SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): April 28, 1998
MARSHALL INDUSTRIES
(Exact name of registrant as specified in its charter)
CALIFORNIA 1-5441 95-2048764
(State or other jurisdiction (Commission File Number) (IRS Employer
or incorporation) Identification No.)
9320 TELSTAR AVENUE, EL MONTE, CALIFORNIA 91731-2895
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number including area code: (626) 307-6000
(Former name or former address, if changed since last report.)
Not applicable.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(c) Exhibits.
Exhibit
Number Description
3.2 Amended and Restated Bylaws of Marshall Industries
<PAGE>
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
MARSHALL INDUSTRIES
/s/ HENRY W. CHIN
By: Henry W. Chin
Vice President, Finance, Chief
Financial Officer and Secretary
DATED: June 5, 1998
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
MARSHALL INDUSTRIES,
A CALIFORNIA CORPORATION
ARTICLE I. OFFICES
SECTION 1. Principal Executive Office. The principal
executive office of the corporation is hereby fixed and located
at: 9320 Telstar Avenue, El Monte, California 91731. The Board of
Directors (herein called the Board") is hereby granted full power
and authority to change said principal executive office from one
location to another.
SECTION 2. Other Offices. Branch or subordinate offices
may at any time be established by the Board at any place or
places.
ARTICLE II. SHAREHOLDERS
SECTION 1. Place of Meetings. Meetings of shareholders
shall be held either at the principal executive office of the
corporation or at any other place within or without the State of
California which may be designated either by the Board or by the
written consent of all persons entitled to vote thereat, given
either before or after the meeting and filed with the Secretary.
SECTION 2. Annual Meetings. The annual meetings of
shareholders shall be held on the second Tuesday of October, at
10:00 o'clock a.m., local time, or such other date or such other
time as may be fixed by the Board; provided, however, that should
said day fall upon a Saturday, Sunday, or legal holiday observed
by the corporation at its principal executive office, then any
such annual meeting of shareholders shall be held at the same
time and place on the next day thereafter ensuing which is a full
business day. At such meetings directors shall be elected and,
subject to Section 5 of this Article, any other proper business
may be transacted.
SECTION 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Board, the Chairman
of the Board, the President, or by the holders of shares entitled
to cast not less than 10 percent of the votes at such meeting
(provided that the shareholder complies with Section 5 of this
Article). Upon request in writing to the Chairman of the Board,
the President, any Vice President, or the Secretary by any person
(other than the Board) entitled to call a special meeting of
shareholders and specifying the proposed business in accordance
with Section 5 of this Article, the officer forthwith shall cause
notice to be given to the shareholders entitled to vote that a
meeting will be held at a time requested by the person or persons
calling the meeting, not less than 35 nor more than 60 days after
the receipt of the request. If the notice is not given within 20
days after receipt of the request, the persons entitled to call
the meeting may give the notice.
SECTION 4. Notice of Annual or Special Meeting. Written
notice of each annual or special meeting of shareholders shall be
given not less than 10 nor more than 60 days before the date of
the meeting to each shareholder entitled to vote thereat. Such
notice shall state 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, and no other business may be
transacted, or (ii) in the case of the annual meeting, those
matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders, but,
subject to the provisions of applicable law, any proper matter
may be presented at the meeting for such action. The notice of
any meeting at which directors are to be elected shall include
the names of nominees intended at the time of the notice to be
presented by management for election.
Notice of a shareholders meeting shall be given either
personally or by mail or by other means of written communication,
addressed to the shareholder at the address of such shareholder
appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice; or, if
no such address appears or is given, at the place where the
principal executive office of the corporation is located or by
publication at least once in a newspaper of general circulation
in the county in which the principal executive office is located.
Notice by mail shall be deemed to have been given at the time
written notice is deposited in the United States mails, postage
prepaid. Any other written notice shall be deemed to have been
given at the time it is personally delivered to the recipient or
is delivered to a common carrier for transmission, or actually
transmitted by the person giving the notice by electronic means,
to the recipient.
SECTION 5. Notice of Business. At any meeting of
shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the
Board, (b) in accordance with Rule 14a-8 under the Securities
Exchange Act of 1934, or (c) by a shareholder of record entitled
to vote at such meeting who complies with the notice procedures
set forth in this Section 5. For business to be properly brought
before a meeting by such a shareholder, the shareholder shall
have given timely notice thereof in writing to the Corporate
Secretary. To be timely, such notice shall be delivered to or
mailed and received at the principal executive office of the
corporation not less than thirty (30) days nor more than ninety
(90) days prior to the meeting; provided, however, that in the
event that less than forty (40) days' notice of the date of the
meeting is given by the corporation, notice by the shareholder to
be timely must be so received not later than the close of
business on the tenth day following the day on which such notice
of the date of the meeting was mailed or otherwise given. Such
shareholder's notice to the Corporate Secretary shall set forth
as to each matter the shareholder proposes to bring before the
meeting (a) a brief description of the business desired to be
brought before the meeting, and in the event that such business
includes a proposal to amend either the Articles of Incorporation
or the Bylaws (the "Bylaws") of the corporation, the language of
the proposed amendment, (b) the name and address of the
shareholder proposing such business, (c) the class and number of
shares of stock of the corporation which are owned by such
shareholder and (d) any material personal interest of such
shareholder in such business. If notice has not been given
pursuant to this Section 5, the Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the
proposed business was not properly brought before the meeting,
and such business may not be transacted at the meeting. The
foregoing provisions of this Section 5 do not relieve any
shareholder of any obligation to comply with all applicable
requirements of the Securities Exchange Act of 1934 and rules and
regulations thereunder.
SECTION 6. Notice of Board Candidate. At any meeting of
shareholders, a person may be a candidate for election to the
Board only if such person is nominated (a) by or at the direction
of the Board, (b) by any nominating committee or person appointed
by the Board or (c) by a shareholder of record entitled to vote
at such meeting who complies with the notice procedures set forth
in this Section 6. To properly nominate a candidate, a
shareholder shall give timely notice of such nomination in
writing to the Corporate Secretary. To be timely, such notice
shall be delivered to or mailed and received at the principal
executive office of the corporation not less than thirty (30)
days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than forty (40)
days' notice of the date of the meeting is given by the
corporation, notice of such nomination to be timely must be so
received not later than the close of business on the tenth day
following the day on which such notice of the date of the meeting
was mailed or otherwise given. Such shareholder's notice to the
Corporate Secretary shall set forth (a) as to each person whom
the shareholder proposes to nominate (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and
number of shares of stock of the corporation which are owned by
the person and (iv) any other information relating to the person
that would be required to be disclosed in a solicitation of
proxies for election of directors or is otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (including, without limitation,
such persons' written consent to being named in the proxy
statement as a nominee and to serve as a director, if elected);
and (b) as to the shareholder giving the notice (i) the name and
address of such shareholder and (ii) the class and number of
shares of stock of the corporation owned by such shareholder.
The corporation may require such other information to be
furnished respecting any proposed nominee as may be reasonably
necessary to determine the eligibility of such proposed nominee
to serve as a director of the corporation. No person shall be
eligible for election by the shareholders as a director at any
meeting unless nominated in accordance with this Section 6. The
Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the Bylaws, and if
he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
SECTION 7. Quorum. A majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a
quorum at any meeting of shareholders. The shareholders present
at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if
any action taken (other than adjournment) is approved by at least
a majority of the shares required to constitute a quorum.
SECTION 8. Adjourned Meeting and Notice Thereof. Any
shareholders' meeting, 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
(except as provided in Section 7 of this Article) no other
business may be transacted at such meeting.
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; provided, however, when any
shareholders' meeting is adjourned for more than 45 days or, if
after adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given as in the
case of an original meeting.
SECTION 9. Voting. The shareholders entitled to notice of
any meeting or to vote at any such meeting shall be only persons
in whose name shares stand on the stock records of the
corporation on the record date determined in accordance with
Section 10 of this Article.
Voting shall in all cases be subject to the provisions of
Chapter 7 of the California General Corporation Law and to the
following provisions:
(a) Subject to clause (g), shares held by an administrator,
executor, guardian, conservator or custodian may be voted by such
holder either in person or by proxy, without a transfer of such
shares into the holder's name; and shares standing in the name of
a trustee may be voted by the trustee, either in person or by
proxy, but no trustee shall be entitled to vote shares held by
such trustee without a transfer of such shares into the trustee's
name.
(b) Shares standing in the name of a receiver may be voted
by such receiver; and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into the receiver's name if authority to do so is
contained in the order of the court by which such receiver was
appointed.
(c) Subject to the provisions of Section 705 of the
California General Corporation Law, and except where otherwise
agreed in writing between the parties, a shareholder whose shares
are pledged shall be entitled to vote such shares until the
shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Shares standing in the name of a minor may be voted and
the corporation may treat all rights incident thereto as
exercisable by the minor, in person or by proxy, whether or not
the corporation has notice, actual or constructive, of the
nonage, unless a guardian of the minor's property has been
appointed and written notice of such appointment given to the
corporation.
(e) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or
proxyholder as the bylaws of such other corporation may
prescribe, or in the absence of such provision, as the Board of
Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board,
president or any vice president of such other corporation, or by
any other person authorized to do so by the board, president or
any vice president of such other corporation. Shares which are
purported to be voted or any proxy purported to be executed in
the name of a corporation (whether or not any title of the person
signing is indicated) shall be presumed to be voted or the proxy
executed in accordance with the provisions of this subdivision,
unless the contrary is shown.
(f) Shares of the corporation owned by any subsidiary shall
not be entitled to vote on any matter.
(g) Shares held by the corporation in a fiduciary capacity,
and shares of the corporation held in a fiduciary capacity by any
subsidiary, shall not be entitled to vote on any matter, except
to the extent that the settlor or beneficial owner possesses and
exercises a right to vote or to give the corporation binding
instructions as to how to vote such shares.
(h) If shares stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, husband and wife as community
property, tenants by the entirety, voting trustees, persons
entitled to vote under a shareholder voting agreement or
otherwise, or if two or more persons (including proxy-holders)
have the same fiduciary relationship respecting the same shares,
unless the secretary of the corporation is given written notice
to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the
following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority so
voting binds all;
(iii) If more than one vote, but the vote is evenly
split on any particular matter, each faction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the shares
shows that any such tenancy is held in unequal interests, a
majority or even split for the purpose of this section shall be a
majority or even split in interest.
Subject to the following sentence and to the provisions of
Section 708 of the California General Corporation Law, every
shareholder entitled to vote at any election of directors may
cumulate such shareholder's votes and give one candidate a number
of votes equal to the number of directors to be elected
multiplied by the number of votes to which the shareholder's
shares are entitled, or distribute the shareholder's votes on the
same principle among as many candidates as the shareholder thinks
fit. No shareholder shall be entitled to cumulate votes for any
candidate or candidates pursuant to the preceding sentence unless
such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given
notice, at the meeting prior to the voting of the shareholder's
intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate
their votes for candidates in nomination.
Elections need not be by ballot; provided however, that all
elections for directors must be by ballot upon demand made by a
shareholder at the meeting and before the voting begins.
In any election of directors, the candidates receiving the
highest number of votes of the shares entitled to be voted for
them up to the number of directors to be elected by such shares
are elected.
SECTION 10. Record Date. The Board may fix, in advance, a
record date for the determination of the shareholders entitled to
notice of any meeting or to vote or entitled to receive payment
of any dividend or other distribution, or any allotment of
rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than 60 nor
less than 10 days prior to the date of the meeting nor more than
60 days prior to any other action. When a record date is so
fixed, only shareholders of record on that date are entitled to
notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise of the
rights, as the case may be, notwithstanding any transfer of
shares on the books of the corporation after the record date. A
determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any
adjournment of the meeting unless the Board fixes a new record
date for the adjourned meeting. The Board shall fix a new record
date if the meeting is adjourned for more than 45 days.
If no record date is fixed by the Board, 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. The record
date for determining shareholders for any purpose other than set
forth in this Section 10 or Section 12 of this Article shall be
at the close of business on the day on which the Board adopts the
resolution relating thereto, or the sixtieth day prior to the
date of such other action, whichever is later.
SECTION 11. Consent of Absentees. The transactions of any
meeting of shareholders, however called and noticed, and wherever
held, are as valid as though had at a meeting duly held after
regular call and notice, if a quorum is 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
the meeting or an approval of the minutes of the meeting.
Neither the business to be transacted at nor the purpose of any
regular or special meeting of shareholders need be specified in
any written waiver of notice, except as provided in Section
601(f) of the California General Corporation Law.
SECTION 12. Action Without Meeting. Subject to Section 603
of the California General Corporation Law, any action which,
under any provision of the California General Corporation Law,
may be taken at any annual or special meeting of shareholders,
may be taken without a meeting and without prior notice if
consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitles to
vote thereon were present and voted. Unless a record date for
voting purpose be fixed as provided in Section 10 of this
Article, the record date for determining shareholders entitled to
give consent pursuant to this Section 12, when no prior action by
the Board has been taken, shall be the day on which the first
written consent is given.
SECTION 13. Proxies. Every person entitled to vote shares
has the right to do so either in person or by one or more persons
authorized by a written proxy executed by such shareholder and
filed with the Secretary. Any proxy duly executed is not revoked
and continues in full force and effect until revoked by the
person executing it prior to the vote pursuant thereto by a
writing delivered to the corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or by attendance at
the meeting and voting in person by, the person executing the
proxy; provided, however, that no proxy shall be valid after the
expiration of 11 months from the date of its execution unless
otherwise provided in the proxy.
SECTION 14. Inspectors of Election. In advance of any
meeting of shareholders, the Board may appoint any persons other
than nominees for office as inspectors of election to act at such
meeting and any adjournment thereof. If inspectors of election
be not so appointed, of if any persons so appointed fail to
appear or refuse to act, the chairman of any such meeting may,
and on the request of any shareholder or shareholder's proxy
shall, make such appointment at the meeting. The number of
inspectors shall be either one or three. If appointed at a
meeting on the request of one or more shareholders or proxies,
the majority of shares present, in person or by proxy, shall
determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by
Section 707(b) 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 when the polls shall close;
determining the result; and doing such acts as may be proper to
conduct the election or vote with fairness to all shareholders.
If there are three inspectors of election, the decision, act, or
certificate of a majority is effective in all respects as the
decision, act, or certificate of all.
ARTICLE III. DIRECTORS
SECTION 1. Powers. Subject to limitations of the Articles,
of these Bylaws, and of the California General Corporation Law
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. The Board may
delegate the management of the day-to-day operation of the
business of the corporation to a management company or other
person provided that the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board. Without prejudice to
such general powers, but subject to the same limitations, it is
hereby expressly declared that the Board shall have the following
powers in addition to the other powers enumerated in these
Bylaws:
(a) To select and remove all the other officers, agents,
and employees of the corporation, prescribe the powers and duties
for them as may not be inconsistent with law, or with the
Articles or these 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 or these Bylaws, as they may deem best.
(c) 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 judgment they may deem best.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for such
consideration as may be lawful.
(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.
SECTION 2. Number and Qualification of Directors.
Consistent with the amendment to the Articles of Incorporation of
the corporation filed on October 25, 1994, the authorized number
of directors shall be not less than seven (7) nor more than
thirteen (13) until changed by amendment of the Articles or by a
Bylaw duly adopted by the shareholders. The exact number of
directors shall be fixed, within the limits specified, from time
to time by a Bylaw or an amendment thereof duly adopted by the
Board or the shareholders in the same manner provided in these
Bylaws for the amendment thereof. The exact number of directors
shall be nine until changed as provided in this Section 2.
SECTION 3. Election and Term of Office. The directors
shall be elected at each annual meeting of shareholders but if
any such annual meeting is not held or the directors are not
elected thereat, the directors may be elected at any special
meeting of shareholders held for that purpose. Each director
shall hold office until the next annual meeting and until a
successor has been elected and qualified.
SECTION 4. Vacancies. Any director may resign effective
upon giving written notice to the Chairman of the Board, the
President, Secretary, or the Board, unless the notice specifies a
later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be
elected to take office when the resignation becomes effective.
Vacancies in the Board, including those existing as a result
of a removal of a director, may be filled by approval of 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 the next annual meeting and until such
director's successor has been elected and qualified.
A vacancy or vacancies in the Board shall be deemed to exist
in case of the death, resignation, or removal of any director, or
if the authorized number of directors be increased, or if the
shareholders fail, at any annual or special meeting of
shareholders at which any director or directors are elected, to
elect the full authorized number of directors to be voted for at
that meeting.
The Board may declare vacant the office of a director who
has been declared of unsound mind by an order of court or
convicted of a felony.
The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the
directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote.
If the Board accepts the resignation of a director tendered to
take effect at a future time, the Board or the shareholders shall
have power to elect a successor to take office when the
resignation is to become effective.
No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration
of the director's term of office.
SECTION 5. Place of Meeting. Regular or special meetings
of the Board shall be held at any place within or without the
State of California which has been designated from time to time
by the Board. ln the absence of such designation regular
meetings shall be held at the principal executive office of the
corporation.
SECTION 6. Regular Meetings. Immediately following each
annual meeting of shareholders the Board shall hold a regular
meeting for the purpose of organization, election of officers,
and the transaction of other business.
SECTION 7. Special Meetings. Special meetings of the Board
for any purpose or purposes may be called at any time by the
Chairman of the Board, the President, or the Secretary or by any
two directors.
Special meetings of the Board shall be held upon four days'
written notice or 48 hours' notice given personally or by
telephone, telegraph, telex, or other similar means of
communication. Any such notice shall be addressed or delivered
to each director at such director's address as it is shown on the
records of the corporation or as may have been given to the
corporation by the director for purposes of notice or, if such
address is not shown on such records or is not readily
ascertainable, at the place in which the meetings of the
directors are regularly held.
Notice by mail shall be deemed to have been given at the
time a written notice is deposited in the United States mails,
postage prepaid. Any other written notice shall be deemed to
have been given at the time it is personally delivered to the
recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed
to have been given at the time it is communicated, in person or
by telephone or wireless, to the recipient or to a person at the
office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
SECTION 8. Quorum. A majority of the authorized number of
directors constitutes a quorum of the Board 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, unless a greater number be
required by law or by the Articles. A meeting at which a quorum
is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken
is approved by at least a majority of the required quorum for
such meeting.
SECTION 9. Participation in Meetings by Conference
Telephone. Members of the Board may participate in a meeting
through use of conference telephone or similar communications
equipment, so long as all members participating in such meeting
can hear one another.
SECTION 10. Waiver of Notice. The transactions of any
meeting of the Board, however called and noticed or wherever
held, are as valid as though had at a meeting duly held after
regular call and notice if a quorum be present and if, either
before or after the meeting, each of the directors not present
signs a written waiver of notice, a consent to holding 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 11. Adjournment. A majority of the directors
present, whether or not a quorum is present, may adjourn any
directors' meeting to another time and place. Notice of the time
and place of holding an adjourned meeting need not be given to
absent directors if the time and place be fixed at the meeting
adjourned. If the meeting is adjourned for more than 24 hours,
notice of any adjournment to another time or place shall be given
prior to the time of the adjourned meeting to the directors who
were not present at the time of the adjournment.
SECTION 12. Fees and Compensation. Directors and members
of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or
determined by the Board.
SECTION 13. Action Without Meeting. Any action required or
permitted to be taken by the Board may be taken without a meeting
if all members of the Board shall individually or collectively
consent in writing to such action. Such consent or consents
shall have the same effect as a unanimous vote of the Board and
shall be filed with the minutes of the proceedings of the Board.
SECTION 14. Rights of Inspection. Every director shall
have the absolute right at any reasonable time to inspect and
copy all books, records, and documents of every kind and to
inspect the physical properties of the corporation and also of
its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or
attorney and includes the right to copy and obtain extracts.
SECTION 15. Committees. The Board may appoint one or more
committees, each consisting of two or more directors, and
delegate to such committees any of the authority of the Board
except with respect to:
(a) The approval of any action for which the General
Corporation Law also requires shareholders' approval or approval
of the outstanding shares;
(b) The filling of vacancies on the Board or on any
committee;
(c) The fixing of compensation of the directors for serving
on the Board or on any committee;
(d) The amendment or repeal of Bylaws or the adoption of new
Bylaws;
(e) The amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation
except at a rate or in a periodic amount or within a price range
determined by the Board;
(g) The appointment of other committees of the Board or the
members thereof.
Any such committee must be appointed by resolution adopted
by a majority of the authorized number of directors and may be
designated an Executive Committee or by such other name as the
Board shall specify. The Board shall have the power to prescribe
the manner in which proceedings of any such committee shall be
conducted. In the absence of any such prescription, such
committee shall have the power to prescribe the manner in which
its proceedings shall be conducted. Unless the Board or such
committee shall otherwise provide, the regular and special
meetings and other actions of any such committee shall be
governed by the provisions of this Article applicable to meetings
and actions of the Board. Minutes shall be kept of each meeting
of each committee.
SECTION 16. Audit Committee. The Board shall appoint an
Audit Committee, consisting of two or more directors who are not
officers of the corporation. The Audit Committee shall exercise
the following powers and duties:
(a) To meet with the independent auditors of this
corporation at least annually and review the scope of the annual
audit (inclusions and exclusions), any open questions as to the
choice of acceptable accounting principles to be applied, and all
other matters relating to the auditors' relationship with this
corporation;
(b) To advise and assist the Board in evaluating the
auditors' performance, including the scope and adequacy of the
auditors' review;
(c) To review this corporation's annual financial
statements, including the footnotes, and discuss such statements
with the auditors prior to release of this corporation's annual
report; and
(d) To receive and consider the auditors' comments and
suggestions as to internal audit and control procedures, adequacy
of staff, and other matters, and based upon such comments and
suggestions, to make such recommendations to the Board as the
Audit Committee shall deem necessary and appropriate.
ARTICLE IV. OFFICERS
SECTION 1. Officers. The officers of the corporation shall
be a president, a secretary, and a chief financial officer. The
corporation may also have, at the discretion of the Board, a
chairman of the board, treasurer, one or more vice-presidents,
one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be elected or
appointed in accordance with the provisions of Section 3 of this
Article.
SECTION 2. Election. The officers of the corporation,
except such officers as may be elected or appointed in accordance
with the provisions of Section 3 or Section 5 of this Article,
shall be chosen annually by, and shall serve at the pleasure of,
the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or
until their respective successors shall be elected.
SECTION 3. Subordinate Officers. The Board may elect, 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 these Bylaws or as the Board may from
time to time determine.
SECTION 4. Removal and Resignation. Any officer may be
removed, either with or without cause, by the Board of Directors
at any time, or, except in the case of an officer chosen by the
Board, by any officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without
prejudice to the rights, if any, of the officer under any
contract of employment of the officer.
Any officer may resign at any time by giving written notice
to the corporation, but without prejudice to the rights, if any,
of the corporation under any contract to which the officer is a
party. 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.
SECTION 5. Vacancies. 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 election or appointment to such office.
SECTION 6. Chairman of the Board. The Chairman of the
Board, if there shall be such an officer, shall, if present,
preside at all meetings of the Board and exercise and perform
such other powers and duties as may be from time to time assigned
by the Board.
SECTION 7. President. Subject to such powers, if any, as
may be given by the Board to the Chairman of the Board, if there
be such an officer, the President is the general manager and
chief executive officer of the corporation and has, subject to
control of the Board, general supervision, direction, and control
of the business and officers of the corporation. The President
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. The President has the general powers and
duties of management usually vested in the office of president
and general manager of a corporation and such other powers and
duties as may be prescribed by the Board.
SECTION 8. Vice President. In the absence or disability of
the President, the Vice Presidents in order of their rank as
fixed by the Board or, if not ranked, the Vice President
designated by the Board, 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.
SECTION 9. Secretary. The Secretary shall keep or cause to
be kept, at the principal executive office and such other place
as the Board may order, a book of minutes of all meetings of
shareholders, the Board, and its committees, 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 Board and committee meetings, the number of shares
present or represented at shareholders' meetings, and the
proceedings thereof. The Secretary shall keep, or cause to be
kept, a copy of the Bylaws of the corporation at the principal
executive office or business office in accordance with Section
213 of the California General Corporation Law.
The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's
transfer agent or registrar, if one be appointed, 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.
The Secretary shall give, or cause to be given, notice of
all the meetings of the shareholders and of the Board and of any
committees thereof required by these Bylaws or by law to be
given, 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.
SECTION 10. The Chief Financial Officer. The 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, and shall send or
cause to be sent to the shareholders of the corporation such
financial statement, and reports as are by law or these Bylaws
required to be sent to them. The books of account shall at all
times be open to inspection by any director.
The Chief Financial Officer shall cause all moneys and other
valuables to be deposited in the name and to the credit of the
corporation with such depositaries as may be designated by the
Board. The Chief Financial Officer shall disburse the funds of
the corporation as may be ordered by the Board, shall render to
the President and directors, whenever they request it, an account
of all transactions as Chief Financial Officer and of the
financial condition of the corporation, and shall have such other
powers and perform such other duties as may be prescribed by the
Board.
ARTICLE V. OTHER PROVISIONS
SECTION 1. Inspection of Corporate Records.
(a) A shareholder or shareholders holding at least five
percent in the aggregate of the outstanding voting shares of the
corporation or who hold at least one percent of such voting
shares and have filed a Schedule 14A with the United States
Securities and Exchange Commission shall have an absolute right
to do either or both of the following:
(i) Inspect and copy the record of shareholders' names
and addresses and shareholdings during usual business hours upon
five business days' prior written demand upon the corporation; or
(ii) Obtain from the transfer agent, if any, for the
corporation, upon five business days' prior written demand and
upon the tender of its usual charges for such a list (the amount
of which charges shall be stated to the shareholder by the
transfer agent upon request), a list of the shareholders' names
and addresses who are entitled to vote for the election of
directors and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by
the shareholder subsequent to the date of demand.
(b) The record of shareholders shall also be open to
inspection and copying by any shareholder or holder of a voting
trust certificate at any time during usual business hours upon
written demand on the corporation, for a purpose reasonably
related to such holder's interest as a shareholder or holder of a
voting trust certificate.
(c) The accounting books and records and minutes of
proceedings of the shareholders and the Board and committees of
the Board shall be open to inspection upon written demand on the
corporation of any shareholder or holder of a voting trust
certificate at any reasonable time during usual business hours,
for a purpose reasonably related to such holder's interests as a
shareholder or as a holder of such voting trust certificate.
(d) Any inspection and copying under this Article may be
made in person or by agent or attorney.
SECTION 2. Inspection of Bylaws. The corporation shall
keep in its principal executive office the original or a copy of
these Bylaws as amended to date which shall be open to inspection
by shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the
State of California and the corporation has no principal business
office in such state, it shall upon the written notice of any
shareholder furnish to such shareholder a copy of these Bylaws as
amended to date.
SECTION 3. Endorsement of Documents; Contracts. Subject to
the provisions of applicable law, any note, mortgage, evidence of
indebtedness, contract, share certificate, conveyance, or other
instrument in writing and any assignment or endorsements thereof
executed or entered into between this corporation and any other
person, when signed by the Chairman of the Board, the President
or any Vice President, and the Secretary, any Assistant
Secretary, the Chief Financial Officer, the Treasurer or any
Assistant Treasurer of this corporation shall be valid and
binding on this corporation in the absence of actual knowledge on
the part of the other person that the signing officers had no
authority to execute the same. Any such instruments may be
signed by any other person or persons and in such manner as from
time to time shall be determined by the Board and, unless so
authorized by the Board, 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 amount.
SECTION 4. Certificates of Stock. Every holder of shares
of the corporation shall be entitled to have a certificate signed
in the name of the corporation by the Chairman of the Board, the
President or a Vice President and by the Chief Financial Officer
or the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any or all
of the signatures on the certificate may be facsimile. If any
officer, transfer Agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent, or registrar before
such certificate is issued, it may be issued by the corporation
with the same effect as if such person were an officer, transfer
agent, or registrar at the date of issue.
Certificates for shares may be issued prior to full payment
under such restrictions and for such purposes as the Board may
provide; provided, however that on any certificate issued to
represent any partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon
shall be stated.
Except as provided in this Section no new certificate for
shares shall be issued in lieu of an old one unless the latter is
surrendered and cancelled at the same time. The Board may,
however, in case any certificate for shares is alleged to have
been lost, stolen, or destroyed, authorize the issuance of a new
certificate in lieu thereof, and the corporation may require that
the corporation be given a bond or other adequate security
sufficient to indemnify it against any claim that may be made
against it (including expense or liability) on account of the
alleged loss, theft, or destruction of such certificate or the
issuance of such new certificate.
SECTION 5. Representation of Shares of other Corporations.
The President or any other officer or officers authorized by the
Board or the President are each authorized to vote, represent and
exercise on behalf of the corporation all rights incident to any
and all shares of any other corporation or corporations standing
in the name of the corporation. The authority herein granted may
be exercised either by any such officer in person or by any other
person authorized so to do by proxy or power of attorney duly
executed by said officer.
SECTION 6. Stock Purchase Plans. The corporation may adopt
and carry out a stock purchase plan or agreement or stock option
plan or agreement providing for the issue and sale for such
consideration as may be fixed of its unissued shares, or of
issued shares acquired or to be acquired, to one or more of the
employees or directors of the corporation or of a subsidiary or
to a trustee on their behalf and for the payment for such shares
in installments or at one time, and may provide for aiding any
such persons in paying for such shares by compensation for
services rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option
plan or agreement may include, among other features, the fixing
of eligibility for participation therein, the class and price of
shares to be issued or sold under the plan or agreement, the
number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment and option
or obligation on the part of the corporation to repurchase the
shares upon termination of employment, restrictions upon transfer
of the shares, the time limits of the termination of the plan,
and any other matters, not in violation of applicable law, as
may be included in the plan as approved or authorized by the
Board or any committee of the Board.
SECTION 7. Construction and Definitions. Unless the
context otherwise requires, the general provisions, rules of
construction, and definitions contained in the General Provisions
of the California Corporations Code and in the California General
Corporation Law shall govern the construction of these Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
SECTION 1. Mandatory Indemnification of Directors. The
corporation shall, to the maximum extent and in the manner
permitted by the California Corporations Code, indemnify each of
its directors against expenses (as defined in Section 317(a) of
the California Corporations Code), judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection
with any proceeding (as defined in Section 317(a) of the
Corporations Code), arising by reason of the fact that such
person is or was an agent of the corporation. For purposes of
this Article VI, a "director" of the corporation includes any
person (i) who is or was a director of the corporation, (ii) who
is or was serving at the request of the corporation as a director
of another corporation, partnership, joint venture, trust or
other enterprise, or (iii) who was a director of a corporation
which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor
corporation.
SECTION 2. Permissive Indemnification. The corporation
shall have the power, to the extent and in the manner permitted
by the California Corporations Code, to indemnify each of its
officers, employees and agents against expenses (as defined in
Section 317(a) of the California Corporations Code), judgments,
fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section
317(a) of the California Corporations Code), arising by reason of
the fact that such person is or was an agent of the corporation.
For purposes of this Article VI, an "employee" or "agent" of the
corporation (other than a director) includes any person (i) who
is or was an employee or agent of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, or (iii) who was an employee or agent of the
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation.
SECTION 3. Payment of Expenses in Advance. Expenses
incurred in defending any civil or criminal action or proceeding
for which indemnification is required pursuant to Section 1 or
for which indemnification is permitted pursuant to Section 2
following authorization thereof by the Board of Directors, in the
cases of directors shall and in the case of other agents of the
corporation entitled to indemnification may, be paid by the
corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be
determined that the indemnified party is not entitled to be
indemnified as authorized in this Article VI.
SECTION 4. Indemnity Not Exclusive. The indemnification
provided by this Article VI shall not be deemed exclusive of any
other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while
holding such office, to the extent that such additional rights to
indemnification are authorized in the Articles of Incorporation.
SECTION 5. Insurance Indemnification. The corporation
shall have the power to purchase and maintain insurance on behalf
of any person who is or was an agent of the corporation against
any liability asserted against or incurred by such person in such
capacity or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article VI.
SECTION 6. Conflicts. No indemnification or advance shall
be made under this Article VI, except where such indemnification
or advance is mandated by law or the order, judgment or decree of
any court of competent jurisdiction, in any circumstance where it
appears:
(a) That it would be inconsistent with a provision of the
Articles of Incorporation, these Bylaws, a resolution of the
shareholders or an agreement in effect at the time of the accrual
of the alleged cause of the action asserted in the proceeding in
which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
SECTION 7. Nonapplicability to Fiduciaries of Employee
Benefit Plans. This Article does not apply to any proceeding
against any trustee, investment manager, or other fiduciary of an
employee benefit plan in such person's capacity as such, even
though such person may also be an agent of the corporation as
defined in Section 1. Nothing contained in this Article shall
limit any right to indemnification to which such a trustee,
investment manager, or other fiduciary may be entitled by
contract or otherwise which shall be enforceable to the extent
permitted by applicable law other than Section 317 of the
California Corporations Code.
ARTICLE VII. EMERGENCY BYLAWS
During any emergency resulting from an attack on the United
States or on a locality in which the corporation conducts its
business or customarily holds meetings of its Board or its
shareholders, or during any nuclear or atomic disaster, or during
the existence of any catastrophe, or other similar emergency
condition, as a result of which a quorum of the Board or of the
executive committee, if any, cannot readily be convened for
action, a meeting of the Board or of said committee may be called
by any officer or director. Such notice may be given only to
such of the directors or members of the committee, as the case
may be, as it may be feasible to reach at the time and by such
means as may be feasible at the time.
The director or directors in attendance at the meeting of
the Board, and the member or members of the executive committee,
if any, in attendance at the meeting of the committee shall
constitute a quorum. If none is in attendance at the meeting,
the officers or other persons designated on a list approved by
the Board before the emergency, all in such order of priority and
subject to such conditions and for such period of time (not
longer than reasonably necessary after the termination of the
emergency) as may be provided in the resolution approving the
list, shall, to the extent required to provide a quorum at any
meeting of the Board or of the executive committee, be deemed
directors or members of the committee, as the case may be, for
such meeting.
The Board, either before or during any such emergency, may
provide, and from time to time modify, lines of succession in the
event that during such emergency any or all officers or agents of
the corporation shall for any reason be rendered incapable of
discharging their duties. The Board, either before or during any
such emergency, may, effective in the emergency, change the
principal executive office or designate several alternative
offices or authorize the officers so to do.
ARTICLE VIII. AMENDMENTS
These Bylaws may be amended or repealed either by approval
of the outstanding shares or by the approval of the Board;
provided, however, that after the issuance of shares, a Bylaw
specifying or changing a fixed number of directors or the maximum
or minimum number or changing from a fixed to a variable Board or
vice versa may only be adopted by approval of the outstanding
shares.
