Exhibit 3.2
BYLAWS
OF
INTEVAC, INC.
Revised Effective October 26, 2006
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TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES
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1
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Section 1.
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PRINCIPAL OFFICES
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1
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Section 2.
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OTHER OFFICES
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1
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ARTICLE II MEETINGS OF SHAREHOLDERS
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1
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Section 1.
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PLACE OF MEETINGS
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1
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Section 2.
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ANNUAL MEETING
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1
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Section 3.
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SPECIAL MEETING
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1
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Section 4.
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NOTICE OF SHAREHOLDERS MEETINGS
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2
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Section 5.
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ADVANCE NOTICE OF SHAREHOLDER NOMINEES AND SHAREHOLDER BUSINESS
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2
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Section 6.
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MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
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4
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Section 7.
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QUORUM
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5
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Section 8.
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ADJOURNED MEETING; NOTICE
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5
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Section 9.
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VOTING
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5
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Section 10.
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WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS
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6
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Section 11.
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SHAREHOLDER ACTION
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6
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Section 12.
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RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS
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6
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Section 13.
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PROXIES
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7
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Section 14.
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INSPECTORS OF ELECTION
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7
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Section 15.
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ORGANIZATION
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8
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ARTICLE III DIRECTORS
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8
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Section 1.
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POWERS
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8
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Section 2.
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NUMBER OF DIRECTORS
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9
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Section 3.
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ELECTION AND TERM OF OFFICE OF DIRECTORS
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9
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Section 4.
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VACANCIES
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9
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Section 5.
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PLACE OF MEETINGS AND MEETINGS BY TELEPHONE
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10
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Section 6.
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ANNUAL MEETING
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10
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Section 7.
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OTHER REGULAR MEETINGS
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10
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Section 8.
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SPECIAL MEETINGS
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10
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Section 9.
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QUORUM
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11
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Section 10.
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WAIVER OF NOTICE
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11
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Section 11.
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ADJOURNMENT
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11
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Section 12.
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NOTICE OF ADJOURNMENT
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11
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Section 13.
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ACTION WITHOUT MEETING
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11
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Section 14.
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FEES AND COMPENSATION OF DIRECTORS
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11
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TABLE OF CONTENTS
(continued)
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Page
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ARTICLE IV COMMITTEES
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12
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Section 1.
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COMMITTEES OF DIRECTORS
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12
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Section 2.
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MEETINGS AND ACTION OF COMMITTEES
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12
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ARTICLE V OFFICERS
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13
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Section 1.
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OFFICERS
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13
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Section 2.
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ELECTION OF OFFICERS
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13
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Section 3.
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SUBORDINATE OFFICERS
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13
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Section 4.
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REMOVAL AND RESIGNATION OF OFFICERS
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13
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Section 5.
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VACANCIES IN OFFICES
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13
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Section 6.
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CHAIRMAN OF THE BOARD
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13
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Section 7.
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PRESIDENT
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13
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Section 8.
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VICE PRESIDENTS
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14
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Section 9.
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SECRETARY
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14
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Section 10.
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CHIEF FINANCIAL OFFICER
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14
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Section 11.
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APPROVAL OF LOANS TO OFFICERS
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15
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ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
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15
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Section 1.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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15
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Section 2.
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INDEMNIFICATION OF EMPLOYEES AND OTHERS
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15
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Section 3.
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PAYMENT OF EXPENSES IN ADVANCE
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16
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Section 4.
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INDEMNITY NOT EXCLUSIVE
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16
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Section 5.
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INSURANCE INDEMNIFICATION
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16
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Section 6.
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CONFLICTS
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16
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ARTICLE VII GENERAL CORPORATE MATTERS
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16
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Section 1.
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RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
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16
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Section 2.
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CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS
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17
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Section 3.
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CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED
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17
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Section 4.
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CERTIFICATES FOR SHARES
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17
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Section 5.
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LOST CERTIFICATES
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17
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Section 6.
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REPRESENTATION OF SHARES OF OTHER CORPORATIONS
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18
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Section 7.
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CONSTRUCTION AND DEFINITIONS
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18
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ARTICLE VIII AMENDMENTS
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18
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Section 1.
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AMENDMENT BY SHAREHOLDERS
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18
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Section 2.
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AMENDMENT BY DIRECTORS
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18
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BYLAWS
OF
INTEVAC, INC.
ARTICLE I
OFFICES
Section 1.
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 fix and designate a
principal business office in the State of California.
Section 2.
OTHER OFFICES
. The Board of Directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1.
PLACE OF MEETINGS
. Meetings of shareholders shall be held at any place
within or outside the State of California designated by the Board of Directors. In the absence of
any such designation, shareholders meetings shall be held at the principal executive office of the
corporation.
Section 2.
ANNUAL MEETING
. The annual meeting of shareholders shall be held each year
on such 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.
Section 3.
SPECIAL MEETING
. A special meeting of the shareholders may be called at
any time by the Board of Directors, or by the chairman of the Board, or by the president, or by one
or more shareholders holding shares in the aggregate entitled to cast not less than ten percent
(10%) of the votes at that meeting.
If a special meeting is called by any person or persons other than the Board of Directors, the
request shall be in writing, specifying the time of such meeting and the general nature of the
business proposed to be transacted, and shall be delivered personally or sent by registered mail or
by telegraphic or other facsimile transmission to the chairman of the Board, the president, any
vice president, or the secretary of the corporation. The officer receiving the request shall cause
notice to be promptly given to the shareholders entitled to vote, in accordance with the provisions
of
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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. At a special
meeting of the shareholders, only such business shall be conducted as shall have been properly
brought before the meeting. 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.
Section 4.
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) (or, if sent by third-class mail, thirty (30) days) nor more than sixty (60) days before the
date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in
the case of a special meeting, the general nature of the business to be transacted, or (ii) in the
case of the annual meeting, those matters which the Board of Directors, at the time of giving the
notice, intends to present for action by the shareholders. The notice of any meeting at which
Directors are to be elected shall include the name of any nominee or nominees whom, at the time of
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 (the Code), (ii) an amendment of the Articles of Incorporation,
pursuant to Section 902 of that Code, (iii) a reorganization of the corporation, pursuant to
Section 1201 of that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of that Code, or (v) a distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, pursuant to Section 2007 of that Code, the notice shall also state
the general nature of that proposal.
Section 5.
ADVANCE NOTICE OF SHAREHOLDER NOMINEES AND SHAREHOLDER BUSINESS
.
(a) At an annual meeting of the shareholders, only such business shall be conducted as shall
have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be: (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii)
otherwise properly brought before the meeting by or at the direction of the Board of Directors, or
(iii) otherwise properly brought before the meeting by a shareholder.
For business to be properly brought before an annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the secretary of the corporation, in proper
form, of the shareholders intent to bring such business before such meeting. To be timely, a
shareholders notice must be delivered to or mailed and received at the principal executive offices
of the corporation not less than one hundred twenty (120) calendar days before the one year
anniversary of the date on which the corporation first mailed its proxy statement to shareholders
in
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connection with the previous years annual meeting of shareholders; provided, however, that in
the event that no annual meeting was held in the previous year or the date of the annual meeting
has been changed by more than thirty (30) days from the date contemplated at the time of the
previous years proxy statement, notice by the shareholder to be timely must be so received not
later than the close of business on the later of one hundred twenty (120) calendar days in advance
of such annual meeting or ten (10) calendar days following the date on which public announcement of
the date of the meeting is first made. In no event shall the public announcement of an adjournment
of a shareholders meeting commence a new time period for the giving of shareholders notice as
described above.
To be in proper form, a shareholders notice to the secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting: (A) a brief description of the
business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (B) the name and address, as they appear on the corporations
books, of the shareholder proposing such business, (C) the class and number of shares of the
corporation that are beneficially owned by the shareholder, and a representation that the
shareholder is a holder of record of stock of the corporation entitled to vote at such meeting, (D)
any material interest of the shareholder in such business, and (E) any other information that is
required to be provided by the shareholder pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, in his capacity as a proponent to a shareholder proposal. Notwithstanding
the foregoing, in order to include information with respect to a shareholder proposal in the proxy
statement and form of proxy for a shareholders meeting, shareholders must provide notice as
required by the regulations promulgated under the Securities Exchange Act of 1934, as amended.
Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at
any annual meeting except in accordance with the procedures set forth in this paragraph (a). The
chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting in accordance with the provisions of this
paragraph (a), and, if he should so determine, he shall so declare at the meeting that any such
business not properly brought before the meeting shall not be transacted.
(b) Only persons who are nominated in accordance with the procedures set forth in this
paragraph (b) shall be eligible for election as Directors. Nominations of persons for election to
the Board of Directors of the corporation may be made at a meeting of shareholders by or at the
direction of the Board of Directors or by any shareholder of the corporation entitled to vote in
the election of Directors at the meeting who complies with the notice procedures set forth in this
paragraph (b). Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the secretary of the corporation
in accordance with the provisions of paragraph (a) of this Section 5. Such shareholders notice
shall set forth (i) as to each person, if any, whom the shareholder proposes to nominate for
election or re-election as a Director: (A) the name, age, business address and residence address of
such person, (B) the principal occupation or employment of such person, (C) the class and number of
shares of the corporation that are beneficially owned by such person, (D) a description of all
arrangements or understandings between the shareholder and each nominee and any other person or
persons (naming
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such person or persons) pursuant to which the nominations are to be made by the
shareholder, and (E) any other information relating to such person that is required to be
disclosed in solicitations of proxies for elections of Directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including
without limitation such persons written consent to being named in the proxy statement, if any, as
a nominee and to serving as a Director if elected); and (ii) as to such shareholder giving notice,
the information required to be provided pursuant to paragraph (a) of this Section 5. At the request
of the Board of Directors, any person nominated by a shareholder for election as a Director shall
furnish to the secretary of the corporation that information required to be set forth in the
shareholders notice of nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the corporation unless nominated in accordance with the procedures set
forth in this paragraph (b). The chairman of the meeting shall, if the facts warrant, determine
and declare at the meeting that a nomination was not made in accordance with the procedures
prescribed by these bylaws, and if he should so determine, he shall so declare at the meeting, and
the defective nomination shall be disregarded.
These provisions shall not prevent the consideration and approval or disapproval at an annual
meeting of reports of officers, Directors and committees of the Board of Directors, but in
connection therewith no new business shall be acted upon at any such meeting unless stated, filed
and received as herein provided. Notwithstanding anything in these bylaws to the contrary, no
business brought before a meeting by a shareholder shall be conducted at an annual meeting except
in accordance with procedures set forth in this Section 5.
Section 6.
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
. Notice of any meeting of
shareholders shall be given either personally or by first-class mail (unless the corporation has
500 or more shareholders determined as provided by the California Corporations Code on the record
date for the meeting, in which case notice may be sent by third-class mail) or telegraph or other
written communication, charges prepaid, addressed to the shareholder at the address of that
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 corporations books or is
given, notice shall be deemed to have been given if sent to that shareholder by first-class mail or
telegraphic or other written communication to the corporations principal executive office, or if
published at least once in a newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when delivered personally or
deposited in the mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of that shareholder appearing on the
books of the corporation is returned to the corporation by the United States Postal Service marked
to indicate that the United States Postal Service is unable to deliver the notice to the
shareholder at that address, all future notices or reports shall be deemed to have been duly given
without further mailing if these shall be available to the shareholder on written demand of the
shareholder at the principal executive office of the corporation for a period of one year from the
date of the giving of the notice.
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Any 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 the notice, and shall be filed and maintained in the minute book of the corporation.
Section 7.
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.
Section 8.
ADJOURNED MEETING; NOTICE
. Any shareholders meeting, annual or special,
whether or not a quorum is present, may be adjourned from time to time by the vote of the majority
of the shares represented at that meeting, either in person or by proxy, but in the absence of a
quorum, no other business may be transacted at that meeting, except as provided in Section 6 of
this Article II.
When any meeting of shareholders, either annual or special, is adjourned to another time or
place; notice need not be given of the adjourned meeting if the time and place are announced at 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 shall be given to each shareholder of record entitled to vote at the
adjourned meeting in accordance with the provisions of Sections 4 and 5 of this Article II. At any
adjourned meeting the corporation may transact any business which might have been transacted at the
original meeting.
Section 9.
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).
The voting at all meetings of shareholders need not be by ballot, but any qualified
shareholder before the voting begins may demand a stock vote whereupon such stock vote shall be
taken by ballot, each of which shall state the name of the shareholder voting and the number of
shares voted by such shareholder, and if such ballot be cast by a proxy, it shall also state the
name of such proxy.
At any meeting of the shareholders, every shareholder having the right to vote shall be
entitled to vote in person, or by proxy appointed in a writing subscribed by such shareholder and
bearing a date not more than eleven (11) months prior to said meeting, unless the writing states it
is irrevocable and is held by a person specified in Section 705(e) of the California Corporations
Code, in which event it is irrevocable for the period specified in said writing.
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Except as otherwise provided in the Articles of Incorporation, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a vote of
shareholders. No shareholder shall be entitled to cumulate such shareholders votes for any
Director. The preceding sentence of this provision shall become effective only when the
corporation becomes a listed corporation within the meaning of Section 301.5 of the California
Corporations Code.
Section 10.
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 a meeting had been duly held after regular call and notice, if a
quorum be present either in person or by proxy, and if, either before or after the meeting, each
person entitled to vote, who was not present in person or by proxy, signs a written waiver of
notice or a consent to a holding of the meeting, or an approval of the minutes. 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 the 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 by a person at a meeting shall also constitute a waiver of notice of that meeting,
except when the person objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters not included in the notice of
the meeting if that objection is expressly made at the meeting.
Section 11.
SHAREHOLDER ACTION
. Any action required or permitted to be taken by the
holders of the Common Stock or Preferred Stock of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any consent in writing by such
holders other than a written consent at such a meeting.
Section 12.
RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS
. For
purposes of determining the shareholders entitled to give consent to corporate action without a
meeting, the Board of Directors may fix, in advance, a record date, which shall not be more than
sixty (60) days nor less than ten (10) days before the date of any such meeting, and in this event
only shareholders of record on the date so fixed are entitled to notice and to vote or to give
consents, as the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in California General Corporations
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 a vote at a
meeting of shareholders shall be at the close of business on the business date 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.
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(b) The record date for determining shareholders for any other purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution relating thereto, or
the sixtieth (60th) day before the date of such other action, whichever is later.
Section 13.
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 shareholders name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the shareholders
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, before the vote
pursuant to that proxy, by a writing delivered to the corporation stating that the proxy is
revoked, or by a subsequent proxy 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 that proxy is received by the corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the
date of the proxy, unless otherwise provided in the proxy. The revocability of a proxy that states
on its face that it is irrevocable shall be governed by the provisions of Sections 705(e) and
705(f) of the Corporations Code of California.
Section 14.
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 shareholders 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 shareholders proxy 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;
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(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or vote with fairness to all
shareholders.
Section 15.
ORGANIZATION
The chairman of the Board, or in the absence of the chairman, the president, or in the absence
of the chairman and the president, any vice president, shall call the meeting of the shareholders
to order, and shall act as chairman of the meeting. In the absence of the chairman of the Board,
the president, and all of the vice presidents, the shareholders shall appoint a chairman for such
meeting. The chairman of any meeting of shareholders shall determine the order of business and the
procedures at the meeting, including such matters as the regulation of the manner of voting and the
conduct of business. The secretary of the corporation shall act as secretary of all meetings of
the shareholders, but in the absence of the secretary at any meeting of the shareholders, the
chairman of the meeting may appoint any person to act as secretary of the meeting.
The Board of Directors of the corporation shall be entitled to make such rules or regulations
for the conduct of meetings of shareholders as it shall deem necessary, appropriate or convenient.
Subject to such rules and regulations of the Board of Directors, if any, the chairman of the
meeting shall have the right and authority to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient
for the proper conduct of the meeting, including, without limitation, establishing (i) an agenda or
order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on participation in such meeting to shareholders
of record of the corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants and regulation of the opening and closing of the polls for balloting and
matters which are to be voted on by ballot. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of shareholders shall not be required to be held
in accordance with rules of parliamentary procedure.
ARTICLE III
DIRECTORS
Section 1.
POWERS
. Subject to the provisions of the California General Corporation
Law and any limitation in the Articles of Incorporation and these Bylaws relating to action
required to be approved by the shareholders or by the outstanding shares, the business and affairs
of the corporation shall be managed and all corporate powers shall be exercised by or under the
direction of the Board of Directors.
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Without prejudice to these general powers, and subject to the same limitations, the Directors
shall have the power to:
(a) Select and remove all officers, agents, and employees of the corporation; prescribe any
powers and duties for them that are consistent with law, with the Articles of Incorporation, and
with these Bylaws; fix their compensation; and require from them security for faithful service.
(b) 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 country and conduct business within or without the State
of California; and designate any place within or without the State of California for the holding of
any shareholders meeting, or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of certificates of stock; and
alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation on any lawful terms, in
consideration of money paid, labor done, services actually rendered, debts or securities cancelled,
or tangible or intangible property actually received.
(e) Borrow money and incur indebtedness on behalf of the corporation, and cause to be executed
and delivered for the corporations purposes, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
Section 2.
NUMBER OF DIRECTORS
. The number of Directors of the corporation shall be
no less than five (5) nor more than nine (9), the exact number of Directors to be fixed from time
to time within such limit by a duly adopted resolution of the Board of Directors or shareholders.
The exact number of Directors presently authorized shall be seven (7) until changed within the
limits specified above by a duly adopted resolution of the Board of Directors or shareholders.
Section 3.
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 qualified and elected.
Section 4.
VACANCIES
. Vacancies in the Board of Directors may be filled by a majority
of the remaining Directors, though less than a quorum, or by a sole remaining Director, except that
a vacancy created by the removal of a Director by the vote of the shareholders or by court order
may be filled only by the vote of a majority of the shares entitled to vote represented at a duly
held meeting at which a quorum is present. Each Director so elected shall hold office until the
next annual meeting of the shareholders and until a successor has been elected or qualified.
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A vacancy or vacancies in the Board of Directors shall be deemed to exist in the event of
death or resignation or removal of any Director, of if the Board of Directors by resolution
declares vacant the office of a Director who has been declared of unsound mind, by an order of
Court or convicted of a felony, or if the authorized number of Directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any Director or Directors are elected,
to elect the number of Directors to be voted for at that meeting.
Any Director may resign effective on giving written notice to the chairman of the Board, the
president, the secretary, or the Board of Directors, unless the notice specifies a later time for
the resignation to become effective. If the resignation of a Director is effective at a future
time, the Board of Directors may elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of Directors shall have the effect of removing any
Director before that Directors term of office expires.
Section 5.
PLACE OF MEETINGS AND MEETINGS BY TELEPHONE
. Regular meetings of the Board
of Directors may be held at any place within or outside the State of California that has been
designated from time to time by resolution of the Board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the corporation. Special
meetings of the Board shall be held at any place within or outside the State of California that has
been designated in the notice of the meeting or, if not stated in the notice or there is no notice,
at the principal executive office of the corporation. Any meeting, regular or special, may be held
by conference telephone or similar communication equipment, so long as all Directors participating
in the meeting can hear one another, and all such Directors shall be deemed to be present in person
at the meeting.
Section 6.
ANNUAL MEETING
. Immediately following each annual meeting of shareholders,
the Board of Directors shall hold a regular meeting for the purpose of organization, any desired
election of officers, and the transaction of other business. Notice of this meeting shall not be
required.
Section 7.
OTHER REGULAR MEETINGS
. Other regular meetings of the Board of Directors
shall be held without call at such time as shall from time to time be fixed by the Board of
Directors. Such regular meetings may be held without notice.
Section 8.
SPECIAL MEETINGS
. Special meetings of the Board of Directors for any
purpose or purposes may be called at any time by the chairman of the Board 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 that Directors address as it is shown on the records of the corporation. In case the
notice is mailed, it shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. In case the notice is mailed, it shall be deposited in the
United States mail at least four (4) days before the time of the holding of the meeting. In case
the notice is delivered personally, or
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by telephone or telegram, it shall be delivered personally
or by telephone or to the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be communicated
either to the Director or to a person at the office of the Director who the person giving the
notice has reason to believe will promptly communicate 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.
Section 9.
QUORUM
. A majority of the authorized number of Directors shall constitute
a quorum for the transaction of business, except to adjourn as provided in Section 11 of this
Article III. Every act or decision done or made by a majority of the Directors present at a
meeting duly held at which a quorum is present shall be regarded as the act of the Board of
Directors, subject to the provisions of Section 310 of the Corporations Code of California (as to
approval of contracts or transactions in which a Director has direct or indirect material financial
interest), Section 311 of that Code (as to appointment of committee), and Section 317(e) of that
Code (as to 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 that meeting.
Section 10.
WAIVER OF NOTICE
. The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice if a quorum is 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. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also
be deemed given to any Director who attends the meeting without protesting before or at its
commencement, the lack of notice to that Director.
Section 11.
ADJOURNMENT
. A majority of the Directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
Section 12.
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
hours, in which case notice of the adjourned meeting, in the manner specified in Section 8 of this
Article II, to the Directors who were not present at the time of the adjournment.
Section 13.
ACTION WITHOUT MEETING
. Any action required or permitted to be taken by
the Board of Directors may be taken without a meeting, if all members of the Board shall
individually or collectively consent in writing to that action. Such action by written consent
shall have the same force and effect as a unanimous vote of the Board of Directors. Such written
consents shall be filed with the minutes of the proceedings of the Board.
Section 14.
FEES AND COMPENSATION OF DIRECTORS
. Directors and members of committees
may receive such compensation, if any, for their services, and such reimbursement of expenses, as
may be fixed or determined by resolution of the Board of Directors. This Section 14
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shall not be
construed to preclude any Director from serving the corporation in any other capacity as an
officer, agent, employee, or otherwise, and receiving compensation for those services.
ARTICLE IV
COMMITTEES
Section 1.
COMMITTEES OF DIRECTORS
. The Board of Directors may, by resolution adopted
by a majority of the authorized number of Directors, designate one or more committees, 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 committee, to the extent provided in the resolution of
the Board, shall have all the authority of the Board, except with respect to:
(a) the approval of any action which, under the General Corporation Law of California, also
requires shareholders approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in any committee;
(c) the fixing of compensation of the Directors for serving on the Board or any committee;
(d) the amendment or repeal of Bylaws or the adoption of new Bylaws;
(e) 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
(f) the appointment of any other committees of the Board of Directors or the members of these
committees.
Section 2.
MEETINGS AND ACTION OF COMMITTEES
. Meetings and action of committees shall
be governed by, and held and taken in accordance with, the provisions of Article III of these
Bylaws, Sections 5 (place of meetings, 7 (regular meetings), 8 (special meetings and notice), 9
(quorum), 10 (waiver of notice), 11 (adjournment), 12 (notice of adjournment), and 13 (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.
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ARTICLE V
OFFICERS
Section 1.
OFFICERS
. The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may also have, at the discretion of the
Board of Directors, a chairman of the Board, one or more vice presidents, one or more assistant
secretaries, one or more chief financial officers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article V. Any number of offices may be held by
the same person.
Section 2.
ELECTION OF OFFICERS
. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be chosen by the Board of Directors, and each shall serve at the pleasure of the
Board, subject to the rights, if any, of an officer under any contract of employment.
Section 3.
SUBORDINATE OFFICERS
. 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.
Section 4.
REMOVAL AND RESIGNATION OF OFFICERS
. Subject to the rights, if any, of an
officer under any contract of employment, any officer may be removed, either with or without cause,
by the Board of Directors, at any regular or special meeting of the Board, or, except in case of an
officer chosen by the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the corporation. Any
resignation shall take effect at the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that notice, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is without prejudice to
the rights, if any, of the corporation under any contract to which the officer is a party.
Section 5.
VACANCIES IN OFFICES
. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the manner prescribed
in these Bylaws for regular appointments to that office.
Section 6.
CHAIRMAN OF THE BOARD
. The chairman of the Board, if such an officer is
elected, shall, if present, preside at meetings of the Board of Directors and exercise and perform
such other powers and duties as may be from time to time assigned to him by the Board of Directors
or prescribed by the Bylaws. 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.
Section 7.
PRESIDENT
. Subject to such supervisory powers, if any, as may be given by
the Board of Directors to the chairman of the Board, if there be such an officer, the president
shall be the
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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.
Section 8.
VICE PRESIDENTS
. In the absence or disability of the president, the vice
residents, 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, and
the president, or the chairman of the Board.
Section 9.
SECRETARY
. The secretary shall keep or cause to be kept, at the principal
executive office or such other place as the Board of Directors may direct, a book of minutes of all
meetings and actions of Directors, committees or Directors, and shareholders, with the time and
place of holding, whether regular or special, and, if special, how authorized, the notice given,
the names of those present at the Directors meetings or committee meetings, the number of shares
present or represented at shareholders meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the principal executive office or at the
office of the corporations 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 ByLaw 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.
Section 10.
CHIEF FINANCIAL OFFICER
. The chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The
books of account shall at all reasonable times be open to inspection by any Director.
The chief financial officer shall deposit all 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
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financial officer and of the financial condition of the corporation,
and shall have other power and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
Section 11.
APPROVAL OF LOANS TO OFFICERS
.
*
The corporation may, upon the
approval of the Board of Directors alone, make loans of money or property to, or guarantee the
obligations of, any officer of the corporation or its parent or subsidiary, whether or not a
Director, or adopt an employee benefit plan or plans authorizing such loans or guaranties provided
that (i) the Board of Directors determines that such a loan or guaranty or plan may reasonably be
expected to benefit the corporation, (ii) the corporation has outstanding shares held of record by
100 or more persons (determined as provided in Section 605 of the California Corporations Code) on
the date of approval by the Board of Directors, and (iii) the approval of the Board of Directors is
by a vote sufficient without counting the vote of any interested Director or Directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
Section 1.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
. The corporation shall, to the
maximum extent and in the manner not prohibited by the Code, indemnify each of its directors and
officers against expenses (as defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection with any proceeding
(as defined in Section 317(a) of the Code), arising by reason of the fact that such person is or
was an agent of the corporation. For purposes of this Article VI, a director or officer of the
corporation includes any person (i) who is or was a director or officer of the corporation, (ii)
who is or was serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or
officer of a corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
Section 2.
INDEMNIFICATION OF EMPLOYEES AND OTHERS
. The corporation shall have the
power, to the extent and in the manner not prohibited by the Code, to indemnify each of its
employees and agents (other than directors and officers) against expenses (as defined in Section
317(a) of the Code), judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the Code), arising by
reason of the fact that such person is or was an agent of the corporation. For purposes of this
Article VI, an employee or agent of the corporation (other than a director or officer) includes
any person (i) who is or was an employee or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an employee or agent of another corporation, partnership, joint
|
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|
*
|
|
This section is effective only if it has been
approved by the shareholders in accordance with Sections 315(b) and 152 of the
California Corporations Code.
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venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation which
was a predecessor corporation of the corporation or of another enterprise at the request of such
predecessor corporation.
Section 3.
PAYMENT OF EXPENSES IN ADVANCE
. Expenses incurred in defending any civil
or criminal action or proceeding for which indemnification is required pursuant to Section 6.1 or
for which indemnification is permitted pursuant to Section 6.2 following authorization thereof by
the Board of Directors shall be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to
repay such amount if it shall ultimately be determined that the indemnified party is not entitled
to be indemnified as authorized in this Article VI.
Section 4.
INDEMNITY NOT EXCLUSIVE
. The indemnification provided by this Article VI
shall not be deemed exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity while holding such
office, to the extent that such additional rights to indemnification are authorized in the Articles
of Incorporation.
Section 5.
INSURANCE INDEMNIFICATION
. The corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation against any liability asserted against or incurred by such person in
such capacity or arising out of such persons status as such, whether or not the corporation would
have the power to indemnify him against such liability under the provisions of this Article VI.
Section 6.
CONFLICTS
. Unless mandated by the law, or order, judgment or decree of any
court of competent jurisdiction, no indemnification or advance shall be made under this Article VI
in any circumstance where it appears:
(1) That it would be inconsistent with a provision of the Articles of Incorporation, these
bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of
the alleged cause of the action asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly imposed by a court in approving
a settlement.
ARTICLE VII
GENERAL CORPORATE MATTERS
Section 1.
RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
. For purposes of
determining the shareholders entitled to receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in respect of any other lawful
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action
(other than action by shareholders by written consent without a meeting), the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty (60) days before any such
action, and in that case only shareholders of record on the date so fixed are entitled to receive
the dividends, distribution or allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after the record date so
fixed, except as otherwise provided in the 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 applicable resolutions or the sixtieth (60th) day before the date of that action,
whichever is later.
Section 2.
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.
Section 3.
CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED
. The Board of Directors,
except as otherwise provided in the 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 this 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 tender it liable for any purpose or for any
amount.
Section 4.
CERTIFICATES FOR SHARES
. A certificate or certificates for shares of the
capital stock of the corporation shall be issued to each shareholder when any of these shares are
fully paid, and the Board of Directors may authorize the issuance of certificates or shares as
partly paid provided that these certificates shall state the amount of the consideration to be paid
for them and the amount paid. All certificates shall be signed in the name of the corporation by
the chairman of the Board or vice chairman of the Board or the president or vice president and by
the chief financial officer or an assistant treasurer or the secretary of 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 show facsimile signature has been placed on a certificate shall have
ceased to be that officer, transfer agent, or registrar before that certificate is issued, it may
be issued by the corporation with the same effect as if that person were an officer, transfer
agent, or registrar at the date of issuance.
Section 5.
LOST CERTIFICATES
. Except as provided in this Section 5, no new
certificates for shares shall be issued to replace an old certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The Board of Directors may, in case
any share certificate or certificate for any other security is lost, stolen, or destroyed,
authorize the issuance of a replacement certificate on 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
- 17 -
liability, on account of the alleged loss, theft, or destruction of
the certificate or the issuance of the replacement certificate.
Section 6.
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 granted to these 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 of these officers in person or by any person
authorized to do so by a proxy duly executed by these officers.
Section 7.
CONSTRUCTION AND DEFINITIONS
. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the California General Corporations
Law shall govern the construction of these Bylaws. Without limiting the generality this provision,
the singular number includes the plural, the plural number includes the singular, and the term
person includes both a corporation and a natural person.
ARTICLE VIII
AMENDMENTS
Section 1.
AMENDMENT BY SHAREHOLDERS
. New Bylaws may be adopted or these Bylaws may
be amended or repealed by the vote of holders of a majority of the outstanding shares entitled to
vote; provided, however, that if the Articles of Incorporation of the corporation set forth the
number of authorized Directors of the corporation, the authorized number of Directors may be
changed only by an amendment of the Articles of Incorporation.
Section 2.
AMENDMENT BY DIRECTORS
. Subject to the rights of the shareholders as
provided in Section 1 of this Article VIII, Bylaws, other than a Bylaw or an amendment of a Bylaw
changing the authorized number of Directors, may be adopted, amended, or repealed by the Board of
Directors.
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