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EXHIBIT 3.8
BYLAWS
OF
HERSCHEL FISCHER, INC.
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TABLE OF CONTENTS
Section Title Page
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OFFICES
1. Principal Offices................................................................................
2. Other Offices....................................................................................
MEETINGS OF SHAREHOLDERS
3. Place of Meetings................................................................................
4. Annual Meeting...................................................................................
5. Special Meeting..................................................................................
6. Notice of Shareholders' Meetings.................................................................
7. Manner of Giving Notice; Affidavit of Notice.....................................................
8. Quorum...........................................................................................
9. Adjourned Meeting: Notice........................................................................
10. Voting...........................................................................................
11. Waiver of Notice or Consent by Absent Shareholders...............................................
12. Shareholder Action by Written Consent Without a Meeting..........................................
13. Record Date for Shareholder Notice, Voting and Giving Consents...................................
14. Proxies..........................................................................................
15. Inspectors of Election...........................................................................
DIRECTORS
16. Powers...........................................................................................
17. Number and Qualification of Directors............................................................
18. Election and Term of Office of Directors.........................................................
19. Vacancies........................................................................................
20. Place of Meetings and Meetings by Telephone......................................................
21. Organization Meetings............................................................................
22. Other Regular Meetings...........................................................................
23. Special Meetings.................................................................................
24. Quorum...........................................................................................
25. Waiver of Notice.................................................................................
26. Adjournment......................................................................................
27. Notice of Adjournment............................................................................
28. Action Without Meeting...........................................................................
29. Fees and Compensation of Directors...............................................................
OFFICERS
30. Officers.........................................................................................
31. Election of Officers.............................................................................
32. Subordinate Officers.............................................................................
33. Removal and Resignation of Officers..............................................................
34. Vacancies in Offices.............................................................................
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35. President........................................................................................
36. Vice President...................................................................................
37. Secretary........................................................................................
38. Chief Financial Officer..........................................................................
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
39. Right of Indemnity...............................................................................
40. Approval of Indemnity............................................................................
41. Advancement of Expenses..........................................................................
42. Insurance........................................................................................
43. Nonapplicability to Fiduciaries of Employee Benefit Plans........................................
RECORDS AND REPORT
44. Maintenance and Inspection of Share Register.....................................................
45. Maintenance and Inspection of Bylaws.............................................................
46. Maintenance and Inspection of Other Corporate Records............................................
47. Inspection by Directors..........................................................................
48. Annual Report to Shareholders....................................................................
49. Financial Statements.............................................................................
GENERAL CORPORATE MATTER
50. Record Date for Purposes Other than Notice and Voting............................................
51. Checks, Drafts, Evidences of Indebtedness........................................................
52. Corporate Contracts and Instruments; How Executed................................................
53. Certificates for Shares..........................................................................
54. Lost Certificates................................................................................
55. Representation of Shares of Other Corporations...................................................
56. Construction and Definitions.....................................................................
AMENDMENTS
57. Amendment by Shareholders........................................................................
58. Amendment by Directors...........................................................................
CERTIFICATE OF SECRETARY...........................................................................................
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BYLAWS
OF
HERSCHEL FISCHER, INC.
OFFICES
1. Principal Offices. The Board of Directors shall fix the location of
the principal executive office of the Corporation at any place within the State
of California.
2. Other Offices. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the Corporation is
qualified to do business.
MEETINGS OF SHAREHOLDERS
3. Place of Meetings. Meetings of shareholders shall be held at any
place within or outside the State of California designated by the Board of
Directors. In the absence of any such designation, shareholders' meetings shall
be held at the principal executive office of the Corporation.
4. Annual Meeting. The annual meeting of shareholders shall be held on
the first business day of September of each year, but if such date falls on a
legal holiday, then the annual meeting of shareholders shall be held at the same
time and place on the next succeeding full business day. At this meeting,
Directors shall be elected, and any other proper business may be transacted.
5. Special Meeting. A special meeting of the shareholders may be called
at any time by the Board of Directors, or by the President, or by one or more
shareholders holding shares in the aggregate entitled to cast not less than 10%
of the votes at the meeting. If a special meeting is called by any person or
persons other than the Board of Directors, the request shall be in writing,
specifying the time of such meeting and the general nature of the business
proposed to be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
President or the Secretary of the Corporation. The officer receiving the request
shall cause notice to be promptly given to the shareholders entitled to vote, in
accordance with the provisions of Sections 6 and 7 of these Bylaws, that a
meeting will be held at the 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 person or persons requesting the meeting may give
the notice. Nothing contained in this Section 5 shall be construed as limiting,
fixing or affecting the time when a meeting of shareholders called by action of
the Board of Directors may be held.
6. Notice of Shareholders' Meeting. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 7 below
not less than ten (10) 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
(a) in the case of a special meeting, the general nature of the
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business to be transacted, or (b) in the case of the annual meeting, those
matters which the Board of Directors, 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
whom, at the time of the notice, management intends to present for election.
If action is proposed to be taken at any meeting for approval of (a) a
contract or transaction in which a Director has a direct or indirect financial
interest, pursuant to Section 310 of the California Corporations Code, (b) an
amendment of the articles of incorporation, pursuant to Section 902 of that
Code, (c) a reorganization of the Corporation, pursuant to Section 1201 of that
Code, (d) a voluntary dissolution of the Corporation, pursuant to Section 1900
of that Code, or (e) 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.
7. 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 the
shareholder 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 has been 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 executive 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 executive office of the
Corporation for a period of one year from the date of the giving of notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting may be executed by the Secretary or any transfer agent of
the Corporation giving the notice, and shall be filed and maintained in the
minute book of the Corporation.
8. Quorum. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present at
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
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9. Adjourned Meeting: Notice. Any shareholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of the majority of the shares represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 8 above.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than forty-five (45) days from the
date set for the original meeting, in which case the Board of Directors shall
set a new record date. Notice of any such adjourned meeting shall be given to
each shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 6 and 7 hereof. At any adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting.
10. Voting. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section 13
below, subject to the provisions of Sections 702 to 704, inclusive, of the
California Corporations Code (relating to voting shares held by a fiduciary, in
the name of a corporation, or in joint ownership). The shareholders' vote may be
by voice vote or by ballot; provided, however, that any election for Directors
must be by ballot if demanded by any shareholder before the meeting has begun.
On any matter other than elections of Directors, any shareholder may vote part
of the shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal, but, if the shareholder fails to
specify the number of shares which the shareholder is voting affirmatively, it
will be conclusively presumed that the shareholder's approving vote is with
respect to all shares that the shareholder is entitled to vote. Subject to the
provisions of Section 8 above, the affirmative vote of the majority of the
shares represented and voting at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute at least a majority
of the required quorum), shall be the act of the shareholders, unless the vote
of a greater number or voting by classes is required by the California
Corporations Code or by the articles of incorporation.
At a shareholders' meeting at which Directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the number of the shareholders,
shares) unless the candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice prior to
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination 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 that shareholder's shares are entitled, or distribute the
shareholder's votes on the same principle among any or all of the candidates, as
the shareholder thinks fit. The candidates receiving the highest number of
votes, up to the number of Directors to be elected, shall be elected.
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11. Waiver of Notice or Consent by Absent Shareholders. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, who was not present in person or by proxy, signs a written
waiver of notice or a consent to a holding of the meeting, or an approval of the
minutes. The waiver of notice or consent need not specify either the business to
be transacted or the purpose of any annual or special meeting of shareholders,
except that if action is taken or proposed to be taken for approval of any of
those matters specified in the second paragraph of Section 6, the waiver of
notice or consent shall state the general nature of the proposal. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if that objection is expressly made at the meeting.
12. 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 of Directors
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 of the
Corporation and shall be maintained in the corporate records. Any shareholder
giving a written consent, or the shareholder's proxy holders, or a transferee of
the shares or a personal representative of the shareholder or their respective
proxy holders, may revoke the consent by a writing received by the Secretary of
the Corporation before 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 7. In the case of
approval of (a) contracts or transactions in which a Director has a direct or
indirect financial interest, pursuant to Section 310 of the California
Corporations Code, (b) indemnification of agents of the Corporation, pursuant
to Section 317 of that Code, (c) a reorganization of the Corporation, pursuant
to Section 1201 of that Code, or (d) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, pursuant to Section
2007 of
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that Code, the notice shall be given at least ten (10) days before the
consummation of any action authorized by that approval.
13. Record Date for Shareholder Notice, Voting and Giving Consents. For
purposes of determining the shareholders entitled to notice of any meeting or to
vote or entitled to give consent to corporate action without a meeting, the
Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting nor more than sixty (60) days before any such action without a meeting,
and in this event only shareholders of record on the date so fixed are entitled
to notice and to vote or to give consents, as the case may be, notwithstanding
any transfer of any shares on the books of the Corporation after the record
date, except as otherwise provided in the California Corporations Code.
If the Board of Directors does not so fix a record date:
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 action in writing without a meeting, (1) when
no prior action by the Board has been taken, shall be the day on which
the first written consent is given, or (2) when prior action of the
Board has been taken, shall be at the close of business on the day on
which the Board adopts the resolution relating to that action, or the
sixtieth (60th) day before the date of such other action, whichever is
later.
14. Proxies. Every person entitled to vote for Directors or on any
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
Secretary of the Corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (a)
revoked by the person executing it, before the vote pursuant to that proxy, by a
writing delivered to the Corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy; or (b) written notice of the death or
incapacity of the maker of that proxy is received by the Corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of eleven (11) months from the date of the proxy,
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
Section 705 of the California Corporations Code.
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15. Inspectors of Election. Before any meeting of shareholders, the
Board of Directors may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any shareholder or a shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall, appoint a person to
fill that vacancy.
These inspectors shall:
a. Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies;
b. Receive votes, ballots, or consents;
c. Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
d. Count and tabulate all votes or consents;
e. Determine when the polls shall close;
f. Determine the result; and
g. Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
DIRECTORS
16. Powers. Subject to the provisions of the California Corporations
Code and any limitations in the articles of incorporation and these Bylaws
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 of Directors.
17. Number and Qualification of Directors. The authorized number of
Directors shall be one (1) until changed by a duly adopted amendment to the
articles of incorporation or by an amendment to this bylaw adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote.
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18. Election and Term of Office of Directors. Directors shall be
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each Director, including a Director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
19. Vacancies. Vacancies in the Board of Directors may be filled by a
majority of the remaining Directors, though less than a quorum, or by a sole
remaining Director, except that a vacancy created by the removal of a Director
by the vote or written consent of the shareholders or by court order may be
filled only by the vote of a majority of the shares entitled to vote represented
at a duly held meeting at which a quorum is present, or by the written consent
of holders of a majority of the outstanding shares entitled to vote. Each
Director so elected shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the event of the death, resignation, or removal of any Director, or if
the Board of Directors by resolution declares vacant the office of a Director
who has been declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of Directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any Director or
Directors are elected, to elect the number of Directors to be voted for at that
meeting.
The shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors, but any such election by
written consent other than to fill a vacancy created by removal, shall require
the consent of a majority of the outstanding shares entitled to vote.
Any Director may resign effective on giving written notice to the
President, the Secretary, or the Board of Directors, unless the notice specifies
a later time for that resignation to become effective. If the resignation of a
Director is effective at a future time, the Board of Directors may elect a
successor to take office when the resignation becomes effective.
No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
20. Place of Meetings and Meetings by Telephone. Regular meetings of
the Board of Directors may be held at any place within or outside the State of
California that has been designated from time to time by resolution of the
Board. In the absence of such a designation, regular meetings shall be held at
the principal executive office of the Corporation. Special meetings of the Board
shall be held at any place within or outside the State of California that has
been designated in the notice of the meeting or, if not stated in the notice or
if there is no notice, at the principal executive office of the Corporation. Any
meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all Directors participating in the meeting
can hear one another, and all such Directors shall be deemed to be present in
person at the meeting.
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21. Organization Meetings. Regular meetings of the Board of Directors
shall be held immediately following the adjournment of the annual meetings of
shareholders, for the purpose of organization, election of officers and the
transaction of other business.
22. Other Regular Meetings. Other regular meetings of the Board of
Directors shall be held without call at such time as shall from time to time be
fixed by the Board of Directors. Such regular meetings may be held without
notice.
23. Special Meetings. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the President or the
Secretary or any Director.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each Director or sent by first-class mail or
telegram, charges prepaid, addressed to each Director at that Director's address
as it is shown on the records of the Corporation. In case the notice is mailed,
it shall be deposited in the United States mail at least four (4) days before
the time of the holding of the meeting. In case the notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the Director or to a person at the
office of the Director who the person giving the notice has reason to believe
will promptly communicate it to the Director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the Corporation.
24. Quorum. One-half of the authorized number of Directors but in no
event less than two, whichever is larger (unless the authorized number of
Directors is one, in which case one Director), shall constitute a quorum for the
transaction of business, except to adjourn as provided in Section 26. Every act
or decision done or made by a majority of the Directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors, subject to the provisions of Section 310 of the California
Corporations Code (as to approval of contracts or transactions in which a
Director has a direct or indirect material financial interest), Section 311 of
that Code (as to appointment of committees), and Section 317(c) of that Code (as
to indemnification of Directors). 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 that meeting.
25. Waiver of Notice. The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents, and approvals shall be filed
with the corporate records 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 the lack of notice to that Director before or at the
commencement of the meeting.
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26. Adjournment. A majority of the Directors present whether or not
constituting a quorum, may adjourn any meeting to another time and place.
27. Notice of Adjournment. Notice of the time and place of holding an
adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four (24) hours, in which case notice of the time and place shall be
given before the adjourned meeting is to commence, in the manner specified in
Section 23, to the Directors who were not present at the time of the
adjournment.
28. Action Without Meeting. Any action required or permitted to be
taken by the Board of Directors may be taken without a meeting, if all members
of the Board shall individually or collectively consent in writing to that
action. Such action by written consent shall have the same force and effect as a
unanimous vote of the Board of Directors. Such written consent or consents shall
be filed with the minutes of the proceedings of the Board.
29. Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
Board of Directors. This Section 29 shall not be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for those services.
OFFICERS
30. Officers. The officers of the Corporation shall be a president, a
vice-president, a secretary, and a chief financial officer, and any other
offices created by resolution of the Board of Directors. Any number of offices
may be held by the same person.
31. Election of Officers. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Section 32 or
Section 34, shall be chosen by the Board of Directors, and each shall serve at
the pleasure of the Board, subject to the rights, if any, of an officer under
any contract of employment.
32. Subordinate Officers. The Board of Directors may appoint, and may
empower the President to appoint, such other officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in these Bylaws or as the
Board of Directors may from time to time determine.
33. Removal and Resignation of Officers. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting of the Board, or, except in case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
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Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the officer is a
party.
34. Vacancies in Offices. 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 appointments to that office.
35. President. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the chairman of the Board, if there be such
an officer, the President shall be the chief executive officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and the officers of
the Corporation. He 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 of
Directors. He shall have the general powers and duties of management usually
vested in the office of president of a corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
Bylaws.
36. Vice President. In the absence or disability of the President, the
Vice President 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 by the Board of Directors or the President.
37. Secretary. The Secretary shall keep or cause to be kept, at the
principal executive office or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of Directors, committees
of Directors, and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at Directors' meetings or committee meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the Corporation's transfer agent or
registrar, as determined by resolution of the Board of Directors, a share
register, or a duplicate share register, showing the names of all 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 meetings
of the shareholders and of the Board of Directors required by these Bylaws or by
law to be given, and he shall keep the seal of the Corporation if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by these Bylaws.
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38. Chief Financial Officer. The chief financial officer of the
Corporation, who may be designated as the Treasurer or such other title as the
Board of Directors may determine, shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any Director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and Directors, whenever they request it, an account of
all of his transactions as chief financial officer and of the financial
condition of the Corporation, and shall have other powers and perform such other
duties as may be prescribed by the Board of Directors or these Bylaws.
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
39. Right of Indemnity. To the full extent permitted by law, this
Corporation shall indemnify its Directors, officers, employees and other persons
described as "agents" in Section 317(a) of the California Corporations Code,
including persons formerly occupying any such position, against all expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
by them in connection with any "proceeding", as that term is used in such
Section and including an action by or in the right of the Corporation, by reason
of the fact that such person is or was a person described by such Section.
"Expenses", as used in this bylaw, shall have the same meaning as in Section
317(a) of the California Corporations Code.
40. Approval of Indemnity. Except as provided in subdivision (d) of
Section 317 of the California Corporations Code, any indemnification under this
section 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 317(b) or (c) of the California Corporations Code by any of
the following:
(1) A majority vote of a quorum consisting of directors who
are not parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by
independent legal counsel in a written opinion.
(3) Approval of the shareholders with the shares owned by the
person to be indemnified not being entitled to vote thereon.
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(4) The court in which the proceeding is or was pending upon
application made by the Corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not the
application by the agent, attorney or other person is opposed by the
Corporation.
41. Advance of Expenses. To the full extent permitted by law and except
as is otherwise determined by the Board of Directors in the specific instance,
expenses incurred by a person seeking indemnification under this bylaw in
defending any proceeding covered by this bylaw shall be advanced by the
Corporation prior to the final disposition of the proceeding upon receipt by the
Corporation of an undertaking by or on behalf of such person to repay such
amount unless it shall ultimately be determined that such person is entitled to
be indemnified by the Corporation therefor.
42. 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.
43. 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 317(a) of the California Corporations Code.
The Corporation shall have the power to indemnify such trustee, investment
manager or other fiduciary to the extent permitted by subdivision (f) of Section
207 of the California Corporations Code.
RECORDS AND REPORTS
44. Maintenance and Inspection of Share Register. The Corporation shall
keep at its principal executive office, or at the office of its transfer agent
or registrar, if either be appointed and as determined by resolution of the
Board of Directors, a record of its shareholders, giving the names and addresses
of all shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders of the Corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
Corporation may (a) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days prior
written demand on the Corporation, and (b) obtain from the transfer agent of the
Corporation, on written demand and on the tender of such transfer agent's usual
charges for such list, a list of the names and addresses of the shareholders who
are entitled to vote for the election of Directors, and their shareholdings, as
of the most recent record date for which that list has been compiled or as of a
date specified by the shareholder after the date of demand. This list shall be
made available to any such shareholder by the transfer agent on or before the
later of five (5) days after the demand is received or the date specified in the
demand
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as the date as of which the list is to be complied. The record of shareholders
shall also be open to inspection on the written demand of any shareholder or
holder of a voting trust certificate, at any time during usual business hours,
for a purpose reasonably related to the holder's interests as a shareholder or
as the holder of a voting trust certificate. Any inspection and copying under
this Section 44 may be made in person or by an agent or attorney of the
shareholder or holder of a voting trust certificate making the demand.
45. Maintenance and Inspection of Bylaws. The Corporation shall keep at
its principal executive office, or if its principal executive office is not in
the State of California, at its principal business office in this state, the
original or a copy of the Bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours.
46. Maintenance and Inspection of Other Corporate Records. The
accounting books and records and minutes of proceedings of the shareholders and
the Board of Directors and any committee or committees of the Board of Directors
shall be kept at such place or places designated by the Board of Directors, or,
in the absence of such designation, at the principal executive office of the
Corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. The minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. These rights of inspection shall extend to the records
of each subsidiary corporation of the Corporation.
47. Inspection by Directors. Every Director shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the Corporation and each of its
subsidiary corporations. This inspection by a Director may be made in person or
by an agent or attorney and the right of inspection includes the right to copy
and make extracts of documents.
48. Annual Report to Shareholders. The annual report to shareholders
referred to in Section 1501 of the California Corporations Code is expressly
dispensed with, but nothing herein shall be interpreted as prohibiting the Board
of Directors from issuing annual or other periodic reports to the shareholders
of the Corporation as they consider appropriate.
49. Financial Statements. A copy of any annual financial statement and
any income statement of the Corporation for each quarterly period of each fiscal
year, and any accompanying balance sheet of the Corporation as of the end of
each such period, that has been prepared by the Corporation shall be kept on
file in the principal executive office of the Corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any such statement or a copy shall be
mailed to any such shareholder.
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If a shareholder or shareholders holding at least five percent (5%) of
the outstanding shares of any class of stock of the Corporation makes a written
request to the Corporation for an income statement of the Corporation for the
three-month, six-month or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and a balance
sheet of the Corporation as of the end of that period, the chief financial
officer shall cause that statement to be prepared, if not already prepared, and
shall deliver personally or mail that statement or statements to the person
making the request within thirty (30) days after the receipt of the request. If
the Corporation has not sent to the shareholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to the
shareholder or shareholders within thirty (30) days after the request.
The Corporation shall also, on the written request of any shareholder,
mail to the shareholder a copy of the last annual, semi-annual, or quarterly
income statement which it has prepared, and a balance sheet as of the end of
that period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the Corporation or the certificate of an authorized
officer of the Corporation that the financial statements were prepared without
audit from the books and records of the Corporation.
GENERAL CORPORATE MATTERS
50. Record Date for Purposes Other than Notice and Voting. For purposes
of determining the shareholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or entitled to exercise any rights
in respect of any other lawful action (other than action by shareholders by
written consent without a meeting), the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days before any such
action, and in that case only shareholders of record on the date so fixed are
entitled 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 so fixed except as
otherwise provided by the California Corporations Code.
If the Board of Directors does not so fix a record date, the record
date for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
51. Checks, Drafts, Evidences of Indebtedness. All checks, drafts, or
other orders for payment of money, notes, or other evidences of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board of Directors.
52. Corporate Contracts and Instruments; How Executed. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf
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of the Corporation, and this authority may be general or confined to specific
instances; and, unless so authorized or ratified by the Board of Directors or
within the agency power of an officer, 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 for any amount.
53. Certificates for Shares. A certificate or certificates for shares
of the capital stock of the Corporation shall be issued to each shareholder when
any of these shares are fully paid, and the Board of Directors may authorize the
issuance of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be paid for them and
the amount paid. All certificates shall be signed in the name of the Corporation
by the President and by the chief financial officer or the Secretary, certifying
the number of shares and the class or series of shares owned by the shareholder.
Any or all of the signatures on the certificate may be facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall have ceased to be that officer,
transfer agent, or registrar before that certificate is issued, it may be issued
by the Corporation with the same effect as if that person were an officer,
transfer agent, or registrar at the date of issue.
54. Lost Certificates. Except as provided in this Section 54, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the Corporation and canceled at the same time. The
Board of Directors may, in case any share certificate or certificate for any
other security is lost, stolen, or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board may require,
including provision for indemnification of the Corporation secured by a bond or
other adequate security sufficient to protect the Corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
55. Representation of Shares of Other Corporations. The President, or
any other person authorized by resolution of the Board of Directors or by any of
the foregoing designated officers, is authorized to vote on behalf of the
Corporation any and all shares of any other corporation or corporations, foreign
or domestic, standing in the name of the Corporation. The authority granted to
these officers to vote or represent on behalf of the Corporation any and all
shares held by the Corporation in any other corporation or corporations may be
exercised by any of these officers in person or by any person authorized to do
so by a proxy duly executed by these officers.
56. Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
California Corporations Code shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, the masculine includes the
feminine, and the term "person" includes both a corporation and a natural
person.
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AMENDMENTS
57. Amendment by Shareholders. New bylaws may be adopted and these
Bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the articles of incorporation of the Corporation set forth the number of
authorized Directors of the Corporation, the authorized number of Directors may
be changed only by an amendment of the articles of incorporation.
58. Amendment by Directors. Subject to the rights of the shareholders
as provided in Section 57, other than a bylaw or an amendment of a bylaw
changing the authorized number of Directors, bylaws may be adopted, amended, or
repealed by the Board of Directors.
CERTIFICATE OF SECRETARY
I, the undersigned, hereby certify as follows:
1. I am the duly elected and qualified Secretary of Herschel Fischer,
Inc., a California corporation;
2. The foregoing Bylaws were duly adopted by the Board of Directors of
this Corporation as of February 19, 1997 and remain unmodified and in full force
and effect as of the date hereof.
Dated: February 21, 1997
/s/ Sherry A. Fischer
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Sherry A. Fischer, Secretary
[Seal]
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