Attached files
file | filename |
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8-K - FORM 8-K - TEKELEC | v58260e8vk.htm |
EX-99.1 - EX-99.1 - TEKELEC | v58260exv99w1.htm |
EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of
otherwise provided by statute or
the Articles of Incorporation, of
Tekelec
a California corporation
TABLE OF CONTENTS
Page | ||||
Article I. General Provisions |
1 | |||
Section 1.1 Principal Office |
1 | |||
Section 1.2 Other Offices |
1 | |||
Article II. Shares and Shareholders |
1 | |||
Section 2.1 Meetings of Shareholders |
1 | |||
(a) Place of Meetings |
1 | |||
(b) Annual Meetings |
1 | |||
(c) Special Meetings |
2 | |||
(d) Notice of Meetings |
4 | |||
(e) Adjourned Meeting and Notice Thereof |
5 | |||
(f) Waiver of Notice |
5 | |||
(g) Quorum |
5 | |||
Section 2.2 Shareholder Business (other than Director Nominations) at Annual Meetings |
6 | |||
(a) Advance Notice of Business Proposed to be Brought Before Annual Meetings by Shareholders |
6 | |||
(b) Other Requirements for Business Brought Before Annual Meetings by Shareholders |
6 | |||
Section 2.3 Action Without a Meeting |
7 | |||
Section 2.4 Voting of Shares |
7 | |||
(a) In General |
7 | |||
(b) Cumulative Voting |
7 | |||
(c) Election by Ballot |
8 | |||
Section 2.5 Proxies |
8 | |||
Section 2.6 Inspectors of Election |
8 | |||
(a) Appointment |
8 | |||
(b) Duties |
8 | |||
Section 2.7 Record Date |
9 | |||
Section 2.8 Shares |
9 | |||
(a) In General |
9 | |||
(b) Two or More Classes or Series |
10 | |||
(c) Special Restrictions |
10 | |||
Section 2.9 Lost, Stolen or Destroyed Certificates |
11 | |||
Article III. Directors |
11 | |||
Section 3.1 Powers |
11 | |||
Section 3.2 Number and Qualification of Directors |
11 |
(i)
Page | ||||
Section 3.3 Election and Term of Office |
12 | |||
Section 3.4 Director Nominations |
12 | |||
(a) Nominations of Directors Proposed to be Brought Before Annual Meetings by Shareholders |
12 | |||
(b) Information Required Regarding Proposing Shareholders |
13 | |||
(c) Information Required Regarding Director Nominees |
13 | |||
(d) Other Requirements for Director Nominations by Shareholders |
14 | |||
Section 3.5 Removal |
14 | |||
(a) Removal for Cause |
14 | |||
(b) Removal without Cause |
14 | |||
Section 3.6 Vacancies |
15 | |||
Section 3.7 Resignation |
15 | |||
Section 3.8 Meetings of the Board of Directors |
15 | |||
(a) Regular Meetings |
15 | |||
(b) Annual Meeting |
15 | |||
(c) Special Meetings; Notices; Waiver of Notice |
15 | |||
(d) Notice of Adjournment |
16 | |||
(e) Place of Meeting |
16 | |||
(f) Presence by Conference Telephone Call |
16 | |||
(g) Quorum |
16 | |||
Section 3.9 Action Without Meeting |
16 | |||
Section 3.10 Committees of the Board |
16 | |||
(a) Membership and Authority |
16 | |||
(b) Meetings and Action |
17 | |||
Section 3.11 Fees and Compensation of Directors |
17 | |||
Section 3.12 Corporate Loans and Guaranties to Directors, Officers and Others |
17 | |||
Article IV. Officers |
19 | |||
Section 4.1 Officers |
19 | |||
Section 4.2 Elections |
19 | |||
Section 4.3 Other Officers |
19 | |||
Section 4.4 Removal |
19 | |||
Section 4.5 Resignation |
19 | |||
Section 4.6 Vacancies |
19 | |||
Section 4.7 Chairman of the Board |
19 | |||
Section 4.8 President |
20 | |||
Section 4.9 Vice Presidents |
20 | |||
Section 4.10 Secretary |
20 | |||
Section 4.11 Chief Financial Officer |
20 | |||
Article V. Records and Reports |
21 | |||
Section 5.1 Books, Records and Reports |
21 |
(ii)
Page | ||||
(a) Books of Account and Records |
21 | |||
(b) Annual Report |
21 | |||
(c) Shareholders Requests for Financial Reports |
21 | |||
Section 5.2 Rights of Inspection |
22 | |||
(a) By Shareholders |
22 | |||
(b) By Directors |
23 | |||
Article VI. Miscellaneous |
23 | |||
Section 6.1 Checks, Drafts, Etc. |
23 | |||
Section 6.2 Authority to Execute Contracts |
23 | |||
Section 6.3 Representation of Shares of Other Corporations |
23 | |||
Section 6.4 Indemnification and Insurance |
24 | |||
Section 6.5 Employee Stock Purchase Plans |
25 | |||
Section 6.6 Construction and Definitions |
25 | |||
Section 6.7 Reimbursement of Disallowed Compensation |
26 | |||
Article VII. Amendments |
26 | |||
Section 7.1 Power of Shareholders |
26 | |||
Section 7.2 Power of Directors |
26 |
(iii)
AMENDED AND RESTATED BYLAWS
for the regulation, except as otherwise provided
by statute or the Articles of Incorporation
of
by statute or the Articles of Incorporation
of
Tekelec
Article I. General Provisions.
Section 1.1 Principal Office. The Board of Directors shall fix the location
of the principal executive office of the corporation at any place within or outside the State of
California. If the principal executive office is located outside of such state and the corporation
has one or more business offices in such state, then the Board of Directors shall fix and designate
a principal business office in the State of California.
Section 1.2 Other Offices. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the corporation is qualified to do
business.
Article II. Shares and Shareholders.
Section 2.1 Meetings of Shareholders.
(a) Place of Meetings. Meetings of shareholders shall be held at any place within or
without the State of California designated by the Board of Directors. In the absence of any such
designation, shareholders meetings shall be held at the principal executive office of the
corporation.
(b) Annual Meetings.
(i) An annual meeting of the shareholders of the corporation shall be held on the second
Thursday in June of each year or at such other date and time as may be designated by the Board of
Directors; provided, however, that should said day fall upon a legal holiday, the
annual meeting of shareholders shall be held at the same time on the next day thereafter ensuing
which is a full business day. At each annual meeting directors shall be elected, and any other
proper business may be transacted.
(ii) At an annual meeting of shareholders, only such business (including the nomination of
directors) shall be conducted as shall have been brought before the meeting (i) pursuant to the
corporations notice of the meeting (or any supplement thereto), (ii) by or at the direction of the
Board of Directors or (iii) by any shareholder of the corporation who is a shareholder of record at
the time of the giving of the notice provided for in Section 2.2(a) of this Article II (with
respect to business other than nominations of directors) or Section 3.4(a) of Article III of these
Bylaws (with respect to the nomination of directors) and at the time of the meeting, who is
entitled to vote at such meeting and who has complied with the notice procedures and other
requirements set forth in Section 2.2 of this Article II or in Section 3.4 of Article III of these
Bylaws, as applicable. The foregoing clause (iii) shall be the exclusive means for a shareholder
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to submit
such business and nominations (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the Exchange Act), and included in the corporations
notice of meeting) with respect to an annual meeting of shareholders.
(c) Special Meetings.
(i) Special meetings of the shareholders may be called by the Board of Directors, the
chairman of the board or the president, or by the holders of shares entitled to cast not less than
10% of the votes at the meeting. Upon request in writing to the chairman of the board, the
president, any vice president or the secretary by any person (other than the Board) entitled to
call a special meeting of shareholders, such officer shall promptly 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, which time shall be not less than 35 nor more than 60 days after the
receipt of the request. If the notice is not given within 20 days after receipt of the request,
the persons entitled to call the meeting may give the notice.
(ii) If a special meeting is called by any person or persons other than the Board of
Directors, the chairman of the board or the president, then the request shall be in writing,
specifying the time of such meeting and (1) specifying the information required pursuant to Section
2.1(c)(iii) below (in the case of business other than the nomination of directors) and otherwise
complying with this Section 2.1(c) and/or (2) specifying the information required pursuant to
Section 3.4(a) of Article III of these Bylaws and otherwise complying with said Section 3.4 (in the
case of the nomination of directors), as applicable.
(iii) For any business (other than the nomination of directors which is subject to Section 3.4
of Article III of these Bylaws) to be properly brought before a special meeting by a shareholder,
the shareholder must have given notice thereof in writing to the secretary, and the proposed
business must constitute a proper matter for shareholder action. To be in proper written form, a
shareholders notice delivered pursuant to Section 2.1(c)(ii) above with respect to business (other
than director nominations) proposed to be brought before a special meeting must set forth: (i) as
to each matter the shareholder proposes to bring before the meeting, a brief description of the
business, the reasons for conducting such business at the meeting, and the text of the proposal or
business (including the text of any resolutions proposed for consideration and, in the event that
such business includes a proposal to amend the Bylaws of the corporation, the text of the proposed
amendment); and (ii) as to the shareholder giving the notice and any Shareholder Associated
Person (as defined in Section 2.1(c)(v) of this Article II below) on whose behalf the proposal is
made, (A) the name and address of such shareholder and any such Shareholder Associated Person, (B)
the class, series (if applicable) and number of shares of the corporations stock which are,
directly or indirectly, owned beneficially and/or of record by such shareholder and any such
Shareholder Associated Person, (C) any derivative position with respect to the corporations
securities owned, directly or indirectly and of record and/or beneficially, by such shareholder and
any such Shareholder Associated Person and any other direct or indirect opportunity to profit or
share in any profit derived from any increase or decrease in the value of shares of the
corporation, including any short position or any borrowing or lending of shares, (D) any proxy,
contract, arrangement, understanding or relationship pursuant to which such shareholder or any such
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Shareholder Associated Person has a right to vote any security of the corporation, (E) any
short interest of such shareholder or any such Shareholder Associated Person in the securities of
the corporation, (F) any other information relating to such shareholder and any such Shareholder
Associated Person that would be required to be disclosed in a proxy statement or other filing(s)
required to be made in connection with solicitations of proxies for the proposed business, (G) any
material interest of the shareholder or any such Shareholder Associated Person in such business,
(H) a representation that the shareholder is a holder of record of stock of the corporation, is
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to
propose such business, and (I) a representation as to whether the shareholder and/or any such
Shareholder Associated Person intends, or is or intends to be part of a group that intends, to
deliver a proxy statement and/or form of proxy to holders of at least the percentage of the
corporations outstanding capital stock required to approve or adopt the proposal and/or to
otherwise solicit proxies from shareholders in support of such proposal. In addition, to be in
proper form, the Proposing Shareholder Information must be supplemented by the shareholder not
later than ten days following the record date for the meeting in order to provide the information
required by the foregoing clauses (B), (C) and (D) as of the record date. The information required
by the foregoing clause (ii), as supplemented, is referred to in these Bylaws as the Proposing
Shareholder Information.
(iv) No business (other than the election of directors) shall be conducted at a special
meeting except in accordance with the procedures set forth in this Section 2.1(c). Unless
otherwise required by law, if a shareholder (or qualified representative) does not appear at the
meeting of shareholders to present business proposed by such shareholder pursuant to this Section
2.1(c), such proposed business shall not be transacted, even though proxies in respect of such vote
may have been received by the corporation. In order to be considered a qualified representative
of the shareholder for purposes of these Bylaws, a person must be a duly authorized officer,
manager or partner of such shareholder or must be authorized by a writing executed by such
shareholder to act for such shareholder as proxy at the meeting of shareholders, and such person
must produce such writing, or a reliable reproduction of the writing, at the meeting of
shareholders.
Except as otherwise provided by law or the Articles of Incorporation of the corporation, the
chairman of the meeting may, if the facts warrant, determine that the proposed business is not a
proper matter for shareholder action and/or was not properly brought before the special meeting in
accordance with the provisions of this Section 2.1(c) and, if the chairman should so determine, the
chairman shall so declare to the meeting, and the proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.1(c), a shareholder shall also
comply with all applicable requirements of the California General Corporation Law and the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth in this Section
2.1(c); provided, however, that any references in these Bylaws to the California General
Corporation Law or the Exchange Act or the rules promulgated thereunder are not intended to and
shall not limit the requirements applicable to business proposals to be considered pursuant to this
Section 2.1(c).
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(v) For purposes of these Bylaws, a Shareholder Associated Person shall mean (i) any
person controlling, 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 on whose behalf a business proposal (or nomination for purposes of Section 3.4 of
Article III of these Bylaws) is being made or (iii) any person controlling, controlled by or under
common control with any person referred to in the preceding clauses (i) and (ii).
(d) Notice of Meetings. Notice of any shareholders meeting shall be given not less
than 10 (or, if sent by third-class mail, 30) nor more than 60 days before the date of the meeting
to each shareholder entitled to vote at such meeting. Such notice shall state the place, date and
hour of the meeting and (i), in the case of a special meeting, the general nature of the business
to be transacted, and no other business may be transacted, or (ii), in the case of an annual
meeting, those matters which the Board, at the time of the giving of the notice, intends to present
for action by the shareholders. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be presented by the Board
for election.
If any action within the scope of Section 310 (entitled Transactions Between Corporations and
Directors or Corporations Having Interrelated Directors), 902 (entitled Amendments After Issuance
of Shares), 1201 (entitled Shareholder Approval Abandonment Attack on Validity of
Reorganization), 1900 (entitled Authorization for Voluntary Dissolution) or 2007 (entitled Plan
of Distribution Demand for Cash Payment) of the California General Corporation Law is proposed
to be taken at any meeting, the notice shall also state the general nature of such action.
Notice of a shareholders meeting or any report shall be given to each shareholder either
personally or by first-class mail, or, in the case of a corporation with outstanding shares held of
record by 500 or more persons on the record date for the shareholders meeting, notice may be sent
by third-class mail, or other means of written communication, addressed to such shareholder at the
address of such shareholder appearing on the books of the corporation or given by such shareholder
to the corporation for the purpose of notice. If no such address appears or is given, notice shall
and will be deemed to be given at the place where the principal executive office of the corporation
is located or by publication at least once in a newspaper of general circulation in the county in
which the principal executive office is located. The notice shall be deemed to have been given at
the time when delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any notice executed by the secretary, assistant
secretary or any transfer agent shall be prima facie evidence of the giving of such notice or
report.
If any notice or report addressed to the shareholder at the address of such shareholder
appearing on the books of the corporation is returned to the corporation by the United States
Postal Service marked to indicate that the United States Postal Service is unable to deliver the
notice or report to the shareholder at such address, all future notices or reports shall be deemed
to have been duly given without further mailing if the same shall be available for the shareholder
upon written demand of the shareholder at the principal executive office of the corporation for a
period of one year from the date of the giving of the notice or report to all other shareholders.
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(e) Adjourned Meeting and Notice Thereof. Any annual or special meeting of
shareholders may be adjourned from time to time by the vote of a majority of the shares represented
either in person or by proxy whether or not a quorum is present. When a shareholders meeting is
adjourned to another time or place, except as provided below, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. No other business may be transacted at the
adjourned meeting other than as set forth in this paragraph. If the adjournment is for more than
45 days or if after the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each shareholder of record entitled to vote at the
meeting.
(f) Waiver of Notice. The transactions of any annual or special 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 either in person or by proxy and
if, either before or after the meeting, each of the persons entitled to vote, not present in person
or by proxy, signs a written waiver of notice or a consent to the holding of the meeting or an
approval of the minutes thereof. Such waiver of notice, consent or approval need not specify the
nature of any action proposed to be taken or taken at the meeting other than action within the
scope of Section 310 (entitled Transactions Between Corporations and Directors or Corporations
Having Interrelated Directors), 902 (entitled Amendments After Issuance of Shares), 1201
(entitled Shareholder Approval Abandonment Attack on Validity of Reorganization), 1900
(entitled Authorization for Voluntary Dissolution) or 2007 (entitled Plan of Distribution
Demand for Cash Payment) of the California General Corporation Law, unless such action was
unanimously approved by the shareholders entitled to vote. 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 person at a meeting also shall constitute a waiver of notice of, and presence, at
such meeting, except when the person objects, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened and except that attendance
at a meeting is not a waiver of any right to object to the consideration of matters required by the
General Corporation Law to be included in the notice but not so included, if such objection is
expressly made at the meeting.
(g) Quorum. The presence in person or by proxy of the persons entitled to vote a
majority of the shares entitled to vote at any meeting of shareholders shall constitute a quorum
for the transaction of business at such meeting. Except as provided herein, the affirmative vote
of a majority of the shares represented and voting at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute at least a majority of the required
quorum) shall be the act of the shareholders, unless the vote of a greater number or voting by
classes is required by law or the Articles of Incorporation of the corporation.
The shareholders present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, provided that any action taken (other than adjournment)
must be approved by at least a majority of the shares required to constitute a quorum. In the
absence of a quorum, any meeting of shareholders may be adjourned from time to time by the vote
5
of a majority of the shares represented either in person or by proxy, but no other business
may be transacted other than as set forth in this paragraph.
Section 2.2 Shareholder Business (other than Director Nominations) at Annual
Meetings.
(a) Advance Notice of Business Proposed to be Brought Before Annual Meetings by
Shareholders. For business to be properly brought before an annual meeting by a shareholder
pursuant to Section 2.1(a)(ii) of this Article II, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be timely, a shareholders written
notice must be delivered or mailed to the secretary and received at the principal office of the
corporation not less than 90 days nor more than 120 days prior to the first anniversary of the
preceding years annual meeting; provided, however, that in the event the date of the meeting is
more than 30 days before or more than 60 days after such anniversary date, notice must be received
not earlier than the 120th day prior to the date of such annual meeting and not later than the
close of business on the later of the 90th day prior to the date of such annual meeting or the
tenth day following the day on which public announcement of the date of the annual meeting is first
made. In no event shall any adjournment or postponement of an annual meeting or the announcement
thereof commence a new time period (or extend any time period) for the giving of a shareholders
notice as described above. For purposes of these Bylaws, public announcement shall include
disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable news service or in a document publicly filed with or furnished to the Securities and
Exchange Commission pursuant to the Exchange Act.
To be in proper written form, a shareholders notice delivered pursuant to this Section 2.2
must set forth the same Proposing Shareholder Information that would be required to be provided
pursuant to Section 2.1(c)(iii) above with respect to a shareholder proposal for a special meeting
of shareholders.
(b) Other Requirements for Business Proposed to be Brought Before Annual Meetings by
Shareholders. Any business proposed by any shareholder to be brought before an annual meeting
must constitute a proper matter for shareholder action. No business (other than the election of
directors) shall be conducted at an annual meeting except in accordance with the procedures set
forth in this Section 2.2. Unless otherwise required by law, if a shareholder (or qualified
representative) does not appear at the meeting of shareholders to present business proposed by such
shareholder pursuant to this Section 2.2, such proposed business shall not be transacted, even
though proxies in respect of such vote may have been received by the corporation.
Except as otherwise provided by law or the Articles of Incorporation of the corporation, the
chairman of the meeting may, if the facts warrant, determine that the proposed business was not
properly brought before the annual meeting in accordance with the provisions of this Section 2.2
and/or is not a proper matter for shareholder action and, if the chairman should so determine, the
chairman shall so declare to the meeting, and the proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.2, a shareholder shall also comply
with all applicable requirements of the California General Corporation Law and the Exchange Act and
the rules and regulations thereunder with respect to the matters set forth in this
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Section 2.2; provided, however, that any references in these Bylaws to the California General
Corporation Law or the Exchange Act or the rules promulgated thereunder are not intended to and
shall not limit the requirements applicable to business proposals to be considered pursuant to
these Bylaws. Nothing in this Section 2.2 shall be deemed to affect any rights of shareholders to
request inclusion of proposals in the corporations proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 2.3 Action Without a Meeting. Any action which may be taken at any
annual or special meeting of shareholders may be taken without a meeting and without prior notice
if a consent in writing, setting forth the action so taken, shall be signed by the holders of
outstanding shares having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Notwithstanding the foregoing and subject to Section 3.6 hereof, directors may
not be elected by written consent except by unanimous written consent of all shares entitled to
vote for the election of directors.
Unless the consents of all shareholders entitled to vote have been solicited in writing, (a)
notice of any shareholder approval pursuant to Section 310 (entitled Transactions Between
Corporations and Directors or Corporations Having Interrelated Directors), 902 (entitled
Amendments After Issuance of Shares), 1201 (entitled Shareholder Approval Abandonment
Attack on Validity of Reorganization), 1900 (entitled Authorization for Voluntary Dissolutions)
or 2007 (entitled Plan of Distribution Demand for Cash Payment) of the California General
Corporation Law without a meeting by less than unanimous written consent shall be given at least 10
days before the consummation of the action authorized by such approval, and (b) prompt notice shall
be given of any other corporate action approved by the shareholders without a meeting by less than
unanimous written consent to those shareholders entitled to vote who have not consented in writing.
Such notice shall be given in the same manner as notice of a shareholders meeting.
Section 2.4 Voting of Shares.
(a) In General. Except as otherwise provided in the Articles of Incorporation and
subject to Subparagraph (b) hereof, each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote of shareholders. Any holder of shares entitled to
vote on any matter may vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, other than elections to office, but, if the
shareholder fails to specify the number of shares such shareholder is voting affirmatively, it will
be conclusively presumed that the shareholders approving vote is with respect to all shares such
shareholder is entitled to vote. Except as provided herein, the affirmative vote of a majority of
the shares represented and voting at a duly held meeting at which a quorum is present (which shares
voting affirmatively also constitute at least a majority of the required quorum) shall be the act
of the shareholders, unless the vote of a greater number or voting by classes is required by law or
the Articles of Incorporation of the corporation.
(b) Cumulative Voting. At any shareholders meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes (i.e., cast for any candidate a number
of
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votes greater than the number of votes which such the shareholder normally is entitled to
cast) unless such candidate or candidates names have been placed in nomination prior to the voting
in accordance with Section 3.4 of Article III and a shareholder has given notice at the meeting
prior to the voting of the shareholders intention to cumulate the shareholders votes. If any one
shareholder has given such notice, all shareholders entitled to vote may cumulate their votes for
candidates in nomination and give any candidate a number of votes equal to the number of directors
to be elected multiplied by the number of votes to which the shareholders shares are normally
entitled, or distribute the shareholders votes on the same principle among as many candidates as
the shareholder thinks fit. In any election of directors, the candidates receiving the highest
number of affirmative votes up to the number of directors to be elected are elected.
(c) Election by Ballot. The shareholders vote may be by voice vote or ballot;
provided, however, that any election for directors must be by ballot if a
shareholder demands election by ballot at the meeting and before the voting begins.
Section 2.5 Proxies. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares by a written proxy signed by
such person and filed with the secretary of the corporation. A proxy shall be deemed signed by
such person if such persons name is placed on the proxy (whether by manual signature, typewriting,
telegraphic transmission or otherwise) by such person or such persons attorney in fact. No proxy
shall be valid after the expiration of 11 months from the date of the proxy unless otherwise
provided in the proxy. A valid proxy which does not state that it is irrevocable shall continue in
full force and effect until revoked by the person executing it before the vote pursuant to that
proxy or unless written notice of the death or incapacity of the maker of that proxy is received by
the corporation before the vote pursuant to that proxy is counted. Such revocation of a revocable
proxy may be effected by a writing delivered to the corporation stating that the proxy is revoked
or by a subsequent proxy executed by the person executing the prior proxy and presented to the
meeting, or as to any meeting by attendance at such meeting and voting in person by the person
executing the proxy. The revocability of a proxy that states on its face that it is irrevocable
shall be governed by the provisions of Sections 705(e) and 705(f) of the California General
Corporation Law.
Section 2.6 Inspectors of Election.
(a) Appointment. In advance of any meeting of shareholders the Board of Directors may
appoint inspector(s) of election to act at the meeting and any adjournment thereof. If inspectors
of election are not so appointed, or if any persons so appointed fail to appear or refuse to act,
the chairman of any meeting of shareholders may, and on the request of any shareholder or a
shareholders proxy shall, appoint inspectors of election (or persons to replace those who so fail
or refuse) at the meeting. The number of inspectors shall be either one or three. If inspectors
are to be appointed at a meeting on the request of one or more shareholders or proxies, the
majority of shares represented in person or by proxy shall determine whether one or three
inspectors are to be appointed.
(b) Duties. The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting, the existence of a
quorum and
8
the authenticity, validity and effect of proxies; receive votes, ballots or consents; hear and
determine all challenges and questions in any way arising in connection with the right to vote;
count and tabulate all votes or consents; determine when the polls shall close; determine the
result; and do such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The inspectors of election shall perform their duties impartially, in good faith, to
the best of their ability and as expeditiously as is practical. If there are three inspectors of
election, the decision, act or certificate of a majority is effective in all respects as the
decision, act or certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
Section 2.7 Record Date. In order that the corporation may determine the
shareholders entitled to notice of any meeting or to vote thereat or entitled to give consent to
corporate action or entitled to receive payment of any dividend or other distribution or allotment
of any rights or entitled to exercise any rights in respect of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10
days prior to the date of such meeting nor more than 60 days prior to any other action. 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 on
which notice is given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled to give consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors has been taken, shall
be the day on which the first written consent is given.
(3) The record date for determining shareholders for any other purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution relating thereto, or
the 60th day prior to the date of such other action, whichever is later. A determination of
shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to
any adjournment of the meeting unless the Board of Directors fixes a new record date for the
adjourned meeting, but the Board of Directors shall fix a new record date if the meeting is
adjourned for more than 45 days from the date set for the original meeting.
Shareholders at the close of business on the record date are 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 or by agreement or in the
California General Corporation Law.
Section 2.8 Shares.
(a) In General.
(1) Certificated Shares. The shares of the corporation shall be represented by
physical share certificates; provided, however, that the Board may from time to
time provide by resolution that some or all of any class or series of the capital stock of the
corporation shall be
9
uncertificated shares and that the corporation shall instead adopt for such shares a system of
issuance, recordation and transfer by electronic or other means not involving any issuance of
certificates. Any such system (i) shall have been approved by the United States Securities and
Exchange Commission, (ii) shall have been authorized by a statute of the United States or (iii)
shall be in accordance with Division 8 of the Commercial Code of the State of California. Any
system so adopted for any shares of capital stock of the corporation shall not become effective as
to issued and outstanding securities until the certificates therefor have been surrendered. Any
such resolution and system shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation.
(2) Certificated Shares. Every holder of shares of capital stock of the corporation
represented by certificates shall be entitled to have a certificate, in any form approved by the
Board, signed in the name of the corporation by the chairman or vice chairman of the Board of
Directors or the president or a vice president and by the chief financial officer or the treasurer
or an assistant treasurer or the secretary or an assistant secretary. All share certificates shall
state the name of the record owner thereof and shall certify the number of shares and the class or
series of shares represented thereby. Any or all of the signatures on a share certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a share certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, the certificate 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.
(3) Uncertificated Shares. Every holder of uncertificated shares of capital stock of
the corporation shall be entitled to receive a statement of holdings as evidence of share
ownership.
(b) Two or More Classes or Series. If the shares of the corporation are classified or
if any class of shares has two or more series, there shall appear on any share certificate
evidencing such shares or, in the case of uncertificated securities, on the initial transaction
statement and written statements for such shares, one of the following:
(1) A statement of the rights, preferences, privileges and restrictions granted to or imposed
upon each class or series of shares authorized to be issued and upon the holders thereof;
(2) A summary of such rights, preferences, privileges and restrictions with reference to the
provisions of the Articles of Incorporation and any certificates of determination establishing
same; or
(3) A statement setting forth the office or agency of the corporation from which shareholders
may obtain, upon request and without charge, a copy of the statement mentioned in Subparagraph (1)
above.
(c) Special Restrictions. There shall also appear on any certificated shares of the
corporation or, in the case of uncertificated securities, on the initial transaction statement and
written statements for such shares (unless stated or summarized under Subparagraph (1) or (2) of
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Subparagraph (b) above) the statements required by all of the following clauses to the extent
applicable:
(1) The fact that the shares are subject to restrictions upon transfer;
(2) If the shares are assessable, a statement that they are assessable;
(3) If the shares are not fully paid, a statement of the total consideration to be paid for
them and the amount actually paid;
(4) The fact that the shares are subject to a voting agreement or an irrevocable proxy or
restrictions upon voting rights contractually imposed by the corporation;
(5) The fact that the shares are redeemable; and
(6) The fact that the shares are convertible and the period for conversion.
Section 2.9 Lost, Stolen or Destroyed Certificates. Where a certificate for
any certificated shares of the corporation has been lost, destroyed or wrongfully taken, the
corporation may issue a new certificate (or, if applicable, issue uncertificated shares in lieu of
a new certificate) in place of the original if the owner: (i) so requests before the corporation
has notice that the certificate has been acquired by a bona fide purchaser; and (ii) files with the
corporation or its transfer agent, if so requested by the Board of Directors, a bond (or other
adequate security) sufficient to indemnify the corporation or its transfer agent, as applicable,
against any claim that may be made against it (including any expense or liability) on account of
loss, theft or destruction of any such certificate or the issuance of such new certificate (or
uncertificated shares, if applicable). Except as above provided, no new certificate for shares
and, if applicable, no uncertificated shares shall be issued in lieu of an old certificate unless
the corporation is ordered to do so by the superior court in an action brought under Section 419(b)
of the California General Corporation Law. Directors.
Article III. Directors.
Section 3.1 Powers. Subject to the provisions of the California General
Corporation Law and any limitations 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
direction of the Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the corporation to a management company or other person, provided that
the business and affairs of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the Board.
Section 3.2 Number and Qualification of Directors. The number of directors
of this corporation shall not be less than five (5) nor more than (9). The exact number of
directors shall be eight (8) until changed, within the limits specified above, by a bylaw amending
this Section 3.2, duly adopted by the Board of Directors or by the shareholders. The indefinite
number of directors may be changed, or a definite number fixed without provision for an indefinite
number, by a duly adopted amendment to the Articles of Incorporation or by an amendment to this
bylaw duly
11
adopted by the vote or written consent of holders of two-thirds (2/3) of the outstanding
shares entitled to vote; provided however, that an amendment reducing the number or the minimum
number of directors to a number less than five (5) cannot be adopted if the votes cast against its
adoption at a meeting of the shareholders, or the shares not consenting in the case of an action by
written consent, are equal to more than sixteen and two-thirds (16 2/3) of the outstanding shares
entitled to vote thereon. No amendment may change the stated maximum number of authorized
directors to a number greater than two (2) times the stated minimum number of directors minus one
(1).
Section 3.3 Election and Term of Office. The directors shall be elected at
each annual meeting of shareholders. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected and until a successor
has been elected and qualified. Only persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible for election as directors at a meeting of shareholders.
Section 3.4 Director Nominations.
(a) Advance Notice of Nominations of Directors Proposed to be Brought Before Annual Meetings by
Shareholders. For any director nominations to be properly brought before an annual meeting by
a shareholder pursuant to Section 2.1(a)(ii) of Article II of these Bylaws, the shareholder must
have given timely notice thereof in writing to the secretary. To be timely, a shareholders
written notice must be delivered or mailed to the secretary and received at the principal office of
the corporation (i) in the case of an annual meeting, not less than 90 days nor more than 120 days
prior to the first anniversary of the preceding years annual meeting, provided, however, that in
the event that the date of the meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the shareholder must be received not earlier than the 120th day prior
to such annual meeting and not later than the close of business on the later of the 90th day prior
to such annual meeting or the tenth day following the day on which public announcement of the date
of the meeting is first made; or (ii) in the case of a special meeting at which the corporation
gives notice that directors are to be elected, not earlier than the 120th day prior to the date of
such special meeting and not later than the close of business on the later of the 90th day prior to
the date of such special meeting or the tenth day following the day on which public announcement of
the date of the meeting and of the nominees proposed to be elected at such meeting is first made.
In no event shall any adjournment or postponement of a meeting or the announcement thereof commence
a new time period (or extend any time period) for the giving of a shareholders notice as described
above. In the case of a special meeting of shareholders at which directors are to be elected
pursuant to the corporations notice of meeting, nominations of persons for election to the Board
of Directors may be made (1) by or at the direction of the Board of Directors, the chairman of the
board or the president, or shareholders (pursuant to Section 2.1(c) of Article II and subject to
this Section 3.4) or (2) if the Board of Directors or shareholders (pursuant to Section 2.1(c) of
Article II and subject to this Section 3.4) has determined that directors shall be elected at such
meeting, by any shareholder of the corporation who is a shareholder of record at the time the
notice provided for in this Section 3.4 is delivered to the secretary of the corporation, who is
entitled to vote at the meeting upon such election and who complies with the notice procedures set
forth in this Section 3.4. Notwithstanding anything in this Section 3.4 to the contrary, in the
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event that the number of directors to be elected to the Board of Directors of the corporation at an
annual meeting is increased effective at the annual meeting and there is no public announcement by
the corporation naming all of the nominees proposed by the Board of Directors for the additional
directorships at least 100 days prior to the first anniversary of the preceding years annual
meeting, a shareholders notice required by this Section 3.4 shall also be considered timely, but
only with respect to nominees for such additional directorships, if it shall be delivered to the
secretary at the principal office of the corporation not later than the close of business on the
tenth day following the day on which such public announcement is first made by the corporation.
(b) Information Required Regarding Proposing Shareholders. For nominations to be
properly brought before an annual or special meeting, the shareholders notice shall set forth (i)
as to each person the shareholder proposes to nominate for election or re-election as a director,
(A) all information relating to such person that would be required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in each case pursuant to and in
accordance with Regulation 14A under the Exchange Act (including such persons written consent to
being named as a nominee and to serving as a director if elected) and (B) a description of all
direct and indirect compensation and other material monetary agreements, arrangements and
understandings during the past three years, and any other material relationships, between or among
such shareholder and any Shareholder Associated Person on whose behalf the nomination is being
made, on the one hand, and each proposed nominee, on the other hand; and (ii) as to the shareholder
giving the notice and any Shareholder Associated Person on whose behalf the nomination is made, the
Proposing Shareholder Information (as set forth in Section 2.1(c)(iii) above, provided that the
business for purposes of the Proposing Shareholder Information shall be deemed to be the director
nominations).
(c) Information Required Regarding Director Nominees. To be eligible to be a nominee
for election or re-election as a director of the corporation, a prospective nominee (whether
nominated by or at the direction of the Board of Directors or by a shareholder), or someone acting
on such prospective nominees behalf, must deliver (in accordance with any applicable time periods
prescribed for delivery of notices under this Section 3.4) to the secretary at the principal office
of the corporation a written questionnaire (which questionnaire shall be provided by the secretary
upon written request) providing such information with respect to the background and qualification
of such person and the background of any other person or entity on whose behalf the nomination is
being made that would be required to be disclosed to shareholders pursuant to applicable law or the
rules and regulations of any stock exchange applicable to the corporation, including without
limitation (i) all information concerning such persons that would be required to be disclosed in
solicitations of proxies for election of directors pursuant to and in accordance with Regulation
14A under the Exchange Act and (ii) any information the corporation may reasonably request to
determine the eligibility of the proposed nominee to serve as an independent director or that could
be material to a reasonable shareholders understanding of the independence or lack thereof of the
nominee. The prospective nominee must also provide a written representation and agreement that such
prospective nominee: (A) is not and will not become a party to (1) except as has been disclosed to
the corporation, any agreement, arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how such prospective nominee, if elected as a director
of the corporation, will act or vote on any issue or question (a Voting Commitment) or
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(2) any such Voting Commitment that could limit or interfere with such prospective nominees
ability to comply, if elected as a director of the corporation, with such prospective nominees
fiduciary duties under applicable law; (B) except as has been disclosed to the corporation, is not
and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein; and (C) will comply with all applicable corporate governance, conflict of
interest, confidentiality, stock ownership, trading and other applicable policies and guidelines of
the corporation. For purposes of these Bylaws, a nominee shall include any person being
considered to fill a vacancy on the Board of Directors.
(d) Other Requirements for Director Nominations by Shareholders. No person shall be
eligible for election as a director of the corporation unless nominated in accordance with the
procedures set forth in these Bylaws. Unless otherwise required by law, if a shareholder (or
qualified representative) does not appear at the meeting of shareholders of the corporation to
present a nomination proposed by such shareholder pursuant to this Section 3.4, such nomination
shall be disregarded, even though proxies in respect of such vote may have been received by the
corporation.
Except as otherwise provided by law or the Articles of Incorporation of the corporation, the
chairman of the meeting may, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed in these Bylaws (including whether the shareholder or
beneficial owner, if any, on whose behalf the nomination is made solicited (or is part of a group
which solicited) or did not so solicit, as the case may be, proxies in support of such
shareholders nominee in compliance with such shareholders representation as to such matters
required by this Section 3.4); and if the chairman should so determine, the chairman shall so
declare to the meeting, and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 3.4, a shareholder shall also comply
with all applicable requirements of the California General Corporation Law and the Exchange Act and
the rules and regulations thereunder with respect to the matters set forth in this Section 3.4;
provided, however, that any references in these Bylaws to the California General Corporation Law or
the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the
requirements applicable to nominations to be considered pursuant to these Bylaws. Nothing in this
Section 3.4 shall be deemed to affect any rights of the holders of any series of preferred stock of
the corporation to elect directors pursuant to any applicable provisions of the Articles of
Incorporation of the corporation.
Section 3.5 Removal.
(a) Removal for Cause. The Board of Directors shall have the power to declare vacant
the office of a director who has been declared of unsound mind by an order of court or convicted of
a felony.
(b) Removal without Cause. Any or all of the directors may be removed without cause
if such removal is approved by the vote of a majority of the outstanding shares entitled to vote,
except that no director may be removed (unless the entire board is removed) when the votes cast
14
against removal, or not consenting in writing to such removal, would be sufficient to elect
such director if voted cumulatively at an election at which the same total number of votes were
cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and
the entire number of directors authorized at the time of the directors most recent election were
then being elected. Any reduction of the authorized number of directors does not remove any
director prior to the expiration of such directors term of office.
Section 3.6 Vacancies. A vacancy or vacancies in the Board of Directors
shall be deemed to exist (i) in the event of the death, resignation or removal of any director,
(ii) if the Board of Directors by resolution declares vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a felony, (iii) if the authorized
number of directors is increased, or (iv) if the shareholders fail, at any meeting of shareholders
at which any director or directors are elected, to elect the number of directors to be elected at
that meeting. Except for a vacancy created by the removal of a director, which vacancy may be
filled only by approval of the shareholders, vacancies on the Board of Directors may be filled by a
majority of the directors then in office, whether or not less than a quorum, or by a sole remaining
director, and each director so elected shall hold office until the expiration of the term for which
elected and until his successor is elected and qualified. The shareholders may elect a director at
any time to fill any vacancy not filled by the directors. If any such election is by written
consent, other than to fill a vacancy created by removal, the consent of a majority of the
outstanding shares entitled to vote is required. If any such election is by written consent to
fill a vacancy created by removal, the unanimous consent of all shares entitled to vote for the
election of directors is required.
Section 3.7 Resignation. Any director may resign effective upon giving written
notice to the chairman of the board, the president, the secretary or the Board of Directors
of the corporation, unless the notice specifies a later time for the effectiveness of such
registration. If the registration is effective at a future time, a successor may be elected to
take office when the resignation becomes effective.
Section 3.8 Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors may be held without
notice if the time and place of such meetings are fixed by these bylaws or the Board of Directors.
(b) Annual Meeting. Immediately following each annual meeting of shareholders the
Board of Directors shall hold a regular meeting for the purpose of organization, election of
officers and the transaction of other business. Notice of such meetings is hereby dispensed with.
(c) Special Meetings; Notices; Waiver of Notice. Special meetings of the Board of
Directors may be called at any time by the chairman of the board or the president or by any vice
president, the secretary or any two directors. Special meetings shall be held upon ten days
notice by first class mail or 72 hours notice delivered personally or by telephone or telegraph.
Any oral notice given personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason to believe will
promptly communicate it to the director. Notice of a meeting need not be given to any director who
signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof,
whether
15
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 meeting. A notice,
or waiver of notice, need not specify the purpose of any regular or special meeting of the Board of
Directors.
(d) Notice of Adjournment. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. Notice of the time and place
of holding an adjourned meeting need not be given unless the meeting is adjourned for more than 24
hours, in which case notice of such adjournment to another time and place shall be given as
provided herein prior to the time of the adjourned meeting to the directors who were not present at
the time of adjournment.
(e) Place of Meeting. Meetings of the Board may be held at any place within or
without the State of California which has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, then such meeting shall be held at the principal
executive office of the corporation or such other place designated by resolution of the Board of
Directors.
(f) Presence by Conference Telephone Call. Any meeting, regular or special, of the
Board of directors may be held 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.
(g) Quorum. A majority of the authorized number of directors constitutes a quorum of
the Board for the transaction of business except to adjourn. Every act or decision done or made by
a majority of the directors present at a meeting duly held at which a quorum is present is the act
of the Board of Directors, subject to the provisions of Sections 310 (entitled Transactions
Between Corporations and Directors or Corporations Having Interrelated Directors), 311 (entitled
Executive Committees) and 317(e) (relating to indemnification of corporate agents) of the
California General Corporation Law, other applicable law and the Articles of Incorporation. 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.
Section 3.9 Action Without 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 shall individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the Board of Directors.
Such action by written consent shall have the same force and effect as a unanimous vote of such
directors.
Section 3.10 Committees of the Board.
(a) Membership and Authority. The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or more committees, each constituting
of two or more directors, to serve at the pleasure of the Board of Directors. The Board of
Directors may designate one or more directors as alternate members of any committee, who may
16
replace any absent member at any meeting of the committee. The appointment of members or
alternate members of any committee requires the vote of a majority of the authorized number of
directors. Any such committee, to the extent provided in the resolution of the Board of Directors,
shall have all the authority of the Board of Directors, except with respect to:
(1) The approval of any action which also requires, under the California General Corporation
Law, shareholders approval or approval of the outstanding shares;
(2) The filling of vacancies on the Board of Directors or in any committee;
(3) The fixing of compensation of the directors for serving on the Board of Directors or on
any committee;
(4) The amendment or repeal of bylaws or the adoption of new bylaws;
(5) The amendment or repeal of any resolution of the Board of Directors which by its express
terms is not so amendable or repealable;
(6) A distribution to the shareholders of the corporation, except at a rate or in a periodic
amount or within a price range set forth in the corporations Articles of Incorporation or
determined by the Board of Directors; and
(7) The appointment of other committees of the Board of Directors or the members thereof.
(b) Meetings and Action. The provisions of Section 3.8 shall apply also to committees
of the Board of Directors and action by such committees, with such changes as are necessary to
substitute the committee and its members for the Board of Directors and its members, except that
the time of meetings of committees may be determined either by resolution of the Board of Directors
or by resolution of the committee; and notice of special committee meetings shall also be given to
all alternate members, who shall have the right to attend all meetings of the committee. The Board
of Directors may adopt rules for the governing of any committee not inconsistent with these bylaws.
Section 3.11 Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services and such reimbursement of
expenses as may be fixed or determined by resolution of the Board of Directors. This Section 3.11
shall not be construed to preclude any director from serving the corporation in any other capacity
as an officer, agent, employee or otherwise and receiving compensation for those services.
Section 3.12 Corporate Loans and Guaranties to Directors, Officers and
Others.
(i) The corporation may make a loan of money or property to, or guarantee the obligation
of, any director or officer of the corporation or of its parent if the transaction, or an employee
benefit plan authorizing the loans or guaranties after disclosure of the right under such a
17
plan to include officers or directors, is approved by a majority of the shareholders entitled
to act thereon.
(ii) The Board of Directors alone may approve loans of money or property to, or the guarantee
of obligations of, any officer of the corporation, whether or not a director, or an employee
benefit plan authorizing such a loan or guaranty to an officer provided that (1) the Board of
Directors determines that such a loan or guaranty or plan may reasonably be expected to benefit the
corporation, (2) the corporation has outstanding shares held of record by 100 or more persons
(determined as provided in Section 605 of the California General Corporation Law) on the date of
approval by the Board of Directors, and (3) the approval of the Board of Directors is by a vote
sufficient without counting the vote of any interested director or directors.
(iii) The corporation shall not make any loan of money or property to, or guarantee the
obligation of, any person upon the security of shares of the corporation or of its parent if the
corporations recourse in the event of default is limited to the security for the loan or guaranty,
unless the loan or guaranty is adequately secured without considering these shares, or the loan or
guaranty is approved by a majority of the shareholders entitled to act thereon.
(iv) Notwithstanding Subparagraph (a) above, a corporation may advance money to a director or
officer of the corporation or of its parent for any expenses reasonably anticipated to be incurred
in the performance of the duties of the director or officer, provided that in the absence of the
advance the director or officer would be entitled to be reimbursed for the expenses by the
corporation, its parent, or any subsidiary.
(v) The provisions of Subparagraph (a) above do not apply to the payment of premiums in
whole or in part by a corporation on a life insurance policy on the life of a director or officer
so long as repayment to the corporation of the amount paid by it is secured by the proceeds of the
policy and its cash surrender value.
(vi) This Section 3.12 does not apply to any of the following: (1) any transaction, plan or
agreement permitted under Section 408 of the California General Corporation Law; or (2) any loan or
guaranty made by a corporation that makes loans or guaranties in the ordinary course of its
business if statutes or regulations pertaining to the corporation expressly regulate the making by
the corporation of loans to its officers or directors or the undertaking of guaranties of the
obligations of its officers or directors.
(vii) For the purposes of Subparagraph (a) and (c) of this Section 3.12, approval by a
majority of the shareholders entitled to act means either (1) written consent of a majority of the
outstanding shares without counting as outstanding or consenting any shares owned by any officer or
director eligible to participate in the plan or transaction that is subject to this approval, (2)
the affirmative vote of a majority of the shares present and voting at a duly held meeting at which
a quorum is otherwise present, without counting for purposes of the vote as either present or
voting any shares owned by any officer or director eligible to participate in the plan or
transaction that is subject to the approval, or (3) the unanimous vote or written consent of the
shareholders. In the case of a corporation which has more than one class or series of shares
outstanding, the shareholders entitled to act within the meaning of this section includes only
holders of those
18
classes or series entitled under the Articles of Incorporation to vote on all matters before
the shareholders or to vote on the subject matter of this section, and includes a requirement for
separate class or series voting, or for more or less than one vote per share, only to the extent
required by the Articles of Incorporation.
Article IV. Officers.
Section 4.1 Officers. The officers of the corporation shall consist of a
chairman of the board or a president, or both, a secretary, a chief financial officer and such
additional officers as stated in these bylaws or determined by the Board of Directors in accordance
with Section 4.3 of these bylaws and as may be necessary to enable the corporation to sign
instruments and share certificates. Any number of offices may be held by the same person.
Section 4.2 Elections. All officers of the corporation, except such
officers as may be otherwise appointed in accordance with Section 4.3, shall be chosen by the Board
of Directors, and serve at the pleasure of the Board of Directors, subject to the rights, if any,
of an officer under any contract of employment.
Section 4.3 Other Officers. The Board of Directors, at its discretion, may
appoint, or empower the president to appoint, one or more vice presidents, one or more assistant
secretaries, a treasurer, one or more assistant treasurers or such other officers as the business
of the corporation may require, each of whom shall hold office for such period, have such authority
and perform such duties as provided in these bylaws or as the Board of Directors may from time to
time determine.
Section 4.4 Removal. Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with or without cause, by the Board of
Directors or, except in the case of an officer chosen by the Board of Directors, by an officer upon
whom such power of removal may be conferred by the Board of Directors.
Section 4.5 Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors or to the president or the secretary of the corporation
without prejudice to the rights, if any, of the corporation under any contract to which such
officer is a party. Any such resignation shall take effect on the date of receipt of such notice
or at any later time specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 4.6 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the manner prescribed
in these bylaws for regular appointments to such office.
Section 4.7 Chairman of the Board. The chairman of the board, if there
shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time assigned to him by
the Board of Directors. If there is no president, the chairman of the board shall in addition be
the chief executive officer of the corporation and shall have the powers and duties prescribed in
Section 4.8 below.
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Section 4.8 President. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the chairman of the board, if there be such an officer, the
president shall be chief executive officer of the corporation and shall, subject to the control of
the Board of Directors, have general supervision, direction and control of the business and affairs
of the corporation. He shall preside at all meetings of the shareholders and, in the absence of
the chairman of the board, or if there be none, at all meetings of the Board of Directors. He
shall have the general powers and duties of management usually vested in the office of president of
a corporation and shall have such other powers and duties as may be prescribed by the Board of
Directors or these bylaws.
Section 4.9 Vice Presidents. In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a vice president designated by the Board of Directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively by the Board of Directors,
these bylaws, the president or chairman of the board.
Section 4.10 Secretary. The secretary shall keep or cause to be kept, at
the principal executive office of the corporation or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of directors, committees of directors and
shareholders. The minutes shall show the time and place of each meeting, whether regular or
special (and, if special, how authorized and the notice given), the names of those present at
directors meetings or committee meetings, the number of shares present or represented at
shareholders meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
corporation or at the office of the corporations transfer agent or registrar, as determined by
resolution of the Board of Directors, a share register, or a duplicate share register, showing the
names of all shareholders and their addresses,, the number of shares held by each, the number and
date of certificates evidencing such shares, and the number and date of cancellation of every
certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the shareholders and
of the Board of Directors required to be given by law or by these bylaws. He shall keep the seal
of the corporation, if one be adopted, in safe custody. The secretary shall not be deemed an
executive officer of the corporation and shall be limited in his responsibilities and authority to
the types of ministerial acts described in this Section 4.10 and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by these bylaws.
Section 4.11 Chief Financial Officer. The chief financial officer shall
have general supervision, direction and control of the financial affairs of the corporation and
shall have such other powers and duties as may be prescribed by the Board of Directors or these
bylaws. In the absence of a named treasurer, the chief financial officer shall be authorized and
empowered to sign as treasurer in any case where such officers signature is required. The chief
financial officer shall keep or cause to be kept and maintained adequate and correct books and
records of accounts of the
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properties and business transactions of the corporation, including its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of
account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the name and to
the credit of the corporation with such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by the Board of
Directors, shall render to the president and directors, whenever they request it, an account of all
of his transactions as chief financial officer and of the financial condition of the corporation
and shall have such other powers and perform such other duties as may be prescribed by the Board of
Directors or these bylaws.
Article V. Records and Reports.
Section 5.1 Books, Records and Reports.
(a) Books of Account and Records. The corporation shall keep adequate and correct
books and records of account and shall keep minutes of the proceedings of its shareholders, the
Board and committees of the Board and shall keep at its principal executive office, or at the
office of its transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each. Such minutes shall
be kept in written form. Such other books and records shall be kept either in written form or in
any other form capable of being converted into written form.
(b) Annual Report. The annual report to shareholders referred to in Section 1501(a)
of the California General Corporation Law is expressly dispensed with, but nothing herein shall be
interpreted as prohibiting the Board of Directors from issuing annual or other periodic reports to
the shareholders of the corporation as the Board considers appropriate. In conformity with Section
1501 of the California General Corporation Law, if this corporation has 100 or more shareholders of
record, an annual report shall be sent to the shareholders of this corporation not later than 120
days after the close of the fiscal year and at least 15 (or, if sent by third-class mail, 35) days
prior to the annual meeting of shareholders to be held during the next fiscal year. This report
shall contain a balance sheet as of the end of that fiscal year and an income statement and
statement of changes in financial position for that fiscal year, accompanied by a report 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. Such report shall also include such further statements required by law applicable to
the corporation from time to time.
(c) Shareholders Requests for Financial Reports. If no annual report for the last
fiscal year has been sent to the shareholders, the corporation shall, upon the written request of
any shareholder made more than 120 days after the close of such fiscal year, deliver or mail to the
shareholder making the request within 30 days thereafter the same financial statements required by
Section 1501(a) of the California General Corporation Law for that year. Any 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
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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 the period
and, in addition, if no annual report for the last fiscal year has been sent to shareholders, the
statements referred to in Section 1501(a) of the California General Corporation Law for the last
fiscal year. The statements shall be delivered or mailed to the person making the request within
30 days after receipt thereof. A copy of the statements shall be kept on file in the principal
office of the corporation for 12 months and it shall be exhibited at all reasonable times to any
shareholder demanding an examination of the statements or a copy shall be mailed to such
shareholder upon demand.
The quarterly income statements and balance sheets referred to in this Section 5.1(c) 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.
The corporation also shall, upon the written request of any shareholder, mail to the
shareholder a copy of the last annual, semiannual or quarterly income statement which it has
prepared and a balance sheet as of the end of the period.
Section 5.2 Rights of Inspection.
(a) By Shareholders.
(1) Record of Shareholders. Any shareholder or shareholders holding at least five
percent 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: (i) inspect and copy the record of
shareholders names and addresses and shareholdings during usual business hours upon five business
days prior written demand upon the corporation or (ii) obtain from the transfer agent for the
corporation, upon 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 upon request), a
list of the names and addresses of the shareholders, 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. The list
shall be made available on or before the later of five business days after demand is received or
the date specified therein as the date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection and copying by a 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 holders interests as a shareholder or
holder of a voting trust certificate. Any inspection and copying under Section 5.2(a) may be made
in person or by agent or attorney.
(2) Accounting Books and Records. The accounting books and records and minutes of
proceedings of the shareholders, the Board of Directors and the committees of the
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Board of Directors shall be open to inspection upon the written demand on the corporation of
any shareholder or holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holders interests as a shareholder or as
the holder of such voting trust certificate. This right of inspection shall also extend to the
records of each subsidiary of the corporation. Such inspection by a shareholder or holder of a
voting trust certificate may be made in person or by agent or attorney, and the right of inspection
includes the right to copy and make extracts.
(3) Bylaws. The corporation shall keep at its principal executive office in this
state, or if its principal executive office is not in this state at its principal business office
in this state, the original or a copy of its bylaws, as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If the principal
executive office of the corporation is outside this state and the corporation has no principal
business office in this state the corporation shall upon the written request of any shareholder
furnish to such shareholder a copy of the bylaws as amended to date.
(b) By Directors. Every director of the corporation shall have the absolute right at
any reasonable time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the corporation and also of its subsidiary corporations,
domestic or foreign. Such inspection by a director may be made in person or by agent or attorney
and the right of inspection includes the right to copy and make extracts.
Article VI. Miscellaneous.
Section 6.1 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness issued in the name of or payable to the
corporation shall be signed or endorsed by such person or persons and in such manner as, from time
to time, shall be determined by resolution of the Board of Directors.
Section 6.2 Authority to Execute Contracts. The Board of Directors may
authorize any officer or officers or agent or agents to enter into any contract or execute any
instrument in the name of or on behalf of the corporation, and such authority may be general or
confined to specific instances; and, unless so authorized by the Board of Directors, no officer,
agent or employee shall have any power or authority to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or to any amount.
Section 6.3 Representation of Shares of Other Corporations. The chairman of
the board, if any, the president or any vice president and the secretary or assistant secretary of
the corporation are authorized to vote, represent and exercise on behalf of the corporation all
rights incident to any and all shares of any other corporation or corporations standing in the name
of the corporation. The authority herein granted to said officers to vote or represent on behalf
of the corporation any and all shares held by the corporation in any other corporation or
corporations may be exercised either by such officers in person or by any other person authorized
so to do by proxy or power of attorney duly executed by said officers.
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Section 6.4 Indemnification and Insurance.
(i) The corporation shall, to the maximum extent and in the manner permitted by the
California General Corporation Law, but subject to any limitations set forth in any applicable
indemnification agreement between the Company and any director or officer of the Company, indemnify
each of its directors and officers against expenses (as defined in Section 317(a) of the California
General Corporation Law), judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the California General
Corporation Law), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 6.4, a director or officer of the corporation
includes any person (i) who is or was a director or executive officer of the corporation, (ii) who
is or was serving at the request of the corporation as a director or executive officer of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or
executive officer of a corporation which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation.
(ii) The corporation shall have the power, to the extent and in the manner permitted by the
California General Corporation Law, to indemnify each of its employees and agents (other than
directors and officers) against expenses (as defined in Section 317(a) of the California General
Corporation Law), judgments, fines, settlements, and other amounts actually and reasonably incurred
in connection with any proceeding (as defined in Section 317(a) of the California General
Corporation Law), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 6.4 an employee or agent of the corporation (other
than a director or officer) includes any person (i) who is or was an employee or agent of the
corporation, (ii) who is or was serving at the request of the corporation as an employee or agent
of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an
employee or agent of a corporation which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation.
(iii) Expenses incurred in defending any civil or criminal action or proceeding for which
indemnification is required pursuant to Section 6.4(a), or for which indemnification is permitted
pursuant to Section 6.4(b) following authorization thereof by the Board of Directors, shall be paid
by the corporation in advance of the final disposition of such action or proceeding upon receipt of
an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately
be determined that the indemnified party is not entitled to be indemnified as authorized in this
Section 6.4. Notwithstanding the foregoing, the corporation shall not be required to advance
expenses to a director or officer with respect to proceedings or claims initiated or brought
voluntarily by such director or officer and not by way of defense, except with respect to
proceedings or claims initiated or brought to enforce any indemnification agreement or a right to
indemnification under Section 317 of the California General Corporations Law or under any other
statute or law, but such advancement of expenses may be provided by the corporation in specific
cases if the Board of Directors has approved the initiation or bringing of such suit.
(iv) The indemnification provided by this Section 6.4 shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
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bylaw, 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 such additional rights to indemnification are authorized in the Articles of
Incorporation.
(v) The corporation shall have the power to purchase and maintain insurance on behalf of any
person who is or was an agent of the corporation against any liability asserted against or incurred
by such person in such capacity or arising out of such persons status as such, whether or not the
corporation would have the power to indemnify him or her against such liability under the
provisions of this Section 6.4.
(vi) No indemnification or advance shall be made under this Section 6.4, except where such
indemnification or advance is mandated by law or the order, judgment or decree of any court of
competent jurisdiction, in any circumstance where it appears:
(i) That is would be inconsistent with a provision of the Articles of Incorporation, these
bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of
the alleged cause of action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(ii) That it would be inconsistent with any condition expressly imposed by a court in
approving a settlement.
Section 6.5 Employee Stock Purchase Plans. The corporation may adopt and
carry out a stock purchase plan or agreement or stock option plan or agreement providing for the
issue and sale for such consideration as may be fixed of its unissued shares, or of issued shares
acquired or to be acquired, to one or more of the employees or directors of the corporation or a
subsidiary or parent thereof or to a trustee on their behalf and for the payment for such shares in
installments or at one time, and may provide for aiding any such persons in paying for such shares
by compensation for services rendered, promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or agreement may include, among other
features, the fixing of eligibility for participation therein, the class and price of shares to be
issued or sold under the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the reservation of title until full payment therefor, the effect of the
termination of employment, an option or obligation on the part of the corporation to repurchase the
shares upon termination of employment, subject to the provisions of the California General
Corporation Law, restrictions upon transfer of the shares and the time limits of and termination of
the plan.
Section 6.6 Construction and Definitions. Unless the context otherwise
requires, the general provisions, rules of construction and definitions contained in the California
General Corporation Law shall govern the construction of these bylaws. Without limiting the
generality of the foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the term person
includes a corporation as well as a natural person.
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Section 6.7 Reimbursement of Disallowed Compensation. Any payments made to
an officer or director of the corporation including, but not limited to, payments of compensation,
interest, rent or reimbursement for expenses, which payments are disallowed to the corporation in
whole or in part by the Internal Revenue Service as a deductible business expense, shall at the
option of the corporation, be reimbursed by such officer or director to the corporation to the full
extent of the amount so disallowed. Any officer or director of the corporation who shall have
received payment of any such amounts so disallowed shall promptly, on demand, reimburse the
corporation for the same. The corporation may withhold the amount of any such disallowance from
the future compensation or other payments which may be due or become due to such officer or
director if he does not reimburse the corporation on demand.
Article VII. Amendments.
Section 7.1 Power of Shareholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the affirmative vote of a majority of the outstanding shares
entitled to vote or by the written consent of such shareholders, except as otherwise provided by
law or by the Articles of Incorporation.
Section 7.2 Power of Directors. Subject to the right of shareholders as provided
in Section 7.1 to adopt, amend or repeal bylaws, any bylaw may be adopted, amended or repealed by
the Board of Directors other than a bylaw or amendment thereof changing the authorized number of
directors, if such number is fixed, or the maximum-minimum limits thereof, if an indefinite number.
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Amendment No. 1 to
Tekelec
Amended and Restated Bylaws, as Amended
Tekelec
Amended and Restated Bylaws, as Amended
Section 3.2 of Article III of Tekelecs Amended and Restated Bylaws, as amended, is hereby
amended, effectively immediately, to read in its entirety as follows:
Section 3.2. Number and Qualification of Directors. The
number of directors of this corporation shall not be less than
five (5) nor more than (9). The exact number of directors shall
be seven (7) until changed, within the limits specified above, by
a bylaw amending this Section 3.2, duly adopted by the Board of
Directors or by the shareholders. The indefinite number of
directors may be changed, or a definite number fixed without
provision for an indefinite number, by a duly adopted amendment to
the Articles of Incorporation or by an amendment to this bylaw
duly adopted by the vote or written consent of holders of
two-thirds (2/3) of the outstanding shares entitled to vote;
provided however, that an amendment reducing the number or the
minimum number of directors to a number less than five (5) cannot
be adopted if the votes cast against its adoption at a meeting of
the shareholders, or the shares not consenting in the case of an
action by written consent, are equal to more than sixteen and
two-thirds (16 2/3) of the outstanding shares entitled to vote
thereon. No amendment may change the stated maximum number of
authorized directors to a number greater than two (2) times the
stated minimum number of directors minus one (1).
Dated: January 4, 2011
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