Exhibit 3.11
BYLAWS
OF
HERBALIFE PRODUCTS, INC.
INDEX
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<Caption>
<Table>
Page
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ARTICLE I - Offices 1
Section 1. Principal Office 1
Section 2. Other Offices 1
ARTICLE II - Meetings of Shareholders 1
Section 1. Place of Meetings 1
Section 2. Annual Meeting 1
Section 3. Special Meetings 2
Section 4. Notice of Shareholders' Meetings 2
Section 5. Manner of Giving Notice; Affidavit of Notice 3
Section 6. Quorum 3
Section 7. Adjourned Meeting and Notice Thereof 4
Section 8. Voting 4
Section 9. Record Date 6
Section 10. Waiver of Notice or Consent of Absentees 7
Section 11. Shareholder Action by Written Consent Without a Meeting 8
Section 12. Proxies 9
Section 13. Inspectors of Election 9
ARTICLES III - Directors 10
Section 1. Powers 10
Section 2. Number and Qualification of Directors 10
Section 3. Election and Term of Office 11
Section 4. Removal 11
Section 5. Vacancies 12
Section 6. Place of Meeting 12
Section 7. Regular Meetings 13
Section 8. Special Meetings 13
Section 9. Quorum 13
Section 10. Participation in Meetings by Conference Telephone 14
Section 11. Waiver of Notice 14
Section 12. Adjournment 14
Section 13. Fees and Compensation 14
Section 14. Action Without Meeting 14
Section 15. Rights of Inspection 14
Section 16. Committees 15
</Table>
i
Page
ARTICLE IV - Officers 15
Section 1. Officers 15
Section 2. Election 16
Section 3. Subordinate Officers 16
Section 4. Removal and Resignation 16
Section 5. Vacancies 16
Section 6. Chairman of the Board 16
Section 7. President 17
Section 8. Vice Presidents 17
Section 9. Secretary 17
Section 10. Chief Financial Officer 18
ARTICLE V - Other Provisions 18
Section 1. Inspection of Bylaws 18
Section 2. Endorsement of Documents; Contracts 18
Section 3. Certificates of Stock 18
Section 4. Representation of Shares of Other Corporations 19
Section 5. Stock Purchase Plans 19
Section 6. Annual Report to Shareholders 20
Section 7. Construction and Definitions 20
ARTICLE VI - Indemnification 20
Section 1. Definitions 20
Section 2. Indemnification in Actions by Third Parties 20
Section 3. Indemnification in Actions by or in the
Right of the Corporation 21
Section 4. Indemnification Against Expenses 22
Section 5. Required Determinations 22
Section 6. Advance of Expenses 22
Section 7. Other Indemnification 22
Section 8. Forms of Indemnification not Permitted 22
Section 9. Insurance 23
Section 10. Nonapplicability to Fiduciaries of
Employee Benefit Plans 23
ARTICLE VII - Emergency Provisions 23
Section 1. General 23
Section 2. Unavailable Directors 24
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Page
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Section 3. Authorized Number of Directors 24
Section 4. Quorum 24
Section 5. Creation of Emergency Committee 24
Section 6. Constitution of Emergency Committee 24
Section 7. Powers of Emergency Committee 25
Section 8. Directors Becoming Available 25
Section 9. Election of Board of Directors 25
Section 10. Termination of Emergency Committee 25
ARTICLE VIII - Amendments 25
Section 1. Amendment by Shareholders 25
Section 2. Amendment by Directors 26
</Table>
iii
BYLAWS
Bylaws For The Regulation, Except
As Otherwise Provided By Statute Or
Its Articles of Incorporation Of
HERBALIFE PRODUCTS, INC.
a California corporation
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the corporation is
hereby fixed and located at 1800 Century Park East, Los Angeles, California
90067.
The Board of Directors (herein called the "Board") is hereby granted full
power and authority to change said principal office from one location to
another. Any such change shall be noted on the Bylaws opposite this Section, or
this Section may be amended to state the new location.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any time
be established by the Board at any place or places.
ARTICLE II
SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held
at the principal office of the corporation, or at any other place within or
without the State of California which may be designed either by the Board or by
the written consent of all persons entitled to vote thereat, given either
before or after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders
shall be held on March 30, 10:00 a.m., local time, or such other date or such
other time as may be fixed by the Board; provided, however, that should said day
fall upon a Saturday, Sunday, or legal holiday observed by the corporation at
its principal office, then any such annual meeting of shareholders shall be held
at the same time and place on the next day thereafter ensuing which is a full
business day. If the annual meeting shall not be held on the date above
specified, the Board of Directors shall cause a meeting in lieu thereof to
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be held as soon thereafter as convenient, and, in any case, not later than
sixty (60) days after the date designated above, and any business transacted or
election held at such meeting shall be valid as if transacted or held at the
annual meeting. At such meetings directors shall be elected and any other
proper business may be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by the Board, the Chairman of the Board, the President, or
by the holders of shares entitled to cast not less than ten percent (10%) of
the votes at such meeting. Upon request in writing to the Chairman of the
board, the President, any Vice President or the Secretary by any person (other
than the Board) entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to the shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after receipt of the request, the persons entitled to call the
meeting may give the notice.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be given in accordance with Section 5 of this Article II not
less than ten (10) (or, if sent by third class mail, thirty (30)) nor more than
sixty (60) days before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of a special meeting,
the general nature of the business to be transacted, or (ii) in the case of the
annual meeting, those matters which the Board, at the time of giving the
notice, intends to present for action by the shareholders. The notice of any
meeting at which directors are to be elected shall include the name of any
nominee or nominees intended at the time of the notice to be presented by the
Board for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the California Corporations Code, (ii) an
amendment of the Articles of Incorporation, pursuant to Section 902 of that
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of that Code, or (v) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, pursuant to Section
2007 of that Code, the notice shall also state the general nature of that
proposal.
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Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of shareholders shall be given either personally or by first-class mail
or telegraphic or other written communication, charges prepaid, addressed to a
shareholder entitled to vote at the meeting at the address of that shareholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have been given if
sent to that shareholder by first-class mail or telegraphic or other written
communication to the corporation's principal office, or if published at least
once in a newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices or reports shall be deemed to have been
duly given without further mailing if these shall be available to the
shareholder on written demand of the shareholder at the principal office of the
corporation for a period of one year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, Assistant Secretary,
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation.
Section 6. QUORUM. A majority of the shares entitled to vote, represented
in person or by proxy, shall constitute a quorum at any meeting of
shareholders. The affirmative vote of a majority of the shares represented and
voting at a duly called meeting at which a quorum is present (which shares
voting affirmatively also constitute at least a majority of the required
quorum) shall be the act of the shareholders, unless the vote of a greater
number or voting by classes is required herein. 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.
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Section 7. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either
present in person or represented by proxy thereat, but in the absence of a
quorum (except as provided in Section 6 of this Article) no other business may
be transacted at such meeting.
It shall not be necessary to give any notice of the time and place of the
adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken; provided,
however, when any shareholders' meeting is adjourned for more than forty-five
(45) days 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.
Section 8. VOTING. The shareholders entitled to notice of any meeting
or to vote at any such meeting shall be only persons in whose name shares stand
on the stock records of the corporation on the record date determined in
accordance with Section 9 of this Article.
Voting shall in all cases be subject to the provisions of Chapter 7 of the
California Corporations Code and to the following provisions:
(a) Subject to clause (g), shares held by an administrator, executor,
guardian, conservator or custodian may be voted by such holder either in person
or by proxy, without a transfer of such shares into the holder's name; and
shares standing in the name of a trustee may be voted by the trustee, either in
person or by proxy, but no trustee shall be entitled to vote shares held by such
trustee without a transfer of such shares into the trustee's name.
(b) Shares standing in the name of a receiver may be voted by such
receiver; and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into the receiver's name if authority
to do so is contained in the order of the court by which such California General
Corporation Law receiver was appointed.
(c) Subject to the provisions of Section 705 of the California
Corporations Code, and except where otherwise agreed in writing between the
parties, a shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
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(d) Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident thereto as exercisable by the minor,
in person or by proxy, whether or not the corporation has notice, actual or
constructive, of the nonage, unless a guardian of the minor's property has been
appointed and written notice of such appointment given to the corporation.
(e) Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder as the bylaws of
such other corporation may prescribe or, in the absence of such provision, as
the Board of Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president or any
vice president of such other corporation, or by any other person authorized to
do so by the board, president or any vice president of such other corporation.
Shares which are purported to be voted or any proxy purported to be executed in
the name of a corporation (whether or not any title of the person signing is
indicated) shall be presumed to be voted or the proxy executed in accordance
with the provisions of Chapter 7 of the California Corporations Code, unless
the contrary is shown.
(f) Shares of the corporation owned by any subsidiary shall not be
entitled to vote on any matter.
(g) Shares held by the corporation in a fiduciary capacity, and shares of
the corporation held in a fiduciary capacity by any subsidiary, shall not be
entitled to vote on any matter, except to the extent that the settlor or
beneficial owner possesses and exercises a right to vote or to give the
corporation binding instructions as to how to vote such shares.
(h) If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, husband and wife as community property, tenants by the entirety, voting
trustees, persons entitled to vote under a shareholder voting agreement or
otherwise, or if two or more persons (including proxy-holders) have the same
fiduciary relationship respecting the same shares, unless the Secretary of the
corporation is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(i) If only one votes, such act binds all;
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(ii) If more than one vote, the act of the majority so voting binds
all;
(iii) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in
question proportionately.
If the instrument so filed or the registration of the shares shows that any
such tenancy is held in unequal interests, a majority or even split for the
purpose of this section shall be a majority or even split in interest.
Subject to the following sentence and to the provisions of Section 708 of
the California Corporations Code, every shareholder entitled to vote at any
election of directors may cumulate such shareholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the shareholder's shares are normally
entitled, or distribute the shareholder's votes on the same principle among as
many candidates as the shareholder thinks fit. No shareholder shall be entitled
to cumulate votes (i.e., cast for any candidate a number of votes greater than
the number of votes which such shareholder normally is entitled to cast) for any
candidate or candidates pursuant to the preceding sentence unless such candidate
or candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination.
Elections need not be by ballot; provided however, that all elections for
directors must be by ballot upon demand made by a shareholder at the meeting
and before the voting begins.
In any election of directors, the candidates receiving the highest number
of affirmative votes of the shares entitled to be voted for them up to the
number of directors to be elected by such shares are elected; votes against the
director and votes withheld shall have no legal effect.
Section 9. RECORD DATE. The Board may fix, in advance, a record date for
the determination of the shareholders entitled to notice of any meeting or to
vote or entitled to receive payment of any dividend or other distribution, or
any allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than sixty (60) nor less
than ten (10) days prior to the date of the meeting nor more than sixty (60)
days prior to any other action.
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When a record date is so fixed, only shareholders of record at the close of
business on that date are entitled to notice of and to vote at the meeting or
to receive the dividend, distribution, or allotment of rights, or to exercise
of the rights, as the case may be, notwithstanding any transfer of shares on
the books of the corporation after the record date. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the Board
fixes a new record date for the adjourned meeting. The Board shall fix a new
record date if the meeting is adjourned for more than forty-five (45) days from
the date set for the original meeting.
If no record date is fixed by the Board, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held. The record
date for determining shareholders for any purpose other than set forth in this
Section 9 or Section 11 of this Article shall be at the close of business on
the day on which the Board adopts the resolution relating thereto, or the
sixtieth day prior to the date of such other action, whichever is later.
Section 10. WAIVER OF NOTICE OR CONSENT OF ABSENTEES. The transactions of
any meeting of shareholders, either annual or special, however called and
noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, who was not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of the meeting or an approval of the
minutes thereof. All such waivers, consents, or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Attendance
of a person at a meeting shall constitute a waiver of notice of and presence at
such meeting, except when the person objects, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully
convened. Attendance at a meeting is not a waiver of any right to object to the
consideration of those certain matters required to be included in the notice by
Section 4 of this Article II but not so included, if such objection is
expressly made at the meeting. Neither the business to be transacted at nor the
purpose of any regular or special meeting of shareholders need be specified in
any written waiver of notice, consent to the holding of the meeting or approval
of the minutes thereof, except that if action is taken or proposed to be taken
for
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approval of any of those matters specified in the second paragraph of Section 4
of this Article II, the waiver of notice or consent shall state the general
nature of the proposal.
Section 11. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. 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, is signed by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote on that action were present and voted. In the case of election of
directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of directors; provided,
however, that a director may be elected at any time to fill a vacancy on the
Board that has not been filled by the directors, by the written consent of the
holders of a majority of the outstanding shares entitled to vote for the
election of directors. All such consents shall be filed with the Secretary and
shall be maintained in the corporate records. 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 Secretary prior to the time that
written consents of the number of shares required to authorize the proposed
action have been filed with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 5 of this Article
II. In the case of approval of (i) contracts or transactions in which a director
has a direct or indirect financial interest, pursuant to Section 310 of the
California Corporations Code, (ii) indemnification of agents of the corporation,
pursuant to Section 317 of that Code, (iii) a reorganization of the corporation,
pursuant to Section 1201 of that Code, or (iv) a distribution in dissolution
other than in accordance with the rights of outstanding preferred shares,
pursuant to Section 2007 of that Code, the notice shall be given at least ten
(10) days before the consummation of any action authorized by that approval.
Unless a record date for voting purposes be fixed as provided in Section 9 of
this Article II, the record date for determining shareholders entitled to give
consent pursuant to this Section 11 when no prior action by the Board has been
taken, shall be on the day on which the first written consent is given.
Section 12. PROXIES. Every person entitled to vote shares has the right
to do so either in person or by one or more persons authorized by a written
proxy executed by such shareholder and filed with the Secretary. Any proxy duly
executed is not revoked and continues in full force and effect until revoked by
the person executing it prior to the vote pursuant thereto by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting, or, as to any meeting, by attendance at such meeting and voting
in person by the person executing the proxy; provided, however, that no proxy
shall be valid after the expiration of 11 months from the date of its execution
unless otherwise provided in the proxy. The revocability of a proxy that states
on its face that it is irrevocable shall be governed by the provisions of
Sections 705(e) and 705(f) of the Corporations Code of California.
Section 13. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at 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 shareholder's 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 shall be appointed.
The duties of such inspectors shall be as prescribed by Section 707(b) of
the California Corporations Code and shall include: determining the number of
shares outstanding and the voting power of each; determining the number of
shares represented at the meeting and the existence of a quorum; determining
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 of
any vote; and doing such acts as may be proper to conduct the election or vote
with fairness to all shareholders. If there are three inspectors of election,
the decision, act, or certificate of a majority is effective in all respects as
decision, act, or certificate of all.
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ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the Articles of
Incorporation, of these Bylaws, and of the California Corporations Code
relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the Board. The Board may delegate the management of the day-to-day operation
of the business of the corporation to a management company or other person
provided that the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised under the ultimate direction of the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board shall have the
following powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove all the other officers, agents, and employees of
the corporation, prescribe the powers and duties for them as may not be
inconsistent with law, or with the Articles of Incorporation or these Bylaws,
fix their compensation, and require from them security for faithful service.
(b) 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 these Bylaws, as they may
deem best.
(c) 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.
(d) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms and for such consideration as may be lawful.
(e) 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.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of
directors of the corporation shall be
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one (1), until changed by a Bylaw amending this Section 2, duly adopted by the
Board or by the shareholders.
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. Each director shall hold
office until the next annual meeting and until a successor has been elected and
qualified.
Section 4. REMOVAL. The Board may declare vacant the office of a director
who has been declared of unsound mind by an order of court or who has been
convicted of a felony.
Any or all of the directors may be removed without cause if such removal is
approved by the outstanding shares, as that term is defined in Section 152 of
the California Corporations Code, subject to the following:
(a) No director may be removed (unless the entire Board is removed)
when the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast (or, if such action
is taken by written consent, all shares entitled to vote were voted) and the
entire number of directors authorized at the time of the director's most recent
election were then being elected; and
(b) When by the provisions of the Articles of Incorporation the
holders of the shares of any class or series, voting as a class or series, are
entitled to elect one or more directors, any director so selected may be
removed only by the applicable vote of the holders of the shares of that class
or series.
Any reduction of the authorized number of directors does not, by itself,
remove any director prior to the expiration of such director's term of office.
Section 5. VACANCIES. Any director may resign effective upon giving
written notice to the Chairman of the Board, the President, Secretary, or the
Board, unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Vacancies on the Board, including those existing as a result of a removal
of a director, may be filled by a majority of the remaining directors, though
less than a quorum, or by a
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sole remaining director, and each director so elected shall hold office until
the next annual meeting and until such director's successor has been elected
and qualified.
A vacancy or vacancies on the Board shall be deemed to exist in case of the
death, resignation, or removal of any director, or 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 total authorized number of directors to be voted for at that meeting.
The Board may declare vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony.
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, other than to fill a vacancy created by removal, requires the consent
of a majority of the outstanding shares entitled to vote. If the board 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 the director's term of
office.
Section 6. PLACE OF MEETING. Regular or special meetings of the
Board may be held at any place within or without the State of California which
has been designated from time to time by the Board. In the absence of such
designation, regular meetings shall be held at the principal office of the
corporation.
Section 7. REGULAR MEETINGS. Immediately following each annual
meeting of shareholders the Board shall hold a regular meeting for the purpose
of organization, election of officers, and the transaction of other business.
Other regular meetings of the board shall be held without call at such
time as shall from time to time be fixed by the Board. This Bylaw hereby
expressly dispenses with call and notice of all regular meetings of the Board.
Section 8. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board,
the President, or the Secretary, or by any two directors.
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Special meetings of the Board shall be held upon four (4) days written
notice by mail or forty-eight (48) hours' notice given personally or by
telephone, telegraph, telex or other similar means of communication. Any such
notice shall be addressed or delivered to each director at such director's
address as it is shown upon the records of the corporation or as may have been
given to the corporation by the director for purposes of notice or, if such
address is not shown on such records or is not readily ascertainable, at the
place in which the meetings of the directors are regularly held.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mail, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
Section 9. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business, except to
adjourn as hereinafter provided. 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, unless a greater number be
required by law or by the Articles of Incorporation. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
Section 10. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of
the Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another.
Section 11. WAIVER OF NOTICE. The transactions of any meeting of the
Board, however called and noticed or wherever held, are as valid as though had
at a meeting duly held after regular call and notice if a quorum be present and
if, either before or after the meeting, each of the directors not present signs
a written waiver of notice, a consent to holding such meeting or an approval of
the minutes thereof. All such waivers, consents, or approvals shall be filed
with the corporate records
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or made a part of the minutes of the meeting. Notice of a meeting shall also be
deemed given to any director who attends the meeting without protesting before
or at its commencement, the lack of notice to that director.
Section 12. ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any directors' meeting to another time and
place. 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. If the meeting is adjourned for more than twenty-four (24) hours,
notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time
of the adjournment.
Section 13. 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 the Board.
Section 14. ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
consent or consents shall have the same effect as a unanimous vote of the Board
and shall be filed with the minutes of the proceedings of the Board.
Section 15. RIGHTS OF INSPECTION. 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 and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts.
Section 16. COMMITTEES. The Board may appoint one or more committees, each
consisting of two (2) or more directors, and delegate to such committees any of
the authority of the Board except with respect to the following on which the
committee may make recommendations but for which Board approval is necessary:
(a) The approval of any action for which the California Corporations
Code also requires shareholders' approval or approval of the outstanding shares.
(b) The filing of vacancies on the Board or on any committee.
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(c) The fixing of compensation of the directors for serving on the
Board or on any committee.
(d) The amendment or repeal of Bylaws or the adoption of new Bylaws.
(e) The amendment or repeal of any resolution of the Board which by
its express terms is not so amendable or repealable.
(f) A distribution to the shareholders of the corporation except at a
rate or in a periodic amount or within a price range determined by the Board.
(g) The appointment of other committees of the Board or the members
thereof.
Members and alternate members of a committee must be appointed by
resolution adopted by a majority of the authorized number of directors and such
committee may be designated an Executive Committee or such other name as the
Board shall specify. The Board shall have the power to prescribe the manner in
which proceedings of any such committee shall be conducted. In the absence of
any such prescription, such committee shall have the power to prescribe the
manner in which its proceedings shall be conducted. Unless the Board or such
committee shall otherwise provide, the regular and special meetings and other
actions of any such committee shall be governed by the provisions of this
Article applicable to meetings and actions of the Board. Minutes shall be kept
of each meeting of each committee.
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, 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 elected or 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 elected or appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by, and shall serve at the
pleasure of, the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
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Section 3. SUBORDINATE OFFICERS. The Board may elect, 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 these Bylaws or as the Board may from
time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either with
or without cause, by the Board of Directors at any time, or, except in the case
of an officer chosen by the Board, by any officer upon whom such power of
removal may be conferred by the Board. Any such removal shall be without
prejudice to the rights, if any, of the officer under any contract of employment
of the officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the 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 these Bylaws for regular election or appointment 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 and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may be given by
the Board to the Chairman of the Board, if there be such an officer, the
President is the general manager and chief executive officer of the corporation
and has, subject to the control of the Board, general supervision, direction,
and control of the business and officers of the corporation. The President 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. The President
has the general powers and duties of management, usually vested in the office of
president and general manager of a corporation and such other powers and duties
as may be prescribed by the Board.
Section 8. VICE PRESIDENTS. In the absence or disability of the President,
the Vice Presidents in order of their rank as
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fixed by the Board or, if not ranked, the Vice President designated by the
Board, 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 Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, at the
principal office and such other place as the Board may order, a book of minutes
of all meetings of shareholders, the Board, and its committees, 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 Board and
committee meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings thereof. The Secretary shall keep, or cause to be
kept, a copy of the Bylaws of the corporation at the principal office or
business office in accordance with Section 213 of the California Corporations
Code.
The Secretary shall keep, or cause to be kept, at the principal offer of
the corporation's transfer agent or registrar, if one be appointed, a share
register, or a duplicate share register, showing the names of shareholders and
their addresses, the number and classes of shares held by each, the number and
date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the Board and of any committees thereof required by
these Bylaws or by law to be given, 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.
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, and shall send or cause to be sent to the shareholders of the
corporation such financial statements and reports as are by law or these Bylaws
required to be sent to them. The books of account shall at all times be open to
inspection by any director.
ARTICLE V
OTHER PROVISIONS
Section 1. INSPECTION OF BYLAWS. The corporation shall keep in its
principal office the original or a copy of these
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Bylaws as amended to date which shall be open to inspection by shareholders at
all reasonable times during officer hours. If the principal office of the
corporation is outside the State of California and the corporation has no
principal business office in such state, it shall upon the written notice of any
shareholder furnish to such shareholder a copy of these Bylaws as amended to
date.
Section 2. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the provisions
of applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance, or other instrument in writing and any assignment or
endorsement thereof executed or entered into between this corporation and any
other person, when signed by the Chairman of the Board, the President or any
Vice President, and the Secretary or any Assistant Secretary, the Chief
Financial Officer or any Assistant Treasurer of this corporation shall be valid
and binding on this corporation in the absence of actual knowledge on the part
of the other person that the signing officers had not authority to execute the
same. Any such instruments may be signed by any other person or persons and in
such manner as from time to time shall be determined by the Board and, unless so
authorized by the Board, 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 amount.
Section 3. CERTIFICATES OF STOCK. Every holder of shares of the corporation
shall be entitled to have a certificate signed in the name of the corporation by
the Chairman of the Board, the President or Vice President and by the Chief
Financial Officer or an Assistant Treasurer or the Secretary or an 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. If 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.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board may provide; provided, however,
that on any certificate issued to represent any partly paid shares, the total
amount of the consideration to be paid therefor and the amount paid thereon
shall be stated.
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Except as provided in this Section no new certificate for shares shall be
issued in lieu of an old one unless the latter is surrendered and cancelled at
the same time. The Board may, however, in case any certificate for shares is
alleged to have been lost, stolen, or destroyed, authorize the issuance of a new
certificate in lieu thereof, and the corporation may require that the
corporation be given a bond or other adequate security sufficient to indemnify
it against any claim that may be made against it (including expense or
liability) on account of the alleged loss, theft, or destruction of such
certificate or the issuance of such new certificate.
Section 4. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or
any other officer or officers authorized by the Board or the President are each
authorized to vote, represent, and exercise on behalf of the corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of the corporation. The authority herein granted may be
exercised either by any such officer in person or by any other person authorized
so to do by proxy or power of attorney duly executed by said officer.
Section 5. STOCK PURCHASE PLANS. The corporation may adopt and carry out a
stock purchase plan or agreement or stock option plan or agreement providing for
the issue and sale for such consideration as may be fixed of its unissued
shares, or of issued shares acquired or to be acquired, to one or more of the
employees or directors of the corporation or of a subsidiary or to a trustee on
their behalf and for the payment for such shares in installments or at one time
and may provide for aiding any such persons in paying for such shares by
compensation for services rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment and option or obligation on the part of
the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 6. ANNUAL REPORT TO SHAREHOLDERS. Until such time as the
corporation has more than 100 holders of record of its shares, determined as
provided in Section 605 of the
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California Corporations Code, the annual report to shareholders referred to in
Section 1501 of the Code is expressly waived, but nothing herein shall be
interpreted as prohibiting the Board from issuing annual or other periodic
reports to shareholders.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction, and definitions
contained in the General Provisions of the California Corporations Code and in
the California General Corporation Law shall govern the construction of these
Bylaws.
ARTICLE VI
INDEMNIFICATION
Section 1. DEFINITIONS. For the purposes of this Article, "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; "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 Section 4 or Section 5(c).
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The corporation
shall have power to 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
the corporation to procure a judgment in its favor) by reason of the fact that
such person is or was an agent 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. 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 interest of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
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Section 3. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall have power to 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 the corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of the
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 the
corporation, and with such care, including reasonable inquiry, as an ordinary
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
(a) In respect of any claim, issue, or matters as to which such
person shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the corporation, 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 the expenses which such court
shall determine;
(b) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court approval.
Section 4. INDEMNIFICATION AGAINST EXPENSES. To the extent that an agent
of the corporation has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 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 5. REQUIRED DETERMINATIONS. Except as provided in Section 4, any
indemnification under this Article 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 Sections 2 or 3 by:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
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(b) Approval of the shareholders, with the shares owned by the person
to be indemnified not being entitled to vote thereon; or
(c) The court in which such 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 such
application by the agent, attorney, or other person is opposed by the
corporation.
Section 6. ADVANCE OF EXPENSES. 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 to
repay such amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized by this Article.
Section 7. OTHER INDEMNIFICATION. No provision made by the corporation to
indemnify its or its subsidiary's directors or officers for the defense of any
proceeding, whether contained in the Articles of Incorporation, Bylaws, a
resolution of shareholders or directors, an agreement, or otherwise, shall be
valid unless consistent with this Article. Nothing contained in this Article
shall affect any right to indemnification to which persons other than such
directors and officers may be entitled by contract or otherwise.
Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification or
advance shall be made under this Article, except as provided in Section 4 or
Section 5(c) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles of
Incorporation, Bylaws, a resolution of the shareholders or an agreement in
effect at the time of 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
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. 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 such 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 such liability under the provisions of
this Article.
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Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. This
Article 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 Section 1. The 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 Corporations Code.
ARTICLE VII
EMERGENCY PROVISIONS
Section 1. GENERAL. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic, or other attack on the United States or a disaster making it impossible
or impracticable for the corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other Bylaws of this corporation in conflict with any provisions of this
Article, and shall remain operative so long as it remains impossible or
impracticable to continue the business of the corporation otherwise, but
thereafter shall be inoperative; provided that all actions taken in good faith
pursuant to such provisions shall thereafter remain in full force and effect
unless and until revoked by action taken pursuant to the provisions of the
Bylaws other than those contained in this Article.
Section 2. UNAVAILABLE DIRECTORS. All directors of the corporation who are
not available to perform their duties as directors by reason of physical or
mental incapacity or for any other reason or who are unwilling to perform their
duties or whose whereabouts are unknown shall automatically cease to be
directors, with like effect as if such persons had resigned as directors, so
long as such unavailability continues.
Section 3. AUTHORIZED NUMBER OF DIRECTORS. The authorized number of
directors shall be the number of directors remaining after eliminating those who
have ceased to be directors pursuant to Section 2, or the minimum number
required by law, whichever number is greater.
Section 4. QUORUM. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of the corporation to
specify.
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Section 5. CREATION OF EMERGENCY COMMITTEE. In the event the number
of directors remaining after eliminating those who have ceased to be directors
pursuant to Section 2 is less than the minimum number of authorized directors
required by law, then until the appointment of additional directors to make up
such required minimum, all the powers and authorities which the Board could by
law delegate, including all powers and authorities which the Board could
delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the corporation pursuant to such powers and authorities and shall have all such
other powers and authorities as may by law or lawful decree be conferred on any
person or body of persons during a period of emergency.
Section 6. CONSTITUTION OF EMERGENCY COMMITTEE. The emergency
committee shall consist of all the directors remaining after eliminating those
who have ceased to be directors, pursuant to Section 2, provided that such
remaining directors are not less than three in number. In the event such
remaining directors are less than three in number, the emergency committee shall
consist of three persons, who shall be the remaining director or directors and
either one or two officers or employees of the corporation, as the remaining
director or directors may in writing designate. If there is no remaining
director, the emergency committee shall consist of the three most senior
officers of the corporation who are available to serve, and if and to the extent
that officers are not available to serve, and if and to the extent that
officers are not available, the most senior employees of the corporation.
Seniority shall be determined in accordance with any designation of seniority in
the minutes of the proceedings of the Board, and in the absence of such
designation, shall be determined by rate of remuneration. In the event that
there are no remaining directors and no officers or employees of the corporation
available, the emergency committee shall consist of three persons designated in
writing by the shareholder owning the largest number of shares of record as of
the last record date.
Section 7. POWERS OF EMERGENCY COMMITTEE. The emergency committee,
once appointed, shall govern its own procedures and shall have power to
increase the number of members thereof beyond the original number, and in the
event of a vacancy or vacancies therein, arising at any time, the remaining
member or members of the emergency committee shall have the power to fill such
vacancy or vacancies. In the event at any time after its appointment, all
members of the emergency committee shall die or resign or become unavailable to
act for any reason whatsoever, a new emergency committee shall be appointed in
accordance with the foregoing provisions of this Article.
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Section 8. DIRECTORS BECOMING AVAILABLE. Any person who has ceased to be a
director pursuant to the provisions of Section 2 and who thereafter becomes
available to serve as a director shall automatically become a member of the
emergency committee.
Section 9. ELECTION OF BOARD OF DIRECTORS. The emergency committee shall,
as soon after its appointment as is practicable, take all requisite action to
secure the election of a board of directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 10. TERMINATION OF EMERGENCY COMMITTEE. In the event, after the
appointment of an emergency committee, a sufficient number of persons who
ceased to be directors pursuant to Section 2 become available to serve as
directors, so that if they had not ceased to be directors as aforesaid, there
would be enough directors to constitute the minimum number of directors
required by law, then all such persons shall automatically be deemed to be
reappointed as directors and the powers and authorities of the emergency
committee shall be at an end.
ARTICLE VIII
AMENDMENTS
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.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article VIII to adopt, amend or
repeal Bylaws, Bylaws may be adopted, amended, or repealed by the Board;
provided, however, that any amendment changing the maximum or minimum number of
directors or changing from a variable to a fixed board may only be adopted by
approval of the outstanding shares, as that term is defined in Section 152 of
the California Corporations Code, pursuant to Section 2 of Article III.
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