B Y L A W S
OF
TRI-STAR ELECTRONICS INTERNATIONAL, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The Board of Directors by
resolution shall designate a principal executive office for the corporation at
any place where the corporation is qualified to do business.
Section 2. PRINCIPAL BUSINESS OFFICE. If the principal executive office
is located outside California, and the corporation has one or more business
offices in California, the Board of Directors shall designate a principal
business office in the State of California.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of shareholders shall be held
either at the principal executive office or at any other place within or without
the State of California which may be designated by the Board of Directors or by
the written consent of all shareholders entitled to vote at such meeting given
either before or after the meeting and filed with the Secretary of the
corporation.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders shall be
held on such date as may be set by the Board of Directors therefor. At such
meetings directors shall be elected, reports of the affairs of the corporation
shall be considered and any other business may be transacted which is within the
powers of the shareholders.
Section 3. NOTICE OF ANNUAL MEETINGS. Written notice of each annual
meeting shall be given to each shareholder entitled to vote, either personally
or by mail or other means of written communication, charges prepaid, addressed
to such shareholder at the address of the shareholder appearing on the books of
the corporation or given by the shareholder to the corporation for the purpose
of notice. If no address appears on the records of the corporation or is so
given, notice shall be deemed to have been given if sent by mail or other means
of written communication addressed to the place where the principal executive
office of the corporation is situated or if published at least once in some
newspaper of general circulation in the county in which such
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office is located. All such notices shall be sent to each shareholder entitled
thereto not less than 10 nor more than 60 days before each annual meeting, and
shall specify the place, the day and the hour of such meeting, and shall state
those matters which the Board, at the time of mailing of the notice, intends to
present for action by the shareholders. If any notice or report addressed to
the shareholder at the shareholder's address appearing on the books of the
corporation is returned to the corporation by the United States Postal Service
marked to indicate that it is unable to deliver the notice or report to the
shareholder, all future notices or reports shall be deemed to have been duly
given if they are made available to the shareholder at the principal executive
office of the corporation for a period of one year from the date of the giving
of the notice or report to all other shareholders.
An affidavit of the mailing or other means of giving notice of any
shareholders' meeting shall be executed by the Secretary, Assistant Secretary,
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation or with the corporate
records.
Section 4. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes whatsoever, may be called at any time by the Chief
Executive Officer, or by the Board of Directors, or by the Chairman of the Board
(if any), or by one or more shareholders holding in the aggregate not less than
one-tenth of the voting power of the corporation. Notice of such special
meeting shall be given in the same manner as for annual meetings of
shareholders. Notices of any special meeting shall specify the place, day and
hour of such meeting and the general nature of the business to be transacted,
and no other business may be transacted.
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 mail or by telegraphic or other
facsimile transmission to the Chairman of the Board (if any), the President (if
any), the Chief Executive Officer or the Secretary of the corporation. The time
specified for such meeting shall be not less than 35 nor more than 60 days after
the date of receipt of such request by one of the officers specified in the
preceding sentence. The officer receiving the request shall cause notice to be
promptly given to all shareholders entitled to vote at such meeting that a
meeting will be held at the time requested by the person or persons calling the
meeting.
Section 5. SPECIAL NOTICE REQUIRED. The notice of any meeting at which
directors are to be elected shall include the names of nominees intended at the
time of notice to be presented
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by management for election. If action is proposed to be taken at any meeting to
obtain the approval of the shareholders pursuant to Section 310 (transactions
between the corporation and one or more of the directors), Section 902
(amendment of the Articles of Incorporation), Section 1201 (reorganization),
Section 1900 (voluntary dissolution), or Section 2007 (plan of distribution upon
dissolution) of the California General Corporation Law, the notice of meeting
shall state the general nature of that proposal.
Section 6. ADJOURNED MEETINGS 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 a majority of the shares represented thereat
either in person or by proxy.
It shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting, other than by announcement at
the meeting at which such adjournment is taken; PROVIDED, HOWEVER, that if after
the adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given as in the case of an original meeting. If
any meeting is adjourned for more than 45 days from the date set for the
original meeting, a new record date shall be fixed or established in accordance
with Section 1 of Article VI of these Bylaws.
Section 7. VOTING. Subject to the provisions of Sections 702 through 704
of the California General Corporation Law, the only persons entitled to vote at
any meeting of the shareholders are those persons in whose names shares entitled
to vote stand on the share records of the corporation at the close of business
on the record date for voting purposes as fixed or established in accordance
with Section 1 of Article VI of these Bylaws. Such vote may be by voice or by
ballot; provided, however, that all elections for directors must be by ballot
upon demand made by a shareholder at any election and before the voting begins.
Subject to the following two sentences, every shareholder entitled to vote at
any election for directors shall have the right to cumulate votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the shares held by such shareholder
are normally entitled, or to distribute votes on the same principle among as
many candidates as the shareholder shall think fit. No shareholders shall be
entitled to cumulate votes unless such candidate's or candidates' names have
been placed in nomination prior to the voting and the shareholder has given
notice at the meeting, prior to the voting, of the shareholder's intention to
cumulate votes. If any shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination. The candidates receiving the
highest number of
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votes, up to the number of directors to be elected, shall be elected.
Section 8. QUORUM. A majority of the shares entitled to vote, represented
in person or by proxy, 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. If a quorum is present, the affirmative vote
of a majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by law or
the Articles of Incorporation.
Section 9. WAIVER OF NOTICE. 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 is present either in person or by proxy, and if, either
before or after the meeting, each of the persons entitled to vote, not present
in person or by proxy, signs a written waiver of notice, or a consent to the
holding of such meeting, or an approval of the minutes thereof. Attendance of a
person at a meeting shall constitute a waiver of notice of and presence at such
meeting, except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by law to be included in the
notice but not so included, if such objection is expressly made at the meeting.
The Secretary shall cause all such waivers, consents or approvals to be filed
with the corporate records or made a part of the minutes of the meeting.
Neither the business to be transacted at nor the purpose of any regular or
special meeting of shareholders need be specified in any written waiver of
notice, consent to the holding of the meeting or approval of the minutes
thereof; PROVIDED, HOWEVER, that any shareholder approval at a meeting, other
than by unanimous approval of those entitled to vote, pursuant to those sections
of the California General Corporation Law specified in Section 5 of Article II
of the Bylaws shall be valid only if the general nature of the proposal so
approved is stated in any written waiver of notice.
Section 10. SHAREHOLDERS' CONSENT TO ACTION. Any action which, under any
provision of the California General Corporation Law, may be taken at a meeting
of the shareholders may be taken
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without a meeting and without prior notice if a consent in writing, setting
forth the action 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. Directors may not be elected by written consent except
by unanimous written consent of all shares entitled to vote for the election of
directors; PROVIDED, HOWEVER, that a director may be elected to fill a vacancy
on the Board of Directors, however caused, by the written consent of the holders
of a majority of the outstanding shares entitled to vote for the election of
directors. The Secretary shall cause all such consents to be filed with the
corporate records. Any shareholder giving a written consent, a transferee of
such shareholder, a personal representative of such shareholder or their
respective proxyholders may revoke the written consent of such shareholder by a
writing received by the Secretary of the corporation before written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
In the case of shareholder approval pursuant to Section 310 (transactions
between the corporation and one or more of the directors), Section 317
(indemnification of an officer, director or employee), Section 1201
(reorganization), or Section 2007 (plan of distribution upon dissolution) of the
California General Corporation Law, the notice shall be given at least 10 days
before the consummation of any action authorized by that approval.
Section 11. PROXIES. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. No proxy
shall be valid after the expiration of 11 months from the date of its execution
unless otherwise provided in the proxy.
Section 12. 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 the Board of Directors does so appoint inspectors of
election, it shall determine whether the number of such inspectors shall be
one or three. If no inspectors of election are so appointed, the chairman of
the meeting may, and on the request of any person entitled to vote at the
meeting shall, appoint inspectors of election at the meeting. If inspectors
are appointed by the chairman of the meeting
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without a request from a person entitled to vote at the meeting, the chairman
shall determine if the number of inspectors shall be one or three. If
inspectors are appointed at a meeting at the request of one or more persons
entitled to vote thereat, the majority of shares represented in person or by
proxy 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 person
entitled to vote at the meeting shall, appoint a person to fill that vacancy.
These inspectors 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) Count and tabulate all votes or consents.
(e) Determine when the polls shall close.
(f) Determine the result.
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the limitations of the Articles of
Incorporation, these Bylaws and the California General Corporation Law, 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.
The Board may delegate the management of the day-to-day operation of the
business of the corporation to a management company or any other person provided
that the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised under the ultimate direction of the Board.
Section 2. COMMITTEES OF THE BOARD. The Board of Directors may designate,
by resolution adopted by a majority of the authorized number of directors, one
or more committees, 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, and such alternate members
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may replace any absent member at any meeting of the committee. The appointment
of members or alternate members of a committee requires the vote of a majority
of the authorized number of directors. Any such committee, 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 plan to lend money to, or guarantee any
obligation of or otherwise assist any officer or director of the
corporation.
(b) The approval of any amendment to the Articles of Incorporation
after any shares have been issued.
(c) The approval of any sale, lease, conveyance, exchange, transfer
or other disposition of all or substantially all of the assets of the
corporation other than in the usual and regular course of its business.
(d) The approval of a plan of reorganization or any amendment
thereto.
(e) The approval of a plan of distribution upon the winding up of the
corporation if both preferred and common shares are outstanding and the
plan of distribution is not in accordance with the liquidation rights of
the preferred shares as specified in the Articles of Incorporation.
(f) The filling of vacancies on the Board or on any committee of the
Board.
(g) The fixing of compensation of the directors for serving on the
Board or on any committee of the Board.
(h) The amendment or repeal of Bylaws or the adoption of new Bylaws.
(i) The amendment or repeal of any resolution of the Board which by
its express terms is not so amendable or repealable.
(j) 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.
(k) The appointment of other committees of the Board or members
thereof.
(l) The approval of any action for which the California General
Corporation Law also requires
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shareholders' approval or approval of the outstanding shares.
Meetings and action of committees shall be governed by, and held and taken
in accordance with, the provisions of Article III of these Bylaws, Sections 4
(quorum), 7 (place of meetings), 9 (regular meetings), 10 (special meetings and
notice), 11 (notice of adjournment), 12 (adjournment), and 14 (action without
meeting), with such changes in the context of those Bylaws as are necessary to
substitute the committee and its members for the Board of Directors and its
members, except that the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee. Special meetings of committees may also be called by resolution
of the Board of Directors, and 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.
Section 3. NUMBER OF DIRECTORS. The authorized number of directors of the
corporation shall be no less than one and no more than five, and shall be set by
the Board of Directors by adoption of a resolution with respect thereto.
Section 4. QUORUM. Except as hereinafter provided, a majority of the
then-authorized number of directors shall be necessary to constitute a quorum
for the transaction of business. 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 be required by law, the Articles of Incorporation or 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 required quorum for such meeting. Members of the
Board may participate in a meeting through the use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Participation in a meeting in this manner shall
constitute presence in person at such meeting.
Section 5. ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of 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. All directors shall hold
office until their respective successors are elected and qualified.
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Section 6. RESIGNATIONS, VACANCIES AND REMOVAL. Any director may resign
at any time upon written notice to the Corporation. The resignation shall
become effective at the time specified in the notice and, unless otherwise
provided in the notice, acceptance of the resignation shall not be necessary to
make it effective.
Vacancies in the Board of Directors, except vacancies created by removal of
a director by the shareholders, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until a successor is elected at an annual
or a special meeting of the shareholders in accordance with these Bylaws.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. If the Board of Directors
accepts the resignation of a director tendered to take effect at a future time,
the Board or the shareholders may elect a successor to take office when the
resignation is to become effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
in case of the death, resignation or removal of any director, or if the
authorized number of directors is increased, or if the shareholders fail at any
annual or special 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 Board may declare vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony.
All the directors, or any individual director or directors, may be removed
from office, without cause, by the vote of the shareholders having a majority of
the voting power entitling them to elect directors in place of those to be
removed.
Section 7. PLACE OF MEETING. Regular meetings of the Board of Directors
shall be held at any place within or without the State of California which has
been designated from time to time by resolution of the Board or by written
consent of all members 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 may be held at a place so
designated, at a place designated in the notice of the meeting or, in the
absence of such designation, at the principal executive office. Directors may
participate in any meeting,
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regular or special, through the use of conference telephone or similar
communications equipment as provided in Section 4 of this Article III.
Section 8. ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting for
the purpose of organization, election of officers, appointment of an agent of
the corporation for service of process and the transaction of other business.
Notice of such meeting is hereby dispensed with.
Section 9. OTHER REGULAR MEETINGS. Other regular meetings of the Board of
Directors shall be held without call at such time as has been designated from
time to time by resolution of the Board, or by written consent of all members of
the Board. Notice of all such regular meetings of the Board of Directors is
hereby dispensed with.
Section 10. SPECIAL MEETINGS. Special meetings of the Board of Directors
for any purpose or purposes may be called at any time by the President, the
Chairman of the Board, if there is such an officer, any Vice-President, the
Secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone or facsimile to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. If the notice is
mailed, it shall be deposited in the United States mail at least 96 hours before
the time of the holding of the meeting. If the notice is delivered personally,
or by facsimile, telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least 48 hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose of the meeting nor,
if the meeting is to be held at the principal executive office of the
corporation, the place of the meeting. No notice need be given to a director
who either before or after the meeting signs a written waiver of notice, a
consent to holding the meeting or an approval of the minutes of the meeting or
who attends the meeting without protesting the lack of proper notice before or
at the commencement of the meeting. The Secretary shall cause all such waivers,
consents and approvals to be filed with the corporate records or made a part of
the minutes of the meeting.
Section 11. NOTICE OF ADJOURNMENT. If a meeting is adjourned for more
than 24 hours, notice of any adjournment to
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another time and place shall be given to the directors who were not present at
the time of the adjournment. Such notice shall be given prior to the time of
the adjourned meeting.
Section 12. ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any directors' meeting to another time and
place.
Section 13. FEES AND COMPENSATION. Directors shall not receive any salary
for their services as directors, but, by resolution of the Board, a fixed fee,
with or without expenses of attendance, may be allowed for attendance at each
meeting. 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 therefor.
Section 14. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board of Directors under any provision of the California General
Corporation Law and under these Bylaws may be taken without a meeting if all of
the directors of the corporation shall individually or collectively consent in
writing to such action. The Secretary shall cause such written consent or
consents to be filed with the minutes of the proceedings of the Board of
Directors. Such action by written consent shall have the same force and effect
as the unanimous vote of such directors.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a Chief
Executive Officer, a President, a Secretary and Chief Financial Officer (who may
also be called the "Treasurer"). The corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers
and such other officers as may be elected in accordance with the provisions of
Section 3 of this Article IV. One person may hold any two or more offices.
Section 2. ELECTION. The officers of the corporation, except such
officers as may be elected in accordance with the provisions of Section 3 or
Section 5 of this Article IV, shall be elected annually by the Board of
Directors, and each shall hold office at the pleasure of the Board until
resignation, removal, disqualification or until a successor is elected and
qualified.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may elect such
other officers as the business of the corporation may require, each of whom
shall hold office at the pleasure of the Board for such period, have such
authority and perform such
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duties as are provided in the Bylaws or as the Board of Directors may from time
to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, with or
without cause, by a majority of the directors at the time in office at any
regular or special meeting of the Board, or, except in case of an officer
elected 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 Board of
Directors, the Chief Executive Officer or the Secretary of 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.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular election to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there is
such an officer, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as from time to
time may be assigned by the Board of Directors or prescribed by the Bylaws.
Section 7. CHIEF EXECUTIVE OFFICER. Subject to the supervisory powers, if
any, delegated by the Board of Director to the Chairman of the Board, if there
is such an officer, the Chief Executive Officer shall be the chief executive
officer of the corporation. The Chief Executive Officer shall supervise, direct
and control the President, and shall preside at all meetings of the shareholders
and, in the absence of the Chairman of the Board, or if there is not such an
officer, at all meetings of the Board of Directors. The Chief Executive Officer
President shall be an ex officio member of all of the standing committees of the
Board, including the executive committee, if any.
Section 8. PRESIDENT. Subject to the supervisory powers of the Chief
Executive Officer and the control of the Board of Directors, the President shall
be the general manager and chief operating officer of the corporation and shall
have general supervision, direction and control of the business and officers of
the corporation. The President shall be an ex officio member of all of the
standing committees of the Board, including the executive committee, if any.
The President shall also have the general powers and duties of management
usually vested in the office of the president of a corporation and shall have
such
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other powers and duties as from time to time may be prescribed by the Board of
Directors or the Bylaws.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept a book
of minutes at the principal executive office or such other place as the Board of
Directors may order of all meetings of the Board of Directors, committees of the
Board 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' meetings, the number of shares present or
represented at shareholders' meetings and the proceedings thereof. Such minutes
shall be kept in written form.
The Secretary shall keep or cause to be kept at the principal executive
office or at the office of the corporation's transfer agent, 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. Such record shall be kept either in written form
or in any other form capable of being converted into written form.
The Secretary shall give or cause to be given notice of all of the meetings
of the shareholders and of the Board of Directors required by the Bylaws or by
law to be given, shall keep the seal of the corporation, if there is one, in
safe custody and shall have such other powers and perform such other duties as
from time to time may be prescribed by the Board of Directors or the Bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer (who may
also be called the "Treasurer") shall keep and maintain or cause to be kept and
maintained adequate and correct books and records of account 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 to inspection by any director at
all reasonable times.
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. The Chief Financial Officer 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 the transactions of the Chief Financial Officer and of
the financial condition of the corporation, and shall have such other powers and
perform such
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other duties as from time to time may be prescribed by the Board of Directors or
the Bylaws.
ARTICLE V
INDEMNIFICATION
Section 1. EXTENT. The corporation shall, to the fullest extent permitted
by the California General Corporation Law, indemnify each director, officer,
employee and agent of the corporation and all other persons whom the corporation
is authorized to indemnify (other than fiduciaries of any employee benefit plan
in their capacity as such fiduciaries) against (a) all expenses (including,
without limitation, attorneys' fees and disbursements), judgments, fines,
settlements and other amounts actually and reasonably incurred by such person in
connection with any threatened, pending or completed action, suit or proceeding
(other than an action or suit by or in the right of the corporation to procure a
judgment in its favor), whether civil, criminal, administrative or
investigative, or in connection with any appeal therein, or otherwise, and (b)
all expenses (including, without limitation, attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection with the defense
or settlement of any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor, or in
connection with any appeal therein, or otherwise.
Section 2. FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. The corporation shall
have the power to indemnify any trustee, investment manager or other fiduciary
of any employee benefit plan established by the corporation to the fullest
extent permitted by law.
Section 3. CONSTRUCTION OF BYLAWS. No provision of these Bylaws shall be
construed as prohibiting, denying or abrogating any of the general or specific
powers or rights conferred by the California General Corporation Law upon the
corporation or any court to furnish or award indemnification as otherwise
authorized by the California General Corporation Law or any other law now or
hereafter in effect.
ARTICLE VI
MISCELLANEOUS
Section 1. RECORD DATE. The Board of Directors may fix, in advance, a
record date for the determination of the shareholders entitled to notice of and
to vote at any meeting of shareholders or entitled to receive any dividend or
distribution, or any allotment of rights, or to exercise any rights in respect
to any other lawful action. The record date so fixed shall be not more than 60
nor less than 10 days prior to the date of such meeting nor more than 60 days
prior to any other action.
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If no record date is fixed by the Board of Directors, the record date shall
be determined as provided in this paragraph. 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 immediately preceding the day on
which notice is given or, if notice is waived, at the close of business on the
business day immediately preceding the day on which the meeting is held. The
record date for determining shareholders entitled to give consent to corporate
action in writing without a meeting, when no prior action by the Board has been
taken, shall be the day on which the first written consent is given. The record
date for determining shareholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto,
or the sixtieth day prior to the date of such other action, whichever is later.
Except as otherwise provided in the California General Corporation Law,
only shareholders of record as of the record date are entitled to notice of and
to vote at the meeting or 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.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting. The Board
shall fix a new record date if the meeting is adjourned for more than 45 days
from the date set for the original meeting.
Section 2. INSPECTION OF CORPORATE RECORDS. A shareholder or shareholders
of the corporation holding at least five percent 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 on five days' prior written demand on the corporation and
(ii) obtain from the transfer agent of the corporation, on written demand and on
the tender of such transfer agent's usual charges for such list, a list of the
names and addresses of shareholders who are entitled to vote for the election of
directors, and the shareholdings of such shareholders, as of the most recent
record date for which that list has been compiled or as of a date specified by
the shareholder after the date of demand. This list shall be made available to
any such shareholder by the transfer agent on or before the later of five
business days after the demand is received or the date specified in the demand
as the date as of which the list is to be compiled.
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The share register or duplicate share register, the books of account and
minutes of proceedings of the shareholders and the Board of Directors and of
committees of directors shall be open to inspection upon the written demand of
any shareholder or the holder of a voting trust certificate, at any reasonable
time, if for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate. Such inspection
may be made in person or by agent or attorney, and shall include the right to
make copies or extracts.
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 an agent or attorney and
the right of inspection includes the right to copy and make extracts of
documents.
Section 3. 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 the State of
California, the original or a copy of the Bylaws as amended to date, which shall
be open to inspection by any shareholder at all reasonable times during office
hours. If the principal executive office of the corporation is outside the
State of California and the corporation has no principal business office in the
State of California, the Secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of the Bylaws as amended to
date.
Section 4. CHECKS, DRAFTS. 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.
Section 5. ANNUAL REPORT. The annual report to shareholders referred to
in Section 1501 of the California General Corporation Law is hereby dispensed
with, but the Board of Directors may cause to be sent to the shareholders annual
or other periodic reports in such form as they may deem appropriate.
Section 6. 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 12 months, and
each such statement shall be exhibited at all reasonable times to any
shareholder demanding an
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examination of any such statement or a copy shall be mailed to any such
shareholder.
A shareholder or shareholders holding at least five percent in the
aggregate of the outstanding shares of any class of the corporation may make a
written request for an income statement of the corporation for the three-month,
six-month or nine-month period (of the then current fiscal year) ended more than
30 days prior to the date of the request and a balance sheet of the corporation
as of the end of such period and, in addition, if no annual report for the last
fiscal year has been sent to shareholders, an annual report for the last fiscal
year containing the statements required by Section 1501 (a) of the California
General Corporation Law. If such a request is made, the Chief Financial Officer
shall cause the requested statement or statements to be prepared, if not already
prepared, and shall deliver personally or mail the statement or statements to
the person making the request within 30 days after the receipt of the request.
The corporation shall also, on 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 that
period.
The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 7. CONTRACTS, HOW EXECUTED. The Board of Directors, except as
otherwise provided in the Bylaws, may authorize any officer, 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. If any person, acting without such authority, causes the
corporation to be liable to any third person by virtue of California General
Corporation Law Section 313, the corporation may seek to hold such person liable
to the corporation.
Section 8. SHARE CERTIFICATES. A share certificate or certificates of the
corporation shall be issued to each shareholder when any such shares are fully
paid. All such certificates shall be signed by the Chairman of the Board, if
there is such an officer, or the Chief Executive Officer or the President and by
the Chief Financial Officer or any Assistant Treasurer or the Secretary or any
Assistant Secretary. Any or all of the signatures on the certificate may be
facsimile.
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Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board of Directors or the Bylaws may
provide; provided, however, that any such certificate so issued prior to full
payment shall state the total amount of consideration to be paid therefor and
the amount paid thereon.
Section 9. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman
of the Board, if there is such an officer, the President, 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 granted to
such officers to vote or represent on behalf of the corporation any and all
shares held by the corporation of any other corporation or corporations may be
exercised by any of these officers in person or by any person authorized to do
so by a proxy duly executed by these officers.
Section 10. AMENDMENTS. These Bylaws may be amended or repealed either by
approval of the outstanding shares or by the approval of the Board of Directors;
provided, however, that a bylaw specifying or changing a fixed number or the
maximum or minimum number of directors or changing from a fixed to a variable
number of directors or vice versa may be adopted only by approval of the
outstanding shares complying, if applicable, with Section 212 of the California
General Corporation Law.
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