Exhibit 3.2
AMENDED AND RESTATED
BYLAWS OF
CII FINANCIAL, INC.
(A CALIFORNIA CORPORATION)
ARTICLE I. OFFICES
Section 1.01 Principal Executive Office. The principal executive office
of the corporation is hereby fixed in Pleasanton, County of Alameda, California.
The Board of Directors is hereby granted full power and authority to change said
principal office from one location to another.
Section 1.02 Other Offices. The corporation may also have an office or
offices at such other place or places, either within or without the State of
California, as the Board may from time to time determine or as the business of
the corporation may require.
ARTICLE II. STOCKHOLDERS
Section 2.01 Annual Meetings. The Annual Meeting of stockholders of the
corporation, for the purpose of electing directors and for the transaction of
such other proper business as may come before such meeting, may be held on such
day and at such time as the Board shall determine by resolution; provided,
however that should said day fall upon a Saturday, Sunday or legal holiday
observed by the corporation at its principal executive office, then any such
Annual Meeting of stockholders shall be held at the same time and place on the
next day thereafter ensuing which is a full business day. If the Board fails to
designate the date and time of an Annual Meeting, said Annual Meeting shall be
held on the first Tuesday of June of each Year.
Section 2.02 Special Meetings. Special Meetings of stockholders may be
called at any time for any purpose or purposes permitted under California law by
the Board, by the Chairman of the Board, by the President or by stockholders
entitled to cast not less than ten percent (10%) of the votes at such meeting.
Section 2.03 Place of Meetings. All meetings of stockholders shall be
held either at the principal executive office of the corporation or at any other
location within or without the State of California, as shall be determined from
time to time by the Board of Directors or as specified in the respective notices
or waivers of notice thereof.
Section 2.04 Notice of meetings. (a) Written notice of each Annual or
Special Meeting of stockholders shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each stockholder entitled
to a vote thereat. Such notice shall state the place, date, and hour of the
meeting, and (i) in the case of a Special Meeting, the general nature of the
business to be transacted; or (ii) in the case of the Annual Meeting, those
matters which the Board, at the time of the mailing of the notice, intends to
present for action by the stockholders, but 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 the nominees intended at the time of
the notice, to be presented by management for election.
(b) Notice of a meeting of stockholders shall be given either
personally or by mail addressed, postage prepaid, to the stockholder at the
address of such stockholder appearing on the books of the corporation, or if no
such address appears or is given constructive notice may be given to him as
provided by the California General Corporation Law. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall have
waived such notice; and such notice shall be deemed waived by any stockholder
who shall attend such meeting in person or by proxy, except a stockholder who
shall attend such meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business on the grounds that the
meeting has not been lawfully called or convened. An affidavit by the Secretary
of the corporation of mailing of any notice shall be Prima facie evidence of the
giving of the notice.
Section 2.05 Quorum and Vote Required. (a) At any meeting of
stockholders the holders of record of a majority of the shares issued and
outstanding and entitled to a vote thereat, represented in person or by proxy,
shall constitute a quorum for the transaction of business. The affirmative vote
of the holders of the majority of the shares of such stock so constituting a
quorum shall be considered to be the act of the stockholders, unless the vote of
a greater number or voting by classes is required by the General Corporation Law
or the Articles of Incorporation.
(b) The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding withdrawal of enough stockholders to leave less than a quorum
(as hereinabove defined), if any action taken (other than adjournment) is
approved by at least a majority of the number of shares required, as noted
above, to constitute a quorum.
Section 2.06 Adjourned Meeting and Notice Thereof. (a) Any meeting of
stockholders, whether or not a quorum is present, may be adjourned from time to
time. In the absence of a quorum no other business may be transacted at such
adjourned meeting.
(b) It shall not be necessary to give any notice of the time and place
of an adjourned meeting or of the business to be transacted thereat, other than
by announcement at the meeting at which such adjournment is taken; provided,
however, that when a meeting of stockholders is adjourned for more than
forty-five (45) days or, if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the case
of an original meeting.
Section 2.07 Voting. The stockholders entitled to notice of any meeting
or to vote at any such meeting shall be only persons in whose name shares stand
on the stock records of the corporation on the record date determined in
accordance with Section 2.08 of this Article. Persons holding stock of the
corporation in a fiduciary capacity shall be entitled to vote such stock.
Persons whose stock is pledged shall be entitled to vote the pledged stock,
unless in the transfer by the pledge on the books of the corporation he shall
have expressly empowered the pledge to vote thereon, in which case only the
pledge, or his proxy, may represent such stock and vote thereon. Stock having
voting power standing of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety or otherwise, or with respect to which two or more persons have
the same fiduciary relationship, shall be voted by any one of the registered
holders, either in person or by proxy.
Section 2.08 Record Date. (a) The Board may fix in advance a record
date for the determination of stockholders entitled to notice of any meeting or
to vote or entitled to receive payment of any rights, or entitled to rights, or
entitled to exercise any rights in respect to any other lawful action. The
record date so fixed shall be not more than sixty (60) nor less than ten (10)
days prior to the date of the meeting nor more than sixty (60) days prior to any
of the other aforementioned actions. When a record date is so fixed, only
stockholders of record on that date are entitled to notice of and to vote at the
meeting or to receive the dividend, distribution, or allotment of rights, or to
exercise of the rights, as the case may be, not withstanding any transfer of
shares on the books of the corporation after the record date. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting unless the Board
fixes a new record date for the adjourned meeting. The Board shall fix a new
record date if the meeting is adjourned for more than forty-five (45) days from
the date set for the original meeting.
(b) If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be 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. If no record date is fixed by the Board, the record date for determining
stockholders 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 sixtieth
(60th) day prior to the date of such other action, whichever is later.
Section 2.09 Consent of Absentees. The transactions of any meeting of
stockholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be filed with the corporate records or be made a part of the
minutes of such meeting.
Section 2.10 Action Without Meeting. Any action which, under any
provision of law, may be taken at any Annual or Special Meeting of stockholders,
may be taken without a meeting and without prior notice thereof if a consent in
writing, setting forth the actions so taken, shall be signed by the holders of
record of the issued and 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, however, that directors may not be elected by written consent except
by the unanimous written consent of all shares entitled to vote for the
Selection of directors. Unless a record date for voting purposes be fixed as
provided in Section 2.08 of this Article, the record date for determining
stockholders entitled to give consent pursuant to this Section 2.10, when no
prior action by the Board has been taken, shall be the day on which the first
written consent is given.
Section 2.11 Proxies. Every person entitled to vote shares has the
right to do so either in person or by one or more persons authorized by a
written proxy executed by such stockholder and filed with the Secretary of the
corporation not less than forty-eight (48) hours prior to the meeting; provided,
however, that no proxy may be voted or acted upon after eleven (11) months from
its date unless the proxy shall provide for a longer period. A proxy may be
revoked by a writing delivered to the Secretary of the corporation stating that
the proxy is revoked, or by a subsequent proxy executed or, as to any meeting,
by attendance at such meeting and voting in person by the person executing the
proxy.
Section 2.12 Conduct of Meetings. The Chairman of the Board or in his
absence the President of the corporation, or in his absence the vice-president
designated by him, shall preside as Chairman at all meetings of stockholders.
The Chairman shall conduct each such meeting in a businesslike and fair manner,
but shall not be obligated to follow any technical, formal or parliamentary
rules or principles of procedure. The Chairman's ruling on procedural matters
shall be conclusive and binding on all stockholders, unless at the time of a
ruling a request for a vote is made by a stockholder entitled to vote and who is
represented in person or by proxy at the meeting, in which case the decision of
a majority of such shares shall be conclusive and binding on all stockholders.
Without limiting the generality of the foregoing, the Chairman shall have all of
the powers usually vested in the Chairman of a meeting of stockholders.
Section 2.13 Inspectors of Election. In advance of any meeting of
stockholders, the Board may appoint inspectors of election to act at the meeting
and any adjournment thereof. If inspectors are not appointed, or if any persons
so appointed fail to appear or refuse to act, the chairman of such meeting may
appoint inspectors at the meeting. The number of inspectors shall be either one
(1) or three (3). Each inspector so appointed shall first subscribe an oath to
faithfully execute the duties of an inspector at such meeting with strict
impartiality and according to the best of his ability. Such inspectors (I) shall
decide upon the qualification of those entitled to vote; (ii) shall report the
number of shares represented at the meeting and entitled to vote on the question
presented; (iii) shall conduct the balloting and accept the votes; and (iv) when
the voting is completed, shall ascertain and report the number of shares voted
respectively for and against each question presented. Reports of the inspectors
shall be in writing and subscribed and delivered by them to the Secretary of the
corporation. The inspectors need not be stockholders of the corporation, and any
officer of the corporation may be an inspector on any question other than a vote
for or against a proposal in which he shall have a material interest of any
nature.
ARTICLE III. DIRECTORS
Section 3.01 Powers. Subject to any limitation of the Articles of
Incorporation, of these Bylaws, and of actions required by law to be approved by
the stockholders, the business and affairs of the corporation shall be managed
and all corporate powers shall be vested in, and exercised by or under the
direction of the Board of Directors. The Board may, as permitted by law,
delegate the management of the day-to-day operation of the business of the
corporation to a management company or other persons or officers of the
corporation, 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 3.02 Number of Directors. The authorized number of directors of
the corporation shall be not less than three (3) directors nor more than a
maximum of five (5) directors, provided that at least two (2) directors shall
constitute a quorum at any meeting of the directors. The exact number of
directors shall be set within these limits from time to time (a) by approval of
the Board of Directors, or (b) by 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) or by the written consent of shareholders pursuant to
Section 2.10 hereinabove.
Each of the directors shall be at least eighteen (18) years of age. A
majority of the directors shall be citizens and residents of the United States.
Section 3.03 Election and Term of Office. (a) Directors will be elected
in the manner provided herein at each Annual Meeting of stockholders, but if
such Annual Meeting of stockholders is not held or the Directors are not elected
thereat, the Directors may be elected at any Special Meeting of stockholders
held for that purpose. Each Director, including a Director elected to fill a
vacancy, shall hold office until the next Annual Meeting of stockholders and
until a successor has been duly elected and qualified.
(b) At each election the persons receiving the greatest number of
votes, up to the number of Directors then to be elected, shall be the persons
then elected. The election of Directors shall be subject to any provisions
contained in the Articles of Incorporation relating thereto, and to any
provisions of law for cumulative voting. Nominations of persons to serve as
Directors shall be submitted to the Secretary of the corporation at the meeting
of stockholders at which Directors will be elected.
Section 3.04 Resignation. Any Director may resign at any time by giving
written notice to the Board or to the Chairman of the Board, the President or
the Secretary of the corporation. Any such resignation shall take effect at the
times specified therein, or, if the time be not specified, it shall take effect
immediately upon its receipt; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. If
resignation is to be effective at a future time, a successor may be elected to
take office when the resignation becomes effective.
Section 3.05 Vacancies. (a) A vacancy or vacancies in the Board shall
be deemed to exist in case of the death, resignation or removal of any Director,
or if the authorized number of Directors is increased, or if the stockholders
fail at any Annual or Special Meeting of stockholders at which any Directors are
elected to elect the full authorized number of Directors to be voted for at said
meeting.
(b) The Board may declare vacant the office of a Director who has been
declared of unsound mind by an order of court or who has been convicted of a
felony. Except to the extent it would be contrary to the Articles of
Incorporation or law, any Director may be removed at any time, with or without
cause, by the affirmative vote of stockholders having a majority of the voting
power of the corporation given at a Special Meeting of stock-holders called for
that purpose; provided, however, that no Director may be removed (unless the
entire Board of Directors 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 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.
(c) No reduction of the authorized number of Directors shall have the
effect of removing any Director prior to the expiration of the Director's term
of office.
(d) Except as otherwise provided in the Articles of Incorporation, any
vacancy on the Board, whether because of death, resignation, disqualification,
an increase in the number of directors, or any other cause, may be filled by the
vote of the majority of the remaining Directors, although less than a quorum;
provided, however, that a vacancy occurring by reason of removal of a Director
may be filled only by the stockholders. The stockholders may elect a Director at
any time to fill a vacancy not filled by the Directors, and any such election by
written consent shall require the consent of a majority of the stockholders
entitled to vote; provided, however, that no Director shall be elected by
written consent to fill a vacancy created by removal of any Director, except, by
the unanimous written consent of all stockholders entitled to vote for the
election of Directors. Each Director chosen to fill a vacancy shall hold office
until his successor shall have been elected and qualified or until he shall
resign or shall have been removed.
Section 3.06 Place of Meetings. All meetings of the Board shall be held
either at the principal executive office of the corporation or at any other
location within or without the State of California as shall be determined, from
time to time, by the Board of Directors, or as specified in the respective
notices or waivers of notice thereof.
Section 3.07 First Meeting. Immediately following each Annual Meeting
of stockholders the Board shall meet for the purpose of organization, selection
of a Chairman of the Board, election of Officers, and the transaction of any
other proper business. Except as provided by law, notice of such first Meeting
is hereby dispensed with.
Section 3.08 Regular Meetings. The Board shall hold Regular Meetings at
least once per calendar quarter. Except as provided by law, notice of Regular
meetings is hereby dispensed with.
Section 3.09 Special Meetings. (a) Special Meetings of the Board may
be called at any time by the Chairman of the Board, the President, or the
Secretary or by any two directors.
(b) Special Meetings of the Board shall be held upon at least four (4)
days' written notice or forty-eight (48) hours notice given personally or by
telephone, telegraph, telex or other similar means of communication. Any such
notice shall be addressed or delivered to each Director at such Director's
address as it is shown upon the records of the corporation or as may have been
given to the corporation by the Director for purposes of notice.
Section 3.10 Quorum. The presence of a majority of the directors
present at any meeting of the Board, but which majority shall in no event be
less than two (2) directors, shall be required to constitute a quorum of the
Board for the transaction of business at any meeting of the Board, except to
adjourn as hereinafter provided. Every act or decision done or made by a
majority of the Directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board, unless a greater number be
required by law, by these Bylaws, or by the Articles of Incorporation. 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 number of Directors required, as noted above, to
constitute a quorum for such meeting. The Directors shall act only as a Board,
and the individual Directors shall have no power as such, unless such power be
expressly conferred upon a Director by a duly adopted resolution of the Board.
Section 3.11 Participation in Meetings by Conference Telephone. Members
of the Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear and freely communicate with one another.
Section 3.12 Waiver of Notice. The transactions of any meeting of the
Board, however called and noticed or wherever held, shall be as valid as though
had at a meeting duly held after regular call and notice if a quorum be present
and if, either before or after the meeting, each of the Directors not present
signs a written waiver of notice, a consent to holding such meeting or an
approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or be made a part of the minutes of the
meeting.
Section 3.13 Adjournment. A majority of the Directors present, whether
or not a quorum is present, may adjourn any meeting of Directors to another time
and place. If the meeting is adjourned for more than twenty-four (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 adjournment.
Section 3.14 Fees and Compensation. No stated salary shall be paid to
Directors, as such, for their services, but by resolution of the Board a fixed
sum and expenses of attendance, if any, may be allowed for attendance at each
Regular or Special
Meeting of the Board or an annual Director's fee, or both, may be paid;
provided that nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefore. Members of Board committees may be allowed like
compensation for attending committee meetings.
Section 3.15 Action Without Meeting. Any action required or permitted
to be taken by the Board may be taken without a meeting if all members of the
Board shall individually or collectively consent in writing to such action. Such
consent or consents shall have the same effect as a unanimous vote of the Board
and shall be filed with the minutes of the proceedings of the Board. Any action
without a meeting of the Board shall be limited to those situations where time
is of the essence and not in lieu of a regularly scheduled meeting.
Section 3.16 Committees. The Board may, by resolution passed by a
majority of the authorized number of Directors, designate one or more
committees, each committee to consist of at least three (3) of the directors of
the corporation. Among these committees may be an Executive Committee which
shall have and may exercise all the powers and authority of the Board in the
management of the affairs of the corporation between Regular or Special meetings
of the Board.
Section 3.17 Officers of the Board. The Board shall have a Chairman of
the Board and may, at the discretion of the Board, have one or more Vice
Chairmen. The Chairman of the Board and the Vice Chairmen shall be appointed
from time to time by the Board, and shall have such powers and duties as shall
be designated by the Board or as provided herein in these Bylaws.
ARTICLE IV.OFFICERS
Section 4.01 Officers. The principal corporate and executive officers
of the corporation shall be a president, a vice president, a secretary and a
chief financial officer. The corporation may also have, at the discretion of the
board of directors, a chairman of the board and such other officers, with such
titles and duties as may be determined by the board of directors. One person may
hold two or more offices, except that the offices of president and secretary
shall not be held by the same person.
Section 4.02 Election and Term of Office. The officers of the
corporation, except those appointed by delegated authority pursuant to Section
4.03 of this Article, shall be elected annually the board of directors, and each
such officer shall hold office after the expiration of his term until a
successor is chosen or until his resignation or removal before the expiration of
his term. A failure to elect officers shall not require the corporation to be
dissolved.
Section 4.03 Subordinate Officers, Committees and Agents. The board of
directors may from time to time elect such other officers and appoint such
committees, employees, or other agents as the business of the corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws, or as the board of
directors may from time to time determine. The board of directors may delegate
to any officer or committee the power to appoint subordinate officers and to
retain or appoint employees or other agents, or committees thereof, and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 4.04 Removal and Resignation. Any officer may be removed,
either with or without cause, by a majority of the directors at the time in
office, at any regular or special meeting of the board of directors, or, except
in case of an officer chosen by the board of directors, by any officer upon whom
such power of removal may be conferred by the board of directors, subject, in
each case, to the rights, if any, of any such officer under any contract of
employment with the corporation.
Any officer may resign at any time by giving written notice to the
corporation, without prejudice, however, to the rights, if any, of the
corporation under any contract to which such officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4.05 Vacancies. A vacancy in any office shall be filled in the
manner prescribed in these bylaws for regular appointments to such office.
Section 4.06 Duties and Compensation. Officers of the corporation shall
have such powers and duties, and shall receive such compensation therefor, as
may be specified from time to time by the board of directors. In the absence of
any contrary determination by the board of directors, the president shall be the
general manager and chief executive officer of the corporation and shall,
subject to the power and authority of the board of directors, have general
supervision, direction, and control of the officers, employees, business, and
affairs of the corporation. The president shall sign, execute and acknowledge,
or authorize another officer or agent to sign, execute and acknowledge in the
name of the corporation, deeds, mortgages, bonds, contracts or other
instruments, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors, or by these bylaws, to some other
officer or agent of the corporation.
ARTICLE V. CONTRACTS, CHECKS,
DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 Execution of Contracts. Except as these Bylaws may
otherwise provide, the Board may, by duly adopted resolution, authorize any
officer or agent of the corporation to enter into any contract or execute any
instrument in the name and on behalf of the corporation and such authority may
be general or confined to specific instances; and unless so authorized by the
Board or by these Bylaws, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or in any amount.
Section 5.02 Checks, Drafts, Etc. All checks, drafts or other orders
for payment of money, notes or other evidence of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board. Each such person shall give such bond, if any, as
the Board may require.
Section 5.03 Deposit. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any Board committee, Officer, assistant, agent or attorney
of the corporation to whom such power shall have been delegated by the Board.
For the purpose of deposit and for the purpose of collection for the account of
the corporation, the President, Secretary, any Vice-President or the Treasurer
(or any other Officer, assistant, agent or attorney of the corporation who shall
from time to time be determined by the Board) may endorse, assign and deliver
checks, drafts and other orders for the payment of money which are payable to
the order of the corporation.
Section 5.04 General and Special Bank Accounts. The Board may from time
to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may select
or as may be selected by any Board committee, Officer, assistant, agent or
attorney of the corporation to whom such power shall have been delegated by the
Board. The Board may make such special rules and regulations with respect to
such bank accounts, not inconsistent with the provisions of these Bylaws, as it
may deem expedient.
ARTICLE VI. SHARES AND THEIR TRANSFER
Section 6.01 Certificates for Stock. Every owner of stock of the
corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued, and shall be signed in the name of the corporation by the
Chairman of the Board, or the President, and by the Secretary or Assistant
Secretary, or the transfer agent or registrar of the corporation. Any of the
signatures on the certificates may be a facsimile, provided that at least the
signature of the corporation's transfer agent or registrar is an original
signature. In case any Officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon any such certificate shall
thereafter have ceased to be such Officer, transfer agent or registrar before
such certificate is issued, such certificate may nevertheless be issued by the
corporation with the same effect as though the person who signed such
certificate, or whose facsimile signature shall have been placed thereupon, were
such Officer, transfer agent or registrar at the date of issue. A record shall
be kept of the respective names of the persons, firms or corporations owning the
stock represented by such certificates, respectively, and the respective
issuance dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the corporation for exchange or
transfer shall be canceled, and no new certificate or certificates shall be
issued in exchange for any existing certificate until such existing certificate
shall have been so canceled, except in cases provided for in Section 6.04.
6.02 Transfer of Stock. Transfers of shares of stock of the corporation
shall be made only on the books of the corporation by the registered holder
thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with a transfer
agent appointed as provided in Section 6.03, and upon surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all required taxes thereon. The person in whose name shares of stock stand on
the books of the corporation shall be deemed the owner thereof for all purposes
as regards the corporation. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact shall be stated expressly in
the entry of transfer if, when the certificate or certificates shall be
presented to the corporation for transfer, both the transferor and the
transferee request the corporation to do so.
Section 6.03 Regulations. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for shares of the stock of the
corporation. It may appoint, or authorize any Officer or Officers to appoint one
or more transfer agents and one or more registrars, and may require all
certificates for stock to bear the signature or signatures or facsimiles thereof
of any of them.
Section 6.04 Lost, Stolen, Destroyed, and Mutilated Certificates. In
any case of loss, theft, destruction, or mutilation of any certificate of stock,
another certificate may be issued in its place upon proof of such loss, theft,
destruction, or mutilation, and upon the giving of a bond of indemnity to the
corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper to do so.
ARTICLE VII INDEMNIFCATION
Section 7.01 Right to Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved (as a party,
witness, or otherwise), in any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative (hereafter
a "Proceeding"), by reason of the fact that he, or a person of whom he is the
legal representative, is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another foreign or domestic
corporation, partnership joint venture, trust, or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic corporation that
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation including service with respect to
employee benefit plans, whether the basis of the Proceeding is alleged action in
an official capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent (hereafter an
"Agent"), shall be indemnified and held harmless by the corporation to the
fullest extent authorized by statutory and decisional law, as the same exists or
may hereafter be interpreted or amended (but, in the case of any such amendment
or interpretation, only to the extent that such amendment or interpretation
permits the corporation to provide broad indemnification rights than were
permitted prior thereto) against all expenses, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes and penalties paid or to
be paid in settlement, any interest, assessments, or other charges imposed
thereon, and any federal, state, local, or foreign taxes imposed on any Agent as
a result of the actual or deemed receipt of any payments under this Article)
incurred or suffered by such person in connection with investigating, defending,
being a witness in, or participating in (including on appeal), or preparing for
any of the foregoing in, any Proceeding (hereafter "Expenses"). The right to
indemnification conferred in this Article shall be a contract right. It is the
corporation's intention that these bylaws provide indemnification in excess of
that expressly permitted by Section 317 of the California General Corporation
Law, as authorized by the corporation's Articles of Incorporation.
Section 7.02 Authority to Advance Expenses. The right to
indemnification provided in Section 7.01 of these Bylaws shall include the right
to be paid, in advance of a Proceeding's final disposition, Expenses incurred in
defending that Proceeding; Provided, however, that if required by the California
General Corporation Law, as amended, the payment of Expenses in advance of the
final disposition of the Proceeding shall be made only upon delivery to the
corporation of an undertaking by or on behalf of the Agent to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized under this Article or otherwise. The Agent's
obligation to reimburse the corporation for the Expense advances shall be
unsecured and no interest shall be charged thereon.
Section 7.03 Right of Agent to Bring Suit. If a claim under Section
7.01 or 7.02 of these Bylaws is not paid in full by the corporation within
thirty (30) days after a written claim has been received by the corporation, the
Agent may at any time thereafter bring suit against the corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the Agent
shall also be entitled to be paid the expense (including attorneys' fees) of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the Agent has not met the standards
of conduct that make it permissible under the California General Corporation Law
for the corporation to indemnify the Agent for the amount claimed. The burden of
proving such a defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the Agent is proper under the circumstances
because he has met the applicable standard of conduct set forth in the
California General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the Agent had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
Section 7.04 Provisions Nonexclusive. The rights conferred on any
person by this Article shall not be exclusive of any other rights that such
person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office. To the extent that any
provision of the Articles, agreement, or vote of the stockholders or
disinterested directors is inconsistent with these bylaws, the provision,
agreement, or vote shall take precedence.
Section 7.05 Authority to Insure. The corporation may purchase and
maintain insurance to protect itself and any Agent against any Expense asserted
against or incurred by such person, whether or not the corporation would have
the power to indemnify the Agent against such Expense under applicable law or
the provisions of this Article, provided that, in cases where the corporation
owns all or a portion of the shares of the company issuing the insurance policy,
the company and/or the policy must meet one of the two sets of conditions set
forth in Section 317 of the California General Corporation Law, as amended.
Section 7.06 Survival of Rights. The rights provided by this Article
shall continue as to a person who has ceased to be an Agent and shall inure to
the benefit of the heirs, executors, and administrators of such person.
Section 7.07 Settlement of Claims. The corporation shall not be liable
to indemnify any Agent under this Article (a) for any amounts paid in settlement
of any action or claim effected without the corporation's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award, if
the corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
Section 7.08 Effect of Amendment. Any amendment, repeal, or
modification of this Article shall not adversely affect any right or protection
of any Agent existing at the time of such amendment, repeal, or modification.
Section 7.09 Subrogation. In the event of payment under this Article,
the corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation effectively to
bring suit to enforce such rights.
Section 7.10 No Duplication of Payments. The corporation shall not be
liable under this Article to make any payment in connection with any claim made
against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote, or otherwise) of the
amounts otherwise indemnifiable hereunder.
ARTICLE VIII. MISCELLANEOUS
Section 8.01 Seal. The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the corporation and
words and figures showing that the corporation was incorporated in the State of
California and the year of incorporation.
Section 8.02 Waiver of Notices. Whenever notice is required to be given
by these Bylaws or the Articles of Incorporation or by law, the person entitled
to said notice may waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to notice.
Section 8.03 Fiscal Year. The fiscal year of the corporation shall
begin on the first day of January in each year.
Section 8.04 Dividends. The Board may from time to time declare, and
the corporation may pay, dividends on its outstanding stock in the manner and on
the terms and conditions provided by law, subject to any contractual
restrictions to which the corporation is then subject.
Section 8.05 Representation of Shares of Other Corporations. The
President or any Officer or Officers authorized by the Board or by the President
are each authorized to vote, represent, and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority granted
herein may be exercised either by any such Officer in person or by any other
person authorized to do so by proxy or power of attorney duly executed by said
Officer.
Section 8.06 Inspection of Bylaws. The corporation shall keep at its
principal executive office the original or a copy of its Bylaws as amended to
date which shall be open to inspection by stockholders at all reasonable times
during office hours. If the principal executive office of the corporation is
outside the State of California and the corporation has no principal business
office in such state, it shall upon the written notice of any stockholder
furnish to such stockholder a copy of these Bylaws as amended to date. The
original or a copy of the Bylaws certified to be a true copy by the Secretary or
an Assistant Secretary of the Corporation shall be prima facie evidence of the
adoption of such Bylaws and of the matters stated therein.
Section 8.07 Amendment of Bylaws. (a) Except as otherwise provided by
law or Section 3.02 of these bylaws, these bylaws may be amended or repealed by
the Board of Directors or by the affirmative vote of a majority of the
outstanding shares entitled to vote, including, if applicable, the affirmative
vote, including, if applicable, the affirmative vote of a majority of the
outstanding shares of each class or series entitled by law or the Articles of
Incorporation to vote as a class or series on the amendment or repeal or
adoption of any bylaw or bylaws; provided, however, after issuance of shares, a
bylaw specifying or changing a fixed number of directors or the maximum or
minimum number or changing from a fixed to a variable board or vice versa may
only be adopted by approval of the outstanding shares as provided herein.
(b) Subject to the right of the outstanding shares to adopt, amend, or
repeal Bylaws and to any restrictions imposed by the Articles of Incorporation
on the power of the Board to adopt, amend, or repeal Bylaws, these Bylaws may,
from time to time and at any time, be amended or repealed, and new or additional
Bylaws adopted, by approval of the Board, provided, however, that such Bylaws
may not contain any provision in conflict with law or with the Articles of
Incorporation. After shares are issued, any Bylaw changing the number of
Directors or changing from a variable to a fixed Board may be adopted only by
approval of the outstanding shares.
Section 8.08 Construction of Bylaws. Unless otherwise stated in these
Bylaws or unless the context requires, the definitions contained in the General
Corporation Law shall govern the construction of these Bylaws. Without limiting
the generality of the foregoing, the masculine gender includes the feminine and
neuter, the singular number includes the plural and the plural number includes
the singular, and the word "person" includes a corporation or other entity as
well as a natural person.