EXHIBIT
3.2
BYLAWS
OF
FIBERSTARS,
INC.
COMPOSITE
COPY
Last
amendment: April 22, 2005
BYLAWS
OF
FIBERSTARS,
INC.
TABLE
OF CONTENTS
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Page |
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ARTICLE
I CORPORATE OFFICES |
1 |
| |
1.1 |
PRINCIPAL
OFFICE |
1 |
| |
1.2 |
OTHER
OFFICES |
1 |
|
ARTICLE
II MEETINGS OF SHAREHOLDERS |
1 |
| |
2.1 |
PLACE
OF MEETINGS |
1 |
| |
2.2 |
ANNUAL
MEETING |
1 |
| |
2.3 |
SPECIAL
MEETING |
1 |
| |
2.4 |
NOTICE
OF SHAREHOLDERS’ MEETINGS |
2 |
| |
2.5 |
MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE |
2 |
| |
2.6 |
QUORUM |
3 |
| |
2.7 |
ADJOURNED
MEETING; NOTICE |
3 |
| |
2.8 |
VOTING |
4 |
| |
2.9 |
VALIDATION
OF MEETINGS; WAIVER OF NOTICE; CONSENT |
5 |
| |
2.10 |
SHAREHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
5 |
| |
2.11 |
RECORD
DATE FOR SHAREHOLDER NOTICE;VOTING; GIVING CONSENTS |
5 |
| |
2.12 |
PROXIES |
6 |
| |
2.13 |
INSPECTORS
OF ELECTION |
6 |
| |
3.1 |
POWERS |
7 |
| |
3.2 |
NUMBER
OF DIRECTORS |
7 |
| |
3.3 |
ELECTION
AND TERM OF OFFICE OF DIRECTORS |
8 |
| |
3.4 |
RESIGNATION
AND VACANCIES |
8 |
| |
3.5 |
PLACE
OF MEETINGS; 9
MEETINGS
BY TELEPHONE |
8 |
| |
3.6 |
REGULAR
MEETINGS |
9 |
| |
3.7 |
SPECIAL
MEETINGS; NOTICE |
9 |
| |
3.8 |
QUORUM |
9 |
| |
3.9 |
WAIVER
OF NOTICE |
9 |
| |
3.10 |
ADJOURNMENT |
10 |
| |
3.11 |
NOTICE
OF ADJOURNMENT |
10 |
| |
3.12 |
BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
10 |
| |
3.13 |
FEES
AND COMPENSATION OF DIRECTORS |
10 |
| |
3.14 |
APPROVAL
OF LOANS TO OFFICERS |
10 |
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Page |
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ARTICLE
IV COMMITTEES |
11 |
| |
4.1 |
COMMITTEES
OF DIRECTORS |
11 |
| |
4.2 |
MEETINGS
AND ACTION OF COMMITTEES |
11 |
| |
5.1 |
OFFICERS |
12 |
| |
5.2 |
ELECTION
OF oFFICERS |
12 |
| |
5.3 |
SUBORDINATE
OFFICERS |
12 |
| |
5.4 |
REMOVAL
AND RESIGNATION OF OFFICERS |
12 |
| |
5.5 |
VACANCIES
IN OFFICES |
13 |
| |
5.6 |
CHAIRMAN
OF THE BOARD |
13 |
| |
5.7 |
PRESIDENT |
13 |
| |
5.8 |
VICE
PRESIDENTS |
13 |
| |
5.9 |
SECRETARY |
13 |
| |
5.10 |
CHIEF
FINANCIAL OFFICER |
14 |
|
ARTICLE
VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER
AGENTS |
14 |
| |
6.1 |
INDEMNIFICATION
OF DIRECTORS AND OFFICERS |
14 |
| |
6.2 |
INDEMNIFICATION
OF OTHERS |
15 |
| |
6.3 |
PAYMENT
OF EXPENSES IN ADVANCE |
15 |
| |
6.4 |
INDEMNITY
NOT EXCLUSIVE |
15 |
| |
6.5 |
INSURANCE
INDEMNIFICATION |
15 |
| |
6.6 |
CONFLICTS |
15 |
|
ARTICLE
VII RECORDS AND REPORTS |
16 |
| |
7.1 |
MAINTENANCE
AND INSPECTION OF SHARE REGISTER |
16 |
| |
7.2 |
MAINTENANCE
AND INSPECTION OF BYLAWS |
16 |
| |
7.3 |
MAINTENANCE
AND INSPECTION OF OTHER CORPORATE RECORDS |
17 |
| |
7.4 |
INSPECTION
BY DIRECTORS |
17 |
| |
7.5 |
ANNUAL
REPORT TO SHAREHOLDERS; WAIVER |
17 |
| |
7.6 |
FINANCIAL
STATEMENTS |
18 |
| |
7.7 |
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS |
18 |
|
ARTICLE
VIII GENERAL MATTERS |
18 |
| |
8.1 |
RECORD
DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING |
18 |
| |
8.2 |
CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS |
19 |
| |
8.3 |
CORPORATE
CONTRACTS AND INSTRUMENTS; HOW EXECUTED |
19 |
| |
8.4 |
CERTIFICATES
FOR SHARES |
19 |
| |
8.5 |
LOST
CERTIFICATES |
19 |
| |
8.6 |
CONSTRUCTION;
DEFINITIONS |
20 |
TABLE
OF CONTENTS
| |
9.1 |
AMENDMENT
BY SHAREHOLDERS |
20 |
| |
9.2 |
AMENDMENT
BY DIRECTORS |
20 |
BYLAWS
OF
FIBERSTARS,
INC.
ARTICLE
I
CORPORATE
OFFICES
1.1 PRINCIPAL
OFFICE
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 such state and the corporation has
one or more business offices in such state, then the board of directors shall
fix and designate a principal business office in the State of
California.
1.2 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
2.1 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.
2.2 ANNUAL
MEETING
The
annual meeting of shareholders shall be held each year on a date and at a time
desig-nated by the board of directors. In the absence of such designation, the
annual meeting of share-holders shall be held on the first Wednesday of May in
each year at 10:00 a.m. However, if such day falls on a legal holiday, then the
meeting shall be held at the same time and place on the next succeeding full
business day. At the meeting, directors shall be elected, and any other proper
business may be transacted.
2.3 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 or the president or the chairman of the board, then 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
Sections 2.4 and 2.5 of these Bylaws, that a meeting will be held at the time
requested by the person or persons calling the meeting, so long as that time is
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, then the person or persons requesting the meeting
may give the notice. Nothing contained in this paragraph of this Section 2.3
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.
2.4 NOTICE
OF SHAREHOLDERS’ MEETINGS
All
notices of meetings of shareholders shall be sent or otherwise given in
accordance with Section 2.5 of these Bylaws not less than ten (10) (or, if sent
by third-class mail pursuant to Section 2.5 of these Bylaws, thirty (30)) 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 (no
business other than that specified in the notice may 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 (but subject to the provisions of the next paragraph of this
Section 2.4 any proper matter may be presented at the meeting for such action).
The notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
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 3.10 of the Corporations Code of California (the “Code”),
(ii) an amendment of the articles of incorporation, pursuant to Section 902
of the Code, (iii) a reorganization of the corporation, pursuant to Section
1201 of the Code, (iv) a voluntary dissolution of the corporation, pursuant
to Section 1900 of the Code, or (v) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, pursuant to
Section 2007 of the Code, then the notice shall also state the general nature of
that proposal.
2.5 MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written
notice of any meeting of shareholders shall be given either (i) personally
or (ii) by first-class mail or (iii) by third-class mail but only if
the corporation has outstanding shares held of record by five hundred
(500) or more persons (determined as provided in Section 605 of the Code)
on the record date for the shareholders’ meeting, or (iv) by telegraphic or
other written communication. Notices not personally delivered shall be sent
charges prepaid and shall be 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 corporation’s books or is given, notice shall be deemed to have
been given if sent to that shareholder by mail or telegraphic or other written
communication to the corporation’s principal executive office, or if published
at least once in a newspaper of general circulation in the county where 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, then all
future notices or reports shall be deemed to have been duly given without
further mailing if the same shall be available to the shareholder on written
demand of the shareholder at the principal executive office of the corporation
for a period of one (1) year from the date of the giving of the
notice.
An
affidavit of the mailing or other means of giving any notice of any
shareholders’ meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.6 QUORUM
The
presence in person or by proxy of the holders of a majority of the shares
entitled to vote thereat constitutes a quorum for the transaction of business at
all meetings of shareholders. 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.
2.7 ADJOURNED
MEETING; NOTICE
Any
shareholders’ meeting, annual or special, whether or not a quorum is present,
may be adjourned from time to time by the vote of the majority of the shares
represented at that meeting, either in person or by proxy. In the absence of a
quorum, no other business may be transacted at that meeting except as provided
in Section 2.6 of these Bylaws.
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 the meeting at which the adjournment is taken. However,
if a new record date for the adjourned meeting is fixed or if the adjournment is
for more than forty-five (45) days from the date set for the original
meeting, then notice of the adjourned meeting shall be given. 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 2.4 and
2.5 of these Bylaws. At any adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting.
2.8 VOTING
The
shareholders entitled to vote at any meeting of shareholders shall be determined
in accordance with the provisions of Section 2.11 of these Bylaws, subject to
the provisions of Sections 702 through 704 of the Code (relating to voting
shares held by a fiduciary, in the name of a corporation or in joint
ownership).
The
shareholders’ vote may be by voice vote or by ballot; provided, however, that
any election for directors must be by ballot if demanded by any shareholder at
the meeting and before the voting has begun.
Except as
provided in the last paragraph of this Section 2.8, or as may be otherwise
provided in the articles of incorporation, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote of the
shareholders. Any shareholder entitled to vote on any matter may vote part of
the shares in favor of the proposal and refrain from voting the remaining shares
or, except when the matter is the election of directors, may vote them against
the proposal; but, if the shareholder fails to specify the number of shares
which the shareholder is voting affirmatively, it will be conclusively presumed
that the shareholder’s approving vote is with respect to all shares which the
shareholder is entitled to vote.
If a
quorum is present, the affirmative vote of the majority of the shares
represented and voting at a duly held meeting (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 a vote by classes is
required by the Code or by the articles of incorporation.
At a
shareholders’ meeting at which directors are to be elected, a shareholder shall
be entitled to cumulate votes (i.e., cast for any candidate a number of votes
greater than the number of votes which such shareholder normally is entitled to
cast) if the candidates’ names have been placed in nomination prior to
commencement of the voting and the shareholder has given notice prior to
commencement of the voting of the shareholder’s intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination either (i) by giving one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which that shareholder’s shares are
normally entitled or (ii) by distributing the shareholder’s votes on the
same principle among any or all of the candidates, as the shareholder thinks
fit. The candidates receiving the highest number of affirmative votes, up to the
number of directors to be elected, shall be elected; votes against any candidate
and votes withheld shall have no legal effect.
2.9 VALIDATION
OF MEETINGS; WAIVER OF NOTICE; CONSENT
The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though they had been
taken at a meeting duly held after regular call and notice, if a quorum be
present either in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
or approval need not specify either the business to be transacted or the purpose
of any annual or special meeting of 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 2.4 of these Bylaws, the waiver of notice or consent
or approval shall state the general nature of the proposal. All such waivers,
consents, and 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 and
presence at 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. Attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by the Code to be included in
the notice of the meeting but not so included, if that objection is expressly
made at the meeting.
2.10 SHAREHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
No action
shall be taken by the shareholders of the corporation other than at an annual or
special meeting of the shareholders, upon due notice and in accordance with the
other provisions of these Bylaws.
2.11 RECORD
DATE FOR SHAREHOLDER NOTICE;VOTING; GIVING CONSENTS
For
purposes of determining the shareholders entitled to notice of any meeting or to
vote thereat or entitled to give consent to corporate action without a meeting,
the board of directors may fix, in advance, a record date, which shall not be
more than sixty (60) days nor less than ten (10) days before the date
of any such meeting nor more than sixty (60) days before any such action
without a meeting, and in such 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 the Code.
If the
board of directors does not so fix a record date:
(a) the
record date for determining shareholders entitled to notice of or to vote at a
meeting of shareholders shall be at the close of business on the business day
next preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held; and
(b) the
record date for determining shareholders entitled to give consent to corporate
action in writing without a meeting, (i) when no prior action by the board
has been taken, shall be the day on which the first written consent is given, or
(ii) when prior action by the board has been taken, shall be at the close
of business on the day on which the board adopts the resolution relating to that
action, or the sixtieth (60th) day before the date of such other action,
whichever is later.
The
record date for any other purpose shall be as provided in Article VIII of these
Bylaws.
2.12 PROXIES
Every
person entitled to vote for directors, or on any other matter, shall have the
right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the secretary of the corporation. A
proxy shall be deemed signed if the shareholder’s name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the shareholder or the shareholder’s attorney-in-fact. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless (i) the person who executed the proxy revokes
it prior to the time of voting by delivering a writing to the corporation
stating that the proxy is revoked or by executing a subsequent proxy and
presenting it to the meeting or by voting in person at the meeting, 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 dates contained on the forms of proxy presumptively determine the
order of execution, regardless of the postmark dates on the envelopes in which
they are mailed. 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 Code.
2.13 INSPECTORS
OF ELECTION
Before
any meeting of shareholders, the board of directors may appoint an inspector or
inspectors of election to act at the meeting or its adjournment. If no inspector
of election is so appointed, then the chairman of the meeting may, and on the
request of any shareholder or a shareholder’s proxy shall, appoint an inspector
or inspectors of election to act at the meeting. The number of inspectors shall
be either one (1) or three (3). If inspectors are appointed at a meeting
pursuant to the request of one (1) or more shareholders or proxies, then
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, then the chairman of the meeting may, and upon the request of
any shareholder or a shareholder’s proxy shall, appoint a person to fill that
vacancy.
Such
inspectors shall:
(a) determine
the number of shares outstanding and the voting power of each, the number of
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; and
(g) do any
other acts that may be proper to conduct the election or vote with fairness to
all shareholders.
ARTICLE
III
DIRECTORS
3.1 POWERS
Subject
to the provisions of the Code and any limitations in the articles of
incorporation and these Bylaws relating to actions required to be approved by
the shareholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the board of directors.
3.2 NUMBER
OF DIRECTORS
The
number of directors of the corporation shall not be less than five (5) nor
more than nine (9). The exact number of directors shall be six (6) until
changed, within the limits specified above, by a bylaw amending this Section
3.2, duly adopted by the board of directors or by the shareholders. The
indefinite number of directors may be changed, or a definite number may be fixed
without provision for an indefinite number, by a duly adopted amendment to the
articles of incorporation or by an amendment to this bylaw duly adopted by the
vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided, however that an amendment reducing the fixed number
or the minimum number of directors to a number less than five (5) cannot be
adopted if the votes cast against its adoption at a meeting, or the shares not
consenting in the case of an action by written consent, are equal to more than
sixteen and two-thirds percent (16-2/3%) of the outstanding shares entitled to
vote thereon. No amendment may change the stated maximum number of authorized
directors to a number greater than two (2) times the stated minimum number
of directors minus one (1).
No
reduction of the authorized number of directors shall have the effect of
removing any director before that director’s term of office expires.
3.3 ELECTION
AND TERM OF OFFICE OF DIRECTORS
Directors
shall be elected at each annual meeting of shareholders to hold office until the
next annual meeting. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
3.4 RESIGNATION
AND VACANCIES
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 that 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.
Vacancies
in the board of directors may be filled by a majority of the remaining
directors, even if less than a quorum, or by a sole remaining director; however,
a vacancy created by the removal of a director by the vote or written consent of
the shareholders or by court order may be filled only by the 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 a
majority of the required quorum), or by the unanimous written consent of all
shares entitled to vote thereon. Each director so elected shall hold office
until the next annual meeting of the shareholders and until a successor has been
elected and qualified.
A vacancy
or vacancies in the board of directors shall be deemed to exist (i) in the
event of the death, resignation or removal of any director, (ii) 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,
(iii) if the authorized number of directors is increased, or (iv) 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 elected at that
meeting.
The
shareholders may elect a director or directors at any time to fill any vacancy
or vacancies not filled by the directors, but any such election other than to
fill a vacancy created by removal, if by written consent, shall require the
consent of the holders of a majority of the outstanding shares entitled to vote
thereon.
3.5 PLACE
OF MEETINGS; 9
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 may 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 if 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.
3.6 REGULAR
MEETINGS
Regular
meetings of the board of directors may be held without notice if the times of
such meetings are fixed by the board of directors.
3.7 SPECIAL
MEETINGS; NOTICE
Special
meetings of the board of directors for any purpose or purposes may be called at
any time by the chairman of the board, the president, any vice president, the
secretary or any two directors.
Notice of
the time and place of special meetings shall be delivered personally or by
tele-phone 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 four (4) days before the time of the
holding of the meeting. If the notice is delivered personally or by telephone or
telegram, it shall be delivered personally or by telephone or to the telegraph
company at least forty-eight (48) hours 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 or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.8 QUORUM
A
majority of the authorized number of directors shall constitute a quorum for the
trans-action of business, except to adjourn as provided in Section 3.10 of these
Bylaws. Every act or decision done or made by a majority of the directors
present at a duly held meeting at which a quorum is present shall be regarded as
the act of the board of directors, subject to the provisions of Section 3.10 of
the Code (as to approval of contracts or transactions in which a director has a
direct or indirect material financial interest), Section 311 of the Code (as to
appointment of committees), Section 317(e) of the Code (as to indemnification of
directors), the articles of incorporation, and other applicable
law.
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.
3.9 WAIVER
OF NOTICE
Notice of
a meeting need not be given to any director (i) who signs a waiver of
notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or (ii) who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents, and approvals shall be
filed with the corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the board of directors.
3.10 ADJOURNMENT
A
majority of the directors present, whether or not constituting a quorum, may
adjourn any meeting to another time and place.
3.11 NOTICE
OF ADJOURNMENT
Notice of
the time and place of holding an adjourned meeting need not be given unless the
meeting is adjourned for more than twenty-four (24) hours. If the meeting
is adjourned for more than twenty-four (24) hours, then notice of the time
and place of the adjourned meeting shall be given before the adjourned meeting
takes place, in the manner specified in Section 3.7 of these Bylaws, to the
directors who were not present at the time of the adjournment.
3.12 BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any
action required or permitted to be taken by the board of directors may be taken
without a meeting, provided that all members of the board 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 consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board.
3.13 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 3.13 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.
3.14 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 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
IV
COMMITTEES
4.1 COMMITTEES
OF DIRECTORS
The board
of directors may, by resolution adopted by a majority of the authorized number
of directors, designate one (1) or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one (1) or more directors as alternate members of any committee,
who 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 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 Code, 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 these Bylaws or the adoption of new Bylaws;
(e) the
amendment or repeal of any resolution of the board of directors which by its
express terms is not so amendable or repealable;
(f) a
distribution to the shareholders of the corporation, except at a rate or in a
periodic amount or within a price range determined by the board of directors;
or
(g) the
appointment of any other committees of the board of directors or the members of
such committees.
4.2 MEETINGS
AND ACTION OF COMMITTEES
Meetings
and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of Article III of these Bylaws, Section 3.5 (place of
meetings), Section 3.6 (regular meetings), Section 3.7 (special meetings and
notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), Section 3.10
(adjournment), Section 3.11 (notice of adjournment), and Section 3.12 (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; provided, however, 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, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
ARTICLE
V
OFFICERS
5.1 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 assistant treasurers, and such other officers
as may be appointed in accordance with the provisions of Sec-tion 5.3 of these
Bylaws. Any number of offices may be held by the same person.
5.2 ELECTION
OF oFFICERS
The
officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Section 5.3 or Section 5.5 of these Bylaws,
shall be chosen by the board, subject to the rights, if any, of an officer under
any contract of employment. Any contract of employment with an officer shall be
unenforceable unless in writing and specifically authorized by the board of
directors.
5.3 SUBORDINATE
OFFICERS
The board
of directors may appoint, or may empower the president to appoint, such other
officers as the business of the corporation may require, each of whom shall hold
office for such period, have such authority, and perform such duties as are
provided in these Bylaws or as the board of directors may from time to time
determine.
5.4 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.
5.5 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.
5.6 CHAIRMAN
OF THE BOARD
If the
Board of Directors appoints a Chairman of the Board, such Chairman shall, when
present, preside at all meetings of the shareholders and the Board of Directors.
The Chairman shall otherwise perform such duties and possess such powers, if
any, as may be vested in the Chairman by the Board of Directors.
5.7 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 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 or nonexistence of a chairman
of the board, 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 these Bylaws.
5.8 VICE
PRESIDENTS
In the
absence or disability of the president, the vice presidents, if any, in order of
their rank as fixed by the board of directors or, if not ranked, a vice
president designated by the board of directors, shall perform all the duties of
the president and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the president. The vice presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, these Bylaws, the
president or the chairman of the board.
5.9 SECRETARY
The
secretary shall keep or cause to be kept, at the principal executive office of
the corporation or such other place as the board of directors may direct, a book
of minutes of all meetings and actions of directors, committees of directors and
shareholders. The minutes shall show the time and place of each meeting, whether
regular or special (and, if special, how authorized and the notice given), the
names of those present at directors’ meetings or committee meetings, the number
of shares present or represented at shareholders’ meetings, and the proceedings
thereof.
The
secretary shall keep, or cause to be kept, at the principal executive office of
the corporation or at the office of the corporation’s transfer agent or
registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares, 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 to be given by law or by
these Bylaws. 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 these Bylaws.
5.10 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 money and other valuables in the name and to
the credit of the corporation with such depositories as may be designated by the
board of directors. He shall disburse the funds of the corporation as may be
ordered by the board of directors, shall render to the president and directors,
whenever they request it, an account of all of his transactions as chief
financial officer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or these Bylaws.
ARTICLE
VI
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
6.1 INDEMNIFICATION
OF DIRECTORS AND OFFICERS
The
corporation shall, to the maximum extent and in the manner permitted 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.
6.2 INDEMNIFICATION
OF OTHERS
The
corporation shall have the power, to the extent and in the manner permitted 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 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.
6.3 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.
6.4 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.
6.5 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 person’s 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.
6.6 CONFLICTS
No
indemnification or advance shall be made under this Article VI, except where
such indemnification or advance is mandated by law or the order, judgment or
decree of any court of competent jurisdiction, in any circumstance where it
appears:
(i) 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
(ii) That it
would be inconsistent with any condition expressly imposed by a court in
approving a settlement.
ARTICLE
VII
RECORDS
AND REPORTS
7.1 MAINTENANCE
AND INSPECTION OF SHARE REGISTER
The
corporation shall keep either at its principal executive office or at the office
of its transfer agent or registrar (if either be appointed), as determined by
resolution of the board of directors, a record of its shareholders listing the
names and addresses of all shareholders and the number and class of shares held
by each shareholder.
A
shareholder or shareholders of the corporation who holds at least five percent
(5%) in the aggregate of the outstanding voting shares of the corporation or who
holds at least one percent (1%) of such voting shares and has filed a Schedule
14B with the Securities and Exchange Commission relating to the election of
directors, may (i) inspect and copy the records of shareholders’ names,
addresses, and shareholdings during usual business hours on five (5) days’
prior written demand on the corporation, (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 the
shareholders who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of demand.
Such list shall be made available to any such shareholder by the transfer agent
on or before the later of five (5) days after the demand is received or
five (5) days after the date specified in the demand as the date as of
which the list is to be compiled.
The
record of shareholders shall also be open to inspection on the written demand of
any shareholder or holder of a voting trust certificate, at any time during
usual business hours, for a purpose reasonably related to the holder’s interests
as a shareholder or as the holder of a voting trust certificate.
Any
inspection and copying under this Section 7.1 may be made in person or by an
agent or attorney of the shareholder or holder of a voting trust certificate
making the demand.
7.2 MAINTENANCE
AND INSPECTION OF BYLAWS
The
corporation shall keep at its principal executive office or, if its principal
executive office is not in the State of California, at its principal business
office in California the original or a copy of these Bylaws as amended to date,
which Bylaws shall be open to inspection by the shareholders at all reasonable
times during office hours. If the principal executive office of the corporation
is outside the State of California and the corporation has no principal business
office in such state, then the secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of these Bylaws as amended to
date.
7.3 MAINTENANCE
AND INSPECTION OF OTHER CORPORATE RECORDS
The
accounting books and records and the minutes of proceedings of the shareholders,
of the board of directors, and of any committee or committees of the board of
directors shall be kept at such place or places as are designated by the board
of directors or, in absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept in written form, and the
accounting books and records shall be kept either in written form or in any
other form capable of being converted into written form.
The
minutes and accounting books and records shall be open to inspection upon the
written demand of any shareholder or holder of a voting trust certificate, at
any reasonable time during usual business hours, for a purpose reasonably
related to the holder’s interests as a shareholder or as the holder of a voting
trust certificate. The inspection may be made in person or by an agent or
attorney and shall include the right to copy and make extracts. Such rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
7.4 INSPECTION
BY DIRECTORS
Every
director shall have the absolute right at any reasonable time to inspect all
books, records, and documents of every kind as well as 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. The right of
inspection includes the right to copy and make extracts of
documents.
7.5 ANNUAL
REPORT TO SHAREHOLDERS; WAIVER
The board
of directors shall cause an annual report to be sent to the shareholders not
later than one hundred twenty (120) days after the close of the fiscal year
adopted by the corporation. Such report shall be sent at least fifteen
(15) days (or, if sent by third-class mail, thirty-five (35) days)
before the annual meeting of shareholders to be held during the next fiscal year
and in the manner specified in Section 2.5 of these Bylaws for giving notice to
shareholders of the corporation.
The
annual report shall contain (i) a balance sheet as of the end of the fiscal
year, (ii) an income statement, (iii) a statement of changes in
financial position for the fiscal year, and (iv) any report of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that the statements were prepared without audit from
the books and records of the corporation.
The
foregoing requirement of an annual report shall be waived so long as the shares
of the corporation are held by fewer than one hundred (100) holders of
record.
7.6 FINANCIAL
STATEMENTS
If no
annual report for the fiscal year has been sent to shareholders, then the
corporation shall, upon the written request of any shareholder made more than
one hundred twenty (120) days after the close of such fiscal year, deliver
or mail to the person making the request, within thirty (30) days
thereafter, a copy of a balance sheet as of the end of such fiscal year and an
income statement and statement of changes in financial position for such fiscal
year.
If a
shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation makes a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and for a
balance sheet of the corporation as of the end of that period, then the chief
financial officer shall cause that statement to be prepared, if not already
prepared, and shall deliver personally or mail that statement or statements to
the person making the request within thirty (30) days after the receipt of
the request. If the corporation has not sent to the shareholders its annual
report for the last fiscal year, the statements referred to in the first
paragraph of this Section 7.6 shall likewise be delivered or mailed to the
shareholder or shareholders within thirty (30) days after the
request.
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 by 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.
7.7 REPRESENTATION
OF SHARES OF OTHER CORPORATIONS
The
chairman of the board, the president, any vice president, the chief financial
officer, the secretary or assistant secretary of this corporation, or any other
person authorized by the board of directors or the president or a vice
president, is authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority herein
granted may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
ARTICLE
VIII
GENERAL
MATTERS
8.1 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 the shareholders
entitled to exercise any rights in respect of any other lawful action (other
than action by shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be more than sixty
(60) days before any such action. In that case, only shareholders of record
at the close of business on the date so fixed are entitled to receive the
dividend, distribution or allot-ment of rights, or to exercise such 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
Code.
If the
board of directors does not so fix a record date, then 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 resolution or the sixtieth
(60th) day before the date of that action, whichever is later.
8.2 CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS
From time
to time, the board of directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other evidences of indebtedness that are issued in the name of
or payable to the corporation, and only the persons so authorized shall sign or
endorse those instruments.
8.3 CORPORATE
CONTRACTS AND INSTRUMENTS; HOW EXECUTED
The board
of directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.4 CERTIFICATES
FOR SHARES
A
certificate or certificates for shares of the corporation shall be issued to
each shareholder when any of such shares are fully paid. The board of directors
may authorize the issuance of certificates for shares partly paid provided that
these certificates shall state the total amount of the consideration to be paid
for them and the amount actually paid. All certificates shall be signed in the
name of the corporation by the chairman of the board or the vice chairman of the
board or the president or a vice president and by the chief financial officer or
an assistant treasurer or the secretary or an assistant secretary, certifying
the number of shares and the class or series of shares owned by the shareholder.
Any or all of the signatures on the certificate may be facsimile.
In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on a certificate ceases 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 issue.
8.5 LOST
CERTIFICATES
Except as
provided in this Section 8.5, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the
corporation and canceled at the same time. The board of directors may, in case
any share certificate or certificate for any other security is lost, stolen or
destroyed, authorize the issuance of replacement certi-ficates on such terms and
conditions as the board may require; the board may require indemnification of
the corporation secured by a bond or other adequate security sufficient to
protect the corporation against any claim that may be made against it, including
any expense or liability, on account of the alleged loss, theft or destruction
of the certificate or the issuance of the replacement certificate.
8.6 CONSTRUCTION;
DEFINITIONS
Unless
the context requires otherwise, the general provisions, rules of construction,
and definitions in the Code shall govern the construction of these Bylaws.
Without limiting the generality of 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
IX
AMENDMENTS
9.1 AMENDMENT
BY SHAREHOLDERS
New
Bylaws may be adopted or these Bylaws may be amended or repealed by the vote or
written consent of holders of a majority of the outstanding shares entitled to
vote; provided, however, that if the articles of incorporation of the
corporation set forth the number of authorized directors of the corporation,
then the authorized number of directors may be changed only by an amendment of
the articles of incorporation.
9.2 AMENDMENT
BY DIRECTORS
Subject
to the rights of the shareholders as provided in Section 9.1 of these Bylaws,
Bylaws, other than a bylaw or an amendment of a bylaw changing the authorized
number of directors (except to fix the authorized number of directors pursuant
to a bylaw providing for a variable number of directors), may be adopted,
amended or repealed by the board of directors.