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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: October 15, 1998
LIDAK PHARMACEUTICALS
(Exact name of registrant as specified in its charter)
CALIFORNIA
(State or other jurisdiction of incorporation)
0-18734 33-0314804
(Commission File Number) (IRS Employer Identification No.)
9393 Towne Centre Drive, San Diego, California 92121
(Address of principal executive offices) (Zip code)
(619) 558-0364
(Registrants telephone number, including area code)
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Item 5. OTHER EVENTS
On October 15, 1998, the Board of Directors of the registrant
unanimously adopted a Sixth Amendment to the registrant's Amended and Restated
Bylaws, a copy of which Sixth Amendment is attached hereto as Exhibit 3.1 and
incorporated herein by reference.
Item 7. Financial Statements and Exhibits
(c) Exhibits
(i) Exhibit 3.1: Sixth Amendment to Amended and Restated
Bylaws of LIDAK Pharmaceuticals, dated October 15, 1998.
(ii) Exhibit 3.2: Amended and restated Bylaws of LIDAK
Pharmaceuticals, dated October 15, 1998.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LIDAK PHARMACEUTICALS
Date: October 30, 1998 By:\s\Gregory P. Hanson
-------------------------------------------
Gregory P. Hanson
Vice President & Chief Financial Officer
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EXHIBIT 3.1
SIXTH AMENDMENT TO AMENDED AND RESTATED
BYLAWS OF LIDAK PHARMACEUTICALS
October 15, 1998
Article 2 - "Meetings of Shareholders," Section 2.1.2 of the Amended and
Restated Bylaws of LIDAK Pharmaceuticals, a California corporation, is hereby
amended and restated as follows:
"2.1.2 (a) The annual meeting of shareholders shall be held each year on
a date and at a time fixed by the Board of Directors. At each annual
meeting, (i) directors shall be elected from the persons who are
nominated in accordance with the procedures set forth in paragraph (b)
below and (ii) any proper business shall be conducted which has been
submitted in accordance with the procedures set forth in paragraph (b)
below.
(b) Only proper business which has been submitted in accordance
with the following procedures shall be conducted at the annual meeting.
Submissions of nominations of persons for election as directors or other
proper business to be conducted at the annual meeting may be made at
such meeting by or at the direction of the Board of Directors, by any
committee or persons appointed by the Board of Directors or by any
shareholder of the corporation who complies with the notice procedures
set forth in this paragraph. Such submissions of proper business by any
shareholder shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a shareholder's notice shall
be delivered to, or mailed and received at, the principal executive
offices of the corporation not less than sixty (60) days nor more than
one hundred twenty (120) days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that if less than seventy
(70) days' notice or prior public disclosure of the date of the
scheduled annual meeting is given or made to the shareholders, notice by
the shareholder, to be timely, must be so delivered or received not
later than the close of business on the tenth (10th) day following the
day on which such notice of the date of the scheduled annual meeting was
mailed or the day on which such public disclosure was made. A
shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the annual meeting (i) a
description of the proper business submitted for consideration at the
annual meeting, (ii) the name and record address of the stockholder
giving the notice, (iii) the class and number of shares of capital stock
of the corporation which are beneficially owned by the stockholder, (iv)
any material interest of the shareholder in such business, and (v) if
such business involves the nomination of a person for election as a
director, the name, age, business and residence addresses and principal
occupation of such person. No proper business shall be conducted at the
annual meeting unless submitted in accordance with the procedures set
forth herein. The officer of the corporation presiding at an annual
meeting shall, if the facts warrant, determine and declare to the
meeting that a submission of a proper nomination or proper business was
not made in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
submission shall be disregarded."
All other provisions of the Amended and Restated Bylaws remain unchanged and in
full force and effect.
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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS OF
LIDAK PHARMACEUTICALS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
1 Offices..............................................................................1
1.1 Principal Executive Office.......................................................1
1.2 Other Offices....................................................................1
2 Meetings of Shareholders.............................................................1
2.1 Place of Meetings...............................................................1
2.2 Special Meetings................................................................2
2.3 Notice of Meetings..............................................................2
2.4 Quorum..........................................................................4
2.5 Adjourned Meeting and Notice Thereof............................................4
2.6 Record Date.....................................................................4
2.7 Voting Rights...................................................................5
2.8 Validation of Defectively Called or Noticed Meetings............................5
2.9 Action Without a Meeting........................................................6
2.10 Proxies.........................................................................7
2.11 Inspectors of Election..........................................................7
3 Directors............................................................................8
3.1 Powers..........................................................................8
3.2 Number and Qualification of Directors...........................................9
3.3 Election and Term of Office.....................................................9
3.4 Vacancies.......................................................................9
3.5 Removal of Directors Without Cause.............................................10
3.6 Place of Meeting...............................................................11
3.7 Organizational Meeting.........................................................11
3.8 Other Regular Meetings.........................................................11
3.9 Special Meetings...............................................................11
3.10 Action Without Meeting.........................................................12
3.11 Action at a Meeting: Quorum and Required Vote..................................12
3.12 Validation of Defectively Called or Noticed Meetings...........................12
3.13 Adjournment....................................................................12
</TABLE>
-i-
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<TABLE>
<S> <C> <C>
3.14 Fees and Compensation..........................................................13
3.15 Indemnification of Agents of the Corporation; Purchase of Liability Insurance..13
4 Executive and Other Committees......................................................16
4.1 Executive and Other Committees..................................................16
4.2 Scientific Council..............................................................16
5 Officers............................................................................16
5.1 Officers........................................................................16
5.2 Appointment of Officers.........................................................17
5.3 Subordinate Officers, Etc.......................................................17
5.4 Removal and Resignation.........................................................17
5.5 Vacancies.......................................................................17
5.6 Chairman of the Board...........................................................17
5.7 President and Chief Executive Officer...........................................17
5.8 Vice President..................................................................18
5.9 Secretary.......................................................................18
5.10 Chief Financial Officer........................................................19
6 Miscellaneous.......................................................................19
6.1 Inspection of Corporate Records.................................................19
6.2 Checks, Drafts, Etc.............................................................20
6.3 Annual Report...................................................................20
6.4 Contracts, Etc., How Executed...................................................20
6.5 Certificate for Shares..........................................................21
6.6 Representation of Shares of Other Corporations..................................21
6.7 Inspection of Bylaws............................................................22
6.8 Construction and Definitions....................................................22
7 Amendments..........................................................................22
7.1 Power of Shareholders...........................................................22
7.2 Power of Directors..............................................................22
7.3 Records of Amendments...........................................................22
</TABLE>
(ii)
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AMENDED AND RESTATED
BYLAWS OF
LIDAK PHARMACEUTICALS
ARTICLE 1 - OFFICES
1.1 Principal Executive Office
1.1.1 The principal executive office of the Corporation shall
be located at such place or places as may be designated by the Board of
Directors.
1.2 Other Offices
1.2.1 Other business 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 2 - MEETINGS OF SHAREHOLDERS
2.1 Place of Meetings
2.1.1 All meetings of shareholders shall be held at the
principal executive office of the Corporation, or at any other place within or
without the State of California which may be designated by either the Board of
Directors or in a written consent of all persons entitled to vote thereat and
not present at the meeting, given either before or after the meeting, and filed
with the secretary of the Corporation.
2.1.2 (a) The annual meeting of shareholders shall be held
each year on a date and at a time fixed by the Board of Directors. At each
annual meeting, (i) directors shall be elected from the persons who are
nominated in accordance with the procedures set forth in paragraph (b) below and
(ii) any proper business shall be conducted which has been submitted in
accordance with the procedures set forth in paragraph (b) below.
(b) Only proper business which has been submitted in
accordance with the following procedures shall be conducted at the annual
meeting. Submissions of nominations of persons for election as directors or
other proper business to be conducted at the annual meeting may be made at such
meeting by or at the direction of the Board of Directors, by any committee or
persons appointed by the Board of Directors or by any shareholder of the
corporation who complies with the notice procedures set forth in this paragraph.
Such submissions of proper business by any shareholder shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To be timely, a
shareholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than sixty (60) days nor
more than one hundred twenty (120) days prior to the scheduled
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annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less than seventy (70)
days' notice or prior public disclosure of the date of the scheduled annual
meeting is given or made to the shareholders, notice by the shareholder, to be
timely, must be so delivered or received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (i) a
description of the proper business submitted for consideration at the annual
meeting, (ii) the name and record address of the stockholder giving the notice,
(iii) the class and number of shares of capital stock of the corporation which
are beneficially owned by the stockholder, (iv) any material interest of the
shareholder in such business, and (v) if such business involves the nomination
of a person for election as a director, the name, age, business and residence
addresses and principal occupation of such person. No proper business shall be
conducted at the annual meeting unless submitted in accordance with the
procedures set forth herein. The officer of the corporation presiding at an
annual meeting shall, if the facts warrant, determine and declare to the meeting
that a submission of a proper nomination or proper business was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective submission shall be disregarded."
2.2 Special Meetings
2.2.1 Special meetings of the shareholders for the purpose of
taking any action permitted by the shareholders under the California General
Corporation Law and the Articles of Incorporation of the Corporation, may be
called at any time by the chairman of the board, president and chief executive
officer, Board of Directors or by one or more shareholders entitled to cast not
less than 10 percent of the votes at such meeting. Upon request in writing that
a special meeting of shareholders be called for any proper purpose, directed to
the chairman of the board, president and chief executive officer, vice president
or secretary by any person (other than the Board of Directors) entitled to call
a special meeting of shareholders, the officer forthwith shall cause notice to
be given to shareholders entitled to vote that a meeting will be held (not less
than 35 nor more than 60 days after receipt of the request) at a time requested
by the person or persons calling the meeting.
2.3 Notice of Meetings
2.3.1 Written notice of shareholders meetings, annual or
special, 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 or her address appearing on the books of the
Corporation or given by him or her to the Corporation for the purpose of such
notice. If any notice or report addressed to the shareholder at the address of
such shareholder appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver such notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder
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upon written demand of the shareholder at the principal executive office of the
Corporation for a period of one year from the date of the giving of such notice
or report to all other shareholders. If a shareholder gives no address, notice
shall be deemed to have been given him or her if sent by mail or other means of
written communication addressed to the place where the principal executive
office of the Corporation is situated, or if published at least once in a
newspaper of general circulation in the county in which said principal executive
office is located.
2.3.2 All such notices shall be given to each shareholder
entitled thereto not less than 10 nor more than 60 days before each meeting of
shareholders. Any such notice shall be deemed to have been given at the time
when delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such notice in accordance
with the foregoing provisions, executed by the secretary, assistant secretary or
any transfer agent of the Corporation shall be prima facie evidence of the
giving of the notice.
2.3.3 A notice of meeting of shareholders shall specify:
(a) The place, date and hour of such meeting;
(b) If the meeting is an annual meeting, those
matters which the Board of Directors, at the time of the mailing of the notice,
intends to present for action by the shareholders;
(c) If directors are to be elected, the names of
nominees intended at the time of the notice to be presented by the Board of
Directors for election;
(d) The general nature of a proposal, if any, to
take action with respect to approval of (i) a contract or other transaction
between the Corporation and one or more directors, or any corporation, firm or
association in which one or more directors has a material financial interest,
(ii) amendment of the Articles of Incorporation, (iii) a reorganization of the
Corporation, as defined in the California General Corporation Law, (iv) the
voluntary winding up and dissolution of the Corporation or (v) a plan of
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if the Corporation has both preferred and common
stock outstanding;
(e) If a special meeting of shareholders, in
addition to (a) and (c) above, the general nature of the business to be
transacted and that no other business may be transacted; and
(f) Such other matters, if any, as may be expressly
required by statute.
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2.4 Quorum
2.4.1 The presence in person or by proxy of persons entitled
to vote a majority of the voting shares of the Corporation at any meeting, but
not less than 33-1/3 percent of all voting shares of the Corporation, shall
constitute a quorum for the transaction of business. The shareholders present at
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
2.5 Adjourned Meeting and Notice Thereof
2.5.1 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, but in the absence of a quorum no other business may be
transacted at such meeting, except as provided in Paragraph 2.4.1 above.
2.5.2 When any shareholders meeting, either annual or special,
is adjourned for 45 days or more, 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. Except as provided above, 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 of the time
and place thereof at the meeting at which such adjournment is taken.
2.6 Record Date
2.6.1 The Board of Directors shall determine and fix a time in
the future as a record date for the determination of the shareholders entitled
to notice of, and to vote at, any meeting of shareholders or entitled to give
consent to corporate action in writing without a meeting, to receive any report,
dividend or distribution or allotment of rights, or to exercise rights in
respect to any change, conversion or exchange of shares 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 any meeting nor more than 60
days prior to any other event for the purposes of which it is fixed.
2.6.2 If no record date is fixed by the Board of Directors:
(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 of
the meeting is given, or if such notice is waived, at the close of business on
the business day next preceding the day on which the meeting of shareholders is
held.
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(b) The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting shall
be the day on which the first written consent is given.
(c) The record date for determining shareholders for
any other purpose shall be at the close of the business on the day on which the
Board of Directors adopts the resolution relating thereto, or the 60th day prior
to the date of such other action, whichever is later.
2.6.3 Only shareholders of record on the record date are
entitled to notice of, and to vote at, any such meeting, to give consent without
a meeting, to receive any report, dividend, distribution or allotment of rights,
or to exercise the rights, as the case may be, notwithstanding any transfer of
any shares on the books of the Corporation after the record date, except as
otherwise provided in the Articles of Incorporation of the Corporation or these
Bylaws.
2.7 Voting Rights
2.7.1 Except as provided below or as otherwise provided by the
Articles of Incorporation or By-Laws, a shareholder shall be entitled to one
vote for each share held of record on the record date fixed for the
determination of the shareholders entitled to vote at a meeting or, if no such
date is fixed, the date determined in accordance with law. Upon the demand of
any shareholder made at a meeting before the voting begins, the election of
directors shall be by ballot. No shareholder will be permitted to cumulate votes
at any election of directors.
Any holder of shares entitled to vote on any matter may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, other than elections to
office, but, if the shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it shall be conclusively presumed that the
shareholder's approving vote is with respect to all shares said shareholder is
entitled to vote."
2.8 Validation of Defectively Called or Noticed Meetings
2.8.1 The transactions of any meeting of shareholders, either
annual or special, however called and noticed, shall be as valid as though taken
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, 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, as appropriate.
2.8.2 Attendance of a shareholder at a meeting of shareholders
shall constitute a waiver of notice of such meeting, except when such
shareholder objects, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened; except that,
attendance at a meeting is not a waiver of any right to object to the
consideration of matters required to be included in the notice of the meeting
but not so included if such objection is expressly made at the meeting.
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2.9 Action Without a Meeting
2.9.1 Directors may be elected without a meeting by a consent
in writing, setting forth the action so taken, signed by all of the shareholders
who would be entitled to vote for the election of said directors; provided that,
except as hereinafter set forth, a director may be elected at any time to fill a
vacancy not created by the removal of a director which is not filled by the
directors, by the written consent of shareholders holding a majority of the
outstanding shares entitled to vote for the election of directors.
2.9.2 Any other action which, under any provision of the
California General Corporation Law, may be taken at a meeting of shareholders,
may be taken without a meeting and without notice, except as hereinafter set
forth, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
2.9.3 Unless the consent of all shareholders entitled to vote
has been solicited in writing: (a) notice of any proposed shareholder approval
of (i) a contract or other transaction between the Corporation and one or more
directors, or any corporation, firm or association in which one or more
directors has a material financial interest, (ii) indemnification of an agent of
the Corporation, as authorized by these Bylaws, (iii) a reorganization of the
Corporation, as defined in the California General Corporation Law, or (iv) a
distribution in dissolution, other than in accordance with the rights of
outstanding preferred shares, if the Corporation has both preferred and common
stock outstanding, without a meeting by less than unanimous written consent,
shall be given at least ten days before the consummation of the action
authorized by such approval, and (b) prompt notice shall be given of any other
corporate action taken and approved by shareholders without a meeting by less
than unanimous written consent, to those shareholders entitled to vote who have
not consented in writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 2.3 of these Bylaws.
2.9.4 Any shareholder giving a written consent, or the
shareholder's proxyholder, a transferee of the shares or a personal
representative of the shareholder or their respective proxyholders, may revoke
the consent by a writing received by the Corporation prior to the time that
written consents of the number of shares required to authorize the proposed
action have been filed with the secretary of the Corporation, but may not do so
thereafter. Such revocation is effective upon its receipt by the secretary of
the Corporation.
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2.10 Proxies
2.10.1 Every person entitled to vote or execute written
consents shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his or her duly
authorized agent and filed with the secretary of the Corporation. Any proxy duly
executed is not revoked and continues in full force and effect until (i) an
instrument revoking it or a duly executed proxy bearing a later date is filed
with the secretary of the Corporation prior to the vote pursuant thereto, (ii)
the person executing the proxy attends the meeting and votes in person or (iii)
written notice of the death or incapacity of the maker of such proxy is received
by the Corporation before the vote pursuant thereto is counted; provided that no
such proxy shall be valid after the expiration of 11 months from the date of its
execution, unless the person executing it specifies therein the length of time
for which such proxy is to continue in force.
2.11 Inspectors of Election
2.11.1 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 are not so appointed, the chairman of any such meeting may, and on the
request of any shareholder or his or her proxy shall, make such appointment at
the meeting. The number of inspectors of election shall be either one or three.
If appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares represented in person or by proxy shall determine whether
one or three inspectors are to be appointed. In case any person appointed as an
inspector of election fails to appear or fails or refuses to act, the vacancy
may, and on the request of any shareholder or a shareholder's proxy shall, be
filled by appointment by the Board of Directors prior to the meeting, or at the
meeting by the chairman of the meeting.
2.11.2 The duties of such inspectors of election shall be as
prescribed by 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 any right to vote; counting and tabulating all votes or consents;
determining when the polls shall close; determining the results; and such other
acts as may be proper to conduct the election or vote with fairness to all
shareholders. In the determination of the validity and effect of proxies the
dates contained on the forms of proxy shall presumptively determine the order of
execution of the proxies, regardless of the postmark dates on the envelopes in
which they are mailed.
2.11.3 The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
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ARTICLE 3 - DIRECTORS
3.1 Powers
3.1.1 Subject to limitations set forth in the Articles of
Incorporation and the Bylaws of the Corporation and in the California General
Corporation Law as to action to be authorized or approved by the shareholders or
by the outstanding shares, and subject to the duties of directors as prescribed
by these Bylaws, the business and affairs of the Corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors. Without prejudice to such general powers, but subject to the
same limitations, it is hereby expressly declared that the directors shall have
the following powers:
(a) To select and remove all 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, the Articles of Incorporation or the Bylaws, as they may
deem best;
(c) To change the principal office for the
transaction of the business of the Corporation from one location to another
within or without the State of California, as provided in Article 1, Section
1.1.1 hereof; to fix and locate from time to time one or more other offices of
the Corporation within or without the State of California, as provided in
Article 1, Section 1.2.1 hereof; to designate any place within or without the
State of California for the holding of any shareholders meetings; and to adopt,
make and use a corporate seal, to prescribe the form of certificates of stock,
and to alter the form of such seal and of such stock certificates from time to
time as in their judgment they deem best, provided such seal and such
certificates shall at all times comply with the provisions of law;
(d) To authorize the issue of stock of the
Corporation from time to time, upon such terms as may be lawful, in
consideration of money paid, labor done, services actually rendered to the
Corporation or for its benefit or in its formation or reorganization, debts or
securities canceled, tangible or intangible property actually received either by
the Corporation or by a wholly owned subsidiary, or as a share dividend, or upon
a stock split, reverse stock split, reclassification or conversion of
outstanding shares into shares of another class, exchange of outstanding shares
for shares of another class, or other change affecting outstanding shares;
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(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, and
(f) To delegate the management of the day-to-day
operations 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 of Directors.
3.2 Number and Qualification of Directors
3.2.1 The number of directors of the Corporation shall not be
less than five nor more than nine (which in no case shall be greater than two
times the stated minimum minus one) until changed by a bylaw amending this
Paragraph 3.2 duly adopted by a vote or written consent of the holders of a
majority of the outstanding shares entitled to vote, provided that a proposal to
reduce the authorized number or the minimum number of directors below five
cannot be adopted if the votes cast against its adoption at a meeting, or the
shares not consenting in the case of action by written consent, are equal to
more than 16-2/3 percent of the outstanding shares entitled to vote. The exact
number of directors shall be fixed from time to time within the limits specified
in this Paragraph 3.2 by the Board of Directors. Subject to the foregoing
provisions for changing the number of directors, the initial number of directors
of this Corporation has been fixed at nine.
3.3 Election and Term of Office
3.3.1 The directors shall be divided into three classes,
designated Class I, Class II and Class III as nearly equal in number as
reasonably possible, with any overage allocated in the discretion of the Board
of Directors. The initial term of office of the Class I directors will expire at
the 1999 annual meeting of shareholders. The initial term of office of the Class
II directors will expire at the 2000 annual meeting of shareholders. The initial
term of office of the Class III directors will expire at the 2001 annual meeting
of shareholders. At the 1998 annual meeting of shareholders and at each annual
meeting of shareholders thereafter, directors shall be elected, to succeed
directors of the class whose terms expires, for a term of office to expire at
the second succeeding annual meeting after their election. All directors,
including directors elected to fill vacancies, shall hold office until the
expiration of the term for which elected and until their successors are elected
and qualified, except in the case of death, resignation or removal of any
director.
3.4 Vacancies
3.4.1 A vacancy in the Board of Directors shall be deemed to
exist in any of the following instances:
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(a) The death, resignation or removal of any
director.
(b) If a director shall have been declared of
unsound mind by order of court or convicted of a felony.
(c) If the authorized number of directors shall have
been increased.
(d) If the shareholders shall fail to elect the full
authorized number of directors.
3.4.2 Vacancies in the Board of Directors, except for a
vacancy created by the removal of a director, may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director.
Each director so elected shall hold office until his or her successor is elected
at an annual or a special meeting of the shareholders. A vacancy in the Board of
Directors created by the removal of a director may only be filled by the vote of
a majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is present, or by the unanimous written consent of the
shareholders.
3.4.3 The shareholders may elect a director or directors at
any time to fill any vacancy or vacancies not filled by the directors. Any such
election by written consent (other than a vacancy created by the removal of a
director) shall require the consent of holders of a majority of the outstanding
shares entitled to vote.
3.4.4 Any director may resign effective upon giving written
notice to the chairman of the board, the president, the secretary or the Board
of Directors of the Corporation, unless the notice specifies a later time for
the effectiveness of such resignation; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
If the resignation is effective at a future time, the Board or shareholders
shall have the power to elect a successor to take office when the resignation
becomes effective.
3.4.5 A reduction of the authorized number of directors shall
not have the effect of removing any director prior to the expiration of his or
her term of office.
3.5 Removal of Directors Without Cause
3.5.1 A director may not be removed if the votes cast against
removal of the director, or not consenting in writing to the removal, would be
sufficient to elect the director if voted cumulatively (without regard to
whether shares may otherwise be voted cumulatively) at an election at which (i)
the same total number of votes were cast (or, if removal is sought through
action by written consent, all shares entitled to vote were voted) and (ii)
either the number of directors elected at the most recent annual meeting of
shareholders, or if greater, the number of directors for whom removal is being
sought, were then being elected."
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3.6 Place of Meeting
3.6.1 Regular meetings of the Board of Directors shall be held
at any place within or without the State of California which has been designated
in the notice of the meeting or, if not stated in the notice, or if there is no
notice, from time to time by resolution of the Board of Directors or by written
consent of all members of the Board. In the absence of such designation, regular
meetings shall be held at the principal executive office of the Corporation.
Special meetings of the Board may be held either at a place so designated or at
the principal executive office of the Corporation.
3.7 Organizational Meeting
3.7.1 Immediately following each annual meeting of
shareholders the Board of Directors shall hold an organizational meeting at the
place of said annual meeting or at such other place as shall be fixed by the
Board of Directors, for the purposes of organization, election of officers and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
3.8 Other Regular Meetings
3.8.1 Other regular meetings of the Board of Directors shall
be held at such time and place as may be determined from time to time by the
Board of Directors. If such date should fall upon a legal holiday, then the
meeting shall be held at the same time on the next succeeding business day
thereafter. Notice of all such regular meetings of the Board of Directors is
hereby dispensed with.
3.9 Special Meetings
3.9.1 Special meetings of the Board of Directors for any
purpose or purposes may be called at any time by the chairman of the board, if
there be such an officer, the president and chief executive officer, any vice
president, the secretary or by any two directors.
3.9.2 Written notice of the time and place of special meetings
shall be delivered personally to each director or communicated to each director
by telephone, facsimile, mail (with charges prepaid) or courier holding itself
out as able to effect next day delivery, addressed to him or her at his or her
address as it is shown upon the records of the Corporation or, if it is not so
shown on the records or is not readily ascertainable, at the place at which
meetings of the directors are regularly held. In case such notice is mailed, it
shall be deposited in the United States mail at least four days prior to the
time of the holding of the meeting. In case such notice is delivered personally
or by telephone, as above provided, it shall be so delivered at least 48 hours
prior to the time of the holding of the meeting. In case such notice is
delivered by facsimile, it shall be transmitted to the facsimile telephone
number of the intended recipient shown upon the records of the Corporation at
least 48 hours prior to the time of the holding of the meeting; if no facsimile
telephone number is shown upon the records of the Corporation for the intended
recipient, attempted delivery by facsimile of a notice of meeting to such
recipient will not constitute due notice of the meeting to such recipient. In
case such notice is delivered by courier holding itself out as able to effect
next day delivery, it shall be delivered to the courier
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not later than the second day before the day of the meeting. Such mailing,
facsimile transmission or delivery, personally or by telephone, as above
provided, shall be due, legal and personal notice to such director.
3.9.3 Any notice shall state the date, place and hour of the
meeting.
3.10 Action Without Meeting
3.10.1 Any action by the Board of Directors may be taken
without a meeting if all members of the Board shall individually or collectively
consent in writing to such action. Such written consent or consents shall be
filed with the minutes of the proceedings of the Board and shall be of the same
force and effect as a unanimous vote of such directors.
3.11 Action at a Meeting: Quorum and Required Vote
3.11.1 The presence of a majority of the authorized number of
directors at a meeting of the Board of Directors constitutes a quorum for the
transaction of business, except as hereinafter provided. Members of the Board
may participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting as permitted in the preceding
sentence constitutes presence in person at such meeting. 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, or the same number after disqualifying one
or more directors from voting, is required by law, the Articles of Incorporation
of the Corporation or these Bylaws.
3.11.2 A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of a director
provided that any action taken is approved by at least a majority of the
required quorum for such meeting.
3.12 Validation of Defectively Called or Noticed Meetings
3.12.1 The transactions of any meeting of the Board of
Directors, however called and noticed or wherever held, shall be as valid as
though taken at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present or who has, though present, prior to the meeting or at its commencement,
protested the lack of proper notice to him or her, 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 such meeting.
3.13 Adjournment
3.13.1 A quorum of the Board of Directors may adjourn any
directors meeting to meet again at a stated day and hour; provided, however,
that in the absence of a quorum, a
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majority of the directors present at any directors meeting, either regular or
special, may adjourn the meeting from time to time to another time and place.
3.13.2 If a 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
adjournment. Otherwise, notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place is so fixed
at the adjourned meeting.
3.14 Fees and Compensation
3.14.1 Directors and members of committees appointed by the
Board may receive such compensation for their services and reimbursement for
expenses, if any, as may be fixed or determined by resolution of the Board.
3.15 Indemnification of Agents of the Corporation; Purchase of
Liability Insurance
3.15.1 For the purposes of this Section 3.15, "director" and
"officer" mean any person who (i) is or was a director or officer, respectively,
of the Corporation, (ii) is or was serving at the request of the Corporation as
a director or officer, respectively, of another foreign or domestic corporation
or other enterprise or (iii) was a director or officer, respectively, of a
foreign or domestic corporation which was a predecessor corporation of the
Corporation or of another enterprise at the request of such predecessor
corporation; "agent' means any person who (i) is or was a director or officer,
(ii) is or was serving at the request of the Corporation as an employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise or (iii) was an employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation; "proceeding' means
any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses" includes, without
limitation, attorneys' fees and any expenses of establishing a right to
indemnification under Paragraphs 3.15.4 or 3.15.5(d) of this Section 3.15.
3.15.2 The Corporation shall indemnify the directors and
officers, and may indemnify upon resolution of the Board of Directors of the
Corporation any agent, who was or is a party, or is threatened to be made a
party, to any proceeding (other than an action by or in the right of the
Corporation to procure a judgment in its favor) by reason of the fact that such
person is or was a director, officer or agent, respectively, of the Corporation
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the best
interests of the Corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith in a manner which the
person reasonably believed to be in the best interests of the Corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
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3.15.3 The Corporation shall indemnify the directors and
officers, and may indemnify upon resolution of the Board of Directors of the
Corporation any agent, who was or is a party, or is threatened to be made a
party, to any threatened, pending of completed action by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer or agent, respectively, of the Corporation
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such action if such person acted in good
faith, in a manner such person believed to be in the best interests of the
Corporation and its shareholders. No indemnification shall be made under this
Paragraph 3.15.3:
(a) In respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation in
the performance of such person's duty to the Corporation and its shareholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
expenses and then only to the extent that the court shall determine; or
(b) Of amounts paid in settling or otherwise
disposing of a pending action without court approval; or
(c) Of expenses incurred in defending a pending
action which is settled or otherwise disposed of without court approval.
3.15.4 To the extent that an agent of the Corporation has been
successful on the merits in defense of any proceeding referred to in Paragraph
3.15.2 or 3.15.3 above, or in defense of any claim, issue or matter therein,
said agent shall be indemnified against expenses actually and reasonably
incurred by said agent in connection therewith.
3.15.5 Except as provided in Paragraph 3.15.4 above, any
indemnification under this Section 3.15 shall be made by the Corporation only if
authorized in the specific case upon a determination that indemnification of the
agent is proper in the circumstances because the agent has met the applicable
standard of conduct set forth in Paragraph 3.15.2 or 3.15.3 above, by any of the
following:
(a) A majority vote of a quorum consisting of
directors who are not parties to such proceeding;
(b) If such a quorum of directors is not obtainable,
by independent legal counsel in a written opinion;
(c) Approval or ratification by the affirmative vote
of a majority of the shares of this Corporation entitled to vote represented at
a duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares which would be entitled to vote
at such meeting. For such purpose, the shares owned by the person to be
indemnified shall not be entitled to vote thereon; or
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(d) The court in which such proceeding is or was
pending, upon application made by the Corporation, the agent or the attorney or
other person rendering services in connection with the defense, whether or not
such application by said agent, attorney or other person is opposed by the
Corporation.
3.15.6 Expenses incurred in defending any proceeding may be
advanced by the Corporation prior to the final disposition of such proceeding
upon receipt of an undertaking by or on behalf of the agent to repay such amount
if it shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this Section 3.15.
3.15.7 The indemnification provided in this Section 3.15 is not
exclusive of any other rights which the agents of the Corporation may be
entitled under any other provision of these bylaws, agreement, vote of
shareholders or disinterested directors, the Articles of Incorporation of the
Corporation, as amended from time to time, or otherwise, or pursuant to the laws
of California. Such indemnification shall continue as to a person who has ceased
to be an agent and shall inure to the benefit of the heirs, executors and
administrators of the person. Nothing contained in this Section 3.15 shall
affect any right to indemnification to which persons other than directors and
officers of the Corporation, or any subsidiary thereof, may be entitled by
contract or otherwise.
3.15.8 No indemnification or advance shall be made under this
section, except as provided in Paragraph 3.15.4 or 3.15.5 (c) above, in any
circumstance where it appears:
(a) That it would be inconsistent with a provision
of the Articles of Incorporation of the Corporation, a resolution of the
shareholders or an agreement in effect at the time of the accrual of the alleged
cause of 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.
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3.15.9 Upon and in the event of a determination by the Board of
Directors of the Corporation to purchase such insurance, the Corporation may
purchase and maintain insurance on behalf of any agent of the Corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the Corporation
would have the power to indemnify the agent against such liability under the
provisions of this Section 3.15.
3.15.10 Notwithstanding any of the foregoing in this Section
3.15, the directors and officers of the Corporation are hereby indemnified and
held harmless from all liability arising from or related to a breach of duty to
the Corporation or its stockholders.
ARTICLE 4 - EXECUTIVE AND OTHER COMMITTEES
4.1 Executive and Other Committees
4.1.1 The Board of Directors may appoint an executive
committee, and such other committee as may be necessary from time to time,
consisting of two or more of its members with such powers as it may designate,
consistent with the Articles of Incorporation of the Corporation, these Bylaws
and the California General Corporation Law. Such committees shall hold office at
the pleasure of the Board.
4.2 Scientific Council
4.2.1 The Board of Directors may establish a Scientific
Council to govern the scientific research of the Corporation and provide the
Scientific Council with such bylaws as it deems appropriate provided, however,
that such bylaws shall be subordinate to and shall not affect the interpretation
of these Bylaws.
ARTICLE 5 - OFFICERS
5.1 Officers
5.1.1 The officers of the Corporation shall be a president and
chief executive officer, vice president, secretary and chief financial officer.
The Corporation may also have, at the election of the Board of Directors, a
chairman of the board, one or more additional vice presidents, one or more
assistant secretaries, one or more assistant chief financial officers and such
other officers as may be appointed in accordance with the provisions of Section
5.3 of this article. Any number of offices may be held by the same person unless
the Articles of Incorporation of the Corporation or these Bylaws provide
otherwise.
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5.2 Appointment of Officers
5.2.1 The officers of the Corporation, except such officers as
may be appointed in accordance with the provisions of Section 5.3 or 5.5 below,
shall be chosen annually by the Board of Directors and shall hold office until
their respective successors shall be qualified and appointed or until such
officers shall resign, be removed or otherwise disqualified.
5.3 Subordinate Officers, Etc.
5.3.1 The Board of Directors may at any time 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 these Bylaws or as the
Board of Directors may from time to time determine.
5.4 Removal and Resignation
5.4.1 Any officer may be removed, either with or without
cause, by the Board of Directors at any regular or special meeting thereof.
5.4.2 Any officer may resign at any time by giving written
notice to the Board of Directors or to the president or secretary of the
Corporation, without prejudice, however, to the rights, if any, of the
Corporation under any contract to which such officer is a party. Any such
resignation shall take effect as of the date of 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.
5.5 Vacancies
5.5.1 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.
5.6 Chairman of the Board
5.6.1 The chairman of the board, if there shall be such an
officer, shall, if present, preside at all meetings of the Board of Directors
and exercise and perform such other powers and duties as may be from time to
time assigned to him or her by the Board of Directors or prescribed by these
Bylaws.
5.7 President and Chief Executive officer
5.7.1 Subject to such 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 and chief executive officer shall be the general manager and chief
executive officer of the Corporation and shall, subject to the control of the
Board of Directors, have general supervision, direction and
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control of the business and affairs of the Corporation. The president and chief
executive officer, or any other designee so appointed by the Board of Directors,
shall preside at all meetings of shareholders and, in the absence of the
chairman of the board, or if there be none, at all meetings of the Board of
Directors. The president and chief executive officer shall be ex officio a
member of all the standing committees of the Board of Directors, including the
executive committee, if any, and shall have the general powers and duties of
management usually vested in the office of president and chief executive officer
of a corporation and shall have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
5.8 Vice President
5.8.1 In the absence or disability of the president and chief
executive officer, 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 these Bylaws.
5.9 Secretary
5.9.1 The secretary shall record, or cause to be recorded, and
keep, or cause to be kept, at the principal executive office of the Corporation
and such other place as the Board of Directors may order, a book of the minutes
of actions taken at 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 by proxy at shareholders
meetings and the proceedings thereof.
5.9.2 The secretary shall keep, or cause to be kept, at the
principal executive office of the Corporation or at the office of the
Corporation's transfer agent, 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.
5.9.3 The secretary shall give, or cause to be given, notice
of all meetings of shareholders and the Board of Directors required by these
Bylaws or by law to be given, shall keep the corporate 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 these Bylaws.
5.9.4 The assistant secretary, if there shall be such an
officer, or, if there be more than one, the assistant secretaries in the order
determined by the Board of Directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the secretary or in
the event of his or her inability or refusal to act, perform the duties and
exercise
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the powers of the secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
5.10 Chief Financial Officer
5.10.1 The chief financial officer shall be the chief financial
officer of the Corporation and 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. The books
of account shall at all reasonable times be open to inspection by any director.
5.10.2 The chief financial officer shall deposit all moneys and
other valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. The chief financial
officer shall disburse the funds of the Corporation as may be ordered by the
Board, render to the president and directors, whenever they request it, an
account of all of his or her transactions as chief financial officer and of the
financial condition of the Corporation and have such other powers and perform
such other duties as may be prescribed by the Board of Directors or these
Bylaws.
5.10.3 The assistant chief financial officer, if there shall be
such an officer, or, if there shall be more than one, the assistant chief
financial officers in the order determined by the Board of Directors (or, if
there be no such determination, then in the order of their election), shall, in
the absence of the chief financial officer or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
chief financial officer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
ARTICLE 6 - MISCELLANEOUS
6.1 Inspection of Corporate Records
6.1.1 The accounting books and records, the record of
shareholders and minutes of proceedings of the shareholders and the Board of
Directors and committees of the Board and any subsidiary of this Corporation
shall be open to inspection upon the written demand on the Corporation of any
shareholder or holder of a voting trust certificate at any reasonable time
during usual business hours for a purpose reasonably related to such holder's
interests as a shareholder or as the holder of such voting trust certificate.
Such inspection by a shareholder or holder of a voting trust certificate may be
made in person or by agent or attorney and the right of inspection includes the
right to copy and make extracts. Demand of inspection shall be made in writing
upon the president and chief executive officer, secretary or assistant secretary
of the Corporation.
6.1.2 A shareholder or shareholders holding at least five
percent, in the aggregate, of the outstanding voting shares of the Corporation
or who hold(s) at least one percent of such voting shares and have filed a
Schedule 14B with the United States Securities and
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Exchange Commission relating to the election of directors of the Corporation
shall have (in person, or by agent or attorney) the 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) to obtain from the transfer
agent for the Corporation, upon written demand and upon the tender of the
transfer agent's usual charges, 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. Said list shall
be made available on or before the later of five business days after the demand
is received or the date specified therein as the date as of which the list is to
be compiled.
6.1.3 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. Such inspection
by a director may be made in person or by agent or attorney and the right of
inspection includes the right to copy and make extracts.
6.2 Checks, Drafts, Etc.
6.2.1 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.
6.3 Annual Report
6.3.1 So long as there are fewer than 100 holders of record of
the Corporation's shares, the annual report to shareholders referred to in
Section 1501 of the California Corporations Code is expressly dispensed with,
but nothing herein shall be interpreted as prohibiting the Board of Directors
from issuing such reports or as affecting the rights of shareholders to obtain
special financial statements as provided by the California General Corporation
Law.
6.4 Contracts, Etc.. How Executed
6.4.1 The Board of Directors, except as otherwise provided in
these Bylaws, 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. Such authority may be general or confined to specific instances;
however, unless so authorized 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 to any amount.
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6.5 Certificate for Shares
6.5.1 Every holder of shares of the Corporation shall be
entitled to have a certificate signed in the name of the Corporation by the
chairman or vice chairman of the Board of Directors or the president and chief
executive officer or a 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 said shareholder.
Any signature on the certificate may be a facsimile. In case 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.
6.5.2 Any such certificate shall also contain such legend or
other statement as may be required by the California General Corporation Law,
the Corporate Securities Law of 1968, the federal securities laws and any
agreement between the Corporation and the shareholders thereof.
6.5.3 Certificates for shares may be issued prior to full
payment under such restrictions and for such purposes as the Board of Directors
or these Bylaws may provide; provided, however, that any such certificate so
issued prior to full payment shall state on the face thereof the amount of the
consideration remaining unpaid and the terms of payment thereof.
6.5.4 No new certificate for shares shall be issued in lieu of
an old certificate unless the latter is surrendered and canceled at the same
time; provided, however, that a new certificate will be issued without the
surrender and cancellation of the old certificate if (i) the old certificate is
lost, apparently destroyed or wrongfully taken, (ii) the request for the
issuance of the new certificate is made within a reasonable time after the owner
of the old certificate has notice of its loss, destruction or theft, (iii) the
request for the issuance of a new certificate is made prior to the receipt of
notice by the Corporation that the old certificate has been acquired by a bona
fide purchaser, (iv) the owner of the old certificate files a sufficient
indemnity bond with, or provides other adequate security to, the Corporation and
(v) the owner satisfies any other reasonable requirements imposed by the
Corporation. In the event of the issuance of a new certificate, the rights and
liabilities of the Corporation, and of the holders of the old and new
certificates, shall be governed by the provisions of the California Uniform
Commercial Code.
6.6 Representation of Shares of Other Corporations
6.6.1 The president and chief executive officer or any vice
president and the secretary or any assistant secretary of the Corporation are
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 to said
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 either by such officers in person or by any other person authorized to
do so by proxy or power of attorney duly executed by said officers.
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6.7 Inspection of Bylaws
6.7.1 The Corporation shall keep at its principal executive
office in California or, if its principal executive office is not in California,
then at its principal business office in California (or otherwise provide upon
written request of any shareholder) the original or a copy of these Bylaws as
amended or otherwise altered to date, certified by the secretary, which shall be
open to inspection by the shareholders at all reasonable times during regular
business hours.
6.8 Construction and Definitions
6.8.1 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.
ARTICLE 7 - AMENDMENTS
7.1 Power of Shareholders
7.1.1 New bylaws may be adopted or these Bylaws may be amended
or repealed by the affirmative vote of a majority of the outstanding shares
entitled to vote, or by the written consent of shareholders entitled to vote
such shares, except as otherwise provided by law or by the Articles of
Incorporation of the Corporation.
7.2 Power of Directors
7.2.1 Subject to the right of shareholders as provided in
Section 7.1 above to adopt, amend or repeal bylaws, 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, except as specifically set forth
in the Articles of Incorporation or these Bylaws to the contrary.
7.3 Records of Amendments
7.3.1 Whenever an amendment or new bylaw is adopted, it shall
be filed in the appropriate place in the minute book of the Corporation with the
original Bylaws. If any bylaw is repealed, the fact of repeal with the date of
the meeting at which the repeal was enacted or written consent was filed shall
be stated in said book.
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