EXHIBIT C
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BYLAWS FOR THE REGULATION, EXCEPT
AS OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
UNIT INSTRUMENTS, INC.
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the corporation is hereby fixed and located at 22600 Savi Ranch Parkway, Yorba
Linda, California. The Board of Directors is hereby granted full power and
authority to change said principal executive office from one location to
another. Any such change shall be noted on the bylaws by the secretary,
opposite this section, or this section may be amended to state the new location.
SECTION 2. OTHER OFFICES. Other business offices may at any time be
established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All annual or other meetings of shareholders
shall be held at the principal executive office of the corporation, or at any
other place within or without the State of California which may be designated
either by the Board of Directors or by the written consent of all persons
entitled to vote thereat and not present at the meeting, given either before or
after the meeting and filed with the secretary of the Corporation.
SECTION 2. ANNUAL MEETINGS. The annual meeting of shareholders shall be
held each year on such date and at such time as shall be set by the
Board of Directors. At such meetings, 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. Written notice of
each annual 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 any
notice or report addressed to the shareholder at the address of such shareholder
appearing on the books of the Corporation is returned to the Corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice or report to the shareholder at such
address, all future notices or reports shall be deemed to have been duly
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given without further mailing if the same shall be available for the shareholder
upon written demand of the shareholder at the principal executive office of the
Corporation for a period of one year from the date of the giving of the notice
or report to all other shareholders. If a shareholder gives no address, notice
shall be deemed to have been given 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 if published at least once in some newspaper of
general circulation in the county in which said principal executive office is
located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such notice in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or any
transfer agent of the Corporation, shall be prima facie evidence of the giving
of the notice.
Such notices shall specify:
(a) the place, the date, and the hour of such meeting;
(b) those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees intended
at the time of the notice to be presented by management for election;
(d) the general nature of a proposal, if any, to take action with
respect to approval of (i) a contract or other transaction with an interested
director, (ii) amendment of the Articles of Incorporation, (iii) a
reorganization of the Corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the Corporation, or (v) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly required by
statute.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders, for the
purpose of taking any action permitted by the shareholders under the General
Corporation Law and the Articles of Incorporation of this Corporation, may be
called at any time by the Chairman of the Board or the president, or by the
Board of Directors, or by one or more shareholders holding not less than ten
percent (10%) of the votes at the meeting. Upon request in writing that a
special meeting of shareholders be called for any proper purpose, directed to
the Chairman of the Board, president, vice president or secretary by any person
(other than the Board) entitled to call a special meeting of shareholders, the
officer forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after receipt of the request. Except in special cases where other express
provision is made by statute, notice of such special meetings shall be given in
the same manner as for the annual meetings of
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shareholders. In addition to the matters required by items (a) and, if
applicable, (c) of the preceding Section, notice of any special meeting shall
specify the general nature of the business to be transacted, and no other
business may be transacted at such meeting.
SECTION 4. QUORUM. 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 do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
SECTION 5. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, 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 in the absence
of a quorum no other business may be transacted at such meeting, except as
provided in Section 4 above.
When any shareholders' meeting, either annual or special, is adjourned for
forty-five days or more, or if after adjournment a new record date is fixed for
the adjourned meeting, notice of the adjourned meeting shall be given as in the
case of an original meeting. Except as provided above, 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 of the time
and place of the adjourned meeting or of the business to be transacted thereat,
other than by announcement of the time and place thereof at the meeting at which
such adjournment is taken.
SECTION 6. VOTING. Unless a record date for voting purposes be fixed as
provided in Section 1 of Article V of these bylaws, then, subject to the
provisions of Sections 702 and 704, inclusive, of the Corporations Code of
California (relating to voting of shares held by a fiduciary, in the name of a
Corporation, or in joint ownership), only persons in whose names shares entitled
to vote stand on the stock records of the Corporation at the close of business
on the business day next preceding the day on which notice of the meeting is
given or if such notice is waived, at the close of business on the business day
next preceding the day on which the meeting of shareholders is held, shall be
entitled to vote at such meeting, and such day shall be the record date for such
meeting. Such vote may be viva voce or by ballot; provided, however, that all
elections for directors must be by ballot upon demand made by a shareholder at
any election and before the voting begins. If a quorum is present, except with
respect to election of directors, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on any matter shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the General Corporation Law or the Articles of
Incorporation. Subject to the requirements of the next sentence and the Articles
of Incorporation, every shareholder entitled to vote at any election for
directors shall have the right to cumulate his 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 his shares are entitled, or to distribute his votes on
the same principle among as many candidates as he shall think fit. No
shareholder shall be entitled to cumulative votes unless the name of the
candidate or candidates for whom such votes would be cast has been placed in
nomination prior
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to the voting, and any shareholder has given notice at the meeting prior to the
voting of such shareholder's intention to cumulate his votes. The candidates
receiving the highest number of votes of shares entitled to be voted for them,
up to the number of directors to be elected, shall be elected.
SECTION 7. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be 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, or who, though present, has, at the
beginning of the meeting, properly objected to the transaction of any business
because the meeting was not lawfully called or convened, or to particular
matters of business legally required to be included in the notice, but not so
included, 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.
SECTION 8. ACTION WITHOUT MEETING. Directors may be elected without a
meeting by a consent in writing, setting forth the action so taken, signed by
all of the persons who would be entitled to vote for the election of directors,
provided that, without notice except as hereinafter set forth, a director may be
elected at any time to fill a vacancy not filled by the directors by the written
consent of persons holding a majority of the outstanding shares entitled to vote
for the election of directors.
Any other action which, under any provision of the California General
Corporation Law, may be taken at a meeting of the shareholders, may be taken
without a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by all of the
persons who would be entitled to vote on the action.
Unless, as provided in Section 1 of Article V of these bylaws, the
Board of Directors has fixed a record date for the determination of shareholders
entitled to notice of and to give such written consent, the record date for such
determination shall be the day on which the first written consent is given. All
such written consents shall be filed with the secretary of the Corporation.
Any shareholder giving a written consent, or the shareholder's proxyholders,
or a transferee of the shares or a personal representative of the shareholder or
their respective proxyholders, may revoke the consent by a writing received by
the Corporation prior to the time that written consents of the number of shares
required to authorize the proposed action have been filed with the secretary of
the Corporation, but may not do so thereafter. Such revocation is effective
upon its receipt by the secretary of the Corporation.
SECTION 9. 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 his duly authorized
agent and filed with the secretary of the Corporation. Any proxy duly executed
is not revoked and continues in full force and effect until (i) an instrument
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revoking it or a duly executed proxy bearing a later date is filed with the
secretary of the Corporation prior to the vote pursuant thereto, (ii) the person
executing the proxy attends the meeting and votes in person, or (iii) written
notice of the death or incapacity of the maker of such proxy is received by the
Corporation before the vote pursuant thereto is counted; provided that no such
proxy shall be valid after the expiration of eleven (11) months from the date of
its execution, unless the person executing it specifies therein the length of
time for which such proxy is to continue in force.
SECTION 10. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election be not so appointed, 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 represented in person or by proxy shall
determine whether one or three inspectors are to be appointed. In case any
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may, and on the request of any shareholder or a shareholder's proxy
shall, be filled by appointment by the Board of Directors in advance of the
meeting, or at the meeting by the chairman of the meeting.
The duties of such inspectors shall be as prescribed by Section 707 of the
General Corporation Law and shall include determining the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining when the polls shall close;
determining the result; and such acts as may be proper to conduct the election
or vote with fairness to all shareholders. In the determination of the validity
and effect of proxies, the dates contained on the forms of proxy shall
presumptively determine the order of execution of the proxies, regardless of the
postmark dates on the envelopes in which they are mailed.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima
facie evidence by the facts stated therein.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. Subject to limitations of the Articles of Incorporation
and of the California General Corporation Law as to action to be authorized or
approved by the shareholders, and subject to the duties of directors as
prescribed by the bylaws, all corporate powers shall be exercised by or under
the authority of, and the business and affairs of the
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Corporation shall be controlled by, the Board of Directors. Without prejudice to
such general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
First-To select and remove all the officers, agents and employees of the
Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the Articles of Incorporation or the bylaws, fix
their compensation and require from them security for faithful service.
Second-To conduct, manage and control the affairs and business of the
Corporation, and to make such rules and regulations therefor not inconsistent
with law, or with the Articles of Incorporation or the bylaws, as they may deem
best.
Third-To change the principal executive office and principal office for the
transaction of the business of the Corporation from one location to another as
provided in Article I, Section 1, hereof; to fix and locate from time to time
one or more subsidiary offices of the Corporation within or without the State of
California, as provided in Article I, Section 2, hereof; to designate any place
within or without the State of California for the holding of any shareholders'
meeting or meetings; and to adopt, make and use a corporate seal, and to
prescribe the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times comply with
the provisions of law.
Fourth-To authorize the issue of shares of stock of the Corporation from
time to time, upon such terms as may be lawful.
Fifth-To borrow money and incur indebtedness for the purposes of the
Corporation, 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.
Sixth-By resolution adopted by a majority of the authorized number of
directors, to designate an executive and other committees, each consisting of
two or more directors, to serve at the pleasure of the Board, and to prescribe
the manner in which proceedings of such committee shall be conducted. Unless
the Board of Directors shall otherwise prescribe the manner of proceedings of
any such committee, meetings of such committee may be regularly scheduled in
advance and may be called at any time by any two members thereof; otherwise, the
provisions of the bylaws with respect to notice and conduct of meetings of the
Board shall govern. Any such committee, to the extent provided in a resolution
of the Board, shall have all of the authority of the Board, except with respect
to:
(i) the approval of any action for which the General
Corporation Law or the Articles of Incorporation also require shareholder
approval;
(ii) the filling of vacancies on the Board or in any
committee;
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(iii) the fixing of compensation of the directors for serving
on the Board or on any committee;
(iv) the adoption, amendment or repeal of the bylaws;
(v) the amendment or repeal of any resolution of the Board;
(vi) any distribution to the shareholders, except at a rate or
in a periodic amount or within a price range determined by the Board; and
(vii) the appointment of other committees of the Board or the
members thereof.
SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of
directors shall be not less than four nor more than seven with the exact number
to be set by the Board of Directors until changed by amendment of the Articles
of Incorporation or by a bylaw amending this Section 2 duly adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote; provided that a proposal to reduce the authorized number of directors
below 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 but, if any such annual meeting is not held
or the directors are not elected thereat, the directors may be elected at any
special meeting of shareholders held for that purpose. All directors shall hold
office until their respective successors are elected, subject to the General
Corporation Law and the provisions of these bylaws with respect to vacancies on
the Board.
SECTION 4. VACANCIES. A vacancy in the Board of Directors shall be deemed
to exist in case of the (i) death, (ii) resignation or removal of any director
with or without cause, (iv) pursuant to Section 303 of the California
Corporations Code if a director has been declared of unsound mind by order of
court or convicted of a felony, (v) if the authorized number of directors be
increased, or if the shareholders fail, at any annual or special meeting of
shareholders at which any director or directors are elected, to elect the full
authorized number of directors to be voted for at that meeting.
Vacancies in the Board of Directors, except for a vacancy created by the
removal of a director, may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until his successor is elected at an annual or a
special meeting of the shareholders. A vacancy in the Board of Directors
created by the removal of a director may only be filled by the vote of a
majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or by the written consent of the holders of a
majority of the outstanding shares.
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The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. Any such election by written
consent shall require the consent of holders of a majority of the outstanding
shares entitled to vote.
Any director may resign effective upon giving written notice to the chairman
of the Board, the president, the secretary or the Board of Directors of the
Corporation, unless the notice specifies a later time for the effectiveness of
such resignation. If the Board of Directors accepts the resignation of a
director tendered to take effect at a future time, the Board or the shareholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office.
SECTION 5. PLACE OF MEETING. Regular meetings of the Board of Directors
shall be held at any place within or without the State which has been designated
from time to time by resolution of the Board or by written consent of all
members of the Board. In the absence of such designation, regular meetings
shall be held at the principal executive office of the Corporation. Special
meetings of the Board may be held either at a place so designated or at the
principal executive office.
SECTION 6. ORGANIZATION MEETING. Immediately following each annual meeting
of shareholders, the Board of Directors shall hold a regular meeting at the
place of said annual meeting or at such other place as shall be fixed by the
Board of Directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
SECTION 7. OTHER REGULAR MEETINGS. Other regular meetings of the Board of
Directors shall be held without call as provided in a resolution adopted by the
Board of Directors from time to time; provided, however, should said day fall
upon a legal holiday, then said meeting shall be held at the same time on the
next day thereafter ensuing which is a full business day. Notice of all such
regular meetings of the Board of Directors is hereby dispensed with.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of Directors
for any purpose or purposes shall be called at any time by the chairman of the
Board, the president, any vice president, the secretary or by any two directors.
Written notice of the time and place of special meetings shall be delivered
personally to each director or communicated to each director by telephone or by
telegraph or mail, charges prepaid, addressed to him at his address as it is
shown upon the records of the Corporation or, if it is not so shown on such
records or is not readily ascertainable, at the place at which the meetings of
the directors are regularly held. In case such notice is mailed, it shall be
deposited m the United States mail in the place in which the principal executive
office of the Corporation is located at least four days prior to the time of
holding the meeting. In case such notice is delivered, personally or by
telephone or telegraph, as above provided, it shall be so delivered at
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least forty-eight hours prior to the time of the holding of the meeting. Such
mailing, telegraphing or delivery, personally or by telephone, as above
provided, shall be due, legal and personal notice to such director.
SECTION 9. ACTION WITHOUT MEETING. Any action by the Board of Directors
may be taken without a meeting if all members of the Board shall individually or
collectively consent in writing to such action. Such written consent or
consents shall be filed with the minutes of the proceedings of the Board and
shall have the same force and effect as a unanimous vote of such directors.
SECTION 10. ACTION AT A MEETING: QUORUM AND REQUIRED VOTE. Presence of a
majority of the authorized number of directors at a meeting of the Board of
Directors constitutes a quorum for the transaction of business, except as
hereinafter provided. 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 as permitted in the preceding sentence constitutes presence in person at
such meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as
the act of the Board of Directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the Articles of Incorporation, or by these bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting.
SECTION 11. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS. 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 or who, though present,
has, prior to the meeting or at its commencement, protested the lack of proper
notice to him, signs a written waiver of notice or a consent to holding 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.
SECTION 12. ADJOURNMENT. A quorum of the directors may adjourn any
directors' meeting to meet again at a stated day and hour; provided, however,
that in the absence of a quorum a majority of the directors present at any
directors' meeting, either regular or special, may adjourn from time to time
until the time fixed for the next regular meeting of the Board.
SECTION 13. NOTICE OF ADJOURNMENT. If the meeting is adjourned for more
than twenty-four 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 adjournment. Otherwise notice of the time and place
of holding an adjourned meeting need not be given to absent directors if the
time and place be fixed at the meeting adjourned.
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SECTION 14. FEES AND COMPENSATION. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by resolution of the Board.
SECTION 15. INDEMNIFICATION OF AGENTS OF THE CORPORATION; PURCHASE OF
LIABILITY INSURANCE.
(a) For the purposes of this Section, "agent" means any person who is or was
a director, officer, employee or other agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation; "executive officer" means any person who is or was a director or an
officer serving a chief policy making function, or is or was serving at the
request of the Corporation as a director or officer of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise, or
was a director or officer serving a chief policy making function of a foreign or
domestic corporation which was a predecessor corporation of the Corporation or
of another enterprise at the request of the corporation; "proceeding" means any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under subsection (d) or paragraph (3) of subsection (e) of this section.
(b) This Corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any proceeding (other than an action by or in
the right of this Corporation) by reason of the fact that such person is or was
an executive officer of the Corporation, against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with such proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests of the Corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful. This Corporation may indemnify any person
who was or is a party, or is threatened to be made a party, to any proceeding
(other than an action by or in the right of this Corporation) by reason of the
fact that such person is or was an agent of the Corporation by a majority vote
of a quorum consisting of directors who are not a party to such proceeding,
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the Corporation and, in the case of a criminal proceeding, had no
reason to believe the conduct of such person was unlawful. The termination of
any proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of this Corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
(c) This Corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action by
or in the right of this
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Corporation to procure a judgment in its favor by reason of the fact that such
person is or was an executive officer of this Corporation, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action if such person acted in good faith, in a manner
such person believed to be in the best interests of this Corporation and its
shareholders. No indemnification shall be made under subsection (b) and/or (c):
(1) in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to this Corporation in the performance of
such person's duty to this Corporation and its shareholders, unless and only to
the extent that the court in which such proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine;
(2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(3) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
(d) To the extent that an agent or executive officer of a Corporation has
been successful on the merits in defense of any proceeding referred to in
subsection (b) or (c) or in defense of any claim, issue or matter therein, the
agent or executive officer shall be indemnified against expenses actually and
reasonably incurred by the agent or executive officer in connection therewith.
(e) Except as provided in subsection (d), any indemnification under this
section shall be made by this Corporation only if authorized in the specific
case, upon a determination that indemnification of the agent or executive
officer is proper in the circumstances because the agent or executive officer
has met the applicable standard of conduct set forth in subsection (b) or (c),
by:
(1) A majority vote of a quorum consisting of directors who are not
a party to such proceeding;
(2) If such a quorum of directors is not obtainable, by independent
legal counsel in a written opinion;
(3) Approval or ratification by the affirmative vote of a majority
of the shares of this Corporation entitled to vote represented at a duly held
meeting at which a quorum is present or by the written consent of holders of a
majority of the outstanding shares entitled to vote. For such purpose, the
shares owned by the person to be indemnified shall not be considered outstanding
or entitled to vote thereon; or
(4) The court in which such proceeding is or was pending upon
application made by this Corporation or the agent or the attorney or other
person rendering services in connection
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with the defense, whether or not such application by the agent, attorney or
other person is opposed by this Corporation.
(f) Expenses incurred in defending any proceeding may be advanced by the
Corporation prior to the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of the agent or executive officer to repay such
amount if it shall be determined ultimately that the agent or executive officer
is not entitled to be indemnified as authorized in this section.
(g) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any 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, to the extent such
additional rights to indemnification are authorized in the articles of this
Corporation. The rights to indemnity hereunder shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors, and administrators of the person. Nothing
contained in this section shall affect any rights to indemnification to which
persons other than such directors and officers may be entitled by contract or
otherwise.
(h) No indemnification or advance shall be made under this section, except
as provided in subsection (d) or paragraph (3) of subsection (e), in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of the articles,
bylaws, a resolution of the shareholders or an agreement in effect at the time
the accrual of the alleged cause of action asserted in the proceeding in which
the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) This Corporation may purchase and maintain insurance on behalf of any
agent of this Corporation against any liability asserted against or incurred by
the agent in such capacity or arising out of the agent's status as such, whether
or not this Corporation would have the power to indemnify the agent against such
liability under the provisions of this section. The fact that this Corporation
owns all or a portion of the shares of the company issuing a policy of insurance
shall not render this subsection inapplicable if either of the following
conditions are satisfied:
(1) If authorized in the Articles of Incorporation of this
Corporation, any policy issued is limited to the extent provided by subdivision
(d) of Section 204 of the California Corporations Code; or
(2) (A) The company issuing the insurance policy is organized, licensed,
and operated in a manner that complies with the insurance laws and regulations
applicable to its jurisdiction of organization,
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(B) The company issuing the policy provides procedures for
processing claims that do not permit that company to be subject to the direct
control of the Corporation that purchased that policy, and
(C) The policy issued provides for some manner of risk sharing
between the issuer and purchaser of the policy, on one hand, and some
unaffiliated person or persons, on the other, such as by providing for more than
one unaffiliated owner of the company issuing the policy or by providing that a
portion of the coverage furnished will be obtained from some unaffiliated
insurer or re-insurer.
(j) This Section 15 does not apply to any proceeding against any trustee,
investment manager or other fiduciary of an employee benefit plan in such
person's capacity as such, even though such person may also be an agent of the
Corporation as defined in subsection (a) of this Section. This Corporation
shall have power to indemnify such a trustee, investment manager or other
fiduciary to the extent permitted by subdivision (f) of Section 207 of the
California General Corporation Law.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a president,
a secretary and a chief financial officer. The corporation may also have, at
the discretion of the Board of Directors, a Chairman of the Board, one or more
vice presidents, one or more assistant secretaries, one or more assistant
treasurers and such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article.
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 of Directors, and each
shall hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and qualified.
SECTION 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint,
and may empower the president to appoint, such other officers as the business of
the Corporation may require, each of whom shall hold office, for such period,
have such authority and perform such duties as are provided in the bylaws or as
the Board of Directors may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board of Directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors (subject, in each case, to the rights, if any, of an
officer under any contract of employment).
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Any officer may resign at any time by giving written notice to the Board of
Directors or to the president, or to the secretary of the corporation, without
prejudice, however, to the rights, if any, of the Corporation under any contract
to which such officer is a party. 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 because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the bylaws for regular appointments to such office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
the bylaws.
SECTION 7. PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Board of Directors 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 of Directors, have
general supervision, direction and control of the business and officers of the
Corporation. He shall preside at all meetings of the shareholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. 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 of Directors 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 of Directors
or, if not ranked, the vice president designated by the Board of Directors,
shall perform all the duties of the president, and when so acting shall have
such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors or the bylaws.
SECTION 9. SECRETARY. The secretary shall record or cause to be recorded,
and shall keep or cause to be kept, at the principal executive office and such
other place as the Board of Directors may order, a book of minutes of actions
taken at all meetings of directors and shareholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the notice
thereof given, the names of those present at directors' meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings
thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the Corporation's transfer agent, a share register,
or a duplicate share register, 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.
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The secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the Board of Directors required by the bylaws or by
law to be given, and he 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 of Directors or by the bylaws.
SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the
Corporation 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 accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares. Any surplus,
including earned surplus, paid in surplus and surplus arising from a reduction
of stated capital, shall be classified according to source and shown in a
separate account. The books of account shall at all reasonable times be open to
inspection by any director.
The Chief Financial Officer shall deposit all monies and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as Chief Financial Officer 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 of Directors or the bylaws.
ARTICLE V
MISCELLANEOUS
SECTION 1. RECORD DATE. The Board of Directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or entitled to give consent
to corporate action in writing without a meeting, to receive any report, to
receive any dividend or distribution, or any allotment of rights, or to exercise
rights in respect to any change, conversion or exchange of shares. The record
date so fixed shall be not more than sixty (60) days nor less than ten (10) days
prior to the date of any meeting, nor more than sixty (60) days prior to any
other event for the purposes of which it is fixed. When a record date is so
fixed, only shareholders of record on that date are entitled to notice of and to
vote at any such meeting, to give consent without a meeting, to receive any
report, to receive a dividend, distribution or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date, except as
otherwise provided in the Articles of Incorporation or bylaws.
SECTION 2. INSPECTION OF CORPORATE RECORDS. The accounting books and
records, the record of shareholders, and minutes of proceedings of the
shareholders and the Board and committees of the Board of this Corporation and
any subsidiary of this Corporation shall be open to inspection upon the written
demand on the Corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made
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in person or by agent or attorney, and the right of inspection includes the
right to copy and make extracts.
A shareholder or shareholders holding at least 5 percent in the aggregate of
the outstanding voting shares of the Corporation or who hold at least 1 percent
of such voting shares and have filed a Schedule 14B with the United States
Securities and Exchange Commission relating to the election of directors of the
Corporation shall have (in person, or by agent or attorney) the right to inspect
and copy the record of shareholders' names and addresses and shareholdings
during usual business hours upon five business days' prior written demand upon
the Corporation and to obtain from the transfer agent for the Corporation, upon
written demand and upon the tender of its usual charges, a list of the
shareholders' names and addresses, who are entitled to vote for the election of
directors, and their shareholdings, as of the most recent record date for which
it has been compiled or as of a date specified by the shareholder subsequent to
the date of demand. The list shall be made available on or before the later of
five business days after the demand is received or the date specified therein as
the date as of which the list is to be compiled.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the Corporation. Such inspection by a director may
be made in person or by agent or attorney and the right of inspection includes
the right to copy and make extracts.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name,
of or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors.
SECTION 4. ANNUAL REPORT TO SHAREHOLDERS. The annual report to
shareholders referred to in Section 1501 of the California General Corporation
Law is expressly waived, but nothing herein shall be interpreted as prohibiting
the Board from issuing annual or other periodic reports to shareholders.
A shareholder or shareholders holding at least five percent of the
outstanding shares of any class of the Corporation may make a written request to
the Corporation for an income statement of the Corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than 30
days prior to the date of the request and a balance sheet of the Corporation as
of the end of such period and, in addition, if no annual report for the last
fiscal year has been sent to shareholders, the annual report for the last fiscal
year. The Corporation shall use its best efforts to deliver on the statement to
the person making the request within 30 days thereafter. A copy of any such
statements shall be kept on file in the principal executive office of the
Corporation for 12 months and they shall be exhibited at all reasonable times to
any shareholder demanding an examination of them or a copy shall be mailed to
such shareholder.
The Corporation shall, upon the written request of any shareholder, mail to
the shareholder a copy of the last annual, semiannual or quarterly income
statement which it has prepared and a balance sheet as of the end of the period.
The quarterly income statements and
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balance sheets referred to in this section shall be accompanied by the report
thereon, if any, of any independent accountants engaged by the Corporation or
the certificate of an authorized officer of the Corporation that such financial
statements were prepared without audit from the books and records of the
Corporation.
SECTION 5. CONTRACTS, ETC., HOW EXECUTED. The Board of Directors, except
as in the bylaws otherwise provided, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Corporation, and such authority may be general or
confined to specific instances; and, unless so authorized by the Board of
Directors, no officer, agent or employee shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or to any amount.
SECTION 6. CERTIFICATE FOR SHARES. Every holder of shares in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation by the Chairman or vice chairman of the Board or the president or
vice president and by the chief financial officer or an assistant 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 of the
signatures on the certificate may be facsimile, provided that in such event at
least one signature, including that of either officer or the Corporation's
registrar or transfer agent, if any, shall be manually signed. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were an officer,
transfer agent or registrar at the date of issue.
Any such certificate shall also contain such legend or other statement as
may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, the federal securities laws, and any agreement between
the Corporation and the issuee thereof.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board of Directors or the bylaws may
provide; provided, however, that any such certificate so issued prior to full
payment shall state on the face thereof the amount remaining unpaid and the
terms of payment thereof.
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 will be issued without the surrender and
cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) 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; (3) 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;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the Corporation; and (5) the owner satisfies
any other reasonable requirements imposed by the Corporation. In the event of
the issuance of a new certificate, the rights and liabilities of the
Corporation, and of the holders of the old and new certificates, shall
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be governed by the provisions of Sections 8104 and 8405 of the California
Uniform Commercial Code.
SECTION 7. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The president
or any vice president and the secretary or any assistant secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
SECTION 8. INSPECTION OF BYLAWS. The Corporation shall keep in its
principal executive office in California, or, if its principal executive office
is not in California, then at its principal business office in California (or
otherwise provide upon Written request of any shareholder) the original or a
copy of the bylaws as amended or otherwise altered to date, certified by the
secretary, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
SECTION 9. 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.
ARTICLE VI
AMENDMENTS
SECTION 1. POWER OF SHAREHOLDERS. New bylaws may be adopted or these
bylaws may be amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written assent of shareholders
entitled to vote such shares, except as otherwise provided by law or by the
Articles of Incorporation.
SECTION 2. POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section I of this Article VI to adopt, amend or repeal bylaws,
bylaws, other than a bylaw or amendment thereof changing the authorized number
of directors, may be adopted, amended or repealed by the Board of Directors.