BY-LAWS
OF
IMMECOR CORPORATION
ARTICLE I
Offices
Section 1. Principal Office.
The principal executive office in the State of California for the
transaction of the business of the corporation (called the principal office) is
fixed and located at:
100 Professional Center Drive
Rohnert Park, CA 94928
The Board of Directors shall have the authority from time to time to
change the principal office from one location to another within the State as it
deems appropriate.
Section 2. Other Offices.
One or more branches or other subordinate offices may at any time be
fixed and located by the Board of Directors at such place or places within or
without the State of California as it deems appropriate.
ARTICLE II
Meetings of Shareholders
Section 3. Place of Meetings.
Meetings of the shareholders shall be held at any place within or
outside the State of California that may be designated either by the Board of
Directors in accordance with these By-Laws, or by the written consent of all
persons entitled to vote at the meeting, given either before, during or after
the meeting and filed with the Secretary of the corporation. If no such
designation is made, the meetings shall be held at the principal office of the
corporation designated in Section 1 of these By-Laws.
Section 4. Annual Meetings.
The annual meeting of the shareholders shall be held on the second
Thursday in March each year, if not a legal holiday, and if a legal holiday,
then on the next succeeding business day, at the hour of 10:00 A.M., at which
time the shareholders shall elect a Board of Directors, consider reports of the
affairs of the corporation, and transact such other business as may properly be
brought before the meeting.
If the annual meeting of shareholders shall not be held on the date
above specified, the Board of Directors shall cause such a meeting to be held as
soon thereafter as convenient, and any business transacted or election held at
such meeting shall be as valid as if transacted or held at an annual meeting on
the date above specified.
Section 5. Special Meetings.
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by the Board of Directors, Chairman of the
Board, the President, or by holders of shares entitled to cast not less than 10
percent of the votes at the meeting.
Section 6. Notice of Shareholders' Meetings.
Whenever shareholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given not less than 10 (or, if
sent by third class mail, 30) or more than 60 days before the date of the
meeting to each shareholder entitled to vote at the meeting. Such notice shall
state the place, date and hour of the meeting and (1) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (2) in the case of the annual meeting, those
matters which the Board, at the time of the mailing of the notice, intends to
present for action by the shareholders, but subject to the provisions of Section
601(f) of the Corporations Code, any proper matter may be presented at the
meeting for such action. The notice of any meeting at which directors are to be
elected shall include the names of nominees intended at the time of the notice
to be presented by management for election.
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Notice of shareholders' meeting shall be given either personally or by
first class mail or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or if no such address appears or is given, at the place where the
principal office of the corporation is located. The 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.
If any notice 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 to the shareholder
at such address, all future notices 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 office of the corporation for
a period of one year from the date of the giving of the notice to all other
shareholders.
Upon request in writing to the Chairman of the Board, President, Vice
President or Secretary by any person entitled to call a special meeting of
shareholders, the officer forthwith shall cause notice to be given to
shareholders entitled to vote that a meeting will be held at a time requested by
the person or persons calling the meeting, not less than 35 nor more than 60
days after the receipt of the request.
Section 7. Quorum.
The presence at any meeting, in person or by proxy, of the persons
entitled to vote a majority of the voting shares of the corporation shall
constitute a quorum for the transaction of business. Shareholders present at a
valid meeting at which a quorum is initially present may continue to do business
until adjournment notwithstanding the withdrawal of enough shareholders to leave
less than a quorum, if any action taken (other than adjournment) is approved by
persons voting more than 25 percent of the voting shares.
Section 8. Adjourned Meeting.
Any annual or special shareholders' meeting may be adjourned from time
to time, even though a quorum is not present, by vote of the holders of a
majority of the voting shares present at the meeting either in person or by
proxy, provided that in the absence of a quorum, no other business may be
transacted at the meeting except as provided in Section 7.
Notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than 45 days
or if after the adjournment, a notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting.
Section 9. Waiver of Consent by Shareholders.
The transactions of any meeting of shareholders, however called and
noticed, and wherever held, are as valid as though had a meeting been duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before, during, 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 a 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 such a meeting is not a waiver of any
right to object to the consideration of matters required by Section 6 of these
By-Laws or Section 601(f) of the Corporations Code to be included in the notice
but not so included, 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, except
as provided in Section 601(f) of the Corporations Code.
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Section 10. Action Without Meeting.
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 a 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, except that
unanimous written consent shall be required for election of directors to
non-vacant positions.
Unless the consents of all shareholders entitled to vote have been
solicited or received in writing, notice shall be given to non-consenting
shareholders to the extent required by the Corporations Code.
Any shareholder giving a written consent, or the shareholder's proxy
holder, or a transferee of the shares or a personal representative or proxy
holder of the shareholder, 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 11. Voting Rights; Cumulative Voting.
Only 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 fixed by
the Board of Directors as provided in Section 40 for the determination of
shareholders of record shall be entitled to notice of and to vote at such
meeting of shareholders. 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 by the Board has been taken, shall be the day on which the
first written consent is given; and 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.
Except as provided in the next following sentence and except as may be
otherwise provided in the Articles of Incorporation, each shareholder entitled
to vote shall be entitled to one vote for each share held on each matter
submitted to a vote of shareholders. In the election of directors, each such
shareholder complying with the following paragraph may cumulate such
shareholder's votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which the
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among as many candidates as the shareholder thinks
fit.
No shareholder shall be entitled to cumulate votes in favor of any
candidate or candidates unless the name(s) of such candidate(s) has(have) been
placed in nomination prior to the voting and the shareholder has given notice at
the meeting prior to the voting, of the shareholder's intention to cumulate the
shareholder's votes. If any one shareholder has given such notice, such fact
shall be announced to all shareholders and proxies present, who may then
cumulate their votes for candidates in nomination.
In any election of directors, the candidates receiving the highest
number of votes of the shares entitled to be voted for them, up to the number of
directors to be elected by such shares, shall be deemed elected.
Voting may be by voice or ballot, provided that, upon the demand of any
shareholder made at the meeting and before the voting begins, any election of
directors must be by ballot.
Section 12. Proxies.
Every person entitled to vote shares may authorize another person or
persons to act by proxy with respect to such shares. All proxies must be in
writing and must be signed by the shareholder confirming the proxy or his
attorney-in-fact. No proxy shall be valid after the expiration of 11 months from
the date thereof, unless otherwise provided in the proxy. Every proxy continues
in full force and effect until revoked by the person executing it prior to the
vote pursuant thereto, except as otherwise provided in Section 705 of the
Corporations Code. Such revocation may be effected by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy
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executed by the person executing the prior proxy and presented to the meeting,
or, as to any meeting, by attendance at such meeting and voting in person by the
person executing the proxy. 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.
Section 13. Inspectors of Election.
In advance of any meeting of shareholders the Board may appoint
inspectors of election to act at the meeting and any adjournment 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 meeting of shareholders may, and
on the request of any shareholder or a 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 appointed
at a meeting on the request of one or more shareholders or proxies, the majority
of shares represented in person or by proxy shall determine whether one or three
inspectors are to be appointed. 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.
The inspectors of elections 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 thereof, and take such actions as may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE III
Directors; Management
Section 14. Powers.
Subject to any provisions of the Articles of Incorporation, By-Laws,
and of law limiting the powers of the Board of Directors or reserving powers to
the shareholders, the Board of Directors shall, directly or by delegation,
manage the business and affairs of the corporation and exercise all corporate
powers permitted by law.
Section 15. Number and Qualification of Directors.
The authorized number of directors shall be not less than Five (5) nor
more than thirteen (13) unless and until changed by an amendment to this Section
15 adopted by the shareholders pursuant to Section 49. The exact number of
directors within said range shall be fixed by an amendment to this Section 15
adopted by the Board of Directors; and unless and until so amended, the exact
number of directors is hereby fixed at five (5). A reduction in the authorized
number of directors shall not remove any director prior to the expiration of
such director's term of office. Directors need not be shareholders of the
corporation.
Section 16. Election and Term of Office.
The directors shall be elected annually by the shareholders at the
annual meeting of the shareholders; provided, that if for any reason, said
annual meeting or an adjournment thereof is not held or the directors are not
elected at such meeting, then the directors may be elected at any special
meeting of the shareholders called and held for that purpose. The term of office
of the directors shall, except as provided in Section 17, begin immediately
after their election and shall continue until their respective successors are
elected and qualified; except as otherwise provided herein, such term shall be
for a period of no less than one year.
Section 17. Removal of Directors.
Unless otherwise specifically provided herein, a director may be
removed from office:
(a) by the Board of Directors if he is declared of unsound mind by
the order of court or convicted of a felony;
(b) without cause by a vote of shareholders holding a majority of the
outstanding shares entitled to vote at an election of directors; howver, unless
the entire Board is removed, an individual director shall not be removed if the
votes cast against removal, or not consenting in writing to such removal,
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would be sufficient to elect such director if voted
cumulatively with all authorized shares voting, or, if such action is taken by
written consent, all shares entitled to vote were voted, and the entire num- ber
of directors authorized at the time of the director's most recent election were
then being elected; or
(c) by the Superior Court of the county in which the principal office
is located, at the suit of shareholders holding at least ten percent (10%) of
the number of outstanding shares of any class, in case of any fraudulent or
dishonest act or gross abuse of authority or discretion with reference to the
corpo- ration.
(d) By the Chairperson of the Board if the director remains
absent from three (3) consecutive board meetings.
No reduction of the authorized number of directors shall have the
effect of removing any director before his term of office expires.
Section 18. Vacancies.
A vacancy or vacancies on the Board of Directors shall exist on the
death, resignation, or removal of any director, or if the authorized number of
directors is increased or the shareholders fail to elect the full authorized
number of directors.
Except for a vacancy created by the removal of a director, vacancies on
the Board of Directors may be filled by a majority of the remaining directors,
although less than a quorum, or by a sole remaining director, and each director
elected in this manner shall hold office until a successor is elected at an
annual or special shareholders' meeting.
The shareholders may elect a director at any time to fill any vacancy
not filled by the directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote, except for a
vote to fill a vacancy created by removal, which requires the unanimous consent
of the outstanding shares entitled to vote.
Any director may resign, effective as of the date of notice to the
Chairman of the Board, the President, the Secretary, or the Board of Directors
of the corporation.
If such notice is not in writing, it shall be effective on the date
given only if confirmed by a writing received within a reasonable time of such
non-written notice.
Section 19. Place of Meetings.
Regular and special meetings of the Board of Directors shall be held
at any place within or outside the State of California that is designated by
resolution of the Board or, either before or after the meeting, consented to in
writing by a majority of the Board members. If the place of a regular or special
meeting is not fixed by resolution or written consents of the Board, it shall be
held at the corporation's principal office.
Section 20. Annual Meetings.
Immediately following each annual shareholders' meeting, the Board of
Directors shall hold an annual meeting to organize, elect officers, and transact
other business. Notice of this meeting shall not be required.
Section 21. Other Regular Meetings.
Other regular meetings of the Board of Directors shall be held on the
second Tuesday in November of each year, at the hour of 10:00 A.M., provided,
however, if this day falls on a legal holiday, the meeting shall be held at the
same time on the next succeeding day that is a full business day. Notice of
these regular meetings shall not be required.
Section 22. Special Meetings.
Special meetings of the Board of Directors for any purpose may be
called at any time by the Chairman of the Board, or the President, or any Vice
President, or the Secretary, or any two directors.
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Special meetings of the Board shall be held upon four days' notice by
mail or by 48 hours' notice delivered personally or by telephone or telegraph.
If notice is by telephone, it shall be complete when the person calling the
meeting believes in good faith that the notified person has heard and
acknowledged the notice. If the notice is by mail or telegraph, it shall be
complete when deposited in the United States mail or delivered to the telegraph
office at the place where the corporation's principal office is located, charges
prepaid, and addressed to the notified person at such person's address as it
appears on the corporate records or, if it is not on these records or is not
readily ascertainable, at the place where the regular Board meeting is held.
Section 23. Quorum.
A majority of the authorized number of directors, but in no event less
than three (3), shall constitute a quorum for the transaction of busines;
except, however, to adjourn a meeting at which a quorum is present, the vote of
a majority of the directors present shall be regarded as the act of the Board of
Directors, unless the vote of a greater number is required by law, the Articles
of Incorporation, or these By-Laws.
A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of directors, if any action
taken is approved by a majority of the required quorum for such meeting.
Section 24. Contents of Notice and Waiver of Notice.
Neither the business to be transacted at, nor the purpose of, any
regular or special Board meeting need be specified in the notice or waiver of
notice of the meeting. 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, either before or after the meeting, or who attends the
meeting without protesting the lack of notice to said director, either prior
thereto or at its commencement. All such waivers, consents, and approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section 25. Adjournment.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place.
Section 26. Notice and Adjournment.
Notice of the time and place of holding an adjourned meeting need not
be given to absent directors if the time and place are fixed at the meeting
being adjourned, except that if the meeting is adjourned for more than 24 hours,
such notice shall be given prior to the adjourned meeting, to the directors who
were not present at the time of the adjournment.
Section 27. Telephone Participation.
Members of the Board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another. Such participation
constitutes presence in person at such meeting.
Section 28. Action without Meeting.
The Board of Directors may take any action without a meeting that may
be required or permitted to be taken by the Board at a meeting, if all members
of the Board, individually or collectively, consent in writing to the action.
The written consent or consents shall be filed in the minutes of the proceedings
of the Board. Such action by written consent shall have the same effect as an
unanimous vote of directors.
Section 29. Fees and Compensation.
Directors and members of committees shall receive neither compensation
for their services nor reimbursement for their expenses, unless such payments
are fixed by resolution of the Board.
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ARTICLE IV
Officers
Section 30. Officers.
The officers of the corporation shall be a President/ Chief Executive
Officer, a Chief Operating Officer, a Secretary, and a Treasurer. The
corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, and any other officer who may be
appointed under Section 32 of these By-Laws. Any two or more offices, except
those of President/CEO and Secretary, may be held by the same person.
Section 31. Election.
The officers of the corporation, except those appointed under Section
32 of these By-Laws, shall be chosen annually by the Board of Directors, and
shall serve at the pleasure of the Board of Directors, subject to any rights
conferred under a contract of employment. No such contract shall bind the
corporation unless approved in advance by the Board of Directors.
Section 32. Subordinate officers.
The Board of Directors may appoint, and may authorize the President/CEO
to appoint, any other officers that the business of the corporation may require,
each of whom shall hold office for the period, have the authority, and perform
the duties specified in the By-Laws or by the Board of Directors.
Section 33. Removal and Resignation.
Any officer may be removed with or without cause, either by the Board
of Directors at any regular or special meeting or, except for an officer chosen
by the Board, by any officer on whom the power of removal may be conferred by
the Board.
Any officer may resign at any time by giving written notice to the
Board of Directors, the President/CEO or the Secretary of the Corporation. An
officer's resignation shall take effect when it is received or at any later time
specified in the resignation. Unless the resignation specifies otherwise, its
acceptance by the corporation shall not be necessary to make it effective. This
paragraph shall not operate to diminish the rights of the corporation under any
contract of employment.
Section 34. Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification, or any other cause shall be filled in the manner prescribed in
the By-Laws for regular appointments to the office.
Section 35. Chairman of the Board.
The Board of Directors may, in its discretion, elect a Chairman of the
Board who shall preside at all meetings of the directors and shareholders at
which he is present and shall exercise and perform any other powers and duties
assigned to him by the Board or prescribed by the By-Laws.
Section 36. President/Chief Executive Officer.
Subject to any supervisory powers that may be given by the Board of
Directors or the By-Laws to the Chairman of the Board, the President/Chief
Executive Officer shall be the corporation's chief executive officer and shall,
subject to the control of the Board of Directors, have general supervision,
direction, and control over the corporation's business and officers. He shall
preside as chairman at all meetings of the shareholders and directors not
presided over by the Chairman of the Board. He shall be ex officio member of all
standing committees, shall have the general powers and duties of management
usually vested in a corporation's president; shall have any other powers and
duties that are prescribed by the Board of Directors or the By-Laws; and shall
be primarily responsible for carrying out all orders and resolutions of the
Board of Directors.
Section 36. President/Chief Executive Officer.
Subject to any supervisory powers that may be given by the Board of
Directors or the By-Laws to the Chair-
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man of the Board, the President/Chief Executive Officer shall be the
corporation's chief executive officer and shall, subject to the control of the
Board of Directors, have general supervision, direction, and control over the
corporation's business and officers. He shall preside as chairman at all
meetings of the shareholders and directors not presided over by the Chairman of
the Board. He shall be ex officio member of all standing committees, shall have
the general powers and duties of management usually vested in a corporation's
president; shall have any other powers and duties that are prescribed by the
Board of Directors or the By-Laws; and shall be primarily responsible for
carrying out all orders and resolutions of the Board of Directors.
Section 37. Chief Operating Officer.
The Chief Operating Officer shall, subject to the control of the
President/Chief Executive officer, have responsibility for the specific
supervision, direction, and over the day to day activities of the corporation's
officers and employees. He shall have any other powers and duties that are
prescribed by the Board of Directors, the By-Laws, or the President/Chief
Executive Officer.
Section 38. Vice Presidents.
If the President/CEO is absent or is unable or refuses to act, 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 on, the President/CEO. Each Vice
President shall have any other powers and perform any other duties that are
prescribed for him by the Board of Directors or the By-Laws.
Section 39. Secretary.
The Secretary shall keep or cause to be kept, and be available at the
principal office and any other place that the Board of Directors specifies, a
book of minutes of all directors' and shareholders' meetings. The minutes of
each meeting shall state the time and place that it was held; whether it was
authorized; the notice given; the names of those present or represented at
shareholders' meetings; and the proceedings of the meetings. A similar minute
book shall be kept for any committees, if required by the Board.
The Secretary shall keep, or cause to be kept, at the principal office
or at the office of the corporation's transfer agent, a share register, or
duplicate share register, showing the shareholders' names and addresses, the
number and classes of sharesheld by each, the number and date of each
certificate issued for these shares, and the number and date of cancellation of
each certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
directors' and shareholders' meetings required to be given under these By-Laws
or by law, shall keep the corporate seal in safe custody, and shall have any
other powers and perform any other duties that are prescribed by the Board of
Directors or the By-Laws.
Section 40. Treasurer.
The Treasurer shall be the corporation's chief financial officer and
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the corporation's properties and business transactions,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings, and shares. The books of the account shall
at all reasonable times be open to inspection by any director.
The Treasurer shall deposit all money and other valuables in the name
and to the credit of the corporation with the depositories designated by the
Board of Directors. He shall disburse the corporation's funds as ordered by the
Board of Directors; shall render to the President and directors, whenever they
request it, an account of all his transactions as Treasurer and of the
corporation's financial condition; and shall have any other powers and perform
any other duties that are prescribed by the Board of Directors or By-Laws.
If required by the Board of Directors, the Treasurer shall give the
corporation a bond in the amount and with the surety or sureties specified by
the Board for faithful performance of the duties of his office and for
restoration to the corporation of all its books, papers, vouchers, money, and
other property of every kind in his possession or under his control on his
death, resignation, retirement, or removal from office.
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ARTICLE V
General Corporate Matters
Section 41. Record Date and Closing of Stockbooks.
The Board of Directors may fix a time in the future as a record date
for determining shareholders entitled to notice of and to vote at any
shareholders' meeting; to receive any dividend, distribution, or allotment of
rights; or to exercise rights in respect of any other lawful action, including
change, conversion, or exchange of shares. The record date shall not, however,
be more than sixty (60) nor less than ten (10) days prior to the date of such
meeting nor more than sixty (60) days prior to any other action. If a record
date is fixed for a particular meeting or event, only shareholders of record on
that date are entitled to notice and to vote and to receive the dividend,
distribution, or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any share on the books of the corporation
after the record date.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than 45
days.
Section 42. Corporate Books and Inspection by Shareholders and Directors.
Books and records of account and minutes of the proceedings of the
shareholders, Board, and committees of the Board, shall be kept available for
inspection at the principal office. A record of the shareholders and the number
and class of shares held by each, shall be kept available for inspection at the
principal office or at the office of the corporation's transfer agent or
registrar.
A shareholder or shareholders holding at least five percent (5%) in
the aggregate of the outstanding voting shares of the corporation shall have an
absolute right to do either or both of the following: (1) inspect and copy the
record of shareholders' names and addresses and shareholdings during usual
business hours upon five business days' prior written demand upon the
corporation, or (2) obtain from the transfer agent for the corporation, upon
five business days' prior written demand and upon the tender of its usual
charges for such a list (the amount of which charges shall be stated to the
shareholder by the transfer agent upon request), a list of the shareholders,
names and addresses, who are entitled to vote for the election of directors, and
their shareholdings, as of the most recent record date for which it has been
compiled or as of a date specified by the shareholder subsequent to the date of
demand. The record of shareholders shall also be open to inspection and copying
by any shareholder or holder of a voting trust certificate at any time during
usual business hours upon written demand on the corporation, for a purpose
reasonably related to such holder's interest as a shareholder or holder of a
voting trust certificate. Inspection and copying may be made in person or by
agent or attorney.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kinds and to inspect
the physical properties of the corporation and its subsidiary corporations,
domestic or foreign. Such inspection by a director may be in person or by agent
or attorney and includes the right to copy and make extracts.
Section 43. Checks, Drafts, Evidences of Indebtedness.
All checks, drafts, or other orders for payment of money, notes, and
all mortgages, or other evidences of indebtedness, issued in the name of or
payable to the corporation, and all assignments and endorsements of the
foregoing, shall be signed or endorsed by the person or persons and in the
manner specified by the Board of Directors.
Section 44. Corporate Contracts and Instruments; How Executed.
Except as otherwise provided in the By-Laws, officers, agents, or
employees must be authorized by the Board of Directors to enter into any
contract or execute any instrument in the corporation's name and on its behalf.
This authority may be general or confined to specific instances.
Section 45. Stock Certificates.
One or more certificates for shares of the corporation's capital stock
shall be issued to each shareholder for
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any of his shares that are fully paid up. The corporate seal or its facsimile
may be fixed on certificates. All certificates shall be signed by the Chairman
of the Board, President/CEO, or a Vice President and the Secretary, Treasurer,
or an Assistant Secretary. Any or all of the signatures on the certificate may
be facsimile signatures.
Section 46. Lost Certificates.
No new share certificate that replaces an old one shall be issued
unless the old one is surrendered and cancelled at the same time; provided,
however, that if any share certificate is lost, stolen, mutilated, or destroyed,
the Board of Directors may authorize issuance of a new certificate replacing the
old one on any terms and conditions, including a reasonable arrangement for
indemnification of the corporation, that the Board may specify.
Section 47. Reports to Shareholders.
The requirement for the annual report to shareholders referred to in
Section 1501(a) of the California Corporations Code is hereby expressly waived
so long as there are less than 100 holders of record of the corporation's
shares. The Board of Directors shall cause to be sent to the shareholders such
annual or other periodic reports as they consider appropriate or as otherwise
required by law. In the event the corporation has 100 or more holders of its
shares, an annual report complying with Section 1501(a) and, when applicable,
Section 1501(b) of the Corporations Code shall be sent to the shareholders not
later than 120 days after the close of the fiscal year and at least fifteen (15)
days prior to the annual meeting of shareholders to be held during the next
fiscal year.
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 30 days thereafter the financial statements
referred to in Section 1501(a) for such year.
A shareholder or shareholders holding at least five percent (5%) of
the outstanding shares of any class of a corporation may make a written request
to the corporation for an income statement of the corporation for the
three-month sixmonth, or nine-month period of the current fiscal year ended more
than 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 statements referred
to in Section 1501(a) of the Corporations Code for the last fiscal year. The
statement shall be delivered or mailed to the shareholder making the request
within 30 days thereafter. A copy of the statements shall be kept on file in the
principal office of the corporation for twelve (12) months and they shall be
exhibited at all reasonable times to any shareholder demanding an examination of
them or a copy shall be mailed to such shareholder. The income statements and
balance sheets referred to shall be accompanied by the report thereon, if any,
of any independent accountants engaged by the corporation or the certificate of
an authorized officer of the corporation that such financial statements were
prepared without audit from the books and records of the corporation.
Section 48. Indemnity of Officers and Directors.
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
interest 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 interest of the corporation or that
the person had reasonable cause to believe that the person's conduct was
unlawful.
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
with such care including reasonable
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inquiry, as an ordinarily prudent person in a like position would use under
similar circumstances; except that no indemnification shall be made:
(1) In respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation during the performance
of such person's duty to the corporation, 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 reason- ably entitled to indemnity for the expenses such court shall
determine;
(2) Of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval; or
(3) Of expenses incurred in defending a threatened or pending action
which is settled or otherwise disposed of without court approval.
Any indemnification under this Section 47 shall be made by the
corporation only if authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct by:
(1) A majority vote of a quorum consisting of directors who are
not parties to such proceeding; or
(2) 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
Section 10, with the shares owned by the person to be indemnified not being
entitled to vote thereon.
Upon written request of an agent seeking indemnification under this
Section, the Board by majority vote shall promptly make a determination in good
faith as to whether the applicable standard of conduct has been met. If a
positive determination is made, indemnification shall be authorized forthwith if
the directors approving the determination include a majority of a quorum of
directors not parties to the proceeding, otherwise the question of authorization
by the shareholders shall be put to a shareholder vote no later than the date of
the next annual meeting and said question shall be included in any management
proxy solicitation for or prior to said meeting. Expenses incurred in defending
any proceeding 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 unless it shall be determined ultimately that the
agent is entitled to be indemnified as authorized in this Section.
For the purposes of this Section, "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 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.
ARTICLE VI
Amendments
Section 49. Amendment by Shareholders.
By-Laws may be adopted, amended or repealed by the affirmative vote or
written consent of a majority of the outstanding shares entitled to vote;
provided, however, that an amendment to Section 15 reducing the number of
directors on a fixed-number board or the minimum number of directors on a
variable-number board 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 16-2/3 percent of the
outstanding shares entitled to vote.
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Section 50. Amendment by Directors.
Subject to the right of shareholders under the preceding Section 49,
By-Laws, may be adopted, amended, or repealed by the Board of Directors, except
that only the shareholders can adopt a by-law or amendment thereto which
specifies or changes the number of directors on a fixed-number Board, or the
minimum or maximum number of directors on a variable-number Board, or which
changes from a fixed-number Board to a variable-number Board or vice versa.
ARTICLE VII
Committees of the Board
Section 51. Committees of the Board.
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 and
with such authority and organization as the Board may from time to time
determine. The Board may designate one or more directors as alternate members of
any committee, who may replace any absent member at any meeting of the
committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any such
committee requires the vote of a majority of the authorized number of directors,
and any such committee, to the extent provided in the resolution of the Board,
shall have all the authority of the Board, except with respect to:
(1) The approval of any action for which shareholder approval is
also required.
(2) The filling of vacancies on the Board or in any committee.
(3) The fixing of compensation of the directors for serving on the
Board or on any committee.
(4) The amendment or repeal of By-Laws or the adoption of By-Laws.
(5) The amendment or repeal of any resolution of the Board which
by its express terms is not so amendable or repealable.
(6) A distribution to the shareholders of the corporation as defined in
Section 166 of the Corporations Code, except at a rate or in a periodic amount
or within a price range determined by the Board.
(7) The appointment of other committees of the Board or the
members thereof.
The Board shall designate a chairman for each committee who shall have
the sole power to call any committee meeting other than a meeting set by the
Board. Except as otherwise established by the Board, Article III of these
By-Laws shall apply to committees of the Board and action by such committees.
January 14, 1996 /s/
Kenneth Y. Wong, Secretary
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