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EXHIBIT 3.16
BY-LAWS OF
PHOENIX RACING, INC.
A Corporation Organized Pursuant to The
California Corporations Code of 1977, As Amended
ARTICLE I. OFFICES
The principal executive office of the corporation shall be located
at 1140 Campbell Avenue, San Jose, CA 95126.
The Board of Directors (hereinafter referred to as the Board) shall
have the authority to change the principal executive office. The corporation may
have such other offices, either within or without the State of California as the
Board may designate or as the business of the corporation may from time to time
require.
ARTICLE II. SHAREHOLDERS MEETINGS
1. Place of Meetings. Meetings of shareholders shall be held at the
principal executive office of the corporation or at any other place designated
by the Board or by consent, in writing, of all persons entitled to vote thereat,
given before or after the meeting and filed with the Secretary.
2. Annual Meetings. The annual meeting of the shareholders shall be on
the first Tuesday of October in each year, beginning with the year next
following the adoption of the bylaws at 10:00 o'clock A.M., for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday such meeting shall be held on the next succeeding business day.
3. Special Meetings. Special meetings of the shareholders may be called
at any time by the Board, Chairman of the Board, President, a Vice President,
Secretary or by holders of shares entitled to cast not less than 10 percent of
the votes at the meeting. Except as hereafter provided notice shall be given in
the same manner as notice for an annual meeting. Upon receipt of a mailed or
personally delivered written request addressed to the Chairman of the Board,
President, Vice President or Secretary by any person (other than the Board),
entitled to call a special meeting of shareholders the officer shall, within 20
days after receipt of the request, cause to be given to the shareholders
entitled to vote, a notice that a meeting will be held at a time requested by
the person(s) calling the meeting, not less than 35 nor more than 60 days after
receipt of such request. The person entitled to call the meeting may give the
notice if the notice was not given within 20 days after receipt of the request.
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4. Notice Of Meetings And Reports. Notice of annual or special meetings
shall be given in writing not less than 10 nor more than 60 days before the date
of the meeting, to shareholders entitled to vote thereat by the Secretary or an
Assistant Secretary, or if there be no such officer, or in the case of neglect
or refusal, by any director or shareholder. The notice or any reports shall be
given personally or by mail or other means of written communication as provided
in Corporations Code Section 601 and shall be sent to the shareholder's address
appearing on the books of the corporation, or supplied to the corporation by the
shareholder for the purpose of notice. In the absence thereof, notice shall be
deemed to have been given if mailed to the principal executive office of the
corporation or published at least once in a newspaper of general circulation in
the county in which the principal executive office is located.
Notice of any meeting of shareholders shall specify the place, the day
and the hour of meeting, and (a) in case of a special meeting, the general
nature of the business to be transacted, or (b) in the case of annual meeting,
those matters which the directors at date of mailing intend 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.
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 The
officer giving such notice or report shall prepare and file an affidavit or
declaration thereof. 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; however, when a
meeting is adjourned for 45 days or more, notice of the adjourned meeting shall
be given in the same manner as an original meeting.
5. Quorum. At any meeting of shareholders a majority of the outstanding
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum. If less than said number of the outstanding shares are represented at a
meeting, a majority of the shares so represented may adjourn the meeting from
time to time without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. The shareholders present
at a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
6. Voting. The shareholders entitled to notice of any meeting or to
vote at any meeting shall be only the persons in
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whose names shares stand on the share records of the corporation on the record
date determined in accordance with these bylaws.
If no record date is determined, (a) the record date for determining
shareholders entitled to notice of, or to vote at a meeting of shareholders
shall be at the close of business on the business day next preceding the day on
which notice is given, or if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held, (b) the record
date for determining shareholders entitled to give consent to corporate actions
in writing without a meeting when no prior action by the Board is necessary,
shall be at the close of business on the day on which the first written consent
is given, and (c) the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto, or the 60th day prior to the date of such other
action, whichever is later.
Every shareholder entitled to vote shall be entitled to one vote for
each share held, except for the election of directors. In an election for
directors, if a candidate's name has been placed in nomination prior to the
voting and one or more names has been placed in nomination prior to the voting
and one or more shareholders has given notice at the meeting prior to the voting
of the shareholder's intent to cumulate the shareholder's votes, then every
shareholder entitled to vote may cumulate votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of shares which the shareholder is entitled to vote, or distribute the votes on
the same principal among as many candidates as the shareholder chooses. The
candidates receiving the highest number of votes up to the number of directors
to be elected shall be elected. Upon the demand of any shareholder made before
the voting begins, the election of directors shall be by ballot.
7. Proxies. Every person entitled to vote shares may do so by one or
more persons authorized by proxy in writing executed by such shareholder and
filed with the Secretary.
Every proxy continues in full force and effect until revoked by the
person executing it prior to the vote pursuant thereto, provided however, that
no proxy shall be Valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy.
8. Waivers and Consents. Actions taken at a meeting of shareholders
however called and noticed, where a quorum is present in person or by proxy, are
as valid as if taken after regular call and notice, provided that each person
entitled to vote either before or after the meeting signs a written waiver of
notice or consent to the holding of the meeting or an approval of the minutes
thereof. All waivers, consents and approvals shall be made
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part of the minutes of the meeting. Neither the business to be conducted nor the
purpose of any regular or special meeting must be set forth in any waiver of
notice, except as provided by Section 601(f) of the Corporations Code.
Attendance shall constitute a waiver of notice unless objection is made as
provided in Section 601(e) of the Corporations Code.
9. Action Without Meeting. Any action which may be taken at an 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 taken, shall be
signed by the shareholders 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 sharers entitled to vote thereon were present and
voted.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, notice of any shareholders' approval of (a) a contract or
other transaction between the corporation and one or more of its directors or
another corporation, firm or association in which one or more of its directors
has a material financial interest pursuant to Section 310 of the Corporations
Code, (b) indemnification of an agent of the corporation, pursuant to Section
317 of the Corporations Code, (c) the principal terms of reorganization pursuant
to Section 1201 of the Corporations Code, and (d) a plan of distribution as part
of the winding up of the corporation pursuant to Section 2007 of the
Corporations Code, 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.
Prompt notice shall be given of any corporate action taken by
shareholders without a meeting by less than a unanimous written consent to those
shareholders entitled to vote who have not consented in writing.
Notwithstanding any of the foregoing provisions of this section,
directors may not be elected by written consent except by the unanimous written
constant of all shares entitled to vote for the election of directors.
A written consent may be revoked 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 be revoked thereafter. Such revocation is effective
upon its receipt by the Secretary of the corporation.
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 respective proxyholders, may revoke the consent by a
writing received by the
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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.
10. Organization of Meetings. The President, or in the absence of the
President any Vice President, shall call the meeting of the shareholders to
order and shall act at 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 shall act as secretary of all meetings of the
shareholders, but in the absence of the Secretary, the Chairman may appoint any
person to act as Secretary of the meeting.
The order of business at all meetings of the shareholders shall be as
follows:
(1) Roll call.
(2) Proof of notice of meeting or waiver of notice.
(3) Reading of the minutes of the preceding meeting.
(4) Reports of officers.
(5) Reports of committees.
(6) Election of directors.
(7) Unfinished business.
(8) New business.
ARTICLE III. BOARD OF DIRECTORS
1. General Powers. The business and affairs of the corporation shall be
managed and its corporate powers exercised by its Board of Directors. The
directors shall in all cases act as a board, and they may adopt such rules and
regulations for the conduct of their meetings and the management of the
corporation as they may deem proper, not inconsistent with these By-laws, the
Articles of Incorporation, the California Corporations Code and any
shareholders' agreement relating to any of the affairs of the corporation as
long as it remains a close corporation.
2. Number and Tenure. The number of directors of the corporation shall
be three (3). Each director shall hold office until the next annual meeting of
shareholders and until the director's successor shall have been elected and
qualified. The number of directors may be changed only by an amendment of the
Articles of Incorporation or by a by-law adopted by the share-
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holders amending this section.
3. Meetings. Immediately following each annual meeting of shareholders
the Board shall hold a regular meeting for the purposes of organization,
election of officers, and the transaction of other business.
Regular or special meetings of the Board shall 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 executive office of the corporation. Call and notice of
all regular meetings of the Board are hereby dispensed with.
Special meetings of the Board for any purpose or purposes may be called
at any time by the Chairman, the President, any Vice President, the Secretary,
or by any two directors.
Special meetings of the Board shall be held upon four days' written
notice or 48 hours' notice given personally or by telephone or telegraph.
If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail addressed to the director at the director's address
shown in the records of the corporation, with postage thereon prepaid. If notice
be given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Directors may participate in a meeting using communication equipment,
provided that all participants can hear each other.
4. Quorum. A majority of the authorized number of directors is a quorum
for the transaction of business, except to adjourn. Action taken by a majority
of the directors present at a meeting held at which a quorum is present is an
act of the Board of Directors unless a greater number is required by law or the
Articles of Incorporation. A meeting at which a quorum is initially present may
continue to transact business despite the withdrawal of directors if any action
taken is approved by at least a majority of the required quorum for such
meeting.
5. Vacancies In The Board Of Directors. A director may resign effective
upon giving written notice to the Chairman, the President, the 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.
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Vacancies, except those existing as a result of removal of a director,
may be filled by a majority of the remaining directors, 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 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 full
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 at any time to fill a vacancy not
filled by the directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote. A reduction of
the authorized number of directors shall not cause the removal of any director
prior to the expiration of the director's term of office.
6. Removal. Directors may be removed without cause if the removal is
approved by a majority of all the outstanding shares entitled to vote. The
remaining directors may elect a successor to complete the unexpired term of the
director so removed.
7. Waiver of Notice. Action taken at a meeting of the Board, however
called and noticed or wherever held, are as valid as though taken 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 minutes of the meeting.
8. Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any director's 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,
except if the meeting is adjourned for more than 24 hours. In such case notice
of any adjournment to another time or place shall be given prior to the time of
the adjourned meeting to the directors who were not present at the time of
adjournment.
9. Compensation. No compensation shall be paid to directors, as such,
for their services, but by resolution of the Board a fixed sum and expenses for
actual attendance at each regular or special meeting of the Board may be
authorized. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity and receiving
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compensation therefor.
10. Action Taken Without Meeting. Any action required or permitted to
be taken by the Board may be taken without a formal board meeting, provided that
all board members shall individually or collectively consent in writing to such
action. The 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.
11. Committees. Committees of the Board consisting of two or more
directors may be appointed by resolution passed by a majority of the Board.
Committees shall have such powers as shall be expressly delegated to them by
resolution of the Board, except those powers expressly made non-delegable by
Section 311 of the Corporations Code.
ARTICLE IV. OFFICERS
1. Officers. The officers of the corporation shall be a president, a
secretary and a chief financial officer. A chairman of the Board, one or more
vice presidents and assistant officers as may be deemed necessary, may be
elected or appointed by the directors. A person may hold more than one office
but may not execute, acknowledge or verify an instrument in more than one
capacity.
2. Election And Term Of Office. The officers of the corporation shall
be elected annually at the first meeting of the directors held after each annual
meeting of the shareholders. Each officer shall hold office until a successor is
elected and qualified or until death, resignation or removal.
3. Removal. Any officer or agent elected or appointed by the Board may
be removed by the Board whenever in their judgment the best interests of the
corporation would be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed.
4. Resignation. An officer may resign at any time upon written notice
given to the Board, the President, or the Secretary. A resignation shall take
effect on the day of receipt or any other time specified in the notice.
Acceptance of a resignation shall not be necessary to make it effective.
5. Chairman of the Board. The Chairman of the Board, if there shall be
one, shall preside at all meetings of the Board and exercise and perform such
other powers and duties as may be authorized by the Board.
6. President. Subject to such powers, if any, as may be given by the
Board to the Chairman of the Board, if there be
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one, the President shall be the chief executive of officer of the corporation
and shall, subject to the control of the Board, have general supervision,
direction and control of the business and officers of the corporation. The
President shall preside at all meetings of the shareholders and in the absence
of the Chairman, or if there be none, at all meetings of the Board. 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 the President of the corporation, and
shall have such other powers and duties as may be prescribed by the Board.
7. Vice President. In the absence or disability of the President, the
Vice Presidents, in order of their rank as fixed by the Board, or if not ranked,
the Vice President designated by the Board shall perform all the duties of the
President, 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 may be prescribed for them by the
Board.
8. Secretary. The Secretary shall keep, or cause to be kept, a book of
minutes at the principal executive office or such other place as the Board may
designate. The book of minutes shall include minutes 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 director's meetings, and the number of shares present or
represented at shareholders' meetings.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent, if any, a
share register, or duplicate share register, showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same, and the number and date
of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and directors required by the By-Laws or by law,
and shall keep the seal of the corporation in the safe custody, and shall have
such other powers and perform such other duties as may be prescribed by the
Board.
9. Chief Financial Officer. The Treasurer is the chief financial
officer and 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
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shall at all reasonable times be open to inspection by any director.
10. Compensation of Officers. The salaries of the officers shall be
fixed, from time to time, by the Board.
ARTICLE V. CORPORATE RECORDS AND REPORTS
1. Records. The corporation shall maintain adequate and correct
accounts, books and records of its business and properties in accordance with
generally accepted accounting principles. All of such books, records and
accounts shall be kept at its principal executive office.
The original or a copy of these By-Laws, as amended to date, certified
by the Secretary, shall be kept at the corporation's principal executive office.
2. Inspection By Shareholders. The share register, accounting books and
records and minutes of proceedings of the shareholders, the Board and committees
of the Board shall be open to inspection and copying by any shareholder or
holder of a voting trust certificate at any time during usual business hours
upon written demand on the corporation, for a purpose reasonably related to such
holder's interest as a shareholder or holder of a voting trust certificate.
Inspection and copying may be made in person, by agent, or by attorney.
Shareholders shall also have the right to inspect the original or
certified copy of these By-Laws, as amended to date, kept at the corporation's
principal executive office, at all reasonable times during business hours.
If any record subject to inspection pursuant to this chapter is not
maintained in written form, a request for inspection is not complied with unless
and until the corporation at its expense makes such record available in written
form.
3. Inspection By Directors. Each 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
all of its subsidiary corporations. Inspection by a director may be made in
person or by agent or by attorney and includes the right to copy and obtain
extracts.
4. Waiver of Annual Report. The annual report to shareholders,
described in Section 1501 of the Corporations Code is hereby expressly waived.
5. Contracts, Etc. The Board of Directors, except as otherwise provided
in the By-Laws may authorize any officer or
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officers, agent or agents, to enter into any contract or execute any instrument
in the name and on behalf of the corporation. Such authority may be general or
confined to specific instances. 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 to any amount.
6. 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(s) and in
such manner as shall be determined from time to time by the Board.
ARTICLE VI. SHARES
1. Certificates For Shares. Certificates representing shares of the
corporation shall be in such form as shall be determined by the Board.
Certificates shall be signed by the President and by the Secretary or by such
other officers authorized by law and by the Board. They shall state the name of
the record holder of the shares represented thereby, the total authorized issue,
the number of shares represented by the particular certificate, the designation,
if any, and class or series of shares represented thereby, and any statement or
legend required by the Corporations Code. All certificates for shares shall be
consecutively numbered and issued in consecutive order with the date of issuance
entered thereon.
Any or all the signatures on the certificates may be made by facsimile
provided that they are countersigned by a transfer agent or transfer clerk and
registered by an incorporated bank or trust company, either domestic or foreign,
as registrar of transfers.
2. Transfer On The Books. Upon surrender to the Secretary or transfer
agent of the corporation of a certificate for shares duly endorsed or
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 share register.
3. Lost Or Destroyed Certificates. Any person claiming a share
certificate to be lost or destroyed shall make an affidavit or affirmation of
that fact and shall, if the Board 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 shares represented by the lost certificates,
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.
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4. Record Date and Closing of Transfer Books. The Board may fix in
advance a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders, or entitled to receive
payment of any dividend or distribution, or any allotment of rights, or to
exercise rights in respect to any other lawful action. The record date so fixed
shall not be more than sixty (60) nor less than ten (10) days prior to the date
of the meeting or event for the purpose for which it is fixed. When a record
date is fixed, only shareholders of record on that date are entitled to notice
of and to vote at that meeting, or to receive the dividend, distribution, or
allotment of rights, or to exercise the rights as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date. The Board may close the books of the corporation against
transfers of shares during the whole or any part of a period of not more than
sixty (60) days prior to the date of a shareholders' meeting, or the date when
the right to any dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
ARTICLE VII. MISCELLANEOUS
1. Indemnification. The corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a party to any
proceeding 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 the
person acted in good faith, reasonably believing the acts to be in the best
interest of the corporation and having no reason to believe the conduct
unlawful. The corporation shall advance the expenses reasonably expected to be
incurred by such agent in defending any such proceeding upon receipt of the
undertaking required by Section 317(f) of the Corporations Code. The definition
of "agent," "proceeding" and "expenses" in Section 317 of the Corporations Code
shall apply herein.
2. Construction, Definition and References. 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 By-Laws, unless the context requires otherwise.
Corporations Code section references herein refer to the equivalent sections of
the General Corporation Law, effective January 1, 1977, as amended.
3. Corporate Seal. The Board shall provide a corporate seal which shall
be circular in form and shall have inscribed thereon the name of the
corporation, the state of incorporation, the date of incorporation and the words
"Corporate Seal" or "incorporated."
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ARTICLE VIII. AMENDMENTS
By-Laws may be adopted, amended or repealed either by affirmative vote
by a majority of the outstanding shares entitled to vote or by the Board. A
By-Law changing the number of directors must be approved by the shareholders.
Each adopted, amended and repealed by-law shall be inserted at the appropriate
place in the original or certified copy of the By-Laws kept at the principal
executive office of the corporation and the date of such adoption, amendment and
repeal shall be noted therein.
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CERTIFICATION OF THE ADOPTION OF THE BY-LAWS
The undersigned, Secretary of the corporation, hereby certifies that the
foregoing is a true and correct copy of the By-Laws of the corporation adopted
as of January 28, 1998, by the Board of Directors of the corporation.
Dated: January 28, 1998
/s/ LIZ ROBERTS
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LIZ ROBERTS
Corporate Secretary
CERTIFICATION OF ADOPTION OF THE BY-LAWS Page 1