BY-LAWS
OF
KILOVAC INTERNATIONAL, INC.
ARTICLE I
OFFICES
Section 1. Principal Executive Office. The principal executive
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office of the corporation is hereby fixed and located at: 550 Linden Avenue,
Carpinteria, California 93013. The board of directors is hereby granted full
power and authority to change said principal executive office from one location
to another. Any such change shall be noted on the bylaws by the secretary,
opposite this section, or this section may be amended to state the new location.
Section 2. Other Offices. Other business offices may at any time be
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established by the board of directors at any place or places where the
corporation is qualified to do business.
ARTICLE 11
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All annual or other meetings of
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shareholders shall be held at the principal executive office of the corporation
or at any other place within or without the State of California which may be
designated either by the board of directors or by the written consent of all
persons entitled to vote thereat and not present at the meeting given either
before or after the meeting and filed with the secretary of the corporation,
Section 2. Annual Meetings. The annual meetings of shareholders
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shall be held on: 90th day following the close of the accounting year, provided,
however, that should said day fall upon a legal holiday, 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. At such meetings, directors
shall be elected, reports of the affairs of the corporation shall be considered,
and any other business may be transacted which is within the powers of the
shareholders.
Written notice of each annual meeting shall be given to each
shareholder entitled to vote, either personally or by mail or other means of
written communication, charges prepaid, addressed to such shareholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. If any notice or report addressed to the
shareholder at the address of such shareholder appearing on the books
of the corporation is returned to the corporation by the United States Postal
Service marked to indicate that the United States Postal Service is unable to
deliver the notice or report to the shareholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available for the shareholder upon written demand
of the shareholder at the principal executive office of the corporation for a
period of one year from the date of the giving of the notice or report to all
other shareholders. If a shareholder gives no address, notice shall be deemed to
have been given him if sent by mail or other means of written communication
addressed to the place where the principal executive office of the corporation
is situated, or if published at least once in some newspaper of general
circulation in the county in which said principal executive, office is located.
All such notices shall be given to each shareholder entitled thereto
not less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such notice in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or any
transfer agent of the corporation, shall be prima facie evidence of the giving
of the notice.
Such notices shall specify:
(a) the place, the date, and the hour of such meeting;
(b) those matters which the board, at the time of the mailing of
the notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for election;
(d) the general nature of a proposal, if any, to take action
with respect to approval of, (i) a contract or other transaction with an
interested director, (ii) amendment of the articles of incorporation, (iii) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the corporation, or (v) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly required by
statute.
Section 3. Special Meetings. Special meetings of the shareholders,
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for the purpose of taking any action permitted by the shareholders under the
General Corporation Law and the articles of incorporation of this corporation,
may be called at any time by the chairman of the board or the president, or by
the board of directors, or by one or more share holders holding not less than
ten percent (10%) of the votes at the meeting. Upon request in writing that a
special meeting of shareholders be called for any proper purpose, directed to
the
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chairman of the board, president, vice-president or secretary, by any person
(other than the board) entitled to call a special meeting of shareholders, the
officer forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after receipt of the request. Except in special cases where other express
provision is made by statute, notice of such special meetings shall be given in
the same manner as for annual meetings of shareholders. In addition to the
matters required by items (a) and, if applicable, (c) of the preceding Section,
notice of any special meeting shall specify the general nature of the business
to be transacted, and no other business may be transacted at such meeting.
Section 4. Quorum. The presence in person or by proxy of the
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persons entitled to vote a majority of the voting shares at any meeting shall
constitute a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 5. Adjourned Meeting and Notice Thereof. Any shareholders'
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meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time-by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat, but in the absence
of a quorum no other business may be transacted at such meeting, except as
provided in Section 4 above.
When any shareholders' meeting, either annual or special, is adjourned
for forty-five days or more, or if after adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given as in
the case of an original meeting. Except as provided above, it shall not be
necessary to give any notice of the time and place of the adjourned meeting or
of the business to be transacted thereat, other than by announcement of the time
and place thereof at the meeting at which such adjournment is taken.
Section 6. Voting. Unless a record date for voting purposes be fixed
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as provided in Section 1 of Article V of these bylaws then, subject to the
provisions of Sections 702 and 704, inclusive, of the Corporations Code of
California (relating to voting of shares held by a fiduciary, in the name of a
corporation, or in joint ownership), only persons in whose names shares entitled
to vote stand on the stock records of the corporation at the close of business
on the business day next preceding the day on which notice of the meeting is
given or, if such notice is waived, at the close of business on the business day
next preceding the day on which the meeting of shareholders is held, shall be
entitled to vote at such meet ing, and such day shall be the record date for
such meeting. Such vote may be viva voce or by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by a shareholder
at any election and before the voting begins. If a quorum is present, except
with respect to election of directors, the affirmative vote of the majority of
the shares represented at the meeting and entitled to vote on any matter shall
be the act of the
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shareholders, unless the vote of a greater number or voting by classes is
required by the General Corporation Law or the articles of incorporation.
Subject to the requirements of the next sentence, every shareholder entitled to
vote at any election for directors shall have the right to cumulate his votes
and give one candidate a number of votes equal to the number of directors to be
elected, multiplied by the number of votes to which his shares are entitled., or
to distribute his votes on the same principle among as many candidates as he
shall think fit. No shareholder shall be entitled to cumulate votes unless the
name of the candidate or candidates for whom such votes would be cast has been
placed in nomination prior to the voting and any shareholder has given notice at
the meeting prior to the voting, of such shareholder's intention to cumulate his
votes. The candidates receiving the highest number of votes of shares entitled
to be voted for them, up to the number of directors to be elected, shall be
elected.
Section 7. Validation of Defectively Called or Noticed Meetings. The
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transactions of any meeting of shareholders, either annual or special, however
called and noticed, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy,
and if, either before or after the meeting, each of the persons entitled to
vote, not present in person or by proxy, or who, though present, has, at the
beginning of the meeting, properly objected to the transaction of any business
because the meeting was not lawfully called or convened, or to particular
matters of business legally required to be included in the notice, but not so
included, signs a written waiver of notice, or a consent to the holding of such
meeting, or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 8. Action Without a Meeting. Directors may be elected
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without a meeting by a consent in writing, setting forth the action so taken,
signed by all of the persons who would be entitled to vote for the election of
directors, provided that., without notice except as hereinafter set forth, a
director may be elected at any time to fill a vacancy not filled by the
directors by the written consent of persons holding a majority of the
outstanding shares entitled to vote for the election of directors.
Any other action which, under any provision of the California General
Corporation Law, may be taken at a meeting of the shareholders, may be taken
without a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Unless the consents of
all shareholders entitled to vote have been solicited in writing,
(a) Notice of any proposed shareholder approval of, (i) a
contract or other transaction with an interested director, (ii) indemnification
of an agent of the corporation as authorized by Section 15, of Article III, of
these bylaws, (iii) a reorganization of the corporation as defined in Section
181 of the General Corporation Law, or (iv) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, if any,
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without a meeting by less than unanimous written consent, shall be given at
least ten (10) days before the consummation of the action authorized by such
approval; and
(b) Prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote who have not
consented in writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 2 of Article II of these
bylaws.
Unless, as provided in Section 1 of Article V of these bylaws, the
board of directors has fixed a record date for the determination of shareholders
entitled to notice of and to give such written consent, the record date for such
determination shall be the day on which the first written consent is given. All
such written consents shall be filed with the secretary of the corporation.
Any shareholder giving a written consent, or the shareholder's 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 corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the secretary of the corporation.
Section 9. Proxies. Every person entitled to vote or execute
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consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his duly authorized
agent and filed with the secretary of the corporation. Any proxy duly executed
is not revoked and continues in full force and effect until, (i) an instrument
revoking it or a duly executed proxy bearing a later date is filed with the
secretary of the corporation prior to the vote pursuant thereto, (ii) the person
executing the proxy attends the meeting and votes in person, or (iii) written
notice of the death or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted; provided that no such
proxy shall be valid after the expiration of eleven (11) months from the date of
its execution, unless the person executing it specifies therein the length of
time for which such proxy is to continue in force.
Section 10. Inspectors of Election. In advance of any meeting of
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shareholders, the board of directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election be not so appointed, the chairman of any
such meeting may, and on the request of any shareholder or his proxy shall, make
such appointment at the meeting. The number of inspectors shall be either one
or three. If appointed at a meeting on the request of one or more shareholders
or proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed. In case any
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may, and on the request of any shareholder or a shareholder's proxy
shall, be filled by appointment by the board of directors in advance of the
meeting, or at the meeting by the chairman of the meeting.
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The duties of such inspectors shall be as prescribed by Section 707 of
the General Corporation Law and shall include: determining the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining when the polls shall close;
determining the result; and such acts as may be proper to conduct the election
or vote with fairness to all shareholders. In the determination of the validity
and effect of proxies the dates contained on the forms of proxy shall
presumptively determine the order of execution of the proxies, regardless of the
postmark dates on the envelopes in which they are mailed.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is practical.
If there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima
facie evidence of the facts stated therein.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to limitations of the articles of
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incorporation and of the California General Corporation Law as to action to be
authorized or approved by the shareholders, and subject to the duties of
directors as prescribed by the bylaws, all corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be controlled by, the board of directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
First - To select and remove all the officers, agents and employees of
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the corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or the bylaws, fix
their compensation and require from them security for faithful service.
Second - To conduct, manage and control the affairs and business of
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the corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the articles of incorporation or the bylaws, as
they may deem best.
Third - To change the principal executive office and principal office
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for the transaction of the business of the corporation from one location to
another as provided in Article I, Section 1, hereof; to fix and locate from time
to time one or more subsidiary offices of the corporation within or without the
State of California, as provided in Article I, Section 2, hereof; to designate
any place within or without the State of California for the holding of any
shareholders' meeting or meetings; and to adopt, make and use a corporate
seal,.and to
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prescribe the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times comply with
the provisions of law.
Fourth - To authorize the issue of shares of stock of the corporation
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from time to time, upon such terms as may be lawful.
Fifth - To borrow money and incur indebtedness for the purposes of the
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corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Sixth - By resolution adopted by a majority of the authorized number
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of directors, to designate an executive and other committees, each consisting of
two or more directors, to serve at the pleasure of the board, and to prescribe
the manner in which proceedings of such committee shall be conducted. Unless
the board of directors shall otherwise prescribe the manner of proceedings of
any such committee, meetings of such committee may be regularly scheduled in
advance and may be called at any time by any two members thereof; otherwise, the
provisions of these bylaws with respect to notice and conduct of meetings of the
board shall govern. Any such committee, to the extent provided in a resolution
of the board, shall have all of the authority of the board, except with respect
to:
(i) the approval of any action for which the General
Corporation Law or the articles of incorporation also require shareholder
approval;
(ii) the filling of vacancies on the board or in any
committee;
(iii) the fixing of compensation of the directors for
serving on the board or on any committee;
(iv) the adoption, amendment or repeal of bylaws;
(v) the amendment or repeal of any resolution of the
board;
(vi) any distribution to the shareholders, except at a
rate or in a periodic amount or within a price range determined by the board;
and
(vii) the appointment of other committees of the board or
the members thereof.
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Section 2. Number and Qualification of Directors. The authorized
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number of directors shall be three (3) until changed by amendment of the
articles of incorporation or by a bylaw amending this Section 2 duly adopted by
the vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided that a proposal to reduce, the authorized number of
directors below five cannot be adopted if the votes cast against its adoption at
a meeting, or the shares not consenting in the case of action by written
consent,
are equal to more than 16-2/3 percent of the outstanding shares entitled to
vote.
Section 3. Election and Term of Office. The directors shall be
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elected at each but, if any such annual meet are not elected thereat, the
special meeting of shareholders directors shall hold office of shareholders the
directors elected at any purpose. All respective successors are elected.
subject to the General Corporation Law and the provisions of these bylaws with
respect to vacancies on the board.
Section 4. Vacancies. A vacancy in the board of directors, shall be
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deemed to exist in case of the death, resignation or removal of any director, if
a director has been declared of unsound mind by order of court or convicted of a
felony, if the authorized number of directors be increased, or if the
shareholders fail, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting.
Vacancies in the board of directors, except for a vacancy created by
the removal of a director, may be filled by a majority of the remaining
directors though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until his successor is elected at an
annual or a special meeting of the shareholders. A vacancy in the board of
directors created by the removal of a director may only be filled by the vote of
a majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or by the written consent of the holders of a
majority of the outstanding shares.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors. Any such election by
written consent shall require the consent of holders of a majority of the
outstanding shares entitled to vote.
Any director may resign effective upon giving written notice to the
chairman of the board, the president, the secretary or the board of directors of
the corporation unless the notice specifies a later time for the effectiveness
of such resignation. If the board of directors accept the resignation of a
director tendered to take effect at a future time, the board or the shareholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
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Section 5. Place of Meeting. Regular meetings of the board of
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directors shall be held at any place within or without the State which has been
designated from time to time by resolution of the board or by written consent of
all members of the board. In the absence of such designation, regular, meetings
shall be held at the principal executive office of the corporation. Special
meetings of the board may be held either at a place so designated or at the
principal executive office.
Section 6. Organization Meeting. Immediately following each annual
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meeting of shareholders the board of directors shall hold a regular meeting at
the place of said annual meeting or at such other place as shall be fixed by the
board of directors, for the purpose of organization, election of officers, and
the transaction of other business. All and notice of such meetings are hereby
dispensed with.
Section 7. Other Regular Meetings. Other regular meetings of the
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board of directors shall be held without call at the principal executive office
of the corporation at 10:00 o'clock A.M., on May 31, and August 31, of each
year, provided, however should said day fall upon a legal holiday, then said
meeting shall be held at the same time on the next day thereafter ensuing which
is a full business day. Notice of all such regular meetings of the board of
directors is hereby dispensed with.
Section 8. Special Meetings. Special meetings of the board of
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directors for any purpose or purposes shall be called at any time by the
chairman of the board, the president, any vice president, the secretary or by
any two directors.
Written notice of the time and place of special meetings shall be
delivered personally to each director or communicated to each director by
telephone, or by telegraph or mail, charges prepaid, addressed to him at his
address as it is shown upon the records of the corporation or, if it is not so
shown on such records or is not readily ascertainable, at the place at which the
meetings of the directors are regularly held. In case such notice is mailed or
telegraphed, it shall be deposited in the United States mail or delivered to the
telegraph company in the place in which the principal executive office of the
corporation is located at least forty-eight hours prior to the time of the
holding of the meeting. In case such notice is delivered, personally or by
telephone, as above provided, it shall be so delivered at least twenty-four
hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery, personally or by telephone, as above provided, shall
be due, legal and personal notice to such director.
Any notice shall state the date, place and hour of the meeting and the
general nature of the business to be transacted, and no other business may be
transacted at the meeting.
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Section 9. Action Without Meeting. Any action by the board of
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directors may be taken without a meeting if all members of the board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
board and shall have the same force and effect as a unanimous vote of such
directors.
Section 10. Action at a Meeting; Quorum and Required Vote. Presence
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of a majority of the authorized number of directors at a meeting of the board of
directors constitutes a quorum for the transaction of business, except as
hereinafter provided. Members of the board may participate in a meeting through
use of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participation in a
meeting as permitted in the preceding sentence constitutes presence in person at
such meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as
the act of the board of directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the articles of incorporation, or by these bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting.
Section 11. Validation of Defectively Called or Noticed Meetings.
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The transactions of any meeting of the board of directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the directors not present or who, though present, has
prior to the meeting or at its commencement, protested the lack of proper notice
to him, signs a written waiver of notice or a consent to holding such meeting or
an approval of the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 12. Adjournment. A quorum of the directors may adjourn any
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directors' meeting to meet again at a stated day and hour; provided, however,
that in the absence of a quorum a majority of the directors present at any
directors' meeting, either regular or special, may adjourn from time to time
until the time fixed for the next regular meeting of the board.
Section 13. Notice of Adjournment. If the meeting is adjourned for
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more than 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 adjournment. Otherwise notice of the time and place of
holding an adjourned meeting need not be given to absent directors if the time
and place be fixed at the meeting adjourned.
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Section 14. Fees and Compensation. Directors and members of
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committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
board.
Section 15. Indemnification of Agents of the Corporation; Purchase of
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Liability Insurance.
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(a) For the purposes of this Section, "agent" means any
person who is or was a director, officer, employee or other agent of this
corporation, or is or was serving at the request of this 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 this 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 subdivision (d) or subdivision (e)(3) of this Section.
(b) This corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any proceeding (other than an
action by or in the right of this corporation) by reason of the fact that such
person is or was an agent of this 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 this
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
contenders or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of this corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
(c) This corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of this corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of this
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith, in a manner such person believed to be in the best interests of this
corporation and with such care, including reasonable inquiry, as ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this subdivision (c)
(1) In respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to this corporation in the
performance of such person's duty to this corporation, unless and only to the
extent that the court in which such action was brought shall determine upon
application that, in view of all the circumstances of
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the case, such person is fairly and reasonably entitled to indemnity for the
expenses which such court shall determine;
(2) Of amounts paid in settling or otherwise disposing of
a threatened or pending action, with or without court approval; or
(3) Of expenses incurred in defending a threatened or
pending action which is settled or otherwise disposed of without court approval.
(d) To the extent that an agent of this corporation has been
successful on the merits in defense of any proceeding referred to in subdivision
(b) or (c) 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.
(e) Except as provided in subdivision (d), any indemnification
under this section shall be made by this corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct set forth in subdivision (b) or (c), by:
(1) A majority vote of a quorum consisting of directors
who are not parties to such proceeding;
(2) Approval or ratification by the affirmative vote of a
majority of the shares of this corporation entitled to vote represented at a
duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares entitled to vote. For such
purpose, the shares owned by the person to be indemnified shall not be
considered outstanding or entitled to vote thereon; or
(3) The court in which such proceeding is or was pending,
upon application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by this
corporation.
(f) Expenses incurred in defending any proceeding may be
advanced by this 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 in this Section.
(g) Nothing contained in this Section shall affect any right
to indemnification to which persons other than directors and officers of this
corporation or any subsidiary hereof may be entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this
Section, except as provided in subdivision (d) or subdivision (e)(3), in any
circumstance where it appears:
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(1) That it would be inconsistent with a provision of the
articles, 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
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
(i) Upon and in the event of a determination by the board of
directors of this corporation to purchase such insurance, this corporation shall
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 this corporation
would have the power to indemnify the agent against such liability under the
provisions of this Section.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the corporation shall be a
--------
president, a secretary and a treasurer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice-
presidents, one or more assistant secretaries, one or more assistant treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article. One person may hold two or more offices.
Section 2. Election. The officers of the corporation, except such
--------
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article,
shall be chosen annually by the board of directors, and each shall hold his
office until he shall resign or shall be removed or otherwise disqualified to
serve, or his successor shall be elected and qualified.
Section 3. Subordinate Officers, Etc. The board of directors may
-------------------------
appoint, and may empower the president to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office, for
such period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
Section 4. Removal and Resignation. Any officer may be removed,
-----------------------
either cause, by the board of directors, at any regular or special meeting
thereof or, except in case of an officer chosen by the board of directors, by
any officer upon whom such power of removal may be conferred by the board of
directors (subject, in each case, to the rights, if any, of an officer under any
contract of employment).
Any officer may resign at any time by giving written notice to the
board of
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directors or to the president, or to the secretary of the corporation, without
prejudice however, to the rights, if any, of the corporation under any contract
to which such officer is a party. Any such resignation shall, take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the bylaws for regular appointments to such office.
Section 6. Chairman of the Board. The chairman of the board, if
---------------------
there shall be such an officer, shall, if present, preside at all meetings of
the board of directors and exercise and perform such other powers and duties as
may be from time to time assigned to him by the board of directors or prescribed
by the bylaws.
Section 7. President. Subject to such supervisory powers, if any, as
---------
may be given by the board of directors to the chairman of the board, if there be
such an Officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction anci control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be none, at all meetings of
the board of directors. He shall be ex-officio a member of all the standing
committees including the executive committee, if any, and shall have the general
powers, and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by
the board of directors or the bylaws.
Section 8. Vice-President. In the absence or disability of the
--------------
president, the Vice-Presidents, if there shall be such an office in order of
their rank as fixed by the board of directors or, if not ranked, the vice-
president designated by the board of directors, shall perform all the duties of
the president, and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the president. The vice-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 of directors or the bylaws.
Section 9. Secretary. The secretary shall record or cause to be
---------
recorded, and shall keep or cause to be kept, at the principal executive office
and such other place as the board of directors may order, a book of minutes of
actions taken at all meetings of directors and shareholders, with the time and
place of holding, whether regular or special and, if special, how authorized,
the notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at shareholders' meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of
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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 of directors required by the
bylaws or by law to be given, and he shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by the bylaws.
Section 10. Treasurer. The treasurer shall be the chief financial officer
---------
of the Corporation and shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the corporation. The books of account shall at all reasonable
times be open to inspection by any director.
The treasurer 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
treasurer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or the bylaws.
ARTICLE V
MISCELLANEOUS
Section 1. Record Date. The board of directors may fix a time in the
-----------
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or entitled to give consent
to corporate action in writing without a meeting, to receive any report, to
receive any dividend or distribution, or any allotment of rights, or to exercise
rights in respect to any change, conversion or exchange of shares. The record
date so fixed shall be not more than sixty (60) days nor less than ten (10) days
prior to the date of any meeting, nor more than sixty (60) days prior to any
other event for the purposes of which it is fixed. When a record date is so
fixed, only shareholders of record on that date are entitled to notice of and to
vote at any such meeting, to give consent without a meeting, to receive any
report, to receive a dividend, distribution, or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date, except as
otherwise provided in the articles of incorporation or bylaws.
Section 2. Inspection of Corporate Records. The accounting books and
-------------------------------
records, the records, the record of shareholders, and minutes of proceedings of
the shareholders and the board and committees of the poration and any subsidiary
of this corporation shall be open to inspection upon the written demand on the
corporation of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related to
such holder's interests as a shareholder or as the
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holder of such voting trust certificate. Such inspection by a shareholder or
holder of a voting trust certificate may be made in person or by agent or
attorney, and the right of inspection includes the right to copy and make
extracts.
A shareholder or shareholders holding at least five percent in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent of such voting shares and have filed a Schedule 14B with the
United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
right to inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five business days' prior written
demand upon the corporation and to obtain from the transfer agent for the
corporation, upon written demand and upon the tender of its usual charges, a
list of the shareholders' names and addresses, who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation. Such inspection by a director may
be made in person or by agent or attorney and the right of inspection includes
the right to copy and make extracts.
Section 3. Checks, Drafts, Etc. All checks, drafts or other orders
-------------------
for payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the board of directors.
Section 4. Annual and Other Reports. At such time as this
------------------------
corporation has 100 or more shareholders of record (determined in accord with
Section 605 of the California Corporations Code), the board of directors of the
corporation shall cause an annual report to be sent to the shareholders not
later than 120 days after the close of the fiscal or calendar year. Sending of
such annual report shall be discretionary with the board of directors when this
corporation has less than 100 shareholders of record, and the requirement to
send such report is hereby waived. Such report shall contain a balance sheet as
of the end of such fiscal year and an income statement and statement of changes
in financial position for such fiscal year, accompanied by any report thereon of
independent accountants or, if there is no such report, the certificate of an
authorized officer of the corporation that such statements were prepared without
audit from the books and records of the corporation.
A shareholder or shareholders holding at least five percent of the
outstanding shares of any class of the corporation may make a written request to
the corporation for an income statement of the corporation for the three month,
six-month or nine-month period of the current fiscal year ended more than 30
days prior to the date of the request and a balance sheet of the corporation as
of the end of such period and, in addition, if no annual report for
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the last fiscal year has been sent to shareholders, the annual report for the
last fiscal year. The corporation shall use its best efforts to deliver the
statement to the person making the request within 30 days thereafter. A copy of
any such statements shall be kept in the principal executive office of the
corporation for 12 months and shall be exhibited at all reasonable times to any
shareholder demanding an examination of them or a copy shall be mailed to such
shareholder.
The corporation shall, upon the written request of any shareholder,
mail to the shareholder a copy of the last annual, semi-annual or quarterly
income statement which it has prepared and a balance sheet as of the end of the
period. The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report thereon, if any, independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
Section 5. Contracts, Etc., How Executed. The board of directors,
-----------------------------
except as in the bylaws otherwise provided may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so authorized by the
board of directors, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or to any amount.
Section 6. Certificate for Shares. Every holder of shares in the
----------------------
corporation shall be entitled to have a certificate signed in the name of the
corporation by the chairman or vice chairman of the board or the president or a
vice president and by the chief financial officer or an assistant treasurer or
the secretary or any assistant secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any of the signatures
on the certificate may be facsimile, provided that in such event at least one
signature, including that of either officer or the corporations registrar or
transfer agent, if any, shall be manually signed. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person were an officer, transfer agent or
registrar at the date of issue.
Any such certificate shall also contain such legend or other statement
as may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, the federal securities laws, and any agreement between
the corporation and the issuee thereof.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the board of directors or the bylaws may
provide; provided, however, that any such certificate so issued prior to full
payment shall state on the face thereof the amount remaining unpaid and the
terms of payment thereof.
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No new certificate for shares shall be issued in lieu of an old
certificate unless the latter is surrendered and cancelled at the same time;
provided, however, that a new certificate will be issued without the surrender
and cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) the request for the issuance of
the new certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft; (3) the request for
the issuance of a new certificate is made prior to the receipt of notice by the
corporation that the old certificate has been acquired by a bona fide purchaser;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the corporation; and (5) the owner satisfies
any other reasonable requirements imposed by the corporation. In the event of
the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates, shall be
governed by the provisions of Section 8104 and 8405 of the California Commercial
Code.
Section 7. Representation of Shares of Other Corporation. The
---------------------------------------------
president or any vice-president and the secretary or any assistance secretary of
this corporation are authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation either by such officers
in person or by any other person authorized so to do by proxy or power of
attorney duly executed by said officers.
Section 8. Inspection of Bylaws. The corporation shall keep in its
--------------------
principal executive office in California, or if its principal executive office
is not in California, then at its principal business office in California (or
otherwise provide upon written request of any shareholder) the original or a
copy of the bylaws as amended or otherwise altered to date, certified by the
secretary, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 9. Construction and Definitions. Unless the context
----------------------------
otherwise requires, the general provisions, rules of construction and
definitions contained in the California General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular number
includes the plural and the plural number includes the singular, and the term
"person" includes a corporation as well as a natural person.
ARTICLE VI
AMENDMENTS
Section 1. Power of Shareholders. New bylaws may be adopted or these
---------------------
laws may be amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written assent of shareholders
entitled to vote such shares, except as
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otherwise provided by law or by the articles of incorporation.
Section 2. Power of Directors. Subject to the right of shareholders
------------------
as provided in Section 1 of this Article VI to adopt, amend or repeal bylaws,
bylaws, other than a bylaw or amendment thereof changing the authorized number
of directors, may be adopted, amended or repealed by the board of directors.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
That I am the duly elected and acting secretary of Kilovac
International, Inc., a California corporation and that the foregoing Bylaws
constitute
the Bylaws of said corporation as duly adopted by action of the Sole
Incorporator of the corporation duly taken on December 15, 1977.
____________________________________
William H. Bigler
(Seal)
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