BYLAWS
OF
SAFARILAND GOVERNMENT SALES, INC.,
A California Corporation
TABLE OF CONTENTS
OF
BYLAWS
ARTICLE I. OFFICES Page
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Section 1. Principal Executive Office........................................1
Section 2. Other Offices.....................................................1
ARTICLE II. SHAREHOLDERS
Section 1. Place of Meetings.................................................1
Section 2. Annual Meetings...................................................1
Section 3. Special Meetings..................................................1
Section 4. Notice of Annual or Special Meetings..............................1
Section 5. Quorum............................................................2
Section 6. Adjourned Meetings and Notice Thereof.............................3
Section 7. Voting............................................................3
Section 8. Record Date.......................................................5
Section 9. Consent of Absentees..............................................5
Section 10. Action Without Meeting............................................5
Section 11. Proxies...........................................................6
Section 12. Inspectors of Election............................................6
Section 13. Conduct of Meeting................................................6
ARTICLE III. DIRECTORS
Section 1. Powers............................................................7
Section 2. Number of Directors...............................................7
Section 3. Election and Term of Office.......................................7
Section 4. Vacancies.........................................................7
Section 5. Place of Meeting..................................................8
Section 6. Regular Meetings..................................................8
Section 7. Special Meetings..................................................8
Section 8. Quorum............................................................9
Section 9. Participation in Meetings by Conference Telephone.................9
Section 10. Waiver of Notice..................................................9
Section 11. Adjournment......................................................10
Section 12. Fees and Compensation............................................10
Section 13. Action Without Meeting...........................................10
Section 14. Rights of Inspection.............................................10
Section 15. Committees.......................................................10
ARTICLE IV. OFFICERS
Section 1. Officers.........................................................11
Section 2. Election.........................................................11
Section 3. Subordinate Officers.............................................11
Section 4. Removal and Resignation..........................................11
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ARTICLE IV. OFFICERS (Cont'd)
Section 5. Vacancies........................................................11
Section 6. Chairman of the Board............................................11
Section 7. President........................................................11
Section 8. Vice Presidents..................................................12
Section 9. Secretary........................................................12
Section 10. Chief Financial Officer..........................................12
ARTICLE V. OTHER PROVISIONS
Section 1. Inspection of Corporate Records..................................13
Section 2. Inspection of Bylaws.............................................13
Section 3. Execution of Documents; Contracts................................13
Section 4. Certificates of Stock............................................14
Section 5. Representation of Shares of Other Corporations...................14
Section 6. Stock Purchase Plans.............................................14
Section 7. Annual Report to Shareholders....................................15
Section 8. Construction and Definitions.....................................15
ARTICLE VI. INDEMNIFICATION
Section 1. Definitions......................................................15
Section 2. Indemnification in Actions by Third Parties......................15
Section 3. Indemnification in Actions by or in The Right of
The Corporation...............................................15
Section 4. Indemnification Against Expenses.................................16
Section 5. Required Determinations..........................................16
Section 6. Advance of Expenses..............................................16
Section 7. Other Indemnification............................................17
Section 8. Forms of Indemnification Not Permitted...........................17
Section 9. Insurance........................................................17
Section 10. Nonapplicability to Fiduciaries of Employee
Benefit Plans.................................................17
ARTICLE VII. EMERGENCY PROVISIONS
Section 1. General..........................................................17
Section 2. Unavailable Directors............................................18
Section 3. Authorized Number of Directors...................................18
Section 4. Quorum...........................................................18
Section 5. Creation of Emergency Committee..................................18
Section 6. Constitution of Emergency Committee..............................18
Section 7. Powers of Emergency Committee....................................19
Section 8. Directors Becoming Available.....................................19
Section 9. Election of Board of Directors...................................19
Section 10. Termination of Emergency Committee...............................19
ARTICLE VIII. AMENDMENTS.....................................................19
PRESIDENT'S CERTIFICATE OF ADOPTION OF BYLAWS
IN LIEU OF SECRETARY'S CERTIFICATION......................................19
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BYLAWS
OF
SAFARILAND GOVERNMENT SALES, INC.
ARTICLE I.
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the corporation is located at such place as the Board of Directors (below called
the "Board") shall determine. The Board is authorized to change the principal
executive office from one location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may be established
at any time by or under the authority of the Board at any place or places.
ARTICLE II.
SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held either
at the principal executive office of the corporation or at any place within or
without California that is designated either by the Board or by the written
consent of all persons entitled to vote at the meeting, given either before or
after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders shall be
held on a date and at a time fixed by the Board. At annual meetings, directors
shall be elected and any other proper business may be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by the Board, the Chairman of the Board, the President, or by
the holders of shares entitled to cast not less than 10 percent of the votes at
such meeting. Upon request in writing to the Chairman of the Board, the
President, any Vice President or the Secretary by any person(s) other than the
Board entitled to call a special meeting of shareholders, the officer forthwith
shall cause notice to be given to the shareholders entitled to vote that a
meeting will be held at a time requested by the person or persons calling the
meeting, not less than 35 nor more than 60 days after the receipt of the
request. If the notice is not given within 20 days after receipt of the request,
the person(s) entitled to call the meeting may give the notice.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written notice of each
annual or special meeting of shareholders shall be given not less than 10 (or,
if sent by third-class mail, 30) or more than 60 days before the date of the
meeting to each shareholder entitled to vote at the meeting. The notice shall
state the place, date, and hour of the meeting and (a) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (b) in the case of the annual meeting, those
matters which the Board, at the time of the mailing of the notice, intends to
present for action of the shareholders, but, subject to the provisions of
applicable law, any proper matter may be presented at the meeting for action.
The notice of any meeting at which directors are to be elected shall include the
names of nominees intended at the time of the notice to be presented by the
board for election.
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Any shareholder approval at a meeting, other than unanimous approval by
those entitled to vote, pursuant to the following sections of the California
Corporations Code shall be valid only if the general nature of the proposal so
approved was stated in the notice of meeting or in any written waiver of notice:
(a) Section 310: contracts in which a director has a material financial
interest;
(b) Section 902: certain amendments of the articles of incorporation;
(c) Section 1201: approval of the principal terms of a reorganization;
(d) Section 1900: election to wind up and dissolve; and
(e) Section 2007: certain distributions other than cash to holders of
preferred shares.
Notice of a shareholders' meeting shall be given to each shareholder either
personally or by first-class mail or by other means of written communication,
or, if the corporation has outstanding shares held of record by 500 or more
persons (determined as provided in Corporations Code Section 605) on the record
date for the shareholders' meeting, notice may be sent by third-class mail or by
other means of written communication, addressed to the shareholder at the
address of the shareholder appearing on the books of the corporation or given by
the shareholder to the corporation for the purpose of notice. If no address for
that shareholder appears or is given, notice may be given at the place where the
principal executive office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located. Notice by mail shall be deemed to have
been given at the time a written notice is deposited in the United States mails,
postage prepaid. Notice by mail shall be by first-class mail unless these Bylaws
specify or permit some other form of mail. Any other written notice shall be
deemed to have been given at the time it is personally delivered to the
recipient or is delivered to a common carrier for transmission, or actually
transmitted by the person giving the notice by electronic means, to the
recipient.
If any notice or report addressed and sent to a shareholder at the address
of the shareholder appearing on the books of the corporation is returned to it
by the United States postal service marked to indicate that the service is
unable to deliver the notice to the shareholder at that address, all future
notices or reports shall be deemed to have been duly given without further
mailing if they 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.
Section 5. QUORUM. A majority of the shares entitled to vote, represented
in person or by proxy, shall constitute a quorum at any meeting of shareholders.
The affirmative vote of the majority of the shares represented and voting at a
duly held meeting at which a quorum is present (provided that shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number or voting by
classes is required by law or by the Articles and except as provided in the
following sentence. The shareholders present at a duly called or held meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
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Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders,
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares represented either in person or by proxy
at the meeting, but in the absence of a quorum (except as provided in Section 5
of this Article) no other business may be transacted at the meeting.
It shall not be necessary to give any notice of the time and place of an
adjourned meeting or of the business to be transacted at it, other than by
announcement at the meeting at which the adjournment is taken; except that, if
any shareholders' meeting is adjourned for more than 45 days or, if after
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given in the same manner as for an original meeting.
Section 7. VOTING. The only shareholders entitled to notice of or to vote
at any meeting of shareholders shall be persons in whose name shares entitled to
vote stand on the stock records of the corporation on the record date determined
in accordance with Section 8 of this Article.
Voting of shares of the corporation shall in all cases be subject to the
provisions of Sections 700-711 of the Corporations Code and to the following
provisions:
(a) Subject to clause (h), shares held by an administrator, executor,
guardian, conservator, or custodian may be voted by the holder either in
person or by proxy, without a transfer of the shares into the holder's
name; and shares standing in the name of a trustee may be voted by the
trustee, either in person or by proxy, but no trustee shall be entitled to
vote shares held by the trustee without a transfer of the shares into the
trustee's name.
(b) Shares standing in the name of a receiver may be voted by the
receiver, and shares held by or under the control of a receiver may be
voted by the receiver without being transferred into the receiver's name if
authority to vote the shares is contained in the order of the court by
which the receiver was appointed.
(c) Subject to the provisions of Corporations Code Section 705, and
except where otherwise agreed in writing between the parties, a shareholder
whose shares are pledged shall be entitled to vote them until they have
been transferred into the name of the pledgee. Thereafter, the pledgee
shall be entitled to vote the shares so transferred.
(d) Shares standing in the name of a minor may be voted and the
corporation may treat all rights incident to the shares as exercisable by
the minor, in person or by proxy, whether or not the corporation has
notice, actual or constructive, of the nonage, unless a guardian of the
minor's property has been appointed and written notice of that appointment
has been given to the corporation.
(e) Shares held by or under the control of an attorney-in-fact may, if
the power of attorney appointing the attorney-in-fact authorizes the
attorney-in-fact to vote the shares, be voted and the corporation may treat
all rights incident to them as exercisable by the attorney-in-fact, in
person or by proxy, without their transfer into the name of the
attorney-in-fact.
(f) Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxyholder as the bylaws
of the other corporation
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may prescribe or, in the absence of such a provision, as the Board of
Directors of the other corporation may determine or, in the absence of such
determination, by the chairman of the board, president or any vice
president of the other corporation, or by any other person authorized to do
so by the chairman of the board, president, or any vice president of the
other corporation. Shares which are purported to be voted or any proxy
purported to be executed in the name of a corporation (whether or not any
title of the person signing is indicated) shall be presumed to be voted or
the proxy executed in accordance with the provisions of this clause, unless
the contrary is shown.
(g) Shares of the corporation owned by a subsidiary of the corporation
shall not be entitled to vote on any matter.
(h) Shares of the corporation held by it in a fiduciary capacity, and
shares of the corporation held in a fiduciary capacity by any subsidiary,
shall not be entitled to vote on any matter except (i) to the extent that
the settlor or beneficial owner possesses and exercises a right to vote or
to give the corporation binding instructions as to how to vote the shares,
and (ii) when there are one or more co-trustees who are not affected by the
prohibition of this clause, in which case the shares may be voted by the
co-trustee(s) as if it or they are the sole trustee.
(i) If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a shareholder voting
agreement or otherwise, or if two or more persons (including proxyholders)
have the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the
relationship in which the contrary is so provided, their acts with respect
to voting shall have the following effect:
(i) If only one votes, that act binds all;
(ii) If more than one vote, the act of the majority so voting
binds all;
(iii) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in
question proportionately. If the instrument so filed or the
registration of the shares shows that any such tenancy is held in
unequal interests, a majority or even split for the purpose of
this section shall be a majority or even split in interest.
Subject to the following sentence and to the provisions of Corporations
Code Section 708 and except as otherwise provided in the Articles, every
shareholder entitled to vote at any election of directors may cumulate the
shareholder's votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which the
shareholder's shares are normally entitled, or may distribute the shareholder's
votes on the same principle among as many candidates as the shareholder thinks
fit. No shareholder shall be entitled to cumulate votes for any candidate or
candidates pursuant to the preceding sentence unless the candidate's or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice, at the meeting prior to the voting, of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given that notice, all shareholders may cumulate their votes for
candidates in nomination.
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Elections need not be by ballot; except that all elections for directors
must be by ballot upon demand made by a shareholder at the meeting and before
the voting begins. In any election of directors, the candidates receiving the
highest number of votes of the shares entitled to be voted for them up to the
number of directors to be elected by those shares are elected.
Section 8. RECORD DATE. The Board may fix, in advance, a record date to
determine the shareholders entitled to notice of any meeting or to vote or
entitled to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect of any other lawful
action. A record date shall not be fixed more than 60 or less than 10 days prior
to the date of the meeting or more than 60 days prior to any other action. When
a record date is fixed, only shareholders of record on that date are entitled to
notice of and to vote at the meeting or to receive the dividend, distribution,
or allotment of rights, or to exercise of the rights, as the case may be,
notwithstanding any transfer of shares on the books of the corporation after the
record date. A record date for a meeting of shareholders shall apply to any
adjournment of the meeting unless the Board fixes a new record date for the
adjourned meeting. The Board shall fix a new record date if the meeting is
adjourned for more than 45 days.
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 of the meetings is given or, if notice is waived, at the close of
business on the business day next preceding the day on which the meeting is
held. The record date for determining shareholders for any purpose other than
set forth in this Section 8 or Section 10 of this Article shall be at the close
of business on the day on which the Board adopts the resolution relating
thereto, or the sixtieth day prior to the date of such other action, whichever
is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote who was not present in person or
by proxy signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes of the meeting. All such waivers,
consents, or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a waiver of notice of
and presence at the meeting, except when the person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by the
California General Corporation Law to be included in the notice of the meeting
but not so included, if the objection is expressly made at the meeting. Neither
the business to be transacted at nor the purpose of any regular or special
meeting of shareholders need be specified in any written waiver of notice,
consent to the holding of the meeting or approval of the minutes of the meeting,
except that if any action with respect to any of the matters referred to in the
second paragraph of Section 4 of this Article was or is to be taken at the
meeting, the waiver of notice of the meeting must state that that action was to
be or will be taken.
Section 10. ACTION WITHOUT MEETING. Subject to Corporations Code Section
603, any action which, under any provision of that law, may be taken at any
meeting of shareholders, may be taken without a meeting and without prior notice
if a consent in writing, setting forth the action so taken, shall be 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
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a meeting at which all shares entitled to vote thereon were present and voted.
Unless a record date for voting purposes is fixed as provided in Section 8 of
this Article, the record date for determining shareholders entitled to give
consent pursuant to this Section 10, when no prior action by the Board has been
taken, shall be the day on which the first written consent is given.
Section 11. PROXIES. Every person entitled to vote shares has the right to
do so either in person or by one or more persons authorized by a written proxy
executed by the person entitled to vote and filed with the Secretary. A proxy
duly executed continues in full force and effect until revoked by the person
executing it before the vote pursuant thereto. A proxy may be revoked either (i)
by a writing delivered to the Secretary stating that the proxy is revoked, (ii)
by a subsequent proxy executed by the person executing the prior proxy and
presented to the meeting, or (iii) as to any meeting, by attendance at the
meeting and voting in person by the person executing the proxy. No proxy shall
be valid after the expiration of 11 months from the date of its execution unless
otherwise provided in the proxy. The dates contained on proxies presented to a
meeting presumptively determine the order of their execution, regardless of
postmark dates on envelopes in which they may have been mailed, but if there is
no date on a proxy, the postmark date on the envelope in which it was mailed
shall be presumed in the absence of information to the contrary to be the date
of execution of the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board may appoint inspectors of election to act at the meeting
and any adjournment of it. If inspectors of election are not so appointed, or if
any persons so appointed fail to appear or refuse to act, the presiding officer
of the meeting may, and on the request any shareholder or shareholder's proxy
shall, make such appointment at the meeting. The number of inspectors shall be
either one or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented at the meeting shall
determine whether one or three inspectors are to be appointed.
The duties of inspectors of election shall be as prescribed by Corporations
Code Section 707(b) and shall include: determining the number of shares
outstanding and the voting power of each; determining the shares represented at
the meeting; determining the existence of a quorum; determining the
authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
or consents; determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all shareholders. If there are three inspectors of election, the decision,
act, or certificate of a majority is effective in all respects as the decision,
act, or certificate of all.
Section 13. CONDUCT OF MEETING. The President shall preside at all meetings
of the shareholders, shall conduct each such meeting in a businesslike and fair
manner, but shall not be obligated to follow any technical, formal, or
parliamentary rules or principles of procedure. Rulings of the presiding officer
on procedural matters shall be conclusive and binding on all shareholders,
unless at the time of a ruling a request for a vote on the ruling is made to the
shareholders entitled to vote and represented in person or by proxy at the
meeting, in which case the decision of a majority of such shares shall be
conclusive and binding on all shareholders. Without limiting the generality of
the foregoing, the presiding officer shall have all of the powers usually vested
in the presiding officer at a meeting of shareholders.
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ARTICLE III.
DIRECTORS
Section 1. POWERS. Subject to provisions of the Articles, these Bylaws, and
the California General Corporation Law relating to action required to be
approved by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board. The Board may delegate the
management of the day-to-day operation of the business of the corporation to a
management company or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board. Without prejudice to these general powers,
but subject to the same provisions just stated, it is hereby expressly declared
that the Board shall have the following powers in addition to the other powers
enumerated in these Bylaws:
(a) To select and remove all the other officers, agents, and employees
of the corporation, prescribe qualifications, powers and duties for them
not inconsistent with law, the Articles or these Bylaws, fix their
compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and business of the
corporation and to make rules and regulations therefor not inconsistent
with law, the Articles or these Bylaws, as they may deem best.
(c) To adopt and use a corporate seal, to prescribe the forms of
certificates of stock, and to alter the forms of corporate seal or
certificates of stock from time to time as the Board 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 security
therefor.
Section 2. NUMBER OF DIRECTORS. The authorized number of directors shall be
three (3) until changed by amendment of the Articles or by a Bylaw duly adopted
by the shareholders amending this Section 2.
Section 3. ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of shareholders, but if any annual meeting is not held or
the directors are not elected thereat, the directors may be elected at any
special meeting of shareholders held for that purpose. Each director shall hold
office until the next annual meeting and until a successor has been elected and
qualified.
Section 4. VACANCIES. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary, or the Board,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective. Vacancies in
the Board, except those existing as a result of a removal of a director, may be
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filled by approval of the Board, or, if the number of directors then in office
is less than a quorum, by the unanimous written consent of the directors then in
office, the affirmative vote of a majority of directors then in office at a
meeting held pursuant to notice or waivers of notice, or by a sole remaining
director. Each director so elected shall hold office until the end of the term
of office for which elected and until a successor has been elected and
qualified.
A vacancy or vacancies in the Board shall be deemed to exist when any
authorized position of director is not filled by a duly elected director,
whether the vacancy is caused by death, resignation or removal of any director,
by increase in the authorized number of directors, by failure of the
shareholders, at any annual or special meeting of shareholders at which any
director or directors are to be elected, to elect a full authorized number of
directors to be voted for at that meeting, or otherwise.
The Board may declare vacant the office of a director who has been declared
of unsound mind by an order of court or has been convicted of a felony.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. Any such election by written
consent, other than to fill a vacancy created by removal, requires the consent
of a majority of the outstanding shares entitled to vote. Any such election by
written consent to fill a vacancy created by removal requires unanimous consent.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of office.
Section 5. PLACE OF MEETING. Regular or special meetings of the Board shall
be held at any place within or without California, which has been designated
from time to time by the Board. In the absence of such designation, regular
meetings shall be held at the principal executive office of the corporation.
Section 6. REGULAR MEETINGS. Immediately following each annual meeting of
shareholders the Board shall hold a regular meeting for the purpose of
organization, election of officers, and the transaction of other business.
Other regular meetings of the Board shall be held without call on such
dates and at such times as may be fixed by the Board. Call and notice of all
regular meetings of the Board are hereby dispensed with.
Section 7. SPECIAL MEETINGS. Special meetings of the Board for any purpose
or purposes may be called at any time by the Chairman of the Board, the
President, any Vice President the Secretary, or by any two directors.
Special meetings of the Board shall be held upon four days' written notice
or 48 hours' notice given personally or by telephone (including a voice
messaging system or other system or technology designed to record and
communicate messages), telegraph, facsimile, electronic mail, or other
electronic means. Any such notice shall be addressed or delivered to each
director at the director's address as shown upon the records of the corporation
or as given to the corporation by the director for purposes of notice or, if
such an address is not shown on such records or is not readily ascertainable, at
the place in which the meetings of the directors are regularly held.
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Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mail, first class postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means or by facsimile transmission, to the recipient. Oral notice
shall be deemed to have been given at the time it is communicated, in person or
by telephone or wireless, to the recipient or to a person at the office of the
recipient who the person giving the notice has reason to believe will promptly
communicate it to the recipient.
Section 8. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business, except to
adjourn as provided in Section 11 of this Article. 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, unless a greater number is required
by law (such as, for example, consideration of contracts or other transactions
between a corporation and one or more of its directors or a corporation, firm,
or association in which one or more of its directors has a material financial
interest or the appointment of committees as authorized by Section 15 of this
Article) or by the Articles. A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of directors,
if any action taken is approved by at least a majority of the required quorum
for such meeting.
Section 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of
the Board may participate in a meeting through use of conference telephone,
electronic video screen communication, or other communications equipment.
Participation in a directors' meeting through those means constitutes presence
in person at that meeting if all of the following apply:
(a) each director participating in the meeting can communicate with
all of the other directors concurrently; and
(b) each director is provided the means of participating in all
matters before the board including the capacity to propose, or to interpose
an objection, to a specific action to be taken by the corporation; and
(c) the corporation adopts and implements some means of verifying both
of the following:
(i) a person communicating by telephone, electronic video screen
or other communications equipment is a director entitled to
participate in the board meeting; and
(ii) all statements, questions, actions or votes were made by
that director and not by another person not permitted to
participate as a director.
Section 10. WAIVER OF NOTICE. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of its minutes of the meeting, whether before or after the meeting, or
who attends the meeting without protesting, before the meeting or at its
commencement, the lack of notice to that director. All such waivers, consents,
and approvals as to a Board meeting shall be filed with the corporate records or
made a part of the minutes of the meeting.
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Section 11. ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any Board meeting to another time and
place. Notice of the time and place of holding an adjourned meeting need not be
given to absent directors if the time and place are fixed at the meeting
adjourned, except as provided in the next sentence. If the meeting is adjourned
for more than 24 hours, notice of any adjournment to another time or place shall
be given, before the time of the adjourned meeting, to the directors who were
not present at the time of the adjournment.
Section 12. FEES AND COMPENSATION. Directors and members of committees may
receive compensation, if any, for their services, and reimbursement for
expenses, as may be fixed or determined by the Board.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the Board may be taken without a meeting if all directors 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. An
action by written consent shall have the same force and effect as a unanimous
vote of the directors.
Section 14. RIGHTS OF INSPECTION. Every director shall have the absolute
right at any reasonable time to inspect and copy all books, records, and
documents of every kind and to inspect the physical properties of the
corporation and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts.
Section 15. COMMITTEES. The Board may designate one or more committees,
each consisting of two or more directors. The Board may delegate to such
committees any of the authority of the Board except authority to:
(a) Approve any action for which the General Corporation Law also
requires shareholders' approval or approval of the outstanding shares;
(b) Fill vacancies on the Board or in any committee;
(c) Fix compensation of the directors for serving on the Board or on
any committee;
(d) Amend or repeal bylaws or adopt new bylaws;
(e) Amend or repeal any resolution of the Board which by its express
terms is not so amendable or repealable;
(f) Distribute to the shareholders of the corporation except at a rate
or in a periodic amount or within a price range determined by the Board; or
(g) Appoint 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 any such committee may be designated an
Executive Committee or by such other name as the Board shall specify. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent member at any meeting of the committee. The appointment
of members or alternate members of a
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committee requires the vote of a majority of the authorized number of directors.
The Board shall have the power to prescribe the manner in which proceedings of
any committee shall be conducted. In the absence of prescription by the Board, a
committee shall have the power to prescribe the manner in which its proceedings
shall be conducted. Unless the Board or a committee shall otherwise provide,
regular and special meetings and other actions of the committee shall be
governed by the provisions of this Article applicable to meetings and actions of
the Board. Minutes shall be kept of each meeting of each committee.
ARTICLE IV.
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a President,
a Secretary, and a Chief Financial Officer. The corporation may also have, at
the discretion of the Board, a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Chief
Financial Officers, and such other officers as may be elected or appointed in
accordance with the provisions of Section 3 of this Article.
Section 2. ELECTION. The officers of the corporation, except those elected
or appointed in accordance with Section 3 or Section 5 of this Article, shall be
chosen annually by, and shall serve at the pleasure of, the Board. Each shall
hold office until resignation, removal, or other disqualification from service,
or until a successor shall be elected.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and may empower an
officer elected by the Board to appoint such other officers as the business of
the corporation may require, each to hold office for such period, have such
authority, and perform such duties as are provided in these Bylaws or as the
Board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either with
or without cause, by the Board at any time or, except in the case of an officer
chosen by the Board, by any officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. An officer's resignation
shall take effect at the date of the receipt of such notice by the corporation
or at any later time specified in the resignation. Unless otherwise specified in
the resignation, the acceptance of it shall not be necessary to make it
effective.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these Bylaws for regular election or appointment to
that office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall,
if present, preside at all meetings of the Board and exercise and perform such
other powers and duties as may be from time to time assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may be given by
the Board to the Chairman of the Board, if any, the President is the general
manager and chief executive officer of the corporation and has, subject to the
control of the Board, general supervision, direction, and control of the
business and officers of the corporation. The President shall preside
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at all meetings of the shareholders and, in the absence of the Chairman of the
Board, or if there is none, at all meetings of the Board. The President has the
general powers and duties of management usually vested in the office of
president and general manager of a corporation and such other powers and duties
prescribed by the Board.
Section 8. VICE PRESIDENTS. In the absence or disability of the President,
the Vice Presidents in order of their rank as fixed by the Board or, if not
ranked, the Vice President designated by the Board, shall perform all the duties
of the President. A Vice President 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 prescribed for them
respectively by the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office or such other place as the Board may order, a book of
minutes of all meetings of shareholders, the Board, and its committees, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice or waivers of notice thereof given, the names of those
present at Board and committee meetings, the number of shares present or
represented at shareholders' meetings, and the proceedings thereof. The
Secretary shall keep, or cause to be kept, a copy of the Bylaws of the
corporation at the principal executive officer or business office in accordance
with Corporations Code Section 213.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, if one
is appointed, a share register, or a duplicate share register, showing the names
of the shareholders and their addresses, the number and classes of shares held
by each, the number and date of certificates issued for the same, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the Board and of any committees thereof required by
these Bylaws or by law to be given, shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer is the
chief financial officer of the corporation and shall maintain, or cause to be
maintained, adequate and correct accounts of the properties and financial and
business transactions of the corporation, and shall send or cause to be sent to
the shareholders of the corporation financial statements and reports that by law
or these Bylaws are required to be sent to them. The books of account shall at
all times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board. The Chief Financial Officer shall disburse the funds of
the corporation as may be ordered by the Board, shall render to the President
and directors, whenever they request it, an account of all 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.
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ARTICLE V.
OTHER PROVISIONS
Section 1. INSPECTION OF CORPORATE RECORDS.
(a) 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 the outstanding 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 an absolute right to do
either or both of the following:
(i) 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.
(ii) Obtain from the transfer agent, if any, for the corporation, upon
written demand and upon the tender of its usual charges for such a list
(the amount of which charges shall be stated to the shareholder by the
transfer agent upon request), 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 in
the demand as the date as of which the list is to be compiled.
(b) The record of shareholders shall also be open to inspection and copying
by any shareholder or holder of a voting trust certificate at any time during
usual business hours upon written demand on the corporation, for a purpose
reasonably related to such holder's interest as a shareholder or holder of a
voting trust certificate. A written demand for such inspection shall be
accompanied by a statement in reasonable detail of the purpose of the
inspection.
(c) 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 by 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 interest as a
shareholder or as a holder of such voting trust certificate. A written demand
for such inspection shall be accompanied by a statement in reasonable detail of
the purpose of the inspection.
(d) Any inspection and copying under this Article may be made in person or
by agent or attorney.
Section 2. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive office in California or, if its principal executive office
is not in California, at its principal business office in California, the
original or a copy of these Bylaws as amended to date, which shall be open to
inspection by shareholders at all reasonable times during office hours. If the
principal executive officer of the corporation is outside California and the
corporation has no principal business office in California, it shall, upon the
written request of any shareholder, furnish to the shareholder a copy of these
Bylaws as amended to date.
Section 3. EXECUTION OF DOCUMENTS; CONTRACTS. Subject to the provisions of
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, initial transaction statement or written statement, conveyance, or
other instrument in writing and any
13
assignment or endorsements thereof executed or entered into between the
corporation and any other person, when signed by the Chairman of the Board, the
President or any Vice President, and the Secretary, any Assistant Secretary, the
Chief Financial Officer or any Assistant Chief Financial Officer of the
corporation shall be valid and binding on the corporation in the absence of
actual knowledge on the part of the other person that the signing officers did
not have authority to execute it. Any such instruments may be signed by any
other person or persons and in the manner from time to time determined by the
Board. Unless authorized by the Board, no officer, agent, or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or amount.
Section 4. CERTIFICATES OF STOCK. Subject to Corporations Code Section
416(b), every holder of shares of the corporation shall be entitled to have a
certificate signed in the name of the corporation by the Chairman of the Board,
the President or a Vice President, and by the Chief Financial Officer or an
Assistant Chief Financial Officer or the Secretary or an Assistant Secretary,
certifying the number of shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may be facsimile.
If any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be that
officer, transfer agent, or registrar before the certificate is issued, it may
be issued by the corporation with the same effect as if the person were an
officer, transfer agent, or registrar at the date of issue.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board may provide; but any certificate
issued to represent any partly paid shares, or any initial transaction statement
issued for any partly paid shares that are uncertificated securities, shall
state the total amount of the consideration to be paid therefor and the amount
paid thereon.
Except as provided in this Section, no new certificate for shares shall be
issued in lieu of an old one unless the old one is surrendered and cancelled at
the same time. The Board may, however, if any certificate for shares is alleged
to have been lost, stolen, or destroyed, authorize the issuance of a new
certificate in lieu of the old one, and the corporation may require that it be
given a bond or other adequate security sufficient to indemnify it against any
claim that may be made against it (including expense or liability) on account of
the alleged loss, theft, or destruction of such certificate or the issuance of
such new certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or
any other officer or officers authorized by the Board or the President are each
authorized to vote, represent, and exercise on behalf of the corporation all
rights incident to any and all shares or other securities of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by that officer.
Section 6. STOCK PURCHASE PLANS. The corporation may adopt and carry out a
stock purchase plan or agreement or stock option plan or agreement providing for
the issue and sale for such consideration as may be fixed of its unissued
shares, or of issued shares acquired or to be acquired, to one or more of the
employees or directors of the corporation or of a subsidiary or a parent of the
corporation or to a trustee on their behalf and for the payment for such shares
in installments or at one time, and may provide for aiding any such persons in
paying for such shares by compensation for services rendered, promissory notes,
or otherwise.
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Any such stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment for shares, the reservation of title until full payment for shares, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 7. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders
referred to in Corporations Code Section 1501 is expressly waived, but nothing
herein shall be interpreted as prohibiting the Board from issuing annual or
other periodic reports to shareholders.
Section 8. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction, and definitions
contained in the General Provisions of the California Corporations Code and in
the California General Corporation Law shall govern the construction of these
Bylaws.
ARTICLE VI.
INDEMNIFICATION
Section 1. DEFINITIONS. For the purposes of this Article, "agent" 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 the predecessor corporation; "proceeding" includes any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under Section 4 or Section 5(d) of this Article.
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any proceeding (other than an action by or in the right of
the corporation to procure a judgment in its favor) by reason of being or having
been an agent of the corporation, against expenses, judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with the proceeding, if that person acted in good faith and in a manner the
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 the 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 the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending, or completed action by or in the
15
right of the corporation to procure a judgment in its favor by reason of being
or having been an agent of the corporation, against expenses actually and
reasonably incurred by that person in connection with the defense or settlement
of the action if the person acted in good faith, in a manner the person believed
to be in the best interests of the corporation and its shareholders. No
indemnification shall be made under this Section 3 for any of the following:
(a) In respect of any claim, issue, or matter as to which the person
shall have been adjudged to be liable to the corporation in the performance
of that person's duty to the corporation and its shareholders, unless and
only to the extent that the court in which the proceeding is or was pending
shall determine on application that, in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for the
expenses and then only to the extent that the court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(c) Of expenses incurred in defending a 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 of this Article 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 of
this Article, 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 of this
Article by any of the following:
(a) A majority vote of a quorum consisting of directors who are not
parties to the proceeding;
(b) Independent legal counsel in a written opinion, if such a quorum
of directors is not obtainable;
(c) Approval of the shareholders, with the shares owned by the person
to be indemnified not being entitled to vote thereon; or
(d) The court in which the proceeding is or was pending on application
made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not the
application by the agent, attorney, or other person is opposed by the
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the corporation prior to the final disposition of
the proceeding on receipt of an undertaking by or on behalf of the agent to
repay that amount if it shall be determined ultimately that the agent is not
entitled to be indemnified as authorized in this Article.
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Section 7. OTHER INDEMNIFICATION. The indemnification authorized by this
Article shall not be exclusive of any additional rights to indemnification for
breach of duty to the corporation and its shareholders, while acting in the
capacity of a director or officer of the corporation, to the extent the
additional rights to indemnification are authorized in a provision of the
articles adopted pursuant to Corporations Code Section 204(a)(11). The
indemnification provided by this Article for acts, omissions, or transactions
while acting in the capacity of, or while serving as, a director, or officer of
the corporation, but not involving any breach of duty to the corporation and its
shareholders, shall not be exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, to the extent the additional rights to
indemnification are authorized in the articles. A provision in the articles
authorizing indemnification "in excess of that otherwise permitted by Section
317" or "to the fullest extent permissible under California law," or a
substantial equivalent, shall be construed to be both a provision for additional
indemnification for breach of duty to the corporation and its shareholders as
referred to in, and with the limitations required by, Corporations Code Section
204(a)(11), and a provision for additional indemnification as referred to in
Corporations Code Section 317(g). The rights to indemnity under this article
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of the person. Nothing contained in this Article shall affect any
right to indemnification to which persons other than the directors and officers
may be entitled by contract or otherwise.
Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification or
advance shall be made under this Article, except as provided in Section 4 or
Section 5(d) in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles,
these Bylaws, a resolution of the shareholders, or an agreement in effect
at the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. INSURANCE. The corporation shall have power to purchase and
maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in that 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 that 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 that person's
capacity as such, even though the person may also be an agent of the corporation
as defined in Section 1 of this Article. The corporation shall have the power to
indemnify such a trustee, investment manager, or other fiduciary to the extent
permitted by California Corporations Code Section 207(f).
ARTICLE VII.
EMERGENCY PROVISIONS
Section 1. GENERAL. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the
17
President's functions, or in the event of a nuclear, atomic, or other attack on
the United States or a disaster making it impossible or impracticable for the
corporation to conduct its business without recourse to the provisions of this
Article. The provisions of this Article in that event shall override all other
Bylaws of the corporation in conflict with any provisions of this Article, and
shall remain operative so long as it remains impossible or impracticable to
continue the business of the corporation otherwise, but thereafter shall be
inoperative; provided that all actions taken in good faith pursuant to such
provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. UNAVAILABLE DIRECTORS. All directors of the corporation who are
not available to perform their duties as directors by reason of physical or
mental incapacity or for any other reason or who are unwilling to perform their
duties or whose whereabouts are unknown shall automatically cease to be
directors, with like effect as if they had resigned as directors, so long as
such unavailability continues.
Section 3. AUTHORIZED NUMBER OF DIRECTORS. The authorized number of
directors shall be the number of directors remaining after eliminating those who
have ceased to be directors pursuant to Section 2, or the minimum number
required by law, whichever number is greater.
Section 4. QUORUM. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or such other minimum number as, pursuant to the law or
lawful decree then in force, it is possible for the Bylaws of a corporation to
specify.
Section 5. CREATION OF EMERGENCY COMMITTEE. If the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 2 is less than the minimum number of authorized directors required by
law, then until the appointment of additional directors to make up such required
minimum, all the powers and authority which the Board could by law delegate,
including all powers and authority which the Board could delegate to a
committee, shall be automatically vested in an emergency committee, and the
emergency committee shall thereafter manage the affairs of the corporation
pursuant to such powers and authority and shall have all such other powers and
authority as law or lawful decree may confer on any person or body of persons
during a period of emergency.
Section 6. CONSTITUTION OF EMERGENCY COMMITTEE. The emergency committee
shall consist of all the directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2, provided that those remaining
directors are not less than three in number. If the remaining directors number
less than three, the emergency committee shall consist of three persons, who
shall be the remaining director or directors and either one or two officers or
employees of the corporation, as the remaining director or directors may in
writing designate. If there is no remaining director, the emergency committee
shall consist of the three most senior officers of the corporation who are
available to serve, and if and to the extent that officers are not available,
the most senior employees of the corporation. Seniority shall be determined in
accordance with any designation of seniority in the minutes of the proceedings
of the Board, and in the absence of such designation, shall be determined by
rate of remuneration. If there are no remaining directors and no officers or
employees of the corporation available, the emergency committee shall consist of
three persons designated in writing by the shareholder owning the largest number
of shares of record as of the date of the last record date.
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Section 7. POWERS OF EMERGENCY COMMITTEE. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and if a vacancy or
vacancies therein arises at any time, the remaining member or members of the
emergency committee shall have the power to fill such vacancy or vacancies. If,
at any time after its appointment, all members of the emergency committee shall
die or resign or become unavailable to act for any reason whatsoever, a new
emergency committee shall be appointed in accordance with the foregoing
provisions of this Article.
Section 8. DIRECTORS BECOMING AVAILABLE. Any person who has ceased to be a
director pursuant to the provisions of Section 2 and who thereafter becomes
available to serve as a director shall automatically become a member of the
emergency committee.
Section 9. ELECTION OF BOARD OF DIRECTORS. The emergency committee shall,
as soon after its appointment as is practicable, take all requisite action to
secure the election of a board of directors, and, upon such election, all the
powers and authorities of the emergency committee shall cease.
Section 10. TERMINATION OF EMERGENCY COMMITTEE. If after the appointment of
an emergency committee, a sufficient number of persons who ceased to be
directors pursuant to Section 2 become available to serve as directors, so that
if they had not ceased to be directors as aforesaid, there would be enough
directors to constitute the minimum number of directors required by law, then
all such persons shall automatically be deemed to be reappointed as directors
and the powers and authorities of the emergency committee shall be at an end.
ARTICLE VIII.
AMENDMENTS
These Bylaws may be amended or repealed either by approval of the
outstanding shares (as defined in Corporations Code Section 152 ) or by the
approval of the Board; except that, after the issuance of shares, a Bylaw
specifying or changing a fixed number of directors or the maximum or minimum
number or changing from a fixed to a variable number of directors or vice versa
may only be adopted by approval of the outstanding shares and a Bylaw reducing
the fixed number or the minimum number of directors to a number less than five
shall be subject to the provisions of Corporations Code Section 212(a).
PRESIDENT'S CERTIFICATE OF ADOPTION OF BYLAWS
IN LIEU OF SECRETARY'S CERTIFICATION
I, the undersigned, do hereby certify that I am the duly elected and acting
President of Safariland Government Sales, Inc., a California corporation, and
the foregoing Bylaws, comprising 19 pages, constitute the Bylaws of the
corporation as duly adopted by Unanimous Written Consent of the Board of
Directors dated effective as of April 1, 1998.
Signed and sealed to be effective on April 1, 1998.
/s/ Scott T. O'Brien
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Scott T. O'Brien, President
[corporate seal]
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