Exhibit 3.12(b)
BYLAWS
OF
CBRE HR, INC.
A California Corporation
TABLE OF CONTENTS
ARTICLE I OFFICES | 1 | |||||
Section 1. | Principal Offices. | 1 | ||||
Section 2. | Other Offices. | 1 | ||||
ARTICLE II MEETINGS OF SHAREHOLDERS | 1 | |||||
Section 1. | Place of Meetings. | 1 | ||||
Section 2. | Special Meetings. | 1 | ||||
Section 3. | Special Meetings. | 1 | ||||
Section 4. | Notice of Shareholders’ Meetings. | 2 | ||||
Section 5. | Quorum. | 2 | ||||
Section 6. | Voting. | 2 | ||||
Section 7. | Record Date. | 4 | ||||
Section 8. | Waiver of Notice. | 4 | ||||
Section 9. | Action Without Meeting. | 5 | ||||
Section 10. | Proxies. | 5 | ||||
ARTICLE III DIRECTORS | 5 | |||||
Section 1. | Powers. | 5 | ||||
Section 2. | Number and Qualifications of Directors. | 6 | ||||
Section 3. | Election and Term of Office. | 6 | ||||
Section 4. | Resignation and Removal of Directors. | 6 | ||||
Section 5. | Vacancies. | 7 | ||||
Section 6. | Place of Meetings. | 7 | ||||
Section 7. | Organization Meeting. | 7 | ||||
Section 8. | Other Regular Meetings. | 7 | ||||
Section 9. | Special Meetings. | 8 | ||||
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Section 10. | Quorum. | 8 | ||||
Section 11. | Waiver of Notice. | 8 | ||||
Section 12. | Adjournment. | 8 | ||||
Section 13. | Notice of Adjournment. | 8 | ||||
Section 14. | Action Without Meeting. | 8 | ||||
Section 15. | Fees and Compensation of Directors. | 9 | ||||
Section 16. | Committees of Directors. | 9 | ||||
Section 17. | Meetings and Actions by Committees. | 9 | ||||
ARTICLE IV OFFICERS | 10 | |||||
Section 1. | Officers. | 10 | ||||
Section 2. | Election of Officers. | 10 | ||||
Section 3. | Subordinate Officers, Etc. | 10 | ||||
Section 4. | Removal and Resignation of Officers. | 10 | ||||
Section 5. | Vacancies in Offices. | 10 | ||||
Section 6. | Chairman of the Board. | 10 | ||||
Section 7. | President. | 10 | ||||
Section 8. | Vice Presidents. | 11 | ||||
Section 9. | Secretary. | 11 | ||||
Section 10. | Chief Financial Officer. | 11 | ||||
ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS | 12 | |||||
Section 1. | Agents, Procedures, and Expenses. | 12 | ||||
Section 2. | Actions Other Than by the Corporation. | 12 | ||||
Section 3. | Actions by the Corporation. | 12 | ||||
Section 4. | Successful Defense by Agent. | 13 | ||||
Section 5. | Required Approval. | 13 | ||||
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Section 6. | Advance of Expense. | 13 | ||||
Section 7. | Other Contractual Rights. | 13 | ||||
Section 8. | Limitations. | 14 | ||||
Section 9. | Insurance. | 14 | ||||
Section 10. | Fiduciaries of Corporate Employee Benefit Plan. | 14 | ||||
ARTICLE VI RECORDS AND REPORTS | 15 | |||||
Section 1. | Maintenance and Inspection of Share Register. | 15 | ||||
Section 2. | Maintenance and Inspection of Bylaws. | 15 | ||||
Section 3. | Maintenance and Inspection of Other Corporate Records. | 15 | ||||
Section 4. | Inspection by Directors. | 15 | ||||
Section 5. | Annual Report to Shareholders. | 15 | ||||
Section 6. | Annual Statement of General Information. | 15 | ||||
ARTICLE VII GENERAL MAtTERS | 16 | |||||
Section 1. | Record Date. | 16 | ||||
Section 2. | Checks, Drafts, Evidence of Indebtedness. | 16 | ||||
Section 3. | Corporate Contracts and Instruments; How Executed. | 16 | ||||
Section 4. | Certificates of Stock. | 16 | ||||
Section 5. | Representation of Shares of Other Corporations. | 17 | ||||
Section 6. | Stock Purchase Plans. | 17 | ||||
Section 7. | Construction and Definitions. | 17 | ||||
ARTICLE VIII AMENDMENTS | 18 | |||||
Section 1. | Amendment by Shareholders. | 18 | ||||
Section 2. | Amendment by Directors. | 18 | ||||
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BYLAWS
OF
TOTAL EMPLOYEE RELATIONS SERVICES, INC.,
a California corporation
ARTICLE I
OFFICES
Section 1.Principal Offices. The Board of Directors (hereinafter at times referred to as ‘the Board’) shall fix the location of the principal executive office of the Corporation at any place within or outside the State of California. If the principal executive office is located outside this state, and the Corporation has one or more business offices in this state, the Board of Directors shall likewise fix and designate a principal business office in the State of California.
Section 2.Other Offices. The Board of Directors may at any time establish branch or subordinate offices a any place or places.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1.Place of Meetings. Meetings of shareholders shall be held at any place within or without the State of California designated by the Board of Directors. In the absence of any such designation, shareholders’ meetings shall be held at the principal executive office of the Corporation.
Section 2.Special Meetings. Meetings of shareholders shall be held each year on a date and at a time designated by the Board of Directors. The date so designated shall be within five (5} months after the end of the fiscal year of the Corporation, and within fifteen (15) months after the last annual meeting. At each annual meeting directors shall be elected, and any other proper business may be transacted.
Section 3.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 (10%) of the votes at such meeting.
Persons other than the Board who are entitled to call a meeting may send a request in writing to the Chairman of the Board, the President, any Vice President or the Secretary. The officer 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 person; calling the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request the persons entitled to call the meeting may give the notice.
Section 4.Notice of Shareholders’ Meetings. Written notice of any meeting of shareholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, and shall specify the place, date and hour of the meeting and the general nature of the business to be transacted.
Notice of a shareholders’ meeting shall be given either personally or by mall 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.
If action is proposed to be taken al any meeting for approval of (i) contracts or transactions in which a director has a direct or indirect financial interest, pursuant to Section 310 of the Corporations Code of California, (ii) an amendment to the articles of incorporation, pursuant to Section 902 of such Code, (iii) a -reorganization of the Corporation, pursuant to Section 1201 of such Code, (iv) dissolution of the corporation, pursuant to Section 1900 of such Code, or (v) a distribution to preferred shareholders, pursuant to Section 2007 of such Code, the notice shall also state the general nature of such proposal.
Section 5.Quorum. The presence in person or by proxy of the persons entitled to vote a majority of the voting shares at any meeting shall constitute a quorum for the transaction of business. Business may be continued after the withdrawal of enough shareholders to leave less than a quorum if any action taken (other than adjournment) is provided by at least a majority of the shares required to constitute a quorum.
Section 6.Voting. Except as otherwise provided in the California Corporations Code, shareholders on the record date fixed by the Board of Directors in accordance with Article VII, Section 1 are entitled to notice and to vote, notwithstanding the transfer of any shares on the books of the Corporation after that date. The shareholders’ vote may be by voice or by ballot; provided, however, that any election for directors must be by ballot if demanded by any shareholder before the voting has begun. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote shall be the act of the shareholders.
At a shareholders’ meeting at which directors are to be elected, no shareholder shall be entitled to cumulate votes unless the notice requirements of Section 708 of the California Corporations Code have been met. If any one shareholder has given such notice, all shareholders may cumulate their votes for candidates in nomination. To cumulate votes, the shareholder can 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. The
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candidates receiving the highest number of votes, up to the number of directors to be elected, shall be elected.
Voting shall in all cases be subject to the provisions of Chapter 7 of the California Corporations Code 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 not 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 Corporations’ Code, and except where otherwise agreed in writing between the parties, a shareholder whose shares are pledged shall be entitle 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.
(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 non-age, unless a guardian of the minor’s property has been appointed and written notice of such appointment given to the Corporation.
(e) Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy holder 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 board, president or any vice president of such other corporation. Shares which are 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 subdivision, 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 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.
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(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 proxy holders) have the same fiduciary relationship respecting be 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 so filed or the registration of the shares shows that a 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 7.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 (60) nor less than ten (10) days prior to the date of the meeting nor more than sixty (60) 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 (45) 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 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 7 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 8.Waiver of Notice. The transactions of any meeting of shareholders either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote, who was not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. The waiver of notice or
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consent need not specify either the business to be transacted or the purpose of any regular or special meeting of shareholders.
Section 9.Action Without Meeting. Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing setting forth the action so taken, 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 that action at a meeting at which all shares entitled to vote on that action were present and voted. In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors, provided, however, that a director may be elected at any time to fill a vacancy on the Board of Directors that has not been filled by the directors, by the written consent of the holders of a majority of the outstanding; shares entitled to vote for the election of directors. All such consents shall be filed with the Secretary of the Corporation and shall be maintained in the corporate records.
If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the shareholders without a meeting. Such notice shall be given in the manner specified in Section 4 of this Article II. In the case of approval of (i) contracts or transactions in which a director bas a direct or indirect financial interest, pursuant to Section 310 of the California Corporations Code, (ii) indemnification of agent of the Corporation, pursuant to Section 317 of the California Corporations Code, (iii) a reorganization of the Corporation pursuant to Section 1201 of such Code, and (iv) a distribution to pursuant to Section 2007 of such Code, such notice shall be given at least ten (10) days before the consummation of any such action authorized by any such approval.
Section 10.Proxies. Ever shareholder entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the shareholder and filed with the Secretary of the Corporation. A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless 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, or attendance at the meeting and voting in person by the person executing the proxy; provided, however, that no such proxy shall be valid after the expiration of eleven (11) months from the date of such proxy, unless otherwise provided in the proxy. The revocability of a proxy that states on it face that it is irrevocable shall be governed by the provisions of Sections 705(e) and (f) of the Corporations Code of California.
ARTICLE III
DIRECTORS
Section 1.Powers. Subject to limitations of the California General Corporation Law and any limitations in the Articles of Incorporation and these Bylaws and of the California Corporations Code relating to action required to be approved by the shareholders or
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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. The Board may delegate the management of the day-to-day operation of the business of the Corporation to a management company or other person provided that the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. 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) Select and remove all 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 these Bylaws, fix their compensation, and require from them security for faithful service.
(b) 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 or these Bylaws, as they may deem best.
(c) Change the principal executive office or the principal business office in the State from one location to another; cause the Corporation to be qualified to do business in any other state, territory, dependency, or foreign county and conduct business within or without the State; designate any place within or without the State for the holding of any shareholders’ meeting, or meetings, including annual meetings; adopt, make and use a corporate seal, and prescribe the forms of certificates of stock, and alter the form of such seal and of such certificates from time to time as in their judgment they may deem best, provided that such forms shall at all times comply with tile provisions of law.
(d) 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) Borrow money and incur indebtedness for the purpose 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 and Qualifications of Directors. The authorized number of directors shall be one (1) until changed by a duly adopted amendment to the Articles of Incorporation or by an amendment to this Bylaw adopted by the vote or written consent of holders of a majority of the outstanding shares entitled to vote.
Section 3.Election and Term of Office. 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.Resignation and Removal of Directors. Any director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary or
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the Board of Directors of the Corporation. If the resignation specifies a later time for the effectiveness of the resignation, it shall be effective at that later time. Unless such resignation specifies otherwise, its acceptance by the Corporation shall not be necessary to make it effective. The Board of Directors may declare vacant the office of a director who has been declared of unsound mind by an order of a court or convicted of a felony. Any or all of the directors may be removed without cause if such removal is approved by the affirmative vote of a majority of the outstanding shares entitled to vote. Unless the entire Board is removed, no director may be removed if the votes cast against removal (or, if such action is taken by written consent, the shares held by persons not consenting in writing to such removal) would be sufficient to elect such director if voted cumulatively at an election a t which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the tin .e of the director’s most recent election were then being elected. No reduction of the authorized number of directors shall have the effect of removing any director before his term of office expires.
Section 5.Vacancies. Vacancies on the Board of Directors may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director. Each director so elected shall hold office until the next annual meeting of the shareholders and until a successor has been elected and qualified.
The shareholders may elect a director or directors at any time to fill any, vacancy or vacancies not filled by the directors, but any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote.
Section 6.Place of Meetings. Regular meetings of the Board of Directors shall be held at any place within or without the State that has been designated from time to time by resolution of the Board. In the absence of such designation, regular meeting shall be held at the principal executive office of the Corporation. Special meetings of the Board shall be held at any place within or without the State that has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, at the principal executive office of the Corporation. Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in such meeting can hear one another, and all such directors shall be deemed to be present in person at such meeting.
Section 7.Organization Meeting. Immediately following each annual meeting of shareholders, the Board of Directors shall hold a regular meeting for the purpose of organization, election of officers and the transaction of other business. Call and notice of such meetings are hereby dispensed with.
Section 8.Other Regular Meetings. Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by the Board of Directors. Such regular meetings may be held without notice, provided the notice of any change in the time of any such meetings shall be given to all of the directors. Notice of a change in the determination of the time shall be give to each director in the same manner as notice for special meetings of the Board of Directors.
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Section 9.Special Meetings. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the President, or if he is absent or unable or refuses to act, by any Secretary or by any one (1) director.
Notice of the time and place of special meetings shall be delivered personally or by telephone to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at the director’s address as it is shown on the records of the Corporation. In case such notice mailed, it shall be deposited in the United States mail at least four (4) days prior to the time of the holding of the meeting. In case the notice is delivered personally, or by telephone or telegram, it shall be delivered personally or by telephone or to the telegraph company at least forty-eight (48) hours prior to the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose of the meeting nor the place if the meeting is to be held at the principal executive office of the Corporation.
Section 10.Quorum. A majority of the authorized number of directors constitutes a quorum of the Board for the transaction of business, except to adjourn as hereinafter provided. 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 11.Waiver of Notice. The transactions of any meeting 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 be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting or an approval of the minutes thereof. The waiver or notice of consent need not specify the purpose of the meeting. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any director who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director.
Section 12.Adjournment. A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.
Section 13.Notice of Adjournment. Notice of the time and place of holding an adjournment meeting need not be given, unless the meeting is adjourned for more than twenty-four (24) hours, in which case notice of such tine and place shall be given prior to the time of the adjourned meeting, in the manner specified in Section 9 of this Article III, to the directors who were not present at the time of the adjournment.
Section 14.Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to such action. Such action by written
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consent shall have the same force and effect as a unanimous vote of the Board of Directors. Such written consent or consents shall be filed with the minutes of the proceedings of the Board.
Section 15.Fees and Compensation of Directors. Directors may receive such compensation, if any, for their services, and such reimbursement of expenses, as may be fixed or determined by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for such services.
Section 16.Committees of Directors. The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two or more directors, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committees who may replace any absent member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board, shall have all the authority of the Board, except with regard to:
(a) the approval of any action which, under the California Corporations Code, also requires shareholders approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in any committees;
(c) the fixing of compensation of the directors for serving on the Board or on any committee;
(d) the amendment or repeal of Bylaws for the adoption of new Bylaws:
(e) the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the Corporation, except at a rate or in a periodic amount or within a price range determined by the Board of Directors; or
(g) the appointment of any other committees of the Board of Directors or the members thereof.
Section 17.Meetings and Actions by Committees. Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article III dealing with the place of meetings, regular meetings, special meetings and notice, quorum, waiver of notice, adjournment, notice of adjournment and action without meeting, with such changes in the context of those Bylaws as are necessary to substitute the committee and its members for the Board of Directors and its members, except that the time or regular meetings of committees may be determined by resolutions of the Board of Directors. Notice of special meetings of committee shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors or a committee may adopt rules for the government of such committee not inconsistent with the provisions of these Bylaws.
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ARTICLE IV
OFFICERS
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 of Directors, a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries or Assistant Treasurers. Any number of offices may be held by the same person.
Section 2.Election of Officers. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article IV, shall be chosen by the Board of Directors, and each shall serve at the pleasure of the Board, subject to the rights, if any, of an officer under any contract of employment.
Section 3.Subordinate Officers, Etc. The Board of Directors may appoint, and 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 of Officers. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors, 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 or removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the. Corporation. Any such resignation shall take effect at the date o1 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. Any such resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party
Section 5.Vacancies in Offices. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these Bylaws for regular appointments to such office.
Section 6.Chairman of the Board. The Chairman of the Board, if such an officer be elected, 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. If there is no President, the Chairman of the Board shall in addition be the chief executive officer of the Corporation and shall have the powers and duties prescribed in Section 7 of this Article IV.
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 have, subject to the control of the Board of Directors, general supervision, direction and control of the business and officers of the Corporation. The President shall preside at all meetings of the shareholders and,
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in the absence of the Chairman of the Board, of if there be none, at all meetings of the Board of Directors. The President has the general powers and duties of management usually vested in the office of President and general manager of a Corporation and such other powers and duties as may be prescribed by the Board.
Section 8.Vice Presidents. In the absence or disability of the President, the Vice President, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a Vice President by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for the respectively by the Board of Directors or the Bylaws, the President or the Chairman of the Board.
Section 9.Secretary. The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board may order, a book of minutes of all meetings or shareholders, the Board and its committees, 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 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 Corporations Code.
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 appointed, 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 and of any committee 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 (which may also be known as ‘Treasurer’) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositaries as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall render to the President and directors, whenever they request it, an account of all of his transactions as Chief Financial Officer and of the financial condition of the Corporation, and shall have other powers and perform such other duties as may be prescribed by the Board of Directors or the Bylaws.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS
Section 1.Agents, Procedures, and Expenses. For the purposes of this Article, ‘agent’ means any person who is or was a director, officer, employee, or other agent of the Corporation, or is or was serving at the request of the 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 proceedings, whether civil, criminal, administrative, or investigative; and ‘expenses’ includes, without limitation, attorneys’ fees and any expenses of establishing a right to indemnification under Section 4 or Section 5(d) of this Article V.
Section 2.Actions Other Than by the Corporation. The Corporation shall have the power to 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 the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if that person acted in good faith and in manner that 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 that person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or in a manner which the person reasonably believed to be in the best interests of this Corporation or that the person had reasonable cause to believe that the person’s conduct was unlawful.
Section 3.Actions by the Corporation. The Corporation shall have the power to 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 of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of that action if that person acted in good faith, in a manner that person believed to be in the best interests of the Corporation and its shareholders. No indemnification shall be made under this Section 3:
(a) In respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the Corporation in the performance of that person’s duty to the Corporation and its shareholders, unless and only to the extent that the court in which that action was brought shall determine upon application that, in view of all the circumstances of the case, that person is fairly and reasonably entitled to indemnity for the expenses and then only to the extent that the court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or
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(c) Of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval.
Section 4.Successful Defense by Agent. To the extent that an agent of the Corporation has been successful on the merits in defense by any proceeding referred to in Sections 2 or 3 of this Article, 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 connections therewith.
Section 5.Required Approval. Except as provided in Section 4 of this Article, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, on 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 Sections 2 or 3 of this Article, by any of one following:
(a) A majority vote of a quorum consisting of directors who are not parties to the proceeding;
(b) If such a quorum of directors is not obtainable, by independent legal counsel in a written opinion;
(c) Approval by the affirmative vote a majority of the shares of the 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 this purpose, the shares owned by the person to be indemnified shall not be considered outstanding or entitled to vote thereon; or
(d) The courts in which the proceeding is or was pending, on application made by the 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 the Corporation.
Section 6.Advance of Expense. Expenses incurred in defending any proceeding may be advanced by the Corporation before the final disposition of the proceeding on receipt of an undertaking by or on behalf of the agent to repay the amount of the advance if it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this Article.
Section 7.Other Contractual Rights. The indemnification provided under this Article shall not be deemed exclusive of any other rights to indemnification to which those seeking indemnification may be entitled under agreement, vote of shareholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office, to the extent such additional rights to indemnification are or, at the time of the grant of such rights, were authorized in the Articles of Incorporation of the Corporation. The rights to indemnify hereunder shall continue as to a person who has ceased to be a: director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of the person. Nothing contained in this Article shall affect any right to
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indemnification to which persons other than such directors and officers may be entitled by contract or otherwise.
Section 8.Limitations. No indemnification or advance shall be made under this Article, except as provided in Section 4 or Section 5(c), in any circumstances where it appears:
(a) 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
(b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement,
Section 9.Insurance. Upon and in the event of a determination by the Board of Directors of the Corporation purchase such insurance, the 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 the agent’s status as such whether or not the Corporation would have the power to indemnify the agent against that liability under the provisions of this Section. The fact that the Corporation owns all or a portion of the shares of the company issuing a policy of insurance shall not render this section inapplicable if either of the following conditions are satisfied:
(a) If authorized in the Articles )f Incorporation, any policy issued is limited to the extent provided by subdivision (d) of Section 204 of the California Corporations Code; or
(b) i) The company issuing the insurance policy is organized, licensed, and operated in a manner that cc Implies with the insurance laws and regulations applicable to its jurisdiction of organization;
ii) The company issuing the policy provides procedures for processing claims that do not permit that company to be subject to the direct control of the Corporation; and
iii) The policy issued provides for some manner or risk sharing between the issuer and purchaser of the policy, on one hand, and some unaffiliated person or persons, on the other, such as by providing for more than one unaffiliated owner of the company issuing the policy or by providing that a portion of the coverage furnished will be obtained from some unaffiliated insurer or reinsurer.
Section 10.Fiduciaries of Corporate Employee Benefit Plan. This Article does not apply to any proceeding, against my trustee, investment manager or other fiduciary of an employee benefit plan in that person’s capacity as such, even though that person may also be an agent of the Corporation as defined in Section 1 of this Article. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article.
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ARTICLE VI
RECORDS AND REPORTS
Section 1.Maintenance and Inspection of Share Register. The Corporation shall keep at its principal executive office a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shareholder. This record shall be open to inspection by any shareholder who holds at least five percent (5%) in the aggregate of the outstanding shares (or at least one percent (1%) of such voting shares and has filed a Schedule 14B with the United States Securities and Exchange Commission) upon five (5) days’ prior written demand.
Section 2.Maintenance and Inspection of Bylaws. The Corporation shall keep at its principal executive office the original or a copy of the Bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours.
Section 3.Maintenance and Inspection of Other Corporate Records. The accounting books and records and minutes of proceedings of the shareholders and the Board of Directors shall be kept at such place or places designated by the Board of Directors, or, in the absence of such designation, at the principal executive office of the Corporation. The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder at any reasonable time during usual business hours, for a purpose reasonably related to the holder’s interests as shareholder. A copy of any financial statements and any income statements, including accompanying balance sheets, prepared by the Corporation shall be kept on file in the principal executive office of the Corporation for a period of twelve months.
Section 4.Inspection by Directors. Every director shall have the absolute right at any reasonable time to inspect all books, records and documents of every kind and the physical properties of the Corporation.
Section 5.Annual Report to Shareholders. The annual report to shareholders referred to in Section 1501 of the California Corporations Code is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the Board of Directors from issuing such periodic reports to the shareholders of the Corporation as it considers appropriate or as proxy by Section 1501(c) of the California Corporations Code.
Section 6.Annual Statement of General Information. The Corporation shall, with respect to each fiscal year, file with the Secretary of State of the State of California, on the prescribed form, a Domestic Stock Statement setting forth various information, including but not limited to the authorized number of directors, the names and complete business or residence addresses of all incumbent directors, the names and complete business or residence addresses of the President, Secretary and Treasurer; the street address of its principal executive office or principal business office in this state and the general type of business constituting the principal business activity of the Corporation, together with a designation of the agent of the Corporation for the purpose of service of process, all in compliance with Section 1502 of the California Corporations Code.
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ARTICLE VII
GENERAL MATTERS
Section 1.Record Date. For purpose of determining the shareholders entitled to notice of any meeting or to vote or entitle to receive payment of any dividend or other distribution or allotment of my rights or entitled to exercise any rights in respect of any other lawful action the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) clays prior to the date of any such meeting nor more than sixty (60) days prior to any other action. Only shareholders of record on the date so fixed are entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, a s the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date fixed as aforesaid, except as otherwise provided in the California Corporations Code.
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 be 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 1 of this Article stall be at the close of business on the day on which the Board adopts the resolution relating there, or the sixtieth day prior to the date of such other action, whichever is later.
Section 2.Checks, Drafts, Evidence of Indebtedness. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors.
Section 3.Corporate Contracts and Instruments; How Executed. The Board of Directors, except as in the 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 so authorized or ratified by the Board of Directors or within agency power to authority to bind the Corporation by any engagement or to pledge its credit or to tender it liable for any purpose or to any amount.
Section 4.Certificates of Stock. Every holder of shares of the Corporation shall be entitled to have a certificate signed in the name of the Corporation by the Chairman of the Board, the President or a Vice President and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or an Assistant Secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of the signatures on the certificate may be facsimile. If any officer, transfer agent or registrar who has signed on the certificate may be facsimile. If any officer, transfer agent or registrar who has signed or whose facsimile signature has been place upon a certificate shall have ceased to be such officer, signature has been placed upon a certificate shall have ceased to be such officer, transferred 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.
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Certificates for 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, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated.
Except as provided in this Section, no new 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, in case any certificate for shares 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.
Section 5.Representation of Shares of Other Corporations. The President or any other officer or officers authorized by the Board or the President are each authorized to vote, represent and exercise on behalf the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation. The authority herein granted 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 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 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 and option or obligation on the part of the Corporation to repurchase 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 requires otherwise, the general provisions, rules of construction and definitions in the California Corporations Code shall govern the construction of these Bylaws. Without limiting the generality of this provision, the singular number includes the plural number includes the singular, and the term ‘person’ includes both a corporation and a natural person.
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ARTICLE VIII
AMENDMENTS
Section 1.Amendment by 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.Amendment by Directors. Subject to the rights of the shareholders as provided in Section 1 of this Article, Bylaws other than a Bylaw or an amendment thereof changing the authorized number of directors may be adopted, amended or repealed by the Board of Directors.
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CERTIFICATEOFSECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of TOTAL EMPLOYEE RELATIONS SERVICES, INC., a California corporation; and
2. That the foregoing Bylaws, comprising eighteen (18) pages, constitute the Bylaws of the Corporation as duly adopted by the Incorporator of the Corporation and as duly approved by Unanimous Written Consent of the Board of Directors dated December 11, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of the Corporation this 11th day of December, 1995.
By: | /s/ John Hermann | |||
Name: | JOHN HERMANN | |||
Title: | Secretary | |||