AMENDED AND RESTATED
BYLAWS
OF
CENTURA SOFTWARE CORPORATION
(formerly Gupta Corporation)
as of
February 27, 1998
TABLE OF CONTENTS
Page
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ARTICLE I CORPORATE OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 PRINCIPLE OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 OTHER OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . 1
2.1 PLACE OF MEETINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 SPECIAL MEETING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 NOTICE OF SHAREHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . 2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE . . . . . . . . . . . . . . . 2
2.6 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.7 ADJOURNED MEETING; NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . 3
2.8 VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT. . . . . . . . . . . . . 4
2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING . . . . . . . . . 5
2.11 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING; GIVING CONSENTS . . . . . . . 6
2.12 PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 INSPECTORS OF ELECTION. . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 NUMBER OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS . . . . . . . . . . . . . . . . . 8
3.4 RESIGNATION AND VACANCIES. . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE . . . . . . . . . . . . . . . . . 9
3.6 REGULAR MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7 SPECIAL MEETINGS; NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.9 WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.10 ADJOURNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.11 NOTICE OF ADJOURNMENT . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.12 ACTION WITHOUT MEETING. . . . . . . . . . . . . . . . . . . . . . . . . .11
3.13 FEES AND COMPENSATION OF DIRECTORS. . . . . . . . . . . . . . . . . . . .11
3.14 APPROVAL OF LOANS TO OFFICERS . . . . . . . . . . . . . . . . . . . . . .11
3.15 SUPER MAJORITY VOTE OF DIRECTORS. . . . . . . . . . . . . . . . . . . . .11
ARTICLE IV COMMITTEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
4.1 COMMITTEES OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . .12
4.2 MEETINGS AND ACTION OF COMMITTEES. . . . . . . . . . . . . . . . . . . . .12
ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.1 OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.2 ELECTION OF OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.3 SUBORDINATE OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.4 REMOVAL AND RESIGNATION OF OFFICERS. . . . . . . . . . . . . . . . . . . .13
5.5 VACANCIES IN OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.6 CHAIRMAN OF THE BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.7 PRESIDENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.8 VICE PRESIDENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.9 SECRETARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.10 CHIEF FINANCIAL OFFICER . . . . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . . . . . . . . . . .15
6.2 INDEMNIFICATION OF OTHERS. . . . . . . . . . . . . . . . . . . . . . . . .16
6.3 PAYMENT OF EXPENSES IN ADVANCE . . . . . . . . . . . . . . . . . . . . . .16
6.4 INDEMNITY NOT EXCLUSIVE. . . . . . . . . . . . . . . . . . . . . . . . . .16
6.5 INSURANCE INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . .17
6.6 CONFLICTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE VII RECORDS AND REPORTS. . . . . . . . . . . . . . . . . . . . . . . .17
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER . . . . . . . . . . . . . . .17
7.2 MAINTENANCE AND INSPECTION OR BYLAWS . . . . . . . . . . . . . . . . . . .18
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. . . . . . . . . . .18
7.4 INSPECTION BY DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . .19
7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER. . . . . . . . . . . . . . . . . . .19
7.6 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE VIII GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . .20
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. . . . . . . . . . .20
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS. . . . . . . . . . . . . . . . .20
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED. . . . . . . . . . . . .20
8.4 CERTIFICATES FOR SHARES. . . . . . . . . . . . . . . . . . . . . . . . . .21
8.5 LOST CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
8.6 CONSTRUCTION; DEFINITION . . . . . . . . . . . . . . . . . . . . . . . . .21
ARTICLE iX AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
9.1 AMENDMENT BY SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . .22
9.2 AMENDMENT BY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . .22
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CENTURA SOFTWARE CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 PRINCIPAL OFFICE
The board of directors shall fix the location of the principal
executive office of the corporation at any place within or outside the State
of California. If the principal executive office is located outside such
state and the corporation has one or more business offices in such state,
then the board of directors shall fix and designate a principal business
office in the State of California.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified
to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 PLACE OF MEETINGS
Meetings of shareholders shall be held at any place within or
outside the State of California designated by the board of directors. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of shareholders shall be held each year on
a date and at a time designated by the board of directors. In the absence of
such designation, the annual meeting of shareholders shall be held on the
18th of April in each year at 10:00 a.m. However, if such day falls on a
legal holiday, then the meeting shall be held at the same time and place on
the next succeeding full business day. At the meeting, directors shall be
elected, and any other proper business may be transacted.
2.3 SPECIAL MEETING
A special meeting of the shareholders may be called at any
time by the board of directors, or by the chairman of the board, or by the
president, or by one or more shareholders holding shares in the aggregate
entitled to cast not less than ten percent (10%) of the votes at that meeting.
If a special meeting is called by any person or persons other
than the board of directors or the president or the chairman of the board,
then the request shall be in writing, specifying the time of such meeting and
the general nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic or other
(facsimile transmission to the chairman of the board, the president, any vice
president or the secretary of the corporation. The officer receiving the
request shall cause notice to be promptly given to the shareholders entitled
to vote, in accordance with the provisions of Sections 2.4 and 2.5 of these
bylaws, that a meeting will be held at the time requested by the person or
persons calling the meeting, so long as that time is not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after receipt of
the request, then the person or persons requesting the meeting may give the
notice. Nothing contained in this paragraph of this Section 2.3 shall be
construed as limiting, fixing or affecting the time when a meeting of
shareholders called by action of the board of directors may be held.
2.4 NOTICE OF SHAREHOLDERS' MEETINGS
All notices of meetings of shareholders shall be sent or
otherwise given in accordance with Section 2.5 of these bylaws not less than
ten (10) (or, if sent by third-class mail pursuant to Section 2.5 of these
bylaws, thirty (30)) nor more than sixty (60) days before the date of the
meeting. The notice shall specify the place, date, and hour of the meeting
and (i) in the case of a special meeting, the general nature of the business
to be transacted (no business other than that specified in the notice may be
transacted) or (ii) in the case of the annual meeting, those matters which
the board of directors, at the time of giving the notice, intends to present
for action by the shareholders (but subject to the provisions of the next
paragraph of this Section 2.4 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 name of any nominee or nominees whom, at the
time of the notice, the board intends to present for election.
If action is proposed to be taken at any meeting for approval
of (i) a contract or transaction in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporations Code of
California (the "Code"), (ii) an amendment of the articles of incorporation,
pursuant to Section 902 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, (iv) a voluntary
dissolution of the corporation, pursuant to Section 1900 of the Code, or (v)
a distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, pursuant to Section 2007 of the Code, then the
notice shall also state the general nature of that proposal.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of shareholders shall be given
either (i) personally or (ii) by first-class mail or (iii) by third class
mail but only if the corporation has outstanding shares held of record by
five hundred (500) or more persons (determined as provided in Section 605 of
the Code) on the record date for the shareholders' meeting, or (iv) by
telegraphic or other written communication. Notices not personally delivered
shall be sent charges prepaid and shall be addressed to the shareholder at
the address of that shareholder appearing on the books of the
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corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by mail
or telegraphic or other written communication to the corporation's principal
executive office, or if published at least once in a newspaper of general
circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally or deposited
in the mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of
that 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 that address, then all future notices or reports shall be
deemed to have been duly given without further mailing if the same shall be
available to the shareholder on written demand of the shareholder at the
principal executive office of the corporation for a period of one (1) year
from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting, executed by the secretary, assistant
secretary or any transfer agent of the corporation giving the notice, shall
be prima facie evidence of the giving of such notice.
2.6 QUORUM
The presence in person or by proxy of the holders of a
majority of the shares entitled to vote thereat constitutes a quorum for the
transaction of business at all meetings of shareholders. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum, if any action taken (other
than adjournment) is approved by at least a majority of the shares required
to constitute a quorum.
2.7 ADJOURNED MEETING; NOTICE
Any shareholders' meeting, annual or special, whether or not a
quorum is present, may be adjourned from time to time by the vote of the
majority of the shares represented at that meeting, either in person or by
proxy. In the absence of a quorum, no other business may be transacted at
that meeting except as provided in Section 2.6 of these bylaws.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the
adjournment is taken. However, if a new record date for the adjourned meeting
is fixed or if the adjournment is for more than forty-five (45) days from the
date set for the original meeting, then notice of the adjourned meeting shall
be given. Notice of any such adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 2.4 and 2.5 of these bylaws. At any
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
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2.8 VOTING
The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section
2.11 of these bylaws, subject to the provisions of Sections 702 through 704
of the Code (relating to voting shares held by a fiduciary, in the name of a
corporation or in joint ownership).
The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by ballot if
demanded by any shareholder at the meeting and before the voting has begun.
Except as provided in the last paragraph of this Section 2.8,
or 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 the shareholders. Any shareholder
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, except when the
matter is the election of directors, may vote them against the proposal; but,
if the shareholder fails to specify the number of shares which the
shareholder is voting affirmatively, it will be conclusively presumed that
the shareholder's approving vote is with respect to all shares which the
shareholder is entitled to vote.
If a quorum is present, the affirmative vote of the majority
of the shares represented and voting at a duly held 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 a vote by classes is required by the Code or by the articles of
incorporation.
At a shareholders' meeting at, which directors are to be
elected, a shareholder shall be entitled to cumulate votes (i.e. cast for
any candidate a number of votes greater than the number of votes which such
shareholder normally is entitled to cast) if the candidates' names have been
placed in nomination prior to commencement of the voting and the shareholder
has given notice prior to commencement of the voting of the shareholder's
intention to cumulate votes. If any shareholder has given such a notice, then
every shareholder entitled to vote may cumulate votes for candidates in
nomination either (i) by giving one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of votes to which
that shareholder's shares are normally entitled or (ii) by distributing the
shareholder's votes on the same principle among any or all of the candidates,
as the shareholder thinks fit. The candidates receiving the highest number of
affirmative votes, up to the number of directors to be elected, shall be
elected; votes against any candidate and votes withheld shall have no legal
effect.
2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT
The transactions of any meeting of shareholders, either annual
or special, however called and noticed, and wherever held, shall be as valid
as though had at a meeting duly held after regular call and notice, if a
quorum be present either in person or by proxy, and if, either before or
after the meeting, each person entitled to vote, who was not present in
person or by proxy, signs a written waiver of notice or a consent to the
holding of the meeting or an approval of the minutes thereof. The waiver of
notice or consent or approval need not specify either the business
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to be transacted or the purpose of any annual or special meeting of
shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of Section
2.4 of these bylaws, the waiver of notice or consent or approval shall state
the general nature of the proposal. All such waivers, consents, and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance by a person at a meeting shall also constitute a
waiver of notice of and presence at that 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. Attendance at a
meeting is not a waiver of any right to object to the consideration of
matters required by the Code to be included in the notice of the meeting but
not so included, if that objection is expressly made at the meeting.
2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A 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, 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 that action at a meeting
at which all shares entitled to vote on that action were present and voted.
In the case of election of directors, such a consent shall be
effective only if signed by the holders of all outstanding shares entitled to
vote for the election of directors. However, a director may be elected at
any time to fill any vacancy on the board of directors, provided that it was
not created by removal of a director and that it has not been filled by the
directors, by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of directors.
All such consents shall be maintained in the corporate
records. Any shareholder giving a written consent, or the shareholder's
proxy holders, or a transferee of the shares, or a personal representative of
the shareholder, or their respective proxy holders, may revoke the consent by
a writing received by the secretary of the corporation before written
consents of the number of shares required to authorize the proposed action
have been filed with the secretary.
If the consents of all shareholders entitled to vote have not
been solicited in writing and if the unanimous written consent of all such
shareholders has not been received, then the secretary shall give prompt
notice of the corporate action approved by the shareholders without a
meeting. Such notice shall be given to those shareholders entitled to vote
who have not consented in writing and shall be given in the manner specified
in Section 2.5 of these bylaws. In the case of approval of (i) a contract or
transaction in which a director has a direct or indirect financial interest,
pursuant to Section 310 of the Code, (ii) indemnification of a corporate
"agent," pursuant to Section 317 of the Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of the Code, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
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2.11 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING; GIVING
CONSENTS
For purposes of determining the shareholders entitled to
notice of any meeting or to vote thereat or entitled to give consent to
corporate action without a meeting, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) days nor less
than ten (10) days before the date of any such meeting nor more than sixty
(60) days before any such action without a meeting, and in such event only
shareholders of record on the date so fixed are entitled to notice and to
vote or to give consents, 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 Code.
If the board of directors does not so fix a record date:
(a) 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; and
(b) the record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting,
(i) when no prior action by the board has been taken, shall be the day on
which the first written consent is given, or (ii) when prior action by the
board has been taken, shall be at the close of business on the day on which
the board adopts the resolution relating to that action, or the sixtieth
(60th) day before the date of such other action, whichever is later.
The record date for any other purpose shall be as provided in
Article VIII of these bylaws.
2.12 PROXIES
Every person entitled to vote for directors, or on any other
matter, shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which does not
state that it is irrevocable shall continue in full force and effect unless
(i) the person who executed the proxy revokes it prior to the time of voting
by delivering a writing to the corporation stating that the proxy is revoked
or by executing a subsequent proxy and presenting it to the meeting or by
voting in person at the meeting, or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before
the vote pursuant to that proxy is counted; provided, however, that no proxy
shall be valid after the expiration of eleven (11) months from the date of
the proxy, unless otherwise provided in 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. The
revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of Sections 705(e) and 705(f) of the Code.
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2.13 INSPECTORS OF ELECTION
Before any meeting of shareholders, the board of directors may
appoint an inspector or inspectors of election to act at the meeting or its
adjournment. If no inspector of election is so appointed, then the chairman
of the meeting may, and on the request of any shareholder or a shareholder's
proxy shall, appoint an inspector or inspectors of election to act at the
meeting. The number of inspectors shall be either one (1) or three (3). If
inspectors are appointed at a meeting. pursuant to the request of one (1) or
more shareholders or proxies, then the holders of a majority of shares or
their proxies present at the meeting shall determine whether one (1) or three
(3) inspectors are to be appointed. If any person appointed as inspector
fails to appear or fails or refuses to act, then the chairman of the meeting
may, and upon the request of any shareholder or a shareholder's proxy shall,
appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the
voting power of each, the number of shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in
any way arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the Code and any limitations in
the articles of incorporation and these bylaws 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.
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3.2 NUMBER OF DIRECTORS
The number of directors of the corporation shall be not less
than five (5) nor more than nine (9).* The exact number of directors shall
be seven (7) until changed, within the limits specified above, by a bylaw
amending this Section 3.2, duly adopted by the board of directors or by the
shareholders. This indefinite number may be changed, or a definite number
may be fixed without provision for an indefinite number, by a duly adopted
amendment to the articles of incorporation or by an amendment to this bylaw
adopted by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that an amendment
reducing the fixed number or the minimum number of directors to a number less
than five (5) cannot be adopted if the votes cast against its adoption at a
meeting, or the shares not consenting in the case of an action by written
consent, are equal to more than sixteen and two-thirds percent (16-2/3%) of
the outstanding shares entitled to vote thereon.
No reduction of the authorized number of directors shall have
the effect of removing any director before that director's term of office
expires.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Directors shall be elected at each annual meeting of
shareholders to hold office until the next annual meeting. 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.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to
the chairman of the board, the president, the secretary or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
Vacancies in the board of directors may be filled by a
majority of the remaining directors, even if less than a quorum, or by a sole
remaining director; however, a vacancy created by the removal of a director
by the vote or written consent of the shareholders or by court order may be
filled only by the affirmative vote of a majority of the shares represented
and voting at a duly held meeting at which a quorum is present (which shares
voting affirmatively also constitute a majority of the required quorum) or by
the unanimous written consent of all shares entitled to vote thereon. Each
director so elected shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and qualified.
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* The number of directors of the corporation shall be not less than five (5)
nor more than nine (9)-April 20, 1990.
* The number of directors was fixed at seven on March 14, 1995.
* The number of directors was fixed at five on April 17, 1997.
* The number of directors was fixed at seven on February 28, 1998.
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A vacancy or vacancies in the board of directors shall be
deemed to exist (i) in the event of the death, resignation or removal of any
director, (ii) if the board of directors by resolution declares vacant the
office of a director who has been declared of unsound mind by an order of
court or convicted of a felony, (iii) if the authorized number of directors
is increased, or (iv) if the shareholders fail, at any meeting of
shareholders at which any director or directors are elected, to elect the
number of directors to be elected at that meeting.
The shareholders may elect a director or directors at any time
to fill any vacancy or vacancies not filled by the directors, but any such
election other than to fill a vacancy created by removal, if by written
consent, shall require the consent of the holders of a majority of the
outstanding shares entitled to vote thereon.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any
place within or outside the State of California that has been designated from
time to time by resolution of the board. In the absence of such a
designation, regular meetings shall be held at the principal executive office
of the corporation. Special meetings of the board may be held at any place
within or outside the State of California that has been designated in the
notice of the meeting or, if not stated in the notice or if there is no
notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such directors
shall be deemed to be present in person at the meeting.
3.6 REGULAR MEETINGS
Regular meetings of the board of directors may be held without
notice if the times of such meetings are fixed by the board of directors.
3.7 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board, the
president, any vice president, the secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least
four (4) days before the time of the holding of the meeting. If the notice
is delivered personally or by telephone or telegram, it shall be delivered
personally or by telephone or to the telegraph company at least forty-eight
(48) hours before the time of the holding of the meeting. Any oral notice
given personally or by telephone may be communicated either to the director
or to a person at the office of the director who the person giving the notice
has reason to believe will promptly communicate
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it to the director. The notice need not specify the purpose or the place of
the meeting, if the meeting is to be held at the principal executive office
of the corporation.
3.8 QUORUM
A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.10 of these bylaws. Every act or decision done or made
by a majority of the directors present at a duly held meeting at which a
quorum is present shall be regarded as the act of the board of directors,
subject to the provisions of Section 310 of the Code (as to approval of
contracts or transactions in which a director has a direct or indirect
material financial interest), Section 311 of the Code (as to appointment of
committees), Section 317(e) of the Code (as to indemnification of directors),
the articles of incorporation, and other applicable law.
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
that meeting.
3.9 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) 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 (ii) who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such directors. All such waivers, consents, and
approvals shall be filed with the corporate records or made part of the
minutes of the meeting. A waiver of notice need not specify the purpose of
any regular or special meeting of the board of directors.
3.10 ADJOURNMENT
A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
3.11 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting
need not be given unless the meeting is adjourned for more than twenty-four
(24) hours. If the meeting is adjourned for more than twenty-four (24)
hours, then notice of the time and place of the adjourned meeting shall be
given before the adjourned meeting takes place, in the manner specified in
Section 3.7 of these bylaws, to the directors who were not present at the
time of the adjournment.
3.12 ACTION WITHOUT MEETING
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, provided that all members of the
board individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a
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unanimous vote of the board of directors. Such written consent and any
counterparts thereof shall be filed with the minutes of the proceedings of
the board.
3.13 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such
compensation, if any, for their services and such reimbursement of expenses
as may be fixed or determined by resolution of the board of directors. This
Section 3.13 shall not be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee or otherwise
and receiving compensation for those services.
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3.14 APPROVAL OF LOANS TO OFFICERS *
The corporation may, upon the approval of the board of
directors alone, make loans of money or property to, or guarantee the
obligations of, any officer of the corporation or its parent or subsidiary,
whether or not a director, or adopt an employee benefit plan or plans
authorizing such loans or guaranties provided that (i) the board of directors
determines that such a loan or guaranty or plan may reasonably be expected to
benefit the corporation, (ii) the corporation has outstanding shares held of
record by 100 or more persons (determined as provided in Section 605 of the
Code) on the date of approval by the board of directors, and (iii) the
approval of the board of directors is by a vote sufficient without counting
the vote of any interested director or directors.
3.15 SUPER MAJORITY VOTE OF DIRECTORS.
A two-thirds super majority vote of directors shall be
required to approve any of the following actions:
(a) consolidation or merger of the Company with or into any
other corporation in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from the persons
holding those securities immediately prior to such transaction (other than a
consolidation or merger in which the surviving entity is the Company or one
of its wholly-owned subsidiaries) or transfer or sale of all or substantially
all of the assets of the Company; or
(b) an increase in the Company's secured indebtedness to an
aggregate amount in excess of $15 million."
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a
majority of the authorized number of directors, designate one (1) or more
committees, each consisting of two or more directors, to serve at the
pleasure of the board. The board may designate one (1) 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 committee, to the extent provided in the resolution of the
board, shall have all the authority of the board, except with respect to:
(a) the approval of any action which, under the Code,
also requires shareholders' approval or approval of the outstanding shares;
- --------------------
* This section is effective only if it has been approved by the shareholders in
accordance with Sections 315(b) and 153 of the Code.
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(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 or 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 which by its express terms is not so amendable or
repealable;
(f) a distribution to the shareholders of the
corporation, except at a rate or in a periodic amount or within a price range
determined by the board of directors; or
(g) the appointment of any other committees of the board
of directors or the members of such committees.
4.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and
held and taken in accordance with, the provisions of Article III of these
bylaws, Section 3.5 (place of meetings), Section 3.6 (regular meetings),
Section 3.7 (special meetings and notice), Section 3.8 (quorum), Section 3.9
(waiver of notice), Section 3.10 (adjournment), Section 3.11 (notice of
adjournment), and Section 3.12 (action without meeting), with such changes in
the context of those bylaws as are necessary to substitute the committee and
its members for the board of directors and its members; provided, however,
that the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee, that
special meetings of committees may also be called by resolution of the board
of directors, and that notice of special meetings of committees shall also be
given to all alternate members, who shall have the right to attend all
meetings of the committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may also have, at
the discretion of the board of directors, a chairman of the board, one or
more vice presidents, one or more assistant secretaries, one or more
assistant treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 5.3 of these bylaws. Any number of
offices may be held by the same person.
5.2 ELECTION OF OFFICERS
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The officers of the corporation, except such officers as may
be appointed in accordance with the provisions of Section 5.3 or Section 5.5
of these bylaws, shall be chosen by the board, subject to the rights, if any,
of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the
president to appoint, such other officers as the business of the corporation
may require, each of whom shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws or as the
board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with or without
cause, by the board of directors at any regular or special meeting of the
board or, except in 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.
Any officer may resign at any time by giving written notice to
the corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the corporation under any contract to
which the officer is a party.
5.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these bylaws for regular appointments to that office.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected,
shall, if present, preside at meetings of the board of directors and exercise
and perform such other powers and duties as may from time to time be assigned
to him by the board of directors or as may be prescribed by these bylaws. If
there is no president, then the chairman of the board shall also be the chief
executive officer of the corporation and shall have the powers and duties
prescribed in Section 5.7 of these bylaws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by
the board of directors to the chairman of the board, if there be such an
officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction, and control of the business and tee officers
of the corporation. He shall preside at all meetings of the shareholders
and, in the absence or nonexistence of a chairman of
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the board, at all meetings of the board of directors. He shall have the
general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as
may be prescribed by the board of directors or these bylaws.
5.8 VICE PRESIDENTS
In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the board of directors
or, if not ranked, a vice president designated by the board of directors,
shall perform all the duties of the president and when so acting shall have
all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by
the board of directors, these bylaws, the president or the chairman of the
board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors and shareholders. The minutes shall show
the time and place of each meeting, whether regular or special (and, if
special, how authorized and the notice given), the names of those present at
directors' meetings or committee meetings, the number of shares present or
represented at shareholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of the
corporation's transfer agent or registrar, as determined by resolution of the
board of directors, a share register, or a duplicate share register, showing
the names of all shareholders and their addresses, the number and classes of
shares held by each, the number and date of certificates evidencing such
shares, 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
meetings of the shareholders and of the board of directors required to be
given by law or by these bylaws. He shall keep the seal of the corporation,
if one be adopted, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the board of directors or
by these bylaws.
5.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts
of the properties and business transactions of the corporation, including
accounts of its assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings, and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer shall deposit all money and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the board of
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directors. He shall disburse the funds of the corporation as may be ordered
by the board of directors, shall render to the president and directors,
whenever they request it, an account of all of his transactions 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.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the Code, indemnify each of its directors and officers against
expenses (as defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding (as defined in Section 317(a) of the Code), arising by
reason of the fact that such person is or was an agent of the corporation.
For purposes of this Section 6.1, a "director" or "officer" of the
corporation includes any person (i) who is or was a director or officer of
the corporation, (ii) who is or was serving at the request of the corporation
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or iii) who was a director, officer or employee of
a corporation which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the
manner permitted by the Code, to indemnify each of its employees and agents
(other than directors and officers) against expenses (as defined in Section
317(a) of the Code), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding (as
defined in Section 317 (a) of the Code), arising by reason of the fact that
such person is or was an agent of the corporation. For purposes of this
Section 6.2, an "agent" of the corporation (other than a director or officer)
includes any person (i) who is or was an agent of the corporation, (ii) who
is or was serving at the request of the corporation as an agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii)
who was an agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
6.3 PAYMENT OF EXPENSES IN ADVANCE
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Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is required pursuant to Section 6.1 or
for which indemnification is permitted pursuant to Section 6.2 following
authorization thereof by the Board of Directors shall be paid by the
corporation in advance of the final disposition of such action or proceeding
upon receipt of any undertaking by or on behalf of the indemnified party to
repay such amount if it shall ultimately be determined that the indemnified
party is not entitled to be indemnified as authorized in this Article VI.
6.4 INDEMNITY NOT EXCLUSIVE
The indemnification provided by this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office, to
the extent that such additional rights to indemnification are authorized in
the Articles of Incorporation.
6.5 INSURANCE INDEMNIFICATION
The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation against any liability asserted against or
incurred by such person in such capacity or arising out of such person's
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article VI.
6.6. CONFLICTS
No indemnification or advance shall be made under this Article
VI, except where such indemnification or advance is mandated by law or the
order, judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of
the Articles of Incorporation, these bylaws, a resolution of the shareholders
or an agreement in effect at the time of the accrual of the alleged cause of
the action asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits indemnification;
or
(2) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER
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The corporation shall keep either at its principal executive
office or at the office of its transfer agent or registrar (if either be
appointed), as determined by resolution of the board of directors, a record
of its shareholders listing the names and addresses of all shareholders and
the number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation who holds at
least five percent (5%) in the aggregate of the outstanding voting shares of
the corporation or who holds at least one percent (1%) of such voting shares
and has filed a Schedule 14B with the Securities and Exchange Commission
relating to the election of directors, may (i) inspect and copy the records
of shareholders' names, addresses, and shareholdings during usual business
hours on five (5) days prior written demand on the corporation, (ii) obtain
from the transfer agent of the corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a list of the
names and addresses of the shareholders who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which that list has been compiled or as of a date specified by the
shareholder after the date of demand. Such list shall be made available to
any such shareholder by the transfer agent on or before the later of five (5)
days after the demand is received or five (5) days after the date specified
in the demand as the date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection on
the written demand of any shareholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose
reasonably related to the holder's interests as a shareholder or as the
holder of a voting trust certificate.
Any inspection and copying under this Section 7.1 may be made
in person or by an agent or attorney of the shareholder or holder of a voting
trust certificate making the demand.
7.2 MAINTENANCE AND INSPECTION OF BYLAWS
The corporation shall keep at its principal executive office
or, if its principal executive office is not in the State of California, at
its principal business office in California the original or a copy of these
bylaws as amended to date, which bylaws shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office of the corporation is outside the State of California and
the corporation has no principal business office in such state, then the
secretary shall, upon the written request of any shareholder, furnish to that
shareholder a copy of these bylaws as amended to date.
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS
The accounting books and records and the minutes of
proceedings of the shareholders, of the board of directors, and of any
committee or committees of the board of directors shall be kept at such place
or places as are designated by the board of directors or, in absence of such
designation, at the principal executive office of the corporation. The
minutes shall be kept in written form, and the accounting books and records
shall be kept either in written form or in any other form capable of being
converted into written form.
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The minutes and accounting books and records shall be open to
inspection upon the written demand of any shareholder or holder of a voting
trust certificate, at any reasonable time during usual business hours, for a
purpose reasonably related to the holder's interests as a shareholder or as
the holder of a voting trust certificate. The inspection may be made in
person or by an agent or attorney and shall include the right to copy and
make extracts. Such rights of inspection shall extend to the records of each
subsidiary corporation of the corporation.
7.4 INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable
time to inspect all books, records, and documents of every kind as well as
the physical properties of the corporation and each of its subsidiary
corporations. Such inspection by a director may be made in person or by an
agent or attorney. The right of inspection includes the right to copy and
make extracts of documents.
7.5 ANNUAL REPORT TO SHAREHOLDERS, WAIVER
The board of directors shall cause an annual report to be sent
to the shareholders not later than one hundred twenty (120) days after the
close of the fiscal year adopted by the corporation. Such report shall be
sent at least fifteen (15) days (or, if sent by third-class mail, thirty-five
(35) days before the annual meeting of shareholders to be held during the
next fiscal year and in the manner specified in Section 2.5 of these bylaws
for giving notice to shareholders of the corporation.
The annual report shall contain (i) a balance sheet as of the
end of the fiscal year, (ii) an income statement, (iii) a statement of
changes in financial position for the fiscal year, and (iv) any report 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.
The foregoing requirement of an annual report shall be waived
so long as the shares of the corporation are held by fewer than one hundred
(100) holders of record.
7.6 FINANCIAL STATEMENTS
If no annual report for the fiscal year has been sent to
shareholders, then the corporation shall, upon the written request of any
shareholder made more than one hundred twenty (120) days after the close of
such fiscal year, deliver or mail to the person making the request, within
thirty (30) days thereafter, a copy of a balance sheet as of the end of such
fiscal year and an income statement and statement of changes in financial
position for such fiscal year.
If a shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of stock of the corporation makes
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 then
current fiscal year ended more than thirty (30) days before the date of the
request, and for a balance sheet of the corporation as of the end of that
period, then the chief financial officer shall
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cause that statement to be prepared, if not already prepared, and shall
deliver personally or mail that statement or statements to the person making
the request within thirty (30) days after the receipt of the request. If the
corporation has not sent to the shareholders its annual report for the last
fiscal year, the statements referred to in the first paragraph of this
Section 7.6 shall likewise be delivered or mailed to the shareholder or
shareholders within thirty (30) days after the request.
The quarterly income statements and balance sheets referred to
in this section shall be accompanied by the report, if any, of any
independent accountants engaged by the corporation or by 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.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the shareholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights or the shareholders entitled to exercise any rights in respect of any
other lawful action (other than action by shareholders by written consent
without a meeting), the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days before any such action.
In that case, only shareholders of record at the close of business on the
date so fixed are entitled to receive the dividend, distribution or allotment
of rights, or to exercise such rights, as the case may be, notwithstanding
any transfer of any shares on the books of the corporation after the record
date so fixed, except as otherwise provided in the Code.
If the board of directors does not so fix a record date, then
the record date for determining shareholders for any such purpose shall be at
the close of business on the day on which the board adopts the applicable
resolution or the sixtieth (60th) day before the date of that action,
whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts,
other orders for payment of money, notes or other evidences of indebtedness
that are issued in the name of or payable to the corporation, and only the
persons so authorized shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these
bylaws, may authorize any officer or officers, or agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of
the corporation; such authority may be general or confined to specific
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instances. Unless so authorized or ratified by the board of directors or
within the agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or
for any amount.
8.4 CERTIFICATES FOR SHARES
A certificate or certificates for shares of the corporation
shall be issued to each shareholder when any of such shares are fully paid.
The board of directors may authorize the issuance of certificates for shares
partly paid provided that these certificates shall state the total amount of
the consideration to be paid for them and the amount actually paid. All
certificates shall be signed in the name of the corporation by the chairman
of the board or the vice chairman of the board or the president or a vice
president and by the chief financial officer or an assistant treasurer or the
secretary or an assistant secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any or all of the
signatures on the certificate may be facsimile.
In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed on a certificate ceases
to be that officer, transfer agent or registrar before that certificate is
issued, it may be issued by the corporation with the same effect as if that
person were an officer, transfer agent or registrar at the date of issue.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates
for shares shall be issued to replace a previously issued certificate unless
the latter is surrendered to the corporation and cancelled at the same time.
The board of directors may, in case any share certificate or certificate for
any other security is lost, stolen or destroyed, authorize the issuance of
replacement certificates on such terms and conditions as the board may
require; the board may require indemnification of the corporation secured by
a bond or other adequate security sufficient to protect the corporation
against any claim that may be made against it, including any expense or
liability, on account of the alleged loss, theft or destruction of the
certificate or the issuance of the replacement certificate.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions,
rules of construction, and definitions in the Code shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and
a natural person.
ARTICLE IX
AMENDMENTS
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9.1 AMENDMENT BY SHAREHOLDERS
New bylaws may be adopted or these bylaws may be amended or
repealed by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that if the articles
of incorporation of the corporation set forth the number of authorized
directors of the corporation, then the authorized number of directors may be
changed only by an amendment of the articles of incorporation.
9.2 AMENDMENT BY DIRECTORS
Subject to the rights of the shareholders as provided in
Section 9.1 of these bylaws, bylaws, other than a bylaw or an amendment of a
bylaw changing the authorized number of directors (except to fix the
authorized number of directors pursuant to a bylaw providing for a variable
number of directors), may be adopted, amended or repealed by the board of
directors.
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