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EXHIBIT 3.3
I, MOLLY K. BYRD, Assistant Secretary of SCEcorp, certify that the
attached is an accurate and complete copy of the Bylaws of this corporation as
amended, and in full force and effect as of this date.
Dated: March 17, 1994
Molly K. Byrd
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Assistant Secretary
SCEcorp
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To Holders of the Company's Bylaws:
Effective November 18, 1993, Article III, Section 6, was amended to change the
hour of the regular Board meetings from 10:00 a.m. to 9:30 a.m.
and Article III, Section 7, was amended to provide for facsimile and
electronic mail notification of Special meetings.
KENNETH S. STEWART
Corporate Secretary
BYLAWS
OF
SCEcorp
AS AMENDED TO AND INCLUDING
NOVEMBER 18, 1993
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INDEX
PAGE
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ARTICLE I -- PRINCIPAL OFFICE
Section 1. Principal Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II -- SHAREHOLDERS
Section 1. Meeting Locations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 4. Notice of Annual or Special Meeting . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6. Adjourned Meeting and Notice Thereof . . . . . . . . . . . . . . . . . . . . . . . 4
Section 7. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 8. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 9. Consent of Absentees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 10. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 11. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 12. Inspectors of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III -- DIRECTORS
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Election and Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5. Place of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 7. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9. Participation in Meetings by Conference
Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 10. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 11. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 12. Fees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 13. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 14. Rights of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 15. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE IV -- OFFICERS
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3. Eligibility of Chairman or President . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Removal and Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5. Appointment of Other Officers . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7. Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8. Furnish Security for Faithfulness . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9. Chairman's Duties; Succession to Such Duties
in Chairman's Absence or Disability . . . . . . . . . . . . . . . . . . . . . . 16
Section 10. President's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 11. Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 12. Vice President's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 13. General Counsel's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 14. Associate General Counsel's and
Assistant General Counsel's Duties . . . . . . . . . . . . . . . . . . . . . . . 17
Section 15. Controller's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 16. Assistant Controllers' Duties . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 17. Treasurer's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 18. Assistant Treasurers' Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 19. Secretary's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 20. Assistant Secretaries' Duties . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 21. Secretary Pro Tempore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 22. Election of Acting Treasurer or
Acting Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 23. Performance of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V -- OTHER PROVISIONS
Section 1. Inspection of Corporate Records . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2. Inspection of Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3. Contracts and Other Instruments, Loans,
Notes and Deposits of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4. Certificates of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5. Transfer Agent, Transfer Clerk and Registrar . . . . . . . . . . . . . . . . . . . 22
Section 6. Representation of Shares of Other
Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE V -- OTHER PROVISIONS (continued)
Section 7. Stock Purchase Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8. Fiscal Year and Subdivisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9. Construction and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VI -- INDEMNIFICATION
Section 1. Indemnification of Directors and Officers . . . . . . . . . . . . . . . . . . . . 23
Section 2. Indemnification of Employees and Agents . . . . . . . . . . . . . . . . . . . . . 25
Section 3. Right of Directors and Officers to
Bring Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4. Successful Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5. Non-Exclusivity of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7. Expenses as a Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8. Indemnity Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10. Effect of Repeal or Modification . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VII -- EMERGENCY PROVISIONS
Section 1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2. Unavailable Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3. Authorized Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5. Creation of Emergency Committee . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6. Constitution of Emergency Committee . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7. Powers of Emergency Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8. Directors Becoming Available . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 9. Election of Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 10. Termination of Emergency Committee . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VIII -- AMENDMENTS
Section 1. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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BYLAWS
Bylaws for the regulation, except as otherwise provided
by statute or its Articles of Incorporation
OF
SCECORP
AS AMENDED TO AND INCLUDING
NOVEMBER 18, 1993
ARTICLE I -- PRINCIPAL OFFICE
SECTION 1. PRINCIPAL OFFICE.
The principal office of the Corporation is hereby fixed and located at
2244 Walnut Grove Avenue, in the City of Rosemead, County of Los Angeles, State
of California. The Board of Directors is hereby granted full power and
authority to change said principal office from one location to another.
ARTICLE II -- SHAREHOLDERS
SECTION 1. MEETING LOCATIONS.
All meetings of shareholders shall be held at the principal office of
the corporation or at such other place or places within or without the State of
California as may be designated by the Board of Directors (the "Board"). In
the event such places shall prove inadequate in capacity for any meeting of
shareholders, an adjournment may be taken to and the meeting held at such other
place of adequate capacity as may be designated by the officer of the
corporation presiding at such meeting.
SECTION 2. ANNUAL MEETINGS.
The annual meeting of shareholders shall be held on the third Thursday
of the month of April of each year at 10:00 a.m. on said day to elect directors
to hold office for the year next ensuing and until their successors shall be
elected, and to consider and act upon such other matters as may lawfully be
presented to such meeting; provided, however, that should said day fall upon a
legal holiday, then any such annual meeting of shareholders shall be held at
the same time and place on the next day thereafter ensuing which is not a legal
holiday.
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ARTICLE II
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 upon written request of any
three members of the Board, or by the holders of shares entitled to cast not
less than ten 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 (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 thirty-five nor
more than sixty days after the receipt of the request. If the notice is not
given within twenty days after receipt of the request, the persons entitled to
call the meeting may give the notice.
SECTION 4. NOTICE OF ANNUAL OR SPECIAL MEETING.
Written notice of each annual or special meeting of shareholders shall
be given not less than ten (or if sent by third-class mail, thirty) nor more
than sixty days before the date of the meeting to each shareholder entitled to
vote thereat. Such notice shall state the place, date, and hour of the meeting
and (i) in the case of a special meeting, the general nature of the business to
be transacted, and no other business may be transacted, or (ii) in the case of
an annual meeting, those matters which the Board, at the time of the mailing of
the notice, intends to present for action by the shareholders, but, subject to
the provisions of applicable law and these Bylaws, any proper matter may be
presented at an annual meeting for such action. The notice of any special or
annual 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. For any matter to be presented by a shareholder at an annual meeting
held after December 31, 1993, including the nomination of any person (other
than a person nominated by or at the direction of the Board) for election to
the Board, written notice must be received by the Secretary of the corporation
from the shareholder not less than sixty nor more than one hundred twenty days
prior to the date of the annual meeting specified in these Bylaws and to which
the shareholder's notice relates; provided however, that in the event the
annual meeting to which the shareholder's written notice relates is to be held
on a date which is more than thirty days earlier than the date of the annual
meeting specified in these Bylaws, the notice from a shareholder must be
received by the Secretary not later than the close of business on the tenth day
following the date on which public disclosure of the date of the annual meeting
was made or given to the shareholders. The shareholder's notice to the
Secretary shall set forth (a) a brief description of each matter to be
presented at the annual meeting by the shareholder; (b) the name and address,
as they appear on the corporation's books, of the shareholder; (c) the class
and number of shares of the corporation
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ARTICLE II
which are beneficially owned by the shareholder; and (d) any material interest
of the shareholder in the matters to be presented. Any shareholder who intends
to nominate a candidate for election as a director shall also set forth in such
a notice (i) the name, age, business address and residence address of each
nominee that he or she intends to nominate at the meeting, (ii) the principal
occupation or employment of each nominee, (iii) the number of shares of capital
stock of the corporation beneficially owned by each nominee, and (iv) any other
information concerning the nominee that would be required under the rules of
the Securities and Exchange Commission in a proxy statement soliciting proxies
for the election of the nominee. The notice shall also include a consent,
signed by the shareholder's nominees, to serve as a director of the corporation
if elected. Notwithstanding anything in these Bylaws to the contrary, and
subject to the provisions of any applicable law, no business shall be conducted
at a special or annual meeting except in accordance with the procedures set
forth in this Section 4.
Notice of a shareholders' meeting shall be given either personally or
by first-class mail (or, if the outstanding shares of the corporation are held
of record by 500 or more persons on the record date for the meeting, by
third-class mail) or by other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or, if no such address appears or is given, at the place where the
principal 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
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.
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.
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 a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by law or the Articles; provided, however, that 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 have 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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ARTICLE II
SECTION 6. ADJOURNED MEETING 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, the
holders of which are either present in person or represented by proxy thereat,
but in the absence of a quorum (except as provided in Section 5 of this
Article) no other business may be transacted at such meeting.
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 at the meeting at which such adjournment is taken. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting. However, when any shareholders'
meeting is adjourned for more than forty-five days 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.
SECTION 7. VOTING.
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 8 of this Article.
Voting shall in all cases be subject to the provisions of Chapter 7 of
the California General Corporation Law, and to the following provisions:
(a) Subject to clause (g), shares held by an administrator,
executor, guardian, conservator or custodian may be voted by such holder either
in person or by proxy, without a transfer of such 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 such trustee without a transfer of such shares into the trustee's name.
(b) Shares standing in the name of a receiver may be voted by such
receiver; and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into the receiver's name if
authority to do so is contained in the order of the court by which such
receiver was appointed.
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ARTICLE II
(c) Subject to the provisions of Section 705 of the California
General Corporation Law and except where otherwise agreed in writing between
the parties, a shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and 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 thereto as exercisable by the minor,
in person or by proxy, whether or not the corporation has notice, actual or
constructive, of the non-age unless a guardian of the minor's property has been
appointed and written notice of such appointment given to the corporation.
(e) Shares standing in the name of another corporation, domestic
or foreign, may be voted by such officer, agent or proxyholder as the bylaws of
such other corporation may prescribe or, in the absence of such provision, as
the Board of Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president or
any vice president of such other corporation, or by any other person authorized
to do so by the chairman of the board, president or any vice president of such
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 subdivision, unless the
contrary is shown.
(f) Shares of the corporation owned by any of its subsidiaries
shall not be entitled to vote on any matter.
(g) Shares of the corporation held by the corporation in a
fiduciary capacity, and shares of the corporation held in a fiduciary capacity
by any of its subsidiaries, shall not be entitled to vote on any matter, except
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
such shares.
(h) 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 of the
corporation is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
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ARTICLE II
(i) If only one votes, such 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.
No shareholder of any class of stock of this corporation shall be
entitled to cumulate votes at any election of directors of this corporation.
Elections for directors need not be by ballot; provided, however, 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 such shares are elected.
SECTION 8. RECORD DATE.
The Board may fix, in advance, a record date for the determination of
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. The
record date so fixed shall be not more than sixty days nor less than ten days
prior to the date of the meeting nor more than sixty days prior to any other
action. When a record date is so fixed, only shareholders of record at the
close of business 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 the rights, as the case may be, notwithstanding any transfer of shares
on the books of the corporation after the record date, except as otherwise
provided by law or these Bylaws. A determination of shareholders of record
entitled to notice of or to vote at 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 forty-five 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 is given or, if notice is waived, at the
close of business on the business
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ARTICLE II
day next preceding the day on which the meeting is held. The record date for
determining shareholders for any purpose other than as 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, 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 thereof.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of 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 thereof, except as provided
in Section 601 (f) of the California General Corporation Law.
SECTION 10. ACTION WITHOUT MEETING.
Subject to Section 603 of the California General Corporation Law, any
action which, under any provision of the California General Corporation Law,
may be taken at any annual or special meeting of shareholders may be taken
without a meeting and without prior notice if a consent in writing, setting
forth the action so taken, 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 a meeting at which all shares entitled to vote
thereon were present and voted. Unless a record date for voting purposes be
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, not to exceed three, authorized by a written
proxy executed by such shareholder and filed with the Secretary. Subject to the
following sentence, any proxy duly executed continues in full force and effect
until revoked by the person executing it prior to the vote pursuant thereto by
a writing delivered to the corporation stating that the proxy is revoked or by
a
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ARTICLE III
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting, or by attendance at the meeting and voting in person by the
person executing the proxy; provided, however, that a proxy is not revoked by
the death or incapacity of the maker unless, before the vote is counted,
written notice of such death or incapacity is received by this corporation. No
proxy shall be valid after the expiration of eleven months from the date of its
execution unless otherwise provided in the proxy.
SECTION 12. INSPECTORS OF ELECTION.
In advance of any meeting of shareholders, the Board may appoint any
persons other than nominees as inspectors of election to act at such meeting
and any adjournment thereof. If inspectors of election are not so appointed,
or if any persons so appointed fail to appear or refuse to act, the chairman
of any such meeting may, and on the request of any shareholder or shareholder's
proxy shall, make such appointments 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 present shall determine
whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Section 707
(b) of the California General Corporation Law and shall include: determining
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and 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. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
ARTICLE III -- DIRECTORS
SECTION 1. POWERS.
Subject to limitations of the Articles, of these Bylaws and of 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
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ARTICLE III
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 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 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
Bylaws:
(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, with 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 such rules and regulations therefor not inconsistent
with law, or with the Articles or these Bylaws, 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 2. NUMBER OF DIRECTORS.
The authorized number of directors shall be not less than fifteen nor
more than twenty until changed by amendment of the Articles or by a Bylaw duly
adopted by the shareholders. The exact number of directors shall be fixed,
within the limits specified, by the Board by adoption of a resolution or by the
shareholders in the same manner provided in these Bylaws for the amendment
thereof.
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ARTICLE III
SECTION 3. ELECTION AND 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
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 filled by a majority of the remaining directors, though
less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until the next annual meeting and until such
director's successor has been elected and qualified. Vacancies existing as a
result of a removal of a director may be filled by the shareholders as provided
by law.
A vacancy or vacancies in the Board shall be deemed to exist in case
of the death, resignation or removal of any director, or if the authorized
number of directors be increased, or if the shareholders fail, at any annual or
special meeting of shareholders at which any director or directors are elected,
to elect the full authorized number of directors to be voted for at that
meeting.
The Board may declare vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony.
The shareholders may elect a director 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. If the Board
accepts the resignation of a director tendered to take effect at a future time,
the Board or the shareholders shall have power to elect a successor to take
office when the resignation is to become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of the director's term
of office.
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ARTICLE III
SECTION 5. PLACE OF MEETING.
Regular or special meetings of the Board shall be held at any place
within or without the State of California which has been designated from time
to time by the Board or as provided in these Bylaws. In the absence of such
designation, regular meetings shall be held at the principal office of the
corporation.
SECTION 6. REGULAR MEETINGS.
Promptly 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.
Regular meetings of the Board shall be held without notice on the
third Thursday of each month, except the months of August and December, at the
hour of 9:30 a.m. at the principal office of the corporation. Call and notice
of all regular meetings of the Board are not required.
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 forty-eight hours' notice given personally or by telephone,
telegraph, telex, facsimile, electronic mail or other similar means of
communication. Any such notice shall be addressed or delivered to each
director at such director's address as it is shown upon the records of the
corporation or as may have been given to the corporation by the director for
purposes of notice or, if such 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. The notice need not specify the purpose of such special
meeting.
Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mail, 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
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ARTICLE III
transmitted by the person giving the notice by electronic means to the
recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone, radio or other similar means 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.
One-third of the maximum number of authorized directors constitutes a
quorum of the Board for the transaction of business, except to adjourn as
provided in Section II of this Article. As defined in Article III, Section 2,
the maximum number of authorized directors is eighteen. Every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present shall be regarded as the act of the Board, unless a
greater number is required by law or by the Articles; provided, however, that 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 or similar communications equipment, so long as all
members participating in such meeting can hear one another. Such
participation constitutes presence in person at such meeting.
SECTION 10. WAIVER OF NOTICE.
The transactions of any meeting of the Board, however called and
noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, a consent to holding such meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
SECTION 11. ADJOURNMENT.
A majority of the directors present, whether or not a quorum is
present, may adjourn any directors' 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 is fixed at the meeting adjourned. If
the meeting is adjourned for more than twenty-four hours, notice of any
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
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ARTICLE III
SECTION 12. FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such 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 members of the Board shall individually or
collectively consent in writing to such action. Such written consent or
consents shall have the same force and effect as a unanimous vote of the Board
and shall be filed with the minutes of the proceedings of the Board.
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 make
extracts.
SECTION 15. COMMITTEES.
The Board may appoint one or more committees, each consisting of two
or more directors, to serve at the pleasure of the Board. The Board may
delegate to such committees any or all of the authority of the Board except
with respect to:
(a) The approval of any action for which the California General
Corporation Law also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board or in 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 Bylaws or the adoption of new
Bylaws;
(e) The amendment or repeal of any resolution of the Board which
by its express terms is not so amendable or repealable;
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ARTICLE IV
(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; or
(g) The appointment of other committees of the Board or the
members thereof.
Any such committee, or any member or alternate member thereof, must be
appointed by resolution adopted by a majority of the exact number of authorized
directors as specified in Section 2 of this Article. The Board shall have the
power to prescribe the manner and timing of giving of notice of regular or
special meetings of any committee and the manner in which proceedings of any
committee shall be conducted. In the absence of any such 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 IV -- OFFICERS
SECTION 1. OFFICERS.
The officers of the corporation shall be a Chairman of the Board, a
President, a Chief Financial Officer, one or more Vice Presidents, a General
Counsel and a Secretary. The corporation may also have, at the discretion of
the Board, one or more Associate General Counsel, one or more Assistant General
Counsel, a Controller, one or more Assistant Controllers, a Treasurer, one or
more Assistant Treasurers and one or more Assistant Secretaries, and such other
officers as may be elected or appointed in accordance with Section 5 of this
Article. The Board, the Chairman of the Board or the President may confer a
special title upon any Vice President not specified herein.
SECTION 2. ELECTION.
The officers of the corporation, except such officers as may be
elected or appointed in accordance with the provisions of Section 5 or Section
6 of this Article, shall be chosen annually by, and shall serve at the
pleasure of the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
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ARTICLE IV
SECTION 3. ELIGIBILITY OF CHAIRMAN OR PRESIDENT.
No person shall be eligible for the office of Chairman of the Board or
President unless such person is a member of the Board of the corporation; any
other officer may or may not be a director.
SECTION 4. REMOVAL AND RESIGNATION.
Any officer may be removed, either with or without cause, by the Board
at any time or by any officer upon whom such power or 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. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 5. APPOINTMENT OF OTHER OFFICERS.
The Board 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 Bylaws or as the
Board may from time to time determine.
SECTION 6. VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled at any time deemed
appropriate by the Board in the manner prescribed in these Bylaws for regular
election or appointment to such office.
SECTION 7. SALARIES.
The salaries of the Chairman of the Board, President, Chief Financial
Officer, Vice Presidents, General Counsel, Controller, Treasurer and Secretary
of the corporation shall be fixed by the Board. Salaries of all other officers
shall be as approved from time to time by the chief executive officer.
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ARTICLE IV
SECTION 8. FURNISH SECURITY FOR FAITHFULNESS.
Any officer or employee shall, if required by the Board, furnish to
the corporation security for faithfulness to the extent and of the character
that may be required.
SECTION 9. CHAIRMAN'S DUTIES; SUCCESSION TO SUCH DUTIES IN CHAIRMAN'S
ABSENCE OR DISABILITY.
The Chairman of the Board shall be the chief executive officer of the
corporation and shall preside at all meetings of the shareholders and of the
Board. Subject to the Board, the Chairman of the Board shall have charge of
the business of the corporation. The Chairman of the Board shall keep the
Board fully informed, and shall freely consult them concerning the business of
the corporation.
In the absence or disability of the Chairman of the Board, the
President shall act as the chief executive officer of the corporation; in the
absence or disability of the Chairman of the Board and the President, the next
in order of election by the Board of the Vice Presidents shall act as chief
executive officer of the corporation.
In the absence or disability of the Chairman of the Board, the
President shall act as Chairman of the Board at meetings of the Board; in the
absence or disability of the Chairman of the Board and the President, the next,
in order of election by the Board, of the Vice Presidents who is a member of
the Board shall act as Chairman of the Board at any such meeting of the Board;
in the absence or disability of the Chairman of the Board, the President, and
such Vice Presidents who are members of the Board, the Board shall designate a
temporary Chairman to preside at any such meeting of the Board.
SECTION 10. PRESIDENT'S DUTIES.
The President shall perform such other duties as the Chairman of the
Board shall delegate or assign to such officer.
SECTION 11. CHIEF FINANCIAL OFFICER.
The Chief Financial Officer of the corporation shall be the chief
consulting officer in all matters of financial import and shall have control
over all financial matters concerning the corporation. If the corporation does
not have a currently elected and acting Controller, the Chief Financial Officer
shall also be the Chief Accounting Officer of the corporation.
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ARTICLE IV
SECTION 12. VICE PRESIDENTS' DUTIES.
The Vice Presidents shall perform such other duties as the chief
executive officer shall designate.
SECTION 13. GENERAL COUNSEL'S DUTIES.
The General Counsel shall be the chief consulting officer of the
corporation in all legal matters and, subject to the chief executive officer,
shall have control over all matters of legal import concerning the corporation.
SECTION 14. ASSOCIATE GENERAL COUNSEL'S AND ASSISTANT GENERAL COUNSEL'S
DUTIES.
The Associate General Counsel shall perform such of the duties of the
General Counsel as the General Counsel shall designate, and in the absence or
disability of the General Counsel, the Associate General Counsel, in order of
election to that office by the Board at its latest organizational meeting,
shall perform the duties of the General Counsel. The Assistant General Counsel
shall perform such duties as the General Counsel shall designate.
SECTION 15. CONTROLLER'S DUTIES.
The Controller shall be the chief accounting officer of the
Corporation and, subject to the Chief Financial Officer, shall have control
over all accounting matters concerning the Corporation and shall perform such
other duties as the Chief Executive Officer shall designate.
SECTION 16. ASSISTANT CONTROLLERS' DUTIES.
The Assistant Controllers shall perform such of the duties of the
Controller as the Controller shall designate, and in the absence or disability
of the Controller, the Assistant Controllers, in order of election to that
office by the Board at its latest organizational meeting, shall perform the
duties of the Controller.
SECTION 17. TREASURER'S DUTIES.
It shall be the duty of the Treasurer to keep in custody or control
all money, stocks, bonds, evidences of debt, securities and other items of
value that may belong to, or be in the possession or control of, the
corporation, and to dispose of the same in such manner as the Board or the
chief executive officer may direct, and to perform all acts incident to the
position of Treasurer.
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ARTICLE IV
SECTION 18. ASSISTANT TREASURERS' DUTIES.
The Assistant Treasurers shall perform such of the duties of the
Treasurer as the Treasurer shall designate, and in the absence or disability
of the Treasurer, the Assistant Treasurers, in order of election to that office
by the Board at its latest organizational meeting, shall perform the duties of
the Treasurer, unless action is taken by the Board as contemplated in Article
IV, Section 22.
SECTION 19. SECRETARY'S DUTIES.
The Secretary shall keep or cause to be kept full and complete records
of the proceedings of shareholders, the Board and its committees at all
meetings, and shall affix the corporate seal and attest by signing copies of
any part thereof when required.
The Secretary shall keep, or cause to be kept, a copy of the Bylaws of
the corporation at the principal office in accordance with Section 213 of the
California General Corporation Law.
The Secretary shall be the custodian of the corporate seal and shall
affix it to such instruments as may be required.
The Secretary shall keep on hand a supply of blank stock certificates
of such forms as the Board may adopt.
The Secretary shall serve or cause to be served by publication or
otherwise, as may be required, all notices of meetings and of other corporate
acts that may by law or otherwise be required to be served, and shall make or
cause to be made and filed in the principal office of the corporation, the
necessary certificate or proofs thereof.
An affidavit of mailing of any notice of a shareholders' meeting or of
any report, in accordance with the provisions of Section 601 (b) of the
California General Corporation Law, executed by the Secretary shall be prima
facie evidence of the fact that such notice or report had been duly given.
The Secretary may, with the Chairman of the Board, the President, or a
Vice President, sign certificates of ownership of stock in the corporation, and
shall cause all certificates so signed to be delivered to those entitled
thereto.
The Secretary shall keep all records required by the California
General Corporation Law.
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ARTICLE IV
The Secretary shall generally perform the duties usual to the office
of secretary of corporations, and such other duties as the chief executive
officer shall designate.
SECTION 20. ASSISTANT SECRETARIES' DUTIES.
Assistant Secretaries shall perform such of the duties of the
Secretary as the Secretary shall designate, and in the absence or disability of
the Secretary, the Assistant Secretaries, in the order of election to that
office by the Board at its latest organizational meeting, shall perform the
duties of the Secretary, unless action is taken by the Board as contemplated in
Article IV, Sections 21 and 22 of these Bylaws.
SECTION 21. SECRETARY PRO TEMPORE.
At any meeting of the Board or of the shareholders from which the
Secretary is absent, a Secretary pro tempore may be appointed and act.
SECTION 22. ELECTION OF ACTING TREASURER OR ACTING SECRETARY.
The Board may elect an Acting Treasurer, who shall perform all the
duties of the Treasurer during the absence or disability of the Treasurer, and
who shall hold office only for such a term as shall be determined by the Board.
The Board may elect an Acting Secretary, who shall perform all the
duties of the Secretary during the absence or disability of the Secretary, and
who shall hold office only for such a term as shall be determined by the Board.
Whenever the Board shall elect either an Acting Treasurer or Acting
Secretary, or both, the officers of the corporation as set forth in Article IV,
Section 1 of these Bylaws, shall include as if therein specifically set out, an
Acting Treasurer or an Acting Secretary, or both.
SECTION 23. PERFORMANCE OF DUTIES.
Officers shall perform the duties of their respective offices as
stated in these Bylaws, and such additional duties as the Board shall
designate.
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ARTICLE V
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 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 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; or
(ii) Obtain from the transfer agent, if any, for the
corporation, upon five business days' prior 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.
(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.
(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 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.
(d) Any such 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 principle office 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.
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ARTICLE V
SECTION 3. CONTRACTS AND OTHER INSTRUMENTS, LOANS, NOTES AND DEPOSITS OF
FUNDS.
The Chairman of the Board, the President, or a Vice President, either
alone or with the Secretary or an Assistant Secretary, or the Secretary alone,
shall execute in the name of the corporation such written instruments as may be
authorized by the Board and, without special direction of the Board, such
instruments as transactions of the ordinary business of the corporation may
require and, such officers without the special direction of the Board may
authenticate, attest or countersign any such instruments when deemed
appropriate. The Board may authorize any person, persons, entity, entities,
attorney, attorneys, attorney-in-fact, attorneys-in-fact, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be general or confined
to specific instances.
No loans shall be contracted on behalf of the corporation and no
evidences of such indebtedness shall be issued in its name unless authorized by
the Board as it may direct. Such authority may be general or confined to
specific instances.
All checks, drafts, or other similar orders for the payment of money,
notes, or other such evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation and in such manner as the Board or chief executive officer may
direct.
Unless authorized by the Board or these Bylaws, no officer, agent,
employee or any other person or persons 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.
All funds of the corporation not otherwise employed shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies, or other depositories as the Board may direct.
SECTION 4. CERTIFICATES OF STOCK.
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 Treasurer or an Assistant
Treasurer 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. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed
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ARTICLE V
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.
Certificates for shares may be used prior to full payment under such
restrictions and for such purposes as the Board may provide; provided, however,
that on any certificate issued to represent any partly paid shares, the total
amount of the consideration to be paid therefor and the amount paid thereon
shall be stated.
Except as provided in this Section, no new certificate for shares
shall be issued in lieu of an old one unless the latter is surrendered and
canceled 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 thereof, and the corporation may require
that the corporation 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. TRANSFER AGENT, TRANSFER CLERK AND REGISTRAR.
The Board may, from time to time, appoint transfer agents, transfer
clerks, and stock registrars to transfer and register the certificates of the
capital stock of the corporation, and may provide that no certificate of
capital stock shall be valid without the signature of the stock transfer agent
or transfer clerk, and stock registrar.
SECTION 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chief executive officer or any other officer or officers
authorized by the Board or the chief executive officer are each authorized to
vote, represent and exercise on behalf of the corporation all rights incident
to any and all shares 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 said officer.
SECTION 7. 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
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ARTICLE VI
such consideration as may be fixed of its unissued shares, or of issued shares
acquired, to one or more of the employees or directors of the corporation or of
a subsidiary or to a trustee on their behalf and for the payment for such
shares in installments or at one time, and may provide 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.
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 therefor, the reservation of title until full payment
therefor, the effect of the termination of employment and 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 8. FISCAL YEAR AND SUBDIVISIONS.
The calendar year shall be the corporate fiscal year of the
corporation. For the purpose of paying dividends, for making reports and for
the convenient transaction of the business of the corporation, the Board may
divide the fiscal year into appropriate subdivisions.
SECTION 9. 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. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Each person who was or is a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, formal or informal, whether brought in the name of the corporation
or otherwise and whether of a civil, criminal, administrative or investigative
nature (hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director, officer,
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employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is an alleged action or inaction in
an official capacity or in any other capacity while serving as a director or
officer, shall, subject to the terms of any agreement between the corporation
and such person, be indemnified and held harmless by the corporation to the
fullest extent permissible under California law and the corporation's Articles
of Incorporation, against all costs, charges, expenses, liabilities and losses
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith, and such indemnification shall continue
as to a person who has ceased to be a director or officer and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that (A) the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of the corporation; (B) the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof) other
than a proceeding by or in the name of the corporation to procure a judgment in
its favor only if any settlement of such a proceeding is approved in writing by
the corporation; (C) that no such person shall be indemnified (i) except to the
extent that the aggregate of losses to be indemnified exceeds the amount of
such losses for which the director or officer is paid pursuant to any
directors' and officers' liability insurance policy maintained by the
corporation; (ii) on account of any suit in which judgment is rendered against
such person for an accounting of profits made from the purchase or sale by such
person of securities of the corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law; (iii) if a court of
competent jurisdiction finally determines that any indemnification hereunder is
unlawful; and (iv) as to circumstances in which indemnity is expressly
prohibited by Section 317 of the General Corporation Law of California (the
"Law"); and (D) that no such person shall be indemnified with regard to any
action brought by or in the right of the corporation for breach of duty to the
corporation and its shareholders (a) for acts or omissions involving
intentional misconduct or knowing and culpable violation of law; (b) for acts
or omissions that the director or officer believes to be contrary to the best
interests of the corporation or its shareholders or that involve the absence of
good faith on the part of the director or officer; (c) for any transaction from
which the director or officer derived an improper personal benefit; (d) for
acts or omissions that show a reckless disregard for the director's or
officer's duty to the corporation or its shareholders in circumstances in which
the director or officer was aware, or should have been aware, in the ordinary
course of performing his or her duties, of a risk of serious injury to the
corporation or its shareholders; (e) for acts or omissions that constitute an
unexcused pattern of
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inattention that amounts to an abdication of the director's or officer's duties
to the corporation or its shareholders; and (f) for costs, charges, expenses,
liabilities and losses arising under Section 310 or 316 of the Law. The right
to indemnification conferred in this Article shall include the right to be paid
by the corporation expenses incurred in defending any proceeding in advance of
its final disposition; provided, however, that if the Law permits the payment
of such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, such advances shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts to the corporation if it shall be ultimately determined
that such person is not entitled to be indemnified.
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS.
A person who was or is a party or is threatened to be made a party to
or is involved in any proceeding by reason of the fact that he or she is or was
an employee or agent of the corporation or is or was serving at the request of
the corporation as an employee or agent of another enterprise, including
service with respect to employee benefit plans, whether the basis of such
action is an alleged action or inaction in an official capacity or in any other
capacity while serving as an employee or agent, may, subject to the terms of
any agreement between the corporation and such person, be indemnified and held
harmless by the corporation to the fullest extent permitted by California law
and the corporation's Articles of Incorporation, against all costs, charges,
expenses, liabilities and losses, (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith.
SECTION 3. RIGHT OF DIRECTORS AND OFFICERS TO BRING SUIT.
If a claim under Section 1 of this Article is not paid in full by the
corporation within 30 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense of
prosecuting such claim. Neither the failure of the corporation (including its
Board, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met the
applicable standard of conduct, if any, nor an actual determination by the
corporation (including its Board, independent legal counsel, or its
shareholders) that the claimant has not met the applicable standard of conduct,
shall be a
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defense to the action or create a presumption for the purpose of an action that
the claimant has not met the applicable standard of conduct.
SECTION 4. SUCCESSFUL DEFENSE.
Notwithstanding any other provision of this Article, to the extent
that a director or officer has been successful on the merits or otherwise
(including the dismissal of an action without prejudice or the settlement of a
proceeding or action without admission of liability) in defense of any
proceeding referred to in Section 1 or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred in connection therewith.
SECTION 5. NON-EXCLUSIVITY OF RIGHTS.
The right to indemnification provided by this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, bylaw, agreement, vote of shareholders or disinterested
directors or otherwise.
SECTION 6. INSURANCE.
The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Law.
SECTION 7. EXPENSES AS A WITNESS.
To the extent that any director, officer, employee or agent of the
corporation is by reason of such position, or a position with another entity
at the request of the corporation, a witness in any action, suit or proceeding,
he or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her on his or her behalf in connection therewith.
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SECTION 8. INDEMNITY AGREEMENTS.
The corporation may enter into agreements with any director, officer,
employee or agent of the corporation providing for indemnification to the
fullest extent permissible under the Law and the corporation's Articles of
Incorporation.
SECTION 9. SEPARABILITY.
Each and every paragraph, sentence, term and provision of this Article
is separate and distinct so that if any paragraph, sentence, term or provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other paragraph, sentence, term or provision hereof. To the extent
required, any paragraph, sentence, term or provision of this Article may be
modified by a court of competent jurisdiction to preserve its validity and to
provide the claimant with, subject to the limitations set forth in this Article
and any agreement between the corporation and claimant, the broadest possible
indemnification permitted under applicable law.
SECTION 10. EFFECT OF REPEAL OR MODIFICATION.
Any repeal or modification of this Article shall not adversely affect
any right of indemnification of a director or officer existing at the time of
such repeal or modification with respect to any action or omission occurring
prior to such repeal or modification.
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 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. Said provisions in such 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.
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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
such persons 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.
In the event 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
authorities which the Board could by law delegate, including all powers and
authorities 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 authorities and shall have all other powers and authorities as may by law
or lawful decree be conferred 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 such remaining directors are not less than three in number. In
the event such remaining directors are less than three in number the emergency
committee shall consist of three persons, who shall be the remaining director
or
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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. In the event
that 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.
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 in the event of a vacancy or vacancies therein,
arising at any time, the remaining member or members of the emergency committee
shall have the power to fill such vacancy or vacancies. In the event 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.
In the event, 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
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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
SECTION 1. AMENDMENTS.
These Bylaws may be amended or repealed either by approval of the
outstanding shares or by the approval of the Board; provided, however, that a
Bylaw specifying or changing a fixed number of directors or the maximum or
minimum number or changing from a fixed to a variable Board or vice versa may
only be adopted by approval of the outstanding shares. The exact number of
directors within the maximum and minimum number specified in these Bylaws may
be amended by the Board alone.
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