Exhibit 3(ii)
BY-LAWS
OF
CALIFORNIA MICRO DEVICES CORPORATION
a California corporation
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Article I
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DIRECTORS: MANAGEMENT
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Section 1. a. Powers
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Subject to the provisions of the General Corporation
Law of California, effective January 1, 1977 (to which the various Section
numbers quoted herein relate) and subject to any limitation in the Articles of
Incorporation and the By-laws relating to action, required to be approved by the
Shareholders (Sec. 153) or by the outstanding shares (Sec. 153), the business
and affairs of this corporation shall be managed by and all corporate powers
shall be exercised by or under direction of the Board of Directors.
b. Standard Care.
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Each Director shall exercise such powers and
otherwise perform such duties in good faith, in the manner such Director
believes to be in the best interests the corporation, and with such care,
including reasonable inquiry, using ordinary prudence, as a person in a life
position would use under similar circumstances. (Sec. 309).
c. Exception for Close Corporation.
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Notwithstanding the provisions of Section 1, in the
event that this corporation shall elect to become a close corporation as defined
in Sec. 158, its Shareholders may enter into a Shareholders' Agreement as
provided in Sec. 300 (b). Said agreement may provide for the exercise of
corporate powers and the management of the business and affairs of this
corporation by the Shareholders, provided however such agreement shall, to the
extent and so long as the discretion or the powers of the Board in its
management of corporate affairs is controlled by such agreement, impose on each
Shareholder who is a party thereof, liability for managerial acts performed or
omitted by such person pursuant thereto otherwise imposed upon Directors as
provided in Sec. 300(d).
Section 2. Number and Qualification.
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The authorized number of Directors of the corporation
shall be at least five, and no more than nine.
This number may be changed by amendment to the
Articles of Incorporation or by an amendment to this Section 2, Article I, of
these By-Laws, adopted by the vote or written assent of the Shareholders
entitled to exercise majority voting power as provided in Sec. 212.
Section 2.a. Exact Number of Directors.
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The exact number of directors of this corporation,
within the range authorized elsewhere in these By-Laws, shall be as determined
by the Board of Directors. Unless and until otherwise determined by the Board of
Directors, the exact number shall be seven (7) until the election of the board
of directors at the Company's upcoming 2002 annual shareholders meeting, at
which time the exact number shall be six (6).
Section 3. Election and Tenure of Office.
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The Directors shall be elected by ballot at the
annual meeting of the Shareholders, to serve for one year or until their
successors are elected and have qualified. Their term of office shall begin
immediately after election.
Section 4. Vacancies.
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Vacancies in the Board of Directors may be filled by
a majority of the remaining Directors, though less than a quorum, or by a sole
remaining Director, and each Director so elected shall hold office until his
successor is elected at an annual meeting of Shareholders or at a special
meeting called for that purpose.
The Shareholders may at any time elect a Director to
fill any vacancy not filled by the Directors, and may elect the additional
Directors at the meeting at which an amendment of the By-Laws is voted
authorizing an increase in the number of Directors.
A vacancy or vacancies shall be deemed to exist in
case of an expansion of the number of members of the Board of Directors within
the limits set forth in Section 2 of this ARTICLE, the death, resignation or
removal of any Director, or if the Shareholders shall increase the authorized
number of Director but shall fail at the meeting at which such increase is
authorized, or at an adjournment thereof, to elect the additional Director so
provided for, or in case the Shareholders fail at any time to elect the full
number of authorized Directors.
If the Board of Directors 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 shall become effective.
No reduction of the number of Directors shall have
the effect of removing any Director prior to the expiration of his term of
office.
Section 5. Removal of Directors.
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The entire Board of Directors or any individual
Director may be removed from office as provided by Secs. 302, 303 and 304 of the
Corporations Code of the State of
California. In such, case, the remaining Board members may elect a successor
Director to fill such vacancy for the remaining unexpired term of the Director
so removed.
Section 6. Notice, Place and Manner of Meetings.
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Meetings of the Board of Directors may be a called by
the Chairman of the Board, or the President, or any Vice President, or the
Secretary, or any two (2) Directors and shall be held at the principle executive
office of the corporation in the State of California, unless some other place is
designated in the notice of the meeting. No notice need be given of organization
meetings or regular meetings held at the corporate offices at the time and date
set forth herein. Notice shall be given of other meetings as herein provided.
Members of the Board may participate in a meeting through use of a conference
telephone or similar communications equipment so long as all members
participating in such a meeting can hear one another. Accurate minutes of any
meeting of the Board, or any committee thereof, shall be maintained as required
by Sec. 1500 of the Code by the Secretary or other Officer designated for that
purpose.
Section 7. Organization Meetings - regular Meetings.
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The organization meetings of the newly elected Board
of Directors shall be held immediately following the adjournment of the annual
meetings of the Shareholders.
Other Regular Meetings.
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Regular meetings of the Board of Directors shall be
held at the corporate offices, or such other place as may be designated by the
Board of Directors, as follows:
Time of Regular Meeting: 7:30 p.m.
Date of Regular Meeting: third Thursday of August
If said day shall fall upon a holiday, such meetings shall be held on the next
succeeding business day thereafter.
Section 8. Special Meetings - Notices.
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Special meetings of the Board may be called at any
time by the President or, if he is absent or unable or refuses to act, by any
Vice President or the Secretary or by any two Directors, or by one Director if
only one is provided.
At least forty-eight (48) hours notice of the time
and place of special meetings shall be delivered personally to the Directors or
personally communicated to them by a corporate Officer by telephone or
telegraph. If the notice is sent to a Director by letter, it shall be addressed
to him at his address as it is shown upon the records of the corporation, (or if
it is not so shown on such records or is not readily ascertainable, at the place
in which the meetings of the Directors are regularly held). In case such notice
is mailed, it shall be deposited in the United States mail, postage prepaid, in
the place in which the principle executive office of the corporation is located
at least four (4) days prior to the time of the holding of the meeting. Such
mailing, telegraphing, telephoning or delivery as above provided shall be due,
legal and personal notice to such Director.
Section 9. Waivers.
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When (i) all of the Directors are present at any
organizational, regular or special meeting, however called or noticed, and sign
a written consent thereto on the records of such meeting, or, (ii) if a majority
of the Directors are present and if these not present sign a waiver of notice of
such meeting or a consent to holding the meeting or an approval of the minutes
thereof, whether prior to or after the holding of such meeting, which said
waiver, consent or approval shall be filed with the corporate records or made a
part of the minutes of the meeting or (iii) if a Director attends a meeting
without notice but without protesting, prior thereto or at its commencement, the
hick of notice to him, then the transactions thereof are as valued as if had at
a meeting regularly called and noticed.
Section 10. Sole Director Provided by Articles of Incorporation.
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In the event only one Director is required by the
By-Laws or Articles of Incorporation, then any reference herein to notices,
waivers, consents, meetings or other actions by a majority or quorum of the
Directors shall be deemed to refer to such notice, waiver, etc., by such sole
Director, who shall have all the rights and duties and shall be entitled to
exercise all of the powers and shall assume all the responsibilities otherwise
herein described as given to a Board of Director.
Section 11. Directors Acting by Unanimous Written Consent.
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Any action required or permitted to be taken by the
Board of Directors may be taken without a meeting and with the same force and
effect as if taken by a unanimous vote of Directors if authorized by a writing
signed individually or collectively by all members of the Board. Such consent
shall be filed with the regular minutes of the Board.
Section 12. Quorum.
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A majority of the number of Directors as fixed by the
Articles of Incorporation or By-Laws shall be necessary to constitute a quorum
for the transaction of business, and the action of a majority of the Directors
present at any meeting at which there is a quorum, when duly assembled, is valid
as a corporate act; provided that a minority of the Directors, in the absence of
a quorum, may adjourn from time to time, but may not transact any business. 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 a majority of the required quorum for such a meeting.
Section 13. Notice of Adjournment.
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Notice of the time and place of holding an adjourned
meeting need not be given to absent Directors if the time and place be fixed at
the meeting adjourned and held within twenty-four (24) hours, but if adjourned
more than twenty-four (24) hours, notice shall be given to all Directors not
present at the time of the adjournment.
Section 14. Compensation of Directors.
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Director, as such, shall not receive any stated
salary for their services, but by resolution of the Board a fixed sum and
expense of attendance, if any, may be allowed for attendance at each regular and
special meeting of the Board; provided that nothing herein contained shall be
construed to preclude any Director from serving the company in any other
capacity and receiving compensation therefor.
Section 15. Committees.
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Committees of the Board may be appointed by
resolution passed by a majority of the whole Board. Committees shall be composed
of two or more members of the Board, and shall have such powers of the Board as
may be expressly delegated to it by resolution by the Board of Directors, except
those powers expressly Made non-delegable by Sec. 311.
Section 16. Advisory Directors.
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The Board of Directors from time to time may elect
one or more persons to be Advisory Directors who shall not by such appointment
be members of the Board of Directors. Advisory Directors shall be available from
time to time to perform special assignments specified by the President, to
attend meetings of the Board of Directors upon invitation and to furnish
consultation to the Board. The period during which the title shall be held may
be prescribed by the Board of Directors. If no period is prescribed, the title
shall be held at the pleasure of the Board.
Section 17. Resignations.
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Any Director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary or the Board
of Directors of the corporation, unless the notice specifies a later time for
the effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
Article II
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OFFICERS
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Section 1. Officers.
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The Officers of the corporation shall be a Chairman
of the Board or a President or both, a Secretary and a Chief Financial Officer.
The corporation may also have, at the discretion of the Board of Directors, one
or more Vice Presidents, one or more Assistant Secretaries and such other
Officers as may be appointed in accordance with the provisions of Section 3 of
this Article. One person may hold two or more offices.
Section 2. Election.
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The Officers of the corporation, except such Officers
as may be appointed in accordance with the provisions of Section 3 or Section 5
of this Article shall be chosen annually by the Board of Directors, and each
shall hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and qualified.
Section 3. Subordinate Officers, Etc.
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The Board of Directors may appoint such other
Officers as the business of the corporation may require, each of whom shall hold
office for such a period, have such authority and perform such duties as are
provided in the By-Laws or as the Board of Directors may from time to time
determine.
Section 4. Removal and Resignation.
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Any Officer may be removed, either with or without
cause, by a majority of the Directors at the time in office, at any regular or
special meeting of the Board, or, except in case of art Officer chosen by the
Board of Directors, by any Officer upon whom such power of removal may be
conferred by the Board of Directors.
Any Officer may resign at any time by giving written
notice to the Board of Directors, or to the President, or to the Secretary of
the corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5. Vacancies.
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A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the By-Laws for regular appointments to such office.
Section 6. Chairman of the Board.
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The Chairman of the Board, if there shall be such an
Officer, shall, present, preside at all meetings of the Board of Directors, and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by the By-Laws.
Section 7. President.
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Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the chairman of the Board, if there be such
an Officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the Control of the Board of Directors, have
general supervision, direction and control of the lousiness and Officers of the
corporation. He shall preside at all meetings of the Shareholders and in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be
ex officio a member of all the standing committees, including the Executive
Committee, if any, and shall have the general powers and duties of management
usually vested in the office of President of a corporation, and shall have such
other powers and duties as may be prescribed by the board of Directors or the
By-laws.
Section 8. Vice President.
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In the absence or disability of the President, the
Vice Presidents, in order of their rank as fixed by the Board of Directors, or
if not ranked, the Vice President designated by the Board of Directors, shall
perform all the duties of the president, and when so acting shall have all the
powers of, and be subject to, all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of Directors
or the By-Laws.
Section 9. Secretary.
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The Secretary shall keep, or cause to be kept, a book
of minutes at the principle office or such other place as the Board of Directors
may order, of all meetings of Directors and Shareholders, with the time and
place of holding, whether regular or special, and if special, how authorized,
the notice thereof given, the names of those present at Directors' meetings, the
number of shares present or represented at Shareholders' meetings and the
proceedings thereof.
The Secretary shall keep, or cause to be kept, at the
principle once or at the office of the corporation's transfer agent, a share
register, or duplicate sure 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 of Directors
required by the By-Laws or by law to be given, and he shall keep the seal of the
corporation in safe custody, and gall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the By-Laws.
Section 10. Chief Financial Officer.
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This Officer shall keep and maintain, or cause to be
kept and maintained in accordance with generally accepted accounting principles,
adequate and correct accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, earnings (or surplus) and shares. The
books of account shall at all reasonable times be open to inspection try any
Director.
This Officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated try the Board of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, shall
render to the President and Directors, whenever they request it, an account of
all of his transactions and of the financial condition of the corporation, and
shall have such other
powers and perform such other duties as may be prescribed by the Board of
Directors of the By-Laws.
Article III
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SHAREHOLDERS' MEETINGS
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Section 1. Place of Meetings.
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Meetings of the Shareholders shall be held at the
principal executive office of the corporation, in the State of California,
unless some other appropriate and convenient location be designated for that
purpose from time to time by the Board of Directors.
Section 2. Annual Meetings.
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The annual meeting of the shareholders shall be held,
each year, no later than one hundred fifty (150) days after the end of the
company's fiscal year upon a date and at a time as selected by the Board of
Directors, and notice thereof given in the manner prescribed in Section 4 of
Article III of these By-Laws.
At the annual meeting, the shareholders shall elect a
Board of Directors, consider reports of the affairs of the corporation, and
transact such other business as may be properly brought before the meeting.
Section 3. Special Meetings.
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Special meetings of the Shareholders may be called at
any time by the Board of Directors, the Chairman of the Board, the President, a
Vice President, the Secretary, or by one or more Shareholders holding not less
than one-tenth (1/10) of the voting power of the corporation. Except as next
provided, notice shall be given as for the annual meeting.
Upon receipt of a written request addressed to the
Chairman, President, Vice President, or secretary, mailed or delivered
personally to such Officer by any person (other than the Board) entitled to call
a special meeting of Shareholders, such Officer 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 (35) nor more than sixty (60) days after the receipt of such a
request. If such notice is not given within twenty days after receipt of such
request, the persons calling the meeting may give notice thereof in the manner
provided by these By-Laws or apply to the Superior Court as provided in Sec.
305(c).
Section 4. Notices of Shareholder Meetings; Shareholder
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Proposals; Nomination of Directors.
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4.1 Notice of Shareholder Meetings - Reports
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a. Notice of meetings, annual or special, shall be given in
writing not less than ten (10) nor more than sixty (60) days before the date of
the meeting, to Shareholders
entitled to vote thereat by the Secretary or the Assistant Secretary, or if
there be no such Officer, or in the case of his neglect or refusal, by any
Director or Shareholder.
b. Such notices or any reports shall be given personally or by
mail or other means of written communication as provided in section 601 of the
Code and shall be sent to the Shareholder's address appearing on the books of
the corporation, or supplied by him to the corporation for the purpose of
notice, and in the absence thereof, as provided in section 601 of the Code.
c. Notice of any meeting of Shareholders shall specify the
place, the day and the hour of meeting, and (a) in 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 an annual meeting, those matters which the
Board at date of mailing, intends to present for action by the Shareholders. At
any meetings where Directors are to be elected, notice shall include the names
of the nominees, if any, intended at date of Notice to be presented by
management for election.
d. If a Shareholder supplies no address, notice shall be
deemed to have been given to him if mailed to the place where the principal
executive office of the company, in California, is situated, or published at
least once in some newspaper of general circulation in the County of said
principal office.
e. Notice shall be deemed given at the time it is delivered
personally or deposited in the mail or sent by other means of written
communication. The Officer giving such notice or report shall prepare and file
an affidavit or declaration thereof.
f. When a meeting is adjourned for forty-five (45) days or
more, notice of the adjourned meeting shall be given as in case of an original
meeting. Save, as aforesaid, it shall not be necessary to be given any notice of
adjournment or of the business to be transacted at an adjourned meeting other
than by announcement at the meeting at which such adjournment is taken.
4.2 Business Brought Before Annual Shareholder Meetings
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a. To be properly brought before an annual Shareholder
meeting, business must be either (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors; (ii)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors; or (iii) otherwise properly brought before the meeting by a
Shareholder of record.
b. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a Shareholder, the
Shareholder must have given timely notice thereof in writing to the Secretary of
this corporation. To be timely, a Shareholder's notice must be delivered to or
mailed and received at the principal executive offices of this corporation,
addressed to the attention of the Secretary of this corporation, no less than
one hundred twenty (120) calendar days before the one-year anniversary of the
date that this corporation's proxy statement was released to Shareholders in
connection with the previous year's annual meeting.
c. A Shareholder notice to the Secretary shall set forth as to
each matter the Shareholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting; (ii) the
name and record address of the Shareholder proposing such business; (iii) the
class and number of shares of this corporation which are beneficially owned by
the Shareholder; (iv) any material interest of the Shareholder in such business;
and (v) any such other information concerning the person(s) making such proposal
and the proposal itself as would be required by the appropriate Rules and
Regulations of the Securities and Exchange Commission to be included in a proxy
statement soliciting proxies for the proposal.
d. The chairman of the meeting of the Shareholders may refuse
to acknowledge any Shareholder proposal not made in compliance with the
procedure set forth in this Section 4.2.
4.3 Nomination of Directors
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a. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors at an annual
meeting of the Shareholders. Nominations of persons for election to the Board of
Directors at the annual meeting, by or at the direction of the Board of
Directors, may be made by the nominating committee of the Board of Directors or
any person appointed by the Board of Directors; nominations may also be made by
any Shareholder of record of this corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set forth in
this Section 4.3.
b. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of this corporation. To be timely, a Shareholder's
notice shall be delivered to or mailed and received at the principal executive
offices of this corporation addressed to the attention of the Secretary of this
corporation no less than 120 calendar days before the one-year anniversary of
the date that this corporation's proxy statement was released to Shareholders in
connection with the previous year's annual meeting.
c. Such Shareholder's notice to the Secretary shall set forth
(i) as to each person whom the Shareholder proposes to nominate for election or
re-election as a director, (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the person
over at least the last five years, (C) the class and number of shares of capital
stock of this corporation which are beneficially owned by the person, (D) a
statement as to the person's citizenship, (E) a description of all arrangements
or understandings between the person and the nominating Shareholder pursuant to
which such nomination is being made, (F) the consent of such person to serve as
a director of this corporation if so elected, and (G) any such other information
concerning the person as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission; and
(ii) as to the Shareholder giving the notice, (A) the name and record address of
the Shareholder, and (B) the class, series and number of shares of capital stock
of this corporation which are beneficially owned by the Shareholder.
d. This corporation may require any Shareholder-proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as a
director of this corporation.
Section 5. Validation of Shareholders' Meetings.
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The transactions of any meeting of Shareholders,
however called and noticed, shall be valid as though had at a meeting duly held
after regular call and notice, if a quorum be present either in person or proxy,
and if, either before or after the meeting, each of the Shareholders entitled to
vote, not present in person or by proxy, sign a written waiver of notice; or a
consent to the holding of such a meeting or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed corporate records or made
a part of the minutes of the meeting. Attendance shall constitute a waiver of
notice, unless objection shall be made as provided in Sec. 601(e).
Section 6. Shareholders Acting Without a Meeting - Directors.
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Any action which may be taken at a meeting of the
Shareholders may be taken without a meeting or notice of meeting if authorized
by a writing signed by all of the Shareholders entitle to vote at a meeting for
such purpose and filed with the Secretary of the corporation, provided further
that while ordinarily Directors can only be elected by unanimous written Consent
under Sec. 603(d), as to vacancy created by death, resignation or other causes,
if the Directors fail to fill a vacancy, then a Director to fill that vacancy
may be elected by the written consent of persons holding a majority of stares
entitled to vote for the election of Directors.
Section 7. Other Actions Without A Meeting.
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Unless otherwise provided in the GCL or the Articles,
any action which may be taken at any annual or special meeting of Shareholders
may be taken without a meeting and without prior notice if a consent in writing,
setting forth the action so taken, 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 the consents of all Shareholders entitled to
vote have been solicited in writing,
(1) Notice if any Shareholder approval pursuant to
Secs. 310, 317, 1201 or 2007 without a meeting by less than unanimous written
consent shall be given at least 10 days before the consummation of the action
authorized by such approval, and
(2) Prompt notice shall be given of the taking of any
corporate action approved by Shareholders without a meeting by less than
unanimous written consent, to each of those Shareholders entitled to vote who
have not consented in writing.
Any Shareholder giving a written consent, or the
Shareholder's proxyholders, or a transferee, of the shares of a personal
representative of the shareholder or their
respective proxyholders, may revoke the consent by a writing received by the
corporation prior to the time that written consents of the number of shares
required to authorize the proposed action have been filed with the Secretary of
the corporation, but may not do so thereafter. Such revocation is effective upon
its receipt by the Secretary.
Section 8. Quorum.
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The holders of a majority of the shares entitled to
vote thereat, present in person, or represented by proxy, shall constitute a
quorum at all meetings of the Shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation, or by
these By-Laws. If, however, such majority shall not be present or represented at
any meeting of the Shareholders, the Shareholders entitled to vote thereat,
present in person, or by proxy, shall have the power to adjourn the meeting from
time to time, until the requisite amount of voting shares shall be present. At
such adjourned meeting at which the requisite amount of voting shares shall be
represented, any business may be transacted which might have been transacted at
a meeting as originally notified.
If a quorum be initially present, the Shareholders
may continue to transact business until adjournment, not withstanding the
withdrawal of enough Shareholders to leave less thin a quorum; if any action
taken is approved by a majority of the Shareholders required to initially
constitute a quorum.
Section 9. Voting Rights; Cumulative Voting:
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The election of directors by the shareholders shall
not be by cumulative voting. At each election of directors, each shareholder
entitled to vote may vote all the shares held by that shareholder for each of
the several nominees for the director up to the number of directors to be
elected. The shareholder may not cast more votes for any single nominee than the
number of shares held by that shareholder. This paragraph shall remain effective
so long as the corporation is a "listed corporation" within the meaning of
Section 301.5(d) of the California General Corporation Law.
Section 10. Proxies.
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Every Shareholder entitled to vote, or to execute
consents, may do so, either in person or by written proxy, executed in
accordance with the provisions of Secs. 604 and 705 of the Code and filed with
the Secretary of the corporation.
Section 11. Organization.
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The Chairman of the Board, President, or in their
absence, any Vice President, shall call the meeting of the Shareholders to
order, and shall act as chairman of the meeting. In the absence of the President
and all of the Vice Presidents, Shareholders shall appoint a chairman for such a
meeting. The Secretary of the company shall act as Secretary of all meetings of
the Shareholders, but in the absence of the Secretary at any meeting of the
Shareholders, the presiding Officer may appoint any person to act as Secretary
of the meeting.
Section 12. Inspectors of Election.
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In advance of any meeting of Shareholders the Board
of Directors may, if they so elect, appoint inspectors of election to act at
such a meeting or any adjournments thereof. If inspectors of election be not so
appointed, the chairman of any such meeting may, and on the request of any
Shareholder or his proxy shall, make such appointment at the meeting in which
case the number of inspectors shall be either one or, three as determined by a
majority of the Shareholders represented at the meeting.
Section 13. Shareholder' Agreements.
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Notwithstanding the above provisions in the event
this corporation elects to become a close corporation, an agreement between two
or more Shareholders thereof, if in writing and signed, by the parties thereof,
may provide that in exercising any voting rights the shares held by them shall
be voted as provided therein or in Sec. 706, and may otherwise modify these
provisions as to the Shareholders' meetings and actions.
Article IV
----------
CERTIFICATES AND TRANSFERS OF SHARES
------------------------------------
Section 1. Certificates for Shares.
------------------------
Certificates for shares shall be of such form and
device as the Board of Directors may designate and shall state the name of the
record holder of the hares represented thereby; its number; date of issuance;
the number of shares for which it is issued; a statement of the rights,
privileges, preferences and restrictions, if any; a statement as to the
redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
Every Certificate for shares must be signed by the
President or a Vice-President and the Secretary or an Assistant Secretary or
must be authenticated by facsimiles of the signatures of the President and
Secretary or by a facsimile of the signature of its President and the written
signature of its Secretary or an Assistant Secretary. Before it becomes
effective every certificate for shares authenticated by a facsimile of a
signature must be countersigned by a transfer agent or transfer clerk and must
be registered by an incorporated bank or trust company, either domestic or
foreign, as registrar of transfers.
Section 2. Transfer on the Books.
---------------------
Upon surrender to the Secretary or transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 3. Lost or Destroyed Certificates.
------------------------------
Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact and shall if
the Directors so require give the corporation a bond of indemnity, in form and
with one or more sureties satisfactory to the Board, in at least double the
value of the stock represented by said certificate, whereupon a new certificate
May be issued in the same tenor and for the same number of shares as the one
alleged to be lost or destroyed.
Section 4. Transfer Agents and Registrars.
------------------------------
The Board of Directors may appoint one or more
transfer agents or transfer clerks, and one or more registrars, which shall be
an incorporated bank or trust company either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the Board of Directors may designate.
Section 5. Closing Stock Transfer Books - Record Date.
------------------------------------------
In order that the corporation may determine the
Shareholders entitled to notice of any meeting or to vote or entitled to receive
payment of any dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any other lawful action, the Board
may fix, in advance, a record date, which shall not tie more than sixty nor less
than ten days prior to the date of such meeting nor more than sixty days prior
to any other action.
If no record date is fixed:
The record date for determining Shareholders entitled
to notice of or to vote at a meeting of Shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
The record date for determining Shareholders entitled
to give consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first written
consent is given.
The record date for determining Shareholders for any
other purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto, or the 60th day prior to the date of
such other action, whichever is later.
Section 6. Legend Condition.
----------------
In the event any shares of this corporation are
issued pursuant to ay permit or exemption therefrom requiring the imposition of
a legend condition the person or persons issuing or transferring said shares
shall make sure said legend appears on the certificate and on the stub relating
thereto in the stock record book and shall not be required to transfer any
shares free of such legend unless an amendment to such permit or a new permit be
first issued so authorizing such a deletion.
Section 7. Close Corporation Certificates.
------------------------------
All certificates representing shares of this
corporation, in the event it shall elect to become a close corporation, shall
contain the legend required by Sec. 418c.
Article V
---------
CORPORATE RECORDS AND REPORTS -- INSPECTION
-------------------------------------------
Section 1. Records.
-------
The corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books
and records of its business and properties. All of such books, records and
accounts shall be kept at its principle executive office in the State of
California, as fixed by the Board of Directors from time to time.
Section 2. Inspection of Books and Records.
-------------------------------
All books and records provided for in Sec. 1500 shall
be open to inspection of the Directors and Shareholders from time to time and in
the manner provided in said Sec. 1600-1602.
Section 3. Certification and Inspection of By-Laws.
----------------------------------------
The original or a copy of these By-Laws, as amended
or otherwise altered to date, certified by the Secretary, shall be kept at the
corporation's principal executive office and shall be open to inspection by the
Shareholders of the company, at all reasonable times during office hours, as
provided in Sec. 213 of the Corporation Code.
Section 4. Checks. Drafts. Etc.
--------------------
All checks, drafts or other orders for payment of
money, notes or other evidence of indebtedness, issued in the name of or payable
to the corporation, shall be signed or, endorsed by such person or persons and
in such manner as shall be determined from time to time by resolution of the
Board of Directors.
Section 5. Contracts. Etc. - How Executed.
------------------------------
The Board of Directors, except as in the By-Laws
otherwise provided, may authorize any Officer or Officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the corporation. Such authority may be general: or confined to specific
instances. Unless so authorized by the Board of Directors, no Officer, agent or
employee shall have any power or authority to bind the corporation by any
contract or agreement, or to pledge its credit, or to render it liable for any
purpose or to any amount, except as provided in Sec. 313 of the Corporations
Code.
Article VI
----------
ANNUAL REPORTS
--------------
Section 1. Due Date, Contents.
-------------------
The Board of Directors shall cause an annual report
or statement to be sent to the Shareholders of this corporation not later than
120 days after the close of the fiscal or calendar year in accordance with the
provisions of Secs 1500 - 1501. Such report shall be sent to Shareholders at
least fifteen days prior to the annual meeting of Shareholders. Such report
shall contain a balance sheet as of the end of the fiscal year, an income
statement and a statement of changes in financial position for such fiscal year,
accompanied by any report thereon of an independent accountant, or if there is
no such report, a certificate of the Chief Financial Officer or President that
such statements were prepared without audit from the books and records of the
corporation.
Section 2. Waiver.
------
The foregoing requirement of an annual report may be
waived by the Board so long, as this corporation shall have less than 100
Shareholders.
Article VII
-----------
AMENDMENTS TO BY-LAWS
---------------------
Section 1. By Shareholders.
---------------
New By-Laws may be adapted or these By-Laws may be
repealed or amended at their annual meeting, or at any other meeting of the
Shareholders called for that purpose, by a vote of Shareholders entitled to
exercise a majority of the voting power of the corporation, or by written assent
of such Shareholders.
Section 2. Powers of Directors.
-------------------
Subject to the right of the Shareholders to adopt,
amend or repeal By-Laws, as provided in Section 1 of this Article VII, and the
limitations of Sec. 204 (a) (5) and Sec. 212, the Board of Directors may adopt,
amend or repeal any of these By-Laws other than a By-Law or amendment thereof
changing the authorized number of directors.
Section 3. Record of Amendments.
--------------------
Whenever an amendment or new By-Law is adopted, it
shall be copied in the book of By-Laws; with the original By-Laws, in the
appropriate place. If any By-Law is repealed, the fact of repeal with the date
of the meeting at which the repeal was enacted or written assent was filed shall
be stated in said book.
Article VIII
------------
MISCELLANEOUS
-------------
Section 1. References to Code Sections.
---------------------------
"Sec." references herein refer to the equivalent
Sections of the general Corporation Law effective January 1, 1977 as amended.
Section 2. Effect of Shareholders' Agreement.
---------------------------------
Any Shareholders' Agreement authorized by
Sec. 300 (b), shall only be effective to modify the terms of these By-Laws if
this corporation elects to become a close corporation with appropriate filing of
or amendment to its Articles as required by Sec. 202 and shad terminate when
this corporation ceases to be a close corporation. Such an agreement cannot
waive or alter Secs. 158, (defining close corporations), 202 (requirements of
Articles of Incorporation), 500 and 501 relative to distribution, 111 (merger),
1201(e) (reorganization) or Chapters 15 (Records and Reports), 16 (Rights of
Inspection), 18 (Involuntary Dissolution) or 22 (Crimes and Penalties). Any
other provisions of the Code or these By-Laws may be altered or waived thereby,
but to the extent they are not so altered or waived, these By-Laws shall be
applicable.
Section 3. Representation of Shares in Other Corporations.
----------------------------------------------
Except as provided in Sec. 703, shares of other
corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the President or any Vice President
and the Secretary or an Assistant Secretary.
Section 4. Subsidiary Corporations.
-----------------------
Shares of this corporation owned by a subsidiary
shall not be entitled to vote an any matter. A subsidiary for these purposes is
defined in Sec. 189 (a) and (b).
Section 5. Indemnity.
---------
The corporation may indemnify any Director, Officer,
agent or employee as to those liabilities and on those terms and conditions as
are specified in Sec. 317. In any event, the corporation shall have the right to
purchase and maintain insurance on behalf of any such persons whether or not the
corporation would have the power to indemnify such person against the liability
insured against.
Article IX
----------
Indemnity of Officers, Directors, etc.
--------------------------------------
a. Action, Etc. Other than by Right of the Corporation.
---------------------------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an Agent
of the corporation, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in the best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of the
corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
b. Action, Etc., By or in the Right of the Corporation.
---------------------------------------------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action by
or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person is or was an Agent of the corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such action if such person acted in good faith, in a
manner such person believed to be in the best interests of the corporation and
its shareholders; except that no indemnification shall be made under this
Article IX(b) for any of the following:
(i) In respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation
in the performance of such person's duty to the corporation and its
shareholders, unless and only to the extent that the court in which such
proceeding is or was pending shall determine upon application that, in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for the expenses which such court shall determine;
(ii) Of amounts paid in settling or otherwise
disposing of a pending action without court approval; or
(iii) Of expenses incurred in defending a
pending action which is settled or otherwise disposed of without court approval.
c. Determination of Right of Indemnification. Any
-----------------------------------------
indemnification under Article IX(a) and Article IX(b) 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 that Agent
has met the applicable standard of conduct set forth above in Article IX(a) and
Article IX(b) by any of the following:
(i) A majority vote of a quorum consisting of
directors who are not parties to such proceeding;
(ii) If such a quorum of directors is not
obtainable, by independent legal counsel in a written opinion;
(iii) Approval of the shareholders by the
affirmative vote of a majority of the shares entitled to vote represented at a
duly held meeting at which a quorum is
present or by the written consent of shareholders as provided in Article III,
Section 7, with the shares owned by the person to be indemnified not being
entitled to vote thereon; or
(iv) The court in which such proceeding is or
was pending upon application made by the corporation or its Agent or attorney or
other person rendering services in connection with the defense, whether or not
such application by the Agent, attorney or other person is opposed by the
corporation.
d. Advances of Expenses. Expenses (including attorneys'
--------------------
fees), costs, and charges incurred by an Agent in defending any proceeding or
action referred to in Article IX(a) or Article IX(b) shall be advanced by the
corporation prior to the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of the Agent to repay such amount if it shall be
determined ultimately that the Agent is not entitled to be indemnified as
authorized in this Article IX.
e. Indemnification Against Expenses of Successful Party.
----------------------------------------------------
Notwithstanding the other provisions of this Article IX, to the extent that an
Agent has been successful on the merits in defense of any proceeding or action
referred to in Article IX(a) or Article IX(b), or in defense of any claim, issue
or matter therein, such Agent shall be indemnified against all expenses actually
and reasonably incurred by the Agent in connection therewith.
f. Right of Agent to Indemnification Upon Application;
--------------------------------------------------
Procedure Upon Application. Any indemnification provided for in Article IX(a),
- --------------------------
(b), or (e) shall be made no later than ninety (90) days after the corporation
is given notice of request by Agent, provided that such request is made after
final adjudication, dismissal, or settlement unless an appeal is filed, in which
case the request is made after the appeal is resolved (hereafter referred to as
"Final Disposition"). Upon such notice, if a quorum of directors who were not
parties to the action, suit, or proceeding giving rise to indemnification is
obtainable, the corporation shall within two (2) weeks call a Board of Directors
meeting to be held within four (4) weeks of such notice, to make a determination
as to whether the Agent has met the applicable standard of conduct. Otherwise,
if a quorum consisting of directors who were not parties in the relevant action,
suit, or proceeding is not obtainable, the corporation shall retain (at the
corporation's expense) independent legal counsel chosen either jointly by the
corporation and Agent or else by corporation counsel within two (2) weeks to
make such determination. If (1) at such directors meeting such a quorum is not
obtained or, if obtained, refuses to make such determination or (2) if such
legal counsel is not so retained or, if retained, does not make such
determination within four (4) weeks, then the Board of Directors shall cause a
shareholders meeting to be held within four (4) weeks to make such a
determination.
If notice of a request for payment of a claim under
these bylaws, under any statute, under any provision of any agreement with the
corporation, or under the corporation's articles of incorporation providing for
indemnification or advance of expenses has been given to the corporation by
Agent, and such claim is not paid in full by the corporation within ninety (90)
days of the later to occur of the giving of such notice or Final Disposition in
case of indemnification, and twenty (20) days of the giving of such notice in
case of advance of expenses, Agent may, but need not, at any time thereafter
bring an action against the corporation to receive the unpaid amount of the
claim or the expense advance and, if successful, Agent shall
also be paid for the expenses (including attorneys' fees) of bringing such
action. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action, suit, or
proceeding in advance of its Final Disposition) that Agent has not met the
standards of conduct which make it permissible under applicable law for the
corporation to indemnify Agent for the amount claimed, and Agent shall be
entitled to receive interim payment of expenses pursuant to Article IX(d) unless
and until such defense may be finally adjudicated by court order or judgment
from which no further right of appeal exists. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination that indemnification of Agent is
proper in the circumstances because Agent has met the applicable standard of
conduct required by applicable law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) that Agent has not met such applicable standard of conduct, shall
create a presumption that the Agent has or has not met the applicable standard
of conduct.
g. Other Rights and Remedies. The indemnification
-------------------------
provided by this Article IX shall not be deemed exclusive of, and shall not
affect, any other rights to which an Agent seeking indemnification may be
entitled under any law, other provision of these bylaws, the corporation's
articles of incorporation, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office, and shall continue as
to a person who has ceased to be an Agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
h. Insurance. The corporation may purchase and maintain
---------
insurance on behalf of any person who is or was an Agent against any liability
asserted against such person and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify such person against such liability under the
provisions of this Article IX.
i. Optional Means of Assuring Payment. Upon request by
----------------------------------
an Agent certifying that the Agent has reasonable grounds to believe the Agent
may be made a party to a proceeding for which the Agent may be entitled to be
indemnified under this Article IX, the corporation may but is not required to
create a trust fund, grant a security interest or use other means (including,
without limitation, a letter of credit) to ensure the payment of such sums as
may become necessary to effect indemnification as provided herein.
j. Savings Clause. If this Article IX or any portion
--------------
thereof shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify each Agent as to
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement with respect to any action, suit, proceeding, or investigation,
whether civil, criminal or administrative, and whether internal or external,
including a grand jury proceeding and an action or suit brought by or in the
right of the corporation, to the full extent permitted by any applicable portion
of this Article IX that shall not have been invalidated, or by any other
applicable law.
k. Definition of Agent. For the purposes of this
-------------------
Article IX, "Agent" means any person who is or was a director, officer, employee
or other agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes without limitation attorneys' fees and any expenses of
establishing a right to indemnification.
l. Indemnification under Section 204(a)(11) of the
-----------------------------------------------
California Corporations Code. Subject to the provisions of California
- ----------------------------
Corporations Code Section 204(a)(11) and any other applicable law,
notwithstanding any other provisions of these bylaws, the following shall apply
to the indemnification of Agents under these bylaws:
(i) The corporation shall indemnify a person
pursuant to this Article IX(l) if the corporation would be required to indemnify
such person pursuant to Article IX(a) or Article IX (b) if in Article IX(a) and
Article IX(b) the phrase "in a manner such person reasonably believed to be in
the best interests of the corporation" is replaced with the phrase "in a manner
such person did not believe to be contrary to the best interests of the
corporation". If pursuant to Article IX(c) and Article IX(f) the person making
the Article IX(a) and/or Article IX(b) conduct standard determination determines
that such standard has not been satisfied, such person shall also determine
whether this Article IX(l) conduct standard has been satisfied;
(ii) There shall be a presumption that the
Agent met the applicable standard of conduct required to be met in either
Article IX(a) or Article IX(b) for indemnification of the Agent, rebuttable by
clear and convincing evidence to the contrary;
(iii) The corporation shall have the burden of
proving that the Agent did not meet the applicable standard of conduct in either
Article IX(a) or Article IX(b);
(iv) In addition to the methods provided for in
Article IX(c), a determination that indemnification is proper in the
circumstances because that Agent met the applicable standard of conduct may also
be made by the arbitrator in any arbitration proceeding in which such matter is
or was pending;
(v) Unless otherwise agreed to in writing
between an Agent and the corporation in any specific case, indemnification may
be made under Article IX(b) for amounts paid and expenses incurred in settling
or otherwise disposing of a pending action without court approval.