AMENDED AND RESTATED
BYLAWS
OF
FUTURE MEDIA PRODUCTIONS, INC..
(a California corporation)
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES. The principal executive office of the
corporation shall be at such place within or outside the State of California as
the board of directors from time to time shall designate. If the principal
executive office of the corporation is located outside the State of California,
and the corporation has one or more business offices in California, the board of
directors shall designate a principal business office in California.
Section 2. OTHER OFFICES. The board of directors may at any time
establish branch or subordinate offices at any place or places as it may deem
appropriate.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of the 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.
Section 2. ANNUAL MEETING. The annual meeting of the shareholders
shall be held each year on the FIRST MONDAY OF APRIL AT 10 O'CLOCK A.M. or on
such other date and at such other time as may be designated by the board of
directors. If the date for the annual meeting is designated by the board of
directors, such date shall not be more than fifteen months after the date of the
preceding annual meeting. At each annual meeting directors shall be elected and
any other proper business may be transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders,
for the purpose of taking any action permitted under the Corporations Code of
California and the articles of incorporation of the corporation, 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, in the aggregate, shares representing not less than
10% of the total number of votes which would be entitled to be cast at such
meeting.
If a special meeting is called by any person or persons other than the
board of directors, such person or persons shall deliver to the chairman of the
board, the president, any vice president or the secretary of the corporation a
written demand that notice of such meeting be given to the shareholders of the
corporation, specifying in such demand the general nature of the business
proposed to be transacted thereat. Such demand shall be delivered personally or
sent by registered mail or by telegraphic or other facsimile transmission. The
officer receiving such demand shall, in accordance with the provisions of
Sections 4 and 5 of this Article II, cause notice to be promptly given to the
shareholders entitled to vote that a special meeting will be held at the date
and time requested by the person or persons calling the meeting, which date must
be not less than thirty-five nor more than sixty days after the receipt of such
demand. If such notice is not given within twenty days after receipt of the
demand, the person or persons calling the meeting may cause the notice to be
given.
Every notice of a special meeting of the shareholders shall specify
the general nature of the business to be transacted, and no other business may
be transacted at such meeting. Nothing contained in this Section 3 shall be
construed as limiting, fixing or affecting the date and time when a meeting of
the shareholders called by action of the board of directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. Whenever the
shareholders are required or permitted to take any action at a meeting, notice
of the meeting shall be given in accordance with Section 5 of this Article II
not less than ten nor more than sixty days before the date of the meeting. Such
notice shall specify the place, date and time of the meeting and (i) in the case
of a special meeting, the general nature of the business to 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. 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 the notice
is given, management 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, (ii) an amendment of the articles of incorporation, (iii) a
reorganization of the corporation as defined in the Corporations Code of
California, (iv) a voluntary dissolution of the corporation or (v) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any, the notice of such meeting shall also
state the general nature of that proposal.
Section 5. MANNER OF GIVING NOTICE. Notice of any meeting of the
shareholders shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid, addressed to each
shareholder at his address
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appearing on the books of the corporation or given by such shareholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or has been given, notice shall be deemed to have been
given if sent to that shareholder by first-class 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 said principal executive office is located. Any 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 such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to such shareholder
at that address, all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available to such shareholder
on written demand of such shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of the notice
to the other shareholders of the corporation.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting which is 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.
Section 6. QUORUM. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting of the shareholders
shall constitute a quorum for the transaction of business. 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 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, but in the absence of a quorum, no other
business may be transacted at that meeting, except as provided in Section 6 of
this Article II.
When any meeting of the shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the date, time and place at which the adjourned meeting is to be
reconvened are announced at the meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed or unless the
adjournment is for more than forty-five days from the date set for the original
meeting, in which case the board of directors shall set a new record date. If
notice of any
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adjourned meeting is required to be given as indicated above, such notice
shall be given to each shareholder of record entitled to vote at the
adjourned meeting in accordance with the provisions of Sections 4 and 5 of
this Article II. At any adjourned meeting the shareholders may transact any
business which might have been transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting
of the shareholders shall be determined in accordance with the provisions of
Section 11 of this Article II, subject to the provisions of Sections 702 to 704,
inclusive, of the Corporations Code of California (relating to the voting of
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
before the voting has begun. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on any
matter (other than an election of directors with respect to which cumulative
voting is applicable) shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by the Corporations Code of
California or by the articles of incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes unless the names of the
candidates for whom votes are sought to be cumulated have been placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of his intention to cumulate votes.
If any shareholder has given such a notice, then every shareholder entitled to
vote may cumulate his votes for candidates whose names have been placed in
nomination 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 his shares
are entitled, or distribute his votes on the same principle among any or all of
the candidates, as he thinks fit. The candidates receiving the highest number of
votes, up to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of the shareholders, either annual or special,
however called and noticed and wherever held, shall be as valid as though taken
at a meeting duly held after regular call and notice if a quorum was 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 or who, though
present, did expressly object to the consideration of particular matters of
business as to which proper notice was not given or who, at the beginning of the
meeting, did object to the transaction of any business thereat because the
meeting was not lawfully called or convened, signs a written waiver of notice or
a consent to a holding of the meeting or any approval of the minutes. Such
waiver of notice or consent or approval need not specify either the business to
be transacted or the purpose of any annual or special meeting of the
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 4
of this Article II, the waiver of notice or consent shall state the general
nature of the proposal. All
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such waivers, consents or 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 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 and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if the objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION WITHOUT A MEETING. Any action which
may be taken at any annual or special meeting of the shareholders may be taken
without a meeting and without prior notice, by consent in writing setting forth
the action so taken. In the case of any action other than election of directors,
such action shall be effective if 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
on that action were present and voted. In the case of election of directors,
such consent shall be effective only if signed by the holders of all outstanding
shares entitled to vote for the election of directors; provided, however, that a
vacancy on the board of directors (other than a vacancy created by the removal
of a director) that has not been filled by the directors may be filled at any
time 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 filed with the secretary of the corporation and shall be maintained in the
corporate records. Any shareholder giving a written consent or such
shareholder's proxy holders or a transferee of the shares or a personal
representative of such 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 written consent of all such shareholders shall
not have been received, the secretary shall give to all shareholders entitled to
vote whose written consent has not been received prompt notice of the corporate
action approved by the shareholders without a meeting. Such notice must be given
at least ten days before the consummation of such action in the event that such
action consists of (i) entering into a contract or transaction in which a
director has a direct or indirect financial interest, (ii) indemnification of an
agent of the corporation, (iii) a reorganization of the corporation as defined
in the Corporations Code of California or (iv) a distribution in dissolution
other than in accordance with the rights of outstanding preferred shares, if
any. Such notice shall be given in the manner specified in Section 5 of this
Article II.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING
CONSENTS. For purposes of determining the shareholders entitled to notice of
and to vote at any meeting or entitled to give consent to corporate action
without a meeting,
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the board of directors may fix, in advance, a record date which shall not be
more than sixty days nor less than ten days before the date of any such
meeting nor more than sixty days before any such action without a meeting,
and in this event only shareholders of record at the close of business 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
Corporations Code of California.
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 the 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.
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting shall be (i) when no
resolution with respect to such action has yet been adopted by the board of
directors, the day on which the first written consent is given or (ii) when a
resolution with respect to such action has theretofore been adopted by the board
of directors, at the close of business on the day on which the board adopted the
resolution relating to such action or the sixtieth day before the date of the
consummation of such action, whichever is later.
Section 12. PROXIES. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy dated and executed by such person or his
attorney-in-fact and filed with the secretary of the corporation. A proxy shall
be deemed executed if the name of the person making the same is placed thereon
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by such person or his attorney-infact. A validly executed proxy which
does not state that it is irrevocable shall continue in full force and effect
until (i) an instrument revoking such proxy or a duly executed proxy bearing a
later date is filed with the secretary of the corporation prior to the vote
pursuant thereto, (ii) the person executing such proxy attends the meeting and
votes in person or (iii) written notice of the death or incapacity of the maker
of such proxy is received by the corporation before the vote pursuant thereto is
counted; provided that no proxy shall be valid after the expiration of eleven
months from the date thereof, unless the person executing the proxy specifies
therein the length of time for which the same is to continue in force.
The revocability of a proxy which states on its face that it is
irrevocable shall be governed by Sections 705(e) and 705(f) of the Corporations
Code of California.
In the determination of the validity and effect of proxies, the dates
contained on the forms of proxy shall presumptively determine the order of
execution of the proxies, regardless of the postmark dates on the envelopes in
which they are mailed.
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Section 13. INSPECTORS OF ELECTION. Before any meeting of the
shareholders, the board of directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or any adjournment
thereof. If no inspectors of election are so appointed, the chairman of the
meeting may, and on the request of any shareholder or a shareholder's proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one or three. If inspectors are appointed at a meeting on the
request of one or more shareholders or proxies, the holders of a majority of the
shares or their proxies present at the meeting shall determine whether one or
three inspectors are to be appointed. If any person appointed as inspector fails
to appear or fails or refuses to act, 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.
The inspectors of election shall:
(a) 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;
(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) Determine when the polls shall close;
(e) Count and tabulate all votes or consents;
(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.
If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is PRIMA FACIE evidence of the facts stated therein.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the Corporations
Code of California and any limitations in the articles of incorporation or these
bylaws, the business and
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affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
Section 2. NUMBER OF DIRECTORS. The authorized number of directors
shall be not less than 5 nor more than 9, with the exact number of directors
to be fixed, within the limits specified, by approval of the board or the
shareholders in the manner provided in these bylaws. The initial number of
directors shall be 5. Subject to the provisions of the Corporations Code of
California, the range of directors may be changed, or a definite number fixed
without provision for a range, by a duly adopted amendment to the articles of
incorporation or by an amendment to this bylaw duly 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 exact number or
the minimum number of directors to a number less than five shall not be
adopted if the votes cast against its adoption at a meeting of the
shareholders, or the shares not consenting in the case of action by written
consent, are equal to more than 16-2/3% of the outstanding shares entitled to
vote; and provided further, that no amendment may change the stated maximum
number of authorized directors to a number greater than two times the stated
minimum of directors minus one.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall
be elected at the 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. Each
director, including a director elected to fill a vacancy, shall hold office
until the next annual meeting of shareholders and until a successor has been
elected.
Section 4. VACANCIES. Vacancies in the board of directors may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, except that 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 vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present or by the
unanimous written consent of the holders of all outstanding shares entitled to
vote.
A vacancy or vacancies in the board of directors shall be deemed to
exist in the event of the death, resignation or removal of any directors or 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 or if the authorized number of directors is increased.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors.
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
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later time for the resignation to become effective. If the resignation of a
director is effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
No reduction of the authorized number of directors shall have the
effect of removing any director before such director's term of office expires.
Section 5. PLACE OF MEETINGS AND 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 shall 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 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.
Section 6. ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders, the board of directors shall hold a regular meeting for
the purpose of organization, any desired election of officers and the
transaction of other business. Notice of this meeting shall not be required.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the
board of directors shall be held without call at such time as shall from time to
time be fixed by the board of directors. Such regular meetings may be held
without notice.
Section 8. SPECIAL MEETINGS. 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 to each director or communicated to each director by telephone,
telegraph or by mail, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation or, if it is
not so shown on such records or is not readily ascertainable, at the place at
which the meetings of the directors are regularly held. In case such notice is
mailed, it shall be deposited in the United States mail at least four days
before the time of the holding of the meeting. In case such 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 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
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person giving the notice has reason to believe will promptly communicate it to
the director. The notice need not specify the purpose of the meeting or, if the
meeting is to be held at the principal executive office of the corporation, the
location at which the meeting is to be held.
Section 9. 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 11 of this Article III. 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 of directors, unless a
greater number is required by law, by the articles of incorporation or by these
bylaws. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the directors required for a quorum
for that meeting.
Section 10. WAIVER OF NOTICE. The transactions of any meeting of the
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum was present and if, either before or after the meeting, each of the
directors not present or who, though present, did, prior to the meeting or at
its commencement, protest the lack of proper notice to him signs a written
waiver of notice, a consent to holding the meeting or an approval of the
minutes. The waiver of notice or consent need not specify the purpose of the
meeting. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Notice of a
meeting shall also be deemed duly given to any director who attends the meeting
without protesting, before or at its commencement, the lack of notice to that
director.
Section 11. ADJOURNMENT. A majority of the directors present at any
directors' meeting, whether or not a quorum is present at such meeting, may
adjourn such meeting to another time and place.
Section 12. NOTICE OF ADJOURNMENT. If a meeting is adjourned for
more than twenty-four hours, notice of the adjournment to another time or place
shall be given prior to the time of the adjourned meeting to the directors who
were not present at the time of adjournment. Otherwise notice of the time and
place of holding an adjourned meeting need not be given to absent directors if
the time and place be fixed at the meeting adjourned.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted
to be taken by the board of directors may be taken without a meeting if all
members of the board shall individually or collectively consent in writing to
such action. Such action by written consent shall have the same force and effect
as a unanimous vote of the board of directors. Such written consent or consents
shall be filed with the minutes of the proceedings of the board.
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Section 14. 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 14 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.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The board of directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees (including an executive committee), 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 at any meeting of the committee. Members and
alternate members of committees shall be designated by 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 Corporations
Code of California, also requires shareholders' approval or approval of the
outstanding shares;
(b) the filling of vacancies on the board of directors or in any
committee;
(c) the fixing of compensation of the directors for serving on
the board or on any committee;
(d) the amendment or repeal of 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 these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
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provisions of Article III of these bylaws relating to meetings and actions of
the board of directors, with such changes therein as are necessary to substitute
the committee and its members for the board of directors and its members, except
that (i) the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; (ii)
special meetings of committees may also be called by resolution of the board of
directors; and (iii) 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
Section 1. OFFICERS. The officers of the corporation shall be a
president or a chairman of the board or both, a secretary and a chief financial
officer. The corporation may also have, at the discretion of the board of
directors, one or more vice presidents and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article V. Any
number of offices may be held by the same person.
Section 2. ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article V, shall be chosen by the board of directors. Each
officer of the corporation shall serve at the pleasure of the board or until he
shall resign or shall be removed.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint
or may confer upon any officer or officers of the corporation the power 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.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed,
either with or without cause, by the board of directors 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 (without prejudice to the rights, if any, of
the corporation under any contract to which the officer is a party) at any time
by giving written notice to the corporation. Any resignation shall, take effect
on the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of any
resignation shall not be necessary to make it effective.
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Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled in the manner prescribed
in these bylaws for regular election or appointment to such office.
Section 6. CHAIRMAN OF THE BOARD. The chairman of the board, if the
corporation shall have such an officer, shall, if present, preside at meetings
of the board of directors and exercise and perform such other powers and duties
as may be assigned to him from time to time by the board of directors or
prescribed by these bylaws. If there is no president or if provided in the
articles of incorporation or these bylaws, the chairman of the board shall in
addition be the chief executive officer of the corporation and shall have the
powers and duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Subject to the control of the board of
directors and to such supervisory powers, if any, as may be given by the board
of directors to the chairman of the board, if the corporation shall have such an
officer, the president shall have general supervision, direction and control of
the business and the officers of the corporation. Unless otherwise provided in
the articles of incorporation or these bylaws, the president shall be the chief
executive officer and general manager of the corporation. He shall preside at
all meetings of the shareholders and, in the absence of the chairman of the
board or if there be none, at all meetings of the board of directors. He shall
be ex-officio a member of all the standing committees, if any, 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. Subject to such limitations as may be imposed by the board of directors,
any powers or duties vested in the president may be delegated by him to such
subordinates as he may choose.
Section 8. VICE PRESIDENT. 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.
Section 9. SECRETARY. The secretary shall keep or cause to be kept,
at the principal executive office 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, with the time and place of holding,
whether regular or special and, if special, how authorized, 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 or at the office of the corporation's transfer agent or
registrar a share register or a duplicate share
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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 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 of directors required by these bylaws or by
law to be given, and he shall keep the seal of the corporation, if the
corporation shall adopt one, in safe custody, and he shall have such other
powers and perform such other duties as may be prescribed by the board of
directors or by these bylaws.
Section 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, and retained earnings, and
records of the holders of its shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the board of directors and shall have the
authority to execute and affix the endorsement of the corporation upon any
negotiable instrument for the purpose of making any such deposit. He 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.
Unless another person has been appointed treasurer of the corporation pursuant
to Section 3 of this Article V, the chief financial officer shall also be known
as the treasurer.
Section 11. ASSISTANTS. If an assistant officer to any officer shall
be appointed, such assistant officer may exercise any of the powers of his
superior officer, as provided in these bylaws or as authorized by the board of
directors, and shall perform such other duties as are imposed upon him by these
bylaws or the board of directors.
ARTICLE VI
RECORDS AND REPORTS
Section 1. MAINTENANCE OF SHARE REGISTER AND INSPECTION BY
SHAREHOLDERS. The corporation shall keep at its principal executive office, or
at the office of its transfer agent or registrar if either shall have been
appointed, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of shares held by each shareholder.
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A shareholder or shareholders of the corporation holding in the
aggregate at least five percent of the outstanding voting shares of the
corporation shall have the right (i) to inspect and copy the record of
shareholders' names and addresses and shareholdings during usual business hours
up on five business days' prior written demand on the corporation and (ii) to
obtain from the transfer agent of the corporation (if one shall have been
appointed) up on written demand and up on the tender of such transfer agent's
usual charges for such list, a list of the names and addresses of the
shareholders 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 such shareholder after the date of demand.
Such list shall be made available to any such shareholder by the transfer agent
on or before five business days after the demand is received or the date
specified in the demand as the date as of which such list is to be compiled,
whichever is later. The record of shareholders shall also be open to inspection
and copying up on 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 such person's interests as a shareholder or as the
holder of a voting trust certificate. Any inspection and copying under this
Section 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.
Section 2. MAINTENANCE OF BYLAWS AND INSPECTION BY SHAREHOLDERS. The
corporation shall keep at its principal executive office, or if its principal
executive office is not in California, at its principal business office in this
state, the original or a copy of these bylaws as amended to date, which shall be
open to inspection by the shareholders at any time during usual business hours.
If the principal executive office of the corporation is outside California and
the corporation has no principal business office in California, the secretary
shall, upon the written request of any shareholder, furnish to such shareholder
a copy of these bylaws as amended to date.
Section 3. MAINTENANCE OF OTHER CORPORATE RECORDS AND INSPECTION BY
SHAREHOLDERS. The minutes of proceedings of the shareholders, the board of
directors and any committee or committees of the board of directors and the
accounting books and records shall be kept at the principal executive office or
such other place as the board of directors may direct. 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.
The minutes and the 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 such person'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 of the shareholder or holder of a voting trust certificate and
shall include the right to copy and make extracts. The rights of inspection
under this Section 3 shall extend to the records of any subsidiary corporation
of the corporation.
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Section 4. INSPECTION BY DIRECTORS. Every director shall have the
absolute right to inspect at any reasonable time all books, records and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. Any inspection by a director may be made in
person or by an agent or attorney and the right of inspection includes the right
to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to
shareholders referred to in Section 1501 of the Corporations Code of California
is expressly dispensed with, but nothing herein shall be interpreted as
prohibiting the board of directors from issuing annual or other periodic reports
to the shareholders of the corporation as it considers appropriate.
The corporation shall, upon the written request of any shareholder
made more than 120 days after the close of any fiscal year of the corporation,
deliver or mail to the shareholder making the request within 30 days thereafter
the financial statements which would be required to be included in the annual
report for such year under subdivision (a) of Section 1501 of the Corporations
Code of California. If financial statements are delivered or mailed upon the
request of a shareholder pursuant to this Section 5, copies of the same shall be
kept on file in the principal executive office of the corporation for a period
of twelve months and shall be exhibited during usual business hours, a copy
thereof mailed, to any shareholder demanding to examine the same.
Section 6. SHAREHOLDER RIGHT TO REQUEST OTHER FINANCIAL STATEMENTS.
A shareholder or shareholders holding in the aggregate at least five percent of
the outstanding shares of any class of stock of the corporation may make a
written request to the corporation for (i) an income statement of the
corporation for any three-month, six-month or nine-month period (ended more than
thirty days before the date of the request) of the then current fiscal year and
a balance sheet of the corporation as of the end of such period and (ii) if no
annual report for the last fiscal year of the corporation has been sent to the
shareholders of the corporation, the financial statements for the last fiscal
year which would have been required by the Corporations Code of California to
have been included in such annual report. Such income statement and balance
sheet shall be prepared and delivered personally or mailed by the corporation to
such shareholder within thirty days after receipt of the request therefor. If an
income statement and balance sheet is prepared upon the request of a shareholder
or shareholders pursuant to this Section 6, copies of the same shall be kept on
file in the principal executive office of the corporation for a period of twelve
months and shall be exhibited during usual business hours, or a copy thereof
mailed, to any shareholder demanding to examine the same.
ARTICLE VII
GENERAL CORPORATE MATTERS
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Section 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 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 a time in the future as a record date, which shall not be more than sixty
days before any such action, and 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 the 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 Corporations
Code of California.
If the board of directors does not fix a record date, the record date
for determining shareholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or entitled to exercise any rights
in respect of any other lawful action shall be at the close of business on the
date on which the board adopts the applicable resolution authorizing such action
or the sixtieth day before the date of such action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts or other orders for payment of money or notes or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as shall be
determined, from time to time, by resolution of the board of directors.
Section 3. CORPORATE CONTRACTS, ETC., 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, and such authority
may be general or confined to specific instances; and, 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.
Section 4. FISCAL YEAR. The fiscal year of the corporation shall be
such as shall be determined, from time to time, by resolution of the board of
directors.
Section 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
chairman of the board, the president or any vice president of the corporation or
any other person authorized by resolution of the board of directors or by any of
the foregoing designated officers is 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, foreign or domestic, standing in the name of
the corporation. The authority granted to such persons to vote or represent on
behalf of the corporation any and all shares held by the corporation in any
other
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corporation or corporations may be exercised by any of them in person or
by any person authorized to do so by a proxy duly executed by any of them.
ARTICLE VIII
CAPITAL STOCK
Section 1. CERTIFICATES FOR SHARES. A certificate or certificates
for shares of the capital stock of the corporation, certifying the number of
shares and the class or series of shares owned by a shareholder, shall be issued
to each shareholder when such shares are fully, paid. Certificates may be issued
prior to full payment under such restrictions and for such purposes as may be
authorized by the board of directors; provided, however, that any certificate so
issued prior to full payment shall state on the face thereof the total amount of
the consideration to be paid for the shares represented thereby and the amount
paid thereon.
All certificates shall be signed in the name of the corporation by the
chairman or 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. Any or all of the signatures on the certificate may be
facsimile. If any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on a certificate shall have ceased to be
such 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.
Section 2. TRANSFER OF SHARES. Subject to the balance of this
Article VIII, upon surrender to the corporation or its transfer agent of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, a new certificate shall be
issued to the person entitled thereto, the old certificate shall be canceled and
the transfer shall be recorded upon the books of the corporation.
Section 3. LOST OR DESTROYED CERTIFICATES. In the event that any
share certificate or certificate for any other security is, or is claimed to be,
lost, stolen or destroyed, the corporation may authorize the issuance of a
replacement certificate on such terms and conditions as the president, any vice
president, the chief financial officer or the secretary may require, including
provision for 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.
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ARTICLE IX
AMENDMENTS
Section 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, the authorized number of
directors may be changed only by an amendment of the articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article IX to adopt, amend or
repeal bylaws, bylaws may be adopted, amended or repealed by the board of
directors; provided, however, that the board of directors may adopt a bylaw or
amendment of a bylaw changing the authorized number of directors only for the
purpose of fixing the exact number of directors within the limits specified in
the articles of incorporation or in Section 2 of Article III hereof.
Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw
is adopted it shall be copied in the original bylaws in the appropriate place.
If any bylaw is repealed, the fact of repeal and the date of the meeting at
which the repeal was enacted or the date the written consent was effective shall
be stated in the original bylaws.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of FUTURE MEDIA
PRODUCTIONS, INC., a California corporation; and
2. That the foregoing Amended and Restated Bylaws constitute the
Bylaws of said corporation as duly adopted on August 25, 1998.
IN WITNESS WHEREOF, I have executed this certificate on this 25th day
of August, 1998.
/S/ DAWN DODSON
-----------------------------------
Secretary
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