By-Laws Of
SJW Corp.
(A California Corporation)
Adopted April 16, 1985
As amended January 24, 1989,
October 20, 1994, September 22, 1999,
July 19, 2001, October 28, 2003,
April 29, 2004, May 3, 2005,
April 27, 2006, April 26, 2007,
and May 6, 2009
ARTICLE I
OFFICES
Section 1.1 Principal Office. The principal office for the transaction
of the business of the corporation shall be located at 110 W Taylor Street,
San Jose, CA 95110. The Board of Directors is hereby granted full power and
authority to change said principal office to another location within or without
the State of California. [As amended May 6, 2009]
Section 1.2 Other Offices. One or more branch or other subordinate
offices may at any time be fixed and located by the Board of Directors at such
place or places within or without the State of California, as it deems
appropriate.
ARTICLE II
DIRECTORS
Section 2.1 Exercise of Corporate Powers. Except as otherwise
provided by the Articles of Incorporation, as amended, of the corporation
(the "Articles") or by the laws of the State of California now or hereafter
in force, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the
Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the corporation as permitted by law provided
that the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised under the ultimate direction
of the Board.
Section 2.2 Number. The number of the corporation's directors
shall not be less than seven (7) nor more than eleven (11), the exact
number of which shall be fixed from time to time within such range by
a duly adopted resolution of the Board of Directors or shareholders.
[As amended July 19, 2001; April 29, 2004; May 6, 2009]
Section 2.3 Need Not Be Shareholders. The directors of the
corporation need not be shareholders of the corporation.
Section 2.4 Compensation. Directors shall receive such
compensation for their services as directors and such reimbursement
for their expenses of attendance at meetings as may be determined
from time to time by resolution of the Board. Nothing herein
contained shall be construed to preclude any director from serving
the corporation in any other capacity and receiving compensation therefore.
Section 2.5 Election and Term of Office. Except as otherwise
provided in paragraph (l) of Section 4.1 of Article IV of the Articles,
directors shall be elected at each annual meeting of shareholders to
hold office until the next annual meeting, provided, that if for any
reason, said annual meeting or an adjournment thereof is not held or
the directors are not elected thereat, then the directors may be elected
at any special meeting of the shareholders called and held for that
purpose. Except as otherwise provided in paragraph (l) of Section 4.1
of Article IV of the Articles, the term of office of the directors shall
begin immediately after their election and shall continue until the
expiration of the term for which elected and until their respective
successors have been elected and qualified. Unless otherwise
determined by the Board, no individual who will attain the age of
75 years or more during the term of office commencing after the annual
shareholders meeting shall be nominated for election. [As amended
October 28, 2003; May 3, 2005]
Section 2.6 Vacancies. A vacancy or vacancies in the Board
of Directors shall exist when any authorized position of director is
not then filled by a duly elected director, whether caused by death,
resignation, removal, change in the authorized number of directors
(by the Board or the shareholders) or otherwise. The Board of Directors
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. Except for
a vacancy created by the removal of a director, vacancies on the Board
may be filled by a majority of the directors then in office, whether
or not less than a quorum, or by a sole remaining director. A vacancy
created by the removal of a director may be filled only by the approval
of the shareholders. The shareholders may elect a director at any time
to fill any vacancy not filled by the directors, but any such election
by written consent requires the consent of the holders of shares entitled
to cast a majority of the votes entitled to be cast by the outstanding
voting shares. Any director may resign effective upon giving written
notice to the Chairman of the Board, the President, the Secretary or
the Board of Directors of the corporation, unless the notice specifies
a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected
to take office when the resignation becomes effective.
Section 2.7 Removal. (a) Any and all of the directors may be
removed without cause if such removal is approved by the affirmative vote
of a majority of the votes entitled to be cast by the outstanding voting
shares at an election of directors, subject to the following:
(1) No director may be removed (unless the entire
Board is removed) when the votes cast against removal, or not
consenting in writing to such removal, would be sufficient to elect
such director if voted cumulatively at an election at which the same
total number of votes were cast (or, if such action is taken by
written consent, all shares entitled to vote were voted) and the
entire number of directors authorized at the time of the director's
most recent election were then being elected; and
(2) When by the provisions of the Articles, the
holders of the shares of any class or series, voting as a class
or series, are entitled to elect one or more directors, any director
so elected may be removed only by the applicable vote of the holders
of the shares of that class or series.
(b) Any reduction of the authorized number of directors does
not remove any director prior to the expiration of such director's term
of office.
Section 2.8 Emeritus Directors. The Board of Directors may
designate any former director or directors of the corporation as an
Emeritus Director for such term as the Board of Directors shall deem
appropriate. Persons so designated shall not thereby become officers,
directors or employees and shall have only such responsibilities and
privileges as the Board of Directors may from time to time specifically
determine.
ARTICLE III
OFFICERS
Section 3.1 Election and Qualifications. The officers of this
corporation shall consist of a President, one or more Vice Presidents,
a Secretary, and a Chief Financial Officer and Treasurer who shall be
chosen by the Board of Directors and such other officers, including a
Chairman of the Board, as the Board of Directors shall deem expedient,
who shall be chosen in such manner and hold their offices for such
terms as the Board of Directors may prescribe. Any two or more of such
offices may be held by the same person. Any Vice President may exercise
any of the powers of the President as directed by the Board of Directors
and shall perform such other duties as are imposed upon such officer
by the By-Laws or the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall be chosen from the directors, but the
other officers of the corporation mayor may not be directors.
Section 3.2 Term of Office and Compensation. The term of office
and salary of each of said officers and the manner and time of the payment
of such salaries shall be fixed and determined by the Board of Directors
and may be altered by said Board from time to time at its pleasure,
subject to the rights, if any, of said officers under any contract of
employment.
Section 3.3 Removal and Vacancies. Any officer of the corporation
may be removed at the pleasure of the Board of Directors at any meeting
or by vote of shareholders entitled to exercise a majority of the voting
power of the corporation at any meeting or at the pleasure of any officer
who may be granted such power by a resolution of the Board of Directors.
Any officer may resign at any time upon written notice to the corporation
without prejudice to the rights, if any, of the corporation under any
contract to which the officer is a party. If any vacancy occurs in any
office of the corporation, the Board of Directors may elect a successor
to fill such vacancy for the remainder of the un-expired term and until
a successor is duly chosen and qualified.
ARTICLE IV
CHAIRMAN OF THE BOARD
Section 4.1 Powers and Duties. If there be one, the Chairman of
the Board of Directors shall preside at meetings of the shareholders and
of the Board of Directors, and shall do and perform such other things as
may from time to time be assigned to him by the Board of Directors. He
shall have the power and authority to affix the signature of the corporation
to all deeds, conveyances, mortgages, leases, obligations, bonds, contracts,
certificates and other papers and instruments in writing which have been
authorized or directed by the Board of Directors or which, in his judgment,
should be executed on behalf of the corporation.
[As amended September 22, 1999]
ARTICLE V
PRESIDENT
Section 5.1 Powers and Duties. The President shall, subject to the
Board of Directors, be the chief executive officer of the corporation. The
President shall do and perform such duties as may from time to time be
assigned to him by the Board of Directors. He shall have the power and
authority to affix the signature of the corporation to all deeds, conveyances,
mortgages, leases, obligations, bonds, contracts, certificates and other
papers and instruments in writing which have been authorized or directed by
the Board of Directors or which, in his judgment, should be executed on behalf
of the corporation, and to sign certificates for shares of stock of the
corporation. In the event of the absence or disability of the Chairman
of the Board of Directors, the President shall exercise the powers and
perform the duties of the Chairman of the Board of Directors. If there
be no Chairman of the Board of Directors, the powers and duties of the
President shall include those assigned to the Chairman of the Board of
Directors by Article IV, as well as those assigned to the President
by this Article. [As amended September 22, 1999]
Section 5.2 President Pro Tem. If neither the Chairman of the
Board, the President, nor any Vice President is present at any meeting
of the Board of Directors, a President pro tem may be chosen to preside
and act at such meeting. If neither the President nor any Vice President
is present at any meeting of the shareholders, a President pro tem
may be chosen to preside at such meeting.
ARTICLE VI
VICE PRESIDENT
Section 6.1 Powers and Duties. In case of the absence, disability
or death of the President, the Vice President, or one of the Vice Presidents,
shall exercise all the powers and perform all the duties of the President.
If there is more than one Vice President, the order in which the Vice
Presidents shall succeed to the powers and duties of the President shall
be as fixed by the Board of Directors. The Vice President or Vice Presidents
shall have such other powers and perform such other duties as may be
granted or prescribed by the Board of Directors.
ARTICLE VII
SECRETARY
Section 7.1 Powers and Duties. The powers and duties of the
Secretary are:
(a) To keep a book of minutes at the principal office of the
corporation, or such other place as the Board of Directors may order,
of all meetings of its directors and shareholders with the time and
place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present
at directors' meetings, the number of shares present or represented
at shareholders' meetings and the proceedings thereof;
(b) To keep the seal of the corporation and to affix the same
to all instruments which may require it;
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a share
register, or duplicate share registers, 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 shares,
and the number and date of cancellation of every certificate surrendered
for cancellation;
(d) To keep a supply of certificates for shares of the corporation,
to fill in all certificates issued and to make a proper record of each
such issuance; provided, that so long as the corporation shall have one
or more duly appointed and acting transfer agents of the shares, or any
class or series of shares, of the corporation, such duties with respect
to such shares shall be performed by such transfer agent or transfer agents;
(e) To transfer upon the share books of the corporation any and all
shares of the corporation; provided, that so long as the corporation shall
have one or more duly appointed and acting transfer agents of the shares,
or any class or series of shares, of the corporation, such duties with
respect to such shares shall be performed by such transfer agent or
transfer agents and the method of transfer of each certificate shall
be subject to the reasonable regulations of the transfer agent to
which the certificate is presented for transfer and also, if the
corporation then has one or more duly appointed and acting registrars,
to the reasonable regulations of the registrar to which the new certificate
is presented for registration; and provided further that no certificate
for shares of stock shall be issued or delivered or, if issued or delivered,
shall have any validity whatsoever until and unless it has been signed
or authenticated in the manner provided in Section 12.4 hereof;
(f) To make service and publication of all notices that may be
necessary or proper, and without command or direction from anyone. In
case of the absence, disability, refusal or neglect of the Secretary to
make service or publication of any notices, then such notices may be
served and/or published by the President or a Vice President, or by
any person thereunto authorized by either of them or by the Board of
Directors or by the holders of a majority of the outstanding shares
of the corporation; and
(g) Generally to do and perform all such duties as pertain
to the office of Secretary and as may be required by the Board of Directors.
ARTICLE VIII
CHIEF FINANCIAL OFFICER AND TREASURER
Section 8.1 Powers and Duties. The powers and duties of the
Chief Financial Officer and Treasurer are:
(a) To supervise and control the keeping and maintaining of
adequate and correct accounts of the corporation's properties and business
transactions, 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;
(b) To have the custody of all funds, securities, evidence of
indebtedness and other valuable documents of the corporation and, at the
discretion of the Chief Financial Officer and Treasurer, to cause any or
all thereof to be deposited for the account of the corporation with such
depositary as may be designated from time to time by the Board of Directors;
(c) To receive or cause to be received, and to give or cause to
be given, receipts and acquittances for moneys paid in for the account
of the corporation;
(d) To pay out of the corporation funds on hand all just debts of
the corporation of whatever nature upon maturity of the same and to
disburse, or cause to be disbursed, all funds of the corporation as may
be directed by the Board of Directors, taking proper vouchers for such
disbursements;
(e) To render to the Chairman of the Board, to the President and
to the Board of Directors, whenever they may require, accounts of all
transactions and of the financial condition of the corporation; and
(f) Generally to do and perform all such duties as pertain to the
office of Chief Financial Officer and Treasurer and as may be required
by the Board of Directors.
ARTICLE IX
COMMITTEES OF THE BOARD
Section 9.1 Appointment and Procedure. The Board of Directors
may, by resolution adopted by a majority of the authorized number of
directors, designate one or more committees, including an Audit Committee,
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 committee, who may replace any absent member at any meeting
of the committee.
Section 9.2 Powers. Any committee appointed by the Board of
Directors, to the extent provided in the resolution of the Board or in
these By-Laws, shall have all the authority of the Board except with
respect to:
(a) The approval of any action, which requires the approval or vote
of the shareholders;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the directors for serving on the
Board or on any committee;
(d) The amendment or repeal of By-Laws or the adoption of new By-Laws;
(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; and
(g) The appointment of other committees of the Board or the members
thereof.
Section 9.3 Executive Committee. In the event that the Board of
Directors appoints an Executive Committee, such Executive Committee shall
include the Chairman of the Board, if any, as one of its members. In all
cases in which specific directions to the contrary shall not have been
given by the Board of Directors, such Executive Committee shall have and
may exercise, during the intervals between the meetings of the Board of
Directors, all the power and authority of the Board of Directors in the
management of the business and affairs of the corporation (except as
provided in Section 9.2 hereof) in such manner as the Executive Committee
may deem in the best interests of the corporation.
ARTICLE X
MEETINGS OF SHAREHOLDERS
Section 10.1 Place of Meetings. Meetings (whether regular, special
or adjourned) of the shareholders of the corporation shall be held at the
principal office for the transaction of business as specified in accordance
with Section 1.1 hereof, or any place within or without the State which may
be designated by written consent of all the shareholders entitled to vote
thereat, or which may be designated by the Board of Directors.
Section 10.2 Time of Annual Meetings. The annual meeting of the
shareholders shall be held at the hour of 10:00 o'clock in the forenoon
on the third Tuesday in April in each year, if not a legal holiday, and
if a legal holiday, then on the next succeeding business day not a legal
holiday, or such other time or date as may be set by the Board of Directors.
Section 10.3 Special Meetings. Special meetings of the shareholders
may be called at any time by the Chairman of the Board, by the President,
by the Board of Directors, or by shareholders holding not less than ten
percent (10%) of the voting power of the corporation on the record date
established pursuant to Section 10.12 of these By-Laws. The person or
persons calling any such meeting shall concurrently specify the purpose
of such meeting and the business proposed to be transacted at such meeting.
In connection with any special meeting called in accordance with the
provisions of this Section 10.3, upon request in writing sent by registered
mail to the Chairman of the Board, the President, a Vice President or the
Secretary of the corporation, or delivered to any such officer in person,
by the person or persons calling such meeting (such request, if sent by a
shareholder or shareholders, to comply with the advance notice requirement
set forth in Section 10.14, including the information required by Section
10.14(a) of these By-Laws), it shall be the duty of such officer, subject
to the immediately succeeding sentence, to cause notice of such meeting
to be given in accordance with Section 10.4 of these By-Laws as promptly
as reasonably practicable and, in connection therewith, to establish the
place and, subject to Section 601(c) of the California Corporations Code
(the "Code"), the date and hour of such meeting. Within ten (10) business
days after receiving such a request from a shareholder or shareholders
of the corporation, the Board of Directors shall determine whether such
shareholder or shareholders have satisfied the requirements for calling
a special meeting of the shareholders pursuant to these By-Laws and
notify the requesting party or parties of its finding. Nothing
contained in Section 10.3 shall be construed as limiting, fixing or
affecting the time when a meeting of shareholders called by action of
the Board of Directors may be held. [As amended May 6, 2009].
Section 10.4 Notice of Meetings. (a) Whenever shareholders
are required or permitted to take any action at a meeting, a written
notice of the meeting shall be given not less than 10 nor more than
60 days before the day of the meeting to each shareholder entitled
to vote thereat. Such notice shall state the place, date and hour of
the meeting and (1) in the case of a special meeting, the general
nature of the business to be transacted, and no other business may
be transacted, or (2) 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 subdivision (b) 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.
(b) Any shareholder approval at a meeting, other than unanimous
approval by those entitled to vote, on any of the matters listed
below shall be valid only if the general nature of the proposal so
approved was stated in the notice of meeting or in any written waiver
of notice:
(1) A proposal to approve a contract or other
transaction between the corporation and one or more of its directors,
or between the corporation and any corporation, firm or association
in which one or more directors has a material financial interest;
(2) A proposal to amend the Articles;
(3) A proposal regarding a reorganization, merger
or consolidation involving the corporation;
(4) A proposal to wind up and dissolve the corporation;
(5) A proposal to adopt a plan of distribution of
the share, obligations or securities of any other corporation,
domestic or foreign, or assets other than money which is not in
accordance with the liquidation rights of any preferred shares as
specified in the Articles.
Section 10.5 Delivery of Notice. Notice of a shareholders' meeting
or any report shall be given either personally or by mail or 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. The notice or report shall be deemed to
have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication. An affidavit
of mailing of any notice or report in accordance with the provisions of
this section, executed by the secretary or any transfer agent, shall be
prima facie evidence of the giving of the notice or report.
If any notice or report addressed to the shareholders at the address
of such shareholder appearing on the books of the corporation is returned
to the corporation by United States Postal Service marked to indicate
that the United States Postal Service is unable to deliver the notice or
report to the shareholder at such address, all future notices or reports
shall be deemed to have been duly given without further mailing if the
same shall be available for the shareholder upon written demand of the
shareholder at the principal executive office of the corporation for a
period of one year from the date of the giving of the notice to all other
shareholders.
Section 10.6 Adjourned Meetings. Any meeting of shareholders may
be adjourned from time to time by (i) the vote of a majority of the votes
entitled to be cast by the shares represented either in person or by proxy;
or (ii) the presiding officer of the meeting. When a shareholders' meeting
is adjourned to another time or place, unless the By-Laws otherwise require
and except as provided in this section, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting
the corporation may transact any business which might have been transacted
at the original meeting. If the adjournment is for more than 45 days or
if after the adjournment a new record date if fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting. [As amended May 6, 2009].
Section 10.7 Attendance at Shareholders' Meeting. Attendance of a
person at a meeting of shareholders shall constitute a waiver of notice of
such meeting, except when the person objects, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened and except that attendance at a meeting is not a waiver of any
right to object to the consideration of matters required by the Code to be
included in the notice but not so included in the notice if such objection
is expressly made at the meeting.
Section 10.8 Quorum. (a) The presence in person or by proxy
at any meeting of persons entitled to cast a majority of the votes entitled
to be cast by the outstanding voting shares shall constitute a quorum for
the transaction of business. If a quorum is present, the affirmative vote
of a majority of the votes entitled to be cast by the shares represented at
the meeting and entitled to vote on any matter shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by law or the Articles or these By-Laws and except as provided
in subdivision (b).
(b) The shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact business until
adjournment notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment)
is approved by an affirmative vote equal to at least a majority of the
votes required to constitute a quorum. [As amended May 6, 2009]
Section 10.9 Actions Without Meeting. (a) Any action which may
be taken at any annual or special meeting of shareholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted; provided that, subject to the provisions
of Section 2.6, directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of
directors;
(b) Unless the consents of all shareholders entitled to vote have been
solicited in writing:
(1) Notice of any shareholder approval on matters
described in subparagraphs (1), (3) or (5) of subdivision (b)
of Section 10.4 or respecting indemnification of agents of
the corporation without a meeting by less than unanimous written
consent shall be given at least ten (10) days before the consummation
of the action authorized by such approval; and
(2) Prompt notice shall be given of the taking of
any other corporate action approved by shareholders without a meeting
by less than unanimous written consent, to those shareholders
entitled to vote who have not consented in writing; the provisions of
Section 10.5 shall apply to such notice.
Section 10.10 Revocation of Consent. Any shareholder giving a written
consent, or the shareholder's proxy holders, or a transferee of the shares or a
personal representative of the shareholder or their respective proxy holders,
may revoke the consent by a writing received by the corporation prior to the
time that written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary of the corporation, but
may not do so thereafter. Such revocation is effective upon its receipt by
the Secretary of the corporation.
Section 10.11 Voting Rights. Except as provided in Section 10.13 or
in the Articles or in the Certificate of Determination of Preferences of any
series of preferred shares or in any statute relating to the election of
directors or to other particular matters, each holder of preferred shares
entitled to be voted shall be entitled to eight votes for each preferred
share and each holder of common shares entitled to be voted shall be entitled
to one vote for each common share with respect to each matter submitted to
a vote of shareholders. A fraction of a share shall not be entitled to any
voting rights whatsoever. Any holder of shares entitled to vote on any
matter may vote part of the shares in favor of the proposal and refrain from
voting the remaining share; or vote them against the proposal, other than
elections to office, but, if the shareholder fails to specify the number of
shares such shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect to all shares
such shareholder is entitled to vote.
Section 10.12 Determination of Holders of Record. (a) In order
that the corporation may determine the shareholders entitled to notice of
any meeting or to vote or entitled to receive payment of any dividend or
other distribution or allotment of any rights or entitled to exercise any
rights in respect of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than 60 nor less
than 10 days prior to the date of such meeting nor more than 60 days prior
to any other action.
(b) In the absence of any record date set by the Board of Directors
pursuant to subdivision (a) above, then:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business on
the business day next preceding the day on which the meeting is held;
(2) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting, when
no prior action by the Board has been taken, shall be the day on which
the first written consent is given;
(3) The record date for determining shareholders for
any other purpose shall be at the close of business on the day on which
the Board adopts the resolution relating thereto, or the 60th day
prior to the date of such other action, whichever is later.
(c) 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,
but the Board shall fix a new record date if the meeting is adjourned for
more than 45 days from the date set for the original meeting.
(d) Shareholders on the record date are entitled to notice and
to vote or to receive the dividend distribution or allotment of rights
or to exercise the rights, as the case may be, notwithstanding any transfer
of any shares on the books of the corporation after the record date, except
as otherwise provided in the Articles or these By-Laws or by agreement or
applicable law.
Section 10.13 Elections for Directors. (a) Every shareholder
complying with subdivision (b) and 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.
(b) No shareholder shall be entitled to cumulate votes (i.e., cast
for anyone or more candidates a number of votes greater than the number of
votes to which the shareholder's shares are entitled pursuant to Section 10.11)
unless such candidate or candidates' names have been placed in nomination prior
to the voting and the shareholder has given written notice to the chairman of
the meeting at the meeting prior to the voting of the shareholder's intention
to cumulate the shareholder's votes. If anyone shareholder has given such
notice, all shareholders may cumulate their votes for candidates in nomination.
(c) 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.
(d) Elections for directors need not be by ballot unless a shareholder
demands election by ballot at the meeting and before the voting begins or
unless the By-Laws so require.
Section 10.14 Advance Notice of Shareholder Business and Nomination
(a) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the shareholders may be made at
an annual meeting of shareholders only (a) pursuant to the corporation's
notice of meeting (or any supplement thereto), (b) by or at the direction of
the Board of Directors or any duly authorized committee thereof, or (c) by
any shareholder of the corporation who was a shareholder of record of the
corporation at the time the notice provided for in this Section 10.14 is
delivered to the Secretary of the corporation, who is entitled to vote at
the meeting, and who complies with the notice procedures set forth in this
Section 10.14.
(ii) For a business or proposal (other than the nomination of persons
for election as directors) to be properly brought before an annual meeting
of shareholders by a shareholder, the shareholder must have given timely
notice thereof in proper written form to the Secretary of the corporation
and any such proposed business must constitute a proper matter for
shareholder action under the Code. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal executive offices of
the corporation not later than the close of business on the ninetieth
(90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding
year's annual meeting (provided, however, that in the event that the date
of the annual meeting is more than thirty (30) days before or more than
sixty (60) days after such anniversary date, notice by the shareholder must
be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such annual meeting and not later
than the close of business on the later of the ninetieth (90th) day prior
to such annual meeting or the tenth (10th) day following the day on which
public announcement of the date of such meeting is first made by the
corporation). In no event shall the public announcement of an adjournment
or postponement of an annual meeting of shareholders commence a new time
period (or extend any time period) for the giving of a shareholder's
notice as described above. To be in proper written form, a shareholder's
notice to the Secretary (whether pursuant to this Section 10.14(a)(ii)
or Section 10.14(b)) must set forth: (A) a brief description of the
business desired to be brought before the meeting, (B) the text of the
proposal or business (including the text of any resolutions proposed
for consideration and in the event that such business includes a
proposal to amend the By-Laws of the Corporation, the language of
the proposed amendment), (C) the reasons for conducting such business
at the meeting, (D) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business
and any other shareholders known by such shareholder to be supporting
such proposal, (E) the class and number of shares of the corporation's
stock which are beneficially owned (as determined by Rule 13d of The
Securities and Exchange Act of 1934, as amended ("Exchange Act")
by the shareholder on the date of such shareholder notice and by
any other shareholders known by such shareholder to be supporting such
proposal on the date of such shareholder notice, and (F) any material
interest in such business of such shareholder and the beneficial owner,
if any, on whose behalf the proposal is made. The presiding officer
of the annual meeting shall determine and declare at the annual meeting
whether the shareholder proposal was made in accordance with the
terms of this Section 10.14. Notwithstanding anything in these By-Laws
to the contrary, no business shall be conducted at an annual meeting
except in accordance with the procedures set forth in this Section
10.14(a)(ii). If the presiding officer determines that a shareholder
proposal was not made in accordance with the terms of this Section
10.14(a)(ii), he or she shall so declare at the annual meeting and
any such proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors
and committees of the Board, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless
stated, filed and received as herein provided. Notwithstanding the
foregoing provisions, a shareholder shall also comply with all
applicable additional requirements of the Exchange Act and the
rules and regulations thereunder (collectively, the "SEC
Requirements") with respect to the matters set forth in this
Section 10.14(a)(ii) and that this Section 10.14(a)(ii) is
intended as an additional requirement to the SEC Requirements.
(iii) Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors.
Such nominations, other than those made by or at the direction of
the Board, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close
of business on the ninetieth (90th) day nor earlier than the
close of business on the one hundred twentieth (120th) day prior
to the first anniversary of the preceding year's annual meeting
(provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than sixty
(60) days after such anniversary date, notice by the shareholder
must be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such annual meeting and
not later than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of
such meeting is first made by the corporation). In no event shall
the public announcement of an adjournment or postponement of an
annual meeting of shareholders commence a new time period (or extend
any time period) for the giving of a shareholder's notice as described
above. To be in proper written form, a shareholder's notice to the
Secretary (whether pursuant to this Section 10.14(a)(iii) or Section
10.14(b)) must set forth, as to each person, if any, whom the shareholder
proposes to nominate for election as a director (1) the shareholders
intent to nominate such person for election as a director of the
corporation, the name of each such nominee proposed by the
shareholder giving the notice, and the reason for making such
nomination at the annual meeting, (2) the name and address, as they
appear on the corporation's books, of the shareholder proposing
such nomination and the beneficial owner, if any, on whose behalf
the nomination is proposed, (3) the class and number of shares of
the corporation that are owned beneficially (as determined pursuant
to Rule 13(d) of the Exchange Act) and of record by the shareholder
proposing such nomination and by the beneficial owner, if any, on
whose behalf the nomination is proposed, and (4) any material interest
of such shareholder proposing such nomination and the beneficial
owner, if any, on whose behalf the proposal is made, (5) a description
of all arrangements or understandings between or among any of (A) the
shareholder giving the notice, (B) each nominee, and (C) any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder giving the
notice, (6) such other information regarding each nominee proposed by
the shareholder giving the notice as would be required to be included
in a proxy statement filed in accordance with the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the Board of Directors, and (7) the signed
consent of each nominee proposed by the shareholder giving the notice to
serve as a director of the corporation if so elected. The corporation
may require any proposed nominee to furnish such other information as
may reasonably be required by the corporation to determine the eligibility
of such proposed nominee to serve as director of the corporation. No
person shall be eligible to serve as a director of the corporation unless
nominated in accordance with the procedures set forth in this Section
10.14(a)(iii) or appointed to fill a vacancy in accordance
with Section 2.6. The presiding officer of the annual meeting shall
determine and declare at the annual meeting whether the nomination
was made in accordance with the terms of the Section 10.14(a)(iii).
If the presiding officer determines that a nomination was not made
in accordance with the terms of this Section 10.14(a)(iii), he or
she shall so declare at the annual meeting and any such defective
nomination shall be disregarded. Notwithstanding the foregoing
provisions, a shareholder shall also comply with all applicable
additional provisions of the SEC Requirements with respect to the
matters set forth in the Section 10.14(a)(iii) and that this
Section 10.14(a)(iii) is intended as an additional requirement to
the SEC Requirements.
(b) Special Meetings of Shareholders. Only such business
shall be conducted at a special meeting of shareholders as shall
have been brought before the meeting pursuant to the corporation's
notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of shareholders
at which directors are to be elected pursuant to the corporation's
notice of meeting (i) by or at the direction of the Board of
Directors or any duly authorized committee thereof or (ii) provided
that the Board of Directors or any duly authorized committee thereof
has determined that directors shall be elected at such meeting,
by any shareholder of the corporation who is a shareholder of record
at the time the notice provided for in this Section 10.14 is delivered
to the Secretary of the corporation, who is entitled to vote at the
meeting and upon such election, and who complies with the notice
procedures set forth in this Section 10.14. In the event the
corporation calls a special meeting of shareholders for the purpose
of electing one or more directors to the Board of Directors, any
such shareholder entitled to vote in such election of directors may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the corporation's notice of meeting, if
the shareholder's notice in the same form as required by paragraph
(a)(iii) of this Section 10.14 shall be delivered to the Secretary at
the principal executive offices of the corporation not earlier than
the close of business on the one hundred twentieth (120th) day prior
to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such special meeting or the
tenth (10th) day following the day on which public announcement is
first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In
no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a shareholder's notice
as described above. Notwithstanding the foregoing provisions, a
shareholder shall also comply with all applicable additional provisions
of the SEC Requirements with respect to the matters set forth in the
Section 10.14(b) and that this Section 10.14(b) is intended as an
additional requirement to the SEC Requirements.
(c) Notwithstanding the foregoing provisions of this Section 10.14,
unless otherwise required by law, if the shareholder (or a qualified
representative of the shareholder) does not appear at the annual or
special meeting of shareholders of the corporation to present a nomination
or proposed business, such nomination shall be disregarded and such
proposed business shall not be considered, notwithstanding that proxies
in respect of such vote may have been received by the corporation. For
purposes of this Section 10.14, to be considered a qualified representative
of the shareholder, a person must be authorized by a writing executed by
such shareholder or an electronic transmission delivered by such shareholder
to act for such shareholder as proxy at the meeting of shareholders and
such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the
meeting of shareholders.
(d) For purposes of this Section 10.14, "public announcement"
shall include disclosure in a press release reported by the Dow Jones
News Service, Associated Press, or comparable national news service or
in a document publicly filed by the corporation with the Securities
and Exchange Commission pursuant to Section 13, 14, or 15(d) of the
Exchange Act.
(e) Nothing in this Section 10.14 shall be deemed to affect any
rights (i) of shareholders to request inclusion of proposals or nominations
in the corporation's proxy statement pursuant to Rule 14a-8 (or any
successor thereto) promulgated under the Exchange Act or (ii) of the
holders of any series of Preferred Stock to nominate and elect directors
pursuant to and to the extent provided in any applicable provisions of
the Article. [As amended May 6, 2009].
Section 10.15 Proxies. (a) Every person entitled to vote shares
may authorize another person or persons to act by proxy with respect to
such shares. Any proxy purporting to be executed in accordance with the
provisions of the General Corporation Law of the State of California shall
be presumptively valid.
(b) No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy. Every proxy
continues in full force and effect until revoked by the person executing
it prior to the vote pursuant thereto, except as otherwise provided in this
section. Such revocation may be effected by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy
executed by, or by attendance at the meeting and voting in person by,
the person executing the proxy. The dates contained on the forms of
proxy presumptively determine the order of execution, regardless of the
postmark dates on the envelopes in which they are mailed.
(c) A proxy is not revoked by the death or incapacity of the
maker unless, before the vote is counted, written notice of such
death or incapacity is received by the corporation.
Section 10.16 Inspectors of Election. (a) In advance of any
meeting of shareholders the Board may appoint inspectors of election to
act at the meeting and any adjournment thereof. If inspectors of election
are not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any meeting of shareholders may and on the
request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse)
at the meeting. The number of inspectors shall be either one or three.
If appointed at a meeting on the request of one or more shareholders or
proxies, the holders of shares entitled to cast a majority of the votes
entitled to be cast by the shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed.
(b) The inspectors of election shall determine the number of
shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum and the authenticity, validity and
effect of proxies, receive votes, ballots or consents, hear and determine
all challenges and questions in any way arising in connection with the right
to vote, count and tabulate all votes or consents, determine when the polls
shall close, determine the result and do such acts as may be proper to
conduct the election or vote with fairness to all shareholders.
(c) The inspectors of election shall perform their duties impartially,
in good faith, to the best of their ability and as expeditiously as is
practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision,
act or certificate of all. Any report or certificate made by the inspectors
of election is prima facie evidence of the facts stated therein.
Section 10.17 Voting Powers on Default in Dividends. Reference is
hereby made to paragraph (1) of Section 5.1 of Article V of the Articles
for provisions concerning changes in voting powers of preferred shares and
common shares of the corporation and procedure for election of directors
in case of certain defaults in payment of dividends on preferred shares.
Section 10.18 Conduct of the Meeting. The Chairman of the Board
or such other officer of the corporation designated by a majority of the
Board of Directors, will call meetings of the shareholders to order and
will act as presiding officer thereof. Unless otherwise determined by
the Board of Directors prior to the meeting, the presiding officer of
the meeting of the shareholders will also determine the order of business
and have the authority in his or her sole discretion to regulate the
conduct of any such meeting and make ruling on procedural matters, including
without limitation by (i) imposing restrictions on the persons (other than
shareholders of the corporation or their duly appointed proxies) who may
attend any such shareholders' meeting, (ii) ascertaining whether any
shareholder or his proxy may be excluded from any meeting of the shareholders
based upon any determination by the presiding officer, in his or her sole
discretion, that any such person has unduly disrupted or is likely to
disrupt the proceedings thereat, and (iii) determining the circumstances
in which any person may make a statement or ask questions at any meeting
of the shareholders. [As amended May 6, 2009].
ARTICLE XI
MEETINGS OF DIRECTORS
Section 11.1 Place of Meetings. Unless otherwise specified in
the notice thereof, meetings (whether regular, special or adjourned) of
the Board of Directors of this corporation shall be held at the principal
office of the corporation for the transaction of business, as specified in
accordance with Section 1.1 hereof, which is hereby designated as an office
for such purpose in accordance with the laws of the State of California,
or at any other place within or without the State which has been designated
from time to time by resolution of the Board or by written consent of all
members of the Board.
Section 11.2 Regular Meetings. Regular meetings of the Board of
Directors, of which no notice need be given except as required by the laws
of the State of California, shall be held after the adjournment of each
annual meeting of the shareholders (which meeting shall be designated the
Regular Annual Meeting). 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. [As amended May 6, 2009].
Section 11.3 Special Meetings. Special meetings of the Board
of Directors may be called at any time by the Chairman of the Board or
the President or by any Vice President or the Secretary or by any two
or more of the directors.
Section 11.4 Notice of Meetings. Except in the case of regular
meetings, notice of which has been dispensed with, the meetings of the
Board of Directors shall be held upon four (4) days' notice by mail or
forty-eight (48) hours' notice delivered personally or by telephone,
telegraph or other electronic or wireless means. If the address of a
director is not shown on the records and is not readily ascertainable,
notice shall be addressed to him at the city or place in which the
meetings of the directors are regularly held. Except as set forth in
Section 11.6, notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place
be fixed at the meeting adjourned.
Section 11.5 Quorum. A majority of the authorized number
of directors constitutes a quorum of the Board for the transaction
of business. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors except
as otherwise provided by law. 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 11.6 Adjourned Meetings. A majority of the directors
present, whether or not a quorum is present, may adjourn any meeting
to another time and place. If the meeting is adjourned for more than
24 hours, notice of any adjournment to another time or place shall be
given prior to the time of the adjourned meeting to the directors who
were not present at the time of the adjournment.
Section 11.7 Waiver of Notice and Consent. (a) Notice of a
meeting need not be given to any director who signs a waiver of
notice, 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.
(b) The transactions of any meeting of the Board, however called
and noticed or wherever held, are as valid as though had at a meeting
duly held after regular call and notice if a quorum is present and if,
either before or after the meeting, each of the directors not present
signs a written waiver of notice, a consent to holding the meeting or
an approval of the minutes thereof. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of
the minutes of the meeting.
Section 11.8 Action Without a 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 written consent or consents shall be
filed with the minutes of the proceedings of the Board. Such action
by written consent shall have the same force and effect as a unanimous
vote of such directors.
Section 11.9 Conference Telephone Meetings. Members of the
Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in
such meeting can hear one another. Participation in a meeting pursuant
to this section constitutes presence in person at such meeting.
Section 11.10 Meetings of Committees. The provisions of this
Article apply also to committees of the Board and action by such committees.
ARTICLE XII
SUNDRY PROVISIONS
Section 12.1 Instruments in Writing. All checks, drafts, demands
for money and notes of the corporation, and all written contracts of the
corporation, shall be signed by such officer or officers, agent or agents,
as the Board of Directors may from time to time by resolution designate.
No officer, agent, or employee of the corporation shall have power to bind
the corporation by contract or otherwise unless authorized to do so by these
By-Laws or by the Board of Directors.
Section 12.2 Fiscal Year. The fiscal year of this corporation shall
be the calendar year.
Section 12.3 Shares Held by the Corporation. Shares in other
corporations standing in the name of this corporation may be voted or
represented and all rights incident thereto may be exercised on behalf
of this corporation by the President or by any other officer of this
corporation authorized so to do by resolution of the Board of Directors.
Section 12.4 Certificates of Stock. There shall be issued to
each holder of fully paid shares of the capital stock of the corporation
a certificate or certificates for such shares. Every holder of shares
in the corporation shall be entitled to have a certificate signed in the
name of the corporation by the Chairman or Vice Chairman of the Board or
the President or a Vice President and by the Chief Financial Officer
and Treasurer or the 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. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as
if such person were an officer, transfer agent or registrar at the
date of issue.
Section 12.5 Lost Certificate. The Board of Directors
may by resolution provide that in the event any certificates for
shares of the capital stock of the corporation shall be alleged to
have been lost or destroyed, no new certificate or certificates
shall be issued in lieu thereof until an indemnity bond in such form
and in such amount as shall be approved by the President or a Vice
President of the corporation shall have been furnished. The Board
of Directors may adopt such other provisions and restrictions
with reference to lost certificates as it shall in its discretion
deem appropriate.
Section 12.6 Certification and Inspection of By-Laws.
The corporation shall keep at its principal executive office in this
state, or if its principal executive office is not in this state at its
principal business office in this state, the original or a copy of
these By-Laws as amended to date, which shall be open to inspection
by the shareholders at all reasonable times during office hours.
If the principal executive office of the corporation is outside this
state and the corporation has no principal business office in this state,
it shall upon the written request of any shareholder furnish to such
shareholder a copy of the By-Laws as amended to date.
Section 12.7 Notices. Any reference in these By-Laws to the
time a notice is given or sent means, unless otherwise expressly
provided, the time a written notice by mail is deposited in the United
States mails, postage prepaid; or the time any other written notice
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; or the time any oral
notices 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 12.8 Reports to Shareholders. The Board of
Directors shall cause an annual report to be sent to the
shareholders not later than 120 days after the close of the
fiscal year or within such shorter time period as may be required
by applicable law, and such annual report shall contain such
information and be accompanied by such other documents as may
be required by applicable law.
Section 12.9 No Closing of Stock Transfer Books. The Board
of Directors shall set a record date to determine shareholders eligible
to receive dividends, rights, distributions and the like, and to vote
at meetings of shareholders, and the transfer books shall not be
closed in connection therewith.
Section 12.10 [Section 12.10 was deleted in its entirety
by amendment dated January 24, 1989]
ARTICLE XIII
CONSTRUCTION OF BY-LAWS
WITH REFERENCE TO PROVISIONS OF LAW
Section 13.1 Definitions. Unless defined otherwise in
these By-Laws or unless the context otherwise requires, terms used
herein shall have the same meaning, if any, ascribed thereto in the
California General Corporation Law, as amended from time to time.
Section 13.2 By-Law Provisions Additional and Supplemental
to Provisions of Law. All restrictions, limitations, requirements
and other provisions of these By-Laws shall be construed, insofar
as possible, as supplemental and additional to all provisions of
law applicable to the subject matter thereof and shall be fully
complied with in addition to the said provisions of law unless
such compliance shall be illegal.
Section 13.3 By-Law Provisions Contrary to or Inconsistent
with Provisions of Law. Any article, section, subsection,
subdivision, sentence, clause or phrase of these By-Laws which upon
being construed in the manner provided in Section 13.2 hereof, shall
be contrary to or inconsistent with any applicable provision of law,
shall not apply so long as said provisions of law shall remain in
effect, but such result shall not affect the validity or applicability
of any other portions of these By-Laws, it being hereby declared
that these By-Laws would have been adopted and each article,
section, subsection, subdivision, sentence, clause or phrase
thereof, irrespective of the fact that any one or more articles,
sections, subsections, subdivisions, sentences, clauses or phrases
is or are illegal.
ARTICLE XIV
ADOPTION, AMENDMENT OR REPEAL OF BY-LAWS
Section 14.1 By Shareholders. By-Laws may be adopted,
amended or repealed by the affirmative vote of a majority of the
votes entitled to be cast by the outstanding voting shares of the
corporation.
Section 14.2 By the Board of Directors. Subject to the
right of shareholders to adopt, amend or repeal these By-Laws, other
than an amendment of these By-Laws changing the authorized number
of directors, these By-Laws may be adopted, amended or repealed
by the Board of Directors. A Bylaw adopted by the shareholders
may restrict or eliminate the power of the Board of Directors to
adopt, amend or repeal any or all By-Laws.