Exhibit 3.6
AMENDED AND RESTATED BYLAWS
OF
CHIPCARDS, INC.
TABLE OF CONTENTS
Page
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ARTICLE I.......................................................................1
OFFICES ..............................................................1
PRINCIPAL OFFICE..............................................1
OTHER OFFICES.................................................1
ARTICLE II......................................................................1
DIRECTORS - MANAGEMENT.................................................1
RESPONSIBILITY OF BOARD OF DIRECTORS..........................1
STANDARD OF CARE..............................................1
EXCEPTION FOR CLOSE CORPORATION...............................2
NUMBER AND QUALIFICATION OF DIRECTORS.........................2
ELECTION AND TERM OF OFFICE OF DIRECTORS......................2
VACANCIES.....................................................2
REMOVAL OF DIRECTORS..........................................3
NOTICE, PLACE, AND MANNER OF MEETINGS.........................3
ORGANIZATION MEETINGS.........................................3
OTHER REGULAR MEETINGS........................................4
SPECIAL MEETINGS - NOTICES - WAIVERS..........................4
DIRECTORS ACTION BY UNANIMOUS WRITTEN CONSENT.................4
QUORUM........................................................5
NOTICE OF ADJOURNMENT.........................................5
COMPENSATION OF DIRECTORS.....................................5
COMMITTEES....................................................5
ADVISORY DIRECTORS............................................5
RESIGNATIONS .................................................5
ARTICLE III.....................................................................6
OFFICERS ..............................................................6
OFFICERS .....................................................6
ELECTION ..............................................................6
SUBORDINATE OFFICERS, ETC.....................................6
REMOVAL AND RESIGNATION OF OFFICERS...........................6
VACANCIES.....................................................6
CHAIRMAN OF THE BOARD.........................................7
PRESIDENT.....................................................7
VICE PRESIDENT................................................7
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SECRETARY...................................................7
CHIEF FINANCIAL OFFICER.....................................8
ARTICLE IV....................................................................8
SHAREHOLDERS' MEETINGS...............................................8
PLACE OF MEETINGS...........................................8
ANNUAL MEETINGS.............................................8
SPECIAL MEETINGS............................................9
NOTICE OF MEETINGS - REPORTS................................9
WAIVER OF NOTICE OR CONSENT BY
ABSENT SHAREHOLDERS......................................10
OTHER ACTIONS WITHOUT A MEETING............................10
QUORUM.....................................................11
VOTING.....................................................11
PROXIES....................................................12
ORGANIZATION...............................................12
INSPECTORS OF ELECTION.....................................12
SHAREHOLDERS' AGREEMENTS...................................12
EFFECT OF SHAREHOLDERS' AGREEMENTS.........................13
ARTICLE V....................................................................13
CERTIFICATES AND TRANSFER OF SHARES.................................13
CERTIFICATES FOR SHARES....................................13
TRANSFER ON THE BOOKS......................................13
LOST OR DESTROYED CERTIFICATES.............................14
TRANSFER AGENTS AND REGISTRARS.............................14
CLOSING STOCK TRANSFER BOOKS - RECORD DATE.................14
LEGEND CONDITION...........................................15
CLOSE CORPORATION CERTIFICATES.............................15
ARTICLE VI...................................................................15
RECORDS - REPORTS - INSPECTION......................................15
RECORDS....................................................15
INSPECTION OF BOOKS AND RECORDS............................15
CERTIFICATION AND INSPECTION OF BYLAWS.....................15
CHECKS, DRAFTS, ETC........................................15
CONTRACTS, ETC. - HOW EXECUTED.............................15
ARTICLE VII..................................................................16
ANNUAL REPORTS......................................................16
REPORT TO SHAREHOLDERS, DUE DATE...........................16
WAIVER.....................................................16
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ARTICLE VIII.................................................................16
AMENDMENT TO BYLAWS.................................................16
AMENDMENT BY SHAREHOLDERS..................................16
POWERS OF DIRECTORS........................................16
RECORD OF AMENDMENTS.......................................17
ARTICLE IX...................................................................17
INDEMNIFICATION.....................................................17
INDEMNIFICATION............................................17
AUTHORIZATION..............................................18
ADVANCEMENT OF EXPENSES....................................18
INSURANCE..................................................18
GENERAL AGREEMENT TO INDEMNIFY.............................18
AGENT......................................................18
ARTICLE X....................................................................19
CORPORATE SEAL......................................................19
ARTICLE XI...................................................................19
MISCELLANEOUS.......................................................19
REFERENCES TO CODE SECTIONS................................19
REPRESENTATION OF SHARES IN OTHER CORPORATIONS.............19
SUBSIDIARY CORPORATIONS....................................19
ACCOUNTING YEAR............................................19
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AMENDED AND RESTATED BY-LAWS
OF
CHIPCARDS, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office for the transaction
of business of the Corporation is hereby fixed and located at One Sansome
Street, Suite 1900, San Francisco, California. The location may be changed by
approval of a majority of the authorized Directors, and additional offices may
be established and maintained at such other place or places, either within or
without California, as the Board of Directors may from time to time designate.
Section 2. OTHER OFFICES. Branch or subordinate 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
DIRECTORS - MANAGEMENT
Section 1. RESPONSIBILITY OF BOARD OF DIRECTORS. Subject to the
provisions of the General Corporation Law and to any limitations in the Articles
of Incorporation of the Corporation relating to action required to be approved
by the Shareholders, as that term is defined in Section 153 of the California
Corporations Code, or by the outstanding shares, as that term is defined in
Section 152 of the Code, the business and affairs of the Corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the Corporation to a management company or other
person, provided that the business and affairs of the Corporation shall be
managed and all corporate powers shall be exercised under the ultimate direction
of the Board.
Section 2. STANDARD OF CARE. Each Director shall perform the duties of
a Director, including the duties as a member of any committee of the Board upon
which the Director may serve, in good faith, in a manner such Director believes
to be in the best interest of the Corporation, and with such care, including
reasonable inquiry, as an ordinary prudent person in a like position would use
under similar circumstances. (Sec. 309).
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Section 3. EXCEPTION FOR CLOSE CORPORATION. Notwithstanding the
provisions of Section 1, in the event that this Corporation shall elect to
become a close corporation as defined in Section 158, its Shareholders may enter
into a Shareholders' Agreement as defined in Section 186. Said agreement may
provide for the exercise of corporate powers and the management of the business
and affairs of this Corporation by the Shareholders, provided, however, such
agreement shall, to the extent and so long as the discretion or the powers of
the Board in its management of corporate affairs is controlled by such
agreement, impose upon each Shareholder who is a party thereof, liability for
managerial acts performed or omitted by such person pursuant thereto otherwise
imposed upon Directors as provided in Section 300(d); and the Directors shall be
relieved to that extent from such liability.
Section 4. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number
of Directors shall be seven (7) unless this Corporation has two (2) Shareholders
in which event the authorized number shall be two (2) or unless the number of
Shareholders of this Corporation shall be one (1), in which event the authorized
number of Shareholders shall be one (1). Provided, however, the number of
Directors may be changed by a duly adopted amendment to the Articles of
Incorporation or by an amendment to this Bylaw adopted by the vote or written
consent of holders of a majority of the outstanding shares entitled to vote, as
provided in Section 152.
Section 5. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of the Shareholders to hold office until the next
annual meeting. Each Director, including a Director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
Section 6. VACANCIES. Vacancies in the Board of Directors may be filled
by a majority of the remaining Directors, though less than a quorum, or by a
sole remaining Director, except that a vacancy created by the removal of a
Director by the vote or written consent of the Shareholders or by court order
may be filled only by the voted 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 holders of a majority of the outstanding shares entitled to
vote. Each Director so elected shall hold office until the next annual meeting
of the Shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the event of the death, resignation, or removal of any Director, or if
the Board of Directors by resolution declares vacant the office of a Director
who has been declared of unsound mind by an order of court or convicted of a
felony, or if the
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authorized number of Directors is increased, or if the shareholders fail, at any
meeting of shareholders at which any Director or Directors are elected, to elect
the number of Directors to be voted for at that meeting.
The Shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any Director may resign effective on giving written notice to the
Chairman of the Board, the President, the Secretary, or the Board of Directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a Director is effective at a future time, the
Board of Directors may elect a successor to take office when the resignation
becomes effective.
No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
Section 7. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual Director may be removed from office as provided by Sections 302, 303
and 304 of the Corporations Code of the State of California. In such case, the
remaining Board members may elect a successor Director to fill such vacancy for
the remaining unexpired term of the Director so removed.
Section 8. NOTICE, PLACE, AND MANNER OF MEETINGS. Meetings of the Board
of Directors may be called by the Chairman of the Board, or the President, or
any Vice President, or the Secretary, or any two (2) Directors and shall be held
at the principal executive office of the Corporation, unless some other place is
designated in the notice of the meeting. Members of the Board may participate in
a meeting through use of a conference telephone or similar communications
equipment so long as all members participating in such a meeting can hear one
another. Accurate minutes of any meeting of the Board or any committee thereof
shall be maintained as required by Section 1500 of the Code by the Secretary or
other Officer designated for that purpose.
Section 9. ORGANIZATION MEETINGS. The organization meetings of the
Board of Directors shall be held immediately following the adjournment of the
annual meetings of the Shareholders.
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Section 10. OTHER REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board may from time to
time determine.
If said day shall fall upon a holiday, such meetings shall be held on
the next succeeding business day thereafter. No notice need be given of such
regular meetings.
Section 11. SPECIAL MEETINGS - NOTICES - WAIVERS. Special meetings of
the Board may be called at any time by the President, Vice President, Chairman
of the Board, or Secretary, if he or she is absent or unable or refuses to act,
by any Vice President or the Secretary or by any two (2) Directors, or by one
(1) Director if only one is provided.
At least forty-eight (48) hours notice of the time and place of special
meetings shall be delivered personally to the Directors or personally
communicated to them by a corporate Officer by telephone or telegraph. If the
notice is sent to a Director by letter, it shall be addressed to him or her at
his or her address as it is shown upon the records of the Corporation, or if it
is not shown on such records or is not readily ascertainable, at the place in
which the meetings of the Directors are regularly held. In case such notice is
mailed, it shall be deposited in the United States mail, postage prepaid, in the
place in which the principal executive office of the Corporation is located at
least four (4) days prior to the time of the holding of the meeting. Such
mailing, telegraphing, telephoning, or delivery as above provided shall be due,
legal and personal notice to such Director.
When all of the Directors are present at any Directors' meetings,
however called or noticed, and either (i) sign a written consent thereto on the
records of such meeting, or, (ii) if a majority of the Directors are present and
if those not present sign a waiver of notice of such meeting or a consent to
holding the meeting or an approval of the minutes thereof, whether prior to or
after the holding of such meeting, which said waiver, consent or approval shall
be filed with the Secretary of the Corporation, or, (iii) if a Director attends
a meeting without notice but without protesting, prior thereto or at its
commencement, the lack of notice, then the transactions thereof are as valid as
if had at a meeting regularly called and noticed.
Section 12. DIRECTORS ACTION BY UNANIMOUS WRITTEN CONSENT. Any action
required or permitted to be taken by the Board of Directors may be taken without
a meeting and with the same force and effect as if taken by a unanimous vote of
Directors, if authorized by a writing signed individually or collectively by all
members of the Board. Such consent shall be filed with the regular minutes of
the Board.
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Section 13. QUORUM. A majority of the number of Directors as fixed by
the Articles of Incorporation or By-Laws shall be necessary to constitute a
quorum for the transaction of business, and the action of a majority of the
Directors present at any meeting at which there is a quorum, when duly
assembled, is valid as a corporate act; provided that a minority of the
Directors, in the absence of a quorum, may adjourn from time to time, but may
not transact any business. A meeting at which a quorum is initially present may
continue to transact business, notwithstanding the withdrawal of Directors, if
any, action taken is approved by a majority of the required quorum for such
meeting.
Section 14. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding and adjourned meeting need not be given to absent Directors if the time
and place be fixed at the meeting adjourned and held within twenty-four (24)
hours, but if adjourned more than twenty-four (24) hours, notice shall be given
to all Directors not present at the time of adjournment.
Section 15. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but by resolution of the Board a
fixed sum and expense of attendance, if any, may be allowed for attendance at
each regular and special meeting of the Board; provided that nothing herein
contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 16. COMMITTEES. Committees of the Board may be appointed by
resolution passed by a majority of the whole Board. Committees shall be composed
of two (2) or more members of the Board, and shall have such powers of the Board
as may be expressly delegated to it by resolution of the Board of Directors,
except those powers expressly made non-delegable by Sec. 311.
Section 17. ADVISORY DIRECTORS. The Board of Directors from time to
time may elect one or more persons to be Advisory Directors who shall not by
such appointment be members of the Board of Directors. Advisory Directors shall
be available from time to time to perform special assignments specified by the
President, to attend meetings of the Board of Directors upon invitation and to
furnish consultation to the Board. The period during which the title shall be
held may be prescribed by the Board of Directors. If no period is prescribed,
the title shall be held at the pleasure of the Board.
Section 18. RESIGNATIONS . Any Director may resign effective upon
giving written notice to the Chairman of the Board, the President, the Secretary
or the Board of Directors of the Corporation, unless the notice specifies a
later time for the effectiveness of such resignation. If the resignation is
effective at a future
5
time, a successor may be elected to take office when the resignation becomes
effective.
ARTICLE III
OFFICERS
Section 1. OFFICERS. The Officers of the Corporation shall be a
President, Vice President(s), 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 III.
Any number of offices may be held by the same person.
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 office until he or she shall resign or shall be removed or
otherwise disqualified to serve, or a successor shall be elected and qualified.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may
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 OF OFFICERS. Subject to the rights,
if any, of an Officer under any contract of employment, any Officer may be
removed, either with or without cause, by the Board of Directors, at any regular
or special meeting of the Board, 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.
Any Officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the Officer is a
party.
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 that office.
6
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned by the Board of Directors or prescribed by the Bylaws. If
there is no President, the Chairman of the Board shall in addition be the Chief
Executive Officer of the Corporation and shall have the powers and duties
prescribed in Section 7 of this Article III.
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 or she 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. The President 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, if any, 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 all the powers of, and be subject to, all the restrictions upon the
President. The Vice President 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 keep, or cause to be kept, a
book of minutes at the principal office or such other place as the Board of
Directors may order, of 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 office
or at the office of the Corporation's transfer agent, a share register, or
duplicate share register, showing the names of the Shareholders and their
addresses; the number of classes of shares held by each; the number and date of
certificates issued for the
7
same; and the number and date of cancellation of every certificate surrendered
for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the Shareholders and of the Board of Directors required by the
Bylaws, or by law to be given. He or she shall keep the seal of the Corporation
in safe custody, and shall have such other power and perform such other duties
as may be prescribed by the Board of Directors or the Bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained in accordance with
generally accepted accounting principles, adequate and correct accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
earnings (or surplus) and shares. The books of account shall at all reasonable
times be open to inspection by any Director.
This Officer shall deposit all monies and other valuables in the name
and to the credit of the Corporation with such depositaries as may be designated
by the Board of Directors. He or she 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 or her
transactions and of the financial condition of the Corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors or the Bylaws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
Section 1. PLACE OF MEETINGS. All meetings of the Shareholders shall be
held at the principal executive office of the Corporation unless some other
appropriate and convenient location be designated for that purpose from time to
time by the Board of Directors.
Section 2. ANNUAL MEETINGS. The annual meetings of the Shareholders
shall be held, each year, at such time and place as shall be designated from
time to time by the Board of Directors.
At the annual meeting, the Shareholders shall elect a Board of
Directors, consider reports of the affairs of the Corporation, and transact such
other business as may be properly be brought before the meeting.
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Section 3. SPECIAL MEETINGS. Special meetings of the Shareholders may
be called at any time by the Board of Directors, the Chairman of the Board, the
President, a Vice President, the Secretary, or by one or more Shareholders
holding not less than one-tenth (1/10) of the voting power of the Corporation.
Except as next provided, notice shall be given as for the annual meeting.
Upon receipt of a written request addressed to the Chairman, President,
Vice President, or Secretary, mailed or delivered personally to such Officer by
any person (other than the Board) entitled to call a special meeting of
Shareholders, such Officer shall cause notice to be given, to the Shareholders
entitled to vote, that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than thirty-five (35) nor more than
sixty (60) days after receipt of such request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling the
meeting may give notice thereof in the manner provided by these Bylaws or apply
to the Superior Court as provided in Section 305(c).
Section 4. NOTICE OF MEETINGS - REPORTS. Notice of meetings, annual or
special, shall be given in writing not less than ten (10) nor more than sixty
(60) days before the date of the meeting to Shareholders entitled to vote
thereat. Such notice shall be given by the Secretary or the Assistant Secretary,
or if there be no such Officer, or in the case of his or her neglect or refusal,
by any Director or Shareholder.
Such notices or any reports shall be given personally or by mail or
other means of written communication as provided in Section 601 of the Code and
shall be sent to the Shareholder's address appearing on the books of the
corporation, or supplied by him or her to the Corporation for the purpose of
notice, and in the absence thereof, as provided in Section 601 of the Code.
Notice of any meeting of Shareholders shall specify the place, the day,
and the hour of meeting, and (1) in case of a special meeting, the general
nature of the business to be transacted and no other business may be transacted,
or (2) in the case of an annual meeting, those matters which the Board at date
of mailing, intends to present for action by the Shareholders. At any meetings
where Directors are to be elected, notice shall include the names of the
nominees, if any, intended at date of notice to be presented by management for
election.
If a Shareholder supplies no address, notice shall be deemed to have
been given if mailed to the place where the principal executive office of the
Corporation in California is situated, or published at least once in some
newspaper of general circulation in the County of said principal office.
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Notice shall be deemed given at the time it is delivered personally or
deposited in the mail or sent by other means of written communication.
When a meeting is adjourned for forty-five (45) days or more, notice of
the adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, it shall not be necessary to give any notice of adjournment or of the
business to be transacted at an adjourned meeting other than by announcement at
the meeting at which such adjournment is taken.
Section 5. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of Shareholders, however called and noticed, shall
be 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 Shareholders entitled to vote, not present in person or
by proxy, sign 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 shall constitute a waiver of notice, unless
objection shall be made as provided in Section 601(e).
Section 6. OTHER ACTIONS WITHOUT A MEETING. Unless otherwise provided
in the California Corporations Code or the Articles, any action which may be
taken at any annual or special meeting of Shareholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
action so taken, signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Unless the consents of all Shareholders entitled to vote have been
solicited in writing,
(1) Notice of any Shareholder approval pursuant to Sections
310, 317, 1201 or 2007 without a meeting by less than unanimous
written consent shall be given at least ten (10) days before the
consummation of the action authorized by such approval, and
(2) 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 each of those
Shareholders entitled to vote who have not consented in writing.
Any Shareholder giving a written consent, or the Shareholder's
proxyholders, or a transferee of the shares of a personal representative of the
Shareholder or their
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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 7. QUORUM. The holders of a majority of the shares entitled to
vote thereat, present in person, or represented by proxy, shall constitute a
quorum at all meetings of the Shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation, or these
Bylaws. If, however, such majority shall not be present or represented at any
meeting of the Shareholders, the Shareholders entitled to vote thereat, present
in person, or by proxy, shall have the power to adjourn the meeting from time to
time, until the requisite amount of voting shares shall be present. At such
adjourned meeting at which the requisite amount of voting shares shall be
represented, any business may be transacted which might have been transacted at
a meeting as originally notified.
If a quorum be initially present, the Shareholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum, if any action taken is approved by a
majority of the Shareholders required to initially constitute a quorum.
Section 8. VOTING. Only persons in whose names shares entitled to vote
stand on the stock records of the Corporation on the day of any meeting of
Shareholders, unless some other day be fixed by the Board of Directors for the
determination of Shareholders of records, and then on such other day, shall be
entitled to vote at such meeting.
Provided the candidate's name has been placed in nomination prior to
the voting and one or more Shareholder has given notice to the meeting prior to
the voting, of the Shareholder's intent to cumulate the Shareholder's votes,
every Shareholder entitled to vote at any election for Directors of any
Corporation for profit may cumulate their 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 or her Shares are entitled, or distribute his or her votes
on the same principle among as many candidates as he or she thinks fit. If the
Corporation becomes a listed Corporation as defined in Section 301.5(a) of the
California Corporations Code, the Corporation may, by amendment of its Articles
or these Bylaws, eliminate cumulative voting.
The candidates receiving the highest number of votes up to the number
of Directors to be elected are elected.
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The Board of Directors may fix a time in the future not exceeding sixty
(60) days preceding the date of any meeting of Shareholders or the date fixed
for the payment of any dividend or distribution, or for the allotment of rights,
or when any change or conversion or exchange of shares shall go into effect, as
a record date for the determination of the Shareholders entitled to notice of
and to vote at any such meeting, or entitled to receive any such dividend or
distribution, or any allotment of rights, or to exercise the rights in respect
to any such change, conversion or exchange of shares. In such case only
Shareholders of record on the date so fixed shall be entitled to notice of and
to vote at such meeting, or to receive such dividends, distribution, or
allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any share on the books of the Corporation after
any record date fixed as aforesaid. The Board of Directors may close the books
of the Corporation against transfers of shares during the whole or any part of
such period.
Section 9. PROXIES. Every Shareholder entitled to vote, or to execute
consents, may do so, either in person or by written proxy, executed in
accordance with the provisions of Sections 604 and 705 of the Code and filed
with the Secretary of the Corporation.
Section 10. ORGANIZATION. The President, or in the absence of the
President, any Vice President, shall call the meeting of the Shareholders to
order, and shall act as Chairman of the meeting. In the absence of the President
and all of the Vice Presidents, Shareholders shall appoint a Chairman for such
meeting. The Secretary of the Corporation shall act as Secretary of all meetings
of the Shareholders, but in the absence of the Secretary at any meeting of the
Shareholders, the presiding Officer may appoint any person to act as Secretary
of the meeting.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
Shareholders the Board of Directors may, if they so elect, appoint inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election be not so appointed, or if any persons so appointed fail to appear or
refuse to act, the Chairman of any such meeting may, and on the request of any
Shareholder or his or her proxy shall make such appointment at the meeting, in
which case the number of inspectors shall be either one (1) or three (3) as
determined by a majority of the Shareholders represented at the meeting.
Section 12. (A) SHAREHOLDERS' AGREEMENTS. Notwithstanding the above
provisions, in the event this Corporation elects to become a close corporation,
an agreement between two (2) or more Shareholders thereof, if in writing and
signed by the parties thereof, may provide that in exercising any voting rights
the shares held by them shall be voted as provided therein in Section 706,
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and may otherwise modify these provisions as to Shareholders' meetings and
actions.
(B) EFFECT OF SHAREHOLDERS' AGREEMENTS. Any Shareholders'
Agreement authorized by Section 300(b) shall only be effective to modify the
terms of these Bylaws if this Corporation elects to become a close corporation
with appropriate filing of or amendment to its Articles as required by Section
202 and shall terminate when this Corporation ceases to be a close corporation.
Such an agreement cannot waive or alter Sections 158 (defining close
corporations), 202 (requirements of Articles of Incorporation), 500 and 501
(relative to distributions), 111 (merger), 1201(e) (reorganization), or Chapters
15 (Records and Reports), 16 (Rights of Inspection), 18 (Involuntary
Dissolution), or 22 (Crimes and Penalties). Any other provisions of the Code or
these Bylaws may be altered or waived thereby, but to the extent they are not so
altered or waived, these Bylaws shall be applicable.
ARTICLE V
CERTIFICATES AND TRANSFER OF SHARES
Section 1. CERTIFICATES FOR SHARES. Certificates for shares shall be of
such form and device as the Board of Directors may designate and shall state the
name of the record holder of the shares represented thereby; its number; date of
issuance; the number of shares for which it is issued; a statement of the
rights, privileges, preferences, and restrictions, if any; a statement as to the
redemption or conversion; if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
All certificates shall be signed in the name of the Corporation by the
Chairman of the Board or Vice Chairman of the Board or the President or Vice
President and by the Chief Financial Officer or an Assistant Treasurer or the
Secretary or any Assistant Secretary, certifying the number of shares and the
class or series of shares owned by the Shareholder.
Any or all of the signatures on the certificate may be facsimile. In
case an Officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall have ceased to be that Officer,
transfer agent, or registrar before that certificate is issued, it may be issued
by the Corporation with the same effect as if that person were an Officer,
transfer agent, or registrar at the date of issue.
Section 2. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or
transfer agent of the Corporation of a certificate for shares duly endorsed or
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accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact and shall, if the Directors so require, give the
Corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the Board, in at least double the value of the stock represented
by said certificate, whereupon a new certificate may be issued in the same tenor
and for the same number of shares as the one alleged to be lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company, either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the Corporation may necessitate and the Board of Directors may
designate.
Section 5. CLOSING STOCK TRANSFER BOOKS - RECORD DATE. In order that
the Corporation may determine the Shareholders entitled to notice of any meeting
or to vote or entitled to receive payment of any dividend or other distribution
or allotment of any rights or entitled to exercise any rights in respect of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days prior to the date of
such meeting nor more than sixty (60) days prior to any other action.
If no record date is fixed, the record date for determining
Shareholders entitled to notice of or to vote at a meeting of Shareholders shall
be at the close of business on the business day next preceding the day on which
notice is given, or if the notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held. The record
date for determining Shareholders entitled to give consent to corporate action
in writing without a meeting when no prior action by the Board is necessary,
shall be the day on which the first written consent is given.
The record date for determining Shareholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto, or the sixtieth (60th) day prior to the date of
such other action, whichever is later.
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Section 6. LEGEND CONDITION. In the event any shares of this
Corporation are issued pursuant to a permit or exemption therefrom requiring the
imposition of a legend condition, the person or persons issuing or transferring
said shares shall make sure said legend appears on the certificate and on the
stub relating thereto in the stock record book and shall not be required to
transfer any shares free of such legend unless an amendment to such permit or a
new permit be first issued so authorizing such a deletion.
Section 7. CLOSE CORPORATION CERTIFICATES. All certificates
representing shares of this Corporation, in the event it shall elect to become a
close corporation, shall contain the legend required by Section 418 (c).
ARTICLE VI
RECORDS - REPORTS - INSPECTION
Section 1. RECORDS. The Corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books,
and records of its business and properties. All of such books, records, and
accounts shall be kept at its principal executive office in the State of
California, as fixed by the Board of Directors from time to time.
Section 2. INSPECTION OF BOOKS AND RECORDS. All books and records
provided for in Section 1500 shall be open to inspection of the Directors and
Shareholders from time to time and in the manner provided in Sections 1600-1602.
Section 3. CERTIFICATION AND INSPECTION OF BYLAWS. The original or a
copy of these Bylaws, as amended or otherwise altered to date, certified by the
Secretary, shall be kept at the Corporation's principal executive office and
shall be open to inspection by the Shareholders of the Corporation at all
reasonable times during office hours, as provided in Section 213 of the
Corporations Code.
Section 4. 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 shall be determined from time to time by
resolution of the Board of Directors.
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. Such authority may be general
or confined to specific instances. Unless so authorized by the Board of
Directors, no Officer,
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agent or employee shall have any power or authority to bind the Corporation by
any contract or agreement, or to pledge its credit, or to render it liable for
any purpose or to any amount, except as provided in Section 313 of the
Corporations Code.
ARTICLE VII
ANNUAL REPORTS
Section 1. REPORT TO SHAREHOLDERS, DUE DATE. The Board of Directors
shall cause an annual report to be sent to the Shareholders not later than one
hundred twenty (120) days after the close of the fiscal or calendar year adopted
by the Corporation. This report shall be sent at least fifteen (15) days before
the annual meeting of Shareholders to be held during the next fiscal year and in
the manner specified in Section 4 of Article IV of these Bylaws for giving
notice to Shareholders of the Corporation. The annual report shall contain a
balance sheet as of the end of the fiscal year and an income statement and
statement of changes in financial position for the fiscal year, accompanied by
any report of independent accountants or, if there is no such report, the
certificate of an authorized Officer of the Corporation that the statements were
prepared without audit from the books and records of the Corporation.
Section 2. WAIVER. The annual report to Shareholders referred to in
Section 1501 of the California General Corporation Law is expressly dispensed
with so long as this Corporation shall have less than one hundred (100)
Shareholders. However, nothing herein shall be interpreted as prohibiting the
Board of Directors from issuing annual or other periodic reports to the
Shareholders of the Corporation as they consider appropriate.
ARTICLE VIII
AMENDMENT TO BYLAWS
Section 1. AMENDMENT BY SHAREHOLDERS. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the Articles of Incorporation of the Corporation set forth the
number of authorized Directors of the Corporation, the authorized number of
Directors may be changed only by an amendment of the Articles of Incorporation.
Section 2. POWERS OF DIRECTORS. Subject to the right of the
Shareholders to adopt, amend, or repeal Bylaws, as provided in Section 1of this
Article VIII, and the limitations of Section 204(a)(5) and Section 212, the
Board of Directors may adopt, amend, or repeal any of these Bylaws, other than a
Bylaw or amendment thereof changing the authorized number of Directors.
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Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new Bylaw is
adopted, it shall be copied in the book of Bylaws with the original Bylaws, in
the appropriate place. If any Bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written consent was filed
shall be stated in said book.
ARTICLE IX
INDEMNIFICATION
Section 1. INDEMNIFICATION.
(a) The 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
or proceeding, whether civil, criminal, administrative or investigative
(collectively "Proceeding") (other than an action by or in the right of the
Corporation to procure a judgment in its favor) by reason of the fact that the
person is or was an Agent (as defined in Section 6 of this Article IX) of the
Corporation, against expenses, judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with the Proceeding if that
person acted in good faith and in a manner the 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 the 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 the
Corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that the
person is or was an Agent of the Corporation, against expenses actually and
reasonably incurred by that person in connection with the defense or settlement
of the action if the person acted in good faith, in a manner the person believed
to be in the best interests of the Corporation and its shareholders; provided,
however, that no indemnification shall be made under this paragraph (b) for any
of the following: (1) in respect of any claim, issue or matter as to which the
person shall have been adjudged to be liable to the Corporation in the
performance of that person's duty to the Corporation and its shareholders,
unless and only to the extent that the court in which the Proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, the 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
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action without court approval; and (3) of expenses incurred in defending a
pending action which is settled or otherwise disposed of without court approval.
(c) To the extent that an Agent of the Corporation has been successful
on the merits in defense of any Proceeding referred to in paragraphs (a) or (b)
of Section 1 of this Article IX or in defense of any claim, issue, or matter
therein, the Agent shall be indemnified against expenses actually and reasonably
incurred by the Agent in connection therewith.
Section 2. AUTHORIZATION. Except as provided in paragraph (c) of
Section 1 of this Article IX, any indemnification hereunder shall be made by the
Corporation only if authorized in the specific case, upon a determination that
indemnification of the Agent is proper in the circumstances because the Agent
has met the applicable standard of conduct set forth in paragraph (b) or (c) of
Section 1 of this Article IX, by any of the following: (1) A majority vote of a
quorum consisting of directors who are not parties to such Proceeding; (2) if
such a quorum of directors is not obtainable, by independent legal counsel in a
written opinion; and (3) approval of the shareholders, with the shares owned by
the person to be indemnified not being entitled to vote thereon; or (4) the
court in which the Proceeding is or was pending upon application made by the
Corporation or the Agent or the attorney or other person rendering services in
connection with the defense, whether or not the application by the Agent,
attorney or other person is opposed by the Corporation.
Section 3. ADVANCEMENT OF EXPENSES. Expenses incurred in defending any
Proceeding may be advanced by the Corporation prior to the final disposition of
the Proceeding upon receipt of an undertaking by or on behalf of the Agent to
repay that amount if it shall be determined ultimately that the Agent is not
entitled to be indemnified as authorized in this Section 3 of this Article IX.
Section 4. INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any Agent of the Corporation against any
liability asserted against or incurred by the Agent in that capacity or arising
out of the Agent's status as such whether or not the Corporation would have the
power to indemnify the Agent against that liability under this Section 4 of this
Article IX.
Section 5. GENERAL AGREEMENT TO INDEMNIFY. The Corporation shall
otherwise indemnify the officers and directors of the Corporation to the fullest
extent permissible under California law.
Section 6. AGENT. 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
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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 the predecessor corporation.
ARTICLE X
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the Corporation, the date of its incorporation, and the word
"California".
ARTICLE XI
MISCELLANEOUS
Section 1. REFERENCES TO CODE SECTIONS. "Section" references herein
refer to the equivalent Sections of the General Corporation Law effective
January 1, 1977, as amended.
Section 2. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of
other corporations standing in the name of this Corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
Corporation by the Chairman of the Board, the President, or any Vice President,
and the Secretary or Assistant Secretary.
Section 3. SUBSIDIARY CORPORATIONS. Shares of this Corporation owned by
a subsidiary shall not be entitled to vote on any matter. A subsidiary for these
purposes is defined as a corporation, the shares of which possessing more than
25% of the total combined total voting power of all classes of shares entitled
to vote, are owned directly or indirectly through one (1) or more subsidiaries.
Section 4. ACCOUNTING YEAR. The accounting year of the Corporation
shall be fixed by resolution of the Board of Directors.
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