Bylaws - 3dfx Interactive Inc.
BYLAWS
OF
3DFX INTERACTIVE, INC.
<PAGE> 2
BY-LAWS
OF
3DFX INTERACTIVE, INC.
ARTICLE I
Principal Office
Section 1. Location of Principal Office. The principal
executive office for the transaction of the business of the corporation shall be
established and maintained by the board of directors at any place within or
without the State of California. The board of directors may change said
principal executive office from one location to another.
Section 2. Other Business Offices. The board of directors may
at any time establish other business offices within or without the State of
California.
ARTICLE II
Meetings of Shareholders
Section 1. Location of Meetings. All meetings of the
shareholders shall be held at any place within or without the State of
California which may be designated either by the board of directors or by the
written consent of all shareholders entitled to vote thereat and not present at
the meeting given either before or after the meeting and filed with the
secretary of the corporation. In the absence of any such designation,
shareholders' meetings shall be held at the principal executive office of the
corporation.
Section 2. Annual Meetings. The annual meeting of the
shareholders of the corporation shall be held on such date and at such time as
shall be determined by the board of directors, not more than fifteen (15) months
after the date of the preceding annual meeting or, in the case of the first
annual meeting, not more than fifteen (15) months after the organization of the
corporation. At such meeting, directors shall be elected and any other proper
business may be transacted which is within the powers of the shareholders.
Written notice of each annual meeting shall be given to each shareholder
entitled to vote either personally or by first-class mail or other means of
written communications (which includes, without limitation and wherever used in
these bylaws, telegraphic and facsimile communication), charges prepaid,
addressed to each shareholder at the address appearing on the books of the
corporation, or given by the shareholder to the corporation for the purpose of
notice. If any notice or report addressed to the shareholder at
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the address of such shareholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice
or report to the shareholder at such address, all future notices or reports
shall be deemed to have been duly given without further mailing if the same
shall be available for the shareholder upon written demand of the shareholder at
the principal executive office of the corporation for a period of one year from
the date of the giving of the notice or report to all other shareholders. If no
address of a shareholder appears on the books of the corporation or is given by
the shareholder to the corporation, notice is duly given to him if sent by mail
or other means of written communication addressed to the place where the
principal executive office of the corporation is located or if published at
least once in a newspaper of general circulation in the county in which said
principal executive office is located.
All such notices shall be given to each shareholder entitled
thereto not less than ten (10) days nor more than sixty (60) days before each
annual meeting. Any such notice shall be deemed to have been given at the time
when delivered personally or deposited in the United States mail or delivered to
a common carrier for transmission to the recipient or actually transmitted by
the person giving the notice by electronic means to the recipient or sent by
other means of written communication. An affidavit of mailing of any such notice
in accordance with the foregoing provisions, executed by the secretary,
assistant secretary or transfer agent of the corporation shall be prima facie
evidence of the giving of the notice.
Such notices shall state:
(a) The place, date and hour of the meeting;
(b) Those matters which the board, at the time of the mailing
of the notice, intends to present for action by the shareholders;
(c) If directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for
election;
(d) The general nature of a proposal, if any, to take action
with respect to the approval of (i) a contract or other transaction
with an interested director, (ii) an amendment of the articles of
incorporation, (iii) a reorganization of the corporation as defined in
section 181 of the California General Corporation Law (the "General
Corporation Law"), (iv) a voluntary dissolution of the corporation, or
(v) a distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, if any; and
(e) Such other matters, if any, as may properly come before
the meeting or may be expressly required by statute.
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Section 3. Special Meetings. Special meetings of the
shareholders for the purpose of taking any action permitted to be taken by the
shareholders under the General Corporation Law and the articles of incorporation
of this corporation, may be called by the chairman of the board or the
president, or by the board of directors, or by the holders of shares entitled to
cast not less than ten percent (10%) of the votes at the meeting. Upon request
in writing that a special meeting of shareholders be called for any proper
purpose, directed to the chairman of the board, president, vice president or
secretary by any person (other than the board of directors) entitled to call a
special meeting of shareholders, the officer forthwith shall cause notice to be
given to the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after receipt of the request.
Except in special cases where other express provision is made by statute, notice
of such special meetings shall be given in the same manner and contain the same
statements as required for annual meetings of shareholders. Notice of any
special meeting shall also specify the general nature of the business to be
transacted, and no other business may be transacted at such meeting.
Section 4. Quorum. The presence in person or by proxy of the
holders of a majority of the shares entitled to vote at any meeting 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
transact 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 5. Adjournment. Any shareholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either present
in person or represented by proxy thereat, but in the absence of a quorum no
other business may be transacted at such meeting, except as provided in Section
4 above.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken, except that notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at an adjourned meeting in
accordance with Section 2 of this Article 11 if a new record date for the
adjourned meeting is fixed by the board of directors, or if the adjournment is
for more than forty-five (45) days from the date set for the original meeting.
At any adjourned meeting the corporation may transact any business which might
have been transacted at the original meeting.
Section 6. Record Date: Cumulative Voting. Unless a record
date for voting purposes be fixed as provided in Section 1 of Article VI of
these bylaws, then, subject to the provisions of sections 702 to 704, inclusive,
of the General Corporation Law, only persons in whose names shares entitled to
vote stand on the stock records of the corporation at the close of
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business on the business day next preceding the day on which notice of the
meeting is given or if such notice is waived, at the close of business on the
business day next preceding the day on which the meeting of shareholders is held
(except that the record date for shareholders entitled to give consent to
corporate action without a meeting shall be determined in accordance with
Section 8 of this Article 11) shall be entitled to receive notice of and to vote
at such meeting, and such day shall be the record date for such meeting. 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 vote them
against the proposal (other than elections of directors), but if the shareholder
fails to specify the number of shares such shareholder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving vote is with
respect to all shares such shareholder is entitled to vote. Such vote may be
viva voce or by ballot; provided, however, that all elections for directors must
be by ballot upon demand made by a shareholder at any election and before the
voting begins. 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 shall constitute at least a majority of the required quorum) shall
be the act of the shareholders except as may otherwise be provided by (i)
Section 4 of this Article 11, (ii) the cumulative voting provisions for the
election of directors as stated in this section below, and (iii) the General
Corporation Law or the articles of incorporation of this corporation (including
without limitation the provision that, upon the vote of the holder or holders of
shares representing fifty percent or more of the voting power of this
corporation, this corporation may elect voluntarily to wind up and dissolve).
Subject to the requirements of the next sentence, every shareholder entitled to
vote at any election for directors may cumulate his votes and give one candidate
a number of votes equal to the number of directors to be elected multiplied by
the number of votes to which his shares are normally entitled, or distribute his
votes on the same principle among as many candidates as he shall think fit. No
shareholder shall be entitled to cumulate votes unless such candidate or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting prior to the voting of the
shareholder's intention to cumulate his votes. If any one shareholder has given
such notice, all shareholders may cumulate their votes for candidates in
nomination. The candidates receiving the highest number of votes of shares
entitled to be voted for them, up to the number of directors to be elected,
shall be elected.
Section 7. Waiver of Notice. The transactions of any meeting
of shareholders, either annual or special, however called and noticed, and
wherever held, shall be as valid as though they had been determined at a meeting
duly held after regular call and notice, if a quorum be present either in person
or by proxy, and if, either before or after the meeting, each person entitled to
vote, not present in person or by proxy, signs a written waiver of notice or a
consent to a holding of the meeting, or an approval of the minutes thereof. The
waiver of notice, consent or approval need not specify either the business to be
transacted or the purpose of any regular 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 subparagraph (d) of the third paragraph of Section 2
of this Article 11, the waiver of notice, consent or approval shall state the
general nature of such
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proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a
waiver of notice of such meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters required to
be included in the notice but not so included if such objection is expressly
made at the meeting.
Section 8. Action by Written Consent. Directors may be elected
without a meeting by a consent in writing, setting forth the action so taken,
signed by all of the persons who would be entitled to vote for the election of
directors; in addition a director may be elected at any time to fill a vacancy
(other than a vacancy created by removal) not filled by the directors by the
written consent of persons holding a majority of the outstanding shares entitled
to vote for the election of directors. Notice of such election shall be given to
nonconsenting shareholders if required by this Section 8.
Any other action which, under any provision of the General
Corporation Law, may be taken at a meeting of the shareholders, may be taken
without a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. All such consents shall
be filed with the secretary of the corporation and shall be maintained in the
corporate records.
Unless the consents of all shareholders entitled to vote have
been solicited in writing:
(a) Notice of any proposed shareholder approval of (i) a
contract or other transaction with an interested director; (ii)
indemnification of an agent of the corporation as authorized by Section
9 of Article IV of these bylaws; (iii) a reorganization of the
corporation as defined in section 181 of the General Corporation Law;
or (iv) a distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, if any, without a meeting by
less than unanimous written consent, shall be given at least ten (10)
days before the consummation of the action authorized by such approval;
and
(b) Prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less
than unanimous written consent, to those shareholders entitled to vote
who have not consented in writing. Such notices shall be given in the
manner provided in Section 2 of Article II of these bylaws.
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Unless, as provided in Section 1 of Article VI of these
bylaws, the board of directors has fixed a record date for the determination of
shareholders entitled to notice of and to give such written consent, the record
date for such determination shall be (a) the day on which the first written
consent is given, when no prior action by the board of directors has been taken,
or (b) the close of business on the day the board of directors adopts the
resolution relating to such action.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a personal representative of the
shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the secretary of the corporation.
Section 9. Proxies. Every person entitled to vote shares or
execute consents shall have the right to do so either in person or by one or
more agents authorized by a written proxy executed by such person or his duly
authorized agent and delivered to the secretary of the corporation. A proxy
shall be deemed executed 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. Any proxy
duly executed which does not state that it is irrevocable shall continue in full
force and effect until (i) a writing stating that the proxy is revoked is
delivered to the secretary of the corporation, (ii) a proxy bearing a later date
is executed by the person who executed the prior proxy and is presented to the
meeting, (iii) as to any meeting, by attendance at such meeting and voting in
person by the person executing the proxy or (iv) written notice of the death or
incapacity of the maker of such proxy is received by the corporation before the
vote pursuant thereto is counted; provided that no such proxy shall be valid
after the expiration of eleven (11 ) months from the date of its execution,
unless otherwise provided in the proxy. The revocability of a proxy which states
on its face that it is irrevocable shall be governed by the provisions of
sections 705(e) and (f) of the General Corporation Law.
Section 10. Inspectors of Election. In advance of any meeting
of shareholders, the board of directors may appoint any persons other than
nominees for office as inspectors of election to act at such meeting and any
adjournment thereof. If inspectors of election be not so appointed, the chairman
of any such meeting may, and on the request of any shareholder or his proxy
shall, make such appointment at the meeting. The number of inspectors shall be
either one or three. If appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one or three inspectors are to be appointed. In
case any person appointed as inspector fails to appear or fails or refuses to
act, the vacancy may and on the request of any shareholder or a shareholder's
proxy shall, be filled by appointment by the board of directors in advance of
the meeting, or at the meeting by the chairman of the meeting.
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The duties of such inspectors shall be as prescribed by
section 707 of the General Corporation Law and shall include: determining the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies; receiving votes, ballots or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes or consents;
determining when the polls shall close; determining the result; and such acts as
may be proper to conduct the election or vote with fairness to all shareholders.
In the determination of the validity and effect of proxies the dates contained
on the forms of proxy shall presumptively determine the order of execution of
the proxies, regardless of the postmark dates on the envelopes in which they are
mailed.
The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
ARTICLE III
Board of Directors
Section 1. Powers of the Board. Subject to the provisions of
the General Corporation Law and any limitations in the articles of incorporation
and these bylaws as to action to be authorized or approved by the shareholders,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
Without prejudice to such general powers, but subject to the same limitations,
it is hereby expressly declared that the board of directors shall have the
following powers:
First: To conduct, manage and control the affairs and business
of the corporation and to make such rules and regulations therefor, not
inconsistent with law or with the articles of incorporation or with
these bylaws, as they may deem best;
Second: To elect and remove at pleasure the officers, agents
and employees of the corporation, prescribe their duties and fix their
compensation;
Third: To authorize the issue of shares of stock of the
corporation from time to time upon such terms as may be lawful, in
consideration of money paid, labor done, services actually rendered to
the corporation or for its benefit or in its formation or
reorganization, debts or securities canceled, and tangible or
intangible property actually received, but neither promissory notes of
the purchaser (unless adequately secured by collateral other than the
shares acquired or unless permitted by section 408 of the General
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Corporation Law) nor future services shall constitute payment or part
payment for the shares of the corporation;
Fourth: To borrow money and incur indebtedness for the
purposes of the corporation and to cause to be executed and delivered
therefor, in the corporate name, promissory notes, bonds, debentures,
deeds of trust, mortgages, pledges, hypothecations or other evidences
of debt and securities therefor;
Fifth: To alter, repeal or amend, from time to time, and at
any time, these bylaws and any and all amendments of the same, and from
time to time, and at any time, to make and adopt such new and
additional bylaws as may be necessary and proper, subject to the power
of the shareholders to adopt, amend or repeal such bylaws, or to revoke
the delegation of authority of the directors, as provided by law or by
Article VIII of these bylaws; and
Sixth: By resolution adopted by a majority of the authorized
number of directors, to designate an executive and/or other committees,
each consisting of two or more directors, to serve at the pleasure of
the board, and to prescribe the manner in which proceedings of such
committee shall be conducted. The appointment of members or alternate
members (who may replace any absent member at any meeting of the
committee) of a committee requires the vote of a majority of the
authorized number of directors. Any such committee, to the extent
provided in a resolution of the board, shall have all of the authority
of the board, except with respect to:
(i) The approval of any action for which the General
Corporation Law or the articles of incorporation also require
shareholder approval;
(ii) The filling of vacancies on the board or in any
committee;
(iii) The fixing of compensation of the directors for serving
on the board or on any committee;
(iv) The adoption, amendment or repeal of bylaws;
(v) The amendment or repeal of any resolution of the board
which by its express terms is not so amendable or repealable;
(vi) Any distribution to the shareholders, except at a rate
or in a periodic amount or within a price range determined by the
board; and
(vii) The appointment of other committees of the board or the
members thereof.
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Section 2. Number of Directors. The number of directors of the
corporation shall be not less than five (5) nor more than seven (7). The exact
number of directors shall be seven (7) 0.
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.
Section 3. Election of Directors. The directors shall be
elected at each annual meeting of shareholders, but if any such annual meeting
is not held or the directors are not elected thereat, the directors may be
elected at any special meeting of shareholders held for that purpose. Each
director, including a director elected to fill a vacancy, shall hold office
until his successor is elected, except as otherwise provided by statute.
Section 4. Vacancies; Resignation. A vacancy in the board of
directors shall be deemed to exist in case of the death, resignation or removal
of any director, if the authorized number of directors be increased, or if the
shareholders fail, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting. The board of directors may declare
vacant the office of a director who has been declared of unsound mind by an
order of court or has been convicted of a felony.
Vacancies in the board of directors, except for a vacancy
created by the removal of a director, may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until his
successor is elected at an annual or a special meeting of the shareholders. A
vacancy in the board of directors created by the removal of a director may only
be filled by the vote of a majority of the shares represented and voting at a
duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum), or by
the written consent of the holders of all of the outstanding shares.
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The shareholders may elect a director or directors at any time
to fill any vacancy or vacancies not filled by the directors. Any such election
by written consent other than to fill a vacancy created by removal shall require
the consent of holders of a majority of the outstanding shares entitled to vote.
Any director may resign effective upon giving written notice
to the chairman of the board, the president, the secretary or the board of
directors of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the board of directors accepts the
resignation of a director tendered to take effect at a future time, the board or
the shareholders shall have power to elect a successor to take office when the
resignation is to become effective.
No reduction of the authorized number of the directors shall
have the effect of removing any director prior to the expiration of his term of
office.
ARTICLE IV
Meetings of Directors
Section 1. Location of Meetings. Regular meetings of the board
of directors shall be held at any place within or without the State of
California that has been designated from time to time by the board of directors.
In the absence of such designation, regular meetings shall be held at the
principal executive office of the corporation, except as provided in Section 2.
Special meetings of the board of directors may be held at any place within or
without the State of California which has been designated in the notice of the
meeting, or, if not designated in the notice or if there is no notice, at the
principal executive office of the corporation.
Section 2. Regular Meetings. Immediately following each annual
meeting of the shareholders there shall be a regular meeting of the board of
directors of the corporation at the place of said annual meeting or at such
other place as shall have been designated by the board of directors for the
purpose of organization, election of officers and the transaction of other
business. Other regular meetings of the board of directors shall be held without
call on such date and time as may be fixed by the board of directors; provided,
however, that should any such day fall on a legal holiday, then said meeting
shall be held at the same time on the next business day thereafter ensuing which
is not a legal holiday. Notice of regular meetings of the directors is hereby
dispensed with and no notice whatever of any such meeting need be given,
provided that notice of any change in the time or place of regular meetings
shall be given to all of the directors in the same manner as notice for special
meetings of the board of directors.
Section 3. 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 or president or,
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if both the chairman of the board and the president are absent or are unable or
refuse to act, by any vice president or by 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 or facsimile
transmission, charges prepaid, addressed to him at his address as it appears
upon the records of the corporation or, if it is not so shown on the records and
is not readily ascertainable, at the place at which the meetings of the
directors are regularly held. In case such notice is mailed, it shall be
deposited in the United States mail at least four (4) days prior to the time of
the holding of the meeting. In case such notice is delivered personally,
telephoned, telegraphed or sent by facsimile transmission, it shall be delivered
to the director or transmitted to the director at least forty-eight (48) hours
prior to the time of the holding of the meeting. Any notice given personally or
by telephone, telegraph or facsimile may be communicated to either the director
or to a person at the office of the director whom the person giving the notice
has reason to believe will promptly communicate it to the director. Such deposit
in the mail, delivery to a common carrier, transmission by electronic means or
delivery, personally or by telephone, as above provided, shall be due, legal and
personal notice to such directors. The notice need not specify the place of the
meeting if the meeting is to be held at the principal executive office of the
corporation, and need not specify the purpose of the meeting.
Section 4. Quorum. Presence of a majority of the authorized
number of directors at a meeting of the board of directors constitutes a quorum
for the transaction of business, except as hereinafter provided. Members of the
board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. 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 sections 310, 311 and 317 of the General Corporation Law. A
meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, provided that any action taken is
approved by at least a majority of the required quorum for such meeting. A
majority of the directors present, whether or not a quorum is present, may
adjourn any meeting to another time and place. If the meeting is adjourned for
more than twenty-four (24) hours, notice of any adjournment to another time or
place (other than adjournments until the time fixed for the next regular meeting
of the board of directors, as to which no notice is required) shall be given
prior to the time of the adjourned meeting to the directors who were not present
at the time of the adjournment.
Section 5. Waiver of Notice. Notice of a meeting need not be
given to any director 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 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 a part of the
minutes of the meeting.
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Section 6. Action by Written Consent. Any action required or
permitted to be taken by the board of directors, may be taken without a meeting
if all members of the board shall individually or collectively consent in
writing to such action. Such written consent or consents shall be filed with the
minutes of the proceedings of the board. Such action by written consent shall
have the same force and effect as a unanimous vote of such directors.
Section 7. Committees. The provisions of this Article IV shall
also apply, with necessary changes in points of detail, to committees of the
board of directors, if any, and to actions by such committees (except for the
first sentence of Section 2 of Article IV, which shall not apply, and except
that special meetings of a committee may also be called at any time by any two
members of the committee), unless otherwise provided by these bylaws or by the
resolution of the board of directors designating such committees. For such
purpose, references to "the board" or "the board of directors" shall be deemed
to refer to each such committee and references to "directors" and "members of
the board" shall be deemed to refer to members of the committee.
Section 8. Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
board.
Section 9. Indemnification. The corporation shall, to the
maximum extent permitted by the General Corporation Law, indemnify each of its
agents against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that any such person is or was an agent of the corporation.
For purposes of this Section, an "agent" of the corporation includes any person
who is or was a director, officer, employee or other agent of the corporation,
or who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or who was a director, officer, employee or agent of
a corporation which was a predecessor of the corporation or of another
enterprise at the request of such predecessor corporation.
ARTICLE V
Officers
Section 1. Designation of Officers. The officers of the
corporation shall be a chairman of the board or a president, or both, a
secretary, and a treasurer, who shall also be the chief financial officer of the
corporation. The corporation may also have, at the discretion of the board of
directors, one or more vice presidents, one or more assistant secretaries, one
or more assistant treasurers, and such other officers as may be designated from
time to time by the board of directors. Any number of offices may be held by the
same person. The officers shall be elected by the board of directors and shall
hold office at the pleasure of such board.
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Section 2. Chairman of the Board. The chairman of the board,
if there be such officer, shall, if present, preside at all meetings of the
board of directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the board of directors or prescribed by
the bylaws. If there is not a president, the chairman of the board shall, in
addition, be the general manager and chief executive officer of the corporation
and shall have the powers and duties prescribed in Section 3 of Article V of
these bylaws.
Section 3. President. Subject to such powers and duties, if
any, as may be prescribed by these bylaws or the board of directors for the
chairman of the board, if there be such officer, the president shall be the
general manager and 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 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 all of the powers and shall perform all of the duties which are
ordinarily inherent in the office of the president, and he shall have such
further powers and shall perform such further duties as may be prescribed for
him by the board of directors.
Section 4. Vice Presidents. In the absence or disability or
refusal to act of the president, the vice presidents in order of their rank as
fixed by the board of directors, or, if not ranked, the vice president
designated by the president or the board of directors, shall perform all of 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.
Section 5. 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 order, a book of minutes of all proceedings of the
shareholders, the board of directors and committees of the board, with the time
and place of holding, whether regular or special, and if special how authorized,
the notice thereof given, the names of those present at directors' and committee
meetings, and the number of shares present or represented at shareholders'
meetings. The secretary shall keep or cause to be kept at the principal
executive office or at the office of the corporation's transfer agent a record
of shareholders or a duplicate record of shareholders showing the names of the
shareholders and their addresses, the number of shares 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 or an assistant secretary, or, if they are absent or
unable or refuse to act, any other officer of the corporation, shall give or
cause to be given notice of all the meetings of the shareholders, the board of
directors and committees of the board required by the bylaws or by law to be
given, and he shall keep the seal of the corporation, if any, 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.
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Section 6. Assistant Secretary. It shall be the duty of the
assistant secretaries to assist the secretary in the performance of his duties
and generally to perform such other duties as may be delegated to them by the
board of directors.
Section 7. Treasurer. The treasurer shall be the chief
financial officer of the corporation and shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of account of the
corporation. He shall receive and deposit all moneys and other valuables
belonging to the corporation in the name and to the credit of the corporation
and shall disburse the same only in such manner as the board of directors or the
appropriate officers of the corporation may from time to time determine, shall
render to the president and the board of directors, whenever they request it, an
account of all his transactions as treasurer and of the financial condition of
the corporation, and shall perform such further duties as the board of directors
may require.
Section 8. Assistant Treasurer. It shall be the duty of the
assistant treasurers to assist the treasurer in the performance of his duties
and generally to perform such other duties as may be delegated to them by the
board of directors.
ARTICLE VI
Miscellaneous
Section 1. Record Date. The board of directors may fix a time
in the future as a record date for the determination of the shareholders
entitled to notice of and to vote at any meeting of shareholders or entitled to
give consent to corporate action in writing without a meeting, to receive any
report, to receive any dividend or distribution, or any allotment of rights, or
to exercise rights in respect to any change, conversion, or exchange of shares.
The record date so fixed shall be not more than sixty (60) days nor less than
ten (10) days prior to the date of any meeting, nor more than sixty (60) days
prior to any other event for the purposes of which it is fixed. When a record
date is so fixed, only shareholders of record at the close of business on that
date are entitled to notice of and to vote at any such meeting, to give consent
without a meeting, to receive any report, to receive a dividend, distribution,
or allotment of rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided by statute or in the articles of
incorporation or bylaws.
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.
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(b) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when no
prior action by the board has been taken, shall be the day on which the
first written consent is given.
(c) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the board
adopts the resolution relating thereto, or the sixtieth (60th) day
prior to the date of such other action, whichever is later.
Section 2. Inspection of Corporate Records. The accounting
books and records, the record of shareholders, and minutes of proceedings of the
shareholders and the board and committees of the board of this corporation and
any subsidiary of this corporation shall be open to inspection upon the written
demand on the corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the holder
of such voting trust certificate. Such inspection by a shareholder or holder of
a voting trust certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
Every director shall have the absolute right at any reasonable
time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the corporation and its subsidiary
corporations. Such inspection by a director may be made in person or by agent or
attorney and the right of inspection includes the right to copy and make
extracts.
Section 3. Certificates for Shares. Every holder of shares in
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the chairman or vice chairman of the board or the president
or a vice president and by the treasurer or an assistant treasurer or the
secretary or any assistant secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any or all of the signatures
on the certificate may be facsimile.
Any such certificate shall contain such legend or other
statement as may be required by the California Corporate Securities Law of 1968,
the Federal securities laws, and any agreement between the corporation and the
issuee thereof.
Certificates for shares may be issued prior to full payment
under such restrictions and for such purposes as the board of directors or the
bylaws may provide; provided, however, that any such certificate so issued prior
to full payment shall state on the face thereof the amount remaining unpaid and
the terms of payment thereof.
Section 4. Representation of Shares of Other Corporations. The
president or any vice president or the secretary or any assistant secretary of
this corporation is authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any
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other corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officers.
Section 5. Inspection of Bylaws. The corporation shall keep in
its principal executive office in California, or if its principal executive
office is not in California, then at its principal business office in California
(or otherwise provide upon written request of any shareholder), the original or
a copy of the bylaws as amended to date, certified by the secretary, which shall
be open to inspection by the shareholders at all reasonable times during office
hours.
Section 6. Construction and Definitions. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the foregoing,
the masculine gender includes the feminine and neuter, the singular number
includes the plural and the plural number includes the singular, and the term
"person" includes a corporation as well as a natural person.
ARTICLE VII
Amendments
Section 1. Amendment by Shareholders. New bylaws may be
adopted or these bylaws may be amended or repealed by the affirmative vote or
written consent of a majority of the outstanding shares entitled to vote, except
as otherwise provided by law or by the articles of incorporation or these
bylaws.
Section 2. Amendment by Board of Directors. Subject to the
right of shareholders as provided in Section 1 of this Article to adopt, amend
or repeal bylaws, and except as otherwise provided by law or by the articles of
incorporation, bylaws (other than a bylaw or amendment thereof changing the
authorized maximum or minimum number of directors) may be adopted, amended or
repealed by the board of directors.
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ARTICLE VIII
Annual and Other Reports
Section 1. Annual Report to Shareholders.
(a) So long as the corporation shall have fewer than one
hundred shareholders of record (determined as provided in section 605 of the
General Corporation Law), the requirement of section 1501 (a) of said law that
an annual report be sent to the shareholders is expressly waived.
(b) Notwithstanding subdivision (a) of this Section, the
corporation shall, upon the written request of any shareholder made more than
one hundred twenty (120) days after the close of a fiscal year, deliver or mail
to the person making the request, within thirty (30) days thereafter, the
financial statements required by section 1501 (a) of the General Corporation
Law.
Section 2. Request for Financial Statements. A shareholder or
shareholders holding at least five percent (5%) of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
income statement of the corporation for the three-month, six-month or nine-month
period of the current fiscal year ended more than thirty (30) days prior to the
date of the request and a balance sheet of the corporation as of the end of such
period and, in addition, if no annual report for the last fiscal year has been
sent to shareholders, the statements referred to in section 1501 (a) of the
General Corporation Law for the last fiscal year. The corporation shall deliver
or mail the statements to the person making the request within thirty (30) days
thereafter. A copy of any such statements shall be kept on file in the principal
executive office of the corporation for twelve (12) months and they shall be
exhibited at all reasonable times to any shareholder demanding an examination of
them or a copy shall be mailed to such shareholder. The quarterly income
statements and balance sheets referred to in this Section shall be accompanied
by the report thereon, if any, of any independent accountants engaged by the
corporation or the certificate of an authorized officer of the corporation that
such financial statements were prepared without audit from the books and records
of the corporation.
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