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Exhibit 3.3
BYLAWS
of
LANTRONIX
A California Corporation
<PAGE>
T A B L E O F C O N T E N T S
<TABLE>
<S> <C>
ARTICLE I - Offices
-------------------
Section 1. Principal Office.................................. 1
Section 2. Other Offices..................................... 1
ARTICLE II - Meetings of Shareholders
-------------------------------------
Section 1. Place of Meetings................................. 1
Section 2. Annual Meeting.................................... 1
Section 3. Special Meetings.................................. 2
Section 4. Quorum............................................ 3
Section 5. Adjourned Meeting and Notice Thereof.............. 3
Section 6. Voting............................................ 3
Section 7. Consent of Absentees.............................. 4
Section 8. Action Without Meeting............................ 4
Section 9. Proxies........................................... 5
Section 10. Inspectors of Election,........................... 6
ARTICLE III - Directors
-----------------------
Section 1. Powers............................................ 6
Section 2. Number and Qualification of Directors............. 9
Section 3. Election and Term of Office....................... 9
Section 4. Vacancies......................................... 9
Section 5. Place of Meetings & Meetings by Telephone......... 10
Section 6. Organization Meeting.............................. 10
Section 7. Other Regular Meetings............................ 11
Section 8. Special Meetings.................................. 11
Section 9. Quorum............................................ 11
Section 10. Waiver of Notice.................................. 11
Section 11. Adjournment....................................... 12
Section 12. Notice of Adjournment............................. 12
Section 13. Action Without Meeting............................ 12
Section 14. Fees and Compensation............................. 12
Section 15. Removal of Board of Directors or Individual
Directors by Shareholders...................... 13
ARTICLE IV - Officers
---------------------
Section 1. Officers.......................................... 13
Section 2. Election.......................................... 13
Section 3. Subordinate Officers, etc......................... 14
Section 4. Removal and Resignation........................... 14
Section 5. Vacancies......................................... 14
Section 6. Chairman of the Board............................. 14
Section 7. President/Chief Executive Officer................. 15
Section 8. Vice-President.................................... 15
Section 9. Secretary......................................... 15
Section 10. Treasurer/Chief Financial Officer................. 16
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<TABLE>
<S> <C>
ARTICLE V - Indemnification of Directors, Officers, Employees and
-----------------------------------------------------
Other Agents............................................... 16
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ARTICLE VI - Miscellaneous
--------------------------
Section 1. Record Date for Shareholder Notice, Voting,
and Giving Consents............................ 17
Section 2. Record Date for Purposes other than Notice
and Voting..................................... 17
Section 3. Maintenance and Inspection of Share Register...... 18
Section 4. Maintenance and Inspection of Financial
Statements..................................... 19
Section 5. Maintenance and Inspection of Other Corporate
Records........................................ 20
Section 6. Inspection by Director............................ 20
Section 7. Annual Report to Shareholders..................... 20
Section 8. Checks, Drafts, etc............................... 20
Section 9. Contracts, etc., How Executed..................... 21
Section 10. Annual Statement of General Information........... 21
Section 11. Certificates for Shares........................... 21
Section 12. Lost Certificates................................. 22
Section 13. Representation of Shares of Other Corporations.... 22
Section 14. Inspection of Bylaws.............................. 22
Section 15. Construction and Definitions...................... 23
Section 16. First Right of Refusal............................ 23
ARTICLE VII - Amendments
------------------------
Section 1. Power of Shareholders............................. 25
Section 2. Power of Directors................................ 25
Certificate by Secretary................................................. 26
------------------------
</TABLE>
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A R T I C L E I
Offices
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Section 1. Principal Office.
----------------
I.1.01 The board of directors shall fix the location of the principal
executive office of the corporation at any place within or outside the State of
California. If the principal executive office is located outside this state, and
the corporation has one or more business offices in this state, the board of
directors shall fix and designate a principal business office in the State of
California. In accordance with the provisions of the California General
Corporation Law, the Secretary of the corporation shall annually file, or cause
to be filed, with the Secretary of State of the State of California, a statement
of the location and address of the principal office in California, as further
provided hereinafter.
Section 2. Other offices.
-------------
I.2.01 Branch or subordinate offices may at any time be established by
the board of directors at any place or places where the corporation is qualified
to do business.
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings.
-----------------
II.1.01 All annual meetings of shareholders shall be held at the
principal executive office of the corporation, and all other meetings of
shareholders shall be held either at the principal executive office or at any
other place within or without the State of California which may be designated
either by the board of directors pursuant to authority hereinafter granted to
said board, or by "approval of the shareholders", as that phrase is defined by
the California General Corporation Law, by majority written consent, given
either before of after the meeting, and filed with the secretary of the
corporation.
Section 2. Annual Meeting.
--------------
II.2.01 The date and time of the annual meetings of shareholders may
initially be fixed by the Incorporator or Initial Director(s) of the
corporation. Thereafter, the date and time of such meetings may be changed from
time to time by "approval of the
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shareholders" or "approval of the board", as those phrases are defined by the
California General Corporation Law. Should the date of any such meeting, so
fixed, fall upon a legal holiday, then any such meeting shall be held at the
same time and place on the next day thereafter ensuing which is not a legal
holiday. At such meetings directors shall be elected, reports of the affairs of
the corporation shall be considered, and any other business may be transacted
which is within the powers of the shareholders.
II.2.02 Written notice of each annual meeting shall be given to each
shareholder entitled to vote, either personally or by mail or other means of
written communication, charges prepaid, addressed to such shareholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. If a shareholder gives no address, notice
shall be deemed to have been given him if sent by mail or other means of written
communication addressed to the place where the principal office of the
corporation is situated, or if published at least once in some newspaper of
general circulation in the county in which said office is located. All such
notices shall be sent to each shareholder entitled thereto not less than ten
(10) nor more than sixty (60) days before each annual meeting. Such notices
shall specify the place, the day, and the hour of such meeting, and shall state
such other matters, if any, as may be expressly required by statute.
II.2.03 An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting shall be executed by the secretary,
assistant secretary, or any transfer agent of the corporation giving the notice,
and shall be filed and maintained in the minute book of the corporation.
Section 3. Special Meetings.
----------------
II.3.01 Special meetings of the shareholders, for any purpose or
purposes whatsoever, may be called at any time by the President, or by any Vice-
President, or by the board of directors, or by one or more shareholders holding
not less than ten percent (10%) of the voting power of the corporation. Except
in special cases where other express provision is made by statute, notice of
such special meetings shall be given in the same manner as for annual meetings
of shareholders. Notices of any special meeting shall specify, in addition to
the place, day, and hour of such meeting, the general nature of the business to
be transacted.
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Section 4. Quorum.
------
II.4.01 At any meeting, the presence in person or by proxy of the
persons lawfully entitled to vote a majority of the voting shares thereat 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.
Section 5. Adjourned Meeting and Notice Thereof.
------------------------------------
II.5.01 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. When a shareholders' meeting, either annual or
special, is adjourned for forty-five (45) days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting. Save as aforesaid,
it shall not be necessary to give any notice of the time and place of the
adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken.
Section 6. Voting.
------
II.6.01 The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with these bylaws, subject to any
applicable provisions of the California General Corporation Law. 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. On any matter other than elections of directors, any
shareholder may vote part of the shares 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 which 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, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on any matter (other than the
election of directors) shall be the act of the shareholders, unless the vote of
a greater number or voting by classes is required by the California General
Corporation Law or by the articles of incorporation.
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II.6.02 At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e., cast for any
one or more candidates a number of votes greater than the number of the
shareholder's shares) unless the candidates' names have been placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then every
shareholder entitled to vote may cumulate votes for candidates in nomination 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 that shareholder's shares are
entitled, or distribute the shareholder's votes on the same principal 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 7. Consent of Absentees.
--------------------
II.7.01 The transactions of any meeting of shareholders, either annual
or special, however called and noticed, shall be as valid as though had 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 of the
persons entitled to vote, not present in person or by proxy, signs a written
waiver of notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers, consents, or approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
Section 8. Action Without Meeting.
----------------------
II.8.01 Any action which may be taken at any annual or special meeting
of shareholders may be taken without a meeting and without prior notice, if a
consent is written, 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 to take that action at a meeting at which all
shares entitled to vote on that action were present and voted. In the case of
election of directors, such a consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of
directors; provided however, that a director may be elected at any time to fill
a vacancy on the board of directors that have not been filled by the directors,
by the written consent of the holders of a majority of the outstanding shares
entitled to vote for the election of directors. All such consents shall be filed
with the secretary of the corporation and shall be maintained in the corporate
records. Any shareholder giving a written consent, or the shareholder's proxy
holders, or a transferee or their respective proxy holders; may revoke the
consent by writing received by the secretary of the corporation before written
consents of the number of shares required to
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authorize the proposed action have been filed with the secretary.
II.8.02 If the consents of all shareholders entitled to vote have not
been solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 2 of this Article
II. In the case of approval of: (i) contracts or transactions in which a
director has a direct or indirect financial interest, pursuant to Section 310 of
the California General Corporation Law; (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Law; (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Law; and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of that Law, the notice shall be given at least
ten (10) days before consummation of any action authorized by that approval.
Section 9. Proxies.
-------
II.9.01 Every person entitled to vote for directors or on any other
matter shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature; typewriting, telegraphic
transmission, or otherwise) by the shareholder or the shareholder's attorney in
fact. A validly executed proxy which does not state that it is irrevocable shall
continue in full force and effect unless: (i) revoked by the person executing
it, before the vote pursuant to that proxy, by a writing delivered to the
corporation stating that the proxy is revoked, or by a subsequent proxy
executed, or attendance at the meeting and voting in person, by the person
executing the proxy; or (ii) written notice of the death or incapacity of the
maker of that proxy is received by the corporation before the vote pursuant to
that proxy is counted; provided however, that no proxy shall be valid after the
expiration of eleven (11) months from the date of the proxy, unless otherwise
provided in the proxy. The revocability of a proxy that states on its face that
it is irrevocable shall be governed by the provisions of Sections 705(e) and
705(f) of the California General Corporation Law.
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Section 10. Inspectors of Election.
----------------------
II.10.01 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 or 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 either one (1) or three (3). If
inspectors of elections are to be appointed at a meeting pursuant to the request
of any shareholder or his proxy, the majority of shares present shall determine
whether one (1) or three (3) inspectors are to be appointed. In case any person
appointed as inspector fails to appear or fails or refuses to act, the chairman
of the meeting may, and upon the request of any shareholder or has proxy shall,
appoint a person to fill that vacancy.
II.10.02 The duties of such inspectors shall be as prescribed by
Section 707 of the California 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 the result; and such acts as may be proper to conduct the election
or vote with fairness to all shareholders.
A R T I C L E I I I
Directors
---------
Section 1. Powers.
------
III.l.01 Subject to limitations of the articles of incorporation, of
the bylaws, and of the California General Corporation Law as to action to be
authorized or approved by the shareholders, and subject to the duties of
directors as prescribed by the bylaws, all corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be controlled by, the board of directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
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(a) To select and remove all the other officers, agents and
employees of the corporation, prescribe such powers and duties for them as may
not be inconsistent with law, with the articles of incorporation or the bylaws,
fix their compensation and require from them security for faithful service.
(b) 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 the bylaws, as
they may deem best.
(c) To change the principal executive or the principal business
office in the State of California from one location to another; to fix and
locate from time to time one or more subsidiary offices of the corporation
within or without the State of California, as provided herein; to cause the
corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or without the State of
California; to designate any place within or without the State of California for
the holding of any shareholders' meeting or meetings including annual meetings;
and to adopt, make and use a corporate seal, and to prescribe the forms of
certificates of stock, and to alter the form of such seal and of such
certificates from time to time, as in their Judgement they may deem best,
provided such seal and such certificates shall at all times comply with the
provisions of law.
(d) 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 or services actually rendered, debts or securities cancelled,
tangible or intangible property actually received, amounts transferred from
surplus to stated capital upon the issue of shares as a dividend, or amounts
transferred from surplus to stated capital upon a stock split, reverse stock
split, reclassification of outstanding shares into shares of another class,
conversion of outstanding shares into shares of another class, exchange of
outstanding shares for shares of another class, increase in per-share par value,
or other change affecting outstanding shares, which results in an increase in
the aggregate par value of the outstanding shares.
(e) 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.
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(f) To appoint, by resolution adopted by a majority of the
authorized number of directors, one or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Any committee, to the
extent provided in the resolution of the board, shall have all the authority of
the board, except with the respect to:
(i) The approval of any action which, under the General
Corporation Law of California, also required shareholders' approval or approval
of the outstanding shares;
(ii) The filling of vacancies on the board of directors or
in any committee;
(iii) The fixing of compensation of the directors for
serving on the board or on any committee;
(iv) The amendment or repeal of bylaws or the adoption of
new bylaws;
(v) The amendment or repeal of any resolution of the board
of directors which by its express terms is not so amendable or repealable;
(vi) A distribution to the shareholders of the corporation,
except at a rate or in a periodic amount or within a price range determined by
the board of directors; or,
(vii) the appointment of any other committees of the board
of directors or the members of these committees.
III.1.02 Meetings and action of committees shall be governed by, and
held and taken in accordance with the provisions of this article, with such
changes in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its members, except
that the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; special
meetings of committees may also be called by resolution of the board of
directors; and notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
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Section 2. Number and Qualification of Directors.
-------------------------------------
III.2.01 The authorized number of directors shall not be less than
three, nor more than seven, with the exact number of directors to be fixed, as
set forth below.
III.2.02 Within the limits specified above, the authorized number of
directors may initially be fixed by the Incorporator or the Initial Director(s)
of the corporation. Thereafter, the authorized number of directors may be
changed from time to time, within the limits specified above, by "approval of
the board" or "approval of the shareholders", as those phrases are defined by
the General Corporation Law, and subject to any other applicable limitations
imposed thereby. This bylaw may only be amended or repealed, expressly or by
implication, in accordance with the requirements of Section 212(a) of the
California General Corporation Law respecting adoption of such bylaws after the
issuance of shares, any other bylaw herein to the contrary notwithstanding.
Section 3. Election and Term of Office.
---------------------------
III.3.01 The directors shall be elected at each annual meeting of
shareholders, but if any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose. All directors shall hold office until their
respective successors are elected.
Section 4. Vacancies.
---------
III.4.01 Vacancies in the board of directors may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until his
successor is elected at an annual or a special meeting of the shareholders.
III.4.02 A vacancy or vacancies in the board of directors shall be
deemed to exist in case of the death, resignation or removal of any director, or
if the authorized
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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.
III.4.03 The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
III.4.04 Any director may resign effective on giving written notice to
the chairman of the board, the president, the secretary, or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
III.4.05 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 5. Place of Meetings & Meetings by Telephone.
-----------------------------------------
III.5.01 Regular meetings of the board of directors may be held at any
place within or outside the State of California that has been designated from
time to time by resolution of the board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board shall be held at any place within or
outside the State of California that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the corporation. Any meeting, regular or special,
may be held by conference telephone or similar communication equipment, so long
as all directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
Section 6. Organization Meeting.
--------------------
III.6.01 Immediately following each annual meeting of shareholders,
the board of directors shall hold a regular meeting for the purpose of
organization, election of officers, and the transaction of other business. Call
and notice of such meetings are hereby dispensed with.
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Section 7. Other Regular Meetings.
----------------------
III.7.01 Other regular meetings of the board of directors shall be
held as called. Notice of all such regular meetings of the board of directors is
hereby dispensed with.
Section 8. Special Meetings.
----------------
III.8.01 Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board or the president
or any vice president or the secretary or any two directors.
III.8.02 Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. In case the notice is
mailed, it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. In case the notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the corporation.
Section 9. Quorum.
------
III.9.01 A majority of the authorized number of directors shall be
necessary to constitute a quorum for the transaction of business, except to
adjourn as hereinafter provided. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the board of directors, unless a
greater number be required by the law or by the articles of incorporation.
Section 10. Waiver of Notice.
----------------
III.10.01 The transactions of any meeting of the board of directors,
however called and noticed or wherever held, shall be as valid as though had at
a meeting duly held after
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regular call and notice, if a quorum be present and if, either before of after
the meeting, each of the directors not present signs a written waiver of notice
or a consent to holding such meeting or an approval of the minutes thereof. All
such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting. Notice of a meeting shall be deemed
given to any director who attends the meeting without protesting the lack of
notice before or at its commencement.
Section 11. Adjournment.
-----------
III.11.01 A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
Section 12. Notice of Adjournment.
---------------------
III.12.01 Notice of the time and place of holding an adjourned meeting
need not be given, unless the meeting is adjourned for more than twenty-four
(24) hours, in which case notice of the time and place shall be given before the
time of the adjourned meeting, in the manner specified in this Article for
special meetings, to the directors who were not present at the time of the
adjournment.
Section 13. Action Without Meeting.
----------------------
III.13.01 Any action required or permitted to be taken by the board of
directors under any provision of the California General Corporation Law 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 the
directors.
Section 14. Fees and Compensation.
---------------------
III.14.01 Directors shall not receive any stated salary for their
services as directors but, by resolution of the board, a fixed fee, with or
without expenses of attendance, may be allowed one (1) or more of the directors
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent, employee, or otherwise, and receiving compensation therefor.
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Section 15. Removal of Board of Directors or Individual Directors by
--------------------------------------------------------
Shareholders.
------------
III.15.0l The entire board of directors or any individual director may
be removed from office by a vote of shareholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
III.15.02 However, unless the entire board is removed, an individual
director shall not be removed if the number of shares voted against the
resolution for his removal exceeds the quotient arrived at when the total number
of outstanding shares entitled to vote is divided by one plug the authorized
number of directors. If any or all directors are so removed, new directors may
be elected at the same meeting. In the event that a class or series of shares is
entitled to elect one or more directors under authority heretofore or hereafter
granted by the articles of this corporation, the provisions of this paragraph
shall apply only to the vote of that class or series, and not to the vote of the
outstanding shares as a whole.
A R T I C L E I V
Officers
--------
Section 1. Officers.
--------
IV.1.01 The officers of the corporation shall be a president or chief
executive officer, a secretary, and a treasurer or chief financial officer. The
corporation may also have, at the discretion of the board of directors, a
chairman of the board, one or more vice-presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of this Article. Any number of
offices may be held by the same person.
Section 2. Election.
--------
IV.2.01 The officers of the corporation, except such officers as may
be appointed in accordance with the provisions of this Article, shall be chosen
by the board of directors, and each shall hold his office until he shall resign
or shall be removed or otherwise disqualified from service, or his successor
shall be elected and qualified.
IV.2.02 After the corporation has elected its first president or chief
executive officer, secretary, and treasurer or chief financial officer, the
secretary of the corporation shall file, or cause to be filed, with the
Secretary of State of the State of California, a statement of the names of the
president or chief executive officer, secretary, and chief financial officer of
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the corporation.
Section 3. Subordinate Officers, etc.
-------------------------
IV.3.01 The board of directors may appoint, and may empower the
president to appoint, such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in the bylaws or as the board of directors
may from time to time determine.
Section 4. Removal and Resignation.
-----------------------
IV.4.01 Any officer may be removed, either with or without cause, by
the board of directors, at any regular or special meeting thereof or, except in
the case of an officer chosen by the board of directors, by any officer upon
whom such power of removal may be conferred by the board of directors.
IV.4.02 Any officer may resign at any time by giving written notice to
the corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Acceptance of resignation is without prejudice
to the rights, if any, of the corporation under any contract to which the
resigning officer is a party.
Section 5. Vacancies.
---------
IV.5.01 A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these bylaws for regular appointments to such office.
Section 6. Chairman of the Board.
---------------------
IV.6.01 The chairman of the board, if there shall be such an office,
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.
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Section 7. President / Chief Executive Officer.
-----------------------------------
IV.7.01 Subject to such supervisory powers, if any, as may be given by
the board of directors to the chairman of the board, if there be such an
officer, the president shall be the chief executive officer of the corporation
and shall, subject to the control of the board of directors, have general
supervision, direction and control of the business and 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 be ex officio a member of all the standing
----------
committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the board of directors or the bylaws.
Section 8. Vice-President.
--------------
IV.8.01 In the absence or disability 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 board of directors, shall perform
all the duties of the president, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the president. The vice-
presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the board of directors
or the bylaws.
Section 9. Secretary.
---------
IV.9.01 The secretary shall keep or cause to be kept, at the principal
office or such other place as the board of directors may order, a book of
minutes of all meetings of directors and shareholders, with the time and place
of holding, whether regular or special, and, if special, how authorized, the
notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at Shareholders' meetings, and the
proceedings thereof.
IV.9.02 The secretary shall keep, or cause to be kept, at the
principal office or at the office of the corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
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IV.9.03 The secretary shall give, or cause to be given, notice of all
the meetings of the shareholders and of the board of directors required by the
bylaws or by law to be given, and he shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by the bylaws.
Section 10. Treasurer / Chief Financial Officer.
-----------------------------------
IV.10.01 The treasurer or chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
surplus and shares. Any surplus, including earned surplus, paid-in surplus and
surplus arising from a reduction of stated capital, shall be classified
according to source and shown in a separate account. The books of account shall
at all reasonable times be open to inspection by any director.
IV.10.01 The treasurer or chief financial officer shall deposit all
monies and other valuables in the name and to the credit of the corporation with
such depositaries as may be designated by the board of directors. He shall
disburse the funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever they request
it, an account of all of his transactions, as treasurer or chief financial
officer, and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or the bylaws.
A R T I C L E V
Indemnification of Directors, Officers,
---------------------------------------
Employees and Other Agents
--------------------------
V.1.01 The corporation shall, to the maximum extent permitted by the
California 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 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 was a director, officer, employee, or agent of a corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
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A R T I C L E V I
Miscellaneous
-------------
Section 1. Record Date for Shareholder Notice, Voting, & Giving Consents.
-------------------------------------------------------------
VI.1.01 For purposes of determining the shareholders entitled to
notice of any meeting, or to vote, or entitled to give consent to corporate
action without a meeting, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of any such meeting, nor more than sixty (60) days before any
such action without a meeting, and in this event only shareholders of record on
the date so fixed are entitled to notice and to vote, or to give consents, as
the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
California General Corporation Law.
VI.1.02 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.
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting: (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given; or (ii) when prier action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the sixtieth (60th) day before the date of such
other action, whichever is later.
Section 2. Record Date for Purposes Other Than Notice & Voting.
---------------------------------------------------
VI.2.01 For purposes of determining the shareholders entitled to
receive payment of any dividend, or other distribution, or allotment of any
rights, or entitled to exercise any rights in respect of any other lawful action
(other than action by shareholders by written consent without a meeting), the
board of directors may fix, in advance, a record date, which shall not be more
than sixty (60) days before any such action, and in that case only shareholders
on record on the date so fixed are entitled to
17
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receive the dividend, distribution, or allotment of rights, or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date so fixed, except as otherwise
provided in the California General Corporation Law.
VI.2.02 If the board of directors does not so fix a record date, the
record date for determining shareholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable
resolution, or the sixtieth (60th) day before the date of that action, whichever
is later.
Section 3. Maintenance and Inspection of Share Register.
--------------------------------------------
VI.3.01 The corporation shall keep at its principal executive office,
or at the office of its transfer agent or registrar, if either be appointed and
as determined by resolution of the board of directors, a record of its
shareholders, giving the names and addresses of all shareholders and the number
and class of shares held by each shareholder.
VI.3.02 A shareholder or shareholders of the corporation holding at
least five percent (5%) of the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders names and
addresses and shareholdings during usual business hours on five days prior
written demand on the corporation, and (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the names and addresses of shareholders
who are entitled to vote for the election of directors, and their shareholdings,
as of the most recent record date for which that list has been compiled, or as
of a date specified by the shareholder after the date of demand. This list shall
be made available to any such shareholder by the transfer agent on or, before
the later of five (5) days after the demand is received, or the date specified
in the demand as the date as of which the list is to be compiled. The record of
shareholders shall also be open to inspection on the written demand of any,
shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. Any inspection and
copying under this Section 3 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 4. Maintenance and Inspection of Financial Statements.
--------------------------------------------------
VI.4.01 A copy of any annual financial statement and any income
statement of the corporation for each quarterly period
18
<PAGE>
of each fiscal year, and any accompanying balance sheet of the corporation as of
the end of each such period, that has been prepared by the corporation shall be
kept on file in the principal executive office of the corporation for twelve
(12) months and each such statement shall be exhibited at all reasonable times
to any shareholder demanding an examination of any such statement or a copy
shall be mailed to any such shareholder.
VI.4.02 If a shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of stock of the corporation makes a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the then current fiscal
year ended more than thirty (30) days before the date of the request, and a
balance sheet of the corporation as of the end of that period, the treasurer or
chief financial officer of the corporation shall cause that statement to be
prepared, if not already prepared, and shall deliver personally or mail that
statement or statements to the person making the request within thirty (30) days
after the receipt of the request. If the corporation has not sent to the
shareholders its annual report for the last fiscal year, this report shall
likewise be delivered or mailed to the shareholder or shareholders within thirty
(30) days after the request.
VI.4.03 The corporation shall also, on the written request of any
shareholder, mail to the shareholder a copy of the last annual, semi-annual, or
quarterly income statement which it has prepared, and a balance sheet as of the
end of that period.
VI.4.04 The quarterly income statements and balance sheets referred to
in this section shall be accompanied by the report, if any, of any independent
accountant(s) engaged by the corporation, or the certificate of an authorized
officer of the corporation, that the financial statements were prepared without
audit from the books and records of the corporation.
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Section 5. Maintenance & Inspection of Other Corporate Records.
---------------------------------------------------
VI.5.01 The accounting books and records and minutes of proceedings of
the shareholders and the board of directors and any committee or committees of
the board of directors shall be kept at such place or places designated by the
board of directors or, in the absence of such designation, at the principal
executive office of the corporation. The minutes shall be kept in written form
and the accounting books and records shall be kept either in written form or in
any other form capable of being converted into written form. The minutes and
accounting books and records shall be open to inspection upon the written demand
of any shareholder or holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney,
and shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
Section 6. Inspection by Directors.
-----------------------
VI.6.01 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 7. Annual Report to Shareholders.
-----------------------------
VI.7.01 The annual report to shareholders referred to in Section 1501
of the California General Corporation Law is expressly waived and dispensed
with, but nothing herein shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the shareholders of
the corporation as they consider appropriate.
Section 8. Check, Drafts, etc.
------------------
VI.8.01 All checks, drafts or other orders for payment of money, notes
or other evidences of indebtedness, issued in the name of or payable to the
corporation, shall be signed or endorsed by such person or persons and in such
manner as, from time to time, shall be determined by resolution of the board of
directors.
20
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Section 9. Contracts, etc., How Executed.
-----------------------------
VI.9.01 The board of directors, except as in the bylaws otherwise
provided, may authorize any officer or officers, agent or agents, to enter into
any contract or execute any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances; and, unless so authorized or ratified by the board of directors, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement, or to pledge its credit, or to render
it liable for any purpose or for any amount.
Section 10. Annual Statement of General Information.
---------------------------------------
VI.10.01 The corporation shall file annually with the Secretary of the
State of California, on the prescribed form, a statement setting forth the
authorized number of directors, names and complete business or residence
addresses of all incumbent directors, names and complete business or residence
addresses of the chief executive officer, secretary, and chief financial
officer, the street address of its principal executive office, its principal
business office in this state, if any, and the general type of business
constituting the principal business activity of the corporation, together with a
designation of the agent of the corporation for the purpose of service of
process, all in accordance with Section 1502 of the California General
Corporation Law.
Section 11. Certificates for Shares.
-----------------------
VI.11.01 A certificate or certificates for shares of the capital stock
of the corporation shall be issued to each shareholder when any of these shares
are fully paid, and the board of directors may authorize the issuance of
certificates or shares as partly-paid provided that these certificates shall
state the amount of the consideration to be paid for them and the amount paid.
All certificates shall be signed in the name of the corporation by the chairman
of the board or vice chairman of the board or the president or vice-president
and by the chief financial officer or an assistant treasurer or the secretary 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. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on a certificate
shall have ceased to be that officer, transfer agent, or registrar before that
certificate is issued, it may be issued by the corporation with the same effect
as if that person were an officer, transfer agent, or registrar at the date of
issue.
VI.11.02 The certificate shall set forth the facts and statements
required by Sections 417 and 418 of the California
21
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General Corporation Law, which sections require that in addition to a statement
of the name of the record holder of the shares and the number of shares
represented thereby, the certificate shall disclose: (a) facts concerning the
rights, preferences, privileges, and restrictions on shares where the
corporation's shares are classified or issued in series; (b) facts concerning
redemption, conversion and assessability of the shares; and (c) any liens or
restrictions upon transfer or upon the voting power of the shares.
Section 12. Lost Certificates.
-----------------
VI.12.01 Except as provided in this Section 12, no new certificate for
shares shall be issued to replace an old certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The board of
directors may, in case any share certificate, or certificate for any other
security, is lost, stolen, or destroyed, authorize the issuance of a replacement
certificate on such terms and conditions as the board may require, including
provision for indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability on account of the
alleged loss, theft, or destruction of the certificate, or the issuance of the
replacement certificate.
Section 13. Representation of Shares of Other Corporations.
----------------------------------------------
VI.13.01 The chairman of the board, the president, or any vice
president, or any other person-authorized by resolution of the board of
directors or by any of the foregoing designated officers, is authorized to vote
on behalf of the corporation any and all shares of any other corporation or
corporations, foreign or domestic, standing in the name of the corporation. The
authority granted to these officers to vote or represent on behalf of the
corporation any and all shares held by the corporation in any other corporation
or corporations may be exercised by any of these officers in person or by any
person authorized to do so by a proxy duly executed by these officers.
Section 14. Inspection of Bylaws.
--------------------
VI.14.01 The corporation shall keep in its principal office for the
transaction of business the original or a copy of the bylaws as amended or
otherwise altered to date, which shall be open to inspection by the shareholders
at all reasonable times during office hours in accordance with the provisions of
Section 213 of the California General Corporation Law.
22
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Section 15. Construction and Definitions.
----------------------------
VI.15.01 Unless the context otherwise requires, the general
provisions, rules of construction and definitions contained in the California
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.
Section 16. First Right of Refusal.
----------------------
VI.16.01 Before any shareholder can sell or transfer his stock of the
corporation, he shall first offer the stock to the corporation and then to the
shareholders in the following manner:
(a) The offering shareholder shall give a written offer, by
mailing, personally delivering, or telegraphing it, stating the number and class
of shares to be sold or transferred and the price, terms, and conditions of the
proposed sale or transfer. The corporation shall then have the right to purchase
all or any whole number of the shares offered, at the price and on the terms and
conditions stated in the offer, by giving written notice to the offering
shareholder of its election to purchase shares and of the number of shares it
intends to purchase. This notice shall be given by mailing, personally
delivering, or telegraphing it within fifteen (15) days after the offering
shareholder's offer is given. If the corporation elects to purchase less than
all the shares being offered, or fails to give notice of the election to
purchase within the period that it has the right to do so, the Secretary of the
corporation shall, as soon as possible, and in no event more than thirty (30)
days after the offering shareholder's offer is given, mail, personally deliver,
or telegraph to the shareholders, a copy of this offer together with a statement
of the number of shares not being purchased by the corporation. The shareholders
shall then have the right to purchase all or any lesser number of shares
specified in the statement from the Secretary by giving to the Secretary a
written notice of intent to purchase a specified number of these shares at the
price and on the terms and conditions stated in the offering
23
<PAGE>
shareholder's offer. This notice shall be given by mailing, personally
delivering, or telegraphing it within forty-five (45) days after the offering
shareholder's offer is given to the Secretary. If the shareholders elect to
purchase less than all the shares being offered, or fail to give notice of the
election to purchase within the period that they have the right to do so, the
Secretary of the corporation shall, as soon as possible, and in no event more
than sixty (60) days after the offering shareholder's offer is given, mail,
personally deliver, or telegraph to each of the common shareholders a copy of
this offer together with a statement of the number of shares not being purchased
by the corporation, or the shareholders. Each of these shareholders shall then
have the right to purchase all or any lesser number of the shares specified in
the statement from the Secretary by giving to the Secretary a written notice of
intent to purchase a specified number of these shares at the price and on the
terms and conditions stated in the offering shareholder's offer. This notice
shall be given by mailing, personally delivering, or telegraphing it within
seventy-five (75) days after the offering shareholder's offer is given to the
secretary.
(b) If the total number of shares specified by the shareholders
in their notices of intent to purchase exceeds the number of available shares
specified in the statement from the Secretary, each purchasing shareholder shall
be entitled to purchase that fraction of the number of shares specified in his
notice of intent to purchase that is equal to the number of his shares having
purchase rights under this article, divided by the total number of shares having
purchase rights held by all shareholders who gave notice of intent to purchase.
(c) If less than all the shares offered for sale by the offering
shareholder are subscribed to under clauses (a) and (b) of this article, each
shareholder desiring additional shares shall be entitled to purchase that
fraction of the shares not subscribed to that is equal to the number of his
shares having purchase rights under this article, divided by the total number of
shares having purchase rights held by all shareholders desiring to purchase
these remaining shares.
(d) Unless otherwise specifically stated in a shareholder's
notice of intent to purchase shares given under clause (a) of this article, that
notice shall also be considered an offer to purchase the number of shares to
which he is entitled under clauses (b) and (c), not to exceed, however, the
number of shares specified in his notice of intent to purchase.
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(e) Each offer, notice, or statement provided for in this article
shall be considered given when it is personally delivered to the person to whom
it is to be given, or it is properly addressed and deposited in the United
States mail or delivered to a telegraph office with all postage or other charges
fully prepaid.
(f) If less than all shares specified in the offer to the
secretary are subscribed to under clauses (a), (b), and (c) of this article
within the time periods specified for exercising the respective rights to
purchase shares granted under this article, the offering shareholder shall not
be required to accept any of the offers made under this article by the
corporation or its shareholders, and may dispose of all the shares specified in
his offer to the Secretary to any person or persons, provided that he shall not
sell or transfer these shares at a lower price or on more favorable terms than
those specified in the offer to the Secretary.
(g) Unless otherwise prohibited by law or by these articles of
incorporation, the corporation may purchase its own shares from any offering
shareholder. The corporation shall not purchase all its outstanding voting
shares. Any sale or transfer, or purported sale or transfer, of the
corporation's shares by any shareholder shall be null and void unless the terms,
conditions, and provisions of this article are strictly followed.
A R T I C L E V I I
Amendments
----------
Section 1. Power of Shareholders.
---------------------
VII.1.01 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; 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. Power of Directors.
------------------
VII.2.01 Subject to the right of shareholders as provided in Section 1
of this Article VII, bylaws, other than a bylaw or amendment thereof changing
the authorized number of directors, may be adopted, amended or repealed by the
board of directors.
25
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CERTIFICATE BY SECRETARY
------------------------
I DO HEREBY CERTIFY AS FOLLOWS:
That I am the duly elected, qualified, and acting Secretary of this
corporation, and that the foregoing Bylaws were adopted as the Bylaws of this
corporation as of the date set forth below by the undersigned.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal as of June 23, 1989.
[corporate seal]
/s/ Renee Rannow
-------------------------
Renee Rannow Secretary
26
