EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
PERICOM SEMICONDUCTOR CORPORATION
a California corporation
TABLE OF CONTENTS
Page
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ARTICLE I. Offices.............................................. 1
Section 1.1 Principal Executive Office........................ 1
Section 1.2 Other Offices..................................... 1
ARTICLE II. Meetings of Shareholders............................ 1
Section 2.1 Place of Meetings................................. 1
Section 2.2 Annual Meeting.................................... 1
Section 2.3 Notice of Annual Meeting.......................... 1
Section 2.4 Special Meetings.................................. 3
Section 2.5 Notice of Special Meetings........................ 3
Section 2.6 Quorum............................................ 4
Section 2.7 Adjourned Meeting and Notice...................... 4
Section 2.8 Record Date....................................... 4
Section 2.9 Voting............................................ 5
Section 2.10 Proxies........................................... 6
Section 2.11 Validation of Defectively Called or Noticed
Meetings.......................................... 7
Section 2.12 Action Without Meeting............................ 7
Section 2.13 Inspectors of Election............................ 8
ARTICLE III. Board of Directors................................. 8
Section 3.1 Powers; Approval of Loans to Officers............. 8
Section 3.2 Number and Qualification of Directors............. 9
Section 3.3 Election and Term of Office....................... 9
Section 3.4 Vacancies......................................... 10
Section 3.5 Time and Place of Meetings........................ 10
Section 3.6 Notice of Special Meetings........................ 11
Section 3.7 Action at a Meeting: Quorum and Required Vote..... 11
Section 3.8 Action Without a Meeting.......................... 12
Section 3.9 Adjourned Meeting and Notice...................... 12
Section 3.10 Fees and Compensation............................. 12
Section 3.11 Appointment of Executive and Other Committees..... 12
ARTICLE IV. OFFICERS............................................ 13
Section 4.1 Officers.......................................... 13
Section 4.2 The Chairman of the Board......................... 14
Section 4.3 The President..................................... 14
Section 4.4 Vice-Presidents................................... 14
Section 4.5 The Secretary..................................... 14
Section 4.6 The Chief Financial Officer....................... 15
Section 4.7 The Controller.................................... 15
ARTICLE V. Execution of Corporate Instruments, Ratification,
and Voting of Stocks owned by the
Corporation.......................................... 16
Section 5.1 Execution of Corporate Instruments................ 16
Section 5.2 Ratification by Shareholders...................... 16
Section 5.3 Voting of Stocks Owned by the Corporation......... 16
ARTICLE VI. Annual and Other Reports............................. 16
Section 6.1 Reports to Shareholders........................... 17
Section 6.2 Report of Shareholder Vote........................ 17
Section 6.3 Reports to the Secretary of State................. 18
ARTICLE VII. Shares of Stock..................................... 18
ARTICLE VIII. Inspection of Corporate Records.................... 19
Section 8.1 General Records................................... 19
Section 8.2 Inspection of Bylaws.............................. 19
ARTICLE IX. Indemnification of Officers, Directors, Employees
and Agents........................................... 20
Section 9.1 Right to Indemnification.......................... 20
Section 9.2 Authority to Advance Expenses..................... 20
Section 9.3 Right of Claimant to Bring Suit................... 21
Section 9.4 Provisions Nonexclusive........................... 21
Section 9.5 Authority to Insure............................... 21
Section 9.6 Survival of Rights................................ 22
Section 9.7 Settlement of Claims.............................. 22
Section 9.8 Effect of Amendment............................... 22
Section 9.9 Subrogation....................................... 22
Section 9.10 No Duplication of Payments........................ 22
ARTICLE X. Amendments............................................ 22
Section 10.1 Power of Shareholders............................. 22
Section 10.2 Power of Directors................................ 22
ARTICLE XI. Definitions.......................................... 23
ARTICLE XII. Corporate Seal...................................... 23
EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
PERICOM SEMICONDUCTOR CORPORATION
a California corporation
ARTICLE I.
OFFICES
Section 1.1 Principal Executive Office.
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The principal executive office of the corporation shall be located at such
place as the Board of Directors may from time to time authorize. If the
principal executive office is located outside this state, and the corporation
has one or more business offices in this state, the Board of Directors shall fix
and designate a principal executive office in the State of California.
Section 1.2 Other Offices.
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Other business offices may at any time be established at any place or
places specified by the Board of Directors.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 2.1 Place of Meetings.
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All meetings of shareholders shall be held at the principal executive
office of the corporation, or at any other place, within or without the State of
California, specified by the Board of Directors.
Section 2.2 Annual Meeting.
---------------
The annual meeting of the shareholders, after the year 1990, shall be held
at the time and date in each year fixed by the Board of Directors. At the
annual meeting directors shall be elected, reports of the affairs of the
corporation shall be considered, and any other business may be transacted that
is within the power of the shareholders.
Section 2.3 Notice of Annual Meeting.
-------------------------
Written notice of each annual meeting shall be given to each shareholder
entitled to vote, either personally or by first-class mail, or, if the
corporation has outstanding shares held of record by 500 or more persons
(determined in accordance with Section 605 of the General Corporation Law) on
the record date for the meeting, by third-class mail, or by other means of
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written communication, charges prepaid, addressed to such shareholder at the
shareholder's address appearing on the books of the corporation or given by such
shareholder to the corporation for the purpose of notice. If any notice or
report addressed to the shareholder at the address of such shareholder appearing
on the books of the corporation is returned to the corporation by the United
States Postal Service marked to indicate that the United States Postal Service
is unable to deliver the notice or report to the shareholder at such address,
all future notices or reports shall be deemed to have been duly given without
further mailing if the same shall be available for the shareholder upon written
demand of the shareholder at the principal executive office of the corporation
for a period of one year from the date of the giving of the notice or report to
all other shareholders. If a shareholder gives no address, notice shall be
deemed to have been given to such shareholder if addressed to the shareholder at
the place where the principal executive office of the corporation is situated,
or if published at least once in some newspaper of general circulation in the
county in which said principal executive office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days (or, if sent by third-class mail, thirty (30) days) nor
more than sixty (60) days before each annual meeting. Any such notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication. An affidavit of
mailing of any such notice in accordance with the foregoing provisions, executed
by the Secretary, Assistant Secretary or any transfer agent of the corporation
shall be prima facie evidence of the giving of the notice.
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Such notice shall specify:
(a) the place, the date, and the hour of such meeting;
(b) those matters that the Board of Directors, at the time of the
mailing of the notice, intends to present for action by the shareholders.
Subject to the provisions of subsection (d) below, any matter properly
brought before an annual meeting may be presented at the meeting for such
action);
To be properly brought before an annual meeting, business must be
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, otherwise properly brought before the
meeting by or at the direction of the Board of Directors or otherwise properly
brought before the meeting by a shareholder. 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 the corporation. To be timely, a shareholder's
notice must be delivered to or mailed and received at the principal executive
offices of the corporation, not less than 45 days nor more than 75 days prior to
the date on which the corporation first mailed its proxy materials for the
previous year's annual meeting of shareholders (or the date on which the
corporation mails its proxy materials for the current year if during the prior
year the corporation did not hold an annual meeting or if the date of the annual
meeting was changed more than 30 days from the prior year). A shareholder's
notice to the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record address
of the shareholder proposing such business, (iii) the class and
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number of shares of the corporation which are beneficially owned by the
shareholder, and (iv) any material interest of the shareholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.3, provided, however, that nothing in
this Section 2.3 shall be deemed to preclude discussion by any shareholder of
any business properly brought before the annual meeting in accordance with said
procedure.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2.3, and if
he should so determine he shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted.
Nothing in this Section 2.3 shall affect the right of a shareholder to
request inclusion of a proposal in the corporation's proxy statement to the
extent that such right is provided by an applicable rule of the Securities and
Exchange Commission.
(c) if directors are to be elected, the names of nominees intended
at the time of the notice to be presented by the Board of Directors for
election;
(d) the general nature of a proposal, if any, to take action with
respect to approval of (i) a contract or other transaction with an
interested director, (ii) amendment of the Articles of Incorporation, (iii)
a reorganization of the corporation as defined in Section 181 of the
General Corporation Law, (iv) voluntary dissolution of the corporation, or
(v) a distribution in dissolution other than in accordance with the rights
of outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly required by
statute.
Section 2.4 Special Meetings.
-----------------
Special meetings of the shareholders for any purpose or purposes whatsoever
may be called at any time by the Chairman of the Board (if there be such an
officer appointed), by the President, by the Board of Directors, or by one or
more shareholders entitled to cast not less than ten percent (10%) of the votes
at the meeting.
Section 2.5 Notice of Special Meetings.
---------------------------
Upon request in writing that a special meeting of shareholders be called
for any proper purpose, directed to the Chairman of the Board (if there be such
an officer appointed), President, Vice President or Secretary by any person
(other than the Board of Directors) 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 (35) nor
more than sixty (60) days after the receipt of the request. Except in special
cases where other express provision is made by statute, notice of any special
meeting of shareholders shall be given in the same manner as for annual meetings
of shareholders. In addition to the matters required by Section 2.3(a) and, if
applicable,
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Section 2.3(c) of these Bylaws, notice of any special meeting shall
specify the general nature of the business to be transacted, and no other
business may be transacted at such meeting.
Section 2.6 Quorum.
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The presence in person or by proxy of persons entitled to vote a majority
of the voting shares at any meeting shall constitute a quorum for the
transaction of business. If a quorum is present, the affirmative vote of a
majority of the shares represented and voting at the meeting (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 the General Corporation Law or the Articles of
Incorporation. Any meeting of shareholders, whether or not a quorum is present,
may be adjourned from time to time by the vote of the holders of a majority of
the shares present in person or represented by proxy thereat and entitled to
vote, but in the absence of a quorum no other business may be transacted at such
meeting, except that the shareholders present or represented by proxy at a duly
called or held meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 2.7 Adjourned Meeting and Notice.
-----------------------------
When any shareholders' meeting, either annual or special, is adjourned for
more than forty-five (45) 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. Except as provided above, it shall not
be necessary to give any notice of the time and place of the adjourned meeting
or of the business to be transacted thereat, other than by announcement of the
time and place thereof at the meeting at which such adjournment is taken.
Section 2.8 Record Date.
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(a) The Board of Directors may fix a time in the future as a record
date for the determination of the shareholders entitled to notice of and to vote
at any meeting of shareholders or entitled to give consent to corporate action
in writing without a meeting, to receive any report, to receive any dividend or
other distribution, or allotment of any rights, or to exercise rights in respect
of any other lawful action. The record date so fixed shall be not more than
sixty (60) days nor less than ten (10) days prior to the date of such meeting,
nor more than sixty (60) days prior to any other action. 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 of
Directors fixes a new record date for the adjourned meeting, but the Board of
Directors shall fix a new record date if the meeting is adjourned for more than
forty-five (45) days from the date set for the original meeting. 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 any such meeting, to give consent
without a meeting, to receive any report, to receive the dividend, distribution,
or allotment of rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided in the Articles of Incorporation
or these Bylaws.
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(b) If no record date is fixed:
(1) 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 preceding the
day on which the meeting is held.
(2) 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 of Directors has been taken, shall be the day on which the
first written consent is given.
(3) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto, or the sixtieth (60th) day
prior to the date of such other action, whichever is later.
Section 2.9 Voting.
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(a) Except as provided below with respect to cumulative voting and
except as may be otherwise provided in the Articles of Incorporation, each
outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote of shareholders. Any holders of shares
entitled to vote on any matter may vote part of the shares in favor of the
proposal and refrain from voting the remaining shares or vote them against
the proposal, other than elections to office, but, if the shareholder fails
to specify the number of shares such shareholder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving vote is
with respect to all shares such shareholder is entitled to vote.
(b) Subject to the provisions of Sections 702 through 704 of the
General Corporation Law (relating to voting of shares held by a fiduciary,
receiver, pledgee, or minor, in the name of a corporation, or in joint
ownership), persons in whose names shares entitled to vote stand on the
stock records of the corporation at the close of business on the record
date shall be entitled to vote at the meeting of shareholders. Such vote
may be viva voce or by ballot; provided, however, that all elections for
directors must be by ballot upon demand made by a shareholder at any
election and before the voting begins. shares of this corporation owned by
a corporation more than twenty-five percent (25%) of the voting power of
which is owned directly by this corporation, or indirectly through one or
more majority-owned subsidiaries of this corporation, shall not be entitled
to vote on any matter.
(c) Subject to the requirements of the next sentence, every
shareholder entitled to vote at any election for directors shall have the
right to cumulate such shareholder's votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the
number of votes to which such shareholder's shares are normally entitled,
or to distribute votes on the same principle among as many candidates as
such shareholder thinks fit. No shareholder shall be entitled to cumulate
votes unless such candidate's name or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting, prior to the voting, of the shareholder's intention to cumulate
such shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes
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for candidates in nomination. The candidates receiving the highest number
of affirmative votes of shares entitled to be voted for them, up to the
number of directors to be elected by such shares, shall be elected. Votes
against a director and votes withheld shall have no legal effect.
(d) Notwithstanding any term of this Section 2.9, during any period
in which the corporation is a listed corporation, as "listed corporation" is
defined in California Corporations Code Section 301.5(d), and its Articles of
Incorporation shall provide that shareholders of the corporation are not
entitled to cumulate their votes in elections of directors, this Section 2.9
shall not be deemed to allow shareholders of the corporation to cumulate their
votes in the elections of directors, and Sections 2.9(c) hereof shall not apply
with respect to voting in the election of directors.
Section 2.10 Proxies.
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(a) Every person entitled to vote shares (including voting by
written consent) may authorize another person or other persons to act by proxy
with respect to such shares. "Proxy" means a written authorization signed or an
electronic transmission authorized by a shareholder or the shareholder's
attorney-in-fact giving another person or persons power to vote with respect to
the shares of such shareholder. "Signed" for the purpose of this Section means
the placing of the shareholder's name on the proxy (whether by manual signature,
typewriting, telegraphic transmission, electronic transmission or otherwise) by
the shareholder or the shareholder's attorney-in-fact. A proxy may be
transmitted by oral telephone transmission if it is submitted with information
from which it may be determined that the proxy was authorized by the
shareholder, or his or her attorney-in-fact. Any proxy duly executed is not
revoked and continues in full force and effect until (i) a written instrument
revoking it is filed with the Secretary of the corporation prior to the vote
pursuant thereto, (ii) a subsequent proxy executed by the person executing the
prior proxy is presented to the meeting, (iii) the person executing the proxy
attends the meeting and votes in person, or (iv) written notice of the death or
incapacity of the maker of such proxy is received by the corporation before the
vote pursuant thereto is counted; provided that no such proxy shall be valid
after the expiration of eleven (11) months from the date of its execution,
unless otherwise provided in the proxy. Notwithstanding the foregoing sentence,
a proxy that states that it is irrevocable, is irrevocable for the period
specified therein to the extent permitted by Section 705(e) and (f) of the
General Corporation Law. The dates contained on the forms of proxy presumptively
determine the order of execution, regardless of the postmark dates on the
envelopes in which they are mailed.
(b) As long as no outstanding class of securities of the
corporation is registered under Section 12 of the Securities Exchange Act of
1934, or is not exempted from such registration by Section 12(g)(2) of such Act,
any form of proxy or written consent distributed to ten (10) or more
shareholders of the corporation when outstanding shares of the corporation are
held of record by 100 or more persons shall afford an opportunity on the proxy
or form of written consent to specify a choice between approval and disapproval
of each matter or group of related matters intended to be acted upon at the
meeting for which the proxy is solicited or by such written consent, other than
elections to office, and shall provide, subject to reasonable specified
conditions, that where the person solicited specifies a choice with respect to
any such matter the shares will be voted in accordance therewith. In any
election of directors, any form of proxy in which the directors to be voted upon
are named therein as candidates and which is
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marked by a shareholder "withhold" or otherwise marked in a manner indicating
that the authority to vote for the election of directors is withheld shall not
be voted for the election of a director.
Section 2.11 Validation of Defectively Called or Noticed Meetings.
-----------------------------------------------------
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 and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Attendance of a person at
a meeting shall constitute a waiver of notice of and presence at such meeting,
except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by these Bylaws or by the
General Corporation Law to be included in the notice if such objection is
expressly made at the meeting. Neither the business to be transacted at nor the
purpose of any regular or special meeting of shareholders need be specified in
any written waiver of notice, consent to the holding of the meeting or approval
of the minutes thereof, unless otherwise provided in the Articles of
Incorporation or these Bylaws, or unless the meeting involves one or more
matters specified in Section 2.3(d) of these Bylaws.
Section 2.12 Action Without Meeting.
-----------------------
(a) Directors may be elected without a meeting by a consent in
writing, setting forth the action so taken, signed by all of the persons
who would be entitled to vote for the election of directors, provided that,
without notice except as hereinafter set forth, a director may be elected
at any time to fill a vacancy not filled by the directors (other than a
vacancy created by removal of a director) by the written consent of persons
holding a majority of the outstanding shares entitled to vote for the
election of directors.
Any other action that may be taken at a meeting of the shareholders, may be
taken without a meeting, and without prior notice except as hereinafter set
forth, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
(b) Unless the consents of all shareholders entitled to vote have
been solicited in writing:
(1) notice of any proposed shareholder approval of (i) a
contract or other transaction with an interested director, (ii) indemnification
of an agent of the corporation, (iii) a reorganization of the corporation as
defined in Section 181 of the General Corporation Law, or (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, if any, without a meeting by less than unanimous written consent, shall
be given at least ten (10) days before the consummation of the action authorized
by such approval; and
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(2) prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent to those shareholders entitled to vote who have not
consented in writing. such notices shall be given in the manner provided in
Section 2.3 of these Bylaws.
(c) Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or 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 of the corporation.
Section 2.13 Inspectors of Election.
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(a) In advance of any meeting of shareholders, the Board of
Directors may appoint inspectors of election to act at the 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 the holder of such
shareholder's proxy shall, appoint inspectors of election (or persons to replace
those who so fail or refuse) at the meeting. The number of inspectors shall be
either one or three. If inspectors are appointed at a meeting on the request of
one or more shareholders or holders of proxies, the majority of shares
represented in person or by proxy shall determine whether one inspector or three
inspectors are to be appointed.
(b) The inspectors of election shall determine 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;
receive votes, ballots or consents; hear and determine all challenges and
questions in any way arising in connection with the right to vote; count and
tabulate all votes or consents; determine when the polls shall close; determine
the result; and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
(c) The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1 Powers; Approval of Loans to Officers.
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(a) Subject to the provisions of the General Corporation Law and any
limitations in the Articles of Incorporation relating to action required to be
approved by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors. The Board of
Directors may delegate the management of the day-to-day operation of
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the business of the corporation to a management company or other person provided
that the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised under the ultimate direction of the Board of
Directors.
(b) The corporation may, upon approval of the Board of Directors
alone, make loans of money or property to, or guarantee the obligations of,
any officer (whether or not a director) of the corporation or of its parent,
or adopt an employee benefit plan authorizing such loans or guaranties
provided that:
(1) the Board of Directors determines that such a loan,
guaranty, or plan may reasonably be expected to benefit the corporation;
(2) the corporation has outstanding shares held of record by 100
or more persons (determined as provided in Section 605 of the General
Corporation Law) on the date of approval by the Board of Directors;
(3) the approval by the Board of Directors is by a vote
sufficient without counting the vote of any interested director(s); and
(4) the loan is otherwise made in compliance with Section 315 of
the General Corporation Law.
Section 3.2 Number and Qualification of Directors.
--------------------------------------
The number of directors of the corporation shall not be less than four (4)
nor more than seven (7) until changed by amendment of the Articles of
Incorporation or by a Bylaw amending this Section 3.2 duly adopted by the vote
or written consent of holders of a majority of the outstanding shares, provided
that if the minimum number of directors is five or more, any proposal to reduce
the minimum number of directors to a number less than five cannot be adopted if
the votes cast against its adoption at a meeting, or the shares not consenting
in the case of action by written consent, are equal to more than sixteen and
two-thirds percent (16-2/3%) of the outstanding shares entitled to vote. The
exact number of directors shall be fixed from time to time, within the limits
specified in the Articles of Incorporation or in this Section 3.2, by a bylaw or
amendment thereof duly adopted by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present, or by
the written consent of the holders of a majority of the outstanding shares
entitled to vote, or by the Board of Directors.
Subject to the foregoing provisions for changing the number of directors,
the number of directors of the corporation has been fixed at four (4).
Section 3.3 Election and Term of Office.
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The directors shall be elected at each annual meeting of 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, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
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Section 3.4 Vacancies.
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A vacancy in the Board of Directors shall be deemed to exist in case of the
death, resignation or removal of any director, if a director has been declared
of unsound mind by order of court or convicted of a felony, if the authorized
number of directors is increased, if the incorporator or incorporators have
failed to appoint the authorized number of directors in any resolution for
appointment of directors upon the initial organization of the corporation, or if
the shareholders fail, at any annual or special meeting of shareholders at which
any director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting.
Vacancies in the Board of Directors, except for a vacancy created by the
removal of a director, may be filled by a majority of the directors present at a
meeting at which a quorum is present, or if the number of directors then in
office is less than a quorum, (a) by the unanimous written consent of the
directors then in office, (b) by the vote of a majority of the directors then in
office at a meeting held pursuant to notice or waivers of notice in compliance
with these Bylaws, or (c) by a sole remaining director. Each director so
elected shall hold office until his or her successor is elected at an annual or
a special meeting of the shareholders. A vacancy in the Board of Directors
created by the removal of a director may be filled only by the vote of 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 all of the holders of
the outstanding shares.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. Any such election by written
consent other than to fill a vacancy created by removal shall require the
consent of holders of a majority of the outstanding shares entitled to vote.
Any such election by written consent to fill a vacancy created by removal shall
require the unanimous written consent of all shares entitled to vote for the
election of directors.
Any director may resign effective upon giving written notice to the
Chairman of the Board (if there be such an officer appointed), 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.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of office.
Section 3.5 Time and Place of Meetings.
---------------------------
The Board of Directors shall hold a regular meeting immediately after the
meeting of shareholders at which it is elected and at the place where such
meeting is held, or at such other place as shall be fixed by the Board of
Directors, for the purpose of organization, election of officers of the
corporation and the transaction of other business. Notice of such meeting is
hereby dispensed with. Other regular meetings of the Board of Directors shall be
held without notice at such times and places as are fixed by the Board of
Directors. Special meetings of the Board of Directors may be held at any time
whenever called by the Chairman of the Board (if
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there be such an officer appointed), the President, any Vice-President, the
Secretary or any two directors.
Except as hereinabove provided in this Section 3.5, all meetings of the
Board of Directors may be held at any place within or without the State of
California that has been designated by resolution of the Board of Directors as
the place for the holding of regular meetings, or by written consent of all
directors. In the absence of such designation, meetings of the Board of
Directors shall be held at the principal executive office of the corporation.
special meetings of the Board of Directors may be held either at a place so
designated or at the principal executive office of the corporation.
Section 3.6 Notice of Special Meetings.
---------------------------
Notice of the time and place of special meetings shall be delivered
personally to each director or communicated to each director by telephone,
telegraph or mail, electronic mail message, charges prepaid, addressed to the
director at the director's address as it is shown upon the records of the
corporation or, if it is not so shown on such records or is not readily
ascertainable, at the place at which the meetings of the directors are regularly
held. In case such notice is mailed, it shall be deposited in the United States
mail at least four (4) days prior to the time of the holding of the meeting. In
case such notice is delivered personally or by telephone, telegraph, facsimile
or electronic mail message, as above provided, it shall be so delivered at least
forty-eight (48) hours prior to the time of the holding of the meeting. Any
such transmission of notice, as above provided, shall be due, legal and personal
notice to such director. As used herein, notice by telephone shall be deemed to
include a voice messaging system or other system or technology designed to
record and communicate messages, or wireless, to the recipient, including the
recipient's designated voice mailbox or address on such a system.
Notice of a meeting need not be given to any director who signs a waiver of
notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meetings.
Section 3.7 Action at a Meeting: Quorum and Required Vote.
----------------------------------------------
(a) Presence of a majority of the authorized number of directors at
a meeting of the Board of Directors constitutes a quorum for the transaction of
business, except as hereinafter provided.
(b) Members of the Board of Directors may participate in a meeting
through use of conference telephone, electronic video screen communication or
other communications equipment. Participation in a meeting through use of
conference telephone pursuant to this subsection (b) constitutes presence in
person at such meeting as long as all members participating in the meeting are
able to hear one another. Participation in a meeting through use of electronic
video screen communication or other communications equipment (other than
conference telephone) pursuant to this subsection (b) constitutes presence in
person at such
11
meeting, if (1) each member participating in the meeting can communicate with
all of the other members concurrently, (2) each member is provided the means of
participating in all matters before the board, including, without limitation,
the capacity to propose, or to interpose an objection to, a specific action to
be taken by the corporation, and (3) the corporation adopts and implements some
means of verifying that (a) a person participating in the meeting is a director
or other person entitled to participate in the meeting, and (b) all actions of,
or votes by, the board are taken or cast only by the directors and not by
persons who are not directors.
(c) Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present is the act
of the Board of Directors, unless a greater number, or the same number after
disqualifying one or more directors from voting, is required by law, by the
Articles of Incorporation, or by these Bylaws. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
Section 3.8 Action Without a Meeting.
-------------------------
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting, if all members of the Board of Directors shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board of Directors. Such action by written consent shall have the same force
and effect as a unanimous vote of such directors.
Section 3.9 Adjourned Meeting and Notice.
-----------------------------
A majority of the directors present, whether or not a quorum is present,
may adjourn any meeting to another time and place. If the meeting is adjourned
for more than twenty-four (24) hours, notice of 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.
Section 3.10 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 resolution of the Board of Directors.
Section 3.11 Appointment of Executive and Other Committees.
----------------------------------------------
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board of
Directors. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Any such committee, to the extent provided in the resolution of the Board of
Directors or in these Bylaws, shall have all the authority of the Board of
Directors, except with respect to:
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(a) The approval of any action for which the General Corporation
Law also requires shareholders' approval or approval of the outstanding shares.
(b) The filling of vacancies on the Board of Directors or in any
committee.
(c) The fixing of compensation of the directors for serving on the
Board of Directors or on any committee.
(d) The amendment or repeal of these Bylaws or the adoption of new
Bylaws.
(e) The amendment or repeal of any resolution of the Board of
Directors that by its express terms is not so amendable or repealable.
(f) A distribution to the shareholders of the corporation, except
at a rate, in a periodic amount or within a price range determined by the Board
of Directors.
(g) The appointment of other committees of the Board of Directors
or the members thereof.
The provisions of Sections 3.5 through 3.9 of these Bylaws apply also to
committees of the Board of Directors and action by such committees, mutatis
mutandis (with the necessary changes having been made in the language thereof).
ARTICLE IV.
OFFICERS
Section 4.1 Officers.
---------
The officers of the corporation shall consist of the President, the
Secretary and the Chief Financial Officer, and each of them shall be appointed
by the Board of Directors. The corporation may also have a Chairman of the
Board, one or more Vice-Presidents, a Controller, one or more Assistant
Secretaries and Assistant Treasurers, and such other officers as may be
appointed by the Board of Directors, or with authorization from the Board of
Directors by the President. The order of the seniority of the Vice Presidents
shall be in the order of their nomination, unless otherwise determined by the
Board of Directors. Any two or more of such offices may be held by the same
person. The Board of Directors may appoint, and may empower the President to
appoint, such other officers as the business of the corporation may require,
each of whom shall have such authority and perform such duties as are provided
in these Bylaws or as the Board of Directors may from time to time determine.
All officers of the corporation shall hold office from the date appointed
to the date of the next succeeding regular meeting of the Board of Directors
following the meeting of shareholders at which the Board of Directors is
elected, and until their successors are elected; provided that all officers, as
well as any other employee or agent of the corporation, may be removed at any
time at the pleasure of the Board of Directors, or, except in the case of an
officer chosen by the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors, and upon the removal,
resignation, death or incapacity of any officer, the Board of Directors or the
President, in cases where he or she has been vested by the Board of Directors
13
with power to appoint, may declare such office vacant and fill such vacancy.
Nothing in these Bylaws shall be construed as creating any kind of contractual
right to employment with the corporation.
Any officer may resign at any time by giving written notice to the Board of
Directors, the President, or the Secretary of the corporation, without
prejudice, however, to the rights, if any, of the corporation under any contract
to which such officer is a party. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
The salary and other compensation of the officers shall be fixed from time
to time by resolution of or in the manner determined by the Board of Directors.
Section 4.2 The Chairman of the Board.
--------------------------
The Chairman of the Board (if there be such an officer appointed) shall,
when present, preside at all meetings of the Board of Directors and shall
perform all the duties commonly incident to that office. The Chairman of the
Board shall have authority to execute in the name of the corporation bonds,
contracts, deeds, leases and other written instruments to be executed by the
corporation (except where by law the signature of the President is required),
and shall perform such other duties as the Board of Directors may from time to
time determine.
Section 4.3 The President.
--------------
Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board, the President shall be the chief
executive officer of the corporation and shall perform all the duties commonly
incident to that office. The President shall have authority to execute in the
name of the corporation bonds, contracts, deeds, leases and other written
instruments to be executed by the corporation. The President shall preside at
all meetings of the shareholders and, in the absence of the Chairman of the
Board or if there is none, at all meetings of the Board of Directors, and shall
perform such other duties as the Board of Directors may from time to time
determine.
Section 4.4 Vice-Presidents.
----------------
The Vice-Presidents (if there be such officers appointed), in the order of
their seniority (unless otherwise established by the Board of Directors), may
assume and perform the duties of the President in the absence or disability of
the President or whenever the offices of the Chairman of the Board and President
are vacant. The Vice-Presidents shall have such titles, perform such other
duties, and have such other powers as the Board of Directors, the President or
these Bylaws may designate from time to time.
Section 4.5 The Secretary.
--------------
The Secretary shall record or cause to be recorded, and shall keep or cause
to be kept, at the principal executive office and such other place as the Board
of Directors may order, a book of minutes of actions taken at all meetings of
directors and committees thereof and of
14
shareholders, with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at directors' meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent, a share register or
a duplicate share register in a form capable of being converted into written
form, 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 and committees thereof
required by these Bylaws or by law to be given, and shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors or
by these Bylaws.
The President may direct any Assistant Secretary to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and each
Assistant Secretary shall perform such other duties and have such other powers
as the Board of Directors or the President may designate from time to time.
Section 4.6 The Chief Financial Officer.
----------------------------
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the corporation. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board of Directors. The Chief Financial Officer 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 the Chief Financial Officer's transactions as Chief
Financial Officer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
Board of Directors or these Bylaws.
The President may direct any Vice President to assume and perform the
duties of the Chief Financial Officer set forth in this Section 4.6 in the
absence or disability of the Chief Financial Officer, and such Vice President
shall perform such other duties and have such other powers as the Board of
Directors or the President may designate from time to time.
Section 4.7 The Controller.
---------------
The Controller (if there be such an officer appointed) shall be responsible
for the establishment and maintenance of accounting and other systems required
to control and account for the assets of the corporation and provide safeguards
therefor, and to collect information required for management purposes, and shall
perform such other duties and have such other powers as the Board of Directors
or the President may designate from time to time. The President may direct any
Assistant Controller to assume and perform the duties of the Controller,
15
in the absence or disability of the Controller, and each Assistant Controller
shall perform such other duties and have such other powers as the Board of
Directors, the Chairman of the Board (if there be such an officer appointed) or
the President may designate from time to time.
ARTICLE V.
EXECUTION OF CORPORATE
INSTRUMENTS, RATIFICATION, AND VOTING
OF STOCKS OWNED BY THE CORPORATION
Section 5.1 Execution of Corporate Instruments.
-----------------------------------
In its discretion, the Board of Directors may determine the method and
designate the signatory officer or officers or other person or persons, to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such execution
or signature shall be binding upon the corporation.
All checks and drafts drawn on banks or other depositaries on funds to the
credit of the corporation, or in special accounts of the corporation, shall be
signed by such person or persons as the Board of Directors shall authorize to do
so.
The Board of Directors shall designate an officer who personally, or
through his representative, shall vote shares of other corporations standing in
the name of this corporation. The authority to vote shares shall include the
authority to execute a proxy in the name of the corporation for purposes of
voting the shares.
Section 5.2 Ratification by Shareholders.
-----------------------------
In its discretion, the Board of Directors may submit any contract or act
for approval or ratification of the shareholders at any annual meeting of
shareholders, or at any special meeting of shareholders called for that purpose;
and any contract or act that shall be approved or ratified by the holders of a
majority of the voting power of the corporation shall be as valid and binding
upon the corporation and upon the shareholders thereof as though approved or
ratified by each and every shareholder of the corporation, unless a greater vote
is required by law for such purpose.
Section 5.3 Voting of Stocks Owned by the Corporation.
------------------------------------------
All stock of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized to do so by
resolution of the Board of Directors, or in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), the
President or any Vice-President, or by any other person authorized to do so by
the Chairman of the Board, the President or any Vice President.
ARTICLE VI.
ANNUAL AND OTHER REPORTS
16
Section 6.1 Reports to Shareholders.
------------------------
The Board of Directors of the corporation shall cause an annual report to
be sent to the shareholders not later than 120 days after the close of the
fiscal year, and at least fifteen (15) days (or, if sent by third-class mail,
thirty-five (35) days) prior to the annual meeting of shareholders to be held
during the next fiscal year. This report shall contain a balance sheet as of
the end of that fiscal year and an income statement and statement of changes in
financial position for that fiscal year, accompanied by any report thereon of
independent accountants or, if there is no such report, the certificate of an
authorized officer of the corporation that the statements were prepared without
audit from the books and records of the corporation. This report shall also
contain such other matters as required by Section 1501(b) of the General
Corporation Law, unless the corporation is subject to the reporting requirements
of Section 13 of the Securities Exchange Act of 1934, and is not exempted
therefrom under Section 12(g)(2) thereof. As long as the corporation has less
than 100 holders of record of its shares (determined as provided in Section 605
of the General corporation Law), the foregoing requirement of an annual report
is hereby waived.
If no annual report for the last fiscal year has been sent to shareholders,
the corporation shall, upon the written request of any shareholder made more
than 120 days after the close of such fiscal year, deliver or mail to the person
making the request within thirty (30) days thereafter the financial statements
for such year as required by Section 1501(a) of the General Corporation Law. A
shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of the corporation may make a written request to
the corporation for an income statement of the corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than thirty
(30) days prior to the date of the request and a balance sheet of the
corporation as of the end of such period and, in addition, if no annual report
for the last fiscal year has been sent to shareholders, the annual report for
the last fiscal year, unless such report has been waived under these Bylaws.
The statements shall be delivered or mailed to the person making the request
within thirty (30) days thereafter. A copy of any such statements shall be kept
on file in the principal executive office of the corporation for twelve (12)
months, and they shall be exhibited at all reasonable times to any shareholder
demanding an examination of the statements, or a copy shall be mailed to the
shareholder.
The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 6.2 Report of Shareholder Vote.
---------------------------
For a period of sixty (60) days following the conclusion of an annual,
regular, or special meeting of shareholders, the corporation shall, upon written
request from a shareholder, forthwith inform the shareholder of the result of
any particular vote of shareholders taken at the meeting, including the number
of shares voting for, the number of shares voting against, and the number of
shares abstaining or withheld from voting. If the matter voted on was the
election of directors, the corporation shall report the number of shares (or
votes if voted cumulatively) cast
17
for each nominee for director. If more than one class or series of shares voted,
the report shall state the appropriate numbers by class and series of shares.
Section 6.3 Reports to the Secretary of State.
----------------------------------
(a) Every year, during the calendar month in which the original
articles of incorporation were filed with the California Secretary of State, or
during the preceding five calendar months, the corporation shall file a
statement with the Secretary of State on the prescribed form, setting forth the
authorized number of directors; the names and complete business and residence
addresses of all incumbent directors; the names and complete business or
resident addresses of the chief executive officer, the secretary, and the chief
financial officer; the street address of the corporation's principal executive
office or principal business office in this state; a statement of the general
type of business constituting the principal business activity of the
corporation; and a designation of the agent of the corporation for the purpose
of service of process, all in compliance with Section 1502 of the Corporations
Code of California.
(b) Notwithstanding the provisions of paragraph (a) of this section,
if there has been no change in the information contained in the corporation's
last annual statement on file in the Secretary of State's office, the
corporation may, in lieu of filing the annual statement described in paragraph
(a) of this section, advise the Secretary of State, on the appropriate form,
that no changes in the required information have occurred during the applicable
period.
ARTICLE VII.
SHARES OF STOCK
Every holder of shares in the corporation shall be entitled to have a
certificate signed in the name of the corporation by the Chairman or Vice
Chairman of the Board (if there be such officers appointed) or the President or
a Vice-President and by the chief financial officer or any Assistant Treasurer
or the Secretary or any Assistant Secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if such person were an officer, transfer agent or registrar at the
date of issue.
Any such certificate shall also contain such legends or other statements as
may be required by Sections 417 and 418 of the General Corporation Law, the
Corporate Securities Law of 1968, federal or other state securities laws, and
any agreement between the corporation and the issuee of the certificate.
Certificates for shares may be issued prior to full payment, under such
restrictions and for such purposes as the Board of Directors or these Bylaws may
provide; provided, however, that the certificate issued to represent any such
partly paid shares shall state on the face thereof the total amount of the
consideration to be paid therefor, the amount remaining unpaid and the terms of
payment.
18
No new certificate for shares shall be issued in lieu of an old certificate
unless the latter is surrendered and cancelled at the same time; provided,
however, that a new certificate will be issued without the surrender and
cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) the request for the issuance of
the new certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft; (3) the request for
the issuance of a new certificate is made prior to the receipt of notice by the
corporation that the old certificate has been acquired by a bona fide purchaser;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the corporation; and (5) the owner satisfies
any other reasonable requirement imposed by the corporation. In the event of
the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates shall be
governed by the provisions of Sections 8104 and 8405 of the California
Commercial Code.
ARTICLE VIII.
INSPECTION OF CORPORATE RECORDS
Section 8.1 General Records.
----------------
The accounting books and records and the minutes of proceedings of the
shareholders, the Board of Directors and committees thereof of the corporation
and any subsidiary of the corporation shall be open to inspection upon the
written demand on the corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts. Minutes
of proceedings of the shareholders, Board, and committees thereof shall be kept
in written form. Other books and records shall be kept either in written form
or in any other form capable of being converted into written form.
A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent (1%) of such voting shares and have filed a Schedule 14A with
the United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
right to inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five (5) business days' prior
written demand upon the corporation or to obtain from the transfer agent for the
corporation, upon written demand and upon the tender of its usual charges for
such list, a list of the shareholders' names and addresses, who are entitled to
vote for the election of directors, and their shareholdings, as of the most
recent record date for which it has been compiled or as of a date specified by
the shareholder subsequent to the date of demand. The list shall be made
available on or before the later of five (5) business days after the demand is
received or the date specified therein as the date as of which the list is to be
compiled.
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 its subsidiaries. Such
inspection by a director may be made in person or by agent or attorney, and the
right of inspection includes the right to copy and make extracts.
19
Section 8.2 Inspection of Bylaws.
---------------------
The corporation shall keep at its principal executive office in California,
or if its principal executive office is not in California, then at its principal
business office in California (or shall otherwise provide upon written request
of any shareholder if it has no such office in California) the original or a
copy of these Bylaws as amended to date, which shall be open to inspection by
the shareholders at all reasonable times during office hours.
ARTICLE IX.
INDEMNIFICATION OF
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 9.1 Right to Indemnification.
-------------------------
Each person who was or is a party or is threatened to be made a party to or
is involved (as a party, witness, or otherwise), in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereafter a "Proceeding"), by reason of the fact that he, or a
person of whom he is the legal representative, is or was a director, officer,
employee, or 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
that was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation, including service with respect
to employee benefit plans, whether the basis of the Proceeding is alleged action
in an official capacity as a director, officer, employee, or agent or in any
other capacity while serving as a director, officer, employee, or agent
(hereafter an "Agent"), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by statutory and decisional law, as
the same exists or may hereafter be interpreted or amended (but, in the case of
any such amendment or interpretation, only to the extent that such amendment or
interpretation permits the corporation to provide broader indemnification rights
than were permitted prior thereto) against all expenses, liability, and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes and penalties,
amounts paid or to be paid in settlement, any interest, assessments, or other
charges imposed thereon, and any federal, state, local, or foreign taxes imposed
on any Agent as a result of the actual or deemed receipt of any payments under
this Article) incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding (hereafter
"Expenses"). The right to indemnification conferred in this Article shall be a
contract right. It is the corporation's intention that these bylaws provide
indemnification in excess of that expressly permitted by Section 317 of the
California General Corporation Law, as authorized by the corporation's Articles
of Incorporation.
Section 9.2 Authority to Advance Expenses.
------------------------------
The right to indemnification provided in Section 9.1 of these Bylaws shall
include the right to be paid, in advance of a Proceeding's final disposition,
Expenses incurred in defending that Proceeding; provided, however, that if
required by the California General Corporation Law, as amended, the payment of
Expenses in advance of the final disposition of the Proceeding shall
20
be made only upon delivery to the corporation of an undertaking by or on behalf
of the Agent to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation as authorized under this
Article or otherwise. The Agent's obligation to reimburse the corporation for
Expense advances shall be unsecured and no interest shall be charged thereon.
Section 9.3 Right of Claimant to Bring Suit.
--------------------------------
If a claim under Section 9.1 or 9.2 of these Bylaws is not paid in full by
the corporation within thirty (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 be entitled to be paid also the expense
(including attorneys, fees) of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final disposition where the
required undertaking has been tendered to the corporation) that the claimant has
not met the standards of conduct that make it permissible under the California
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed. The burden of proving such a defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the California General Corporation Law, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant has not met the applicable standard of conduct.
Section 9.4 Provisions Nonexclusive.
------------------------
The rights conferred on any person by this Article shall not be exclusive
of any other rights that such person may have or hereafter acquire under any
statute, provision of the Articles of Incorporation, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Articles, agreement, or vote of
the stockholders or disinterested directors is inconsistent with these bylaws,
the provision, agreement, or vote shall take precedence.
Section 9.5 Authority to Insure.
--------------------
The corporation may purchase and maintain insurance to protect itself and
any Agent against any Expense asserted against or incurred by such person,
whether or not the corporation would have the power to indemnify the Agent
against such Expense under applicable law or the provisions of this Article,
provided that, in cases where the corporation owns all or a portion of the
shares of the company issuing the insurance policy, the company and/or the
policy must meet one of the two sets of conditions set forth in Section 317 of
the California General Corporation Law, as amended.
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Section 9.6 Survival of Rights.
-------------------
The rights provided by this Article 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 person.
Section 9.7 Settlement of Claims.
---------------------
The corporation shall not be liable to indemnify any Agent under this
Article (a) for any amounts paid in settlement of any action or claim effected
without the corporation's written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award, if the corporation was not
given a reasonable and timely opportunity, at its expense, to participate in the
defense of such action.
Section 9.8 Effect of Amendment.
--------------------
Any amendment, repeal, or modification of this Article shall not adversely
affect any right or protection of any Agent existing at the time of such
amendment, repeal, or modification.
Section 9.9 Subrogation.
------------
In the event of payment under this Article, the corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Agent, who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the corporation effectively to bring suit to enforce such
rights.
Section 9.10 No Duplication of Payments.
---------------------------
The corporation shall not be liable under this Article to make any payment
in connection with any claim made against the Agent to the extent the Agent has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
ARTICLE X.
AMENDMENTS
Section 10.1 Power of Shareholders.
----------------------
New bylaws may be adopted or these Bylaws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares entitled to vote, or by
the written assent of shareholders entitled to vote such shares, except as
otherwise provided by law or by the Articles of Incorporation or by these
Bylaws.
Section 10.2 Power of Directors.
-------------------
Subject to the right of shareholders as provided in Section 10.1 of this
Article X to adopt, amend or repeal these Bylaws, these Bylaws (other than a
bylaw or amendment thereof providing for the approval by the Board, acting
alone, of a loan or guarantee to any officer or an
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employee benefit plan providing for the same) may be adopted, amended or
repealed by the Board of Directors; provided, however, that the Board of
Directors may adopt a bylaw or amendment thereof changing the authorized number
of directors only for the purpose of fixing the exact number of directors within
the limits specified in the Articles of Incorporation or in Section 3.2 of these
Bylaws.
ARTICLE XI.
DEFINITIONS
Unless the context otherwise requires, the general provisions, rules of
construction and definitions contained in the General Corporation Law as amended
from time to time shall govern the construction of these Bylaws. Without
limiting the generality of the foregoing, the masculine gender includes the
feminine and neuter, the singular number includes the plural and the plural
number includes the singular, and the term "person" includes a corporation as
well as a natural person.
ARTICLE XII.
CORPORATE SEAL
The corporate seal shall consist of a circular die bearing the name of the
corporation, the state in which it was incorporated and the date of its
incorporation. If and when authorized by the Board of Directors, a duplicate of
the corporate seal may be kept and used by such officer or person as the Board
of Directors may designate.
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CERTIFICATE OF SECRETARY
------------------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby certify that the undersigned is the
Secretary of Pericom Semiconductor Corporation, a corporation duly organized and
existing under and by virtue of the laws of the State of California; that the
above and foregoing Amended and Restated Bylaws of said corporation were duly
and regularly adopted as such by the Board of Directors of said corporation; and
that the above and foregoing Amended and Restated Bylaws are now in full force
and effect.
Dated: July ___, 1999.
-------------------
CERTIFICATE OF SECRETARY
------------------------
The undersigned, Secretary of Pericom Semiconductor Corporation, a
California corporation, hereby certifies that the foregoing is a full, true and
correct copy of the Amended and Restated Bylaws of the corporation with all
amendments to date of this Certificate.
WITNESS the signature of the undersigned this ____ day of July, 1999.
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Secretary