder's intention to cumulate such
shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination. 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 shall be declared elected. Votes against the director and votes
withheld shall have no legal effect. Election of directors need not be by ballot
except upon demand made by a shareholder at the meeting and before the voting
begins.
Section 7.11: Proxies. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or such person's duly
authorized agent and filed with the Secretary of the Company. No proxy shall be
valid (a) after revocation thereof, unless the proxy is specifically made
irrevocable and otherwise conforms to this Section and applicable law, or (b)
after the expiration of eleven months from the date thereof, unless the person
executing it specifies therein the length of time for which such proxy is to
continue in force. Revocation may be effected by a writing delivered to the
Secretary of the Company 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 the meeting and voting in person
by the person executing the proxy. A proxy is not revoked by the death or
incapacity of the maker unless, before the vote is counted, a written notice of
such death or incapacity is received by the Secretary of the Company. In
addition, 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 7.12: Inspectors of Election. Before any meeting of
shareholders, the Board of Directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or its adjournment.
If no inspectors of election are so appointed, the Chairman of the meeting may,
and on the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one or three. if inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one or three inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the Chairman of the meeting may, and upon the request
of any shareholder or a shareholder's proxy shall, appoint a person to fill that
vacancy. These inspectors shall:
(a) determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a quorum,
and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots, or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
Article VIII
SUNDRY PROVISIONS
Section 8.1: Shares Held by the Company. Shares in other company's
standing in the name of the Company may be voted or represented and all rights
incident thereto may be exercised on behalf of the Company by any officer of the
Company authorized to do so by resolution of the Board of Directors.
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Section 8.2: Certificates for Shares. There shall be issued to every
holder of shares in the Company a certificate or certificates signed in the name
of the Company by the Chairman of the Board, if any, or the President or a Vice
President and by the Chief Financial Officer or an Assistant Chief Financial
Officer 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 Company
with the same effect as if such person were an officer, transfer agent or
registrar at the date of issue.
Section 8.3: Lost Certificates. Where the owner of any certificate for
shares of the Company claims that the certificate has been lost, stolen or
destroyed, a new certificate shall be issued in place of the original
certificate if the owner (a) so requests before the Company has notice that the
original certificate has been acquired by a bona fide purchaser and (b)
satisfies any reasonable requirements imposed by the Company, including without
limitation the filing with the Company of an indemnity bond or agreement in such
form and in such amount as shall be required by the President or a Vice
President of the Company. The Board of Directors may adopt such other provisions
and restrictions with reference to lost certificates, not inconsistent with
applicable law, as it shall in its discretion deem appropriate.
Section 8.4: Certification and Inspection of Bylaws. The Company shall
keep at its principal executive office the original or a copy of these Bylaws as
amended or otherwise altered to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours.
Section 8.5: Annual Reports. Provided that the Company has 100 or fewer
shareholders, the making of annual reports to the shareholders is dispensed with
and the requirement that such annual reports be made to shareholders is
expressly waived, except as may be directed from time to time by the Board of
Directors or the President.
Article IX
CONSTRUCTION OF BYLAWS WITH
REFERENCE TO PROVISIONS OF LAW
Section 9.1: Bylaw Provisions Construed as Additional and Supplemental
to Provisions of Law. All restrictions, limitations, requirements and other
provisions of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in addition to the said
provisions of law unless such compliance shall be illegal.
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Section 9.2: Bylaws Provisions Contrary to or Inconsistent with
Provisions of Law. Any article, section, subsection, subdivision, sentence,
clause or phrase of these Bylaws which, upon being construed in the manner
provided in Section 9.1 hereof, shall be contrary to or inconsistent with any
applicable provision of law, shall not apply so long as said provisions of law
shall remain in effect, but such result shall not affect the validity or
applicability of any other portion of these Bylaws, it being hereby declared
that these Bylaws, and each article, section, subsection, subdivision, sentence,
clause or phrase thereof, would have been adopted irrespective of the fact that
any one or more articles, sections, subsections, subdivisions, sentences,
clauses or phrases is or are illegal.
Article X
ADOPTION, AMENDMENT OR REPEAL OF BYLAWS
Section 10.1: By Shareholders. Bylaws may be adopted, amended or
repealed by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote. Bylaws 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 be adopted only by the shareholders.
Section 10.2: By the Board of Directors. Subject to the right of
shareholders to adopt, amend or repeal Bylaws, and other than a Bylaw or
amendment thereof 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, these Bylaws may be adopted, amended or repealed by the Board of
Directors. A Bylaw adopted by the shareholders may restrict or eliminate the
power of the Board of Directors to adopt, amend or repeal Bylaws.
Article XI
RESTRICTIONS ON TRANSFER OF STOCK
Section 11.1: Transfer of Shares. Before any shareholders of the
Company may sell, assign, gift, pledge or otherwise transfer any shares of the
Company's capital stock, such shareholder shall first notify the Company in
writing of such transfer and such transfer may not be effected unless and until
legal counsel for the Company has concluded that such transfer, when effected as
proposed by such shareholder, will comply with all applicable provisions of any
applicable state and federal securities laws, including but not limited to the
Securities Act of 1933, as amended, and the California Corporate Securities Law
of 1968, as amended.
Section 11.2: Subsequent Agreement or Bylaw. If (a) any two or more
shareholders of the Company shall enter into any agreement abridging, limiting
or restricting the rights of any one or more of them to sell, assign, transfer,
mortgage, pledge, hypothecate or transfer on the books of the Company any or all
of the shares of the Company held by them, and if a copy of said agreement shall
be filed with the Company, or if (b) shareholders entitled to vote shall adopt
any Bylaw provision abridging, limiting or restricting the aforesaid rights of
any shareholders, then, and in either of such events, all certificates of shares
of stock subject to such abridgments, limitations or restrictions shall have a
reference thereto endorsed thereon by an officer of the Company and such
certificates shall not thereafter be transferred on the books of the Company
except in accordance with the terms and provisions of such as the case may be;
provided that, no restriction shall be binding with respect to shares issued
prior to adoption of the restriction unless the holders of such shares voted in
favor of or consented in writing to the restriction.
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