EXHIBIT 3.52
BY-LAWS
OF
XANTECH CORPORATION
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of the corporation is hereby fixed and located at 13038 Saticoy Street, City of
North Hollywood, State of California. The Board of Directors is hereby granted
full power an authority to change said principal executive office from one
location to another. The location of the principal executive office of the
corporation need not be in the State of California.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any time
be established by the Board of Directors at any place or places.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of shareholders shall be
held either at the principal executive office or at any other place within or
without the State of California which may be designated either by the Board of
Directors pursuant to authority hereinafter granted to said Board, or by written
consent of all shareholders entitled to vote thereat, given either before or
after the meeting, filed with the Secretary of the corporation.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders,
commencing with the meeting to be held in 1978, shall be held at 10:00 o'clock
A.M. on the 15th day of January if not a legal holiday, and if a legal holiday,
then on the next business day following which is not a legal holiday, or at such
other time and date as may be designated by the Board of Directors. At such
meeting the shareholders shall elect a Board of Directors in accordance with the
provisions of Article II, Section 6 of the By-Laws, and transact such other
business as may properly be brought before the meeting.
Written notice of each annual meeting shall be given to each
shareholder entitled to vote thereat, either personally or by mail or other
means of written communication, charges prepaid, addressed to such shareholder
at his or her address appearing on the books of the corporation or given by him
or her 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 to 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 or her 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 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.
Such notices shall specify:
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(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 California General Corporations 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, for
any purpose or purposes whatsoever may be called at any time by the Chairman of
the Board or the President, or by the Board of Directors, or by holders of
shares entitled to cast not less than ten percent (10%) of the votes at the
meeting. Upon request in writing directed to the Chairman of the Board,
President, Vice President or Secretary by any person (other than the Board)
entitled to call a special meeting of shareholders, such 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. If the notice is not given within twenty (20) days after receipt of the
request, the persons entitled to call the meeting may give the notice. Except in
cases where other express provision is made by statute, notice of such special
meeting shall be given in the same manner as required for annual meetings of
shareholders. In addition to the matters required by items (a) and, if
applicable, (c) of Section 2 above, 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. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by vote of a majority of the shares, the holders of which are
either present in person or by proxy thereat, but in the absence of a quorum
(except as provided in Section 7 below), no other business may be transacted at
any such meeting.
When any shareholders' meeting, either annual or special, is adjourned
for forty-five (45) 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.
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Section 5. ENTRY OF NOTICE. Whenever any shareholder entitled to vote
has been absent from any meeting of shareholders, whether annual or special, an
entry in the minutes to the effect that notice has been duly given shall be
sufficient evidence that due notice of such meeting was given to such
shareholder as required by law and the By-Laws of the corporation.
Section 6. VOTING.
(a) Generally: The shareholders entitled to notice of any
meeting or to vote at any such meeting shall be only persons in whose
name shares stand on the stock records of the corporation on the record
date determined in accordance with Section 1 of ARTICLE VI.
(b) Ballots: Such vote may be viva voce or by ballot;
provided, however, upon demand made by a shareholder at any election
and before the voting begins, all elections for directors must be by
ballot.
(c) Action by Majority: 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 shareholders, unless the vote of a
greater number or voting by classes is required by the California
General Corporations Law or the Articles of Incorporation.
(d) Cumulative Voting: Subject to the requirements hereinbelow
provided, every shareholder entitled to vote at any election for
directors shall have the right to cumulate such shareholder's votes and
give one candidate a number of votes equal to the number of directors
to be elected multiplied by the number of votes to which the
shareholder's shares are entitled, or to distribute the shareholder's
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 the shareholder has
given notice at the meeting prior to the voting, of the shareholder's
intention to cumulate the shareholder's votes. If any one shareholder
has given such notice, all shareholders may cumulate their votes for
candidates in nomination. 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. QUORUM. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote 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 8. CONSENT OF ABSENTEES. The 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 is present either in person or by proxy, and if, either before or after
the meeting, each of the persons entitled to vote, not
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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. Except as provided in Sections 601(e) and
601(f) of the California General Corporations Law, the business transacted at
the meeting need not be specified in a written waiver of notice by a
shareholder. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 9. ACTION WITHOUT MEETING.
(a) Election of Directors by Written Consent: Directors may be
elected without a meeting by a consent in writing, setting forth the
actions so taken, signed by all the persons who would be entitled to
vote for the election of directors. 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.
(b) Other Actions b Written Consent: Any other action which,
under any provision of the California General Corporations 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.
(c) Notice of Action by Written Consent: 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 2 of this
ARTICLE II. In the case of approval of (i) contracts or transactions in
which a director has a direct or indirect financial interest, pursuant
to Section 310 of the Corporations Code of California, (ii)
indemnification of agents of the corporation, pursuant to Section 317
of that Code, (iii) a reorganization of the corporation, pursuant to
Section 1201 of that Code, and (iv) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares,
pursuant to Section 2007 of that Code, the notice shall be given at
least ten (10) days before the consummation of any action authorized by
that approval.
(d) Record Date: Unless, as provided in Section 1 of Article
VI of these By-Laws, 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.
(e) Revocation of Written Consent: Any shareholder giving a
written consent, or the shareholder's proxy holders, or a transferee of
the shares or a personal
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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 has 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.
(f) Form of Written Consent: The form of written consent shall
be governed by the provisions of Section 604 of the California
Corporations Law where applicable.
Section 10. PROXIES. Every person entitled to vote or execute 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. Notwithstanding the
foregoing, a proxy may be made irrevocable pursuant to the provisions of Section
705(e) of the California General Corporations Law. The form of proxy shall be
governed by the provisions of Section 604 of the California General Corporations
Law, where applicable.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
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 are 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
(1) or three (3). 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 (1) or three (3) 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.
The duties of such inspectors shall be as prescribed in Section 707(b)
of the California General Corporations 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 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 validity and effect of proxies, the dates contained on the
forms of proxies shall presumptively determine the order of execution of the
proxies, regardless of the postmarked dates on the envelopes on which they are
mailed.
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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 (3) 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 herein.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to any limitations in the Articles of
Incorporation and the California General Corporations Law relating to action
requiring shareholder approval, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board of Directors. The Board of Directors may delegate the
management of the day-to-day operation of the business of the corporation to a
management company or other person, provided that the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board of Directors. Without prejudice to
such general powers, but subject to the same limitations, it is hereby expressly
declared that the Board shall have the following powers in addition to the other
powers enumerated in these By-laws:
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(a) To select and remove all the other officers, agents, and
employees of the corporation, prescribe the powers and duties for them
as may not be inconsistent with law, or with the Articles or these
By-Laws, fix their compensation, and require from them security for
faithful service.
(b) To conduct, manage, and control the affairs and business
of the corporation and to make such rules and regulations therefor not
inconsistent with law, or with the Articles or these By-Laws, as they
may deem best.
(c) To adopt, make, and use a corporate seal, and to prescribe
the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time as in their judgment they
may deem best.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for such
consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of
the corporation, and to cause to be executed and delivered therefor, in
the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, or other evidences of debt
and securities therefor.
Section 12. NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized
number of directors of the corporation shall be five (5) until changed by
amendment of the Articles of Incorporation or by a By-Law duly adopted by the
shareholders amending this Section 2.
Section 13. ELECTION ANA TERM OF OFFICE. The directors shall be elected
at each annual meeting of the shareholders, but if any such annual meeting is
not held, or the directors are not elected thereat, the directors may be elected
at any special meeting of the shareholders held for that purpose. All directors
shall hold office at the pleasure of the shareholders or until their respective
successors are elected. The shareholders may at any time, either at a regular or
special meeting, remove any director and elect his or her successor:
Section 14. RESIGNATION AND REMOVAL OF DIRECTORS.
(a) Resignation: Any director may resign effective upon giving
written notice to the Chairman of the Board, the President, Secretary
or the Board of Directors of the corporation, unless the notice
specifies a later time for the effectiveness of such resignation, in
which case such resignation shall be effective at the time specified.
(b) Unsound Mind; Felony: The Board of Directors may declare
vacant the Office of a director who has been declared of unsound mind
by an order of Court or convicted of a felony.
(c) Removal Without Cause b Shareholders: Any or all of the
directors may be removed without cause if such removal is approved by
the affirmative vote of a majority of the outstanding shares entitled
to vote, provided that no director may be removed (unless the entire
board is removed) when the votes cast against removal, or not
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consenting in writing to such removal, would be sufficient to elect
such director if voted cumulatively at an election at which the same
total number of votes were cast (or, if such action is taken by written
consent, all shares entitled to vote were voted) and the entire number
of directors authorized at the time of the director's most recent
election were then being elected.
(d) Reduction of Authorized Number of Directors: No reduction
of the authorized number ofdirectors shall have the effect of removing
any director before his term of office expires.
Section 15. VACANCIES.
(a) Vacancy Defined: A vacancy in the Board of Directors shall
deemed to exist in the 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
is 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.
(b) Action by Board of Directors: 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, although less
than a quorum, or by a sole remaining director, and each director so
elected shall hold office until a 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 be filled only by
the vote of 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.
(c) Action by Shareholders: 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.
Section 16. PLACE OF MEETING. Regular and special meetings of the Board
of Directors shall be held at any place within or without the State which has
been designated in the notice of the meeting, or, if not stated in the notice or
there is no notice, designated by resolution of the Board of Directors or,
either before or after the meeting, consented to in writing by members of the
Board pursuant to the provisions of ARTICLE III, Section 10 of these By-Laws. If
the place of a regular or special meeting is not designated in the notice or
fixed by a resolution of the Board or consented to in writing by all members of
the Board, it shall be held at the corporation's principal executive office.
Section 17. ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting for
the purpose of organization, election of officers, and the transaction of other
business. Notice of such meeting is hereby dispensed with.
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Section 18. OTHER REGULAR MEETINGS. Other regular meetings of the Board
of Directors shall be held without call, at the principal executive office of
the corporation or such other place as shall be determined by the directors, on
the 15th day of each month, at 10:00 o'clock A.M.; provided, however, that
should said day fall upon a legal holiday, then said meeting shall be held at
the same time and place on the next day thereafter ensuing which is not a legal
holiday. Notice of all such regular meetings of the Board of Directors shall not
be required.
Section 19. SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose may be called at any time by the Chairman of the Board
or the President or any Vice President or the Secretary or any Assistant
Secretary, or any two directors. Notice of the time of special meetings shall be
delivered personally or by telephone or telegraph or sent to the directors by
mail. In case notice is given by mail, or telegram, it shall be sent, charges
prepaid, addressed to him or her at his or her address as it is shown on the
records of the corporation, or if it is not on these records or is not readily
ascertainable, at the place where the regular Board meetings are held. If notice
is delivered personally or given by telephone or telegraph, it shall be given or
delivered to the telegraph office at least twenty-four (24) hours before the
meeting. If notice is mailed, it shall be deposited in the United States mail at
least forty-eight (48) hours before the meeting.
A notice, or waiver of notice, need not specify the purpose of the
meeting of the Board of Directors.
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Section 20. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board of Directors by law, according to the Articles of
Incorporation or according to these By-Laws 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 21. MEETINGS BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such a
meeting can hear and speak to one another. Participation by a director in a
meeting in the manner provided in this Section shall constitute presence in
person by such director at such meeting.
Section 22. ACTION AT MEETING: QUORUM AND REQUIRED VOTE. Presence 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. 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 is 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, the
Articles of Incorporation or these By-Laws. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of one or more directors, provided that any action taken is approved
by at least a majority of the required quorum for such meeting.
Section 23. 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 be 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 in approval of the minutes
thereof. A waiver of notice need not specify the purpose of any regular or
special meeting of the Board of Directors. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 24. ADJOURNMENT. A majority of the directors present, whether
or not a quorum is present, may adjourn any meeting to another time and place.
If the meeting is adjourned for more than twenty-four (24) hours, notice of the
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who are not present at the time of the
adjournment.
Section 25. FEES AND COMPENSATION. Directors shall not receive any
stated salary for their services as directors, but, by resolution of the board,
a fixed fee, with or without expenses of attending, may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent, employee, or otherwise, and receiving compensation therefor.
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ARTICLE III
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be:
a. President
b. Vice-President
c. Secretary
d. Treasurer
e.
The corporation may also have, at the discretion of the Board of
Directors, a chairman of the Board, one or more additional vice-presidents, one
or more assistant-secretaries, one or more assistant-treasurers, and such other
offices as may be appointed by the Board of Directors. Officers need not be
directors. One person may hold two or more offices.
Section 2. ELECTIONS. The officers of the corporation designated in the
preceding section of this Article, except such officers as may be elected or
appointed in accordance with Section 3 or Section 5 of this Article, shall be
chosen annually by the Board of Directors, and each shall hold his or her office
at the pleasure of the Board of Directors, who may, either at a regular or
special meeting, remove any such officer and appoint his or her successor.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may
appoint such other officers as the business of the corporation may require, each
of whom shall hold office for such period, have such authority and perform such
duties as are provided in the By-Laws or as the Board of Directors may from time
to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board of Directors at that time in office, at a
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 or 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 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.
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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 By-Laws 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 or her by the Board of Directors as
prescribed by the By-Laws.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board of Directors to the chairman of the board, if there be
such an officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and affairs 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 By-Laws.
Section 8. VICE-PRESIDENT. In the absence or disability of the
president, the vice-presidents in order of their rank as president designated by
the Board of Directors, shall perform all the duties of the president, and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice-president shall have such other powers and perform
such other duties as from time to time may be prescribed for them respectively
by the Board of Directors or the By-Laws.
Section 9. SECRETARY. The secretary shall record or cause to be
recorded, and shall keep a book of minutes at the principal executive office or
such other place as the Board of Directors may order, of actions taken at all
meetings of directors, shareholders and its committees, with the time and place
of holding, whether regular or special and if special, how authorized, the
notice thereof given, the names of those directors and shareholders present, the
names,of those present at the directors' meeting, 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 address; the number and classes of shares held by each; the number and
date of certificates issued for the same; the number and date cancellation of
every certificate surrendered for cancellation.
The secretary shall give or cause to be given, notice of all meetings
of shareholders and the Board of Directors, as required by the By-Laws or By-Law
to be given, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or the By-Laws.
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Section 10. TREASURER. The treasurer shall be the chief financial
officer of the corporation and keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus, surplus shares and
shall send or cause to be sent to the Shareholders of the Corporation such
financial statements and reports as are by law or these By-Laws required to be
sent to them. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all times
be open for inspection by any director.
The chief financial officer shall deposit all monies 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 or she shall
disburse the funds of the corporation as may be ordered by the Board of
Directors and shall render to the president and directors, when they request it,
an account of all of his or her transactions as chief financial officer 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 of the
By-Laws.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
The Board may appoint one or more committees, each consisting of two or
more directors, and delegate to such committees any of the authority of the
Board except with respect to:
(a) The approval of any action for which the General
Corporation Law also requires shareholders' approval for approval of
the outstanding shares;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for serving on
the Board or on any committee;
(d) The amendment or repeal of By-Laws or the adoption of new
By-Laws;
(e) The amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation
except at a rate or in a periodic amount or within a price range
determined by the Board;
(g) The appointment of other committees of the Board or the
members thereof.
Any such committee must be appointed by resolution adopted by a
majority of the authorized number of directors and may be designated an
Executive Committee or by such other name as the Board shall specify. The Board
shall have the power to prescribe the manner in which proceedings of any such
committee shall be conducted. In the absence of any such
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prescription, such committee shall have the power to prescribe the manner in
which its proceedings shall be conducted. Unless the Board or such committee
shall otherwise provide, the regular and special meetings and other actions of
any such committee shall be governed by the provisions of this Article
applicable to meetings and actions of the Board. Minutes shall be kept of each
meeting of each committee.
ARTICLE V
CORPORATE RECORDS AND REPORTS -- INSPECTION
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 not be more than sixty (60) days nor less than ten (10) days
prior to the date of any meeting, not 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 By-Laws.
If no record date is fixed by the Board, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held. The record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, when no prior action by the Board
is necessary, shall be the day on which the first consent is given.
The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto, or the 60th day prior to the date of such other
action whichever is later.
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Section 2. INSPECTION OF CORPORATE RECORDS. The accounting books and
records, the record of shareholders, and minutes of proceedings of the
shareholders and the Board and committees of the board of this corporation 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 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 (5) percent in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one (1) 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 (5) 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 (5) business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled.
The accounting books and records and minutes of proceedings of the
shareholders and the Board and committees of the Board shall be open to
inspection upon 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 a holder of such voting trust certificate.
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.
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Section 3. CERTIFICATION AND INSPECTION OF BYLAWS. The original or a
copy of these By-Laws, as amended or otherwise altered to date, certified by the
secretary, shall be open to inspection by the shareholders at all reasonable
times during office hours. If the principal executive office of the corporation
is outside the State of California and the corporation has no principal business
office in such state, it shall upon the written notice of any shareholder
furnish to such shareholder a copy of these By-Laws as amended to date.
Section 4. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
Section 5. CONTRACTS, ETC. -- HOW EXECUTED. The Board of Directors,
except as in the By-Laws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the corporation. Such authority may be general
or confined to specific instances. Unless so authorized by the Board of
Directors, no officer, 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. ANNUAL AND OTHER REPORTS. The Board of Directors of the
corporation shall cause an annual report to be sent to the shareholder no later
than 120 days after the close of the fiscal or calendar year. 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 the 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 (5) percent of the
outstanding shares of any class of the corporation may make a written request of
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 thirty
(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 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 thirty (30) days thereafter. A
copy of any such statements shall be kept on file in the principal executive
office of the corporation for twelve (12) months and they 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, semiannual 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, of 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.
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ARTICLE VI
CERTIFICATES AND TRANSFER OF SHARES
Section 1. 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 corporation's registrar or
transfer agent, if any, shall be manually signed. In any 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 By-Laws 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.
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 2. TRANSFER ON THE BOOKS. Upon surrender to the secretary or
transfer agent of the corporation by proper evidence of succession, assignment
or authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact and advertise the same in such manner as the Board of
Directors may require, and shall if the
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directors so require give the corporation a bond of indemnity, in form with one
or more sureties satisfactory to the board, in at least double the value of the
stock represented by said certificate, whereupon a new certificate may be issued
of the same tenor and for the same number of shares as the one alleged to be
lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company -- either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the corporation may necessitate and the Board of Directors may
designate.
Section 5. RECORD DATE AND CLOSING BOOKS. The Board of Directors may
fix a time in the future as a record date for the determination of the
shareholders entitled to give consent to corporate action in writing without a
meeting to receive any report, dividends 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 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 By-Laws.
The Board of Directors may close the books of the corporation against
transfers of shares during the whole or any part of a period of not more than
sixty (60) days prior to the date of a shareholders' meeting, the date when the
right to any dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion, or exchange of shares.
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Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
president or any vice-president and the secretary or assistant secretary of this
corporation are authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares oL 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 in any other corporation or
corporations, may be exercised either by such officers in person or by a person
authorized so to do by proxy or power of attorney duly executed by said
officers.
Section 7. 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 By-Laws. 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 VII
INDEMNIFICATION
Section 1. DEFINITIONS. For the purposes of this Article "agent"
includes any person who is or was a director, officer, employee, or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" includes any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes attorneys' fees and any
expenses of establishing a right to indemnification under Section 4 or Section
5(c).
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was an agent of
the corporation, against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with such proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in the best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of the
corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
Section 3. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending, or
completed action by or in
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the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was an agent of the corporation, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action if such person acted in good faith, in a manner
such person believed to be in the best interests of the corporation, and with
such care, including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances. No indemnification shall be
made under this Section 3:
(a) In respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the corporation, unless and only
to the extent that the court in which such action was brought shall
determine upon application that, in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity
for the expenses which such court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court
approval.
Section 4. INDEMNIFICATION AGAINST EXPENSES. To the extent that an
agent of the corporation has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 or in defense of any claim, issue or
matter therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED DETERMINATIONS. Except as provided in Section 4,
any indemnification under this Article shall be made by the corporation only if
authorized in the specific case, upon a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3 by:
(a) A majority vote of a quorum consisting of directors who
are not parties to such proceeding;
(b) Approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether
or not such application by the agent, attorney, or other person is
opposed by the corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the corporation prior to the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in this Article.
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Section 7. OTHER INDEMNIFICATION. No provision made by the corporation
to indemnify its or its subsidiary's directors or officers for the defense of
any proceeding, whether contained in the Articles, By-Laws, a resolution of
shareholders or directors, an agreement, or otherwise, shall be valid unless
consistent with this Article. Nothing contained in this Article shall affect any
right to indemnification to which persons other than such directors and officers
may be entitled by contract or otherwise.
Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification
or advance shall be made under this Article, except as provided in Section 4 or
5(c) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the
Articles, By-Laws, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification;
or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 9. INSURANCE. The corporation shall have the 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.
Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS.
This Article does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an agent of the
corporation as defined in Section l. Nothing contained in this Article shall
limit any right to indemnification to which such a trustee, investment manager,
or other fiduciary may be entitled by contract or otherwise which shall be
enforceable to the extent permitted by applicable law other than Section 317 of
the California General Corporation Law.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the word
"California."
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ARTICLE IX
AMENDMENTS TO BY-LAWS
Section 1. BY SHAREHOLDERS. New By-Laws may be adopted or these By-Laws
may be repealed or amended at their annual meeting, or at any other meeting of
the shareholders called for that purpose, by a vote of shareholders entitled to
exercise a majority of the voting power of the corporation, or by written assent
of such shareholders, except as 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 X to adopt, amend, or repeal By-Laws,
other than a By-Law or amendment thereof changing the authorized number of
Directors, these By-Laws may be adopted, amended or repealed by the Board of
Directors.
I, the undersigned, hereby certify:
1. That I am the duly elected, qualified and acting Secretary of
XANTECH CORPORATION.
2. That the foregoing By-Laws of said corporation were duly adopted as
the By-Laws thereof at a Special Meeting of the Shareholders of said corporation
held on the 30th day of June, 1977 and that the same do now constitute the
By-Laws of aid corporation.
Executed this 30(th) day of June,1977.
/s/ Robert L. Seymour
------------------------------
Robert L. Seymour, Secretary of
XANTECH CORPORATION
A California Corporation