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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 31, 2007
AMERICAN STATES WATER COMPANY
(Exact name of registrant as specified in its charter)
California 001-14431 95-4676679
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
630 East Foothill Blvd.
San Dimas, California 91773
(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code: (909) 394-3600
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing requirement of the registrant under any of the
following provisions (see General Instruction A.2 below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the exchange Act
(17 CFR 14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Section 5-Corporate Governance and Management
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year
On December 31, 2007, the Board of Directors approved an amendment to the
American States Water Company Bylaws to permit the Company to issue securities
in uncertificated form as required by the New York Stock Exchange. The Bylaws,
as amended, are attached hereto as Exhibit 3.1.
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Section 9-Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits
The following documents are filed as Exhibits to this report:
Exhibit No. Description
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3.1 Amended Bylaws of American States Water Company
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN STATES WATER COMPANY
Date: January 3, 2008 /s/ Robert J. Sprowls
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Robert J. Sprowls
Sr. Vice President, Chief Financial Officer,
Treasurer and Corporate Secretary
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Exhibit 3.1
BYLAWS
for the regulation, except
as otherwise provided by statute or
its Articles of Incorporation,
of
AMERICAN STATES WATER COMPANY
(a California corporation)
ARTICLE I. Offices.
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Section 1. PRINCIPAL EXECUTIVE OFFICE. The corporation's principal executive
office shall be fixed and located at such place as the Board of Directors
(herein called the "Board") shall determine. The Board is granted full power and
authority to change said principal executive office from one location to
another.
Section 2. OTHER OFFICES. Branch or subordinate offices may be established at
any time by the Board at any place or places.
ARTICLE II. Shareholders.
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Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held either 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
or by the written consent of all persons entitled to vote thereat given either
before or after the meeting and filed with the Secretary.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders may be called
at any time by the Board, the Chairman of the Board, the President or by the
holders of shares entitled to cast not less than ten percent of the votes at
such 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, the officer forthwith
shall cause notice to be given to the shareholders entitled to vote that a
meeting will be held at a time requested by the person or persons calling the
meeting, not less than thirty-five nor more than sixty days after the receipt of
the request. Such request shall be made in accordance with applicable law and
these Bylaws. If the notice is not given within twenty days after receipt of the
request, the persons entitled to call the meeting may give the notice.
Section 3. ANNUAL MEETINGS. The annual meetings of shareholders shall be held on
such date and at such time as may be fixed by the Board. At such meetings,
directors shall be elected and any other proper business may be transacted in
accordance with applicable law and these Bylaws.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written notice of each annual
or special meeting of shareholders shall be given not less than ten nor more
than sixty days before the date of the meeting to each shareholder entitled to
vote thereat. 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
the annual meeting, those matters which the Board, at the time of the mailing of
the notice, intends to present for action by the shareholders, but, subject to
the provisions of applicable law and these Bylaws, any proper matter may be
presented at the meeting for such action. 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 management for election.
Notice of a shareholders' meeting shall be given either personally or by mail or
by other means of written communication, addressed to the shareholder at the
address of such shareholder appearing on the books of the corporation or given
by the shareholder to the corporation for the purpose of notice, or, if no such
address appears or is given, at the place where the principal executive office
of the corporation is located or by publication at least once in a newspaper of
general circulation in the county in which the principal executive office is
located. Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means, to
the recipient.
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Section 5. QUORUM. A majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders. If
a quorum is present, the affirmative vote of a majority of the shares
represented and voting at the meeting (which shares voting affirmatively also
constitute at least a majority of the required quorum) shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by law or by the Articles, except as provided in the following
sentence. 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 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders' meeting,
whether or not a quorum is present, may be adjourned from time to time by the
vote of shareholders entitled to exercise a majority of the voting power
represented either in person or by proxy, but in the absence of a quorum (except
as provided in Section 5 of this Article) no other business may be transacted at
such meeting.
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 at the meeting at which such adjournment is taken; provided,
however, when any shareholders' meeting is adjourned for more than forty-five
days or, if after adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given as in the case of an
original meeting.
Section 7. VOTING. The shareholders entitled to notice of any meeting or to vote
at such meeting shall be only persons in whose name shares stand on the stock
records of the corporation on the record date determined in accordance with
Section 8 of this Article.
Subject to the following sentence and to the provisions of Section 708 of the
California General Corporation Law, every shareholder entitled to vote at any
election of directors may cumulate such shareholder's 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 the shareholder's shares are
entitled, or distribute the shareholder's votes on the same principle among as
many candidates as the shareholder thinks fit. No shareholder shall be entitled
to cumulate votes for any candidate or candidates pursuant to the preceding
sentence unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate the
shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination.
Elections need not be by ballot; provided, however, that all elections for
directors must be by ballot upon demand made by a shareholder at the meeting and
before the voting begins.
In any election of directors, the candidates receiving the highest number of
votes of the shares entitled to be voted for them up to the number of directors
to be elected by such shares are elected.
Voting shall in all cases be subject to the provisions of Chapter 7 of the
California General Corporation Law, and to the following provisions:
(a) Subject to clause (g), shares held by an administrator, executor, guardian,
conservator or custodian may be voted by such holder either in person or by
proxy, without a transfer of such shares into the holder's name; and shares
standing in the name of a trustee may be voted by the trustee, either in person
or by proxy, but no trustee shall be entitled to vote shares held by such
trustee without a transfer of such shares into the trustee's name.
(b) Shares standing in the name of a receiver may be voted by such receiver, and
shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into the receiver's name if authority to do so is
contained in the order of the court by which such receiver was appointed.
(c) Subject to the provisions of Section 705 of the California General
Corporation Law and except where otherwise agreed in writing between the
parties, a shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
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(d) Shares standing in the name of a minor may be voted and the corporation may
treat all rights incident thereto as exercisable by the minor, in person or by
proxy, whether or not the corporation has notice, actual or constructive, of the
nonage, unless a guardian of the minor's property has been appointed and written
notice of such appointment given to the corporation.
(e) Shares outstanding in the name of another corporation, domestic or foreign,
may be voted by such officer, agent or proxyholder as the bylaws of such other
corporation may prescribe or, in the absence of such provision, as the board of
directors of such other corporation may determine or, in the absence of such
determination, by the chairman of the board, president or any vice president of
such other corporation, or by any other person authorized to do so by the
chairman of the board, president or any vice president of such other
corporation. Shares which are purported to be voted or any proxy purported to be
executed in the name of a corporation (whether or not any title of the person
signing is indicated) shall be presumed to be voted or the proxy executed in
accordance with the provisions of this clause, unless the contrary is shown.
(f) Shares of the corporation owned by any subsidiary shall not be entitled to
vote on any matter.
(g) Shares held by the corporation in a fiduciary capacity, and shares of the
issuing corporation held in a fiduciary capacity by any subsidiary, shall not be
entitled to vote on any matter, except to the extent that the settlor or
beneficial owner possesses and exercises a right to vote or to give the
corporation binding instructions as to how to vote such shares.
(h) If shares stand of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, husband
and wife as community property, tenants by the entirety, voting trustees,
persons entitled to vote under a shareholder voting agreement or otherwise, or
if two or more persons (including proxyholders) have the same fiduciary
relationship respecting the same shares, unless the Secretary of the corporation
is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority
so voting binds all;
(iii) If more than one vote, but the vote is evenly
split on any particular matter each faction may vote the securities in question
proportionately.
If the instrument is so filed or the registration of the shares shows that any
such tenancy is held in unequal interests, a majority or even split for the
purpose of this Section shall be a majority or even split in interest.
Section 8. RECORD DATE. The Board may fix, in advance, a record date for the
determination of the shareholders entitled to notice of any meeting or to vote
or entitled to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than sixty days nor less than
ten days prior to the date of the meeting nor more than sixty days prior to any
other action. When a record date is so fixed, only shareholders of record on
that date are entitled to notice of and to vote at the meeting or to receive the
dividend, distribution, or allotment of rights, or to exercise of the rights, as
the case may be, notwithstanding any transfer of shares on the books of the
corporation after the record date. 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 fixes a new record date for the
adjourned meeting. The Board shall fix a new record date if the meeting is
adjourned for more than forty-five days.
If no record date is fixed by the Board, 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. The record
date for determining shareholders for any purpose other than set forth in this
Section 8 or Section 10 of this Article shall be at the close of business on the
day on which the Board adopts the resolution relating thereto, or the sixtieth
day prior to the date of such other action, whichever is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
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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. All such waivers, consents or
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 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 transactions of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not waiver of any right to object to the
consideration of matters required by the California General Corporation Law to
be included in the notice but not so included, if such objection is expressly
made at the meeting. Neither the business to be transacted at nor the purpose of
any regular or special meeting of shareholders need to be specified in any
written waiver of notice, consent to the holding of the meeting or approval of
the minutes thereof, except as provided in Section 601(f) of the California
General Corporation Law.
Section 10. ACTION WITHOUT MEETING. Subject to Section 603 of the California
General Corporation Law, any action which, under any provision of the California
General Corporation Law, 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. Unless a record date
for voting purposes be fixed as provided in Section 8 of this Article, the
record date for determining shareholders entitled to give consent pursuant to
this Section 10, when no prior action by the Board has been taken, shall be the
day on which the first written consent is given.
Section 11. PROXIES. Every person entitled to vote shares has the right to do so
either in person or by one or more persons authorized by a written proxy
executed by such shareholder and filed with the Secretary. Any proxy duly
executed is not revoked and continues in full force and effect until revoked by
the person executing it prior to the vote pursuant thereto 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 by attendance at the meeting and voting in person by the
person executing the proxy; provided, however, that no proxy shall be valid
after the expiration of eleven months from the date of its execution unless
otherwise provided in the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting of shareholders,
the Board may appoint inspectors of election to act at such meeting and any
adjournment thereof. If inspectors of election be not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any such
meeting may, and on the request of any shareholder or shareholder's 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 present shall determine whether
one or three inspectors are to appointed.
The duties of such inspectors shall be as prescribed by Section 707(b) of the
California General Corporation Law and shall include: determining the number of
shares outstanding and the voting power of each; determining the shares
represented at the meeting; determining the existence of a quorum; determining
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
doing such acts as may be proper to conduct the election or vote with fairness
to all shareholders. 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.
Section 13. CONDUCT OF MEETING. The Chairman of the Board shall preside as
chairman at all meetings of the shareholders. The chairman shall conduct each
such meeting in a businesslike and fair manner, but shall not be obligated to
follow any technical, formal or parliamentary rules or principles of procedure.
The chairman's rulings on procedural matters shall be conclusive and binding on
all shareholders, unless at the time of a ruling a request for a vote is made to
the shareholders holding shares entitled to vote and which are represented in
person or by proxy at the meeting, in which case the decision of a majority of
such shares shall be conclusive and binding on all shareholders. Without
limiting the generality of the foregoing, the chairman shall have all of the
powers usually vested in the chairman of a meeting of shareholders.
Section 14. QUALIFICATIONS OF DIRECTORS. Only persons who are nominated in
accordance with the procedures set forth in these Bylaws shall be qualified to
serve as directors. Nominations of persons for election to the Board may be made
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at a meeting of shareholders (a) by or at the direction of the Board or (b) by
any shareholder of the corporation who is a shareholder of record at the time of
giving of notice provided for in this Bylaw, who shall be entitled to vote for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Bylaw.
Nominations by shareholders shall be made pursuant to timely notice in writing
to the Secretary. To be timely as to an annual meeting, a shareholder's notice
must be received at the principal executive officers of the corporation not less
than 75 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that if the date of the
annual meeting is changed by more than 30 days from such anniversary date,
notice by the shareholder to be timely must be so received not later than the
close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed to shareholders or public
disclosure of such date was made. To be timely as to a special meeting at which
directors are to be elected, a shareholder's notice must be received not later
than the close of business on the 10th day following the earlier of the day on
which notice of the date of the meeting was mailed to shareholders or public
disclosure of such date was made. Such shareholder's notice shall set forth (a)
as to each person whom the shareholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to the shareholder giving the notice (i) the name
and address, as they appear on the corporation's books, of such shareholder and
(ii) the class and number of shares of the corporation which are beneficially
owned by such shareholder and also which are owned of record by such
shareholder; and (c) as to the beneficial owner, if any, on whose behalf the
nomination is made, (i) the name and address of such person and (ii) the class
and number of shares of the corporation which are beneficially owned by such
person. At the request of the Board, any person nominated by the Board for
election as a director shall furnish to the Secretary that information required
to be set forth in the shareholder's notice of nomination which pertains to the
nominee.
No person shall be qualified to serve as a director of the corporation unless
nominated in accordance with the procedures set forth in this Bylaw. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if the Chairman should so determine, that the
defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Bylaw, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder with respect to the matters set forth in this Bylaw.
Section 15. PROPER BUSINESS FOR SHAREHOLDER MEETINGS. At a meeting of the
shareholders, only such business shall be proper as shall be brought before the
meeting (a) pursuant to the corporation's notice of meeting, (b) by or at the
direction of the Board or (c) by any shareholder of the corporation who is a
shareholder of record at the time of giving of the notice provided for in this
Bylaw, who shall be entitled to vote at such meeting and who complies with the
notice procedures set forth in this Bylaw.
For business to be properly brought before a meeting by a shareholder pursuant
to clause (c) of the first paragraph of this Bylaw, the shareholder must have
given timely notice thereof in writing to the Secretary. To be timely as to an
annual meeting of shareholders, a shareholder's notice must be received at the
principal executive offices of the corporation not less than 75 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that if the date of the meeting is changed by more
than 30 days from such anniversary date, notice by the shareholder to be timely
must be received no later than the close of business on the 10th day following
the earlier of the day on which notice of the date of the meeting was mailed to
shareholders or public disclosure of such date was made. To be timely as to a
special meeting of shareholders, a shareholder's notice must be received not
later than the call of the meeting by the Board, the Chairman of the Board or
the President, or the date of receipt of a valid request by a person (other than
the Board) that the special meeting be called. Such shareholder's notice shall
set forth as to each matter the shareholder proposes to bring before the meeting
(a) a brief description of such matter and the reasons for proposing such
matters(s) at the meeting, (b) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, and the name
and address of the beneficial owner, if any, on whose behalf the proposal is
made, (c) the class and number of shares of the corporation which are owned
beneficially and of record by such shareholder of record and by the beneficial
owner, if any, on whose behalf the proposal is made and (d) any material
interest of such shareholder of record and the beneficial owner, if any, on
whose behalf the proposal is made in such proposal.
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Notwithstanding anything in these Bylaws to the contrary, no business shall be
proper at a meeting unless brought before it in accordance with the procedures
set forth in this Bylaw. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the procedures prescribed by
these Bylaws, and if the Chairman should so determine, that any such business
not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing provisions of this Bylaw, a shareholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Bylaw.
ARTICLE III. Directors.
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Section 1. POWERS. Subject to limitations of the Articles, of these Bylaws and
of the California General Corporation Law relating to action required to be
approved by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the Board shall have the following powers in addition to the other
powers enumerated in these Bylaws:
(a) To select and remove all the other officers, agents and employees of the
corporation, prescribe the powers and duties for them as may not be inconsistent
with law, the Articles or these Bylaws, fix their compensation and require from
them security for faithful service.
(b) To conduct, manage and control the affairs and business of the corporation
and to make such rules and regulations therefor not inconsistent with law, the
Articles or these Bylaws, as they may deem best.
(c) 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 they may deem best.
(d) To authorize the issuance of shares of stock of the corporation from time to
time, upon such terms and for such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of 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.
Section 2. NUMBER OF DIRECTORS. The authorized number of directors shall be not
less than five nor more than nine until changed by amendment of the Articles or
by a Bylaw duly adopted by the shareholders amending this Section 2. The exact
number of directors shall be fixed, within the limits specified, by the Board
from time to time in a resolution adopted by a majority of the directors. The
exact number of directors shall be eight until changed as provided in this
Section 2.
Section 3. ELECTION AND TERM OF OFFICE. Except as otherwise provided in the
Articles, the directors shall be elected at each annual meeting of the
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. Each director shall hold office until the
next annual meeting and until a successor has been elected and qualified.
Section 4. VACANCIES. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary or the Board,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Vacancies in the Board, except those existing as a result of a 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 the next annual meeting and until such director's
successor has been elected and qualified.
A vacancy or vacancies in the Board shall be deemed to exist in case of the
death, resignation or removal of any director, or 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 meeting.
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The Board may declare vacant the office of a director who has been declared of
unsound mind by an order of court or convicted of a felony.
The shareholders, subject to applicable law and these Bylaws, 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, other than to fill a
vacancy created by removal, requires the consent of a majority of the
outstanding shares entitled to vote. Any such election by written consent to
fill a vacancy created by removal requires unanimous consent.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of office.
Section 5. PLACE OF MEETING. Regular or special meetings of the Board shall be
held at any place within or without the State of California which has been
designated from time to time by the Board. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation.
Section 6. REGULAR MEETINGS. Immediately following each annual meeting of
shareholders, the Board shall hold a regular meeting for the purpose of
organization, election of officers and the transaction of other business.
Other regular meetings of the Board shall be held without call on such dates and
at such times as may be fixed by the Board. Call and notice of all regular
meetings of the Board are hereby dispensed with.
Section 7. SPECIAL MEETINGS. Special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
any Vice President, the Secretary or by any two directors.
Special meetings of the Board shall be held upon four days' written notice or
forty-eight hours' notice given personally or by telephone, telegraph, telex, or
other similar means of communication. Any such notice shall be addressed or
delivered to each director at such director's address as it is shown upon the
records of the corporation or as may have been given to the corporation by the
director for purposes of notice or, if such address is not shown on such records
or is not readily ascertainable, at the place in which the meetings of the
directors are regularly held.
Notice by mail shall be deemed to have been given at the time a written notice
is deposited in the United States mails, postage prepaid. Any other written
notice shall be deemed to have been given at the time it is personally delivered
to the recipient or is delivered to a common carrier for transmission, or
actually transmitted by the person giving the notice by electronic means, to the
recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
Section 8. QUORUM. A majority of the authorized number of directors constitutes
a quorum of the Board for the transaction of business, except to adjourn as
provided in Section 11 of this Article. 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, unless a greater number be
required by law or by the Articles. 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 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. 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.
Section 10. WAIVER OF NOTICE. Notice of a meeting need not be given to any
director who signs a waiver of notice or consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meetings.
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Section 11. ADJOURNMENT. A majority of the directors present, whether or not a
quorum is present, may adjourn any directors' meeting to another time and place.
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,
except as provided in the next sentence. If the meeting is adjourned for more
than twenty-four hours, notice of any adjournment to another time or place shall
be given prior to the time of the adjourned meeting to the directors who were
not present at the time of the adjournment.
Section 12. 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 the Board.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to be taken
by the Board may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such consent or
consents shall have the same effect as a unanimous vote of the Board and shall
be filed with the minutes of the proceedings of the Board.
Section 14. RIGHTS OF INSPECTION. 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 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 includes the right to copy and
obtain extracts.
Section 15. COMMITTEES. The Board may appoint one or more committees, each
consisting of two or more directors, and delegate to such committees any of the
authority of the Board except with respect to:
(a) The approval of any action for which the California General Corporation Law
also requires shareholders' approval or approval of the outstanding shares;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for service on the Board or on
any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the Board which by its express
terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation except at a rate or in
a periodic amount or within a price range determined by the Board; or
(g) The appointment of other committees of the Board or the members thereof.
Any such committee must be designated, and the members or alternate members
thereof appointed, by resolution adopted by a majority of the authorized number
of directors and any such committee may be designated an Executive Committee or
by such other name as the Board shall specify. Alternative members of a
committee may replace any absent member at any meeting of the committee. The
Board shall have the power to prescribe the manner in which proceedings of any
such committee shall be conducted. In the absence of any such prescription, such
committee shall have the power to prescribe the manner in which its proceedings
shall be conducted. Unless the Board or such committee shall otherwise provide,
the regular and special meetings and other actions of any such committee shall
be governed by the provisions of this Article applicable to meetings and actions
of the Board. Minutes shall be kept of each meeting of each committee.
ARTICLE IV. Officers.
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Section 1. OFFICERS. The officers of the corporation shall be a President, a
Secretary and a Chief Financial Officer. The corporation may also have, at the
discretion of the Board, a Chairman of the Board, an Executive Vice President, a
Senior Vice President, one or more Vice Presidents, a Treasurer, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
as may be elected or appointed in accordance with the provisions of Section 3 of
this Article.
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Section 2. ELECTION. The officers of the corporation, except such officers as
may be elected or appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by, and shall serve at the
pleasure of, the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and may empower the
Chairman of the Board, if there be such an officer, or the President, to appoint
such other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in these Bylaws or as the Board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed, either with or
without cause, by the Board at any time or, except in the case of an officer
chosen by the Board, by an officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to the corporation,
but without prejudice to the rights, if any, of the corporation under any
contract to which the 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 these Bylaws for regular election or appointment to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there shall be
such an officer, shall be the Chief Executive Officer of the corporation unless,
in its sole discretion, the Board should elect the President to be such. The
Chief Executive Officer is the general manager and chief executive officer of
the corporation and has, subject to the control of the Board, general
supervision, direction and control of the business and officers of the
corporation. The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the shareholders and the Board and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may be given to the
Chairman of the Board, if there be such an officer, the President shall have the
general powers and duties of management usually vested in the office of the
president of a corporation and such other powers and duties as may be prescribed
by the Board or the Chief Executive Officer, if other than the President. In the
absence of the Chairman of the Board, or if there be none, the President shall
preside at all meetings of the shareholders and the Board. In the absence or
disability of the Chief Executive Officer, if other than the President, the
President shall perform all the duties of the Chief Executive Officer and, when
so acting, shall have all of the powers of, and be subject to all the
restrictions upon, the Chief Executive Officer.
Section 8. VICE PRESIDENTS. The Executive Vice President and Senior Vice
President, if any, and other Vice Presidents shall have (subject to the
authority of the Board) such powers and perform such duties as from time to time
determined by the Chief Executive Officer. In the absence or disability of the
President, the Vice Presidents, in the following order, shall perform all the
duties of the President and, when so acing, shall have all the powers of, and be
subject to all the restrictions upon, the President: the Executive Vice
President, if any, the Senior Vice President, if any, and the Vice Presidents in
the order of their rank as fixed by the Board, or if not ranked, the Vice
President designated by the Board. The Vice President shall have such other
powers and perform such other duties as from time to time may be prescribed for
them, respectively, by the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office and such other place as the Board may order, a book
of minutes of all meetings of shareholders, the Board and its committees, with
the time and place of holding, whether regular or special, how authorized, the
notice thereof given, the names of those present at Board and 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, a
copy of the Bylaws of the corporation at the principal executive office or
business office in accordance with Section 213 of the California General
Corporation Law.
The Secretary shall keep, or cause to be kept, at the principal executive office
or at the office of the corporation's transfer agent or registrar, if one be
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appointed, a share register, or a duplicate share register, showing the names of
the shareholders and their addresses, the number of 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 meetings of the
shareholders and of the Board and any committees thereof required by these
Bylaws or by law to be given, 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.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the corporation, and shall send or
cause to be sent to the shareholders of the corporation such financial
statements and reports as are by law or these Bylaws required to be sent to
them. The books of account shall at all times be open to inspection by any
director.
The Chief Financial Officer shall deposit all monies and other valuables in the
name and to the credit of the corporation with such depositaries as may be
designated by the Board. The Chief Financial Officer shall disburse the funds of
the corporation as may be ordered by the Board, shall render to the President
and the directors, whenever they request it, an account of all 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.
ARTICLE V. Other Provisions.
-----------------
Section 1. INSPECTION OF CORPORATE RECORDS.
(a) 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 the absolute right to do either or both of the
following:
(i) Inspect and copy the record of shareholders'
names and addresses and shareholders during usual business hours upon five
business days' prior written demand upon the corporation; or
(ii) Obtain from the transfer agent, if any, for the
corporation, upon five business days' prior written demand and upon the tender
of its usual charges for such a list (the amount of which charges shall be
stated to the shareholder by the transfer agent upon request), a list of the
shareholders' names and addresses who are entitled to vote for the election of
directors and their shareholdings, as of the most recent complied or as of the
date specified by the shareholder subsequent to the date of demand.
(b) The record of shareholders shall also be open to inspection and copying by
any shareholder or holder of a voting trust certificate at any time during usual
business hours upon written demand on the corporation, for a purpose reasonably
related to such holder's interest as a shareholder or holder of a voting trust
certificate.
(c) The accounting books and records and minutes of proceedings of the
shareholders and the Board and committees of the Board shall be open to
inspection upon written demand on the corporation of any shareholder or holder
of a voting trust certificate at any reasonable time during usual business
hours, for a purpose reasonably related to such holder's interests as a
shareholder or as a holder of such voting trust certificate.
(d) Any inspection and copying under this Article may be made in person or by
agent or attorney.
Section 2. INSPECTION OF BYLAWS. The corporation shall keep in its principal
executive office in the State of California, or if its principal executive
office is not in such State at its principal business office in such state, the
original or copy of these Bylaws as amended to date, which shall be open to
inspection by shareholders at all reasonable times during office hours. If the
principal executive office of the corporation is located outside the State of
California and the corporation has no principal business office in such state,
it shall upon the written request of any shareholder furnish to such shareholder
a copy of these Bylaws as amended to date.
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Section 3. ENDORSEMENT OF DOCUMENTS, CONTRACTS. Subject to the provisions of
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance or other instrument in writing and any assignment or
endorsements thereof executed or entered into between the corporation and any
other person, when signed by the Chairman of the Board, the President or any
Vice President and the Secretary, any Assistant Secretary, the Chief Financial
Officer, the Treasurer or any Assistant Treasurer of the corporation, shall be
valid and binding on the corporation in the absence of actual knowledge on the
part of the other person that the signing officers had no authority to execute
the same. Any such instruments may be signed by any other person or persons and
in such manner as from time to time shall be determined by the Board, and,
unless so authorized by the Board, 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 amount.
Section 4. CERTIFICATES FOR SHARES.
(a) Shares of the capital stock of the corporation may be certificated or
uncertificated, as provided under the General Corporation Law of California.
Each shareholder, upon written request to the transfer agent or registrar of the
corporation, shall be entitled to have a certificate in the name of the
corporation by the President or a Vice President and by the Chief Financial
Officer, the Treasurer or an Assistant Treasurer or the Secretary or Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may be
facsimile. If any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue. Shares issued prior
to the date on which the shares have become eligible for issuance in
uncertificated form shall be certificated shares until a certificate for such
shares is surrendered to this corporation.
(b) Shares may be issued prior to full payment under such restrictions and for
such purposes as the Board may provide; provided, however, that on any
certificate issued to represent any partly paid shares, or, for uncertificated
shares, on the initial transaction statement for such partly paid shares, the
total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated.
(c) Subject to any restrictions on transfer and unless otherwise provided by the
Board of Directors, shares of stock may be transferred only on the books of the
corporation, if such shares are certificated, and by the surrender to the
corporation or its transfer agent of the certificate therefore properly endorsed
or accompanied by a written assignment or power of attorney properly executed,
or upon proper instructions from the holder of uncertificated shares, in each
case, with such proof of the authenticity of signature as the corporation or its
transfer agent may reasonably require.
(d) Except as provided in this Section or the General Corporation Law of
California, no certificate for shares shall be issued in lieu of an old one
unless the latter is surrendered and cancelled at the same time. The Board may,
however, if any share certificate or new certificate is alleged to have been
lost, stolen or destroyed, authorize the issuance of a new certificate in lieu
thereof, and the corporation may require that the corporation be given a bond or
other adequate security sufficient to indemnify it against any claim that may be
made against it (including expense or liability) on account of the alleged loss,
theft, or destruction of such certificate or the issuance of such new
certificate.
(e) When the articles of incorporation are amended in any way affecting the
statements contained in the certificates for outstanding shares, or it becomes
desirable for any reason, in the discretion of the Board, to cancel any
outstanding certificates for shares and issue new certificates therefor
conforming to the rights of the holder, the Board may order any holders of
outstanding certificates to surrender and exchange them for new certificates
within a reasonable period of time. When the articles of incorporation are
amended in any way affecting the statements contained in the initial transaction
statements or other written statements for outstanding uncertificated
securities, or it becomes desirable for any reason in the discretion of the
Board, to amend, revise, or supersede any outstanding initial transaction
statements or written statements, the Board may order the issuance and delivery
to holders of record of amended, revised, or superseding initial transaction
statements or written statements.
Section 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chief Executive
Officer, the President or any other officer or officers authorized by the Board
or the Chief Executive Officer are each 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
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corporation. The authority herein granted may be exercised either by any such
officer in person or by any other person authorized so to do by proxy or power
of attorney duly executed by said officer.
Section 6. 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 of a subsidiary 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.
Any such 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,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires,
the general provisions, rules of construction and definitions contained in the
General Provisions of the California Corporations Code and in the California
General Corporation Law shall govern the construction of these Bylaws.
ARTICLE VI. Indemnification.
----------------
Section 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Each person who was or is a party or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director or officer of the corporation, or of
any predecessor corporation, or is or was a director or officer who is or was
serving at the request of the corporation as a director, officer, employee or
other agent of another corporation, a partnership, joint venture, trust or other
enterprise (including service with respect to corporation-sponsored employee
benefit plans), whether the basis of such proceeding is alleged action or
inaction in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall, subject to the terms of
any agreement between the corporation and such person, be indemnified and held
harmless by the corporation to the fullest extent permissible under California
law and the corporation's Articles, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
such person in connection therewith; provided, however, that amounts paid in
settlement of a proceeding shall be payable only if the settlement is approved
in writing by the corporation. Such indemnification shall continue as to a
person who has ceased to be a director or officer for acts performed while a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators. Notwithstanding the foregoing, the corporation
shall indemnify any such person in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of the corporation. The right to indemnification
conferred in this Article shall include the right to be paid by the corporation
the expenses incurred in defending any proceeding in advance of final
disposition to the fullest extent permitted by law; provided, however, that the
payment under this Article of such expenses in advance of the final disposition
of a proceedings shall be conditioned upon the delivery to the corporation of a
written request for such advance and of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced if it shall be ultimately
determined that such director or officer is not entitled to be indemnified.
(b) Notwithstanding the foregoing or any other provisions under this Article,
the corporation shall not be liable under this Article to indemnify a director
or officer against expenses, liabilities or losses incurred or suffered in
connection with, or make any advances with respect to, any proceeding against a
director or officer: (i) as to which the corporation is prohibited by applicable
law from paying as an indemnity; (ii) with respect to expenses of defense or
investigation, if such expenses were or are incurred without the corporation's
consent (which consent may not be unreasonably withheld); (iii) for which
payment is actually made to the director or officer under a valid and
collectible insurance policy maintained by the corporation, except in respect of
any excess beyond the amount of payment under such insurance; (iv) for which
payment is actually made to the director or officer under an indemnity by the
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corporation otherwise than pursuant to this Bylaw Article, except in respect of
any excess beyond the amount of payment under such indemnity; (v) based upon or
attributable to the director or officer gaining in fact any personal profit or
advantage to which he or she was not legally entitled; (vi) for an accounting of
profits made from the purchase or sale by the director or officer of securities
of the corporation pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law; or (vii) based upon acts or omissions
involving intentional misconduct or a knowing and culpable violation of law.
Section 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. A person who was or is a
party or is threatened to be made a party to or is involved in any proceeding by
reason of the fact that he or she is or was an employee or agent of the
corporation or is or was an employee or agent of the corporation who is or was
serving at the request of the corporation as an employee or agent of another
enterprise, including service with respect to corporation-sponsored employee
benefits plans, whether the basis of such action is alleged action or inaction
in an official capacity or in any other capacity while serving as an employee or
agent, may, upon appropriate action by the corporation and subject to the terms
of any agreement between the corporation and such person, be indemnified and
held harmless by the corporation up to the fullest extent permitted by
California law and the corporation's Articles, against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) actually and reasonably
incurred or suffered by such person in connection therewith.
Section 3. RIGHT OF DIRECTORS AND OFFICERS TO BRING SUIT. If a claim under
Section 1 of this Article is not paid by the corporation or on its behalf within
90 days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim, and, if successful in whole or in part, the claimant
also shall be entitled to be paid the expense of prosecuting such claim.
Section 4. SUCCESSFUL DEFENSE. Notwithstanding any other provision of this
Article, to the extent that a director or officer has been successful on the
merits or otherwise (including the dismissal of a proceeding without prejudice
or the settlement with the written consent of the corporation of a proceeding
without admission of liability) in defense of any proceeding referred to in
Section 1 or in defense of any claim, issue or matter therein, such director or
officer shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection therewith.
Section 5. INDEMNITY AGREEMENTS. The corporation may enter into agreements with
any director, officer, employee or agent of the corporation providing for
indemnification to the fullest extent permissible under applicable law and the
corporation's Articles.
Section 6. SUBROGATION. In the event of payment by the corporation of a claim
under Section 1 of this Article, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of the indemnified
person, who shall execute all papers required and shall do everything that may
be necessary or appropriate to secure such rights, including the execution of
such documents necessary or appropriate to enable the corporation effectively to
bring suit to enforce such rights.
Section 7. NON-EXCLUSIVITY RIGHTS. The right to indemnification provided by this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise.
Section 8. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, a partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under California law.
Section 9. EXPENSES AS A WITNESS. To the extent that any director, officer or
employee of the corporation is by reason of such position a witness in any
action, suit or proceeding, he or she will be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his or her behalf
in connection therewith.
Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. This
Article does not apply to any proceeding against any trustee, investment manager
or other fiduciary of an employee benefit plan in such person's capacity as
such, even though such person may also be an agent of the corporation. The
corporation shall have power to indemnify such trustee, investment manager or
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other fiduciary to the extent permitted by subdivision (f) of Section 207 of the
California General Corporation Law.
Section 11. SEPARABILITY. Each and every paragraph, sentence, term and provision
of this Article is separate and distinct so that if any paragraph, sentence,
term or provision shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term or provision hereof. To
the extent required, any paragraph, sentence, term or provision of this Article
may be modified by a court of competent jurisdiction to preserve its validity
and to provide the claimant with, subject to the limitations set forth in this
Article and any agreement between the corporation and the claimant, the broadest
possible indemnification permitted under applicable law.
Section 12. EFFECT OF REPEAL OR MODIFICATION. Any repeal or modification of this
Article shall not adversely affect any right of indemnification of a director,
officer, employee or agent of the corporation existing at the time of such
repeal or modification with respect to any action or omission occurring prior to
such repeal or modification.
ARTICLE VII. Emergency Provisions.
---------------------
Section 1. GENERAL. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attack on the United States or a disaster making it impossible
or impracticable for the corporation to conduct its business without recourse to
the provisions of this Article. Said provisions in such event shall override all
other Bylaws of the corporation in conflict with any provisions of this Article,
and shall remain operative so long as it remains impossible or impracticable to
continue the business of the corporation otherwise, but thereafter shall be
inoperative; provided that all actions taken in good faith pursuant to such
provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the Bylaws other than
those contained in this Article.
Section 2. UNAVAILABLE DIRECTORS. All directors of the corporation who are not
available to perform their duties as directors by reason of physical or mental
incapacity or for any other reason or who are unwilling to perform their duties
or whose whereabouts are unknown shall automatically cease to be directors, with
like effect as if such persons had resigned as directors, so long as such
unavailability continues.
Section 3. AUTHORIZED NUMBER OF DIRECTORS. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 2, or the minimum number required by
law, whichever number is greater.
Section 4. QUORUM. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in the
foregoing Section, or other minimum number as, pursuant to the law or lawful
decree then in force, it is possible for the Bylaws of a corporation to specify.
Section 5. CREATION OF EMERGENCY COMMITTEE. In the event the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 2 is less than the minimum number of authorized directors required by
law, then until the appointment of additional directors to make up such required
minimum, all the powers and authorities which the Board could by law delegate,
including all powers and authorities which the Board could delegate to a
committee, shall be automatically vested in an emergency committee, and the
emergency committee shall thereafter manage the affairs of the corporation
pursuant to such powers and authorities and shall have all other powers and
authorities as may by law or lawful decree be conferred on any person or body of
persons during a period of emergency.
Section 6. CONSTITUTION OF EMERGENCY COMMITTEE. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 2, provided that such remaining directors
are not less than three in number. In the event such remaining directors are
less than three in number the emergency committee shall consist of three
persons, who shall be the remaining director or directors and either one or two
officers or employees of the corporation as the remaining director or directors
may in writing designate. If there is no remaining director, the emergency
committee shall consist of the three most senior officers of the corporation who
are available to serve, and if and to the extent that officers are not
available, the most senior employees of the corporation. Seniority shall be
determined in accordance with any designation of seniority in the minutes of the
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proceedings of the Board, and in the absence of such designation, shall be
determined by rate of remuneration. In the event that there are no remaining
directors and no officers or employees of the corporation available, the
emergency committee shall consist of three persons designated in writing by the
shareholder owning the largest number of shares of record as of the date of the
last record date.
Section 7. POWERS OF EMERGENCY COMMITTEE. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members of the
emergency committee shall die or resign or become unavailable to act for any
reason whatsoever, a new emergency committee shall be appointed in accordance
with the foregoing provisions of this Article.
Section 8. DIRECTORS BECOMING AVAILABLE. Any person who has ceased to be a
director pursuant to the provisions of Section 2 and who thereafter becomes
available to serve as a director shall automatically become a member of the
emergency committee.
Section 9. ELECTION OF BOARD OF DIRECTORS. The emergency committee, shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a board of directors, and upon such election, all the
powers and authorities of the emergency committee shall cease.
Section 10. TERMINATION OF EMERGENCY COMMITTEE. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 2 become available to serve as directors, so
that if they had not ceased to be directors as aforesaid, there would be enough
directors to constitute the minimum number of directors required by law, then
all such persons shall automatically be deemed to be reappointed as directors
and the powers and authorities of the emergency committee shall be at an end.
ARTICLE VIII. Amendments.
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Subject to the Articles of Incorporation, these Bylaws may be amended or
repealed either by approval of the outstanding shares (as defined in Section 152
of the California General Corporation Law) or by the approval of the Board;
provided, however, that after the issuance of shares, a bylaw specifying or
changing a fixed number of directors or the maximum or minimum number or
changing from a fixed to a variable number of directors or vice versa may only
be adopted by approval of the outstanding shares and a bylaw reducing the fixed
number or the minimum number of directors to a number less than five shall be
subject to the provisions of Section 212(a) of the California General
Corporation Law.
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