Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Amendment No. 1 to Form S-4 141 745K
2: EX-3.1 Articles of Incorporation of the Company 10 36K
3: EX-3.2 By-Laws of the Company 9 42K
4: EX-3.3 Articles of Incorporation of Kilovac 75 142K
5: EX-3.4 By-Laws of Kilovac 20 76K
6: EX-3.5 Articles of Incorporation of Kilovac International 2 14K
7: EX-3.6 By-Laws of Kilovac International 19 76K
8: EX-4.1 Indenture, Dated September 18, 1997 147 467K
9: EX-4.2 Purchase Agreement, Dated September 12, 1997 40 132K
10: EX-4.3 Registration Rights Agreement 33 121K
11: EX-10.1 Ramzi A. Dabbagh Employment Agreement 8 34K
19: EX-10.10 Security Agreement, Dated September 18, 1997 53 154K
20: EX-10.11 Stock Subscription & Purchase Agreement 29 161K
21: EX-10.13 Environmental Remediation & Escrow Agreement 16 45K
22: EX-10.14 Lease Agreement, Dated July 2, 1996 31 116K
23: EX-10.15 2nd Amend. to Stock Subscription & Purchase Agrmt 8 36K
24: EX-10.17 Amend. to the Recapitalization Agreement 61 280K
25: EX-10.18 Indemnification & Escrow Agreement 12 57K
26: EX-10.19 Stockholders Agreement, Dated September 18, 1997 27 98K
12: EX-10.2 G. Daniel Taylor Employment Agreement 8 34K
27: EX-10.20 Registration Agreement, Dated September 18, 1997 27 98K
28: EX-10.21 Form of Junior Subordinated 10 47K
29: EX-10.22 Kilovac & Dan McAllister Employment Agreement 4 26K
30: EX-10.23 Kilovac & McPherson Employment Agreement 4 27K
31: EX-10.24 Kilovac & Rick Danchuk Employment Agreement 4 27K
32: EX-10.25 Kilovac & Robert A. Helman Employment Agreement 4 27K
13: EX-10.3 Michael A. Steinback Employment Agreement 4 25K
14: EX-10.4 David Henning Employment Agreement 3 21K
15: EX-10.5 Management Agreement, Dated September 18, 1997 5 25K
16: EX-10.6 Tax Sharing Agreement 4 21K
17: EX-10.8 Pledge Agreements, Dated September 18, 1997 17 62K
18: EX-10.9 Subsidiary Guarantee, Dated September 18, 1997 14 55K
33: EX-12.1 Statement of Computation of Ratios 1 15K
34: EX-21.1 Subsidiaries of the Company, Kilovac & Kilovac Int 1 12K
35: EX-23.1 Consent of Deloitte & Touche LLP 1 13K
36: EX-23.2 Consent of Deloitte & Touche 1 13K
37: EX-23.3 Consent of Deloitte & Touche LLP 1 13K
38: EX-99.1 Form of Letter of Transmittal 11 57K
39: EX-99.2 Form of Notice of Guaranteed Delivery 4 24K
40: EX-99.3 Form of Tender Instructions 2± 16K
EX-3.4 — By-Laws of Kilovac
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BY-LAWS
OF
KILOVAC CORPORATION
ARTICLE I
OFFICES
Section 1. Principal Executive Office. The principal executive
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Office Of the corporation is hereby fixed and located at: 550 Linden Avenue,
Carpinteria, California 93013.
The board of directors is hereby granted full power and authority to change said
principal executive office from one location to another. Any such change shall
be noted on the bylaws by the secretary, opposite this section, or this section
may be amended to state the new location.
Section 2. Other Offices. Other business offices may at any time be
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established by the board of directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All annual or other meetings of
-----------------
shareholders shall be held at the principal executive office of the corporation
or at any other place within or without the State of California which may be
designated either by the board of directors or by the written consent of all
persons entitled to vote thereat and not present at the meeting given either
before or after the meeting and filed with the secretary of the corporation.
Section 2. Annual Meetings. The annual meetings of shareholders
---------------
shall be held on: the 90th day following the close of the corporation's
accounting year; provided, however, that should said day fall upon a legal
holiday, then any such annual meeting of shareholders shall be held at the same
time and place on the next day thereafter ensuing which is a full business day.
At such meetings, directors shall be elected, reports of the affairs of the
corporation shall be considered, and any other business may be transacted which
is within the powers of the shareholders.
Written notice of each annual meeting shall be given to each
shareholder entitled to vote, either personally or by mail or other means of
written communication, charges prepaid, addressed to such shareholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. 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. If a shareholder gives no address, notice shall be deemed to have
been given him if sent by mail or other means of written communication addressed
to the place where the principal executive office of the corporation is
situated, or if published at least once in some newspaper of general circulation
in the county in which said principal executive office is located.
All such notices shall be given to each shareholder entitled thereto
not less than ten (10) days nor more than sixty (6O) clays before each annual
meeting. Any such 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 such notice in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or any
transfer agent of the corporation, shall be prima facie evidence of the giving
of the notice.
Such notices shall specify:
(a) the place, the date, and the hour of such meeting;
(b) those matters which the board, at the time of the mailing of
the notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for election;
(d) the general nature of a proposal, if any, to take action with
respect to approval of, (i) a contract or other transaction with an interested
director, (ii) amendment of the articles of incorporation, (iii) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the corporation, or (v) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and
(e) such other matters, if any, as may be expressly required by
statute.
Section 3. Special Meetings. Special meetings of the shareholders,
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for the purpose of taking any action permitted by the shareholders under the
General Corporation Law and the articles of incorporation of this corporation,
may be called at any time by the chairman of the board or the president, or by
the board of directors, or by one or more shareholders holding not less than ten
percent (10%) of the votes at the meeting. Upon request in writing that a
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special meeting of shareholders be called for any proper purpose, directed to
the chairman of the board, president, vice-president or secretary, by any person
(other than the board) entitled to call a special meeting of shareholders, the
officer forthwith shall cause notice to be given to shareholders entitled to
vote that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after receipt of the request. Except in special cases where other express
provision is made by statute, notice of such special meetings shall be given in
the same manner as for annual meetings of shareholders. In addition to the
matters required by items (a) and, if applicable, (c) of the preceding Section,
notice of any special meeting shall specify the general nature of the business
to be transacted, and no other business may be transacted at such meeting.
Section 4. Quorum. The Presence in person or by proxy of the persons
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entitled to vote a majority of the voting shares at any meeting shall constitute
a quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
Section 5. Adjourned Meeting and Notice Thereof. Any shareholders'
------------------------------------
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat, but in the absence
of a quorum no other business may be transacted at such meeting, except as
provided in Section 4 above.
When any shareholders' meeting, either annual or special, is
adjourned for forty-five days or more, or if after adjournment a new record date
is fixed for the adjourned meeting, notice of the adjourned meeting shall be
given as in the case of an original meeting. Except as provided above, it shall
not be necessary to give any notice of the time and place of the adjourned
meeting or of the business to be transacted thereat, other than by announcement
of the time and place thereof at the meeting at which such adjournment is taken.
Section 6. Voting. Unless a record date for voting purposes be fixed
------
as provided in Section 1 of Article V of these bylaws then, subject to the
provisions of Sections 702 and 704, inclusive, of the Corporations Code of
California (relating to voting of shares held by a fiduciary, in the name of a
corporation, or in joint ownership), only persons in whose names shares entitled
to vote stand on the stock records of the corporation at the close of business
on the business day next preceding the day on which notice of the meeting is
given or, if such notice is waived, at the close of business on the business day
next preceding the day on which the meeting of shareholders is held, shall be
entitled to vote at such meeting, and such day shall be the record date for such
meeting. Such vote may be viva voce or by ballot; provided, however, that all
elections for directors must be by ballot upon demand made by a shareholder at
any election and before the voting begins. If a quorum is present, except with
respect to election of
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directors, +,he affirmative vote of the majority of the shares represented at
the meeting and entitled to vote on any matter shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by the General Corporation Law or the articles of incorporation.
Subject to the requirements of the next sentence, every shareholder entitled to
vote at any election for directors shall have the right to cumulate his votes
and give one candidate a number of votes equal to the number of directors to be
elected, multiplied by the number of votes to which his shares are entitled, or
to distribute his votes on the same principle among as many candidates as he
shall think fit. No shareholder shall be entitled to cumulate votes unless the
name of the candidate or candidates for whom such votes would be cast has been
placed in nomination prior to the voting and any shareholder has given notice at
the meeting prior to the voting of such shareholder's intention to cumulate his
votes. The candidates receiving the highest number of votes of shares entitled
to be voted for them, up to the number of directors to be elected, shall be
elected.
Section 7. Validation of Defectively Called or Noticed Meetings. The
----------------------------------------------------
transactions oT any meeting of shareholders, either annual or special, however
called and noticed, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or bv proxy,
and if, either before or after the meeting, each of the persons entitled to
vote, not present in person or by proxy, or who, though present, has, at the
beginning of the meeting, properly objected to the transaction of any business
because the meeting was not lawfully called or convened, or to particular
matters of business legally required to be included in the notice, but not so
included, signs a written waiver of notice, or a consent to the holding of such
meeting, or an approval of the minutes thereof. All such waivers.9 consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 8. Action Without a Meeting. Directors may be elected without
------------------------
a meeting by a consent in writing, setting forth the action so taken, signed by
all of the persons who would be entitled to vote for the election of directors,
provided that, without notice except as hereinafter set forth, a director may be
elected at any time to fill a vacancy not filled by the directors by the written
consent of persons holding a majority of the outstanding shares entitled to vote
for the election of directors.
Any other action which, under any provision of the California General
Corporation Law, may be taken at a meeting of the shareholders, may be taken
without a meeting, and without notice except as hereinafter set forth, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Unless the consents of
all shareholders entitled to vote have been solicited in writing,
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(a) Notice of any proposed shareholder approval of, (i) a contract or
other transaction with an interested director, (ii) indemnification of an agent
of the corporation as authorized by Section 15, of Article III, of these bylaws,
(iii) a reorganization of the corporation as defined in Section 181 cf the
General Corporation Law, or (iv) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, if any, without a
meeting by less than unanimous written consent, shall be given at least ten (10)
days before the consummation of the action authorized by such approval; and
(b) Prompt notice shall be given of the taking of any other corporate
action approved by shareholders without a meeting by less than unanimous written
consent, to those Shareholders entitled to vote who have not consented in
writing. Such notices shall be given in the manner and shall be deemed to have
been given as provided in Section 2 of Article II of these bylaws.
Unless, as provided in Section 1 of Article V of these bylaws, the
board of directors has fixed a record date for the determination of shareholders
entitled to notice of and to give such written consent, the record date for such
determination shall be the day on which the first written consent is given. All
such written consents shall be filed with the secretary of the corporation.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a personal representative of the
shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the secretary of the corporation.
Section 9. Proxies. Every person entitled to vote or execute consents
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shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his duly authorized
agent and filed with the secretary of the corporation. Any proxy duly executed
is not revoked and continues in full force and effect until an instrument
revoking it or a duly executed proxy bearing a later date is filed with the
secretary of the corporation prior to the vote pursuant thereto, (ii) the person
executing the Droxy attends the meeting and votes in person, or (iii) written
notice of the death or incapacity of the maker of such proxy is received by the
corporation before the vote pursuant thereto is counted; provided that no such
proxy shall be valid after the expiration of eleven (11) months from the date of
its execution, unless the person executing it specifies therein the length of
time for which such proxy is to continue in force.
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Section 10. Inspectors of Election. In advance of any meeting of
----------------------
shareholders, the board of directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. If inspectors of election be not so appointed, the chairman of any
such meeting may, and on the request of any shareholder or his proxy shall, make
such appointment at the meeting. The number of inspectors shall be either one
or three. If 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. In case any
person appointed as inspector fails to appear or fails or refuses to act the
vacancy may, and on the request of any shareholder or a shareholder's proxy
shall, be filled by appointment by the board of directors in advance of the
meeting, or at the meeting by the chairman of the meeting.
The duties of such inspectors shall, be as prescribed by Section 707
of the General Corporation Law and shall include: determining the number of
shares outstanding and the voting Dower of each, the shares represented at the
meeting, the existence of a quorum, the authenticity, validity and effect of
proxies; receiving votes, ballots or consents; hearing and determining all
challenges and questions in any way arising in connection with the right to
vote; counting and tabulating all votes or consents; determining when the polls
shall close; determining the result; and such acts as may be proper to conduct
the election or vote with fairness to all shareholders. In the determination of
the validity and effect of proxies the dates contained on the forms of proxy
shall presumptively determine the order of execution of the proxies, regardless
of the postmark dates on the envelopes in which they are mailed.
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.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to limitations of the articles of
------
incorporation and of the California General Corporation Law as to action to be
authorized or approved by the shareholders, and subject to the duties of
directors as prescribed by the bylaws, all corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be controlled by, the board of directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
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First - To select and remove all the officers, agents and employees
-----
of the corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or the bylaws, fix
their compensation and require from them security for faithful service.
Second - To conduct, manage and control the affairs and business of
------
the corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the articles of incorporation or the bylaws, as
they may deem best.
Third - To change the principal executive office and principal office
-----
for the transaction of the business of the corporation from one location to
another as provided in Article I, Section 1, hereof; to fix and locate from time
to time one or more subsidiary offices of the corporation within or without the
State of California, as provided in Article I, Section 2,1 hereof; to designate
any place within or without the State of California for the holding of any
shareholders' meeting or meetings; and to adopt, make and use a corporate seal,
and to prescribe the forms of certificates of stock, and to alter the form of
such seal and of such certificates from time to time, as in their judgment they
may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
Fourth - To authorize the issue of shares of stock of the corporation
------
from time to time, upon such terms as may be lawful.
Fifth - To borrow money and incur indebtedness for the purposes of
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the corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Sixth - By resolution adopted by a majority of the authorized number
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of directors, to designate an executive and other committees, each consisting of
two or more directors, to serve at the pleasure of the board, and to prescribe
the manner in which proceedings of such committee shall be conducted. Unless
the board of directors shall otherwise prescribe the manner of proceedings of
any such committee, meetings of such committee may be regularly scheduled in
advance and may be called at any tine by any two members thereof; otherwise, the
provisions of these bylaws with respect to notice and conduct of meetings of the
board shall govern. Any such committee, to the extent provided in a resolution
of the board, shall have all of the authority of the board, except with respect
to:
(i) the approval of any action for which the General, Corporation
Law or the articles of incorporation also require shareholder approval;
(ii) the filling of vacancies on the board or in any committee;
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(iii) the fixing of compensation of the directors for serving on
the board or on any committee;
(iv) the adoption, amendment or repeal of bylaws;
(v) the amendment or repeal of any resolution of the board;
(vi) any distribution to the shareholders, except at a rate or in a
periodic amount or within a price range determined by the board; and
(vii) the appointment of other committees of the board or the members
thereof.
Section 2. Number and Qualification of Directors. The authorized
-------------------------------------
number of directors shall be five (5) until changed by amendment of the
---------------
articles of incorporation or by a bylaw amending this Section 2 duly adopted by
the vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided that a proposal to reduce the authorized number of
directors below five cannot be adopted if the votes cast against its adoption at
a meeting, or the shares not consenting in the case of action by written
consent, are equal to more than 16-2/3 percent of the outstanding shares
entitled to vote.
Section 3. Election and Term of Office. The directors shall be
---------------------------
elected at each annual meeting of shareholders but, if any such annual meeting
is not held or the directors are not elected thereat, the directors may be
elected at any special meeting of shareholders held for that purpose. All
directors shall hold office until their respective successors are elected,
subject to the General Corporation Law and the provisions of these bylaws with
respect to vacancies on the board.
Section 4. Vacancies. A vacancy in the board of directors shall be
---------
deemed to exist in case of the death, resignation or removal of any director, if
a director has been declared of unsound mind by order of court or convicted of
a felony, if the authorized number of directors be increased, or if the
shareholders fail, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meetings
Vacancies in the board of directors, except for a vacancy created by
the removal of a director, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until his successor is elected at an
annual or a special meeting of the shareholders. A vacancy in the board of
directors created by the removal of a director may only be filled by the vote of
a majority of the shares entitled to vote represented at a duly held meeting at
which a quorum is pre5ent, or by the written consent of the holders of a
majority of the outstanding shares.
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The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors. Any such election by
written consent shall require the consent of holders of a majority of the
outstanding shares entitled to vote.
Any director may resign effective upon giving written notice to the
chairman of the board, the president, the secretary or the board of directors of
the corporation, unless the notice specifies a later time for the effectiveness
of such resignation. If the board of directors accept the resignation of a
director tendered to take effect at a future time, the board or the shareholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his tern, of office.
Section 5. Place of Meeting. Regular meetings of the board of
----------------
directors shall the board of directors shall be held at any place within or
without the State which has been designated from time to time by resolution of
the board or by written consent of all members of the board. In the absence of
such designation, regular meetings shall be held at the principal executive
office of the corporation. Special meetings of the board may be held either at a
place so designated or at the principal executive office.
Section 6. Organization Meeting. Immediately following each annual
--------------------
meeting of shareholders the board of directors shall hold a regular meeting at
the place of said annual meeting or at such other place as shall be fixed by the
board of directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 7. Other Regular Meetings. Other regular meetings of the
----------------------
board of directors shall be held without call at the principal executive office
of the corporation at 9:00 o'clock A.M., March 31 and September 30,
---------------------------------------
of each year, provided, however, should said day fall upon a legal holiday, then
said meeting shall be held at the same time on the next day thereafter ensuing
which is a full business day. Notice of all such regular meetings of the board
of directors is hereby dispensed with.
Section 8. Special Meetings. Special meetings of the board of
----------------
directors for any purpose or purposes shall be called at any time by the
chairman of the board, the president, any vice president, the secretary or by
any two directors.
Written notice of the time and place of special meetings shall be
delivered personally to each director or communicated to each director by
telephone, or by telegraph or mail, charges prepaid, addressed to him at his
address as it is shown upon the records of the corporation or, if it is not so
shown on such records or is not readily ascertainable, at the place at
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which the meetings of the directors are regularly held. In case such notice is
mailed or telegraphed, it shall be deposited in the United States mailed or
telegraphed, it shall be deposited in the United States mail or delivered to the
telegraph company in the place in which the principal executive office of the
corporation is located at least forty-eight hours prior to the time of the
holding of the meeting. In case such notice is delivered, personally or by
telephone, as above provided, it shall be so delivered at least twenty-four
hours prior to the time of the holding of the meeting. Such mailing, provided,
shall be due, legal and personal notice to such director.
Any notice shall state the date, place and hour of the meeting and the
general nature of the business to be transacted, and no other business may be
transacted at the meeting.
Section 9. Action Without Meeting. Any action by the board of
----------------------
directors may be taken without a meeting if all members of the board shall
individually or collectively consent in writing to such action. Such written
con sent or consents shall be filed with the minutes of the proceedings of the
board and shall have the same force and effect as a unanimous vote of such
directors.
Section 10. Action at a Meeting; Quorum and Required Vote. Presence of
---------------------------------------------
a majority of the authorized number of directors at a meeting of the board of
directors constitutes a quorum of the transaction of business, except as
hereinafter provided. Members of the board may participate in a meeting through
use of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participation in a
meeting as permitted in the preceding sentence constitutes presence in person at
such meeting. 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 shall be regarded as
the act of the board of directors, unless a greater number, or the same number
after disqualifying one or more directors from voting, is required by law, by
the articles of incorporation, or by these bylaws. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting.
Section 11. Validation of Defectively Called or Noticed Meetings. The
----------------------------------------------------
transactions of any meting of the board of directors, however called and noticed
or wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum is present and if, either before or after
the meeting, each of the directors not present or who, though present, has prior
to the meeting or at its commencement, protested the lack of proper notice to
him, signs a written waiver of notice or a consent to holding such meeting or an
approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meetings.
Section 12. Adjournment. A quorum of the directors may adjourn any
-----------
directors' meeting to meet again at a stated day and hour; provided, however,
that in the absence
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of a quorum a majority of the directors present at any directors' meeting,
either regular or special, may adjourn from time to time until the time fixed
for the next regular meeting of the board.
Section 13. Notice of Adjournment. If the meeting is adjourned for
---------------------
more than 24 hours, notice of any adjournment to another time or place shall be
given prior to the time of the adjourned meeting ot the directors who were not
present at the time of adjournment. Otherwise notice of the time and place of
holding an adjourned meeting need not be given to absent directors if the time
and place be fixed at the meeting adjourned.
Section 14. Fees and Compensation. Directors and members of committees
---------------------
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
board.
Section 15. Indemnification of Agents of the Corporation; Purchase of
---------------------------------------------------------
Liability Insurance.
-------------------
(a) For the purpose of this Section, "agent" means any person who is
or was a director, officer, employee or other agent of this corporation, or is
or was serving at the request of this corporation as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, or was a director, officer, employee or
agent of a foreign or domestic corporation which was a predecessor corporation
of this corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expense" includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under subdivision (d) or subdivision
(e)(3) of this Section.
(b) This corporation shall indemnify any person who was or is a party,
or is threatened to be made a party, to any proceeding (other than an action by
or in the right of this corporation) by reason of the fact that such person is
or was an agent of this corporation, against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with such proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests of this corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
the best interest of this corporation or that the person had reasonable cause to
believe that the person's conduct was unlawful.
(c) This corporation shall indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending or completed
action by or in the right
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of this corporation to procure a judgment in its favor by reason of the fact
that such person is or was an agent of this corporation, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action if such person acted in good faith, in a manner
such person believed to be in the best interests of this corporation and with
such care, including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances. No indemnification shall be
made under this subdivision (c):
(1) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to this corporation in the
performance of such person's duty to this corporation, unless and only to the
extent hat the court in which such action was brought shall determine upon
application that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for the expenses which such court
shall determine;
(2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(3) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposal of without court approval.
(d) To the extent that an agent of this corporation has been
successful on the merits in defense of any proceeding referred to in subdivision
(b) or (c) or in defense of any claim, issue or matter therein, the agent shall
be indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this section shall be made by this corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct set forth in subdivision (b) or (c), by:
(1) A majority vote of a quorum consisting of directors who are
not parties to such proceeding;
(2) Approval or ratification by the affirmative vote of a
majority of the shares of this corporation entitled to vote represented at a
duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares entitled to vote. For such
purpose, the shares owned by the person to be indemnified shall not be
considered outstanding or entitled to vote thereon; or
(3) The court in which such proceeding is or was pending, upon
application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by this
corporation.
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(f) Expenses incurred in defending any proceeding may be advanced by
this corporation prior to the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amount unless it
shall be determined ultimately that the agent is entitled to be indemnified as
authorized in this Section.
(g) Nothing contained in this Section shall affect any right to
indemnification to which persons other than directors and officers of this
corporation or any subsidiary hereof may be entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this Section,
except as provided in subdivision (d) or subdivision (e)(3), in any circumstance
where it appears:
(1) That it would be inconsistent with a provision of the
articles, 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
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) Upon and in the event of a determination by the board of
directors of this corporation to purchase such insurance, this corporation shall
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of th agent's status as such whether or not this corporation
would have the power to indemnify the agent against such liability under the
provision of this Section.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the corporation shall be a
--------
president, a secretary and a treasurer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice-
presidents, one or more assistant secretaries, one or more assistant treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article. One person may hold two or more offices.
Section 2. Election. The officers of the corporation-,i, except such
--------
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by the board of directors,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
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Section 3. Subordinate Officers, Etc. The board of directors may
-------------------------
appoint, ana may empower the president to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office, for
such period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
Section 4. Removal and Resignation. Any officer may be removed, either
-----------------------
with or without cause, by the board of directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the board of
directors, by any officer upon whom such power of removal may be conferred by
the board of directors (subject, in each CASE2 to the rights, if any, of an
officer under any contract of employment).
Any officer may resign at any time by giving written notice to the
board of directors or to the president, or to the secretary of the corporation,
without prejudice however.$ to the rights, if any, of the corporation under any
contract to which such officer is a party. Any such resignation shall take
effect at the date of the 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 5. Vacancies. A vacancy in any office because of death,
---------
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the bylaws for regular appointments to such office.
Section 6. 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 or prescribed by
the bylaws.
Section 7. President. Subject to such supervisory powers, if any,
---------
as may be given by the board of directors to the chairman of the board, if there
be such an officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and officers of the
corporation. He 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 be ex-officio a member of all the standing
committees, including the executive committee, if any, and shall have the
general powers, and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the board of directors or the bylaws.
Section 8. Vice-President. In the absence or disability of the
--------------
president, the vice-presidents, if there shall be such an office, in order of
their rank as fixed by the board of directors or, if not ranked, the vice-
president designated by the board of directors, shall perform
-14-
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
or the bylaws.
Section 9. Secretary. The secretary shall record or cause to be
---------
recorded, and shall keep or cause to be kept, at the principal executive office
and such other place as the board of directors may order, a book of minutes of
actions taken at all meetings of directors and shareholders, with the time and
place of holding, whether regular or special, and, if special, how authorized,
the notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at shareholders' meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the board of directors required by the
bylaws or by law to be given, and he shall keep the seal of the corporation in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by the bylaws.
Section 10. Treasurer. The treasurer shall be the chief financial
---------
officer of the corporation and shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the corporation. The books of account shall at all reasonable
times be open to inspection by any director.
The treasurer 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
treasurer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or the bylaws.
ARTICLE V
MISCELLANEOUS
Section 1. Record Date. The board of directors may fix a time in
-----------
the future as a record date for the determination of the shareholders entitled
to notice of and to vote at any
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meeting of shareholders or entitled to give consent to corporate action in
writing without a meeting, to receive any report, to receive any dividend or
distribution, or any allotment of rights, or to exercise rights in respect to
any change, conversion, or exchange of shares. The record date so fixed shall be
not more than sixty (60) days nor less than ten (10) days prior to the date of
any meeting, nor more than sixty (60) days prior to any other event for the
purposes of which it is fixed. When a record date is so fixed only shareholders
of record on that date are entitled to notice of and to vote at any such
meeting, to give consent without a meeting, to -receive any report, to receive a
dividend, distribution, or allotment of rights, or to exercise the rights, as
the case may be, notwithstanding any transfer of any shares on the books of the
corporation af',-er the record date, except as otherwise provided in the
articles of incorporation or bylaws.
Section 2. Inspection of Corporate Records. The accounting books and
-------------------------------
records, the record of shareholders, and minutes of proceedings of the
shareholders and the board and committees of the board of this corporation and
any subsidiary of this corporation 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 holder's interests as a shareholder or as the holder
of such voting trust certificate. 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.
A 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 (in person, or by agent or attorney) the
right to 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 and to obtain from the transfer agent for the
corporation, upon written demand and upon the tender of usual charges, a list of
the shareholders' names and addresses, who are entitled to vote for the election
of directors, and their shareholdings, as of the most recent record date for
which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled.
Every director 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. 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.
Section 3. Checks, Drafts, Etc. All checks, drafts or other orders
-------------------
for payment money, notes or other evidences of indebtedness, issued in the name
of payable to the
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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 4. Annual and Other Reports. At such time as this corporation
------------------------
has 100 or more shareholders of record (determined in accord with Section 605 of
the California Corporations Code), the board of directors of the corporation
shall cause an annual report to be sent to the shareholders not later than 120
days after the close of the fiscal or calendar year. Sending of such annual
report shall be discretionary with the board of directors when this corporation
has less than 100 shareholders of record, and the requirement to send such
report is hereby waived. Such report shall contain a balance sheet as of the end
of such fiscal year and an income statement and statement of changes in
financial position for such fiscal year, accompanied by any report thereon of
independent accountants or, if there is no such report, the certificate of an
authorized officer of the corporation that such statements were prepared without
audit from the books and records of the corporation.
A shareholder or shareholders holding at least five percent of the
outstanding shares of any class of the corporation may make a written request to
the corporation for an income statement of the corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than 30
days prior to the date of the request and a balance sheet of the corporation as
of the end of such period and, in addition, if no annual report for the last
fiscal year has been sent to shareholders, the annual report for the last fiscal
year. The corporation shall use its best efforts to deliver the statement to
the person making the request within 30 days thereafter. A copy of any such
statements shall be kept in the principal executive office of the corporation
for 12 months and shall be exhibited at all reasonable times to any shareholder
demanding an examination of them or a copy shall be mailed to such shareholder.
The corporation shall, upon the written request of any shareholder.,
mail to the shareholder a copy of the last annual, semi-annual or quarterly
income statement which it has prepared and a balance sheet as of the end of the
period. The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of. the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
Section 5. Contracts, Etc.; How Executed. The board of directors,
-----------------------------
except as in bylaws otherwise provided, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation, 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.
-17-
Section 6. Certificate for Shares. Every holder of shares in the
----------------------
corporation shall be entitled to have a certificate signed in the name of the
corporation by the chairman or vice chairman of the board or the president or a
vice president and by the chief financial officer or an assistant treasurer or
the secretary or any assistant secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any of the signatures
on the certificate may be facsimile, provided that in such event at least one
signature, including that of either officer or the corporation's registrar or
transfer agent, if any, shall be manually signed. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person were an officer, transfer agent or
registrar at the date of issue.
Any such certificate shall also contain such legend or other statement
as may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, the federal securities laws, and any agreement between
the corporation and the issues thereof.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the board of directors or the bylaws may
provide; provide, however, that any such certificate so issued prior to full
payment shall state on the face thereof the amount remaining unpaid and the
terms of payment thereof.
No new certificate for shares shall be issued in lieu of an old
certificate unless the latter is surrendered and cancelled at the same time;
provided, however, that a new certificate will be issued without the surrender
and cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) the request for the issuance of
the new certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft; (3) the request for
the issuance of a new certificate is made prior to the receipt of notice by the
corporation that the old certificate has been acquired by a bona fide purchaser;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the corporation; and (4) the owner satisfies
any other reasonable requirements imposed by the corporation. In the event of
the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates shall be
governed by the provisions of Section 8104 and 8405 of the California Commercial
Code.
Section 7. Representation of Shares of Other Corporations. The
----------------------------------------------
president or any vice-president and the secretary or any assistant secretary of
this corporation are authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either
-18-
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.
Section 8. Inspection of Bylaws. The corporation shall keep in its
--------------------
principal executive office in California, or if its principal executive office
is not in California], then at its principal business office in California (or
other wise provide upon written request of any shareholder) the original or a
copy of the bylaws as amended or otherwise altered to date, certified by the
secretary, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 9. 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.
ARTICLE VI
AMENDMENTS
Section 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 assent of shareholders
entitled to vote such shares, except as otherwise provided by law or by the
articles of incorporation.
Section 2. Power of Directors. Subject to the right of shareholders
------------------
'as provided in Section 1 of this Article VI to adopt, amend or repeal bylaws,
bylaws, 6ther than a bylaw or amendment thereof changing the authorized number
of directors, may be adopted, amended or repealed by the board of directors.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
That I am the duly elected and acting secretary of
Kilovac Corporation , a California corporation and that the foregoing By laws
---------------------
constitute the Bylaws of said corporation as duly adopted by action of the Board
of Directors of the corporation duly taken on ___________, 19__________.
______________________________________
Jerry L. Dysart
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ARTICLE III, SECTION 2 OF THE BY-LAWS WAS AMENDED EFFECTIVE JULY 27, 1979, TO
INCREASE THE AUTHORIZED NUMBER OF DIRECTORS TO SEVEN (7).
SIGNED:
_____________________________ ____________________________
F.H. Campbell Jerry L. Dysart
4-1-80
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