Attached files
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10-K - ANNUAL REPORT - OPHTHALMIC IMAGING SYSTEMS | f10k12312009.htm |
EX-32 - EXHIBIT 32.2 - OPHTHALMIC IMAGING SYSTEMS | ex32-f10k12312009.htm |
EX-3.4 - EXHIBIT 3.4 - OPHTHALMIC IMAGING SYSTEMS | ex3-4_f10k12312009.htm |
EX-31.2 - EXHIBIT 31.2 - OPHTHALMIC IMAGING SYSTEMS | ex31-2_f10k12312009.htm |
EX-23.1 - EXHIBIT 23.1 - OPHTHALMIC IMAGING SYSTEMS | ex23_1-f10k12312009.htm |
EX-31.1 - EXHIBIT 31.1 - OPHTHALMIC IMAGING SYSTEMS | ex31-1_f10k12312009.htm |
EX-10.32 - EXHIBIT 10.32 - OPHTHALMIC IMAGING SYSTEMS | ex10-32_f10k12312009.htm |
EX-10.29 - EXHIBIT 10.29 - OPHTHALMIC IMAGING SYSTEMS | ex10-29_f10k12312009.htm |
EX-10.12 - EXHIBIT 10.12 - OPHTHALMIC IMAGING SYSTEMS | ex10-12_f10k12312009.htm |
EX-10.13 - EXHIBIT 10.13 - OPHTHALMIC IMAGING SYSTEMS | ex10-13_f10k12312009.htm |
EX-10.30 - EXHIBIT 10.30 - OPHTHALMIC IMAGING SYSTEMS | ex10-30_f10k12312009.htm |
EX-10.28 - EXHIBIT 10.28 - OPHTHALMIC IMAGING SYSTEMS | ex10-28_f10k12312009.htm |
EX-10.31 - EXHIBIT 10.31 - OPHTHALMIC IMAGING SYSTEMS | ex10-31_f10k12312009.htm |
Exhibit
3.5
AMENDED
AND RESTATED BYLAWS
OF
OF
OPHTHALMIC
IMAGING SYSTEMS,
A CALIFORNIA CORPORATION
A CALIFORNIA CORPORATION
ARTICLE
I
OFFICERS
OFFICERS
Section 1. PRINCIPAL
OFFICE. The principal office for the transaction of business of the
corporation is hereby fixed and located at 1617 16th street, City of Sacramento,
county of Sacramento, state of California. The location may be changed by
approval of a majority of the authorized Directors, and additional offices may
be established and maintained at such other place or places, either within or
without California, as the Board of Directors may from time to time
designate.
Section 2. OTHER
OFFICES. Branch or subordinate offices may at any time be established
by the Board of Directors at any place or places where the corporation is
qualified to do business.
ARTICLE
II
DIRECTORS - MANAGEMENT
DIRECTORS - MANAGEMENT
Section 1. RESPONSIBILITY OF
BOARD OF DIRECTORS. Subject to the provisions of the General
Corporation Law and to any limitations in the Articles of Incorporation of the
corporation relating to action required to be approved by the Shareholders, as
that term is defined in Section 153 of the California Corporations Code, or by
the outstanding shares, as that term is defined in Section 152 of the Code, 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.
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.
Section 2. NUMBER AND
QUALIFICATION OF DIRECTORS. The authorized number of directors shall
not be less than five (5) nor greater than nine (9), with the exact number of
directors to be fixed by resolution of the Board, as provided in Sec.
212.
Section 3. ELECTION AND
TERM OF OFFICE OF DIRECTORS. Directors shall be elected at each
annual meeting of the Shareholders to hold office until the next annual meeting.
Each Director, including a Director elected to fill a vacancy shall hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified.
Section 4. VACANCIES. Vacancies
in the Board of Directors may be filled by a majority of the remaining
Directors, though less than a quorum, or by a sole remaining Director, except
that a vacancy created by the removal of a director by the vote or written
consent of the Shareholders or by a court order may be filled only 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 written consent of holders of a majority
of the outstanding shares entitled to vote. Each Director so elected shall hold
office until the next annual meeting of the Shareholders and until a successor
has been elected and qualified.
1
A vacancy
or vacancies in the Board of Directors shall be deemed to exist in the event of
the death, resignation or removal of any Director, or if the Board of Directors
by resolution declares vacant the office of a Director who has been declared of
unsound Mind by an order of court or convicted of a felony, or if the authorized
number of Directors is increased, or if the Shareholders fail at any meeting of
Shareholders at which any Director or Directors are elected, to elect the number
of Directors to be voted for at the meeting.
The
Shareholders may elect a Director or Directors at any time to fill any vacancy
or vacancies not filled by the Directors, but any such election by written
consent shall require the consent of a majority of the outstanding shares
entitled to vote.
Any
Director may resign effective on giving written notice to the Chairman of the
Board, the Chief Executive Officer, the Secretary or the Board of Directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a Director is effective at a future time, the
Board of Directors may elect a successor to take office when the resignation
becomes effective.
No
reduction of the authorized number of Directors shall have the effect of
removing any Director before that Director’s term of office
expires.
Section 5. REMOVAL OF
DIRECTORS. The entire Board of Directors or any individual Director
may be removed from office as provided by Sees. 302, 303 and 304 of the
corporations Code of the state of California, in such case, the remaining Board
members may elect a successor Director to fill such vacancy for the remaining
unexpired term of the Director so removed.
Section 6. NOTICE, PLACE
AND MANNER OF MEETINGS. Meetings of the Board of Directors may be
called by the Chairman of the Board or the Chief Executive Officer or any Vice
President or the Secretary or any two (2) Directors and shall be held at the
principal executive office of the corporation, unless some other place is
designated in the notice of the meeting, Members of the Board may participate in
a meeting through use of a conference telephone or similar communications
equipment so long as all members participating in such a meeting can hear one
another. Accurate minutes of any meeting of the Board or any committee thereof,
shall be maintained as required by Sec. 500 of the Code by the Secretary or
other officer designated for that purpose.
Section 7. ORGANIZATION
MEETINGS. The organization meetings of the Board of Directors shall
be held immediately following adjournment of the annual meetings of the
Shareholders.
2
Section 8. OTHER REGULAR
MEETINGS. Regular meetings of the Board of Directors shall be held at
the corporate offices, or such other place as may be designated by the Board of
Directors, as follows:
Time of
Regular Meeting: not
applicable
Date of Regular Meeting: not applicable
Date of Regular Meeting: not applicable
If said
day shall fall upon a holiday, such meetings shall be held on the next
succeeding business day thereafter. No notice need be given of such regular
meetings.
Section 9. SPECIAL
MEETINGS - NOTICES - WAIVERS. Special meetings of the Board may be
called at any time by any of the aforesaid officers, i.e. by the Chairman of the
Board or the Chief Executive Officer or any Vice President or the Secretary or
any two (2) Directors.
At least
forty-eight (48) hours notice of the time and place of special meetings shall be
delivered personally to the Directors or personally communicated to-them by a
corporate officer by telephone or telegraph. If the notice is sent to a Director
by letter, it shall be 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 such
records or is not readily ascertainable at the place in which the meetings of
the Directors are regularly held. In case such notice is mailed it shall be
deposited in the United States mail, postage prepaid, in the place in which the
principal executive office of the corporation is located at least four (4) days
prior to the time of the holding of the meeting. Such mailing, telegraphing,
telephoning or delivery as above provided shall be due, legal and personal
notice to such Director.
When all
of the Directors are present at any Directors, meeting, however called or
noticed, and either (1) sign a written consent thereto on the records of such
meeting, or (1i) if a majority of the Directors are present and if those not
present sign a waiver of notice of such meeting or a consent to holding the
meeting or an approval of the minutes thereof, whether prior to or after the
holding of such meeting, which said waiver, consent or approval shall be filed
with the Secretary of the corporation, or (iii) if a Director attends a meeting
without notice but without protesting, prior thereto or at its commencement, the
lack of notice, then the transactions thereof are as valid as if had at a
meeting regularly called and noticed.
Section 10. SOLE DIRECTOR
PROVIDED BY ARTICLES OF INCORPORATION OR BYLAWS. In the event only one (1)
Director is required by the Bylaws or Articles of Incorporation, then any
reference herein to notices, waivers, consents, meetings or other actions by a
majority or quorum of the Directors shall be deemed to refer to such notice,
waiver, etc., by such sole Director, who shall have all the rights and duties
and shall be entitled to exercise all of the powers and shall assume all the
responsibilities otherwise herein described as given to a Board of
Directors.
3
Section 11. DIRECTORS
ACTION BY UNANIMOUS WRITTEN CONSENT. Any action required or permitted
to be taken by the Board of Directors may be taken without a meeting and with
the same force and effect as if taken by a unanimous vote of Directors, if
authorized by a writing signed individually or collectively by all members of
the Board. Such consent shall be filed with the regular minutes of the
Board.
Section 12. QUORUM.
A majority of the number of Directors as fixed by the Articles of Incorporation
or Bylaws shall be necessary to constitute a quorum for the transaction of
business, and the action of a majority of the Directors present at any meeting
at which there is a quorum, when duly assembled, 1s valid as a corporate act;
provided that a minority of the Directors, in the absence of a quorum, may
adjourn from time to time, but may not transact any business. A meeting at which
a quorum 1s initially present may continue to transact business, notwithstanding
the withdrawal of Directors, if any action taken is approved by a majority of
the required quorum for such meeting.
Section 13. NOTICE OF
ADJOURNMENT. 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 and held within twenty-four (24) hours, but if adjourned
more than twenty-four (24) hours, notice shall be given to all Directors not
present at the time of the adjournment.
Section 14. COMPENSATION
OF DIRECTORS. Directors, as such, shall not receive any stated salary
for their services, but by resolution of the Board a fixed sum and expense of
attendance, if any, may be allowed for attendance at each regular and special
meeting of the Board; provided that nothing herein contained shall be construed
to preclude any Director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 15. COMMITTEES.
Committees of the Board may be appointed by, resolution passed by a majority of
the whole Board. Committees shall be composed of two (2) or more members of the
Board and shall have such powers of the Board as may be expressly delegated to
it by resolution of the Board of Directors, except those powers expressly made
non-delegable by Sec. 311.
Section 16. ADVISORY
DIRECTORS. The Board of Directors from time to time may elect one or
more persons to be Advisory Directors who shall not by such appointment be
members of the Board of Directors. Advisory Directors shall be available from
time to time to perform special assignments specified by the Chief Executive
Officer to attend meetings of the Board of Directors upon invitation and to
furnish consultation to the Board. The period during which the title shall be
held may be prescribed by the Board of Directors. If no period is prescribed,
the title shall be held at the pleasure of the Board.
Section 17. RESIGNATIONS. Any
Director may resign effective upon giving written notice to the Chairman of the
Board, the Chief Executive Officer, the Secretary or the Board of Directors of
the corporation, unless the notice specifies a later time for the effectiveness
of such resignation. If the resignation is effective at a future time, a
successor may be elected to take office when the resignation becomes
effective.
4
ARTICLE
III
OFFICERS
OFFICERS
Section 1. OFFICERS. The
Officers of the corporation shall be a Chief Executive Officer a secretary and a
Chief Financial Officer. The corporation may also have at the discretion of the
Board of Directors, a Chairman of the Board, one or more Vice Presidents, one or
more Assistant Secretaries, one or more Assistant Treasurers and such other
Officers as may “be appointed in accordance with the provisions of Section 3 of
this Article III. Any number of offices may be held by the same
person.
Section 2. ELECTION. The
officers of the corporation, except such Officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this Article, shall
be chosen annually by the “Board of Directors, and each shall hold office until
he or she shall resign or shall be removed or otherwise disqualified to serve,
or a successor shall be elected and qualified.
Section 3. SUBORDINATE
OFFICERS, ETC. The Board of Directors may appoint such other Officers
as the business of the corporation may require, each of whom shall hold office
for such period, have such authority and perform such duties as are provided in
the Bylaws or as the Board of Directors may from time to time
determine.
Section 4. REMOVAL AND
RESIGNATION OF OFFICERS. Subject to the rights, if any, of an officer
under any contract of employment, any Officer may be removed, either with or
without cause, by the Board of Directors, at any regular or special meeting of
the Board, or, except in case of an Officer chosen by the Board of Directors, by
any officer upon whom such power of removal may be conferred by the Board of
Directors.
Any
officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the corporation under any contract to which
the Officer is a party.
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 the Bylaws for
regular appointments to that office.
Section 6. CHAIRMAN OF
THE BOARD. The Chairman of the Board, if such an Officer be elected,
shall, if present, preside at meetings of the Board of Directors and exercise
and perform such other powers and duties as may be from time to time assigned by
the Board of Directors or prescribed by the Bylaws. If there is no
Chief Executive Officer, the Chairman of the Board shall in addition be the
Chief Executive Officer of the corporation and shall have the powers and duties
prescribed in Section 7 of this Article III.
Section 7. CHIEF
EXECUTIVE OFFICER. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an Officer, the Chief Executive Officer of the corporation shall, subject
to the control of the Board of Directors, have general supervision, direction
and control of the business and Officers of the corporation. He or
she shall preside at all meetings of the Shareholders and in the absence of the
Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. Subject to applicable laws, the Chief Executive Officer shall be ex
officio a member of all the standing committees, including the Executive
Committee, if any, and shall have the general powers and duties of management
usually vested in the office of Chief Executive Officer of a corporation, and
shall have such other powers and duties as may be prescribed by the Board of
Directors or the Bylaws.
5
Section 8. PRESIDENT. The
President shall have such powers and duties as may be prescribed by the Board of
Directors or the Bylaws.
Section 9. VICE
PRESIDENT. In the absence or disability of the Chief Executive
Officer, the Vice Presidents, if any, 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 Chief Executive Officer, and
when so acting shall have all the powers of, and be subject to, all the
restrictions upon, the Chief Executive Officer. The Vice Presidents shall have
such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors or the
Bylaws.
Section 10. SECRETARY. The
Secretary shall keep, or cause to be kept, a book of minutes “at the principal
office or such other place as the Board of Directors may order, of all meetings
of Directors and Shareholders, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice thereof given,
the names of those present at Directors’ meetings, the number of shares present
or represented at Shareholders’ meetings and the proceedings,
thereof.
The
Secretary shall keep, or cause to be kept, at the principal office or at the
office of the corporation’s transfer agent, a share register, or 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 of Directors required by the Bylaws or by law to
be given. He or she shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or by the Bylaws.
Section 11. CHIEF
FINANCIAL OFFICER. The Chief Financial Officer shall keep and
maintain, or cause to be kept and maintained in accordance with generally
accepted accounting principles, adequate and correct accounts of the properties
and business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, earnings (or
surplus) and shares. The books of account shall at all reasonable times be open
to inspection by any Director.
6
This
Officer shall deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositaries as may be designated by the
Board of Directors, He or she shall disburse the funds of the corporation as may
be ordered by the Board of Directors, shall render to the Chief Executive
Officer and Directors, whenever they request it, an account of all of his or her
transactions and of the financial condition of the corporation and shall have
such other powers and perform such other duties as may be prescribed by the
Board of Directors or the Bylaws.
ARTICLE
IV
SHAREHOLDERS’ MEETINGS
SHAREHOLDERS’ MEETINGS
Section 1. PLACE OF
MEETINGS. All meetings of the Shareholders shall be held at the
principal executive office of the corporation unless some other appropriate and
convenient location be designated for that purpose from time to time by the
Board of Directors.
Section 2. ANNUAL
MEETINGS. An annual meeting of the Shareholders for the election of
directors and for the transaction of any other business as may properly come
before the meeting shall be held on such date and at such time as the Board of
Directors may specify by resolution.
Section 3. SPECIAL
MEETINGS. Special meetings of the Shareholders may be called at any
time by the Board of Directors, the Chairman of the Board, the Chief Executive
Officer a Vice President, the Secretary or by one or more Shareholders holding
not less than one-tenth (1/10) of the voting power of the
corporation: Except as next provided, notice shall be given as for
the annual meeting.
Upon
receipt of a written request addressed to the Chairman, Chief Executive Officer,
Vice President or Secretary, mailed or delivered personally to such officer by
any person (other than the Board) entitled to call a special meeting of
Shareholders, such Officer shall cause notice to be given, to the Shareholders
entitled to vote, that a meeting will be held at a time requested by the person
or persons calling, the meeting, not less than thirty-five (35) nor more than
sixty (60) days after the receipt of such request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling the
meeting may give notice thereof in the manner provided by these Bylaws or apply
to the Superior Court as provided in Sec. 305(c).
Section 4. NOTICE OF
MEETINGS - REPORTS. Notice of meetings, annual or special, shall be
given in writing not less than ten (10) nor more than sixty (60) days before
the, date of the meeting to Shareholders entitled to vote thereat. Such notice
shall be given by the Secretary or the Assistant Secretary, or if there be no
such Officer, or in the case of his or her neglect or refusal) by any Director
or Shareholder.
Such
notices or any reports shall be given personally or by mail or other means of
written communication as provided in Section 601 of the Code and shall be sent
to the Shareholder’s address appearing on the books of the corporation, or
supplied by him or her to the corporation for the purpose of notice, and in the
absence thereof, as provided in Sec. 601 of the Code.
7
Notice of
any meeting of Shareholders shall specify the place, the day and the hour of
meeting, and (1) in case of a special meeting) the general nature of the
business to be transacted and no other business may be transacted or (2) in the
case of an annual meeting, those matters which the Board at date of mailing
intends to present for action by the Shareholders. At any meetings
where Directors are to be elected, notice shall include the names of the
nominees, if any, intended at date of notice to be presented by management for
election.
If a
Shareholder supplies no address, notice shall be deemed to have been given if
mailed to the place where the principal executive office of the corporation, in
California is situated, or published at least once in some newspaper of general
circulation in the County of said principal office.
Notice
shall be deemed given at the time it is delivered personally or deposited in the
mail or sent by other means of written communication. The Officer giving such
notice of report shall prepare and file an affidavit or declaration
thereof.
When a
meeting is adjourned for forty-five (45) days or more, notice of the adjourned
meeting shall be given as in case of an original meeting. Save, as aforesaid, it
shall not be necessary to give any notice of adjournment or of the business to
be transacted at an adjourned meeting other than by announcement at the meeting
at which such adjournment is taken.
Section 5. WAIVER OF
NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any
meeting of Shareholders, however called and noticed, shall be valid as though
had at a meeting” duly held after regular call and notice if a quorum be present
either in person or by proxy, and if, either before or after the meeting, each
of the Shareholders entitled to vote, not present in person or by proxy, sign a
written waiver of notice or a consent to the holding of such meeting or an
approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting. Attendance shall constitute a waiver of notice, unless objection shall
be made as provided in Sec. 601(e).
Section 6. SHAREHOLDERS
ACTING WITHOUT A MEETING. Any action which may be taken at a meeting of the
Shareholders may be taken without a meeting or notice of meeting if authorized
by a writing signed by all of the Shareholders entitled to vote at a meeting for
such purpose and filed with the secretary of the corporation, provided further,
that while ordinarily Directors can only be elected by unanimous written consent
under Sec. 603(d) if the Directors fail to fill a vacancy, then a Director to
fill that vacancy may be elected by the written consent of persons holding a
majority of shares entitled to vote for the election of Directors.
Section 7. QUORUM. The
holders of a majority of the shares entitled to vote thereat present in person
or represented by proxy, shall constitute a quorum at all meetings of the
Shareholders for the transaction of business except as otherwise provided by
law, by the Articles of Incorporation or by these Bylaws. If, however, such
majority shall not be present or represented at any meeting of the Shareholders
the Shareholders “entitled to vote thereat, present in person or by proxy shall
have the power to adjourn the meeting from time to time until the requisite
amount of voting shares shall be present. At such adjourned meeting at which the
requisite amount of voting shares shall be represented any business may be
transacted which might have been transacted at a meeting as originally
notified.
8
If a
quorum be initially present the Shareholders may continue to transact business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken is approved by a majority of the
Shareholders required to initially constitute a quorum.
Section 8. VOTING. Only
persons in whose names shares entitled to vote stand on the stock records of the
corporation on the day of any meeting of Shareholders, unless some other day be
fixed by the Board of Directors for the determination of Shareholders of record,
and then on such other day, shall be entitled to vote at such
meeting.
Provided
the candidate’s name has been placed in nomination prior to the voting and one
or more Shareholder has given notice at the meeting prior to the voting of the
Shareholder’s intent to cumulate the Shareholder’s votes, every Shareholder
entitled to vote at any election for Directors of any corporation for profit may
cumulate their votes and give one candidate a number of votes equal to the
number of Directors to be elected multiplied by the number of votes to which his
or her shares are entitled, or distribute his or her votes on the same principle
among as many candidates as he or she thinks fit. The candidates
receiving the highest number of votes up to the number of Directors to be
elected are elected.
The Board
of Directors may fix a time in the future not exceeding thirty (30) days
preceding the date of any meeting of Shareholders or the date fixed for the
payment of any dividend or distribution, or for the allotment of rights, or when
any change or conversion or exchange of shares shall go into effect, as a record
date for the determination of the Shareholders entitled to notice of and to vote
at any such meeting, or entitled to receive any such dividend or distribution,
or any allotment of rights, or to exercise the rights in respect to any such
change, conversion or exchange of shares. In such case only Shareholders of
record on the date so fixed shall be entitled to notice of and to vote at such
meeting, or to receive such dividends, distribution or allotment of rights, or
to exercise such rights, as the case may be notwithstanding any transfer of any
share on the books of the corporation after any record date fixed as aforesaid.
The Board of Directors may close the books of the corporation against transfers
of shares during the whole or any part of such period.
Section 9. PROXIES. Every
Shareholder entitled to vote, or to execute consents, may do so, either in
person or by written proxy, executed in accordance with the provisions of Secs.
604 and 105 of the code and filed with the Secretary of the
corporation.
Section 10. ORGANIZATION. The
Chief Executive Officer, or in the absence of the Chief Executive Officer, any
Vice President, shall call the meeting of the Shareholders to order and shall
act as chairman of the meeting. In the absence of the Chief Executive
Officer and all of the Vice Presidents, Shareholders shall appoint a chairman
for such meeting. The Secretary of the corporation shall act as Secretary of all
meetings of the Shareholders, but in the absence of the Secretary at any meeting
of the Shareholders, the presiding Officer may appoint any person to act as
Secretary of the meeting.
9
Section 11. INSPECTORS OF
ELECTION. In advance of any meeting of Shareholders the Board of
Directors may, if they so elect, appoint inspectors of election to act at such
meeting or any adjournment thereof. If inspectors of election be not so
appointed, or 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 his
or her proxy shall, make such appointment at the meeting in which case the
number of inspectors shall be either one (1) or three (3) as determined by a
majority of the Shareholders represented at the meeting.
Section 12. (A) SHAREHOLDERS’
AGREEMENTS. Notwithstanding the above provisions, in the event this
corporation elects to become a close corporation, an agreement between two (2)
or more Shareholders thereof, if in writing and signed by the parties thereof,
may provide that in exercising any voting rights the shares held by them shall
be voted as provided therein or in Sec. 706. and may otherwise modify these
provisions as to Shareholders’ meetings and actions.
(B) EFFECT OF
SHAREHOLDERS’ AGREEMENTS. Any Shareholders’ Agreement authorized by
Sec. 300(b), shall only be effective to modify the terms of these Bylaws if this
corporation elects to become a close corporation with appropriate filing of or
amendment to its Articles as required by Sec. 202 and shall terminate when this
corporation ceases to be a close corporation. Such an agreement cannot waive or
alter Sees. 158 (defining close corporations), 202 (requirements of Articles of
Incorporation), 500 and 501 relative to distributions, 111 (merger), 1201(e)
(reorganization) or Chapters 15 (Records and Reports), 16 (crimes and
Penalties), 18 (Involuntary Dissolution) or 22 (Crimes and Penalties). Any other
provisions of the Code or these Bylaws may be altered or waived thereby, but to
the extent they are not so altered or waived, these Bylaws shall be
applicable.
ARTICLE
V
CERTIFICATES AND TRANSFER OF SHARES
CERTIFICATES AND TRANSFER OF SHARES
Section 1. CERTIFICATES
FOR SHARES. Directors may designate and shall state the name of the
record holder of the shares represented thereby; its number; date of issuance;
the number of shares for which it is issued; a statement of the rights,
privileges, preferences and restrictions, if any; a statement as to the
redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
All
certificates shall be signed in the name of the corporation by the Chairman of
the Board or Vice Chairman of the Board or the Chief Executive Officer or Vice
President and by the Chief Financial Officer or an, Assistant Treasurer or the
Secretary or any Assistant Secretary, certifying the number of shares and the
class or series of shares owned by the Shareholder.
Any or
all of the signatures on the certificate may be facsimile, In case of any
Officer transfer agent or registrar who has signed or whose facsimile signature
has been placed on a certificate shall have ceased to be that Officer, transfer
agent or registrar before that certificate is issued, it may be issued by the
corporation with the same effect as if that person were an officer, transfer
agent or registrar at the date of issue.
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Section 2. TRANSFER ON
THE BOOKS. Upon surrender to the Secretary or transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its
books.
Section 3. LOST OR
DESTROYED CERTIFICATES. Any person claiming a certificate of stock to
be lost or destroyed shall make an affidavit or affirmation of that fact and
shall if the Directors SQ require, give the corporation a bond of indemnity, in
form and with one or more sureties satisfactory to the Board, in at least double
the value of the stock represented by said certificate, whereupon a new
certificate may be issued in the same tenor and for the same number of shares as
the one alleged to be lost or destroyed.
Section 4. TRANSFER
AGENTS AND REGISTRARS. The Board of Directors may appoint one or more
transfer agents or transfer clerks, and one or more registrars, which shall be
an incorporated bank or trust company, either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the Board of Directors may designate.
Section 5. CLOSING STOCK
TRANSFER BOOKS – RECORD DATE. In order that the corporation may
determine the Shareholders entitled to notice of any meeting or to vote or
entitled to receive payment of any dividend or other distribution or allotment
of any rights or entitled to exercise any rights in respect of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than sixty (60) nor less than ten (10) days prior to the date of such meeting
nor more than sixty (60) days prior to any other action.
If no
record date is fixed, 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 entitled to give consent to corporate action in writing without a
meeting, when no prior action by the Board is necessary, shall be the day on,
which the first written consent is given.
The
record date for determining Shareholders for any other purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto, or the sixtieth (60th) day prior to the date of such other action,
whichever is later.
Section 6. LEGEND
CONDITION. In the event any shares of this corporation are issued
pursuant to a permit or exemption therefrom requiring the imposition of a legend
condition, the person or persons issuing or transferring said shares shall make
sure said legend appears on the certificate and shall not be required to
transfer any shares free of such legend unless an amendment to such permit or a
new permit be first issued so authorizing such a deletion.
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Section 7. CLOSE
CORPORATION CERTIFICATES. All certificates representing shares of this
corporation, in the event it shall elect to become a close corporation, shall
contain the legend required by Sec. 418(c).
ARTICLE
VI
RECORDS - REPORTS - INSPECTION
RECORDS - REPORTS - INSPECTION
Section 1. RECORDS. The
corporation shall maintain, in accordance with generally accepted accounting
principles, adequate and correct accounts, books and records of its business and
properties. All of such books, records and accounts shall be kept at its
principal executive office in the state of California, as fixed by the Board of
Directors from time to time.
Section 2. INSPECTION OF
BOOKS AND RECORDS. All books and records provided for in Sec. 1500
shall be open to inspection of the Directors and Shareholders from time to and
in the manner provided in said Sec. 1600 - 1602.
Section 3. CERTIFICATION
AND INSPECTION OF BYLAWS. The original or a copy of these Bylaws, as
amended or otherwise altered to date, certified by the Secretary, shall be kept
at the corporation’s principal executive office and shall be open to inspection
by the Shareholders of the corporation at all reasonable times during office
hours as provided in Sec. 213 of the corporations Code.
Section 4. CHECKS,
DRAFTS, ETC. 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 shall be determined from time to time by resolution of the Board
of Directors.
Section 5. CONTRACTS,
ETC. - HOW EXECUTED. The Board of Directors, except as in the Bylaws
otherwise provided, may authorize any Officer or Officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the corporation. Such authority may be general or confined to specific
instances. 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 agreement, or to pledge its credit, or to render it liable for any
purpose or to any amount, except as provided in Sec. 313 of the Corporations
Code.
ARTICLE
VII
ANNUAL REPORTS
ANNUAL REPORTS
Section 1. REPORT TO
SHAREHOLDERS DUE DATE. The Board of Directors shall cause an annual
report to be sent to the Shareholders not later than one hundred twenty (120)
days after the close of the fiscal or calendar year adopted by the
corporation. This report shall be sent at least fifteen (15) days
before the annual meeting of Shareholders to be held during the next fiscal year
and in the manner specified in Section 4 of Article IV of these Bylaws for
giving notice to Shareholders of the corporation. The annual report shall
contain a balance sheet as of the end of the fiscal year and an income statement
and statement of changes in financial position for the fiscal year, accompanied
by any report of independent accountants or, if there is no such report, the
certificate of an authorized Officer of the corporation that the statements were
prepared without audit from the books and records of the
corporation.
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Section 2. WAIVER. The
annual report to Shareholders referred to in Section 1501 of the California
General Corporation Law is expressly dispensed with so long as this corporation
shall have less than one hundred (100) Shareholders. However, nothing herein
shall be interpreted as prohibiting the Board of Directors from issuing annual
or other periodic reports to the Shareholders of the corporation as they
consider appropriate.
ARTICLE
VIII
AMENDMENTS TO BYLAWS
AMENDMENTS TO BYLAWS
Section 1. AMENDMENT BY
SHAREHOLDERS. New Bylaws may be adopted or these Bylaws may be
amended or, repealed by the vote or written consent of holders of a majority of
the outstanding shares entitled to vote; provided, however, that if the Articles
of Incorporation of the corporation set forth the number of authorized Directors
of the corporation, the authorized number of Directors may be changed only by an
amendment of the Articles of Incorporation.
Section 2. POWERS OF
DIRECTORS. Subject to the right of the Shareholders to adopt, amend
or repeal Bylaws, as provided in Section 1 of this Article VIII, and the
limitations of Sec. 204 (a) (5) and section 212, the Board of Directors may
adopt, amend or repeal any of these Bylaws other than a Bylaw or amendment
thereof changing the authorized number of Directors.
Section 3. RECORD OF
AMENDMENTS. Whenever an amendment or new Bylaw is adopted, it shall
be copied in the book of Bylaws with the original Bylaws, in the appropriate
place. If any Bylaw is repealed, the fact of repeal with the date of
the meeting at which the repeal was enacted or written assent was filed shall be
stated in said book.
ARTICLE
IX
CORPORATE SEAL
CORPORATE SEAL
The
corporate seal shall be circular in form, and shall have inscribed thereon the
name of the corporation, the date of its incorporation and the word
“California.”
ARTICLE
X
MISCELLANEOUS
MISCELLANEOUS
Section 1. REFERENCES TO
CODE SECTIONS. “Sec.”, references herein refer to the equivalent
Sections of the General Corporation Law effective January 1, 1977, as
amended.
Section 2. REPRESENTATION OF
SHARES IN OTHER CORPORATIONS. Shares of other corporations standing
in the name of this corporation may be voted or represented and all incidents
thereto may be exercised on behalf of the corporation by the Chairman of the
Board, the Chief Executive Officer or any Vice President and the Secretary or an
Assistant Secretary.
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Section 3. SUBSIDIARY
CORPORATIONS. Shares of this corporation owned by a subsidiary shall
not be entitled to vote on any matter. A subsidiary for these purposes is
defined as a corporation. The shares of which possessing more than 25% of the
total combined voting power of all classes of shares entitled to vote, are owned
directly or indirectly through one (1) or more subsidiaries.
Section 4. INDEMNITY. The
corporation may indemnify any Director, Officer, agent or employee as to those
liabilities and on those terms and conditions as are specified in Sec. 317 of
the Code. In any event, the corporation shall have the right to purchase and
maintain insurance on behalf of any such persons whether or not the corporation
would have the power to indemnify such person against the liability insured
against.
Section 5. ACCOUNTING
YEAR. The accounting year of the corporation shall be fixed by
resolution of the Board of Directors.
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CERTIFICATE OF
SECRETARY
I DO
HEREBY CERTIFY AS FOLLOWS:
That I am
the duly-elected, qualified and acting Secretary of the above-named corporation,
that the foregoing Amended and Restated Bylaws were adopted as the Amended and
Restated Bylaws of said corporation on the date set forth above by the Board of
Directors of said corporation.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal this
21st day of February, 2008.
|
/s/ Ariel Shenhar | |
|
Name:
|
Ariel Shenhar |
|
Title:
|
Secretary |