BYLAWS
OF
FANFEST, INC. Name changed 11-3-93
A CALIFORNIA CORPORATION STARFEST, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OR BUSINESS OFFICES. The board of
directors shall fix the location of the principal executive office of the
corporation at any place within or outside the State of California. If the
principal executive office is located outside California and the corporation has
one or more business offices in California, the board shall fix and designate a
principal business office in California.
Section 2. OTHER OFFICES. Branch or subordinate offices may be established
at any time and at any place by the board of directors.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at
any place within or outside the State of California designated by the board of
directors. In the absence of a designation by the board, shareholders' meetings
shall be held at the corporation's principal executive office.
Section 2. ANNUAL MEETING. The annual meeting of shareholders shall be
held each year on a date and at a time designated by the board of directors.
The date so designated shall be within five months after the end of the
corporation's fiscal year, and within fifteen months after the last annual
meeting.
At each annual meeting, directors shall be elected and any other proper
business w~hin the power of the shareholders may be transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders may be
called at any time by the board of directors, by the chair of the board, by the
president or vice president, or by one or more shareholders holdingshares that
in the aggregate are entitled to cast ten percent or more of the votes at that
meeting.
If a special meeting is called by anyone other than the board of
directors, the person or persons calling the meeting shall make a request in
writing, delivered personally or sent by
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registered mail or by telegraphic or other facsimile transmission, to the chair
of the board or the president, vice president, or secretary, specifying the time
and date of the meeting (which is not less than 35 nor more than 60 days after
receipt of the request) and the general nature of the business proposed to be
transacted. No business other than that stated in the notice shall be transacted
at the meeting unless all shareholders sign written waivers of notice. Within 20
days after receipt, the officer receiving the request shall cause notice to be
given to the shareholders entitled to vote, in accordance with Sections 4 and 5
of this Article II, stating that a meeting will be held at the time requested by
the person(s) calling the meeting, and stating the general nature of the
business proposed to be transacted. If notice is not given within 20 days after
receipt of the request, the person or persons requesting the meeting may give
the notice. Nothing contained in this paragraph shall be construed as limiting,
fixing, or affecting the time when a meeting of shareholders called by action of
the board may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not fewer than 10 nor more than 60 days before the date of the
meeting. Shareholders entitled to notice shall be determined in accordance with
Section 11 of this ArtiCle II. The notice shall specify the place, date, and
hour of the meeting, and (i) in the case of a special meeting, the general
nature of the business to be transacted, or (ii) in the case of the annual
meeting, those matters that the board of directors, at the time of giving the
directors are to be elected, the notice shall include the names of all nominees
whom the board intends, at the time of the notice, to present for election.
The notice shall also state the general nature of any proposed action to be
taken at the meeting to approve any of the following matters:
(i) A transaction in which a director has a financial interest, within the
meaning of ss.310 of the California Corporations Code;
(ii) An amendment of the articles of incorporation under ss.902 of that
Code:
(iii) A reorganization under ss.1201 of that Code;
(iv) A voluntary dissolution under ss.1900 of that Code; or
(v) A distribution in dissolution that requires approval of the outstanding
shares under ss.2007 of that Code.
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Section 5. MANNER OF GIVING NOTICE : AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting shall be given either personally or by first-class mail,
charges prepaid, addressed to the shareholder at the address appearing on the
corporation's books or given by the shareholder to the corporation for purposes
of notice. If no address appears on the corporation's books or has been given as
specified above, notice shall be either (1) sent by first-class mail addressed
to the shareholder at the corporation's principal executive office, or (2)
published at least once in a newspaper of general circulation in the county
where the corporation's principal executive office is located. Notice is deemed
to have been given at the time when delivered personally or deposited in the
mall or sent by other means of written communication.
If any notice or report mailed to a shareholder at the address appearing on
the corporation's books is returned marked to indicate that the United States
Postal Service is unable to deliver the document to the shareholder at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if the corporation holds the document available for the
shareholder on written demand at the corporation's principal executive office
for a period of one year from the date the notice or report was given to all
other shareholders.
An affidavit of the mailing, or other authorized means of giving notice or
delivering a document, of any notice of shareholders' meeting, report, or other
document sent to shareholders, may be executed by the corporation's secretary,
assistant secretary, or transfer agent, and, if executed, shall be filed and
maintained in the minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of the shareholders shall
constitute a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 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, but in the absence of a quorum, no other business
may be transacted at that meeting, except as provided in Section 6 of this
Article II.
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When any meeting of shareholders, either annual or special, is adjourned
to another time or place, notice of the adjourned meeting need not be given if
the time and place are announced at the meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than 45 days from the date set for the original
meeting, in which case the board of directors shall set a new record date.
Notice of any such adjourned meeting, if required, shall be given to each
shareholder of record entitled to vote at the adjourned meeting, in accordance
with Sections 4 and 5 of this Article II. At any adjourned meeting, the
corporation may transact any business that might have been transacted at the
original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with Section 11 of this Article
II, subject to the provisions of sections 702 through 704 of the California
Corporations 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 before the voting has begun. On any matter
other than the election of directors, any shareholder may vote part of the
shares the shareholder is to vote in favor of the proposal and refrain from
voting the remaining shares or vote them against the proposal, but, if the
shareholder fails to specify the number of shares that the shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares that the shareholder is entitled to vote. If
a quorum is present (or if a quorum has been present earlier at the meeting but
some shareholders have withdrawn), the affirmative vote of a majority of the
shares represented and voting, provided such shares voting affirmatively also
constitute a majority of the number of shares required for a quorum, shall be
the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or by the articles of incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes which that shareholder normally
would be entitled to cast), unless the candidates' names have been placed in
nomination before commencement of the voting and a shareholder has given notice
at the meeting, before the voting has begun, of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then all
shareholders entitled to vote may cumulate their votes for candidates in
nomination, and may give 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
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distribute the shareholder's votes on the same principle among any or all of the
candidates, as the shareholder thinks fit. The candidates receiving the highest
number of votes, up to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed and wherever held, shall be as valid as though they were had
at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if each person entitled to vote who was not
present in person or by proxy, either before or after the meeting, signs a
written waiver of notice or a consent to holding the meeting or an approval of
the minutes of the meeting. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of the shareholders, except that if action is taken or proposed to be
taken for approval of any of those matters specified in section 601(f) of the
California Corporations Code, i.e., (i) A transaction in which a director has a
financial interest, within the meaning of ss.310 of the California Corporations
Code; (ii) An amendment of the articles of incorporation under ss.902 of that
Code; (iii) A reorganization under ss.1201 of that Code; (iv) A voluntary
dissolution under ss.1900 of that Code; or (v) A distribution in dissolution
that requires approval of the outstanding shares under ss.2007 of that Code; the
waiver of notice or consent is required to state the general nature of the
action or proposed action.
All waivers, consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
A shareholder's attendance at a meeting also constitutes a waiver of
noticeof that meeting, unless the shareholder at the beginning of the meeting
objects to the transaction of any business on the ground that the meeting was
not lawfully called or convened. In addition, attendance at a meeting does not
constitute a waiver of any right to object to consideration of matters required
by law to be included in the notice of the meeting which were not so included,
if that objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action that could be taken at an annual or special meeting of shareholders may
be taken without a meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number oi~ votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote on that action were present and voted.
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Directors may be elected by written consent of the shareholders without
a meeting only if the written consents of all outstanding shares entitled to
vote are obtained, except that vacancies on the board (other than vacancies
created by removal) not filled by the board may be filled by the written consent
of the holders of a majority of the outstanding shares entitled to vote.
All consents shall be filed with the secretary of the corporation and
shall be maintained in the corporate records. Any shareholder or other
authorized person who has given a written consent may revoke it by a writing
received by the secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, prompt notice shall be given of any corporate action
approved by shareholders without a meeting by less than unanimous consent, to
those shareholders entitled to vote who have not consented in writing. As to
approvals required by California Corporations Code section 310 (transactions in
which a director has a financial interest), section 317 (indemnification of
corporate agents), section 1201 (corporate reorganization), or section 2007
(certain distributions on dissolution), notice of the approval shall be given at
least ten days before the consummation of any action authorized by the approval.
Notice shall be given in the manner specified in Section 5 of this Article II.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE OF MEETING, VOTING, AND
GIVING CONSENT.
(a) For purposes of determining the shareholders entitled to receive notice
of and vote at a shareholders' meeting or give written consent to corporate
action without a meeting, the board may fix in advance a record date that is not
more than 60 nor less than 10 days before the date of a shareholders' meeting,
or not more than 60 days before any other action.
(b) If no record date is fixed:
(i) The record date for determining shareholders entitled to receive
notice of and vote at a shareholders' meeting shall be the business day next
preceding the day on which notice is given, or if notice is waived as provided
in Section 9 of this Article II the business day next preceding the day on which
the meeting is held.
(ii) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, if no prior action has
been taken by the board, shall be
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the day on which the first written consent is given.
(iii) The record date for determining shareholders for any other
purpose shall be as set forth in Section 1 of Article VIII of these bylaws.
(c) A determination of shareholders of record entitled to receive notice of
and vote at a shareholders' meeting shall apply to any adjournment of the
meeting unless the board fixes a new record date for the adjourned meeting.
However, the board shall fix a new record date if the adjournment is to a date
more than 45 days after the date set for the original meeting.
(d) Only shareholders of record on the corporation's books at the close
of business on the record date shall be entitled to any of the notice and voting
rights listed in subsection (a) of this section, notwithstanding any transfer of
shares on the corporation's books after the record date, except as otherwise
required by law.
Section 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 that does not state
that it is irrevocable shall oo~&nme ~n ~m~A ~O~Qe mn4 m~(pound)e~ unAe!l (~)
~oked by ~he person executing it, before the vote pursuant to that proxy, by a
writing delivered to the corporation stating that the proxy J s revoked, or by
attendance at the meeting and voting in person by the person executing the proxy
or by a subsequent proxy executed by the same person and presented 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 which that
proxy is counted; provided, however, that no proxy shall be valid after the
expiration of 11 months from the date of the proxy, unless otherwise provided in
the proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of sections 705(e) and ?05(f) of
the Corporations Code of California.
Section 13. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders the board may appoint inspectors of election to act at the meeting
and any adjournment thereof. If inspectors of election are not so appointed, or
if any persons so appointed fail to appear or refuse to act, the chair of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to replace
those who so fail or refuse) at
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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.
These inspectors shall: (a) determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots, or consents; (c) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (d) count
and tabulate all votes or consents; (e) determine when the polls shall close;
(f) determine the result; and (g) do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
ARTICLE III DIRECTORS
Section 1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the articles of incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or outside the State of
California; and designate any place within or outside the State of California
for holding any shareholders' meeting or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation on any
lawful terms, in consideration of money paid,
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labor done, services actually rendered, debts or securities canceled, or
tangible or intangible property actually received.
(e) Borrow money and incur indebtedness on behalf of the corporation,
and cause to be executed and delivered for the corporation's purposes,
in the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, and other evidences of debt and securities.
Section 2. NUMBER OF DIRECTORS. Amended, until changed by amendment
to this effective bylaw adopted by the vote or written consent of a majority of
the 9-29-93 outstanding shares entitled to vote. However, an amendment that
would reduce the authorized number of directors to a number fewer than five
cannot be adopted if the votes cast against its adoption at a shareholders'
meeting or the shares not consenting to an action by written consent are equal
to more than one-sixth (16 2/3%) of the outstanding shares entitled to vote.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until
a successor has been elected and qualified.
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 4. VACANCIES. A vacancy in the board of direectors shall be deemed
to exist: (a) if a director dies, resigns or is removed by the shareholders or
an appropriate court, provided in sections 303 or 304 of the California
Corporations Code; (b) if the board of directors declares vacant the offside
of a director whdas been convicted of a felony or declared of unsound mind
by-an order of court; (c) if the authorized number of directors is in, eased;
or (d) if, at, any shareholders' meeting at which one or more director are
elected, the shareholders fail to elect the full authorized number of directors
to be voted for at that meeting.
Amended;
effective 9-29-93
Any director may resign effective on giving written notice to the chair of
the board, the president, the secretary, or the board of directors, unless the
notice specifies a later effective date. If the resignation is effective at a
future time, the board may elect a successor to take office when the resignation
becomes effective.
Except for a vacancy caused by the removal of a director, vacancies on the
board may be filled by approval of the board or, if the number of directors then
in office is less than a quorum,
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by (1) the unanimous written consent of the directors then in office, (2) the
affirmative vote of a majority of the directors then in office at a meeting held
pursuant to notice or waivers of notice complying with section 307 of the
Corporations Code, or (3) a sole remaining director. A vacancy on the board
caused by the removal of a director may be filled only by the shareholders,
except that a vacancy created when the board declares the office of a director
vacant as provided in clause (b) of the first paragraph of this section of the
bylaws may be filled by the board of directors.
The shareholders may elect a directors at any time to fille a vacancy not
filled by the board of directors.
The term of office of a director elected to fill a vacancy shall run until
the next annual meeting of the shareholders, and such a director shall hold
office until a successor is elected and qualified.
Section 5. PLACE OF MEETINGS; TELEPHONE MEETINGS. Regular meetings of the
board of directors may be held at any place within or outside the State of
California as designated from time to time by the board. In the absence of a
designation, regular meetings shall be held at the principal executive office of
the corporation. Special meetings of the board shall be held at any place within
or outside the State of California designated in the notice of the meeting, or
if the notice does not state a place, 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, provided that
all directors participating oan hear one another.
Section 6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place, or at any other place that has been designated by the board of
directors, to consider matters of organization, election of officers, and other
business as desired. Notice of this meeting shall not be required unless some
place other than the place of the annual shareholders' meeting has been
designated.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board
of directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice;
however, notice of the time and place of a regular meeting shall be given to any
director not present when the meeting was scheduled.
Section 8. SPECIAL MEETINGS. Special meetings of the board of directors
may be called for any purpose or purposes at any time by the chair of the board,
the president, any vice president, the secretary, or any two directors.
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Special meetings shall be held on four days' notice by mail or
forty-eight hours' notice delivered personally or by telephone or telegraph.
Oral notice given personally or by telephone may be transmitted either to the
director or to a person at the director's office who can reasonably be expected
to communicate it promptly to the director. Written notice, if used, shall be
addressed to each director at the address shown on the corporation's records.
The notice need not specify the purpose of the meeting, nor need it specify the
place if the meeting is to be held at the principal executive office of the
corporation.
Section 9. QUORUM. A majority of the authorized number of directors
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article III. Every act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present shall be regarded as the act of the board of directors, subject to
the provisions of California Corporations Code section 310 (as to approval of
contracts or transactions in which a director has a direct or indirect material
financial interest); section 311 (as to appointment of committees), and section
317(e) (as to indemnification of directors). A meeting at which a quorum is
initially present may continue to transact business, despite the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for that meeting.
Section 10. WAIVER OF NOTICE. Notice of a meeting, if otherwise
required, need not be given to any director who (i) either before or after the
meeting signs a waiver of notice or a consent to holding the meeting without
being given notice; (ii) signs an approval of the minutes of the meeting; or
(iii) attends the meeting without protesting the lack of notice before or at the
beginning of the meeting. Waivers of notice or consents need not specify the
purpose of the meeting. All waivers, consents, and approvals of the minutes
shall be filed with the corporate records Or made a part of the minutes of the
meeting.
Section 11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not a
quorum is present, a majority of the directors present may adjourn any meeting
to another time or place.
Section 12. NOTICE OF ADJOURNED MEETING. Notice of the time and place of
resuming a meeting that has been adjourned need not be given unless the
adjournment is for more than 24 hours, in which case notice shall be given,
before the time set for resuming the adjourned meeting, to the directors who
were not present at the time of the adjournment. Notice need not be given in any
case to directors who were present at the time of adjournment.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the board of directors may be taken
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(g) Appointing other committees of the board or their members.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, bylaw
provisions applicable to meetings and actions of the board of directors, wi~h
such changes in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its members, except
that (a) the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; (b)
special meetings of committees may also be called by resolution of the board of
directors; and (c) notice of special meetings of committees shall also be given
to all alternative members who shall have the right to attend all meetings of
the committee. The board of directors may adopt rules for the governance of any
committee not inconsistent with these bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a
president, a chief financial officer, and a secretary. The corporation may also
have, at the discretion of the board of directors, a chair of the board, a chief
executive officer (in addition to a president), a treasurer, 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 Section 3 of this
Article V. Any number of offices may be held by the same person.
Section 2. APPOINTMENT OF OFFICERS. The officers of the corporation,
except for subordinate officers appointed in accordance with Section 3 of this
Article V, shall be appointed annually by the board of directors, and shall
serve at the pleasure of the board of directors.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint, and
may empower the president or vice president to appoint other officers as
required by the business of the corporation, whose duties shall be as provided
in the bylaws, or as determined from time to time by the board of directors or
the president.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by
the board of directors may be removed at any time, with or without cause or
notice, by the board of directors. Subordinate officers appointed by persons
other than the board under Section 3 of this Article V may be removed at any
time, with or without cause or notice, by the board of directors or by the
officer by whom appointed. Officers may be employed for a
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specified term under a contract of employment if authorized by the board of
directors; such officers may be removed from office at any time under this
section, and shall have no claim against the corporation or individual officers
or board members because of the removal except any right to monetary
compensation to which the officer may be entitled under the contract of
employment.
Any officer may resign at any time by giving written notice to the
corporation. Resignations shall take effect on the date of receipt of the
notice, unless-a later time is specified in the notice. Unless otherwise
specified in the notice, acceptance of the resignation is not necessary to make
it effective. Any resignation is without prejudice to the rights, if any, of the
corporation to monetary damages under any contract of employment to which the
officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office resulting from
an officer's death, resignation, removal, disqualification, or from any other
cause shall be filled in the manner prescribed in these bylaws for regular
election or appointment to that office.
Section 6. CHAIR OF THE BOARD. The board of directors may elect a chair,
who shall preside, if present, at board meetings and shall exercise and perform
such other powers and duties as may be assigned from time to time by the board
of directors. If there is no chief executive officer or in the absence of the
chief executive officer, the chair of the board shall, in addition, be the chief
executive officer of the corporation, and shall have the powers and duties as
set forth in Section 7 of this Article V.
Section 7. CHIEF EXECUTIVE OFFICER. The board of directors may elect a
chief executive officer, who, in the absence of the president or if there is no
president, shall act in the capacity of the president and shall have the powers
and duties as set forth in Section 8 of this Article V. Upon the removal, death,
incapacity, or resignation of the president, the chief executive officer shall
become the president of the corporation and hold that office until a new
president is elected by the board.
Section 8. PRESIDENT. Except to the extent that the bylaws or the board
of directors assign specific powers and duties to the chair of the board, the
president shall be the corporation's general manager and, subject to the control
of the board of directors, shall have general supervision, direction, and
control over the corporation's business and its officers. The managerial powers
and duties of the president shall include, but are not limited to, all the
general powers and duties of management usually vested in the office of
president of a corporation, and the president shall have other powers and duties
as prescribed by the board of directors or the bylaws. The president shall
preside
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at all meetings of the shareholders and, in the absence of the chair of the
board or if there is no chair of the board, shall also preside at meetings of
the board of directors. If there is also a chief executive officer, in addition
to the president, then, for the purpose of giving any reports or executing any
documents requiring the signature of the "chief executive officer", such reports
shall be made and such documents executed by either the president or the chief
executive officer.
Section 9. VICE PRESIDENTS. If desired, one or more vice presidents may
be chosen by the board of directors in accordance with the provisions for
appointing officers set forth in Section 2 of this Article V. In the absence or
disability of the president, the chief executive officer and the chair of the
board (or if there is no chief executive officer or chair of the board), the
president's duties and responsibilities shall be carried out by the highest
ranking available vice president if vice presidents are ranked or, if not, by a
vice president designated by the board of directors. When so acting, a vice
president shall have all the powers of and be subject to all the restrictions on
the president. Vice presidents of the corporation shall have such other powers
and perform such other duties as prescribed from time to time by the board of
directors, the bylaws, or the president.
Section 10. SECRETARY
(a) Minutes.
The secretary shall keep, or cause to be kept, minutes of all of the
shareholders' meetings and of all other board meetings. If the secretary is
unable to be present, the secretary or the presiding officer of the meeting
shall designate another person to take the minutes of the meeting.
The secretary shall keep, or cause to be kept, at the principal
executive office or such other place as designated by the board of directors, a
book of minutes of all meetings and actions of the shareholders, of the board of
directors, and of committees of the board. The minutes of each meeting shall
state the time and place the meeting was held; whether it was regular or
special; if special, how it was called or authorized; the names of directors
present at board or committee meetings; the number of shares present or
represented at shareholders' meetings; an accurate account of the proceedings;
and when it was adjourned.
(b) Record of Shareholders.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the transfer agent or registrar, a record
or duplicate record of shareholders. This
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record shall show the names of all shareholders and their addresses, the number
and classes of shares held by each, the number and date of share certificates
issued to each shareholder, and the number and date of cancellation of any
certificates surrendered for cancellation.
(c) Notice of Meetings.
The secretary shall give notice, or cause notice to be given, of
all shareholders' meetings, board meetings, and meetings of committees of the
board for which notice is required by statute or by the bylaws. If the secretary
or other person authorized by the secretary to give notice fails to act, notice
of any meeting may be given by any other officer of the corporation.
(d) Other Duties.
The secretary shall keep the seal of the corporation, if any, in safe
custody. The secretary shall have such other powers and perform other duties as
prescribed by the board of directors or by the bylaws.
Section 11. CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep, or cause to be kept, 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 (1) deposit corporate funds and other
valuables in the corporation's name and to its credit with depositaries
designated by the board of directors; (2) make disbursements of corporate funds
as authorized by the board; (3) render a statement of the corporation's
financial condition and an account of all transactions conducted as chief
financial officer whenever requested by the president or the board of directors;
and (4) have other powers and perform other duties as prescribed by the board of
directors or the bylaws.
Unless the board of directors has elected a separate treasurer, the
chief financial officer shall be deemed to be the treasurer for purposes of
giving any reports or executing any certificates or other documents.
Section 12. LIMITATION ON AUTHORITY OF OFFICERS TO BIND THE CORPORATION.
The authority of any officer to bind the corporation may be limited by
resolution duly passed by the board, without amendment to these bylaws.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS, AND EXPENSES. For the purposes of this
Article, "agent" means any person who is or was a director, officer, employee,
or other agent of this corporation, or who is or was serving at the request of
this corporation as a director, officer, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other enterprise,
or who was a director, officer, employee, or agent of a foreign or domestic
corporation that was a predecessor corporation of this corporation or of another
enterprise at the request of such predecessor corporation; "proceeding" means
any threatened, pending, or completed action or proceeding, whether civil,
criminal, administrative, or investigative; and "expenses" includes, without
limitation, attorney fees and any expenses of establishing a right to
indemnification under Section 4 or Section 5(d) of this Article VI.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. This corporation shall
have the power to indemnify any person who was or is a party, or is threatened
to be made a party, to any proceeding (other than an action by or in the right
of this corporation to procure a judgment in its favor) by reason of the fact
that such person is or was an agent of this corporation, against expenses,
judgments, fines, settlements, and other mmounte actually and reasonably
incurred in connection with such proceeding i~ tha~ person aa~ed ~n good ~ai~h
and ~ a manne~ that the person reasonably believed to be in the best interests
of this corporation and, in the case of a criminal proceeding, had no reasonable
cause to believe the conduct of that person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner that the person reasonably
believed to be in the best interests of this corporation or that the person had
reasonable cause to believe that the person's conduct was not unlawful.
Section 3. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. This
corporation shall have the power to indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending, or completed
action by or in the right of this corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of this corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of that action, if such person acted in good
faith, in a manner such person believed to be in the best interests of this
corporation and its
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shareholders. No indemnification shall be made under this Section 3 for the
following:
(a) With respect to any claim, issue, or matter as to which such
person has been adjudged to beliable to this corporation in the performance of
such person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which such proceeding is or was pending shall
determine on application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine;
(b) Amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(c) Expenses incurred in defending a pending action that is settled or
otherwise disposed of without court approval.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent of this
corporation has been successful on the merits in defense of any proceeding
referred to in Section 2 or 3 of this Article VI, or in defense of any claim,
issue, or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED APPROVAL. Except as provided in Section 4 of this
Article VI, any indemnification under this Section shall be made by the
corporation only if authorized in the specific case, after a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Section 2 or 3 by one of
the following:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) Independent legal counsel in a written opinion if a quorum of
directors who are not parties to such a proceeding is not available;
(c) (i) The affirmative vote of a majority of shares of this
corporation entitled to vote represented at a duly held meeting at which a
quorum is present; or
(ii) the written consent of holders of a majority of the
outstanding shares entitled to vote (for purposes of this subsection 5(c), the
shares owned by the person to be indemnified shall not be considered outstanding
or entitled to vote thereon); or,
(d) The court in which the proceeding is or was
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trustee, investment manager, or other fiduciary of an employee benefit plan in
that person's capacity as such, even though that person may also be an agent of
the corporation. The corporation shall have the power to indemnify, and to
purchase and maintain insurance on behalf of any such trustee, investment
manager, or other fiduciary of any benefit plan for any or all of the directors,
officers, and employees of the corporation or any of its subsidiary or
affiliated corporations.
Section 11. SURVIVAL OF RIGHTS. The rights provided by this Article VI
shall continue for a person who has ceased to be an agent and shall inure to the
benefit of the heirs, executors, and administrators of such person.
Section 12. EFFECT OF AMENDMENT. Any amendment, repeal, or modification
of this Article VI shall not adversely affect an agent's right or protection
existing at the time of such amendment, repeal, or modification.
Section 13. SETTLEMENT OF CLAIMS. The corporation shall not be liable to
indemnify any agent under this Article VI for (a) any amounts paid in settlement
of any action or claim effected without the corporation's written consent, which
consent shall not be unreasonably withheld or (b) any judicial award, if the
corporation was not given a reasonable and timely opportunity to participate, at
its expense, in the defense of such action.
Section 14. SUBROGATION. In the event of payment under this Article VI,
the corporation shall be subrogated to the extent of auoh.payment to sll of the
rights of recovery of the agent, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents as may be necessary to enable the corporation
effectively to bring suit to enforce such rights.
Section 15. NO DUPLICATION OF PAYMENTS. The corporation shall not be
liable under this Article VI to make any payment in connection with any claim
made against the agent to the extent the agent has otherwise actually received
payment, whether under a policy of insurance, agreement, vote, or otherwise, of
the amounts otherwise indemnifiable under this Article.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE OF SHAREHOLDER RECORD AND INSPECTION BY
SHAREHOLDERS. The corporation shall keep at its principal executive office or
at the office of its transfer agent or registrar, as determined by resolution of
the board of directors, a record of the names and addresses of all shareholders
and the number and class of shares held by each shareholder.
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A shareholder or shareholders holding at least 5 percent in the aggregate
of the outstanding voting shares of the corporation have the right to do either
or both of the following:
(a) Inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours, on five days' prior written
demand on the corporation, or
(b) Obtain from the corporation's transfer agent, on written demand
and tender of the transfer agent's usual charges for this service, a list of the
names and addresses of shareholders who are entitled to vote for the election of
directors, and their shareholdings, as of the most recent record date for which
a list has been compiled or as of a specified date later than the date of
demand. This list shall be made available within five days after (i) the date of
demand or (ii) the specified later 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 holder of a voting trust certificate. Any
inspection and copying under this section may be made in person or by an agent
or attorney of the shareholder or holder of a voting trust certificate making
the demand.
Section 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 this state, the
original or a copy of the bylaws as amended to date, which shall be open
to inspection by the shareholders at all reasonable times during office hours.
If the principal executive office of the corporation is outside the State
of California and the corporation has no principal business office in this
state, the secretary shall, on the written request of any shareholder, furnish
to that shareholder a copy of the bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF MINUTES AND ACCOUNTING RECORDS.
The minutes of proceedings of the shareholders, board of directors, and
committees of the board, and the accounting books and records, shall be kept at
the principal executive office of the corporation, or at such other place or
places as designated by the board of directors. The minutes shall be kept in
written form, and the accounting books and records shall be kept either in
written form or in a form capable of being converted into written form. The
minutes and accounting books and records shall be open to inspection on 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
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shareholder or 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. These rights of inspection shall extend to the records of each
subsidiary of the corporation.
Section 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 and the physical properties of the corporation and each
of its subsidiary corporations. This inspection by a director may be made in
person or by an agent or attorney and the right of inspection includes the right
to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS.
(a) Inasmuch as, and for as long as, there are fewer than 100
shareholders, the requirement of an annual report to shareholders referred to in
section 1501 of the California Corporations Code is expressly waived. However,
nothing in this provision shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the shareholders, as
the board considers appropriate.
(b) If at any time the number of shareholders shall exceed 100,
subsection (a) shall be deemed repealed, and the following provisions shall be
substituted:
The board of directors shall cause an annual report to be sent to the
shareholders not later than 120 days after the close of the fiscal year adopted
by the corporation. This report shall be sent at least 15 days (if third-class
mail is used, 35 days) before the annual meeting of shareholders to be held
during the next fiscal year and in the manner specified for giving notice to
shareholders in Section 5 of Article II of these bylaws. The annual report shall
contain a balance sheet as of the end of the fiscal year and an income statement
and a statement of changes in financial position for the fiscal year prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and accompanied by 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 corporation's books and
records.
Section 6. FINANCIAL STATEMENTS. The corporation shall keep a copy of each
annual financial statement, quarterly or other periodic income statement,
and accompanying balance sheets prepared by the corporation on file in the
corporation's principal executive office for 12 months; these documents shall
be exhibited at all reasonable times, or copies provided, to any
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shareholder on demand.
If no annual report for the last f~scal year has been sent to shareholders,
on written request of ally shareholder made more than 120 days after the close
of the fiscal year the corporation shall deliver or mail to the shareholder,
within 30 days after receipt of the request, a balance sheet as of the end of
that fiscal year and an incomestatement and statement of changes in financial
position for that fiscal year.
A shareholder or shareholders holding 5 percent or more of the
outstanding shares of any class of stock of the corporation may requestin
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request) of
the current fiscal year, and a balance sheet of the corporation as of the end of
that period. If suchdocuments are not already prepared, the chief financial
officer shall cause'them to be prepared and shall deliver the documents
personally or mail them to the requesting shareholders within 30 days after
receipt of the request. A balance sheet, income statement, and statement of
changes in financial position for the last fiscal year shall also be included,
unless the corporation has sent the shareholders an annual report for the last
fiscal year.
Quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of independent accountants
engaged by thecorporation or the certificate of an authorized corporate officer
stating that the financial statements were prepared without audit from the
corporation's books and records.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
(a) Every year, during the calendar month in which the original articles
of incorporation were filed with the California Secretary of State, or during
the preceding five calendar months, the corporation shall file a statement with
the Secretary of State on the prescribed form, setting forth the authorized
number of directors; the names and complete business or residence addresses of
all incumbent directors; the names and complete business or residence addresses
of the chief executive officer, the secretary, and the chief financial officer;
the street address of the corporation's principal executive office or principal
business office in this state; a statement of the general type of business
constituting the principal business activity of the corporation; and a
designation of the agent of the corporation for the purpose of service of
process, all in compliance with section 1502 of the Corporations Code of
California.
(b) Notwithstanding the provisions of paragraph (a) of this 23
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section, if there has been no change in the information in the corporation's
last annual statement on file in the Secretary of State's office, the
corporation may, in lieu of filing the annual statement described in paragraph
(a) of this section, advise the Secretary of State, on the appropriate form,
that no changes in the required information have occurred during the applicable
period.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For
purposes of determining the shareholders entitled to receive payment of
dividends or other distributions or allotment of rights, or entitled to exercise
any rights in respect of any other lawful action (other than voting at and
receiving notice of shareholders' meetings and giving written consent of the
shareholders without a meeting), the board of directors may fix in advance a
record date, which shall be not more than 60 nor less than 10 days before the
date of the dividend payment, distribution, allotment, or other action. If a
record date is so fixed, only shareholders of record at the close of business on
that date shall be entitled to receive the dividend, distribution, or allotment
of rights, or to exercise the other rights, as the case may be, notwithstanding
any transfer of shares on the corporation's books after the record date, except
as otherwise provided by statute.
If the board of directors does not so fix a record date in advance, the
the record date shall be at the close of business on the later of (1) the day on
which the board of directors adopts the applicable resolution or (2) the 60th
day before the date of the dividend payment, distribution, allotment of rights,
or other action.
Section 2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, other
orders for payment of money, notes, or other evidences of indebtedness issued in
the name of or payable to the corporation shall be signed or endorsed by such
person or persons and in such manner authorized from time to time by resolution
of the board of directors.
Section 3. EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS. Except as
otherwise provided in the articles or in these bylaws, the board of directors by
resolution may authorize any officer, officers, agent, or agents to enter into
any contract or to execute any instrument in the name of and on behalf of the
corporation. This authority may be general or it may be confined to one or more
specific matters. No officer, agent, employee, or other person purporting to act
on behalf of the corporation shall have any power or authority to bind the
corporation in any way, to pledge the corporation's credit, or to render the
corporation
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liable for any purpose or in any amount, unless that person was acting with
authority duly granted by the board of directors as provided in these bylaws, or
unless an unauthorized act was later ratified by the corporation.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of the shares are fully paid. In addition to certificates
for fully paid shares, the board of directors may authorize the issuance of
certificates for shares that are partly paid and subject to call for the
remainder of the purchase price, provided that the certificates representing
partly paid shares shall state the total amount of the consideration to be paid
for the shares and the amount actually paid.
All certificates shall Certify the number of shares and the class or
series of shares represented by the certificate. All certificates shall be
signed in the name of the corporation by (1) either the chair of the board of
directors, the vice chair of the board of directors, the president, or any vice
president, and (2) either the chief financial officer, any assistant treasurer,
the secretary, or any assistant secretary.
None of the signatures on the certificate may be facsimile. If any
officer, transfer, agent, or registrar who has signed a certificate shall have
ceased to be that officer, transfer agent, or registrar before that certificate
is issued, the certificate 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.
Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no
new certificates for shares shall be issued to replace old certificates unless
the old certificate is surrendered to the corporation for cancellation at the
same time. If share certificates or certificates for any other security have
been lost, stolen, or destroyed, the board of directors may authorize the
issuance of replacement certificates on terms and conditions as required by the
board, which may include a requirement that the owner give the corporation a
bond (or other adequate security) sufficient to indemnify 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 old
certificate or the issuance of the replacement certificate.
Section 6. SHARES OF OTHER CORPORATIONS: HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by one of
the following persons, listed in order of preference: (1) chair of the board, or
person designated by the chair of the board; (2) president, or person designated
by
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the president; (3) first vice president, or person designated by the first vice
president; (4) other person designated by the board of directors.
The authority to vote shares granted by this section includes the authority
to execute a proxy in the name of the corporation for purposes of voting the
shares.
Section 7. REIMBURSEMENT OF CORPORATION IF PAYMENT NOT TAX DEDUCTIBLE. If
all or part of the compensation, including expenses, paid by the corporation to
a director, officer, employee, or agent is finally determined not to be
allowable to the corporation as a federal or state income tax deduction, the
director, officer, employee, or agent to whom the payment was made shall repay
to the corporation the amount disallowed. The board of directors shall enforce
repayment of each such amount disallowed by the taxing authorities.
Section 8. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
sections 100 through 195 of the California Corporations 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
Section 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, the authorized number of Directors may
be changed only by an amendment of the Articles of Incorporation.
Section 2. AMENDMENT BY BOARD OF DIRECTORS. Subject to the right of the
Shareholders to adopt, amend or repeal bylaws, as provided in Section 1 of this
Article IX, and the limitations of sections 204 (a) (5) and 212, of the
California Corporations Code, the Board of Directors may adopt, amend or repeal
any of these bylaws other than a bylaw or amendment thereof changing the
authorized number of Directors.
Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw is
adopted, it shall be copied in the book of bylaws with the original bylaws,
in the appropriate place. If any bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written assent was filed
shall be
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stated in said book.
ARTICLE X
MISCELLANEOUS
Section 1. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of other
corporations standing in the name of this corporation may be voted or
represented and all incidents theret(degree) may be exercised on behalf of the
corporation by the Chair of the Board, the President or any Vice President and
the Secretary or an Assistant Secretary.
Section 2. SUBSIDIARY CORPORATIONS. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. A subsidiary for these
purposes is defined in section 189 (b) of the California Corporations Code.
Section 3. ACCOUNTING YEAR. The accounting year of the Corporation shall be
fixed by resolution of the Board of Directors.
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CERTIFICATE OF ADOPTION OF BYLAWS
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of the above
named corporation and that the above and foregoing bylaws was submitted to the
Shareholders at their first meeting and recorded in the minutes thereof, was
ratified by the vote of Shareholders entitled to exercise the majority of the
voting power of said corporation.
WITNESS WHEREOF, I have hereunto set my hand this ____ day of
______________, _____
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