BYLAWS
OF
ASC MERGER CORP
(a California corporation)
ASC MERGER CORP.
BYLAWS
Table of Contents
Page
ARTICLE I. Offices . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1. PRINCIPAL EXECUTIVE OFFICE . . . . . . . . . . . . . 2
Section 2. OTHER OFFICES . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. Shareholders . . . . . . . . . . . . . . . . . . . . . . 2
Section 1. PLACE OF MEETINGS . . . . . . . . . . . . . . . . . . 2
Section 2. ANNUAL MEETINGS . . . . . . . . . . . . . . . . . . . 2
Section 3. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . 3
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS . . . . . . . . 3
Section 5. QUORUM . . . . . . . . . . . . . . . . . . . . . . . 4
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF . . . . . . . . 4
Section 7. VOTING . . . . . . . . . . . . . . . . . . . . . . . 4
Section 8. RECORD DATE . . . . . . . . . . . . . . . . . . . . . 6
Section 9. CONSENT OF ABSENTEES . . . . . . . . . . . . . . . . 7
Section 10. ACTION WITHOUT MEETING . . . . . . . . . . . . . . . 7
Section 11. PROXIES . . . . . . . . . . . . . . . . . . . . . . . 8
Section 12. INSPECTORS OF ELECTION . . . . . . . . . . . . . . . 8
ARTICLE III. Directors . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. POWERS . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. COMMITTEES . . . . . . . . . . . . . . . . . . . . . 9
Section 3. NUMBER OF DIRECTORS . . . . . . . . . . . . . . . . 10
Section 4. ELECTION AND TERM OF OFFICE . . . . . . . . . . . . 10
Section 5. VACANCIES . . . . . . . . . . . . . . . . . . . . . 10
Section 6. RESIGNATION . . . . . . . . . . . . . . . . . . . . 11
Section 7. PLACE OF MEETINGS . . . . . . . . . . . . . . . . . 11
Section 8. ANNUAL MEETINGS . . . . . . . . . . . . . . . . . . 12
Section 9. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . 12
Section 10. QUORUM . . . . . . . . . . . . . . . . . . . . . . 12
Section 11. PARTICIPATION IN MEETINGS BY CONFERENCE
TELEPHONE . . . . . . . . . . . . . . . . . . . . . 13
Section 12. WAIVER OF NOTICE . . . . . . . . . . . . . . . . . 13
Section 13. ADJOURNMENT . . . . . . . . . . . . . . . . . . . . 13
Section 14. FEES AND COMPENSATION . . . . . . . . . . . . . . . 13
Section 15. ACTION WITHOUT MEETING . . . . . . . . . . . . . . 13
ARTICLE IV. Officers . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. OFFICERS . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. ELECTION . . . . . . . . . . . . . . . . . . . . . 14
Section 3. SUBORDINATE OFFICERS . . . . . . . . . . . . . . . 14
Section 4. REMOVAL AND RESIGNATION . . . . . . . . . . . . . . 14
Section 5. VACANCIES . . . . . . . . . . . . . . . . . . . . . 15
Section 6. PRESIDENT . . . . . . . . . . . . . . . . . . . . . 15
Section 7. VICE PRESIDENTS . . . . . . . . . . . . . . . . . . 15
Section 8. SECRETARY . . . . . . . . . . . . . . . . . . . . . 15
Section 9. CHIEF FINANCIAL OFFICER . . . . . . . . . . . . . . 16
Section 10. CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . 17
ARTICLE V. Other Provisions . . . . . . . . . . . . . . . . . . . . 17
Section 1. INSPECTION OF CORPORATE RECORDS . . . . . . . . . . 17
Section 2. INSPECTION OF BYLAWS . . . . . . . . . . . . . . . 17
Section 3. ENDORSEMENT OF DOCUMENTS; CONTRACTS . . . . . . . . 18
Section 4. CERTIFICATES OF STOCK . . . . . . . . . . . . . . . 18
Section 5. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS . . . . . . . . . . . . . . . . . . . 19
Section 6. ANNUAL REPORT TO SHAREHOLDERS . . . . . . . . . . . 19
Section 7. CONSTRUCTION AND DEFINITIONS . . . . . . . . . . . 20
Section 8. COMPENSATION . . . . . . . . . . . . . . . . . . . 20
Section 9. INDEMNIFICATION OF AGENTS OF THE CORPORATION;
PURCHASE OF LIABILITY INSURANCE . . . . . . . . . . 20
Section 10. CORPORATE LOANS AND GUARANTEES TO
DIRECTORS AND OFFICERS . . . . . . . . . . . . . . 21
ARTICLE VI. Amendments . . . . . . . . . . . . . . . . . . . . . . 23
BYLAWS
for the regulation, except as
otherwise provided by statute or its
Articles of Incorporation,
of
ASC MERGER CORP.
(a California corporation)
ARTICLE I. Offices.
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the Corporation shall be fixed and located at such place as the
Board of Directors (herein referred to as the "Board") shall determine.
The Board is granted full power and authority to change said principal
executive office from one location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may be
established at any time by the Board at any place or places.
ARTICLE II. Shareholders.
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall
be held at the principal executive office of the Corporation unless another
place within or without the State of California is designated by the Board.
Section 2. ANNUAL MEETINGS. The annual meetings of
shareholders shall be held on: on the first Tuesday in May at 10:00 a.m.,
local time, or such other date or such other time as may be fixed by the
Board, provided, however, that should said day fall upon a Saturday, Sunday
or legal holiday observed by the Corporation at its principal executive
office, then any such annual meeting of shareholders shall be held at the
same time and place on the next day thereafter ensuing which is a business
day. At such meetings, directors shall be elected and any other proper
business may be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the
shareholders may be called at any time by the Board, the Chairman of the
Board, the President or by the holders of shares entitled to cast not less
than ten percent of the votes at such meeting.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written
notice of each annual or special meeting of shareholders shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
shareholder entitled to vote thereat.
Such notice shall be given either personally or by first-class
mail, postage prepaid, or by other means of written communication,
addressed to the shareholder at the address of such shareholder appearing
on the books of the corporation or given by the shareholder to the
Corporation for the purpose of notice, or if no such address appears or is
given, at the place where the principal executive office of the Corporation
is located or by publication at least once in a newspaper of general
circulation in the county in which the principal executive office is
located. After notice is given by mail, the Secretary or the Assistant
Secretary, if any, or transfer agent, shall execute an affidavit of mailing
in accordance with this section.
The notice shall state the place, date and hour of the meeting
and (i) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (ii)
in the case of 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 applicable law, 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 notice to be presented by the Board for
election.
Section 5. QUORUM. A majority of the share entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting
of the shareholders. Subject to the Articles of Incorporation of the
Corporation (herein referred to as the "Articles of Incorporation"), 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.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any meeting
of shareholders, whether or not a quorum is present, may be adjourned from
time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat, but in the
absence of a quorum (except as provided in Section 5 of this Article) no
other business may be transacted at such meeting.
It shall not be necessary to give any notice of the time and
place of the adjourned meeting or of the business to be transacted thereat,
other than by announcement at the meeting at which such adjournment is
taken; provided, however, when any shareholders' meeting is adjourned for
more than 45 days or, if after adjournment a new record date is fixed for
the adjourned meeting, notice of the adjourned meeting shall be given as in
the case of an original meeting.
Section 7. VOTING. The shareholders entitled to notice of any
meeting or to vote at any such meeting shall be only those persons in whose
names shares are registered in the stock records of the Corporation on the
record date determined in accordance with Section 8 of this Article.
Except as provided below and except as may be otherwise provided
in the Articles of Incorporation, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of
shareholders. Subject to the requirements of the next sentence, every
shareholder entitled to vote at any election of directors 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 such 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
(i.e., cast for any candidate a number of votes greater than the number of
votes which such shareholder normally is entitled to cast) unless such
candidate or candidates' names have been place in nomination prior to the
voting and any shareholder has given notice at the meeting prior to the
voting of such shareholder's intention to cumulate the shareholder's votes.
Any holder of shares entitled to vote on any matter may vote
part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, other than elections to
office, but, if the shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it will be conclusively presumed that
the shareholder's approving vote is with respect to all shares such
shareholder is entitled to vote.
Elections for directors need not be by ballot unless a
shareholder demands election by ballot at the meeting and before the voting
begins.
Provided that the quorum requirements of Section 5 above are
satisfied: the affirmative vote of a majority of the shares represented
and voting at a duly held meeting at which a quorum is present (which
shares voting affirmatively also constitute at least a majority of the
required quorum) shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by the California General
Corporation Law of the Articles of Incorporation, provided that whenever
under the California General Corporation Law shares are disqualified from
voting on any matter, they shall not be considered outstanding for purposes
of the determination of a quorum at any meeting to acct upon, or the
required vote to approve action upon any matter; and in any election of
directors, the candidates receiving the highest number of affirmative votes
of the shares entitled to be voted for them, up to the number of directors
to be elected by such shares, are elected; votes against the director and
votes withheld shall have no legal effect.
Section 8. RECORD DATE. The Board may fix, in advance, a
record date for the determination of the shareholders entitled to notice
of, or to vote at, any meeting of the shareholders, or the shareholders
entitled to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than 60 days nor less
than 10 days prior to the date of the meeting nor more than 60 days prior
to any other action.
If no record date is fixed by the Board, (i) 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 (ii) the record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting,
when no prior action by the Board has been taken, shall be the day on which
the first written consent is given.
A determination of shareholders of record entitled to notice of,
or to vote at, a meeting of shareholders shall apply to any adjournment of
the meeting unless the Board fixes a new record date for the adjourned
meeting. The Board shall fix a new record date if the meeting is adjourned
for more than 45 days from the date set for the original meeting.
Section 9. CONSENT OF ABSENTEES. The transactions of any
meeting of shareholders, however called and noticed, and wherever held, are
as valid as though had at a meeting duly held after regular call and
notice, if a quorum is present either in person or by proxy, and if, either
before or after the meeting, each of the person entitled to vote, not
present in person or by proxy, signs a written waiver of notice, or a
consent to the holding of the meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Neither
the business to be transacted at nor the purpose of any annual or special
meeting of shareholders, need be specified in any written waiver of notice,
except as provided in the California General Corporation Law.
Section 10. ACTION WITHOUT MEETING. Subject to Section 603 of
the California General Corporation Law, any action which, under any
provision of the California General Corporation Law, may be taken at any
annual or special meeting of shareholders, may be taken without a meeting
and without prior notice if a consent in writing, setting forth the action
so taken, shall be signed by the holders of outstanding shares having not
less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
Section 11. PROXIES. Every person entitled to vote shares
shall have the right to do so either in person or by one or more persons
authorized by a valid written proxy signed by such person or such person's
attorney in fact and filed with the Secretary. Subject to the provisions
of this bylaw and applicable law, any duly executed proxy continues in full
force and effect until revoked by the person executing it prior to the vote
pursuant thereto.
Section 12. INSPECTORS OF ELECTION. Prior to any meeting of
shareholders, the Board may appoint inspectors of election to act at the
meeting or 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 the meeting may, and on the request of any shareholder or
his proxy shall, appoint inspectors of election or persons to replace those
who fail to appear or refuse to act at he 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 holders of a majority
of shares or their proxies present at the meting shall determine whether
one or three inspectors are to be appointed. The inspectors of election
shall (i) 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, (ii) receive votes,
ballots or consents, (iii) hear and determine all challenges and questions
in any way arising in connection with the right to vote, (iv) count and
tabulate all votes or consents, (v) determine when the poll shall close and
the election result and (vi) do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as
expeditiously as it is practicable. If there are three inspectors of
election, the decision, act or certificate of majority is effective in all
respects as the decision, act or certificate of all.
ARTICLE III. Directors.
Section 1. POWERS. Subject to limitations of the Articles of
Incorporation, these Bylaws and the California General Corporation Law
relating to actions 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.
Section 2. COMMITTEES. The Board 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. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent member of
the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of
directors. Any such committee, to the extent provided in the resolution of
the Board, shall have all the authority of the board, except with respect
to (i) the approval of any action required to be approved by the
shareholders or by the outstanding shares under the California General
Corporation Law, (ii) the filling of vacancies on the Board or in any
committee, (iii) the fixing of compensation of the directors for serving on
the Board or on any committee, (iv) the adoption, amendment or repeal of
Bylaws, (v) the amendment or repeal of any resolution of the Board which by
its express terms is not so amendable or repealable, (vi) a distribution to
the shareholders, except at a rate or in a periodic amount or within a
price range determined by the Board and (vii) the appointment of other
committees of the Board or the members thereof.
Section 3. NUMBER OF DIRECTORS. The authorized number of
directors shall be three (3) until changed by an amendment of the Articles
of Incorporation or this Section 3 duly approved by the shareholders,
subject to the California General Corporation Law. However, any reduction
of the authorized number of directors does not remove any director prior to
the expiration of such director's term of office.
Section 4. ELECTION AND TERM OF OFFICE. The directors shall be
elected at each annual meeting of the shareholders, but if any such annual
meeting is not held or the directors are not elected thereat, the directors
may be elected at any special meeting of shareholders held for that
purpose. Subject to Section 5 of this Article, each director shall hold
office until the next annual meeting and until a successor has been elected
and qualified.
Section 5. VACANCIES. A vacancy or vacancies in the Board
shall be deemed to exist in case of the death, resignation or removal of
any director, if the authorized number of directors be increased or if the
shareholders fail at any annual or special meeting of shareholders at which
any directors are elected, to elect the full authorized number of directors
to be voted at that meeting.
Vacancies in the Board, except those existing as a result of a
removal of a director, may be filled by a majority of the remaining
directors, or, if the number of remaining directors is less than a quorum,
by (i) the unanimous written consent of the remaining directors, (ii) the
affirmative vote of a majority of the remaining directors at a meeting held
pursuant to notice or waivers of notice complying with Section 307 of the
California General Corporation Law, or (iii) by a sole remaining director,
and each director so elected shall hold office until the next annual
meeting and until such director's successor has been elected and qualified.
Vacancies in the Board created by the removal of a director 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 at least a majority of
the required quorum) or by the unanimous written consent of all shares
entitled to vote for the election of directors.
The shareholders may elect a director or directors at any time
to fill any vacancy or vacancies not filled by the directors. Any such
election by written consent other than to fill a vacancy created by removal
requires the consent of a majority of the outstanding shares entitled to
vote.
Section 6. RESIGNATION. Any director may resign effective upon
giving written notice to the President, the Secretary or the Board, unless
the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor
may be elected to take office when the resignation becomes effective.
Section 7. PLACE OF MEETINGS. Regular or special meetings of
the Board shall be held at any place within or without the State of
California which has been designated in the notice of the meeting or, if
not stated therein, as designated by resolution of the Board. In the
absence of such designation, meetings shall be held at the principal
executive office of the Corporation.
Section 8. ANNUAL MEETINGS. Immediately following each annual
meeting of shareholders, the Board may, but shall not be required to, hold
an annual meeting at the same place, or at any other place that has been
designated by the Board, for the purpose of organization, election of
officers or transaction of other business as the Board may determine. Call
and notice of this meeting of the Board shall be in the manner for the
conduct of special meetings as provided in Section 9 unless the Board has
determined by resolution to conduct a regular meeting at such time and
place, in which event call and notice of this meeting of the Board shall
not be required unless some place other than the place of the annual
shareholders' meeting has been designated.
Section 9. SPECIAL MEETINGS. Special meetings of the Board for
any purpose or purposes may be called at any time by the Chairman of the
Board, the President, the Secretary or by any two directors upon four days'
notice by mail or 48 hours' notice given personally or by telephone,
telegraph, telex or other similar means of communication. Any such notice
shall be addressed or delivered to each director at such director's address
as it is shown upon the records of the Corporation or as may have been
given to the Corporation by the director for purposes of notice.
Section 10. QUORUM. A majority of the authorized number of
directors constitutes a quorum of the Board for the transaction of
business, except to adjourn as hereinafter provided. Every act or decision
done or made by a majority of the directors present at a meeting duly held
at which a quorum is present shall be regarded as the act of the Board,
unless a greater number be required by law or by the Articles. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
Section 11. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another.
Section 12. WAIVER OF NOTICE. Notice of a meeting need not be
given to any director who signs a waiver of notice or a consent to holding
the meeting or an approval of the minutes thereof, whether before or after
the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to such director. All such
waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 13. ADJOURNMENT. A majority of the directors present,
whether or not a quorum is present, may adjourn any directors' meeting to
another time and place. If a meeting is adjourned for more than 24 hours,
notice of any adjournment to another time or place shall be given prior to
the time of the adjourned meeting to the directors that were not present at
the time of adjournment.
Section 14. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and
such reimbursement for expenses, as may be fixed or determined by the
Board.
Section 15. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the Board may be taken without a meeting if all
members of the Board shall individually or collectively consent in writing
to such action. Such written consent or consents shall be filed with the
minutes of the proceedings of the Board. Such action by written consent
shall have the same effect as a unanimous vote of the members of the Board.
ARTICLE IV. Officers.
Section 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, a Chairman, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant
Financial Officers and such other officers as may be elected or appointed
in accordance with the provisions of Section 3 of this Article.
Section 2. ELECTION. The officers of the Corporation, except
such officers as may be elected or appointed in accordance with the
provisions of Section 3 or Section 5 of this Article, shall be chosen by,
and shall serve at the pleasure of, the Board, and shall hold their
respective offices until their resignation, removal or other
disqualification from service, or until their respective successors shall
be elected and qualified.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and 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 may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be
removed, either with or without cause, by the Board at any time. Any
officer may resign at any time upon written notice to the Corporation
without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party.
Section 5. VACANCIES. 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 election or
appointment to such office.
Section 6. PRESIDENT. The President is the general manager and
chief executive officer of the Corporation and has, subject to the control
of the Board, general supervision, direction and control of the business
and officers of the Corporation. The President shall preside at all
meetings of the shareholders and at all meetings of the Board. The
President has the general powers and duties of management usually vested in
the office of president and general manager of a corporation and such other
powers and duties as may be prescribed by the Board.
Section 7. VICE PRESIDENTS. In the absence or disability of
the President, unless a Chairman has been elected, the Vice Presidents in
order of their rank as fixed by the Board or, if not ranked, the Vice
President designated by the Board, 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.
Section 8. SECRETARY. The Secretary shall keep or cause to be
kept, at the principal executive office and such other place as the Board
may order, a book of minutes of all meetings of shareholders and the Board,
with the time and place of holding, whether regular or special, and if
special, how authorized, the notice thereof given, the names of those
present or represented at meetings of shareholders, and the proceedings
thereof. The Secretary shall keep, or cause to be kept, a copy of the
Bylaws of the Corporation at the principal executive office or business
office in accordance with Section 213 of the California General Corporation
Law.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the Corporation's transfer agent or
registrar, if one be appointed, a share register, or a duplicate share
register, showing the names of the shareholders and their addresses, the
number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation
of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board required by these Bylaws or
by law to be given, shall keep the seal of the Corporation in safe custody,
and shall have such other powers and perform such other duties as may be
prescribed by the Board.
Section 9. CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions
of the Corporation, and shall send or cause to be sent to the shareholders
of the Corporation such financial statements and reports as are by law or
these Bylaws required to be sent to them. The books of account shall at
all times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board. The Chief Financial
Officer shall disburse the funds of the Corporation as may be ordered by
the Board, shall render to the President and directors, upon their request,
an account of all 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.
Section 10. CHAIRMAN OF THE BOARD. If such an officer be
elected, the Chairman of the Board shall preside at meetings of the board
of directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the board of directors or
prescribed by the Bylaws. In the absence of the President, or if there is
no President, the Chairman of the Board shall, in addition, be the chief
executive officer of the Corporation and shall have the powers and duties
described in Section 6 above.
ARTICLE V. Other Provisions.
Section 1. INSPECTION OF CORPORATE RECORDS. The record of
shareholders shall be open to inspection and copying, and the accounting
books and records and minutes of proceedings of the shareholders and the
Board and committees of the Board, if any, shall be open to inspection,
upon written demand on the Corporation of any shareholder at any reasonable
time during usual business hours, for a purpose reasonably related to such
holder's interests as a shareholder.
Section 2. INSPECTION OF BYLAWS. The Corporation shall keep at
its principal executive office in the State of California, or if its
principal executive office is not in California, at its principal business
office in California, the original or a copy of these Bylaws as amended to
date, which shall be open to inspection by the shareholders at all
reasonable times during office hours. If the principal executive office of
the Corporation is outside California and the Corporation has no principal
business office in California, it shall upon the written request of any
shareholder furnish to such shareholder a copy of these Bylaws as amended
to date.
Section 3. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share- certificate, initial transaction statement or written
statement, conveyance or other instrument in writing and any assignment or
endorsement thereof executed or entered into between the Corporation and
any other person shall be valid and binding on the Corporation, when signed
by the Chairman, the President or any Vice President and the Secretary, any
Assistant Secretary, the Chief Financial Officer or any Assistant Financial
Officer of the Corporation unless the other party knew that the signing
officers had no authority to execute the same. Any such instruments may be
signed by any other person or persons and in such manner as from time to
time shall be determined by the Board, and, unless so authorized by the
Board, 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 amount.
Section 4. CERTIFICATES OF STOCK. Every holder of shares of
the Corporation shall be entitled to have a certificate signed in the name
of the Corporation by the President or a Vice President and by the Chief
Financial Officer or an Assistant Financial Officer 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.
Except as provided in this Section, no new certificate for
shares shall be issued in lieu of an old one unless the latter is
surrendered and cancelled at the same time. The Board may, however, if any
certificate for shares is alleged to have been lost, stolen or destroyed,
authorize the issuance of a new certificate in lieu thereof, and the
Corporation may require that the Corporation be given a bond or other
adequate security sufficient to indemnify it against any claim that may be
made against it (including expense or liability) on account of the alleged
loss, theft or destruction of such certificate or the issuance of such new
certificate.
Section 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or any other officer or officers authorized by the Board or by
the President are each authorized to vote, represent and exercise on behalf
of the Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Corporation. The
authority herein granted may be exercised either by any such officer in
person or by any other person authorized so to do by proxy or power of
attorney duly executed by said officer.
Section 6. ANNUAL REPORT TO SHAREHOLDERS. The requirement of
sending an annual report to shareholders which is set forth in the
California General Corporation Law is expressly waived, but nothing herein
shall be interpreted as prohibiting the Board from issuing annual or other
periodic reports to shareholders.
Notwithstanding the immediately preceding paragraph, if the
Corporation has 100 or more holders of record of its shares (determined as
provided in the California General Corporation Law), the Board shall cause
an annual report to be sent to the shareholders not later than 120 days
after the close of the fiscal year. Such report, in addition to such
information as may be required by the California General Corporation Law,
shall contain a balance sheet as of the end of that fiscal year and an
income statement and statement of changes in financial position for that
fiscal year, accompanied by any report thereon of independent accountants
or, if there is no such report, the certificate of an authorized officer of
the Corporation that the statements were prepared without audit from the
books and records of the Corporation. The requirement of sending such
report to the shareholders at least 15 (or, if sent by third-class mail,
35) days prior to the annual meeting of shareholders to be held during the
next fiscal year is expressly waived.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the General Provisions of the California
Corporations Code and in the California General Corporation Law shall
govern the construction of these Bylaws.
Section 8. COMPENSATION. The salaries of all officers and
agents of the Corporation shall be fixed by the Board.
Section 9. INDEMNIFICATION OF AGENTS OF THE CORPORATION;
PURCHASE OF LIABILITY INSURANCE. For purposes of this Section 9, "agent"
means any person who is or was a director, officer, employee or other agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was
a director, officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation; "proceeding"
means any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative; and "expenses" includes
without limitation, attorneys' fees and any expenses of establishing a
right to indemnification under this Section 9.
The Corporation shall have the power to 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 to the fullest extent permitted under the General Corporation
Law of the State of California, as amended from time to time.
Section 10. CORPORATE LOANS AND GUARANTEES TO DIRECTORS AND
OFFICERS. The Corporation shall not make any loan of money or property to,
or guarantee the obligation of, any director or officer of the Corporation
or of its parent, if any, unless the transaction, or an employee benefit
plan authorizing the loans or guarantees after disclosure of the right
under such a plan to include officers or directors, is approved by a
majority of the shareholders entitled to act thereon.
Notwithstanding the immediately preceding paragraph, if the
Corporation has outstanding shares held of record by 100 or more persons
(determined as provided in Section 605 of the California General
Corporation Law) on the date of approval by the Board, and this paragraph
has been approved by the outstanding shares, the Board alone, by a vote
sufficient without counting the vote of any interested director or
directors, if the Board determines that such a loan or guaranty or plan may
reasonably be expected to benefit the Corporation, may approve the making
of any loan of money or property by the Corporation to, or approve the
Corporation's guaranty of the obligation of, any officer of the Corporation
or its parent or subsidiary, if any, whether or not a director, or approve
an employee benefit plan authorizing such a loan or guaranty to an officer.
The Corporation shall not make any loan of money or property to,
or guarantee the obligation of, any person upon the security of shares of
the Corporation or of its parent, if any, if the Corporation's recourse in
the event of default is limited to the security for the loan or guaranty,
unless the loan or guaranty is adequately secured without considering these
shares, or the loan or guaranty is approved by a majority of the
shareholders entitled to act thereon.
Notwithstanding the first paragraph of this Section 10, the
Corporation may advance money to a director or officer of the Corporation
or of its parent, if any, for any expenses reasonably anticipated to be
incurred in the performance of the duties of the director or officer,
provided that in the absence of the advance the director or officer would
be entitled to be reimbursed for the expenses by the Corporation, its
parent, or subsidiary, if any.
The provisions of the first paragraph of this Section 10 do not
apply to the payment of premiums in whole or in part by the Corporation on
a life insurance policy on the life of a director or officer so long as
repayment to the Corporation of the amount paid by it is secured by the
proceeds of the policy and its cash surrender value.
The provisions of this Section 10 do not apply to any
transaction, plan or agreement permitted under Section 408 of the
California General Corporation Law relating to employee stock purchase
plans.
For the purposes of this Section, "approval by a majority of the
shareholders entitled to act" means either (1) written consent of a
majority of the outstanding shares without counting as outstanding or as
consenting any shares owned by any officer or director eligible to
participate in the plan or transaction that is subject to this approval,
(2) the affirmative vote of a majority of the shares present and voting at
a duly held meeting at which a quorum is otherwise present, without
counting for purposes of the vote as either present or voting any shares
owned by any officer or director eligible to participate in the plan or
transaction that is subject to the approval, or (3) the unanimous vote or
written consent of the shareholders. If the Corporation has more than one
class or series of shares outstanding, the "shareholders entitled to act"
within the meaning of this Section includes only holders of those classes
or series entitled under the articles to vote on all matters before the
shareholders or to vote on the subject matter of this Section, and includes
a requirement for separate class or series voting, or for more or less than
one vote per share, only to the extent required by the Articles.
ARTICLE VI. Amendments.
These Bylaws may be amended or repealed either by approval of
the outstanding shares (as defined in Section 152 of the California General
Corporation Law) or by the approval of the Board; provided, however, that
after the issuance of shares, a Bylaw specifying or changing a fixed number
of directors or the maximum or minimum number or changing from a fixed to a
variable number of directors or vice versa may be adopted only by approval
of the outstanding shares.
CERTIFICATE OF SECRETARY
OF
ACS MERGER CORP.
(a California corporation)
I hereby certify that I am the duly elected and acting Secretary
of said corporation and that the foregoing Bylaws, comprising 25 pages,
constitute the Bylaws of said corporation as duly adopted by the Board of
Directors thereof by action taken without a meeting.
DATE: December 30, 1993
----------------------------
Drew Adams
Secretary
AMENDMENT NO. 1 TO BYLAWS
Pursuant to the Action by Written Consent of Sole Shareholder of
Aerosol Services Company, Inc., a California corporation (the "Company"),
dated as of June 25, 1997, Article III, Section 2 to the Company's Bylaws
is amended and restated in its entirety, effective upon the filing of the
Certificate of Merger relating to the merger between Aerosol Services
Holding Corporation and Aerosol Companies Holding Corporation, as follows:
Section 3. NUMBER OF DIRECTORS. The authorized
number of directors shall be established from time to
time by resolution of the Board of Directors. Until
such resolution, the authorized number of directors
of the Corporation shall be eight (8). However, any
reduction of the authorized number of directors does
not remove any director prior to the expiration of
such director's term of office.