Attached files
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8-K - FORM 8-K - COMARCO INC | a59178e8vk.htm |
EX-99.1 - EX-99.1 - COMARCO INC | a59178exv99w1.htm |
EXHIBIT 3.02
AMENDED AND RESTATED BYLAWS
Restated as of August 1, 1996, June 26, 2001, February 4, 2003, April 10, 2007,
July 17, 2007, March 1, 2008, March 10, 2008, June 24, 2008, February 18, 2009 August 20, 2009,
February 23, 2011 and April 5, 2011
COMARCO, INC.
April 5, 2011
TABLE OF CONTENTS
Page | ||||
ARTICLE I APPLICABILITY |
1 | |||
Section 1. Applicability of Bylaws |
1 | |||
ARTICLE
II OFFICES |
1 | |||
Section 1. Principal Executive Office |
1 | |||
Section 2. Other Offices |
1 | |||
Section 3. Change in Location or Number of Offices |
1 | |||
ARTICLE
III MEETINGS OF SHAREHOLDERS |
1 | |||
Section 1. Place of Meetings |
1 | |||
Section 2. Annual Meetings |
1 | |||
Section 3. Special Meetings |
2 | |||
Section 4. Notice of Annual, Special or Adjourned Meetings |
2 | |||
Section 5. Record Date |
3 | |||
Section 6. Quorum; Action at Meetings |
4 | |||
Section 7. Adjournment |
4 | |||
Section 8. Validation of Defectively Called, Noticed or Held Meetings |
4 | |||
Section 9. Voting for Election of Directors |
5 | |||
Section 10. Proxies |
5 | |||
Section 11. Inspectors of Election |
6 | |||
Section 12. No Action by Written Consent |
6 | |||
Section 13. Advance Notice of Shareholder Business and Nominations |
6 | |||
Section 14. Order of Business |
10 | |||
ARTICLE
IV DIRECTORS |
10 | |||
Section 1. Number of Directors |
10 | |||
Section 2. Election of Directors |
11 | |||
Section 3. Term of Office |
11 | |||
Section 4. Vacancies |
11 | |||
Section 5. Removal |
11 | |||
Section 6. Resignation |
11 | |||
Section 7. Fees and Compensation |
12 |
i
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS |
12 | |||
Section 1. Designation of Committees |
12 | |||
Section 2. Powers of Committees |
12 | |||
ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS AND COMMITTEES THEREOF |
12 | |||
Section 1. Place of Meetings |
12 | |||
Section 2. Organization Meeting |
13 | |||
Section 3. Other Regular Meetings |
13 | |||
Section 4. Special Meetings |
13 | |||
Section 5. Notice of Special Meetings |
13 | |||
Section 6. Validation of Defectively Held Meetings |
13 | |||
Section 7. Quorum of Meetings |
13 | |||
Section 8. Adjournment |
14 | |||
Section 9. Motion Without a Meeting |
14 | |||
Section 10.Meeting of and Actions by Committees |
14 | |||
ARTICLE VII OFFICERS |
14 | |||
Section 1. Officers |
14 | |||
Section 2. Selection of Officers |
14 | |||
Section 3. Subordinate Officers |
14 | |||
Section 4. Removal and Resignation |
15 | |||
Section 5. Vacancies |
15 | |||
Section 6. Chairman of the Board |
15 | |||
Section 7. President |
15 | |||
Section 8. Vice President |
15 | |||
Section 9. Secretary |
15 | |||
Section 10.Chief Financial Officer |
16 | |||
ARTICLE VIII RECORDS AND REPORTS |
16 | |||
Section 1. Minute Book Maintenance and Inspection |
16 | |||
Section 2. Share Register Maintenance and Inspection |
16 | |||
Section 3. Books and Records of Account Maintenance and Inspection |
16 |
ii
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 4. Bylaws Maintenance and Inspection |
16 | |||
ARTICLE
IX MISCELLANEOUS |
17 | |||
Section 1. Checks, Drafts, Etc |
17 | |||
Section 2. Contracts, Etc. How Executed |
17 | |||
Section 3. Certificates; Direct Registration System |
17 | |||
Section 4. Lost Certificates |
17 | |||
Section 5. Representation of Shares of Other Corporations |
18 | |||
Section 6. Construction and Definitions |
18 | |||
Section 7. Indemnification of Corporate Agent; Purchase of Liability Insurance |
18 | |||
ARTICLE X
AMENDMENTS |
19 | |||
Section 1. Amendments |
19 |
iii
AMENDED AND RESTATED BYLAWS
OF
COMARCO, INC.
A CALIFORNIA CORPORATION
Amended and Restated as of August 20, 2009
ARTICLE I
APPLICABILITY
Section 1. Applicability of Bylaws. These Bylaws govern, except as otherwise provided
by statute or its Articles of Incorporation, the management of the business and the conduct of the
affairs of the Corporation.
ARTICLE II
OFFICES
Section 1. Principal Executive Office. The location of the principal executive office
of the Corporation is 25541 Commercentre Drive, Lake Forest, CA 92630.
Section 2. Other Offices. The Board of Directors may establish other offices at any
place or places within or without the State of California.
Section 3. Change in Location or Number of Offices. The Board of Directors may change
any office from one location to another or eliminate any office or offices.
ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. Meetings of the shareholders shall be held at any place
within or without the State of California designated by the Board of Directors, or, in the absence
of such designation, at the principal executive office of the Corporation.
Section 2. Annual Meetings. An annual meeting of the shareholders shall be held each
fiscal year of the Corporation at a date and time designated by the Board of Directors. Directors
shall be elected at each annual meeting and any other proper business that may come before such
meeting may be transacted thereat.
Section 3. Special Meetings.
(a) Special meetings of the shareholders may be called by a majority of the Board of
Directors, the Chairman of the Board, the President or the holders of shares entitled to cast not
less than 10 percent of the votes on the record date established for such meeting. The person or
persons calling any such meeting shall concurrently specify the purpose of such meeting and the
business proposed to be transacted at such meeting (which must constitute a proper matter for
shareholder action under California law) and if such person or persons calling the meeting are
shareholders, include the information required by Section 13(a)(iii) of this Article III to the
extent applicable.
(b) In connection with any special meeting called in accordance with the provisions of this
Section 3, upon request in writing sent by registered mail to the Chairman of the Board, the
President, a Vice President or the Secretary of the Corporation, or delivered to any such officer
in person, by the person or persons calling such meeting (such request, if sent by a shareholder or
shareholders, to include the information required by Section 13(a)(iii) of this Article), it shall
be the duty of such officer, subject to the immediately succeeding sentence, to cause notice of
such meeting to be given in accordance with Section 4 of this Article and, in connection therewith,
to establish the place and, subject to Section 601(c) of the California Corporations Code, the date
and hour of such meeting. Within five (5) business days after receiving such a request from a
shareholder or shareholders of the Corporation, the Board of Directors shall determine whether such
shareholder or shareholders have satisfied the requirements for calling a special meeting of the
shareholders and notify the requesting party or parties of its finding. Nothing contained in this
Section 3 shall be construed as limiting, fixing or affecting the time when a meeting of
shareholders called by a member of the Board of Directors may be held.
Section 4. Notice of Annual, Special or Adjourned Meetings.
(a) Whenever any meeting of the shareholders is to be held, a written notice of such meeting
shall be given in the manner described in subdivision (d) of this Section not less than 10 nor more
than 60 days before the date thereof to each shareholder entitled to vote thereat. The notice shall
state the place, date and hour of the meeting and (1) in the case of a special meeting, the general
nature of the business to be transacted or (2) in the case of the annual meeting, those matters
which the Board of Directors, at the time of the giving of the notice, intend to present for action
by the shareholders including, whenever directors are to be elected at a meeting, the names of
nominees intended at the time of giving of the notice to be presented by management for election.
(b) Any proper matter may be presented at an annual meeting for action, except as is provided
in subdivision (f) of Section 601 of the Corporations Code of the State of California.
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(c) Notice need not be given of an adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, except that if the adjournment is for
more than 45 days or if after the adjournment a new record date is provided for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to
vote thereat.
(d) Notice of any meeting of the shareholders or any report shall be given either personally
or by first class mail, postage prepaid, or other means of written communication, addressed to the
shareholder at his address appearing on the books of the Corporation or given by him to the
Corporation for the purpose of notice; or if no such address appears or is given at the place where
the principal executive office of the Corporation is located or by publication at least once in a
newspaper of general circulation in the county in which the principal executive office is located.
The notice or report shall be deemed to have been given at the time when delivered personally to
the recipient or deposited in the mail or sent by other means of written communication. An
affidavit of mailing of any notice or report in accordance with the provisions of these Bylaws or
the General Corporation Law of the State of California, executed by the Secretary, assistant
secretary or any transfer agent of the Corporation, shall be prima
facie evidence of the
giving of the notice or report.
(e) If any notice or report addressed to the shareholder at his address 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 the 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 upon his written demand
at the principal executive office of the Corporation for a period of one year from the date of the
giving of the notice or report to all other shareholders.
Section 5. Record Date.
(a) The Board of Directors may fix a time in the future as a record date for the determination
of the shareholders (1) entitled to notice of any meeting or to vote thereat, (2) entitled to
receive payment of any dividend or other distribution or allotment of any rights or (3) entitled to
exercise any 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 of the shareholders nor more
than 60 days prior to any other action.
(b) In the event no record date is fixed:
(1) The record date for determining the 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.
(2) 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 of Directors has been taken, shall
be the day on which the first written consent is given.
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(3) The record date for determining shareholders for any other purpose shall be at the close
of 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.
(c) Only shareholders of record at the close of business on the record date are entitled to
notice and to vote or to receive a 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.
(d) A determination of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a
new record date for the adjourned meeting, but the Board shall fix a new record date if the meeting
is adjourned for more than 45 days from the date set for the original meeting.
Section 6. Quorum; Action at Meetings.
(a) A majority of the shares entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of the shareholders.
(b) Except as provided in subdivision (c) of this Section, the affirmative vote of a majority
of the shares represented and voting at a duly held meeting at which a quorum is present (which
shares voting affirmatively also constitute at least a majority of the required quorum) shall be
the act of the shareholders, unless the vote of a greater number is required by law or the Articles
of Incorporation.
(c) The shareholders present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved
by at least a majority of the shares required to constitute a quorum.
Section 7. Adjournment. Any meeting of the shareholders may be adjourned from time to
time whether or not a quorum is present by the vote of a majority of the shares represented thereat
either in person or by proxy. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting.
Section 8. Validation of Defectively Called, Noticed or Held Meetings.
(a) The transactions of any meeting of the shareholders, however called and noticed, and
wherever held, are as valid as though had at a meeting duly held after regular call and notice, if
a quorum is present either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote thereat, not present in person or by proxy, signs a written waiver
of notice or a consent to the holding of the meeting or an approval of the minutes thereof. All
such waivers, consents and approvals shall be filed with the corporate records or made a part of
the minutes of the meeting.
(b) Attendance of a person at a meeting shall constitute a waiver of notice of, and presence
at, such meeting, except (1) when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened and (2)
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that attendance at a meeting is not a waiver of any right to object to the consideration of
any matter required by the General Corporation Law of the State of California to be included in the
notice but not so included, if such objection is expressly made at the meeting.
(c) Any written waiver of notice shall comply with subdivision (f) of Section 601 of the
Corporations Code of the State of California.
Section 9. Voting for Election of Directors.
(a) Every shareholder complying with subdivision (b) of this Section and entitled to vote at
any election of directors may cumulate his 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 shares are
normally entitled, or distribute his votes on the same principle among as many candidates as he
thinks fit.
(b) No shareholder shall be entitled to cumulate his votes (i.e., cast for any one candidate a
number of votes greater than the number of votes which such shareholder normally is entitled to
cast) unless such candidates or candidates names have been placed in nomination prior to the
voting and the shareholder has given notice at the meeting, prior to the voting, of his intention
to cumulate his votes. If any one shareholder has given such notice, all shareholders may cumulate
their votes for candidates in nomination.
(c) Elections for directors may be by voice vote or by ballot unless any shareholder entitled
to vote demands election by ballot at the meeting prior to the voting, in which case the vote shall
be by ballot.
(d) In any election of directors, the candidates receiving the highest number of votes of the
shares entitled to be voted for them up to the number of directors to be elected by such shares are
elected as directors.
Section 10. Proxies.
(a) Every person entitled to vote shares may authorize another person or persons to act with
respect to such shares by a written proxy signed by him or his attorney-in-fact and filed with the
Secretary of the Corporation. A proxy shall be deemed signed if the shareholders name is placed on
the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by him
or his attorney-in-fact.
(b) Any duly executed proxy shall continue in full force and effect until the expiration of
the term specified therein or upon its earlier revocation by the person executing it prior to the
vote pursuant thereto (1) by a writing delivered to the Corporation stating that it is revoked, (2)
by a subsequent proxy executed by the person executing the proxy and presented to the meeting or
(3) by the attendance at the meeting and voting in person by the person executing the proxy. No
proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. The date contained on the form of proxy shall be deemed to be the date of
its execution.
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(c) A proxy which states that it is irrevocable, is irrevocable for the period specified
therein subject to the provisions of subdivisions (e) and (f) of Section 705 of the Corporations
Code of the State of California.
Section 11. Inspectors of Election.
(a) In advance of any meeting of the shareholders, the Board of Directors may appoint either
one or three persons (other than nominees for the office of director) as inspectors of election to
act at such meeting or any adjournments thereof. If inspectors of election are not so appointed,
or if any person so appointed fails to appear or refuses to act, the chairman of any such meeting
may, and on the request of any shareholder or his proxy shall, appoint inspectors of election (or
persons to replace those who so fail or refuse to act) at the meeting. If appointed at a meeting
on the request of one or more shareholders or the proxies thereof, the majority of shares
represented in person or by proxy shall determine whether one or three inspectors are to be
appointed.
(b) The duties of inspectors of election and the manner of performance thereof shall be as
prescribed in Section 707 of the Corporations Code of the State of California.
Section 12. No Action by Written Consent. Any action required or permitted to be
taken by the shareholders of the Corporation must be effected at a duly called annual meeting or
special meeting of shareholders of the Corporation.
Section 13. Advance Notice of Shareholder Business and Nominations.
(a) Annual Meetings of Shareholders.
(i) At an annual meeting of the shareholders, only such business will be conducted or
considered as is properly brought before the meeting. At an annual meeting, nominations of persons
for election to the Board of Directors and the proposal of business to be considered by the
shareholders may be made only (a) pursuant to the Corporations notice of meeting (or any
supplement thereto), (b) by or at the direction of the Board of Directors or any duly authorized
committee thereof, or (c) by any shareholder of the Corporation who was a shareholder of record of
the Corporation at the time the notice provided for in this Section 13(a) is delivered to the
Secretary of the Corporation, who is entitled to vote at the meeting, and who complies with the
notice procedures and requirements set forth in this Section 13(a).
(ii) For nominations or other business to be properly brought before an annual meeting of
shareholders by a shareholder, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation and any such proposed business must constitute a
proper matter for shareholder action under California law. To be timely, a shareholders notice
shall be received by the Secretary at the principal executive offices of the Corporation not less
than 45 or more than 75 days prior to the one-year anniversary of the date on which the Corporation
first mailed its proxy materials for the immediately preceding years annual meeting of
shareholders; provided, however, that if the annual meeting is convened more than 30 days before,
or delayed by more than 30 days after, the one-year anniversary of the immediately preceding years
annual meeting of shareholders, notice by the shareholder to be timely must be so received by the
Secretary at the principal executive offices not later than the
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close of business on the later of (i) the 90th day before such annual meeting or (ii) the 10th
day following the day on which Public Announcement (as defined below in Section 13(c)(ii)) below of
the date of such meeting is first made. Notwithstanding anything in the preceding sentence to the
contrary, in the event that the number of directors to be elected to the Board of Directors at the
annual meeting is increased to a number above the authorized number of directors immediately before
such election, and there is no Public Announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation at least 10 days
before the last day a shareholder may deliver a notice of nomination in accordance with the
preceding sentence, a shareholders notice shall also be considered timely, but only with respect
to nominees for director for any new positions created by such increase, if it shall be received by
the Secretary at the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such Public Announcement is first made by the
Corporation. In no event shall the Public Announcement of an adjournment or postponement of an
annual meeting of shareholders commence a new time period (or extend any time period) for the
giving of a shareholders notice as described above.
(iii) To be in proper written form, a shareholders notice (whether pursuant to Section 3,
this Section 13(a) or Section 13(b)) must set forth, as applicable:
(A) as to each person, if any, whom the shareholder proposes to nominate for election as a
director (x) all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act and
(y) such persons written consent to being named in the proxy statement as a nominee and to serving
as a director if elected;
(B) if the notice relates to any business (other than the nomination of persons for election
as directors) that the shareholder proposes to bring before the meeting, (w) a brief description of
the business desired to be brought before the meeting, (x) the full and complete text of the
proposal or business (including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the Articles of Incorporation or the Bylaws
of the Corporation, the language of the proposed amendment), (y) the reasons for conducting such
business at the meeting, and (z) any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and
(C) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (t) the name and address of such shareholder, as they appear on
the Corporations books, and of such beneficial owner, (u) the class or series and number of shares
of capital stock of the Corporation that are, directly or indirectly, owned beneficially and of
record by such shareholder and by such beneficial owner, including any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any class or series of
shares of the Corporation, whether or not such instrument or right shall be subject to settlement
in the underlying class or series of capital stock
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of the Corporation or otherwise (a Derivative Instrument) directly or indirectly owned beneficially
by each such party, and any other direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of the Corporation, (v) any proxy,
contract, arrangement, understanding, or relationship pursuant to which either party has a right to
vote any shares of any security of the Company, (w) any short interest in any security of the
Company held by each such party, (x) any rights to dividends on the shares of the Corporation owned
beneficially by each such party that are separated or separable from the underlying shares of the
Corporation, (y) any proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which either party is a
general partner or, directly or indirectly, beneficially owns an interest in a general partner and
(z) any performance-related fees (other than an asset-based fee) that each such party is entitled
to based on any increase or decrease in the value of shares of the Corporation or Derivative
Instruments, if any, in each case with respect to clauses (t) through (z) herein as of the close of
business on the date of such notice, including without limitation any such interests held by
members of each such partys immediate family sharing the same household (which information set
forth in this paragraph shall be supplemented by such stockholder or such beneficial owner, as the
case may be, not later than 10 days after the record date for the meeting to disclose such
ownership as of the close of business on the record date);
(D) any other information relating to each such party that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of
proxies for, as applicable, the proposal and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act; and
(E) a representation that the shareholder is a holder of record of shares of the Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, and
(F) a representation whether the shareholder or the beneficial owner, if any, intends or is
part of a group that intends (y) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporations outstanding capital stock required to approve or adopt
the proposal or elect the nominee or (z) otherwise to solicit proxies from shareholders in support
of such proposal or nomination.
The Corporation may require any proposed nominee to furnish such other information as it may
reasonably require to determine (i) the eligibility of such proposed nominee to serve as a director
of the Corporation, and (ii) whether such nominee qualifies as an independent director or audit
committee financial expert under applicable law, securities exchange rule or regulation, or any
publicly-disclosed corporate governance guideline or committee charter of the Corporation.
(b) Special Meetings of Shareholders.
(i) At a special meeting of shareholders, only such business may be conducted or considered as
is properly brought before such special meeting and any such proposed business must constitute a
proper matter for shareholder action under California law. At a special meeting, business must be
(y) specified in the notice of the meeting (or any
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supplement thereto) given by or at the direction of the chairman of the board of directors,
the president, a vice president or the secretary or (z) otherwise properly brought before the
meeting by the presiding officer or by or at the direction of a majority of the board of directors.
(ii) Any shareholder or shareholders seeking to call a special meeting pursuant to Section 3
of this Article III of these Bylaws, shall provide information in such shareholders notice in the
same form as required by sub-section (a)(iii) of this Section 13, to the extent applicable, in any
request made pursuant to such Section.
(iii) In the event a special meeting of shareholders is called for the purpose of electing one
or more directors to the Board of Directors, any such shareholder entitled to vote in such election
of directors may nominate a person or persons (as the case may be) for election to such position(s)
as specified in the Corporations notice of meeting, only if the shareholders notice in the same
form as required by sub-section (a)(iii) of this Section 13 shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of business on the
later of (y) the 90th day prior to such special meeting or (z) the 10th day following the day on
which Public Announcement is first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a shareholders notice as described above.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in this
Section 13 shall be eligible to be elected at an annual or special meeting of shareholders of the
Corporation to serve as directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Section 13. Notwithstanding the foregoing provisions of this Section 13, unless
otherwise required by law, if the shareholder (or a qualified representative of the shareholder)
does not appear at the annual or special meeting of shareholders of the Corporation to present a
nomination or proposed business, such nomination shall be disregarded and such proposed business
shall not be considered, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 5.13, to be considered a qualified
representative of the shareholder, a person must be authorized by a writing executed by such
shareholder or an electronic transmission delivered by such shareholder to act for such shareholder
as proxy at the meeting of shareholders and such person must produce such writing or electronic
transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting
of shareholders.
(ii) For purposes of this Section 13, Public Announcement shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press, or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 13, a shareholder shall also
comply with all applicable requirements of the Exchange Act and the rules
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and regulations thereunder with respect to matters set forth in this Section 13. Nothing in
this Section 13 shall be deemed to affect any rights (a) of shareholders to request inclusion of
proposals or nominations in the Corporations proxy statement pursuant to Rule 14a-8 (or any
successor thereto) promulgated under the Exchange Act or (b) of the holders of any series of
Preferred Stock to nominate and elect directors pursuant to and to the extent provided in any
applicable provisions of the articles of incorporation.
Section 14. Order of Business. The chairman of the board of directors, or such other
officer of the Corporation designated by a majority of the board of directors, will call meetings
of the shareholders to order and will act as presiding officer thereof. Unless otherwise
determined by the board of directors prior to the meeting, the presiding officer of the meeting of
the shareholders will also determine the order of business and have the authority in his or her
sole discretion to regulate the conduct of any such meeting, including without limitation by (i)
imposing restrictions on the persons (other than shareholders of the corporation or their duly
appointed proxies) who may attend any such shareholders meeting, (ii) ascertaining whether any
shareholder or his proxy may be excluded from any meeting of the shareholders based upon any
determination by the presiding officer, in his sole discretion, that any such person has unduly
disrupted or is likely to disrupt the proceedings thereat, and (iii) determining the circumstances
in which any person may make a statement or ask questions at any meeting of the shareholders. The
determination of whether any business sought to be brought before any annual or special meeting of
the shareholders is properly brought before such meeting in accordance with Article III of these
Bylaws, and whether any nomination of a person for election as a director of the Corporation at any
meeting of the shareholders was properly made in accordance with this Article III of these Bylaws
will be made by the presiding officer of such meeting. If the presiding officer determines that
any business is not properly brought before such meeting, or any nomination was not properly made,
he will so declare to the meeting and any such business will not be conducted or considered and any
such nomination will be disregarded.
ARTICLE IV
DIRECTORS
Section 1. Number of Directors.
(a) The authorized number of directors shall be no less than five nor more than nine. The
exact number of directors shall be fixed from time to time, within the limits specified in this
subdivision, by an amendment of subdivision (b) of this Section adopted by the Board of Directors.
(b) The exact number of directors shall be five, until changed as provided in subdivision (a)
of this Section.
(c) The maximum or minimum authorized number of directors may only be changed by an amendment
of this Section approved by the vote or written consent of a majority of the outstanding shares
entitled to vote; provided, however, that an amendment reducing the minimum number to a number less
than five shall not 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)
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exceed 16 -2/3% of such outstanding shares; and provided, further, that in no case shall the
stated maximum authorized number of directors exceed two times the stated minimum number of
authorized directors minus one.
Section 2. Election of Directors. Directors shall be elected at each annual meeting
of the shareholders.
Section 3. Term of Office. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which he is elected and until a
successor has been elected.
Section 4. Vacancies.
(a) A vacancy in the Board of Directors exists whenever any authorized position of director is
not then filled by a duly elected director, whether caused by death, resignation, removal, change
in the authorized number of directors, or otherwise.
(b) Except for a vacancy created by the removal of a director, vacancies on the Board of
Directors may be filled by a majority of the directors then in office, whether or not less than a
quorum, or by a sole remaining director. A vacancy created by the removal of a director shall be
filled only by shareholders.
(c) The shareholder may elect a director at any time to fill any vacancy not filled by the
directors.
Section 5. Removal.
(a) The Board of Directors may declare vacant the office of a director who has been declared
of unsound mind by an order of court or convicted of a felony.
(b) Any or all of the directors may be removed without cause if such removal is approved by a
majority of the outstanding shares entitled to vote; provided, however, that no director may be
removed (unless the entire Board of Directors is removed) if whenever the votes cast against
removal, or not consenting in writing to such removal, would be sufficient to elect such director
if voted cumulatively at an election at which the same total number of votes were cast (or, if such
action is taken by written consent, all shares entitled to vote were voted) and the entire number
of directors authorized at the time of his most recent election were then being elected.
(c) Any reduction of the authorized number of directors does not remove any director prior to
the expiration of his term of office.
Section 6. Resignation. 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. If
the resignation is effective at a future time, a successor may be elected to take office when the
resignation becomes effective.
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Section 7. Fees and Compensation. Directors may be paid for their services in
such capacity a sum in such amounts, at such times and upon such conditions as may be determined
from time to time by resolution of the Board of Directors, and may be reimbursed for their
expenses, if any, incurred in such capacity, including (without limitation) expenses of attendance
at any meeting of the Board. No such payments shall preclude any director from serving the
Corporation in any other capacity and receiving compensation in any manner therefor.
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Designation of Committees. The Board of Directors may, by resolution
adopted by a majority of the authorized number of directors, designate (1) one or more committees,
each consisting of two or more directors and (2) one or more directors as alternate members of any
committee, who may replace any absent member at any meeting thereof. Any member or alternate member
of a committee shall serve at the pleasure of the Board.
Section 2. Powers of Committees. Any committee, to the extent provided in the
resolution of the Board of Directors designating such committee, shall have all the authority of
the Board, except with respect to:
(a) The approval of any action for which the General Corporation Law of the State of
California also requires any action by the shareholders;
(b) The filling of vacancies on the Board or in any committed thereof;
(c) The fixing of compensation of the directors for serving on the Board or on any committee
thereof;
(d) The amendment or repeal of these Bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the Board which by its express terms is not
so amendable or repealable;
(f) A distribution to the shareholders of the Corporation, except at a rate or in a periodic
amount or within a price range determined by the Board of Directors; or
(g) The designation of other committees of the Board or the appointment of members or
alternate members thereof.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS AND COMMITTEES THEREOF
Section 1. Place of Meetings. Regular meetings of the Board of Directors shall be
held at any place within or without the State of California which has been designated from time to
time by the Board, or, in the absence of such designation, at the principal executive office of the
Corporation. Special meetings of the Board shall be held either at any place within or
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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, at the principal executive office of the
Corporation.
Section 2. Organization Meeting. Immediately following each annual meeting of the
shareholders, the Board of Directors shall hold a regular meeting for the purpose of organization
and transaction of other business. Notice of any such meeting is not required.
Section 3. Other Regular Meetings. Other regular meetings of the Board of Directors
shall be held without call at such time as shall be designated from time to time by the Board.
Notice of any such meeting is not required.
Section 4. Special Meetings. Special meetings of the Board of Directors may be called
at any time for any purpose or purposes by the Chairman of the Board or the President or any Vice
President or the Secretary or any two directors. Notice shall be given of any special meeting of
the Board.
Section 5. Notice of Special Meetings.
(a) Notice of the time and place of special meetings of the Board of Directors shall be
delivered personally to each director or sent to each director by first class mail or telegraph,
charges prepaid, telephone, including a voice messaging system or other system or technology
designed to record and communicate messages, facsimile, electronic mail, or other electronic means.
Such notice shall be given four days prior to the holding of the special meeting if sent by mail or
48 hours prior to the holding thereof if delivered personally or given by telephone, telegraph,
facsimile, electronic mail, or other electronic means permitted in this Section. The notice or
report shall be deemed to have been given at the time when delivered personally to the recipient or
deposited in the mail or sent by other means of communication permitted in this Section.
(b) Notice of any special meeting of the Board of Directors need not specify the purpose
thereof and need not be given to any director who signs a waiver of notice, whether before or after
the meeting, or who attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to him.
Section 6. Validation of Defectively Held Meetings. The transactions of any meetings
of the Board of Directors, however called and noticed or wherever held, are as valid as though had
at a meeting duly held after regular call and notice if a quorum is present and if, either before
or after the meeting, each of the directors not present signs a written waiver of notice, a consent
to holding the meeting or an approval of the minutes thereof. Such waivers, consents and approvals
(a) need not specify the purpose of any meeting of the Board of Directors and (b) shall be filed
with the corporate records or made a part of the minutes of the meeting.
Section 7. Quorum of Meetings.
(a) A majority of the authorized number of directors shall constitute a quorum for the
transaction of business. 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 is the act of the Board of Directors, unless
action by a greater proportion of the directors is required by law or the Articles of
Incorporation.
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(b) A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
(c) 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 by this means constitutes presence at such meeting.
Section 8. Adjournment. A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting for another time and place. If the meeting is adjourned for
more than 24 hours, notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time of the adjournment.
Section 9. Motion Without a Meeting. Any action required or permitted to be taken by
the Board of Directors may be taken without a meeting, if all members of the Board individually or
collectively consent in writing to such action. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board. Such action by written consent shall have the
same force and effect as a unanimous vote of such directors.
Section 10. Meeting of and Actions by Committees. The provisions of this Article
apply to committees of the Board of Directors and action by such committees with such changes in
the language of those provisions as are necessary to substitute the committee and its members for
the Board and its members.
ARTICLE VII
OFFICERS
Section 1. Officers. The Corporation shall have as officers, a President, a
Secretary, and a Chief Financial Officer. The Corporation may also have, at the discretion of the
Board, a Chairman of the Board, 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.
Section 2. Selection of Officers. 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 by the Board of Directors.
Section 3. Subordinate Officers. The Board of Directors may appoint by resolution,
and may empower the Chairman of the Board, if there be such an officer, or 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 determined from time to
time by resolution of the Board or, in the absence of any such determination, as are provided in
these Bylaws. Any appointment of an officer shall be evidenced by a written instrument filed with
the Secretary of the Corporation and maintained with the corporate records.
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Section 4. Removal and Resignation.
(a) Any officer may be removed, either with or without cause, by the Board of Directors or,
except in case of any officer chosen by the Board, by any officer upon whom such power of removal
may be conferred by resolution of the Board.
(b) Any officer may resign at any time effective upon giving written notice to the Chairman of
the Board, President, any vice president, or Secretary of the Corporation, unless the notice
specifies a later time for the effectiveness of such resignation.
Section 5. Vacancies. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for
regular appointments to such office.
Section 6. Chairman of the Board. If there is a Chairman of the Board, he shall, if
present, preside at all meetings of the Board of Directors and at all meetings of the shareholders,
exercise and perform such other powers and duties as may be from time to time assigned to him by
resolution of the Board and, if there is no President, the Chairman of the Board shall be the chief
executive officer of the Corporation and have the power and duties set forth in Section 7 of this
Article.
Section 7. President. Subject to such supervisory powers, if any, as may be given by
the Board of Directors to the Chairman of the Board, if there be such an Officer, the President
shall be the Chief Executive Officer and General Manager of the Corporation and shall, subject to
the control of the Board, have general supervision, direction and control of the business and
affairs of the Corporation. In the absence of the Chairman of the Board or if there be none, the
President shall preside at all meetings of the shareholders and at all meetings of the board. He
shall have the general powers and duties of management usually vested in the office of president of
a corporation, and shall have such other powers and duties as may be prescribed from time to time
by resolution of the Board.
Section 8. Vice President. In the absence or disability of the President, the vice
presidents in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice
President designated by the Board, shall perform all the duties of the President and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the President. The vice
presidents shall have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board or as the President may from time to time delegate.
Section 9. Secretary.
(a) The Secretary shall keep or cause to be kept (1) the minute book, (2) the share register
and (3) the seal, if any, of the Corporation.
(b) The Secretary shall give, or cause to be given, notice of all meetings of the shareholders
and of the Board of Directors required by these Bylaws or by law to be given, and shall have such
other powers and perform such other duties as may be prescribed from time to time by the Board.
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Section 10. Chief Financial Officer.
(a) The Chief Financial Officer shall perform the duties of a chief financial officer of a
corporation. The Chief Financial Officer also shall keep, or cause to be kept, the books and
records of account of the Corporation.
(b) The Chief Financial Officer shall deposit all monies and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated from time to time by
resolution of the Board of Directors. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and Board, whenever they request
it, an account of all of his transactions as Chief Financial Officer and of the financial condition
of the Corporation, and shall have such other powers and perform such other duties as may be
prescribed from time to time by the Board or as the President may from time to time delegate.
ARTICLE VIII
RECORDS AND REPORTS
Section 1. Minute Book Maintenance and Inspection. The Corporation shall keep or
cause to be kept in written form at its principal executive office or such other place as the Board
of Directors may order, a minute book which shall contain a record of all actions by its
shareholders, Board or committees of the Board including the time, date and place of each meeting;
whether a meeting is regular or special and, if special, how called; the manner of giving notice of
each meeting and a copy thereof; the names of those present at each meeting of the Board or
committees thereof; the number of shares present or represented at each meeting of the
shareholders; the proceedings of all meetings; any written waivers of notice, consents to the
holding of a meeting or approval of the minutes thereof; and written consents for action without a
meeting.
Section 2. Share Register Maintenance and Inspection. The Corporation shall keep or
cause to be kept at its principal executive office or, if so provided by resolution of the Board of
Directors, at the Corporations transfer agent or registrar, a share register, or a duplicate share
register, which shall contain 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.
Section 3. Books and Records of Account Maintenance and Inspection. The Corporation
shall keep or cause to be kept at its principal executive office or such other place as the Board
of Directors may order, adequate and correct books and records of account
Section 4. Bylaws Maintenance and Inspection. The Corporation shall keep at its
principal executive office or, in the absence of such office in the State of California, at its
principal business office in that state, the original or a copy of the Bylaws as amended to date.
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ARTICLE IX
MISCELLANEOUS
Section 1. Checks, Drafts, Etc. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, and any assignment or endorsement thereof, 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.
Section 2. Contracts, Etc. How Executed. 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,
and such authority may be general or confirmed to specific instances; and, unless so authorized or
ratified by the Board, no officer, employee or other agent 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
Section 3. Certificates; Direct Registration System.
(a) Shares of the Corporations capital stock may be certificated or uncertificated, as
provided under California law. Any certificates that are issued shall be signed in the name of the
Corporation by the Chairman of the Board or the President or a Vice President and by the Treasurer
or an assistant treasurer or the Secretary or an assistant secretary, certifying the number of
shares and the class or series thereof owned by the shareholder. Any or all of the signatures on a
certificate may be by facsimile signature. 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. Shares of the Corporations capital stock may also be evidenced by registration
in the holders name in uncertificated, book-entry form on the books of the Corporation in
accordance with a direct registration system approved by the Securities and Exchange Commission and
by the NASDAQ Stock Market or any securities exchange on which the stock of the Corporation may
from time to time be traded.
(b) Transfers of shares of stock of the Corporation shall be made by the transfer agent and
registrar on the books of the Corporation after receipt of a request with proper evidence of
succession, assignment, or authority to transfer by the record holder of such stock, or by an
attorney lawfully constituted in writing, and in the case of stock represented by a certificate,
upon surrender of the certificate. Subject to the foregoing, the Board of Directors shall have
power and authority to make such rules and regulations as it shall deem necessary or appropriate
concerning the issue, transfer, and registration of shares of stock of the Corporation, and to
appoint and remove transfer agents and registrars of transfers.
Section 4. Lost Certificates. Except as provided in this Section, no new certificates
for shares shall be issued in lieu of an old certificate unless the latter is surrendered to the
Corporation and canceled at the same time. The Board of Directors may in case any share
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certificate or certificate for any other security is lost, stolen or destroyed, authorize the
issuance of a new certificate in lieu thereof (or uncertificated shares in lieu of a new
certificate), upon such terms and conditions as the Board may require, including provision for
indemnification of the Corporation secured by a bond or other adequate security sufficient to
protect the Corporation against any claim that may be made against it, including any expense or
liability, on account of the alleged loss, theft or destruction of such certificate or the issuance
of such new certificate.
Section 5. Representation of Shares of Other Corporations. Any person designated by
resolution of the Board of Directors or, in the absence of such designation, the Chairman of the
Board, the President or any Vice President or the Secretary, or any other person authorized by any
of the foregoing, is authorized to vote on behalf of the Corporation any and all shares of any
other corporation or corporations, foreign or domestic, owned by the Corporation.
Section 6. Construction and Definitions. Unless the context otherwise requires, the
general provisions, rules of construction and definitions contained in the Corporations Code of the
State of California shall govern the construction of these Bylaws.
Section 7. Indemnification of Corporate Agent; Purchase of Liability Insurance.
(a) The Corporation shall, to the maximum extent permitted by the General Corporation Law of
the State of California, and as the same may from time to time be amended, indemnify each of its
agents against expenses, judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with any proceeding to which such person was or is a party or is threatened
to be made a party arising by reason of the fact that such person is or was an agent of the
Corporation. For purposes of this Section 7, an agent of the Corporation includes any person who
is or was a director, officer, employee or other agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise, or was a director,
officer, 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 includes an action or proceeding by or in the right
of the Corporation to procure a judgment in its favor; and expense includes attorneys fees and
any expenses of establishing a right to indemnification under this subdivision (a).
(b) The right of indemnification provided in this Section shall inure to each person referred
to herein, and shall extend to his legal representatives in the event of his death. The right of
indemnification provided herein shall not be exclusive of any other rights to which any such
person, or any other individual, may be entitled as a matter of law, or pursuant to any agreement,
vote of directors or shareholders or otherwise.
(c) The Corporation shall, if and to the extent the Board of Directors so determines, by
resolution, purchase and maintain insurance in an amount and on behalf of such agents of the
Corporation as the Board may specify in such resolution against any liability asserted against or
incurred by the agent in such capacity or arising out of the agents status as such whether or not
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the Corporation would have the capacity to indemnify the agent against such liability under
the provisions of this Section.
ARTICLE X
AMENDMENTS
Section 1. Amendments. 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. Subject
to the next preceding sentence, bylaws (other than a bylaw or amendment thereof specifying or
changing a fixed number of directors or the maximum or minimum number, or changing from a fixed to
a variable board or vice versa) may be adopted, amended or repealed by the Board of Directors.
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