Ciphergen Biosystems Inc. Contracts
Sample Business Contracts
Bylaws - Ciphergen Biosystems Inc.
BYLAWS
OF
CIPHERGEN BIOSYSTEMS, INC.
(A California corporation)
(As Amended and Restated by Resolution of
the Board of Directors dated July 20, 1995)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I - OFFICES...........................................................1
Section 1. Principal Office...................................1
Section 2. Other Offices......................................1
ARTICLE II - CORPORATE SEAL...................................................1
Section 3. Corporate Seal.....................................1
ARTICLE III - SHAREHOLDERS' MEETINGS AND VOTING RIGHTS........................1
Section 4. Place of Meetings..................................1
Section 5. Annual Meeting.....................................1
Section 6. Postponement of Annual Meeting.....................1
Section 7. Special Meetings...................................2
Section 8. Notice of Meetings.................................2
Section 9. Manner of Giving Notice............................3
Section 10. Quorum and Transaction of Business.................3
Section 11. Adjournment and Notice of Adjourned Meetings.......4
Section 12. Waiver of Notice, Consent to Meeting or
Approval of Minutes................................4
Section 13. Action by Written Consent Without a Meeting........5
Section 14. Voting.............................................6
Section 15. Persons Entitled to Vote or Consent................6
Section 16. Proxies............................................7
Section 17. Inspectors of Election.............................7
ARTICLE IV - BOARD OF DIRECTORS...............................................8
Section 18. Powers.............................................8
Section 19. Number of Directors................................8
Section 20. Election Of Directors, Term, Qualifications........8
Section 21. Resignations.......................................9
Section 22. Removal............................................9
Section 23. Vacancies..........................................9
Section 24. Regular Meetings...................................9
Section 25. Participation by Telephone........................10
Section 26. Special Meetings..................................10
Section 27. Notice of Meetings................................10
Section 28. Place of Meetings.................................10
Section 29. Action by Written Consent Without a Meeting.......10
Section 30. Quorum and Transaction of Business................10
Section 31. Adjournment.......................................11
Section 32. Organization......................................11
Section 33. Compensation......................................11
Section 34. Committees........................................11
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE V - OFFICERS.........................................................12
Section 35. Officers..........................................12
Section 36. Appointment.......................................12
Section 37. Inability to Act..................................12
Section 38. Resignations......................................12
Section 39. Removal...........................................12
Section 40. Vacancies.........................................13
Section 41. Chairman of the Board.............................13
Section 42. President.........................................13
Section 43. Vice Presidents...................................13
Section 44. Secretary.........................................13
Section 45. Chief Financial Officer...........................14
Section 46. Compensation......................................15
ARTICLE VI - CONTRACTS, LOANS, BANK ACCOUNTS, CHECKS AND DRAFTS..............15
Section 47. Execution of Contracts and Other Instruments......15
Section 48. Loans.............................................15
Section 49. Bank Accounts.....................................15
Section 50. Checks, Drafts, Etc...............................16
ARTICLE VII - CERTIFICATES FOR SHARES AND THEIR TRANSFER.....................16
Section 51. Certificate for Shares............................16
Section 52. Transfer on the Books.............................16
Section 53. Lost, Destroyed and Stolen Certificates...........16
Section 54. Issuance, Transfer and Registration of Shares.....17
ARTICLE VIII - INSPECTION OF CORPORATE RECORDS...............................17
Section 55. Inspection by Directors...........................17
Section 56. Inspection by Shareholders........................17
Section 57. Written Form......................................18
ARTICLE IX - MISCELLANEOUS...................................................18
Section 58. Fiscal Year.......................................18
Section 59. Annual Report.....................................18
Section 60. Record Date.......................................19
Section 61. Bylaw Amendments..................................19
Section 62. Construction and Definition.......................19
ARTICLE X - INDEMNIFICATION..................................................20
Section 63. Indemnification of Directors, Officers,
Employees And Other Agents........................20
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE XI - RIGHT OF FIRST REFUSAL..........................................23
Section 64. Right of First Refusal............................23
</TABLE>
-iii-
<PAGE>
BYLAWS
OF
CIPHERGEN BIOSYSTEMS, INC.
(A California Corporation)
ARTICLE I - OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal executive office of the
corporation shall be located at such place as the Board of Directors may from
time to time authorize. If the principal executive office is located outside
this state, and the corporation has one or more business offices in this
state, the Board of Directors shall fix and designate a principal business
office in the State of California.
SECTION 2. OTHER OFFICES. Additional offices of the corporation
shall be located at such place or places, within or outside the State of
California, as the Board of Directors may from time to time authorize.
ARTICLE II - CORPORATE SEAL
SECTION 3. CORPORATE SEAL. If the Board of Directors adopts a
corporate seal such seat shall have inscribed thereon the name of the
corporation and the state and date of its incorporation. If and when a seal
is adopted by the Board of Directors, such seal may be engraved,
lithographed, printed, stamped, impressed upon, or affixed to any contract,
conveyance, certificate for shares, or other instrument executed by the
corporation.
ARTICLE III - SHAREHOLDERS' MEETINGS AND VOTING RIGHTS
SECTION 4. PLACE OF MEETINGS. Meetings of shareholders shall be held
at the principal executive office of the corporation, or at any other place,
within or outside the State of California, which may be fixed either by the
Board of Directors or by the written consent of all persons entitled to vote
at such meeting, given either before or after the meeting and filed with the
Secretary of the Corporation.
SECTION 5. ANNUAL MEETING. The annual meeting of the shareholders of
the corporation shall be held on any date and time which may from time to
time be designated by the Board of Directors. At such annual meeting,
directors shall be elected and any other business may be transacted which may
properly come before the meeting.
SECTION 6. POSTPONEMENT OF ANNUAL MEETING. The Board of Directors
and the President shall each have authority to hold at an earlier date and/or
time, or to postpone to a later date and/or time, the annual meeting of
shareholders.
-1-
<PAGE>
SECTION 7. SPECIAL MEETINGS.
(a) Special meetings of the shareholders, for any purpose
or purposes, may be called by the Board of Directors, the Chairman of the
Board of Directors, the President, or the holders of shares entitled to cast
not less than ten percent (10%) of the votes at the meeting.
(b) Upon written request to the Chairman of the Board of
Directors, the President, any vice president or the Secretary of the
corporation by any person or persons (other than the Board of Directors)
entitled to call a special meeting of the shareholders, such officer
forthwith shall cause notice to be given to the shareholders entitled to
vote, that a meeting will be held at a time requested by the person or
persons calling the meeting, such time to be not less than thirty-five (35)
nor more than sixty (60) days after receipt of such request. If such notice
is not given within twenty (20) days after receipt of such request, the
person or persons calling the meeting may give notice thereof in the manner
provided by law or in these bylaws. Nothing contained in this Section 7 shall
be construed as limiting, fixing or affecting the time or date when a meeting
of shareholders called by action of the Board of Directors may be held.
SECTION 8. NOTICE OF MEETINGS. Except as otherwise may be required
by law and subject to subsection 7(b) above, written notice of each meeting
of shareholders shall be given to each shareholder entitled to vote at that
meeting (see Section 15 below), by the Secretary, assistant secretary or
other person charged with that duty, not less than ten (10) (or, if sent by
third class mail, thirty (30)) nor more than sixty (60) days before such
meeting.
Notice of any meeting of shareholders shall state the date, place
and hour of the meeting and,
(a) in the case of a special meeting, the general nature of
the business to be transacted, and no other business may be transacted at
such meeting;
(b) in the case of an annual meeting, the general nature of
matters which the Board of Directors, at the time the notice is given,
intends to present for action by the shareholders;
(c) in the case of any meeting at which directors are to be
elected, the names of the nominees intended at the time of the notice to be
presented by management for election; and
(d) in the case of any meeting, if action is to be taken on
any of the following proposals, the general nature of such proposal:
(1) a proposal to approve a transaction within the
provisions of California Corporations Code, Section 310 (relating to certain
transactions in which a director has a direct or indirect financial interest);
(2) a proposal to approve a transaction within the
provisions of California Corporations Code, Section 902 (relating to amending
the Articles of Incorporation of the corporation);
-2-
<PAGE>
(3) a proposal to approve a transaction within the
provisions of California Corporations Code, Sections 181 and 1201 (relating to
reorganization);
(4) a proposal to approve a transaction within the
provisions of California Corporations Code, Section 1900 (winding up and
dissolution);
(5) a proposal to approve a plan of distribution
within the provisions of California Corporations Code, Section 2007 (relating
to certain plans providing for distribution not in accordance with the
liquidation rights of preferred shares, if any).
At a special meeting, notice of which has been given in
accordance with this Section, action may not be taken with respect to
business, the general nature of which has not been stated in such notice. At
an annual meeting, action may be taken with respect to business stated in the
notice of such meeting, given in accordance with this Section, and, subject
to subsection 8(d) above, with respect to any other business as may properly
come before the meeting.
SECTION 9. MANNER OF GIVING NOTICE. Notice of any meeting of
shareholders shall be given either personally or by first-class mail, or, if
the corporation has outstanding shares held of record by 500 or more persons
(determined as provided in California Corporations Code Section 605) on the
record date for such meeting, third-class mail, or telegraphic or other
written communication, addressed to the shareholder at the address of that
shareholder appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice. If no such address
appears on the corporation's books or is given, notice shall be deemed to
have been given if sent to that shareholder by first-class mail or
telegraphic or other written communication to the corporation's principal
executive office, or if published at least once in a newspaper of general
circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally or deposited
in the mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the
shareholder at that address, all future notices shall be deemed to have been
duly given without further mailing if these shall be available to the
shareholder on written demand by the shareholder at the principal executive
office of the corporation for a period of one year from the date of the
giving of the notice.
An affidavit of mailing of any notice or report in accordance with
the provisions of this Section 9, executed by the Secretary, Assistant
Secretary or any transfer agent, shall be prima facie evidence of the giving
of the notice.
SECTION 10. QUORUM AND TRANSACTION OF BUSINESS.
(a) At any meeting of the shareholders, a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute
a quorum. If a quorum is present, the affirmative vote of the majority of
shares represented at the meeting and entitled to vote on any matter shall be
-3-
<PAGE>
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by law or by the Articles of Incorporation, and except as
provided in subsection (b) below.
(b) The shareholders present at a duly called or held
meeting of the shareholders at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, provided that any action taken
(other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
(c) In the absence of a quorum, no business other than
adjournment may be transacted, except as described in subsection (b) above.
SECTION 11. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any
meeting of shareholders may be adjourned from time to time, whether or not a
quorum is present, by the affirmative vote of a majority of shares
represented at such meeting either in person or by proxy and entitled to vote
at such meeting.
In the event any meeting is adjourned, it shall not be necessary to
give notice of the time and place of such adjourned meeting pursuant to
Sections 8 and 9 of these bylaws; provided that if any of the following three
events occur, such notice must be given:
(1) announcement of the adjourned meeting's time
and place is not made at the original meeting which it continues or
(2) such meeting is adjourned for more than
forty-five (45) days from the date set for the original meeting or
(3) a new record date is fixed for the adjourned
meeting.
At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting.
SECTION 12. WAIVER OF NOTICE, CONSENT TO MEETING OR APPROVAL OF
MINUTES.
(a) Subject to subsection (b) of this Section, the
transactions of any meeting of shareholders, however called and noticed, and
wherever held, shall be as valid as though made 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 but not present in person or by proxy signs a written waiver of notice
or a consent to holding of the meeting or an approval of the minutes thereof.
(b) A waiver of notice, consent to the holding of a meeting
or approval of the minutes thereof need not specify the business to be
transacted or transacted at nor the purpose of the meeting; provided that in
the case of proposals described in subsection (d) of Section 8 of these
bylaws, the general nature of such proposals must be described in any such
waiver of notice and
-4-
<PAGE>
such proposals can only be approved by waiver of notice, not by consent to
holding of the meeting or approval of the minutes.
(c) All waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
(d) A person's attendance at a meeting shall constitute
waiver of notice of and presence at such meeting, except when such person
objects at the beginning of the meeting to transaction of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters which are required by law or these bylaws to be in
such notice (including those matters described in subsection (d) of Section 8
of these bylaws), but are not so included if such person expressly objects to
consideration of such matter or matters at any time during the meeting.
SECTION 13. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
which may be taken at any meeting of shareholders may be taken without a
meeting and without prior notice if written consents setting forth the action
so taken are signed by the holders of the outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Directors may not be elected by written consent except by unanimous
written consent of all shares entitled to vote for the election of directors;
provided that any vacancy on the Board of Directors (other than a vacancy
created by removal) which has not been filled by the board of directors may
be filled by the written consent of a majority of outstanding shares entitled
to vote for the election of directors.
Any written consent may be revoked pursuant to California
Corporations Code Section 603(c) prior to the time that written consents of
the number of shares required to authorize the proposed action have been
filed with the Secretary. Such revocation must be in writing and will be
effective upon its receipt by the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of any corporate action approved by the shareholders without a meeting
to those shareholders entitled to vote on such matters who have not consented
thereto in writing. This notice shall be given in the manner specified in
Section 9 of these bylaws. In the case of approval of (i) a transaction
within the provisions of California Corporations Code, Section 310 (relating
to certain transactions in which a director has an interest), (ii) a
transaction within the provisions of California Corporations Code, Section
317 (relating to indemnification of agents of the corporation), (iii) a
transaction within the provisions of California Corporations Code, Sections
181 and 1201 (relating to reorganization), and (iv) a plan of distribution
within the provisions of California Corporations Code, Section 2007 (relating
to certain plans providing for distribution not in accordance with the
liquidation rights of preferred shares, if any), the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
-5-
<PAGE>
SECTION 14. VOTING. The shareholders entitled to vote at any meeting
of shareholders shall be determined in accordance with the provisions of
Section 15 of these bylaws, subject to the provisions of Sections 702 through
704 of the California Corporations Code (relating to voting shares held by a
fiduciary, in the name of a corporation, or in joint ownership). Voting at
any meeting of shareholders need not be by ballot; provided, however, that
elections for directors must be by ballot if balloting is demanded by a
shareholder at the meeting and before the voting begins.
Every person entitled to vote at an election for directors may
cumulate the votes to which such person is entitled, i.e., such person may
cast a total number of votes equal to the number of directors to be elected
multiplied by the number of votes to which such person's shares are entitled,
and may cast said total number of votes for one or more candidates in such
proportions as such person thinks fit; provided, however, no shareholder
shall be entitled to so cumulate such shareholder's votes unless the
candidates for which such shareholder is voting have been placed in
nomination prior to the voting and a shareholder has given notice at the
meeting, prior to the vote, of an intention to cumulate votes. In any
election of directors, the candidates receiving the highest number of votes,
up to the number of directors to be elected, are elected.
Except as may be otherwise provided in the Articles of Incorporation
or by law, and subject to the foregoing provisions regarding the cumulation
of votes, each shareholder shall be entitled to one vote for each share held.
Any shareholder may vote part of such shareholder's shares in favor
of a proposal and refrain from voting the remaining shares or vote them
against the proposal, other than elections to office, but, if the shareholder
fails to specify the number of shares such shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares such shareholder is entitled to
vote.
No shareholder approval, other than unanimous approval of those
entitled to vote, will be valid as to proposals described in subsection 8(d)
of these bylaws unless the general nature of such business was stated in the
notice of meeting or in any written waiver of notice.
SECTION 15. PERSONS ENTITLED TO VOTE OR CONSENT. The Board of
Directors may fix a record date pursuant to Section 60 of these bylaws to
determine which shareholders are entitled to notice of and to vote at a
meeting or consent to corporate actions, as provided in Sections 13 and 14 of
these bylaws. Only persons in whose name shares otherwise entitled to vote
stand on the stock records of the corporation on such date shall be entitled
to vote or consent.
If no record date is fixed:
(1) 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 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;
-6-
<PAGE>
(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;
(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
sixtieth (60th) day prior to the date of such other action, whichever is
later.
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; provided, however, that the Board of Directors shall fix a
new record date if the meeting is adjourned for more than forty-five (45)
days from the date set for the original meeting.
Shares of the corporation held by its subsidiary or subsidiaries (as
defined in California Corporations Code, Section 189(b)) are not entitled to
vote in any matter.
SECTION 16. PROXIES. Every person entitled to vote or execute
consents may do so either in person or by one or more agents authorized to
act by a written proxy executed by the person or such person's duly
authorized agent and filed with the Secretary of the corporation; provided
that no such proxy shall be valid after the expiration of eleven (11) months
from the date of its execution unless otherwise provided in the proxy. The
manner of execution, suspension, revocation, exercise and effect of proxies
is governed by law.
SECTION 17. INSPECTORS OF ELECTION. Before any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the chairman of
the meeting may, and on the request of any shareholder or a shareholder's
proxy shall, appoint inspectors of election at the meeting. The number of
inspectors shall be either one (1) or three (3). If inspectors are appointed
at a meeting on the request of one or more shareholders or proxies, the
majority of shares represented in person or proxy shall determine whether one
(1) or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the chairman of the
meeting may, and upon the request of any shareholder or a shareholder's proxy
shall, appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any
way arising in connection with the right to vote;
-7-
<PAGE>
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE IV - BOARD OF DIRECTORS
SECTION 18. POWERS. Subject to the provisions of law or any
limitations in the Articles of Incorporation or these bylaws, as to action
required to be approved by the shareholders or by the outstanding shares, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised, by or under the direction of the Board of
Directors. The Board of Directors 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 of Directors.
SECTION 19. NUMBER OF DIRECTORS. The authorized number of directors
of the corporation shall be not less than a minimum of five (5) nor more than
a maximum of nine (9) (which maximum number in no case shall be greater than
two times said minimum, minus one) and the number of directors presently
authorized is nine (9). The exact number of directors shall be set within
these limits from time to time (a) by approval of the Board of Directors, or
(b) by 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 a majority of the required quorum) or by
the written consent of shareholders pursuant to Section 13 hereinabove.
Any amendment of these bylaws changing the maximum or minimum number
of directors may be adopted only by the affirmative vote of a majority of the
outstanding shares entitled to vote; provided, an amendment reducing the
minimum number of directors to less than five (5), cannot be adopted if votes
cast against its adoption at a meeting or the shares not consenting to it in
the case of action by written consent are equal to more than 16-2/3 percent
of the outstanding shares entitled to vote.
No reduction of the authorized number of directors shall remove any
director prior to the expiration of such director's term of office.
SECTION 20. ELECTION OF DIRECTORS, TERM, QUALIFICATIONS. The
directors shall be elected at each annual meeting of shareholders to hold
office until the next annual meeting. Each director, including a director
elected or appointed to fill a vacancy, shall hold office either until the
expiration of the term for which elected or appointed and until a successor
has been elected and qualified, or until his death, resignation or removal.
Directors need not be shareholders of the corporation.
-8-
<PAGE>
SECTION 21. RESIGNATIONS. Any director of the corporation 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 specifies effectiveness at a future time, a successor may
be elected pursuant to Section 23 of these bylaws to take office on the date
that the resignation becomes effective.
SECTION 22. REMOVAL. 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 who has been convicted of a felony.
The entire Board of Directors or any individual director may be
removed from office without cause by the affirmative vote of a majority of
the outstanding shares entitled to vote on such removal; provided, however,
that unless the entire Board is removed, no individual director may be
removed when the votes cast against such director's removal, or not
consenting in writing to such removal, would be sufficient to elect that
director if voted cumulatively at an election at which the same total number
of votes cast 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 such director's most recent election were then
being elected.
SECTION 23. VACANCIES. A vacancy or vacancies on the Board of
Directors shall be deemed to exist in case of the death, resignation or
removal of any director, or upon increase in the authorized number of
directors or if shareholders fail to elect the full authorized number of
directors at an annual meeting of shareholders or if, for whatever reason,
there are fewer directors on the Board of Directors, than the full number
authorized. Such vacancy or vacancies, other than a vacancy created by the
removal of a director, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director. A
vacancy created by the removal of a director may be filled only by 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) or by the written
consent of shareholders pursuant to Section 13 hereinabove. The shareholders
may elect a director at any time to fill any vacancy not filled by the
directors. Any such election by written consent, other than to fill a vacancy
created by removal, requires the consent of a majority of the outstanding
shares entitled to vote. Any such election by written consent to fill a
vacancy created by removal requires the consent of all of the outstanding
shares entitled to vote.
If, after the filling of any vacancy by the directors, the directors
then in office who have been elected by the shareholders constitute less than
a majority of the directors then in office, any holder or holders of an
aggregate of five percent (5%) or more of the shares outstanding at that time
and having the right to vote for such directors may call a special meeting of
shareholders to be held to elect the entire Board of Directors. The term of
office of any director shall terminate upon such election of a successor.
SECTION 24. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times, places and dates as fixed in these
bylaws or by the Board of Directors; provided, however, that if the date for
such a meeting falls on a legal holiday, then the meeting shall be held at
-9-
<PAGE>
the same time on the next succeeding full business day. Regular meetings of
the Board of Directors held pursuant to this Section 24 may be held without
notice.
SECTION 25. PARTICIPATION BY TELEPHONE. Members of the Board of
Directors 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. Such participation constitutes presence in
person at such meeting.
SECTION 26. SPECIAL MEETINGS. Special meetings of the Board of
Directors for any purpose may be called by the Chairman of the Board or the
President or any vice president or the Secretary of the corporation or any
two (2) directors.
SECTION 27. NOTICE OF MEETINGS. Notice of the date, time and place
of all meetings of the Board of Directors, other than regular meetings held
pursuant to Section 24 above shall be delivered personally, orally or in
writing, or by telephone or telegraph to each director, at least forty-eight
(48) hours before the meeting, or sent in writing to each director by
first-class mail, charges prepaid, at least four (4) days before the meeting.
Such notice may be given by the Secretary of the corporation or by the person
or persons who called a meeting. Such notice need not specify the purpose of
the meeting. Notice of any meeting of the Board of Directors need not be
given to any director who signs a waiver of notice of such meeting, or a
consent to holding the meeting or an approval of the minutes thereof, either
before or after the meeting, or who attends the meeting without protesting
prior thereto or at its commencement such director's lack of notice. All such
waivers, consents and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
SECTION 28. PLACE OF MEETINGS. Meetings of the Board of Directors
may be held at any place within or without the state which has been
designated in the notice of the meeting or, if not stated in the notice or
there is no notice, designated in the bylaws or by resolution of the Board of
Directors.
SECTION 29. ACTION BY WRITTEN CONSENT 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 of Directors 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 of
Directors. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
SECTION 30. QUORUM AND TRANSACTION OF BUSINESS. 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
authorized number of directors present at a meeting duly held at which a
quorum is present shall be the act of the Board of Directors, unless the law,
the Articles of Incorporation or these bylaws specifically require a greater
number. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding withdrawal of directors, if any action
taken is approved by at least a majority of the number of directors
constituting a quorum for such meeting. In the absence of a quorum at any
meeting of the Board of Directors, a majority of the directors present may
adjourn the meeting, as provided in Section 31 of these bylaws.
-10-
<PAGE>
SECTION 31. ADJOURNMENT. Any meeting of the Board of Directors,
whether or not a quorum is present, may be adjourned to another time and
place by the affirmative vote of a majority of the directors present. If the
meeting is adjourned for more than twenty-four (24) hours, notice of such
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 32. ORGANIZATION. The Chairman of the Board shall preside at
every meeting of the Board of Directors, if present. If there is no Chairman
of the Board or if the Chairman is not present, a Chairman chosen by a
majority of the directors present shall act as chairman. The Secretary of the
corporation or, in the absence of the Secretary, any person appointed by the
Chairman shall act as secretary of the meeting.
SECTION 33. COMPENSATION. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board of Directors.
SECTION 34. COMMITTEES. The Board of Directors may, by resolution
adopted by a majority of the authorized number of directors, designate one or
more committees, each consisting of two (2) or more directors, to serve at
the pleasure of the Board of Directors. The Board of Directors, by a vote of
the majority of authorized directors, may designate one or more directors as
alternate members of any committee, to replace any absent member at any
meeting of such committee. Any such committee shall have authority to act in
the manner and to the extent provided in the resolution of the Board of
Directors, and may have all the authority of the Board of Directors in the
management of the business and affairs of the corporation, except with
respect to:
(a) the approval of any action for which shareholders'
approval or approval of the outstanding shares also is required by the
California Corporations Code;
(b) the filling of vacancies on the Board of Directors or
any of its committees;
(c) the fixing of compensation of directors for serving on
the Board of Directors or any of its committees;
(d) the adoption, amendment or repeal of these bylaws;
(e) the amendment or repeal of any resolution of the Board
of Directors which by its express terms is not so amendable or repealable;
(f) a distribution to shareholders, except at a rate or in
a periodic amount or within a price range determined by the Board of
Directors; or
(g) the appointment of other committees of the Board of
Directors or the members thereof.
-11-
<PAGE>
Any committee may from time to time provide by resolution for
regular meetings at specified times and places. If the date of such a meeting
falls on a legal holiday, then the meeting shall be held at the same time on
the next succeeding full business day. No notice of such a meeting need be
given. Such regular meetings need not be held if the committee shall so
determine at any time before or after the time when such meeting would
otherwise have taken place. Special meetings may be called at any time in the
same manner and by the same persons as stated in Sections 26 and 27 of these
bylaws for meetings of the Board of Directors. The provisions of Sections 25,
28, 29, 30, 31 and 32 of these bylaws shall apply to committees, committee
members and committee meetings as if the words "committee" and "committee
member" were substituted for the word "Board of Directors", and "director",
respectively, throughout such sections.
ARTICLE V - OFFICERS
SECTION 35. OFFICERS. The corporation shall have a Chairman of the
Board or a President or both, a Secretary, a Chief Financial Officer and such
other officers with such titles and duties as the Board of Directors may
determine. Any two or more offices may be held by the same person.
SECTION 36. APPOINTMENT. All officers shall be chosen and appointed
by the Board of Directors; provided, however, the Board of Directors may
empower the chief executive officer of the corporation to appoint such
officers, other than Chairman of the Board, President, Secretary or Chief
Financial Officer, as the business of the corporation may require. All
officers shall serve at the pleasure of the Board of Directors, subject to
the rights, if any, of an officer under a contract of employment.
SECTION 37. INABILITY TO ACT. In the case of absence or inability to
act of any officer of the corporation or of any person authorized by these
bylaws to act in such officer's place, the Board of Directors may from time
to time delegate the powers or duties of such officer to any other officer,
or any director or other person whom it may select, for such period of time
as the Board of Directors deems necessary.
SECTION 38. RESIGNATIONS. Any officer may resign at any time upon
written notice to the corporation, without prejudice to the rights, if any,
of the corporation under any contract to which such officer is a party. Such
resignation shall be effective upon its receipt by the Chairman of the Board,
the President, the Secretary or the Board of Directors, unless a different
time is specified in the notice for effectiveness of such resignation. The
acceptance of any such resignation shall not be necessary to make it
effective unless otherwise specified in such notice.
SECTION 39. REMOVAL. Any officer may be removed from office at any
time, with or without cause, but subject to the rights, if any, of such
officer under any contract of employment, by the Board of Directors or by any
committee to whom such power of removal has been duly delegated, or, with
regard to any officer who has been appointed by the chief executive officer
pursuant to Section 36 above, by the chief executive officer or any other
officer upon whom such power of removal may be conferred by the Board of
Directors.
-12-
<PAGE>
SECTION 40. VACANCIES. A vacancy occurring in any office for any
cause may be filled by the Board of Directors, in the manner prescribed by
this Article of the bylaws for initial appointment to such office.
SECTION 41. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there be such an officer, shall, if present, preside at all meetings of the
Board of Directors and shall exercise and perform such other powers and
duties as may be assigned from time to time by the Board of Directors or
prescribed by these bylaws. If no President is appointed, the Chairman of the
Board is the general manager and chief executive officer of the corporation,
and shall exercise all powers of the President described in Section 42 below.
SECTION 42. PRESIDENT. Subject to such powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the general manager and chief
executive officer of the corporation and shall have general supervision,
direction, and control over the business and affairs of the corporation,
subject to the control of the Board of Directors. The President may sign and
execute, in the name of the corporation, any instrument authorized by the
Board of Directors, except when the signing and execution thereof shall have
been expressly delegated by the Board of Directors or by these bylaws to some
other officer or agent of the corporation. The President shall have all the
general powers and duties of management usually vested in the president of a
corporation, and shall have such other powers and duties as may be prescribed
from time to time by the Board of Directors or these bylaws. The President
shall have discretion to prescribe the duties of other officers and employees
of the corporation in a manner not inconsistent with the provisions of these
bylaws and the directions of the Board of Directors.
SECTION 43. VICE PRESIDENTS. In the absence or disability of the
President, in the event of a vacancy in the office of President, or in the
event such officer refuses to act, the Vice President 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 on, the President. If at any such time
the corporation has more than one vice president, the duties and powers of
the President shall pass to each vice president in order of such vice
president's rank as fixed by the Board of Directors or, if the vice
presidents are not so ranked, to the vice president designated by the Board
of Directors. The vice presidents shall have such other powers and perform
such other duties as may be prescribed for them from time to time by the
Board of Directors or pursuant to Sections 35 and 36 of these bylaws or
otherwise pursuant to these bylaws.
SECTION 44. SECRETARY. The Secretary shall:
(a) Keep, or cause to be kept, minutes of all meetings of
the corporation's shareholders, Board of Directors, and committees of the
Board of Directors, if any. Such minutes shall be kept in written form.
(b) Keep, or cause to be kept, at the principal executive
office of the corporation, or at the office of its transfer agent or
registrar, if any, a record of the corporation's shareholders, showing the
names and addresses of all shareholders, and the number and classes of shares
held by
-13-
<PAGE>
each. Such records shall be kept in written form or any other form capable of
being converted into written form.
(c) Keep, or cause to be kept, at the principal executive
office of the corporation, or if the principal executive office is not in
California, at its principal business office in California, an original or
copy of these bylaws, as amended.
(d) Give, or cause to be given, notice of all meetings of
shareholders, directors and committees of the Board of Directors, as required
by law or by these bylaws.
(e) Keep the seal of the corporation, if any, in safe
custody.
(f) Exercise such powers and perform such duties as are
usually vested in the office of secretary of a corporation, and exercise such
other powers and perform such other duties as may be prescribed from time to
time by the Board of Directors or these bylaws.
If any assistant secretaries are appointed, the assistant secretary,
or one of the assistant secretaries in the order of their rank as fixed by
the Board of Directors or, if they are not so ranked, the assistant secretary
designated by the Board of Directors, in the absence or disability of the
Secretary or in the event of such officer's refusal to act or if a vacancy
exists in the office of Secretary, shall perform the duties and exercise the
powers of the Secretary and discharge such duties as may be assigned from
time to time pursuant to these bylaws or by the Board of Directors.
SECTION 45. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall:
(a) Be responsible for all functions and duties of the
treasurer of the corporation.
(b) Keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of account for the corporation.
(c) Receive or be responsible for receipt of all monies due
and payable to the corporation from any source whatsoever; have charge and
custody of, and be responsible for, all monies and other valuables of the
corporation and be responsible for deposit of all such monies in the name and
to the credit of the corporation with such depositaries as may be designated
by the Board of Directors or a duly appointed and authorized committee of the
Board of Directors.
(d) Disburse or be responsible for the disbursement of the
funds of the corporation as may be ordered by the Board of Directors or a
duly appointed and authorized committee of the Board of Directors.
(e) Render to the chief executive officer and the Board of
Directors a statement of the financial condition of the corporation if called
upon to do so.
-14-
<PAGE>
(f) Exercise such powers and perform such duties as are
usually vested in the office of chief financial officer of a corporation, and
exercise such other powers and perform such other duties as may be prescribed
by the Board of Directors or these bylaws.
If any assistant financial officer is appointed, the assistant
financial officer, or one of the assistant financial officers, if there are
more than one, in the order of their rank as fixed by the Board of Directors
or, if they are not so ranked, the assistant financial officer designated by
the Board of Directors, shall, in the absence or disability of the Chief
Financial Officer or in the event of such officer's refusal to act, perform
the duties and exercise the powers of the Chief Financial Officer, and shall
have such powers and discharge such duties as may be assigned from time to
time pursuant to these bylaws or by the Board of Directors.
SECTION 46. COMPENSATION. The compensation of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such compensation by reason of the fact that such
officer is also a director of the corporation.
ARTICLE VI - CONTRACTS, LOANS, BANK ACCOUNTS, CHECKS AND DRAFTS
SECTION 47. EXECUTION OF CONTRACTS AND OTHER INSTRUMENTS. Except as
these bylaws may otherwise provide, the Board of Directors or its duly
appointed and authorized committee may authorize any officer or officers,
agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. Except as so
authorized or otherwise expressly provided in these bylaws, no officer,
agent, or employee shall have any power or authority to bind the corporation
by any contract or engagement or to pledge its credit or to render it liable
for any purpose or in any amount.
SECTION 48. LOANS. No loans shall be contracted on behalf of the
corporation and no negotiable paper shall be issued in its name, unless and
except as authorized by the Board of Directors or its duly appointed and
authorized committee. When so authorized by the Board of Directors or such
committee, any officer or agent of the corporation may effect loans and
advances at any time for the corporation from any bank, trust company, or
other institution, or from any firm, corporation or individual, and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the corporation and, when authorized as
aforesaid, may mortgage, pledge, hypothecate or transfer any and all stocks,
securities and other property, real or personal, at any time held by the
corporation, and to that end endorse, assign and deliver the same as security
for the payment of any and all loans, advances, indebtedness, and liabilities
of the corporation. Such authorization may be general or confined to specific
instances.
SECTION 49. BANK ACCOUNTS. The Board of Directors or its duly
appointed and authorized committee from time to time may authorize the
opening and keeping of general and/or special bank accounts with such banks,
trust companies, or other depositaries as may be selected by the Board of
Directors, its duly appointed and authorized committee or by any officer or
officers, agent or agents, of the corporation to whom such power may be
delegated from time to time by the Board of Directors. The Board of Directors
or its duly appointed and authorized committee may make such
-15-
<PAGE>
rules and regulations with respect to said bank accounts, not inconsistent
with the provisions of these bylaws, as are deemed advisable.
SECTION 50. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes, acceptances or other evidences of
indebtedness issued in the name of the corporation shall be signed by such
officer or officers, agent or agents, of the corporation, and in such manner,
as shall be determined from time to time by resolution of the Board of
Directors or its duly appointed and authorized committee. Endorsements for
deposit to the credit of the corporation in any of its duly authorized
depositaries may be made, without counter-signature, by the President or any
vice president or the Chief Financial Officer or any assistant financial
officer or by any other officer or agent of the corporation to whom the Board
of Directors or its duly appointed and authorized committee, by resolution,
shall have delegated such power or by hand-stamped impression in the name of
the corporation.
ARTICLE VII - CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 51. CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman or Vice Chairman of the Board or the President or
a Vice President and by the Chief Financial Officer or an assistant financial
officer or by the Secretary or an assistant secretary, certifying the number
of shares and the class or series of shares owned by the shareholder. Any or
all of the signatures on the certificate may be facsimile. 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.
In the event that the corporation shall issue any shares as only
partly paid, the certificate issued to represent such partly paid shares
shall have stated thereon the total consideration to be paid for such shares
and the amount paid thereon.
SECTION 52. TRANSFER ON THE BOOKS. Upon surrender to the Secretary
or transfer agent (if any) of the corporation of a certificate for shares of
the corporation duly endorsed, with reasonable assurance that the endorsement
is genuine and effective, or accompanied by proper evidence of succession,
assignment or authority to transfer and upon compliance with applicable
federal and state securities laws and if the corporation has no statutory
duty to inquire into adverse claims or has discharged any such duty and if
any applicable law relating to the collection of taxes has been complied
with, it shall be the duty of the corporation, by its Secretary or transfer
agent, to cancel the old certificate, to issue a new certificate to the
person entitled thereto and to record the transaction on the books of the
corporation.
SECTION 53. LOST, DESTROYED AND STOLEN CERTIFICATES. The holder of
any certificate for shares of the corporation alleged to have been lost,
destroyed or stolen shall notify the corporation by making a written
affidavit or affirmation of such fact. Upon receipt of said affidavit or
affirmation the Board of Directors, or its duly appointed and authorized
committee or any officer or officers authorized by the Board so to do, may
order the issuance of a new certificate for shares in
-16-
<PAGE>
the place of any certificate previously issued by the corporation and which
is alleged to have been lost, destroyed or stolen. However, the Board of
Directors or such authorized committee, officer or officers may require the
owner of the allegedly lost, destroyed or stolen certificate, or such owner's
legal representative, to give the corporation a bond or other adequate
security sufficient to indemnify the corporation and its transfer agent
and/or registrar, if any, against any claim that may be made against it or
them on account of such allegedly lost, destroyed or stolen certificate or
the replacement thereof. Said bond or other security shall be in such amount,
on such terms and conditions and, in the case of a bond, with such surety or
sureties as may be acceptable to the Board of Directors or to its duly
appointed and authorized committee or any officer or officers authorized by
the Board of Directors to determine the sufficiency thereof. The requirement
of a bond or other security may be waived in particular cases at the
discretion of the Board of Directors or its duly appointed and authorized
committee or any officer or officers authorized by the Board of Directors so
to do.
SECTION 54. ISSUANCE, TRANSFER AND REGISTRATION OF SHARES. The Board
of Directors may make such rules and regulations, not inconsistent with law
or with these bylaws, as it may deem advisable concerning the issuance,
transfer and registration of certificates for shares of the capital stock of
the corporation. The Board of Directors may appoint a transfer agent or
registrar of transfers, or both, and may require all certificates for shares
of the corporation to bear the signature of either or both.
ARTICLE VIII - INSPECTION OF CORPORATE RECORDS
SECTION 55. INSPECTION BY DIRECTORS. Every director shall have the
absolute right at any reasonable time to inspect and copy all books, records,
and documents of every kind of the corporation and any of its subsidiaries
and to inspect the physical properties of the corporation and any of its
subsidiaries. Such inspection may be made by the director in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
SECTION 56. INSPECTION BY SHAREHOLDERS.
(a) INSPECTION OF CORPORATE RECORDS.
(i) A shareholder or shareholders
holding at least five percent (5%) in the aggregate of the outstanding voting
shares of the corporation or who hold at least one percent of such voting
shares and have filed a Schedule 14B with the United States Securities and
Exchange Commission relating to the election of directors of the corporation
shall have an absolute right to do either or both of the following:
(A) Inspect and copy the record
of shareholders' names and addresses and shareholdings during usual business
hours upon five (5) business days' prior written demand upon the corporation;
or
(B) Obtain from the transfer
agent, if any, for the corporation,upon five business days' prior written
demand and upon the tender of its usual charges for such a list (the amount
of which charges shall be stated to the shareholder by the transfer agent
-17-
<PAGE>
upon request), a list of the shareholders' names and addresses who are
entitled to vote for the election of directors and their shareholdings, as of
the most recent record date for which it has been compiled or as of a date
specified by the shareholder subsequent to the date of demand.
(ii) The record of shareholders shall
also be open to inspection and copying by any shareholder or holder of a
voting trust certificate at any time during usual business hours upon written
demand on the corporation, for a purpose reasonably related to such holder's
interest as a shareholder or holder of a voting trust certificate.
(iii) The accounting books and
records and minutes of proceedings of the shareholders and the Board of
Directors and of any committees of the Board of Directors of the corporation
and of each of its subsidiaries shall be open to inspection, copying and
making extracts upon written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests
as a shareholder or as a holder of such voting trust certificate.
(iv) Any inspection, copying, and
making of extracts under this subsection (a) may be done in person or by
agent or attorney.
(b) INSPECTION OF BYLAWS. The original or a copy of these
bylaws shall be kept as provided in Section 44 of these bylaws and shall be
open to inspection by the shareholders at all reasonable times during office
hours. If the principal executive office of the corporation is not in
California, and the corporation has no principal business office in the state
of California, a current copy of these bylaws shall be furnished to any
shareholder upon written request.
SECTION 57. WRITTEN FORM. If any record subject to inspection
pursuant to Section 56 above is not maintained in written form, a request for
inspection is not complied with unless and until the corporation at its
expense makes such record available in written form.
ARTICLE IX - MISCELLANEOUS
SECTION 58. FISCAL YEAR. Unless otherwise fixed by resolution of the
Board of Directors, the fiscal year of the corporation shall end on the 31st
day of December in each calendar year.
SECTION 59. ANNUAL REPORT.
(a) Subject to the provisions of Section 59(b) below, the
Board of Directors shall cause an annual report to be sent to each
shareholder of the corporation in the manner provided in Section 9 of these
bylaws not later than one hundred twenty (120) days after the close of the
corporation's fiscal year. Such report shall include a balance sheet as of
the end of such fiscal year and an income statement and statement of changes
in financial position for such fiscal year, accompanied by any report thereon
of independent accountants or, if there is no such report, the certificate of
an authorized officer of the corporation that such statements were prepared
without audit from the books and records of the corporation. When there are
more than 100 shareholders of record of the corporation's shares, as
determined by Section 605 of the California Corporations
-18-
<PAGE>
Code, additional information as required by Section 1501(b) of the California
Corporations Code shall also be contained in such report, provided that if
the corporation has a class of securities registered under Section 12 of the
United States Securities Exchange Act of 1934, that Act shall take
precedence. Such report shall be sent to shareholders at least fifteen (15)
(or, if sent by third-class mail, thirty-five (35)) days prior to the next
annual meeting of shareholders after the end of the fiscal year to which it
relates.
(b) If and so long as there are fewer than 100 holders of
record of the corporation's shares, the requirement of sending of an annual
report to the shareholders of the corporation is hereby expressly waived.
SECTION 60. RECORD DATE. The Board of Directors may fix a time in
the future as a record date for the determination of the shareholders
entitled to notice of or to vote at any meeting 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 change, conversion or
exchange of shares or entitled to exercise any rights in respect of any other
lawful action. The record date so fixed shall not be more than sixty (60)
days nor less than ten (10) days prior to the date of the meeting nor more
than sixty (60) days prior to any other action or event for the purpose of
which it is fixed. If no record date is fixed, the provisions of Section 15
of these bylaws shall apply with respect to notice of meetings, votes, and
consents and 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 resolutions relating thereto, or the sixtieth (60th) day
prior to the date of such other action or event, whichever is later.
Only shareholders of record at the close of business on the record
date shall be entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
Articles of Incorporation, by agreement or by law.
SECTION 61. BYLAW AMENDMENTS. Except as otherwise provided by law or
Section 19 of these bylaws, these bylaws may be amended or repealed by the
Board of Directors or by the affirmative vote of a majority of the
outstanding shares entitled to vote, including, if applicable, the
affirmative vote of a majority of the outstanding shares of each class or
series entitled by law or the Articles of Incorporation to vote as a class or
series on the amendment or repeal or adoption of any bylaw or bylaws;
provided, however, after issuance of shares, a bylaw specifying or changing a
fixed number of directors or the maximum or minimum number or changing from a
fixed to a variable board or vice versa may only be adopted by approval of
the outstanding shares as provided herein.
SECTION 62. CONSTRUCTION AND DEFINITION. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions
contained in the California Corporations Code shall govern the construction
of these bylaws.
Without limiting the foregoing, "shall" is mandatory and "may" is
permissive.
-19-
<PAGE>
ARTICLE X - INDEMNIFICATION
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS.
(a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its directors and executive officers to the fullest extent not
prohibited by the California General Corporation Law; PROVIDED, HOWEVER that
the corporation may limit the extent of such indemnification by individual
contracts with its directors and executive officers; and, PROVIDED, FURTHER,
that the corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof)
initiated by such person or any proceeding by such person against the
corporation or its directors, officers, employees or other agents unless (i)
such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the board of directors of the corporation or
(iii) such indemnification is provided by the corporation, in its sole
discretion, pursuant to the powers vested in the corporation under the
California General Corporation Law.
(b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The
corporation shall have the power to indemnify its other officers, employees
and other agents as set forth in the California General Corporation Law.
(c) DETERMINATION BY THE CORPORATION. Promptly after
receipt of a request for indemnification hereunder (and in any event within
90 days thereof) a reasonable, good faith determination as to whether
indemnification of the director or executive officer is proper under the
circumstances because such director or executive officer has met the
applicable standard of care shall be made by:
(1) a majority vote of a quorum consisting of
directors who are not parties to such proceeding;
(2) if such quorum is not obtainable, by
independent legal counsel in a written opinion; or
(3) approval or ratification by the affirmative
vote of a majority of the shares of this corporation 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) or
by written consent of a majority of the outstanding shares entitled to vote;
where in each case the shares owned by the person to be indemnified shall not
be considered entitled to vote thereon.
(d) GOOD FAITH.
(1) For purposes of any determination under this
bylaw, a director or executive officer shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in the best interests of
the corporation and its shareholders, and, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe that his
conduct was unlawful, if his
-20-
<PAGE>
action is based on information, opinions, reports and statements, including
financial statements and other financial data, in each case prepared or
presented by:
(i) one or more officers or employees
of the corporation whom the director or executive officer believed to be
reliable and competent in the matters presented;
(ii) counsel, independent accountants
or other persons as to matters which the director or executive officer
believed to be within such person's professional competence; and
(iii) with respect to a director, a
committee of the Board upon which such director does not serve, as to matters
within such committee's designated authority, which committee the director
believes to merit confidence; so long as, in each case, the director or
executive officer acts without knowledge that would cause such reliance to be
unwarranted.
(2) The termination of any proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in the
best interests of the corporation and its shareholders or that he had
reasonable cause to believe that his conduct was unlawful.
(3) The provisions of this paragraph (d) shall not
be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth
by the California General Corporation Law.
(e) EXPENSES. The corporation shall advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by any director or executive officer in connection with
such proceeding upon receipt of an undertaking by or on behalf of such person
to repay said amounts if it shall be determined ultimately that such person
is not entitled to be indemnified under this bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant
to paragraph (f) of this bylaw, no advance shall be made by the corporation
if a determination is reasonably and promptly made by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties
to the proceeding (or, if no such quorum exists, by independent legal counsel
in a written opinion) that the facts known to the decision making party at
the time such determination is made demonstrate clearly and convincingly that
such person acted in bad faith or in a manner that such person did not
believe to be in the best interests of the corporation and its shareholders.
(f) ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to directors and
executive officers under this bylaw shall be deemed to be contractual rights
and be effective to the same extent and as if provided for in a contract
between the corporation and the director or executive officer. Any right to
indemnification or advances granted by this bylaw to a director or executive
officer shall be enforceable by or on behalf of the person holding such right
in the forum in which the proceeding is or was pending or, if
-21-
<PAGE>
such forum is not available or a determination is made that such forum is not
convenient, in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole or
in part, shall be entitled to be paid also the expense of prosecuting his
claim. The corporation shall be entitled to raise as a defense to any such
action that the claimant has not met the standards of conduct that make it
permissible under the California General Corporation Law for the corporation
to indemnify the claimant for the amount claimed. Neither the failure of the
corporation (including its board of directors, independent legal counsel or
its shareholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of conduct set forth
in the California General Corporation Law, nor an actual determination by the
corporation (including its board of directors, independent legal counsel or
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
(g) NON-EXCLUSIVITY OF RIGHTS. To the fullest extent
permitted by the corporation's Articles of Incorporation and the California
General Corporation Law, the rights conferred on any person by this bylaw
shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the Articles of
Incorporation, bylaws, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent permitted by the California General
Corporation Law and the corporation's Articles of Incorporation.
(h) SURVIVAL OF RIGHTS. The rights conferred on any person
by this bylaw shall continue as to a person who has ceased to be a director
or executive officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(i) INSURANCE. The corporation, upon approval by the board
of directors, may purchase insurance on behalf of any person required or
permitted to be indemnified pursuant to this bylaw.
(j) AMENDMENTS. Any repeal or modification of this bylaw
shall only be prospective and shall not affect the rights under this bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the corporation.
(k) EMPLOYEE BENEFIT PLANS. The corporation shall indemnify
the directors and officers of the corporation who serve at the request of the
corporation as trustees, investment managers or other fiduciaries of employee
benefit plans to the fullest extent permitted by the California General
Corporation Law.
(l) SAVING CLAUSE. If this bylaw or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the corporation shall nevertheless indemnify
-22-
<PAGE>
each director and executive officer to the fullest extent permitted by any
applicable portion of this bylaw that shall not have been invalidated, or by
any other applicable law.
(m) CERTAIN DEFINITIONS. For the purposes of this bylaw,
the following definitions shall apply:
(1) The term "proceeding" shall be broadly
construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement and appeal of any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative.
(2) The term "expenses" shall be broadly construed
and shall include, without limitation, court costs, attorneys' fees, witness
fees, fines, amounts paid in settlement or judgment and any other costs and
expenses of any nature or kind incurred in connection with any proceeding,
including expenses of establishing a right to indemnification under this
bylaw or any applicable law.
(3) The term the "corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this bylaw with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(4) References to a "director," "officer,"
"employee," or "agent" of the corporation shall include, without limitation,
situations where such person is or was serving at the request of the
corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
ARTICLE XI - RIGHT OF FIRST REFUSAL
SECTION 64. RIGHT OF FIRST REFUSAL. No shareholder shall sell,
assign, pledge, or in any manner transfer any of the shares of stock of the
corporation or any right or interest therein, whether voluntarily or by
operation of law, or by gift or otherwise, except by a transfer which meets
the requirements hereinafter set forth in this bylaw:
(a) If the shareholder desires to sell or otherwise
transfer any of his shares of stock, then the shareholder shall first give
written notice thereof to the corporation. The notice shall name the proposed
transferee and state the number of shares to be transferred, the proposed
consideration, and all other terms and conditions of the proposed transfer.
-23-
<PAGE>
(b) For thirty (30) days following receipt of such notice,
the corporation shall have the option to purchase all (but not less than all)
of the shares specified in the notice at the price and upon the terms set
forth in such notice; provided, however, that, with the consent of the
shareholder, the corporation shall have the option to purchase a lesser
portion of the shares specified in said notice at the price and upon the
terms set forth therein. In the event of a gift, property settlement or other
transfer in which the proposed transferee is not paying the full price for
the shares, and that is not otherwise exempted from the provisions of this
Section 64, the price shall be deemed to be the fair market value of the
stock at such time as determined in good faith by the Board of Directors. In
the event the corporation elects to purchase all of the shares or, with
consent of the shareholder, a lesser portion of the shares, it shall give
written notice to the transferring shareholder of its election and settlement
for said shares shall be made as provided below in paragraph (d).
(c) The corporation may assign its rights hereunder.
(d) In the event the corporation and/or its assignee(s)
elect to acquire any of the shares of the transferring shareholder as
specified in said transferring shareholder's notice, the Secretary of the
corporation shall so notify the transferring shareholder and settlement
thereof shall be made in cash within thirty (30) days after the Secretary of
the corporation receives said transferring shareholder's notice; provided
that if the terms of payment set forth in said transferring shareholder's
notice were other than cash against delivery, the corporation and/or its
assignee(s) shall pay for said shares on the same terms and conditions set
forth in said transferring shareholder's notice.
(e) In the event the corporation and/or its assignee(s) do
not elect to acquire all of the shares specified in the transferring
shareholder's notice, said transferring shareholder may, within the sixty-day
period following the expiration of the option rights granted to the
corporation and/or its assignee(s) herein, transfer the shares specified in
said transferring shareholder's notice which were not acquired by the
corporation and/or its assignee(s) as specified in said transferring
shareholder's notice. All shares so sold by said transferring shareholder
shall continue to be subject to the provisions of this bylaw in the same
manner as before said transfer.
(f) Anything to the contrary contained herein
notwithstanding, the following transactions shall be exempt from the
provisions of this bylaw:
(1) A shareholder's transfer of any or all shares
held either during such shareholder's lifetime or on death by will or
intestacy to such shareholder's immediate family or to any custodian or
trustee for the account of such shareholder or such shareholder's immediate
family. "Immediate family" as used herein shall mean spouse, lineal
descendant, father, mother, brother, or sister of the shareholder making such
transfer.
(2) A shareholder's bona fide pledge or mortgage
of any shares with a commercial lending institution, provided that any
subsequent transfer of said shares by said institution shall be conducted in
the manner set forth in this bylaw.
-24-
<PAGE>
(3) A shareholder's transfer of any or all of such
shareholder's shares to the corporation or to any other shareholder of the
corporation.
(4) A shareholder's transfer of any or all of such
shareholder's shares to a person who, at the time of such transfer, is an
officer or director of the corporation.
(5) A corporate shareholder's transfer of any or
all of its shares pursuant to and in accordance with the terms of any merger,
consolidation, reclassification of shares or capital reorganization of the
corporate shareholder, or pursuant to a sale of all or substantially all of
the stock or assets of a corporate shareholder.
(6) A corporate shareholder's transfer of any or
all of its shares to any or all of its shareholders.
(7) A transfer by a shareholder which is a limited
or general partnership to any or all of its partners or former partners.
In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this bylaw, and
there shall be no further transfer of such stock except in accord with this
bylaw.
(g) The provisions of this bylaw may be waived with respect
to any transfer either by the corporation, upon duly authorized action of its
Board of Directors, or by the shareholders, upon the express written consent
of the owners of a majority of the voting power of the corporation (excluding
the votes represented by those shares to be transferred by the transferring
shareholder). This bylaw may be amended or repealed either by a duly
authorized action of the Board of Directors or by the shareholders, upon the
express written consent of the owners of a majority of the voting power of
the corporation.
(h) Any sale or transfer, or purported sale or transfer, of
securities of the corporation shall be null and void unless the terms,
conditions, and provisions of this bylaw are strictly observed and followed.
(i) The foregoing right of first refusal shall terminate on
either of the following dates, whichever shall first occur:
(1) On December 8, 2003; or
(2) Upon the date securities of the corporation
are first offered to the public pursuant to a registration statement filed
with, and declared effective by, the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended.
(j) The certificates representing shares of stock of the
corporation shall bear on their face the following legend so long as the
foregoing right of first refusal remains in effect:
-25-
<PAGE>
"The shares represented by this certificate are subject to a
right of first refusal option in favor of the corporation and/or its
assignee(s), as provided in the bylaws of the corporation."
-26-
<PAGE>
AMENDMENT TO THE
BYLAWS
OF
CIPHEREGEN BIOSYSTEMS, INC.
Section 19 of Articles IV of the Bylaws of Ciphergen Biosystems, Inc.
was amended in its entirety on May 11, 1999 to read as follows:
SECTION 19. NUMBER OF DIRECTORS. The authorized number of directors
of the corporation shall be not less than a minimum of five (5) nor more than a
maximum of nine (9) (which maximum number in no case shall be greater than two
times said minimum, minus one) and the number of directors presently authorized
is nine (9). The exact number of directors shall be set within these limits from
time to time (a) by approval of the Board of Directors, or (b) by 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 a majority of the required quorum) or by the written consent of
shareholders pursuant to Section 13 hereinabove.