Attached files
| file | filename |
|---|---|
| 8-K - SONIC SOLUTIONS/CA/ | v198920_8k.htm |
| EX-99.2 - SONIC SOLUTIONS/CA/ | v198920_ex99-2.htm |
| EX-99.3 - SONIC SOLUTIONS/CA/ | v198920_ex99-3.htm |
| EX-10.1 - SONIC SOLUTIONS/CA/ | v198920_ex10-1.htm |
| EX-99.1 - SONIC SOLUTIONS/CA/ | v198920_ex99-1.htm |
Exhibit
3.1
RESTATED
BYLAWS
OF
SONIC
SOLUTIONS
SHAREHOLDERS
1. Annual
Meeting. Unless the Board of Directors or the President of the
corporation selects a different time or date, the annual meeting of shareholders
shall be held at 11:00 a.m. on the first Tuesday of the fifth calendar month
following the end of the corporation’s fiscal year if such day is not a legal
holiday, and, if a legal holiday, on the next succeeding business day not a
legal holiday.. The annual meeting shall be for the purpose of
electing a Board of Directors and transacting such other business as may
properly be brought before the meeting.
2. Special
Meeting. Special meetings of shareholders may be called at any
time by the Board of Directors, the Chairman of the Board, the President, or the
holders of shares entitled to cast not less than one-tenth of the votes at the
meeting.
3. Place.
(a) Meetings
of shareholders shall be held at the principal executive office of the
corporation or at any other place, within or without California designated by
the Board of Directors or the President, or, to the extent permitted by and in
accordance with Section 3(b), by electronic transmission by and to the
corporation (used throughout as those terms are defined in the California
Corporations Code (“CCC”)) or by electronic video screen communication, as
designated by the Board of Directors or the President.
(b) A
meeting of shareholders may be conducted, in whole or in part, by electronic
transmission by and to the corporation or by electronic video screen
communication (i) if the corporation implements measures to provide shareholders
(in person or by proxy) an opportunity to participate in the meeting and to vote
on matters submitted to the shareholders, including an opportunity to read or
hear the proceedings of the meeting concurrently with those proceedings, and
(ii) if any shareholder votes or takes other action at the meeting by means of
electronic transmission to the corporation or electronic video screen
communication, a record of that vote or action is maintained by the
corporation. If authorized by the Board of Directors in its sole
discretion, and subject to the statutory requirements of shareholder consent
then in effect and those guidelines and procedures as the Board of Directors may
adopt, shareholders not physically present in person or by proxy at a meeting of
shareholders may, by electronic transmission by and to the corporation or by
electronic video screen communication, participate in a meeting of shareholders,
be deemed present in person or by proxy, and vote at a meeting of shareholders
whether that meeting is to be held at a designated place or in whole or in part
by means of electronic transmission by and to the corporation or by electronic
video screen communication, in accordance with this Section 3(b). A
shareholder’s participation in a meeting of shareholders by electronic
communication by and to the corporation is predicated upon the consent of such
shareholder to electronic communication by the corporation, as required by the
CCC. Unless all of the shareholders have consented to the use of
electronic transmission by and to the corporation for the purposes of a
shareholders meeting (or to the use of such transmissions for such meetings
generally) a shareholders’ meeting shall include a physical location determined
in accordance with Section 3(a).
4. Notice.
(a) Annual and Special
Meetings. A written notice of each meeting of shareholders
shall be given not more than 60 days and, except as provided below, not less
than 10 (or, if sent by third-class mail, 30) days before the meeting to each
shareholder entitled to vote at the meeting. The notice shall state
the place (unless the meeting is to be conducted solely by electronic
transmission by and to the corporation), date, and hour of the meeting and, if
directors are to be elected at the meeting, the names of the nominees intended
to be presented by the Board of Directors for election. If the
meeting is to be conducted in whole or in part by means of electronic
communication by and to the corporation, the notice shall provide (i) the means
of electronic transmission by and to the corporation or electronic video screen
communication, if any, by which shareholders may participate in that meeting and
(ii) notice that, absent the valid consent of all of the shareholders of the
corporation for the utilization of electronic transmission by and to the
corporation, the meeting shall include a physical location. The
notice shall also state (i) the general nature of a proposal, if any, to take
action with respect to approval of (A) a contract or other transaction with an
interested director, (B) an amendment of the Articles of Incorporation, (C) a
reorganization of the corporation as defined in Section 181 of the CCC, (D) a
voluntary dissolution of the corporation, or (E) a distribution in dissolution
other than in accordance with the rights of outstanding preferred shares, if
any; (ii) in the case of an annual meeting, those matters that the Board of Directors intends to
present for action by the shareholders, and (iii) in the case of a special
meeting, the general nature of the business to be transacted and that no other
business may be transacted. Notice shall be delivered personally, by
electronic transmission by the corporation, by mail, or other means addressed to
each such shareholder at the address of the shareholder
appearing on the books of the corporation, the
address given by the shareholder to the corporation for the purpose of notice, or as otherwise
provided by law. Notice given by electronic transmission by the
corporation shall be valid only if such notice complies with the procedures set
forth in such definition in the CCC and as long as neither of the following has
occurred: (i) the corporation is unable to deliver two consecutive
notices to the shareholder by that means; or (ii) the inability to so deliver
the notices to the shareholder becomes known to the secretary, any assistant
secretary, the transfer agent, or other person responsible for the giving of the
notice. If the circumstances described in either clauses (i) or (ii)
above occurs with respect to a shareholder, the corporation shall again obtain
the consent of such shareholder as required by the definition of “electronic
transmission by the corporation” set forth in the CCC prior to utilizing
electronic transmission by the corporation to provide notices of shareholders’
meetings to such shareholder. Upon written request to the Chairman of
the Board, the President, the Secretary, or any Vice President of the
corporation by any person (other than the Board of Directors) entitled to call a
special meeting of shareholders, the person receiving such request 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 calling the meeting not less than 35 nor
more than 60 days after receipt of the request.
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(b) Adjourned
Meetings. When any shareholders’ meeting, either annual or
special, is adjourned for more than 45 days, or if after adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given as in the case of an original meeting. Except as
provided above, it shall not be necessary to give any notice of the time and
place of the adjourned meeting (or the means of electronic transmission by and
to the corporation or electronic video screen communication, if any, by which
the shareholders may participate), or of the business to be transacted thereat,
other than by announcement of the time and place (or the means of electronic
transmission by and to the corporation or electronic video screen communication,
if any, by which the shareholders may participate) thereof at the meeting at
which such adjournment is taken.
5. Shareholder
Proposals.
(a) At
an annual meeting of shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at the direction
of the Board of Directors or otherwise properly brought before the meeting by a
shareholder.
(b) In
addition to any other applicable requirements for business to be properly
brought before an annual meeting by a shareholder, whether or not the
shareholder is seeking to have a proposal included in the corporation’s proxy
statement or information statement under any applicable rule of the Securities
and Exchange Commission, including, but not limited to, Regulation 14A or
Regulation 14C under the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”), the shareholder must have given timely notice thereof in
writing to the Secretary of the corporation. If the shareholder is
not seeking inclusion in the corporation’s proxy statement or information
statement of a proposal for a director nomination or other business that is
proposed to be voted on at an annual meeting, timely notice shall consist of a
shareholder’s notice delivered to or mailed and received at the principal
executive offices of the corporation, not less than 90 days nor more than 150
days prior to the one year anniversary of the date on which the corporation
first mailed or sent by electronic transmission its proxy materials for the
previous year’s annual meeting of shareholders (or a reasonable time before the
date on which the corporation mails or sends by electronic transmission its
proxy materials for the current year if, during the prior year, the corporation
did not hold an annual meeting or if the date of the annual meeting was changed
by more than 30 days from the date of the prior year’s annual
meeting). In the case of a shareholder seeking to have a proposal
included in the corporation’s proxy statement or information statement, timely
notice consists of a shareholder’s notice delivered to or mailed and received at
the principal executive offices of the corporation not less than 120 days nor
more than 180 days prior to the one year anniversary of the date on which the
corporation first mailed or sent by electronic transmission its proxy materials
for the previous year’s annual meeting of shareholders (or a reasonable time
before the date on which the corporation mails or sends by electronic
transmission its proxy materials for the current year if, during the prior year,
the corporation did not hold an annual meeting or if the date of the annual
meeting was changed by more than 30 days from the date of the prior year’s
annual meeting). A shareholder’s notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the shareholder proposing such
business, (iii) the class and number of shares of the corporation that are
beneficially owned by the shareholder, (iv) any material interest of the
shareholder in such business, (v) as to the shareholder giving the notice and
any Shareholder Associated Person (as defined below) or any member of such
shareholder’s immediate family sharing the same household, whether and the
extent to which any hedging or other transaction or series of transactions has
been entered into by or on behalf of, or any other agreement, arrangement or
understanding (including, but not limited to, any short position or any
borrowing or lending of shares of stock) has been made, the effect or intent of
which is to mitigate loss or increase profit to or manage the risk or benefit of
stock price changes for, or to increase or decrease the voting power of, such
shareholder, such Shareholder Associated Person or family member with respect to
any share of stock of the corporation (each, a “Relevant Hedge Transaction”),
and (vi) as to the shareholder giving the notice and any Shareholder Associated
Person or any member of such shareholder’s immediate family sharing the same
household, to the extent not set forth pursuant to the immediately preceding
clause, (a) whether and the extent to which such shareholder, Shareholder
Associated Person or family member has direct or indirect beneficial ownership
of 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, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the corporation
or otherwise, or 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 (a “Derivative Instrument”), (b) any rights to dividends on the
shares of the corporation owned beneficially by such shareholder, Shareholder
Associated Person or family member that are separated or separable from the
underlying shares of the corporation, (c) any proportionate interest in shares
of the corporation or Derivative Instruments held, directly or indirectly, by a
general or limited partnership in which such shareholder, Shareholder Associated
Person or family member is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner and (d) any
performance-related fees (other than an asset-based fee) that such shareholder,
Shareholder Associated Person or family member is entitled to based on any
increase or decrease in the value of shares of the corporation or Derivative
Instruments, if any, as of the date of such notice (which information shall be
supplemented by such shareholder and beneficial owner, if any, not later than 10
days after the record date for the meeting to disclose such ownership as of the
record date).
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(c) With
respect to shareholder proposals relating to director nominations, in addition
to the information above, the shareholder’s notice shall set forth as to each
person whom the shareholder proposes to nominate for election or re-election as
a director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of the corporation that are beneficially owned by the
person, and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to Regulation 14A under the Exchange Act.
(d) For
purposes of this Section 5, “Shareholder Associated Person” of any shareholder
shall mean (i) any person controlling or controlled by, directly or indirectly,
or acting in concert with, such shareholder, (ii) any beneficial owner of shares
of stock of the corporation owned of record or beneficially by such shareholder
and (iii) any person controlling, controlled by or under common control with
such Shareholder Associated Person
4
6. Record
Date. The Board of Directors may fix in advance a record date
for the determination of the shareholders entitled to notice of any meeting, to
vote, to receive any dividend or other distribution or allotment of rights, or
to exercise any rights. The record date shall be not more than 60 nor
less than 10 days prior to the date of the meeting nor more than 60 days prior
to such other action. If no record date is fixed, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, the close of
business on the business day next preceding the day on which the meeting is
held. The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors has been taken, shall be the day on which the first
written consent is given. Except as otherwise provided by law, only
shareholders at the close of business on the record date are entitled to notice
and to vote, to receive the dividend, distribution or allotment of rights, or to
exercise rights, as the case may be, notwithstanding any transfer of shares on
the books of the corporation occurring after the record date. Except
as otherwise provided by law, the corporation shall be entitled to treat the
holder of record of any shares as the holder in fact of such shares and shall
not be bound to recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not the corporation shall
have express or other notice of such claim or interest. 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. The Board of Directors shall fix a new record date
if the adjourned meeting takes place more than 45 days after the date set for
the original meeting. 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.
7. Meeting Without Regular Call
and Notice. The transactions of any meeting of shareholders,
however called and noticed and wherever held, are as valid as though had at a
meeting duly held after regular call and notice if a quorum is present in person
or by proxy and if, either before or after the meeting, each of the persons
entitled to vote who is not present at the meeting in person or by proxy signs a
written waiver of notice, a consent to the holding of the meeting, or an
approval of the minutes of the meeting. All such waivers, consents
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a shareholder at a
shareholders’ meeting shall constitute a waiver of notice of such meeting
unless, at the beginning of the meeting, the shareholder objects to the
transaction of any business because the meeting was not properly called or
convened or, with respect to the consideration of a matter required to be
included in the notice for the meeting that was not so included, the shareholder
expressly objects to such consideration at the meeting. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of shareholders need be specified in any written waiver of notice, consent to
the holding of the meeting or approval of the minutes thereof, unless otherwise
provided in the Articles of Incorporation or these Bylaws, or unless the meeting
involves the election of directors.
5
8. Quorum and Required
Vote. A majority of the shares entitled to vote, represented
in person or by proxy, constitutes a quorum for the transaction of
business. No business may be transacted at a meeting in the absence
of a quorum other than the adjournment of the meeting, except that if a quorum
is present at the commencement of the meeting, business may be transacted until
the meeting is adjourned even though the withdrawal of shareholders results in
less than a quorum. If a quorum is present at a meeting, the
affirmative vote of the holders of shares having a majority of the voting power
of the shares represented and voting at the meeting (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 larger number or voting by
classes is required by law, the Articles of Incorporation, or these
Bylaws. If a quorum is present at the commencement of a meeting but
the withdrawal of shareholders results in less than a quorum, the affirmative
vote of a majority of shares required to constitute a quorum shall be the act of
the shareholders unless the vote of a larger number or voting by classes is
required by law, the Articles of Incorporation, or these Bylaws. Any
meeting of shareholders, whether or not a quorum is present, may be adjourned by
the vote of a majority of the shares represented at the meeting.
9. Proxies. Every
person entitled to vote shares (including voting by written consent) may
authorize another person or other persons to act by proxy with respect to such
shares. “Proxy” means a written authorization signed or an electronic
transmission authorized by a shareholder or the shareholder’s attorney-in-fact
giving another person or persons power to vote with respect to the shares of
such shareholder. “Signed” for the purpose of this Section 9 means
the placing of the shareholder’s name or other authorization on the proxy
(whether by manual signature, typewriting, telegraphic, or electronic
transmission or otherwise) by the shareholder or the shareholder’s
attorney-in-fact. A proxy may be transmitted by an oral telephone
transmission if it is submitted with information from which it may be determined
that the proxy was authorized by the shareholder, or his or her
attorney-in-fact. Any proxy duly executed is not revoked and
continues in full force and effect until (i) a written instrument revoking it is
filed with the Secretary of the corporation prior to the vote pursuant thereto,
(ii) a subsequent proxy executed by the person executing the prior proxy is
presented to the meeting, (iii) the person executing the proxy attends the
meeting and votes in person, or (iv) written notice of the death or incapacity
of the maker of such proxy is received by the corporation before the vote
pursuant thereto is counted; provided that no such proxy
shall be valid after the expiration of eleven (11) months from the date of its
execution, unless otherwise provided in the proxy. Notwithstanding
the foregoing sentence, a proxy that states that it is irrevocable, is
irrevocable for the period specified therein to the extent permitted by Section
705(e) and (f) of the CCC. The dates contained on the forms of proxy
presumptively determine the order of execution, regardless of the postmark dates
on the envelopes in which they are mailed.
10. Voting.
(a) Except
as may be otherwise provided in the Articles of Incorporation, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote of shareholders. Any holders of shares entitled
to vote on any matter may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal,
other than elections to office, but, if the shareholder fails to specify the
number of shares such shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder’s approving vote is with respect to
all shares such shareholder is entitled to vote.
6
(b) Subject
to the provisions of Sections 702 through 704 of the CCC (relating to voting of
shares held by a fiduciary, receiver, pledgee, or minor, in the name of a
corporation, or in joint ownership), persons in whose names shares entitled to
vote stand on the stock records of the corporation at the close of business on
the record date shall be entitled to vote at the meeting of
shareholders. Such vote may be viva voce or by ballot; provided, however, that all
elections for directors must be by ballot upon demand made by a shareholder at
any election and before the voting begins.
(c) The
candidates for directors receiving the highest number of affirmative votes of
shares entitled to be voted for them, up to the number of directors to be
elected by such shares, shall be elected, and votes against a director and votes
withheld shall have no legal effect.
11. Election
Inspectors. One or three election inspectors may be appointed
by the Board of Directors in advance of a meeting of shareholders or at the
meeting by the chairman of the meeting. If not previously chosen, one
or three inspectors shall be appointed by the chairman of the meeting if a
shareholder or proxyholder so requests. When inspectors are appointed
at the request of a shareholder or proxyholder, the majority of shares
represented in person or by proxy shall determine whether one or three
inspectors shall be chosen. The election inspectors shall determine
all questions concerning the existence of a quorum and the right to vote, shall
tabulate and determine the results of voting, and shall do all other acts
necessary or helpful to the expeditious and impartial conduct of the
vote. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors
of election is prima
facie evidence of the facts stated therein.
12. Action Without
Meeting. Except as provided below or by the Articles of
Incorporation, any action that may be taken at a meeting of shareholders may be
taken without a meeting and without prior notice if a consent in writing setting
forth the action so taken is signed by the holders of outstanding shares having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote on such
action were present and voted. Any shareholder giving a written
consent, or the shareholder’s proxyholders, or a transferee of the shares or a
personal representative of the shareholder or their respective proxyholders, may
revoke the consent personally or by proxy by a writing received by the
corporation prior to the time that written consents of the number of shares
required to authorize the proposed action have been filed with the Secretary of
the corporation, but may not do so thereafter. Such revocation is
effective upon its receipt by the Secretary of the
corporation. Unless the consents of all shareholders entitled to vote
have been solicited in writing, the corporation shall give to those shareholders
entitled to vote who have not consented in writing (i) a written notice at least
10 days before consummation of an action authorized by shareholders without a
meeting covered by the following sections of the CCC: 310 (certain transactions
involving interested directors), 317 (indemnification of corporate agents), 1152
(conversions), 1201 (reorganizations) and 2007 (certain distributions of assets)
and (ii) a written notice promptly after the taking of any other action approved
by shareholders without a meeting.
7
13. Reports.
(a) The
Board of Directors of the corporation shall cause an annual report to be sent to
the shareholders not later than 120 days after the close of the fiscal year, and
at least 15 days (or, if sent by third-class mail, 35 days) prior to the annual
meeting of shareholders to be held during the next fiscal year. If
approved by the Board of Directors, the report and any accompanying material may
be sent by electronic transmission by the corporation. This report
shall contain a balance sheet as of the end of that fiscal year and an income
statement and statement of cashflows for that 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 the statements were
prepared without audit from the books and records of the
corporation. This report shall also contain such other matters as
required by Section 1501(b) of the CCC, unless the corporation is subject to the
reporting requirements of Section 13 of the Exchange Act, and is not exempted
therefrom under Section 12(g)(2) thereof. As long as the corporation
has less than 100 holders of record of its shares (determined as provided in
Section 605 of the CCC), the foregoing requirement of an annual report is hereby
waived.
(b) If
no annual report for the last fiscal year has been sent to shareholders, the
corporation shall, upon the written request of any shareholder made more than
120 days after the close of such fiscal year, deliver (including by electronic
transmission if such transmission is permitted to such shareholder pursuant to
such definition) by the corporation or mail to the person making the request
within 30 days thereafter the financial statements for such year as required by
Section 1501(a) of the CCC. A shareholder or shareholders holding at
least five percent of the outstanding shares of any class of the corporation may
make a written request to the corporation for an income statement of the
corporation for the three-month, six-month or nine-month period of the current
fiscal year ended more than 30 days prior to the date of the request and a
balance sheet of the corporation as of the end of such period and, in addition,
if no annual report for the last fiscal year has been sent to shareholders, the
financial statements for the last fiscal year as required by Section 1501(a) of
the CCC. The statements shall be delivered (including by electronic
transmission by the corporation if such transmission is permitted to such
shareholder pursuant to such definition) or mailed to the person making the
request within 30 days thereafter. A copy of any such statements
shall be kept on file in the principal executive office of the corporation for
12 months, and they shall be exhibited at all reasonable times to any
shareholder demanding an examination of the statements, or a copy shall be
mailed to the shareholder.
(c) The
quarterly income statements and balance sheets referred to in this section shall
be accompanied by the report thereon, if any, of any independent accountants
engaged by the corporation or the certificate of an authorized officer of the
corporation that the financial statements were prepared without audit from the
books and records of the corporation.
14. Lost Stock
Certificates. No new certificate for shares shall be issued in
lieu of an old certificate unless the latter is surrendered and canceled at the
same time; provided,
however, that a new certificate will be issued without the surrender and
cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) the request for the issuance of
the new certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft; (3) the request for
the issuance of a new certificate is made prior to the receipt of notice by the
corporation that the old certificate has been acquired by a bona fide purchaser;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the corporation; and (5) the owner satisfies
any other reasonable requirement imposed by the corporation. In the
event of the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates, shall be
governed by the provisions of Sections 8104 and 8405 of the California
Commercial Code.
8
BOARD OF
DIRECTORS
15. Number. The
authorized number of directors of this corporation shall not be less than five
nor more than nine. The exact number of directors shall be five until
changed within the limits specified above, by the Board of Directors, by a bylaw
amending this Section 15 duly adopted by the vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a quorum is
present, or by the written consent of the holders of a majority of the
outstanding shares entitled to vote. The indefinite number of
directors may be changed or a definite number fixed without provision for an
indefinite number by an amendment to these Bylaws duly adopted by the vote or
written consent of holders of a majority of the outstanding shares entitled to
vote. An amendment reducing the number of directors to a number less
than five cannot be adopted if the votes cast against its adoption at a meeting,
or the shares not consenting in the case of action by written consent, are equal
to more than 16-2/3% of the outstanding shares entitled to vote.
16. Powers. Subject
to the limitations imposed by law or contained in the Articles of Incorporation,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the ultimate direction of the Board of
Directors.
17. Election, Term of Office,
and Vacancies. At each annual meeting of shareholders,
directors shall be elected to hold office until the next annual
meeting. If any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose. Each director, including a
director elected to fill a vacancy, shall hold office until the expiration of
the term for which the director was elected and until a successor has been
elected. The Board of Directors may declare vacant the office of any
director who has been declared to be of unsound mind by court order or convicted
of a felony. Vacancies on the Board of Directors not caused by
removal may be filled by a sole remaining director, by a majority of the
directors then in office or by the unanimous written consent of the directors
then in office, in all cases regardless of whether the directors then in office
constitute a quorum. The shareholders may elect a director at any
time to fill any vacancy not filled, or that cannot be filled, by the Board of
Directors. A vacancy in the Board of Directors created by the removal
of a director may be filled only by the vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a quorum is
present, or by the written consent of all of the holders of the outstanding
shares. Any election by written consent other than to fill a vacancy created by
removal shall require the consent of holders of a majority of the outstanding
shares entitled to vote. No reduction in the authorized number of
directors shall have the effect of removing any director prior to the expiration
of his term of office.
18. Removal. Except
as provided below, any or all of the directors may be removed without cause if
such removal is approved by the affirmative vote or written consent of a
majority of the outstanding shares entitled to vote. Unless the
entire Board of Directors is so removed, no director may be removed if (i) the
votes cast against removal, or not consenting in writing to such removal in the
case of written consent, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes was cast or,
if such action is taken by written consent, all shares entitled to vote were
voted and (ii) the entire number of directors authorized at the time of the
director’s most recent election were then being elected.
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19. Resignation. Any
director may resign by giving notice to the Chairman of the Board, the
President, the Secretary or the Board of Directors. The resignation
of a director shall be effective when given unless the director specifies a
later time. The resignation shall be effective regardless of whether
it is accepted by the corporation.
20. Compensation. If
the Board of Directors so resolves,
the directors, including the Chairman of the Board, shall receive compensation
and expenses of attendance for meetings of the Board of Directors and of
committees of the Board. Nothing herein shall preclude any director
from serving the corporation in another capacity and receiving compensation for
such service.
21. 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 or
more directors, to serve at the pleasure of the Board. The Board may
designate one or more directors as alternate members of a committee who may
replace any absent member at any meeting of the committee. To the
extent permitted by the resolution of the Board of Directors, a committee may
exercise all of the authority of the Board except:
(a) the
approval of any action that, under the CCC, must be approved by the outstanding
shares or approved by the shareholders;
(b) the
filling of vacancies on the Board or any committee;
(c) the
fixing of compensation of the directors for serving on the Board or any
committee;
(d) the
adoption, amendment or repeal of Bylaws;
(e) the
amendment or repeal of any resolution of the Board that by its express terms is
not so amendable or repealable;
(f) a
distribution to the shareholders of the corporation, except at a rate, in a
periodic amount, or within a price range determined by the Board;
and
(g) the
appointment of any other committees of the Board or the members of such
committees.
22. Inspection of Records and
Properties. Each director may inspect all books, records,
documents, and physical properties of the corporation and its subsidiaries at
any reasonable time. Inspections may be conducted either by the
director or the director’s agent or attorney. The right of inspection
includes the right to copy and make extracts.
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23. Time and Place
of Meetings and Telephone
Meetings. Unless the Board of Directors determines otherwise,
the Board shall hold a regular meeting during each quarter of the corporation’s
fiscal year. One such meeting shall take place immediately following
the annual meeting of shareholders. Notice of such meeting is hereby
dispensed with. All meetings of directors shall be held at the
principal executive office of the corporation or at such other place, within or
without California, as shall be designated in the notice of the meeting or in a
resolution of the Board of Directors. Directors may participate in a
meeting through use of conference telephone, electronic video screen
communication, electronic transmission by and to the corporation, or similar
communications equipment, provided that all members so participating can
communicate with all of the other members concurrently and each member is
provided the means of participating in all matters before the Board of
Directors, including, without limitation, the capacity to propose, or to
interpose an objection to, a specific action to be taken by the
corporation.
24. Call. Meetings
of the Board of Directors, whether regular or special, may be called by the
Chairman of the Board, the President, the Secretary, any Vice President, or any
two directors.
25. Notice.
(a) Regular
meetings of the Board of Directors may be held without notice if the times and
places of such meetings have been fixed by the Board. Notice of the time and
place of special meetings shall be delivered personally to each director or
communicated to each director by telephone, telegraph, facsimile, electronic
transmission by the corporation, or mail, charges prepaid, addressed to the
director at the director’s address as it is shown upon the records of the
corporation or, if it is not so shown on such records or is not readily
ascertainable, at the place at which the meetings of the directors are regularly
held. In case such notice is mailed, it shall be deposited in the
United States mail at least 4 days prior to the time of the holding of the
meeting. In case such notice is delivered personally or by telephone,
telegraph, facsimile, electronic mail message or other electronic transmission
by the corporation, it shall be so delivered at least 48 hours prior to the time
of the holding of the meeting. Any such transmission of notice, as
above provided, shall be due, legal and personal notice to such
director. As used herein, notice by telephone shall be deemed to
include a voice messaging system or other system or technology designed to
record and communicate messages, or wireless, to the recipient, including the
recipient’s designated voice mailbox or address on such a system.
(b) Notice
of a meeting need not be given to any director who provides a waiver of notice
or a consent to holding the meeting or an approval of the minutes thereof in
writing, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals shall be filed
with the corporate records or made a part of the minutes of the
meetings.
26. Meeting Without Regular Call
and Notice. The actions taken at any meeting of the Board of
Directors, however called and noticed or wherever held, are as valid as though
taken at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to the holding of the
meeting, or an approval of the minutes of the meeting. For such
purposes, a director shall not be considered present at a meeting if, although
in attendance at the meeting, the director protests the lack of notice prior to
the meeting or at its commencement.
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27. Action Without
Meeting. Any action required or permitted to be taken by the
Board of Directors may be taken without a meeting if all of the members of the
Board individually or collectively consent in writing to such
action. Such action, consent or consents shall be filed with the
minutes of the proceedings of the Board of Directors, and the action or actions
authorized therein shall have the same force and effect as a unanimous vote of
such directors.
28. Quorum and Required
Vote. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, provided that the number
constituting a quorum shall not be less than the greater of one-third of the
authorized number of directors or two. 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, unless a greater number, or the same
number after disqualifying one or more directors from voting, is required by
law, by the Articles of Incorporation, or by these Bylaws. 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. A
majority of the directors present at a meeting, whether or not a quorum is
present, may adjourn the meeting to another time and place.
29. Committee
Meetings. The principles set forth in Sections 23 through 28
of these Bylaws shall apply to committees of the Board of Directors and to
actions taken by such committees.
30. Indemnification of Directors
and Officers.
(a) Indemnification of Directors
and Officers. Each person who was or is a party or is threatened to be
made a party to or is involved (as a party, witness, or otherwise), in any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereafter a “Proceeding”), by reason
of the fact that such person, or another person of whom such person is the legal
representative, is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director or officer of another
foreign or domestic corporation, partnership, joint venture, trust, or other
enterprise, or was a director or officer of a foreign or domestic corporation
that was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation, including service with respect
to employee benefit plans, whether the basis of the Proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving as a director or officer (for the purposes of this section 30,
“Officers” or “Directors”), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by statutory and decisional law, as
the same exists or may hereafter be interpreted or amended (but, in the case of
any such amendment or interpretation, only to the extent that such amendment or
interpretation permits the corporation to provide broader indemnification rights
than were permitted prior thereto) against all expenses, liability, and loss
(including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties,
amounts paid or to be paid in settlement, any interest, assessments, or other
charges imposed thereon, and any federal, state, local, or foreign taxes imposed
on any director or officer as a result of the actual or deemed receipt of any
payments under this Section 30) reasonably incurred or suffered by such person
in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereafter “Expenses”). The right to indemnification
conferred in this Article shall be a contract right. It is the
corporation’s intention that these Bylaws provide indemnification of officers
and directors in excess of that expressly permitted by Section 317 of the CCC,
as authorized by the corporation’s Articles of
Incorporation.
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(b) Indemnification of
Others: The corporation shall have the power to indemnify and hold
harmless each person who was or is a party or is threatened to be made a party
to or is involved (as a party, witness, or otherwise), in any Proceeding, by
reason of the fact that such person, or another person of whom such person is
the legal representative, is or was a an employee or agent of the corporation or
is or was serving at the request of the corporation as an employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, or was an employee or agent of a foreign or domestic
corporation that was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation, including service
with respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as an employee or agent or in any other
capacity while serving as an employee or agent (for the purposes of this section
30, “Employees” or “Agents”). Such persons may be indemnified and held harmless
by the corporation to the fullest extent authorized by statutory and decisional
law, as the same exists or may hereafter be interpreted or amended (but, in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all
Expenses. It is the corporation’s intention that these Bylaws permit
indemnification of employees and agents in excess of that expressly permitted by
Section 317 of the CCC, as authorized by the corporation’s Articles of
Incorporation.
(c) Actions by the
Corporation. Notwithstanding the foregoing, the corporation shall not be
required to advance such Expenses to any Director or Officer who is party to a
Proceeding brought by the corporation and approved by a majority of the Board of
Directors that alleges willful misappropriation of corporate assets by such
Director or Officer, wrongful disclosure of confidential information, or any
other willful and deliberate breach in bad faith of such Director’s or Officer’s
duty to the corporation or its shareholders.
(d) Authority to Advance
Expenses. Expenses incurred by Officers or Directors (acting in their
capacity as such) in defending a Proceeding shall be paid by the corporation in
advance of the final disposition of such Proceeding, provided, however, that if required by
the CCC then in effect, such Expenses shall be advanced only upon delivery to
the corporation of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation as authorized in this Section 30 or
otherwise. Expenses incurred by Employees or Agents of the
corporation (or by the Directors or Officers not acting in their capacity as
such, including service with respect to employee benefit plans) may be advanced
upon the receipt of a similar undertaking, if required by law, and upon such
other terms and conditions as the Board of Directors deems
appropriate. Any obligation to reimburse the corporation for Expense
advances shall be unsecured, and no interest shall be charged
thereon.
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(e) Provision
Nonexclusive. The rights conferred on any person by this Section 30 shall
not be exclusive of any other rights that such person may have or hereafter
acquire under any statute, provision of the Articles of Incorporation,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office. To the extent that any provision of the Articles
of Incorporation, agreement, or vote of the shareholders or disinterested
directors is inconsistent with these Bylaws, the provision, agreement, or vote
shall take precedence.
(f) Authority to Insure.
The corporation may purchase and maintain insurance to protect itself and any
Directors, Officers, Employees or Agents, as the case may be, against any
Expense asserted against or incurred by such person or persons, whether or not
the corporation would have the power to indemnify such person or persons against
such Expense under applicable law or the provisions of this Section 30, provided that, in cases where
the corporation owns all or a portion of the shares of the company issuing the
insurance policy, the company and/or the policy must meet one of the two sets of
conditions set forth in Section 317 of the CCC.
(g) Survival of Rights.
The rights provided by this Section 30 shall continue as to a person who has
ceased to be an Officer or Director and shall inure to the benefit of the heirs,
executors, and administrators of such Officer or Director.
(h) Settlement of Claims.
The corporation shall not be liable to indemnify any Director or Officer under
this Section 30 for (i) any amounts paid in settlement of any action or claim
effected without the corporation’s written consent, which consent shall not be
unreasonably withheld; or (ii) any judicial award, if the corporation was not
given a reasonable and timely opportunity to participate, at its expense, in the
defense of such action.
(i) Effect of Amendment.
Any amendment, repeal, or modification of this Section 30 shall not adversely
affect any right or protection of any Director or Officer existing at the time
of such amendment, repeal, or modification.
OFFICERS
31. Titles and
Authority. The officers of the corporation shall include a
Chairman of the Board or a President or both, a Secretary, and a Chief Financial
Officer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers, or other
Officers. Any number of offices may be held by the same
person. All officers shall perform their duties and exercise their
powers subject to the direction of the Board of Directors. Deeds,
notes, contracts, and any other instrument or document may be executed on behalf
of this corporation by the single signature of the President or any Vice
President or by the signatures of any two other officers, provided that the signing
officers shall not both be Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers or other subordinate officers. Notwithstanding
the foregoing, any officer is authorized to sign (i) a proxy or consent
solicited by the directors or management of any company in which the corporation
owns shares or (ii) any notice given by the corporation to any other
person.
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32. Election, Term of Office and
Vacancies. At its regular meeting after each annual meeting of
shareholders, the Board of Directors shall choose the officers of the
corporation. The Board may choose additional officers or fill vacant
offices at any other time. No officer must be a member of the Board
of Directors except the Chairman of the Board. The officers shall
hold office until their successors are chosen, except that the Board of
Directors may remove any officer at any time.
33. Resignation. Any
officer may resign at any time upon notice to the corporation without prejudice
to the rights, if any, of the corporation under any contract to which the
officer is a party. The resignation of an officer shall be effective
when given unless the officer specifies a later time. The resignation
shall be effective regardless of whether it is accepted by the
corporation.
34. Chairman of the Board;
President. If the Board of Directors elects a Chairman of the
Board, such officer shall preside over all meetings of the Board of Directors
and of shareholders. If there is no Chairman of the Board, the
President shall perform such duties. The Board of Directors shall
designate either the Chairman of the Board or the President as the chief
executive officer and may prescribe the duties and powers of the chief executive
officer. If there is no Chairman of the Board, the President shall be
the chief executive officer.
35. Secretary. Unless
otherwise determined by the Board of Directors or the chief executive officer,
the Secretary shall have the following powers and duties:
(a) Record of Corporate
Proceedings. The Secretary shall attend meetings of
shareholders and the Board of Directors and its committees and shall record all
votes and the minutes of such meetings in a book to be kept at the principal
executive office of the corporation or at such other place as the Board may
determine. The Secretary shall keep the original or a copy of these
Bylaws at the corporation’s principal executive office, if in California, or at
its principal business office in California if the principal executive office is
not in California.
(b) Record of
Shares. Unless a transfer agent is appointed by the Board of
Directors to keep a share register, the Secretary shall keep a share register at
the principal executive office of the corporation showing the names of the
shareholders and their addresses, the number and class of shares held by each,
the number and date of certificates issued, and the number and date of
cancellation of each certificate surrendered for cancellation.
(c) Notices. The
Secretary shall give such notices as may be required by law or these
Bylaws.
36. Chief Financial
Officer. The Chief Financial Officer shall be the chief
financial officer of the corporation. Unless otherwise determined by
the Board of Directors or the chief executive officer, the Chief Financial
Officer shall have custody of the corporate funds and securities, shall keep
adequate and correct accounts of the corporation’s properties and business
transactions, shall disburse such funds of the corporation as may be ordered by
the Board or the chief executive officer (taking proper vouchers for such
disbursements), and shall render to the chief executive officer and the Board,
at regular meetings of the Board or whenever the Board may require, an account
of all transactions and the financial condition of the
corporation.
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37. Other
Officers. The other officers of the corporation, if any, shall
exercise such powers and perform such duties as the Board of Directors or the
chief executive officer shall prescribe.
38. Salaries. The
Board of Directors shall fix the salary of the chief executive officer and may
fix the salaries of other employees of the corporation, including the other
officers. If the Board does not fix the salaries of the other
officers, the chief executive officer shall fix such salaries.
39. Officer Loans and
Guarantees. Without limiting any other powers of the
corporation or the Board of Directors with respect to loans, guaranties, or
employee benefit plans, if the corporation has outstanding shares held of record
by 100 or more persons (determined as provided in the CCC) on the date of
approval by the Board of Directors, the corporation may make loans of money or
property to, or guarantee the obligations of, any officer of the corporation, or
any parent or subsidiary of the corporation, whether or not the officer is also
a director, or adopt an employee benefit plan or plans authorizing such loans or
guaranties, upon the approval of the Board of Directors alone (by a vote
sufficient without counting the vote of any interested director or directors) if
the Board of Directors determines that such a loan or guaranty or plans may
reasonably be expected to benefit the corporation and is otherwise made in
compliance with all applicable laws.
AMENDMENT OF
BYLAWS
40. Bylaws
may be adopted, amended, or repealed by the affirmative vote of a majority of
the outstanding shares entitled to vote or by the Board of Directors, except
that an amendment changing the authorized number of directors may only be
adopted as provided in Section 15.
* * *
This is
to certify that the foregoing is a true and correct copy of the Restated Bylaws
of Sonic Solutions and that the Restated Bylaws were duly adopted by the Board
of Directors of the corporation on July [●], 2010.
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/s/
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Mary
C. Sauer, Secretary
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