Exhibit 3-1 -- Amended and Restated Bylaws of Incomnet, Inc. as of September
30, 1998
AMENDED AND RESTATED
BYLAWS
OF
INCOMNET, INC.
(As of September 30, 1998)
TABLE OF CONTENTS
Page
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ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1. PRINCIPAL OFFICES. . . . . . . . . . . . . . . . . . . . . . 3
Section 2. OTHER OFFICES. . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II MEETINGS OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . 3
Section 1. PLACE OF MEETINGS. . . . . . . . . . . . . . . . . . . . . . 3
Section 2. ANNUAL MEETINGS OF SHAREHOLDERS. . . . . . . . . . . . . . . 3
Section 3. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . 3
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS.. . . . . . . . . . . . . . 3
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE . . . . . . . . 4
Section 6. QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 7. ADJOURNED MEETING AND NOTICE THEREOF . . . . . . . . . . . . 4
Section 8. VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS . . . . . 5
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING . . 5
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING
CONSENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 12. PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 13. INSPECTORS OF ELECTION. . . . . . . . . . . . . . . . . . . 6
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1. POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2. NUMBER OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . 8
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS . . . . . . . . . . 8
Section 3A. NOMINATION OF DIRECTORS. . . . . . . . . . . . . . . . . . 9
Section 4. VACANCIES. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5. PLACE OF MEETINGS AND TELEPHONIC MEETINGS. . . . . . . . . . 9
Section 6. ANNUAL MEETINGS. . . . . . . . . . . . . . . . . . . . . . . 9
Section 7. OTHER REGULAR MEETINGS . . . . . . . . . . . . . . . . . . . 9
Section 8. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . 9
Section 9. DISPENSING WITH NOTICE . . . . . . . . . . . . . . . . . . . 9
Section 10. QUORUM. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. ADJOURNMENT . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. NOTICE OF ADJOURNMENT . . . . . . . . . . . . . . . . . . . 10
Section 13. ACTION WITHOUT MEETING. . . . . . . . . . . . . . . . . . . 10
Section 14. FEES AND COMPENSATION OF DIRECTORS. . . . . . . . . . . . . 10
ARTICLE IV COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. COMMITTEES OF DIRECTORS. . . . . . . . . . . . . . . . . . . 10
Section 2. MEETINGS AND ACTION OF COMMITTEES. . . . . . . . . . . . . . 11
ARTICLE V OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2. ELECTION OF OFFICERS . . . . . . . . . . . . . . . . . . . . 11
Section 3. SUBORDINATE OFFICERS, ETC. . . . . . . . . . . . . . . . . . 11
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. . . . . . . . . . . . . 11
Section 5. VACANCIES IN OFFICES . . . . . . . . . . . . . . . . . . . . 12
Section 6. CHAIRMAN OF THE BOARD. . . . . . . . . . . . . . . . . . . . 12
Section 7. PRESIDENT. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8. VICE PRESIDENTS. . . . . . . . . . . . . . . . . . . . . . . 12
Section 9. SECRETARY. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 10. CHIEF FINANCIAL OFFICER . . . . . . . . . . . . . . . . . . 12
ARTICLE VI INDEMNIFICATION AND INSURANCE. . . . . . . . . . . . . . . . . . 13
ARTICLE VII RECORDS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER . . . . . . . . 14
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS . . . . . . . . . . . . 14
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. . . . 14
Section 4. INSPECTION BY DIRECTORS. . . . . . . . . . . . . . . . . . . 15
Section 5. ANNUAL REPORT TO SHAREHOLDERS. . . . . . . . . . . . . . . . 15
Section 6. FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . 15
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. . . . . . . . . . . 16
ARTICLE VIII GENERAL CORPORATE MATTERS. . . . . . . . . . . . . . . . . . . 16
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. . . . 16
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. . . . . . . . . . 16
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. . . . . . 16
Section 4. CERTIFICATES FOR SHARES. . . . . . . . . . . . . . . . . . . 16
Section 5. LOST CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . 16
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS . . . . . . . 17
ARTICLE IX AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1. AMENDMENT BY SHAREHOLDERS. . . . . . . . . . . . . . . . . . 17
Section 2. AMENDMENT BY DIRECTORS . . . . . . . . . . . . . . . . . . . 17
ARTICLE X GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2. CONSTRUCTION AND DEFINITIONS . . . . . . . . . . . . . . . . 17
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ARTICLE I
OFFICES
PRINCIPAL OFFICES. The Board of Directors shall fix the location of the
principal executive office of the corporation at any place within or outside the
State of California. If the principal executive office is located outside this
state, and the corporation has one or more business offices in this state, the
Board of Directors shall likewise fix and designate a principal business office
in the State of California.
OTHER OFFICES. The Board of Directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to
do business
ARTICLE II
MEETINGS OF SHAREHOLDERS
PLACE OF MEETINGS. Meetings of shareholders shall be held at any place within
or outside the State of California designated by the Board of Directors. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
ANNUAL MEETINGS OF SHAREHOLDERS. The annual meeting of shareholders shall be
held each year on a date and at a time designated by the Board of Directors. At
each annual meeting directors shall be elected and any other proper business may
be transacted.
SPECIAL MEETINGS. A special meeting of the shareholders may be called at any
time by the Board of Directors, or by the Chairman of the Board, or by the
President, or by one or more shareholders holding shares in the aggregate
entitled to cast not less than 10% of the votes at any such meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, the President, any
Vice President or the Secretary of the corporation. The officer receiving such
request forthwith shall cause notice to be given to the shareholders entitled to
vote, in accordance with the provisions of Sections 4 and 5 of this Article II,
that a meeting will be held at the time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing contained in this paragraph of this
Section 3 shall be construed as limiting, fixing or affecting the time when a
meeting of shareholders called by action of the Board of Directors may be held.
NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of shareholders shall
be sent or otherwise given in accordance with Section 5 of this Article II not
less than ten (10) nor more than sixty (60) days before the date of the meeting
being noticed. The notice shall specify the place, date and hour of the meeting
and (i) in the case of a special meeting, the general nature of the business to
be transacted, 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 which, at the time
of the notice, 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, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the Articles of Incorporation, pursuant to Section 902 of such
Code, (iii) a
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reorganization of the corporation, pursuant to Section 1201 of such Code,
(iv) a voluntary dissolution of the corporation, pursuant to Section 1900 of
such Code, or (v) a distribution in dissolution other than in accordance with
the rights of outstanding preferred shares pursuant to Section 2007 of such
Code, the notice shall also state the general nature of such proposal.
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of
shareholders shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid, 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. If no such address appears on the corporation's books or has been so
given, notice shall be deemed to have been given if sent 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 such office is located. Notice shall be deemed
to have been given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at such address, all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available to the shareholder
upon written demand of the shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of such notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, Assistant Secretary or
any transfer agent of the corporation giving such notice, and shall be filed and
maintained in the minute book of the corporation.
QUORUM. The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at any meeting of 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.
ADJOURNED MEETING AND NOTICE THEREOF. 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 such meeting, either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at such meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at a 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 (45) days from the
date set for the original meeting, in which case the Board of Directors shall
set a new record date. Notice of any such adjourned meeting, if required, 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 11. At
any adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
VOTING. The shareholders entitled to vote at any meeting of 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 voting shares held by a fiduciary,
in the name of a corporation or in joint ownership). Such vote may be by voice
vote or by ballot; provided, however, that all elections for directors must be
by ballot upon demand by a shareholder at any election and before the voting
begins. Any shareholder entitled to vote on any matter (other than the election
of directors) may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, 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. If a
quorum is present,
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the affirmative vote of the majority of the shares represented at the meeting
and voting on any matter (other than the election of directors), provided
that the shares voting affirmatively must 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 or the Articles of Incorporation.
At a shareholders' meeting involving the election of directors, no
shareholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of the shareholder's shares) unless such
candidate or candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice prior to
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such notice, then every shareholder entitled to vote
may cumulate such shareholder's votes for candidates 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 such shareholder's shares are
entitled, or distribute the shareholder's votes on the same principle among any
or all of the candidates, as the shareholder thinks fit. The candidates
receiving the highest number of votes, up to the number of directors to be
elected, shall be elected.
WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any
meeting of shareholders, either annual or special, however called and noticed,
and wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy,
and if, either before or after the meeting, each person entitled to vote, not
present in person or by proxy, signs a written waiver of notice or a consent to
a holding of the meeting, or an approval of the minutes thereof. The waiver of
notice or consent need not specify either the business to be transacted or the
purpose of any annual or special meeting of shareholders, except that if action
is taken or proposed to be taken for approval of any of those matters specified
in the second paragraph of Section 4 of this Article II, the waiver of notice or
consent shall state the general nature of such proposal. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a waiver of
notice of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if such objection is expressly made at the meeting.
SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may
be taken at any annual or special meeting of shareholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon 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 director may be
elected at any time to fill a vacancy not filled by the directors by the written
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors. All such consents shall be filed with the
Secretary of the corporation and shall be maintained in the corporate records.
Any shareholder giving a written consent, or the shareholder's proxy holders, or
a transferee of the shares or a personal representative of the shareholder or
their respective proxy holder, may revoke the consent by a writing received by
the Secretary of the corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
Such notice shall be given in the manner specified in Section 5 of this Article
II. In the case of approval of (i) contracts or transactions in which a
director has a direct or indirect financial interest, pursuant to Section 310 of
the Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of such Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of such Code, or (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares pursuant to Section 2007 of such Code, such notice shall be given at
least ten (10) days before the consummation of any such action authorized by any
such approval.
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RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS. For purposes
of determining the shareholders entitled to notice of any meeting or to vote or
entitled to give consent to corporate action without a meeting, the Board of
Directors may fix, in advance, a record date, which shall not be more than sixty
(60) days nor less than ten (10) days prior to the date of any such meeting nor
more than sixty (60) days prior to such action without a meeting, and in such
case 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 fixed as aforesaid, except as otherwise provided in the
California General Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held.
(b) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, (i) when no
prior action by the Board has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the Board has
been taken, shall be at the close of business on the day on which the Board
adopts the resolution relating thereto, or the sixtieth (60th) day prior to
the date of such other action, whichever is later.
PROXIES. Every person entitled to vote for directors or on any other matter
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the Secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the shareholder's attorney in
fact. A validly executed proxy which does not state that it is irrevocable
shall continue in full force and effect unless (i) revoked by the person
executing it, prior to the vote pursuant thereto, by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy presented
to the meeting and executed by, or attendance at the meeting and voting in
person by, the person executing the proxy; or (ii) 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, however, that no such proxy
shall be valid after the expiration of eleven (11) months from the date of such
proxy, unless otherwise provided in the proxy. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the provisions of
Section 705(e) and (f) of the Corporations Code of California.
INSPECTORS OF ELECTION. Before any meeting of shareholders, the Board of
Directors may appoint any persons other than nominees for office to act as
inspectors of election at the meeting or its adjournment. 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 (1) or
three (3). If inspectors are 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 meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall, appoint a person to
fill such vacancy.
The duties of these inspectors shall be as follows:
20.3.1 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;
20.3.2 Receive votes, ballots or consents;
20.3.3 Hear and determine all challenges and questions in any
way arising in connection with the right to vote;
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20.3.4 Count and tabulate all votes or consents;
20.3.5 Determine when the polls shall close;
20.3.6 Determine the result; and
20.3.7 Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
POWERS. Subject to the provisions of the California General Corporation Law and
any limitations in the Articles of Incorporation and these Bylaws relating to
action required to be approved by the shareholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the directors shall have the
power and authority to:
20.3.8 Select and remove all officers, agents, and employees
of the corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the Articles of Incorporation or these Bylaws, fix
their compensation, and require from them security for faithful service.
20.3.9 Change the principal executive office or the principal
business office in the State of California from one location to another;
cause the corporation to be qualified to do business in any other state,
territory, dependency, or foreign country and conduct business within or
outside the State of California; designate any place within or without the
State for the holding of any shareholders' meeting or meetings, including
annual meetings; adopt, make and use a corporate seal, and prescribe the
forms of certificates of stock, and alter the form of such seal and of such
certificates from time to time as in their judgment they may deem best,
provided that such forms shall at all times comply with the provisions of
law.
20.3.10 Authorize the issuance of shares of stock of the
corporation from time to time, upon such terms as may be lawful, in
consideration of money paid, labor done or services actually rendered,
debts or securities cancelled or tangible or intangible property actually
received.
20.3.11 Borrow money and incur indebtedness for the purposes of
the corporation, and cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor.
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NUMBER OF DIRECTORS. The number of directors of the corporation shall be not
less than five (5) nor more than nine (9). The exact number of directors shall
be seven (7) until changed, within the limits specified above, by a Bylaw
amending this Section 2, duly adopted by the Board of Directors or by the
shareholders. Such indefinite number of directors may be changed, or a definite
number fixed without provision for an indefinite number, 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 number or the minimum number of directors to a number less than
five cannot 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. No amendment may change the states maximum number of authorized directors
to a number greater than two times the stated minimum number of directors minus
one.
ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be elected at each
annual meeting of the shareholders to hold office until the next annual meeting.
Each director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified.
Section 3A. NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the procedures set forth in this Section 3A shall be eligible
for election as, and to serve as, directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of the stockholders
at which directors are to be elected (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of the giving of such stockholder's notice provided for in
this Section 3A, who shall be entitled to vote at such meeting in the election
of directors and who complies with the requirements of this Section 3A. Such
nominations, other than those made by or at the direction of the Board of
Directors. shall be preceded by timely advance notice in writing to the
Secretary of the Corporation. To be timely, a stockholders' notice shall be
delivered to, or mailed and received at, the principal executive offices of the
Corporation (i) with respect to an election to be held at the annual meeting of
the stockholders of the Corporation, not later than the close of business on the
90th day prior to the first anniversary of the preceding year's annual meeting;
PROVIDED, HOWEVER, that with respect to the annual meeting of stockholders to be
held in 1997 or in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the later of the 90th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of such meeting
is first made by the Corporation. and (ii) with respect to an election to be
held at a special meeting of stockholders of the Corporation for the election of
directors, not later than the close of business on the tenth day following the
day on which notice of the date of the special meeting was mailed to
stockholders of the Corporation or public disclosure of the date of the special
meeting was made, whichever first occurs.
Any such stockholder's notice to the Secretary of the Corporation
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or re-election as a director: (i) the name, age, business address
and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the number of shares of each class of capital
stock of the Corporation beneficially owned by such person, (iv) the written
consent of such person to having such person's name placed in nomination at the
meeting and to serve as a director if elected and (v) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, pursuant to
Regulation 14A under the Securities Exchange Act, and (y) as to the stockholder
giving the notice, (i) the name and address, as they appear on the Corporation's
books, of such stockholder and (ii) the number of shares of each class of voting
stock of the Corporation which are then beneficially owned by such stockholder.
The presiding officer of the meeting of stockholders shall determine whether the
requirements of this Section 3A have been met with respect to any nomination or
intended nomination. If the presiding officer determines that any nomination
was not made in accordance with the requirements of this Section 3A, he shall so
declare at the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 3A, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Section
3A.
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
8
vote or written consent of the shareholders or by court order may be filled
only by the vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present, or by the written consent of
holders of all outstanding shares entitled to vote. Each director so elected
shall hold office until the next annual meeting of the shareholders and until
a successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the case of the death, resignation or removal of any director, 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 be increased, or if the
shareholders fail, at any meeting of shareholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any director may resign upon giving written notice to the Chairman of
the Board, the President, the Secretary or the Board of Directors. A
resignation shall be effective upon the giving of the notice, unless the notice
specifies a later time for its effectiveness. If the resignation of a director
is effective at a future time, the Board of Directors may elect a successor to
take office when the resignation becomes effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
PLACE OF MEETINGS AND TELEPHONIC MEETINGS. Regular meetings of the Board of
Directors may be held at any place within or without the State that has been
designated from time to time by resolution of the Board. In the absence of such
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 without the State 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 such meeting can hear one another, and all such
directors shall be deemed to be present in person at such meeting.
ANNUAL MEETINGS. 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.
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.
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 or the President
or any Vice President or the Secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at his or her address as
it is shown upon the records of the corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four (4) days prior to
the time of the holding of the meeting. In case such notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours prior to
the time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated to either the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the corporation.
DISPENSING WITH 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
9
quorum be present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes thereof. 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 need not be given to
any director who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to such director.
QUORUM. A majority of the authorized number of directors shall constitute a
quorum 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 of Directors, subject to the provisions of Section 310 of
the Corporations Code of California (approval of contracts or transactions in
which a director has a direct or indirect material financial interest), Section
311 (appointment of committees), and Section 317(e) (indemnification of
directors). 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.
ADJOURNMENT. A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
NOTICE OF ADJOURNMENT. Notice of the time and place of holding an adjourned
meeting need not be given, unless the meeting is adjourned for more than
twenty-four (24) hours, in which case notice of such time and place shall be
given prior to the time of the adjourned meeting, in the manner specified in
Section 8 of this Article III, to the directors who were not present at the time
of the adjournment.
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.
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.
Nothing herein contained shall 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 such services.
ARTICLE IV
COMMITTEES
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, 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. 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:
20.3.12 the approval of any action which, under the General
Corporation Law of California, also requires shareholders' approval or
approval of the outstanding shares;
20.3.13 the filling of vacancies on the Board of Directors or
in any committee;
20.3.14 the fixing of compensation of the directors for serving
on the Board or on any committee;
20.3.15 the amendment or repeal of Bylaws or the adoption of
new Bylaws;
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20.3.16 the amendment or repeal of any resolution of the Board
of Directors which by its express terms is not so amendable or repealable;
20.3.17 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
20.3.18 the appointment of any other committees of the Board of
Directors or the members thereof.
ARTICLE V
OFFICERS
OFFICERS. The officers of the corporation shall be a President, a Secretary and
a Chief Financial Officer. The corporation may also have, at the discretion of
the Board of Directors, a Chairman of the Board, one or more Vice Presidents,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be appointed in accordance with the provisions of Section
3 of this Article V. Any number of offices may be held by the same person.
ELECTION OF OFFICERS. The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 3 of this Article
V, shall be chosen by the Board of Directors, and each shall serve at the
pleasure of the Board, subject to the rights, if any, of an officer under any
contract of employment.
SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint, and may empower
the President to appoint, such other officers as the business of the corporation
may require, each of whom shall hold office for such period, have such authority
and perform such duties as are provided in the Bylaws or as the Board of
Directors may from time to time determine.
REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of an
officer under any contract of employment, any officer may be removed, either
with or without cause, by the Board of Directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Any such resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is a party.
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VACANCIES IN OFFICES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to such office.
CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an officer be
elected, shall, if present, preside at all 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. 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
prescribed in Section 7 of this Article V.
PRESIDENT. Subject to such supervisory powers, if any, as may be given by the
Board of Directors to the Chairman of the Board, if there be such an officer,
the President shall be the Chief Executive Officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and the officers 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 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 the Bylaws.
VICE PRESIDENTS. In the absence or disability of the President, the Vice
Presidents, if any, in order of their rank as fixed by the Board of Directors
or, if not ranked, a Vice President designated by the Board of Directors, shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of Directors
or the Bylaws, the President or the Chairman of the Board if there is no
President.
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 order, 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 thereof given, the names of those
present at directors' and 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, as determined by resolution of the Board of Directors, a share
register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates 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 the Bylaws or by
law to be given, and he shall keep the seal of the corporation, if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings and shares. The books of account shall be
open at all reasonable times 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 of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, shall
render to the President and directors, whenever they request it, an account of
all of his transactions as Chief Financial Officer and of the financial
condition of the corporation, and shall have other powers and perform such other
duties as may be prescribed by the Board of Directors or the Bylaws.
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ARTICLE VI
INDEMNIFICATION AND INSURANCE
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a party to
or is threatened to be made a party to or is involuntarily involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the corporation or is or was serving (during such
person's tenure as director or officer) at the request of the corporation, any
other corporation, partnership, joint venture, trust or other enterprise in any
capacity, whether the basis of a Proceeding is an alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the corporation
to the fullest extent authorized by California General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the corporation to provide
broader indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expenses, liability and loss
(including attorneys' fees, judgments, fines, or penalties and amounts to be
paid in settlement) reasonably incurred or suffered by such person in connection
therewith. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final disposition;
provided, however, that, if California General Corporation Law requires, the
payment of such expenses in advance of the final disposition of a Proceeding
shall be made only upon receipt by the corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. No amendment to or repealof this
Article VI shall apply to or have any effect on any right to indemnification
provided hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim for indemnity under
paragraph (a) of this Section is not paid in full by the corporation within
ninety days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall also be entitled to be paid the expense of prosecuting such
claim including reasonable attorneys' fees incurred in connection therewith. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending a Proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under California General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
California General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The rights conferred in this Section shall
not be exclusive of any other rights which any director, officer, employee or
agent may have or hereafter acquire under any statute, provision of the Articles
of Incorporation, bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, to the extent the additional rights to indemnification
are authorized in the Articles of Incorporation of the corporation.
(d) INSURANCE. In furtherance and not in limitation of the powers
conferred by statute:
(i) the corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
13
corporation would have the power to indemnify the person against
that expense, liability or loss under the California General
Corporation Law.
(ii) the corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation,
letters of credit, surety bonds and/or other similar arrangements), as
well as enter into contracts providing indemnification to the full
extent authorized or permitted by law and including as part thereof
provisions with respect to any or all of the foregoing to ensure the
payment of such amounts as may become necessary to effect
indemnification as provided therein, or elsewhere.
(e) Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the corporation the expenses incurred in defending a Proceeding in advance of
its final disposition, to any employee or agent of the corporation to the
fullest extent of the provisions of this Section or otherwise with respect to
the indemnification and advancement of expenses of directors and officers of the
corporation.
ARTICLE VII
RECORDS AND REPORTS
MAINTENANCE AND INSPECTION OF SHARE REGISTER. The corporation shall keep at its
principal executive office, or at the office of its transfer agent or registrar,
if either be appointed and as determined by resolution of the Board of
Directors, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours upon five days' prior
written demand upon the corporation, and/or (ii) obtain from the transfer agent
of the corporation, upon written demand and upon the tender of such transfer
agent's usual charges for such list, a list of the shareholders' names and
addresses, who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which such list has been
compiled or as of a date specified by the shareholder subsequent to the date of
demand. Such list shall be made available to such shareholder or shareholders
by the transfer agent on or before the later of five (5) days after the demand
is received or the date specified therein as the date as of which the list is to
be compiled. The record of shareholders shall also be open to inspection upon
the written demand of any shareholder or holder of a voting trust certificate,
at any time during usual business hours, for a purpose reasonably related to
such holder'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 such demand.
MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep at its
principal executive office, or if its principal executive office is not in the
State of California at its principal business office in this state, the original
or a copy of the 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 this state and the corporation
has no principal business office in this state, the Secretary shall, upon the
written request of any shareholder, furnish to such shareholder a copy of the
Bylaws as amended to date.
MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The accounting books and
records and minutes of proceedings of the shareholders and the Board of
Directors and any committee or committees of the Board of Directors shall be
kept at such place or places designated by the Board of Directors, or, in the
absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable
14
of being converted into written form. Such minutes and accounting books and
records shall be open to inspection upon the written demand of any
shareholder or holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to such
holder's interests as a shareholder or as the holder of a voting trust
certificate. Such inspection may be made in person or by an agent or
attorney, and shall include the right to copy and make extracts. The
foregoing rights of inspection shall extend to the records of each subsidiary
corporation of the corporation.
INSPECTION BY DIRECTORS. Every director shall have the absolute right at any
reasonable time to inspect all books, records and documents of every kind and
the physical properties of the corporation and each of its subsidiary
corporations. Such inspection by a director may be made in person or by agent
or attorney and the right of inspection includes the right to copy and make
extracts.
ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in
Section 1501 of the General Corporation Law 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 corporations
as they deem appropriate.
FINANCIAL STATEMENTS. A copy of any annual financial statement and any income
statement of the corporation for each quarterly period of each fiscal year, and
any accompanying balance sheet of the corporation as of the end of each such
period, that has been prepared by the corporation shall be kept on file in the
principal executive office of the corporation for twelve (12) months and each
such statement shall be exhibited at all reasonable times to any shareholder
demanding an examination of any such statement or a copy shall be mailed to any
such shareholder.
If a shareholder or shareholders holding at least five percent (5%) of
the outstanding shares of any class of stock of the corporation make a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty (30) days prior to the date of the request, and a balance sheet
of the corporation as of the end of such period, the Chief Financial Officer
shall cause such statement to be prepared, if not already prepared, and shall
deliver personally or mail such statement or statements to the person making the
request within thirty (30) days after the receipt of such request. If the
corporation has not sent to the shareholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to such
shareholder or shareholders within thirty (30) days after such request.
The corporation also shall, upon the written request of any
shareholder, mail to the shareholder a copy of the last annual, semi-annual or
quarterly income statement which it has prepared and a balance sheet as of the
end of such period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report thereon, if any, of the independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
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ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation shall each year during
the calendar month in which its Articles of Incorporation were originally filed
with the California Secretary of State, or at any time during the immediately
preceding five (5) calendar months, file with the Secretary of State of the
State of California, on the prescribed form, a statement setting forth the
authorized number of directors, the names and complete business or residence
addresses of all incumbent directors, the names and complete business or
residence addresses of the Chief Executive Officer, Secretary and Chief
Financial Officer, the street address of its principal executive office or
principal business office in this state and the general type of business
constituting the principal business activity of the corporation, together with a
designation of the agent of the corporation for the purpose of service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
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, in advance, a
record date, which shall not be more than sixty (60) days prior to any such
action, and in such case only shareholders of record 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 fixed as aforesaid,
except as otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date, the record
date for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto,
or the sixtieth (60th) day prior to the date of such action, whichever is later.
CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts or other orders
for payment of money, 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, from time to time, shall be determined
by resolution of the Board of Directors.
CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of Directors,
except as otherwise provided in these Bylaws, may authorize any officer or
officers, 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 to any amount.
CERTIFICATES FOR SHARES. A certificate or certificates for shares of the
capital stock of the corporation shall be issued to each shareholder when any
such shares are fully paid, and the Board of Directors may authorize the
issuance of certificates or shares as partly paid provided that such
certificates shall state the amount of the consideration to be paid therefor and
the amount paid thereon. All certificates shall be signed in the name of the
corporation by the Chairman of the Board or the President or Vice President and
by the Chief Financial Officer or an Assistant Treasurer or the Secretary or any
Assistant Secretary, certifying the number of shares and the class or series of
shares owned by the shareholder. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES. Except as hereinafter in this Section 5 provided, no new
certificates for shares shall be issued in lieu of an old certificate unless the
latter is surrendered to the corporation and canceled at the same time. The
Board of Directors may in case any share certificate or certificate for any
other security is lost, stolen or
16
destroyed, authorize the issuance of a new certificate in lieu thereof, upon
such terms and conditions as the Board 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, including any expense or liability, on account of the
alleged loss, theft or destruction of such certificate or the issuance of
such new certificate.
REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of the Board, the
President, or any Vice President, or any other person authorized by resolution
of the Board of Directors or by any of the foregoing designated officers, is
authorized to vote on behalf of the corporation any and all shares of any other
corporation or corporations, foreign or domestic, standing in the name of the
corporation. The authority herein granted to said officers to vote or represent
on behalf of the corporation any and all shares held by the corporation in any
other corporation or corporations may be exercised by any such officer in person
or by any person authorized to do so by proxy duly executed by said officer.
ARTICLE IX
AMENDMENTS
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.
AMENDMENT BY DIRECTORS. Subject to the rights of the shareholders as provided
in Section I of this Article IX, Bylaws, other than a Bylaw or an amendment
thereof changing the authorized number of directors, may be adopted, amended or
repealed by the Board of Directors.
ARTICLE X
GENERAL
GOVERNING LAW. This corporation is organized under the provisions of the
California General Corporation Law (Corporations Code Sections 100-2319) as in
effect on the date of filing of its original Articles of Incorporation, namely
January 31, 1974. Upon such filing the California Secretary of State assigned
the following corporation number to this corporation: 0697800. The corporate
affairs of this corporation shall be governed by and conducted in accordance
with the provisions of the California General Corporation Law, as the same
presently exist and are from time to time hereafter amended or superseded,
except in those instances where the Articles of Incorporation or Bylaws of this
corporation, now or through amendment hereafter, may adopt alternative rules
which are permissible under the California General Corporation Law. Any
provision (or portion thereof) in these Bylaws which is not permissible under
the California General Corporation Law or is inconsistent with the Articles of
Incorporation of this corporation (as they may from time to time be amended and
supplemented) is void, but the balance of these Bylaws shall nevertheless be
valid and effective.
CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the California
General Corporation Law shall govern the construction of these Bylaws. Without
limiting the generality of the foregoing, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
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