By-Laws Of
SJW Corp.
(A California Corporation)
SJW Corp.
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, May 6, 2009 and July 28, 2010
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 West
Taylor Street, San Jose, California 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 may or 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) A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders. Other than the election of directors, the affirmative
vote of a majority of the shares represented and voting at a duly held
meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by law or the Articles or these By-Laws and except as
provided in subdivision (b). [As amended July 28, 2010]
(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. 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. [As amended July 28,
2010]
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. [As
amended July 28, 2010]
(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 anyone 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.