EXHIBIT 3.26
AMENDED AND
RESTATED BYLAWS
OF
EMPIRE OIL CO.,
a California Corporation
ARTICLE I
LOCATION OF OFFICE
The principal office of Empire Oil Co., a California corporation
(the "Corporation") in the State of California shall be located in
Bloomington, California, County of San Bernardino. The Corporation may
have such other offices, either within or without the State of
California as the business of the Corporation may require from time to
time.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders
shall be held in the second quarter of each fiscal year for the purpose
of electing Directors and for the transaction of such other business as
may come before the meeting. If the day fixed for the annual meeting
shall be a legal holiday, such meeting shall be held on the next
succeeding business day. In the event that such annual meeting is
omitted by oversight or otherwise on the date herein provided for, the
Board of Directors shall cause a meeting in lieu thereof to be held as
soon thereafter as conveniently may be, and any business transacted or
elections held at such meetings shall be as valid as if transacted or
held at the annual meeting. Such subsequent meeting shall be called in
the same manner as provided for the annual shareholders' meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders
may be called by the President, the Secretary, by a majority of the
Board of Directors or by the holders of not less than a majority of all
the outstanding shares of the Corporation.
SECTION 3. PLACE OF MEETING. The President or Secretary may
designate any place, either within or without the State of California,
as the place of meeting for any annual meeting or for any special
meeting. A waiver of notice signed by all shareholders also may
designate any place, either within or without the State of California,
as the place for the holding of such meeting. If no designation is made
or if a special meeting be otherwise called, the place for the holding
of such meeting shall be the principal office of the Corporation in the
State of California.
SECTION 4. NOTICE OF SHAREHOLDERS' MEETINGS. Written notice of
each shareholders' meeting stating the date, time and the place, and
the purpose for which such meeting is called, shall be given by the
President, the Treasurer, the Secretary, an Assistant Secretary or by
any one or more shareholders entitled to call a special meeting of the
shareholders, personally or by mail not less than 10 (or, if sent by
third-class mail, 30) nor more than 60 days prior to the date of the
meeting, to each shareholder of record at the shareholder's address as
it appears on the stock books of the Corporation, unless such
shareholder shall have filed with the Secretary of the Corporation a
written request that notice intended for the shareholder be mailed to
some other address, in which case it shall be mailed to the address
designated in such request.
SECTION 5. QUORUM OF SHAREHOLDERS. At any meeting of the
shareholders, a majority of the shares entitled to vote, represented by
shareholders of record in person or by proxy, shall constitute a
quorum. In the absence of a quorum, any meeting of shareholders may be
adjourned from time to time by the vote of a majority of the shares
represented either in person or by proxy, but no other business may be
transacted, except in the case of withdrawal of shareholders at a
meeting at which a quorum was present. When a quorum is present at any
meeting, the affirmative vote of a majority of the shares represented
and voting at the meeting shall constitute the act of the shareholders,
unless the question is one upon which by express provision of law or of
the Articles of Incorporation or of these bylaws a larger or different
vote is required, in which case such express provision shall govern and
control the decision of such question.
SECTION 6. VOTING. Voting of shares shall be in accordance with
the requirements of the California General Corporation Law, or other
applicable statutes, as now existing or as hereafter amended. Unissued
shares shall not be voted. There shall be no cumulative voting.
SECTION 7. PROXIES. At all meetings of shareholders, a shareholder
may vote by proxy executed in writing by the shareholder or by the
shareholder's duly authorized attorney-in-fact. Such proxy shall be
filed with the Secretary of the Corporation before or at the time of
the meeting.
SECTION 8. ACTION BY CONSENT. Any action required to be taken at a
meeting of the shareholders may be taken without a meeting if a consent
in writing, setting forth the action so taken, shall be signed by all
of the shareholders entitled to vote with respect to the subject matter
thereof. Such consent shall have the effect of a unanimous vote.
ARTICLE III
STOCK
SECTION 1. CERTIFICATES. Certificates for shares shall be in a
form approved and adopted by the Board of Directors. They shall be
signed by the Chairman or Vice-Chairman of the Board of Directors, the
President, or any Vice President, and counter-signed by the Secretary.
They shall be consecutively numbered and state upon their face the
information required by law. The name and address of the person owning
the shares with the number of shares and the date of issue shall be
entered on the Corporation's books.
SECTION 2. ASSIGNMENT AND CANCELLATION. All share certificates
transferred by assignment shall be surrendered for cancellation and new
certificates issued to the purchasers or assignees.
SECTION 3. TRANSFER. Shares of stock shall be transferred on the
books of the Corporation only by the holder thereof in person or by the
holder's attorney-in-fact.
ARTICLE IV
DIRECTORS
SECTION 1. GENERAL POWERS. The Board of Directors shall have the
entire management of the business of the Corporation. In the management
and control of the property, business, and affairs of the Corporation,
the Board of Directors is hereby vested with all the powers possessed
by the Corporation itself, so far as this delegation of authority is
not inconsistent with laws of the State of California, with the
Articles of Incorporation of the Corporation, or with these bylaws. The
Board of Directors shall have the power to determine what constitutes
net earnings, profits, and surplus, respectively, what amount shall be
reserved for working capital and for any other purpose, and what amount
shall be declared as dividends, and such determination by the Board of
Directors shall be final and conclusive.
SECTION 2. NUMBER, TENURE AND DISQUALIFICATIONS. The number of
Directors of the Corporation shall be three. Each Director shall hold
office until the next annual meeting of the shareholders of the
Corporation or until the Director's successor shall have been elected
and qualified. Directors need not be residents of California nor
shareholders of the Corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw,
immediately after, and at the same place as, the annual meeting of
shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of California, for
the holding of additional regular meetings without other notice than
such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the President or any
one Director. The person or persons authorized to call special meetings
of the Board of Directors may fix any place, either within or without
the State of California, as the place for holding any special meeting
of the Board of Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at
least two days prior thereto by written notice delivered personally or
mailed to each Director at the Director's business address, or by
telephone, facsimile, e-mail or commercial mail services. Any Director
may waive notice of any meeting. The attendance of a Director at any
meeting shall constitute a waiver of notice of such meeting, except
where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
SECTION 6. QUORUM. A majority of the authorized number of
Directors fixed by these bylaws as constituting the Board of Directors
shall constitute a quorum for the transaction of business, but a lesser
number (not less than two) may adjourn any meeting and the meeting may
be held as adjourned without further notice. When a quorum is present
at any meeting, a majority of the Directors present thereat shall
decide any question brought before such meeting, except as otherwise
provided by law or by these bylaws.
SECTION 7. MANNER OF ACTING. The act of the majority of the
Directors present at a meeting duly held at which a quorum is present
shall be the act of the Board of Directors.
SECTION 8. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at a meeting of the Directors may be taken
without a meeting if all members of the Board of Directors shall
individually or collectively consent in writing to that action and if
the number of Directors serving at the time constitutes a quorum. Such
consent shall have the effect of a unanimous vote and shall be equally
valid as if said action were approved at a meeting.
SECTION 9. PARTICIPATION BY TELEPHONE. Any one or more members of
the Board of Directors may participate in a meeting of the Board of
Directors by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear
each other at the same time. Participation by such means shall
constitute presence in person at the meeting.
SECTION 10. VACANCIES. Any vacancy occurring on the Board of
Directors, other than a vacancy created by reason of the removal of a
director, or in a directorship to be filled by reason of any increase
in the number of directors, may be filled by the Directors. A Director
elected to fill a vacancy shall be elected for the unexpired term of
the Director's predecessor in office.
SECTION 11. COMPENSATION. Directors as such shall not receive any
stated salaries for their services, but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of the Board
of Directors; provided that nothing herein contained shall be construed
to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE V
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall consist
of a President, one or more Vice Presidents, a Secretary, a Treasurer
and such other officers as may be elected in accordance with the
provisions of this Article V. The Board of Directors, by resolution,
may create the offices of one or more Assistant Treasurers and
Assistant Secretaries, all of whom shall be elected by the Board of
Directors. Any two or more offices may be held by the same person,
except the offices of President and Secretary.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting
of the shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. Vacancies may be filled or new offices created and
filled at any meeting of the Board of Directors. Each officer shall
hold office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation would be
served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by
the Board of Directors for the unexpired portion of the term.
SECTION 5. CHAIRMAN OF THE BOARD. The chairman of the board, if
such an office be elected, shall, if present, preside at meetings of
the Board of Directors and exercise and perform such other powers and
duties as may be assigned to him from time to time by the Board of
Directors or prescribed by these bylaws.
SECTION 6. PRESIDENT. The President, unless some other person is
specifically authorized by vote of the Board of Directors, shall sign
all certificates for shares, bonds, deeds, mortgages, extension
agreements, modification of mortgage agreements, leases, and contracts
of the Corporation. He shall perform all the duties commonly incident
to this office and shall perform such other duties as the Board of
Directors shall designate.
SECTION 7. VICE PRESIDENT. Except as specially limited by vote of
the Board of Directors, any Vice President shall perform the duties and
have the powers of the President during the absence or disability of
the President and shall have the power to sign all certificates for
shares, bonds, deeds, and contracts of the Corporation. He shall
perform such other duties and have such other powers as the Board of
Directors shall designate.
SECTION 8. TREASURER. The Treasurer shall be the Chief Financial
Officer of the Corporation and, subject to the order of the Board of
Directors, shall have the care and custody of the money, funds,
valuable papers, and documents of the Corporation and shall have and
exercise, under the supervision of the Board of Directors, all the
powers and duties commonly incident to his office. He shall deposit all
funds of the Corporation in such bank or banks as the Board of
Directors shall designate. He may endorse for deposit or collection all
checks and notes payable to the Corporation or to its order, may accept
drafts on behalf of the Corporation, and together with the President or
a Vice President may assign share certificates. He shall keep accurate
books of account of the Corporation's transactions, which shall be the
property of the Corporation, and shall be subject at all times to the
inspection and control of the Board of Directors.
SECTION 9. SECRETARY. The Secretary shall keep accurate minutes of
all meetings of the shareholders and the Board of Directors, and shall
perform all the duties commonly incident to his office, and shall
perform such other duties and have such other powers as the Board of
Directors shall designate. The Secretary shall have power, together
with the President or a Vice President, to sign certificates for shares
of the Corporation. In his absence at any meeting an Assistant
Secretary or a Secretary Pro Tempore shall perform his duties thereat.
SECTION 10. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
Assistant Treasurers and Assistant Secretaries, in general, shall
perform such duties as shall be assigned to them by the Treasurer or
the Secretary respectively, or by the President or the Board of
Directors.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation, shall be signed by such officer
or officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by resolution of the Board of
Directors.
SECTION 4. DEPOSITS. 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 of Directors may select.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be the twelve-month
period ending December 31 of each year.
ARTICLE VIII
DIVIDENDS
SECTION 1. SOURCE AND FORM. Dividends may be declared in the form
of cash, in the Corporation's authorized but unissued shares, or in the
property of the Corporation. No dividends shall be declared or paid on
the stock of the Corporation if, were the dividends paid, either (1)
the Corporation would be unable to pay its debts as they become due in
the usual course of its business; or (2) the Corporation's total assets
would be less than the sum of its total liabilities and the maximum
amount that then would be payable in any liquidation, in respect of all
outstanding shares having preferential rights in liquidation.
SECTION 2. DECLARATION. The date for the declaration of dividends
shall be the date of the meeting of the Board of Directors at which the
dividends are declared. The Board of Directors in its discretion shall
declare what, if any, dividends shall be issued upon the stock of the
Corporation. Dividends may be declared at any meeting, regular or
special, of the Board of Directors. The Board of Directors may fix in
advance a record date for the determination of the shareholders
entitled to a dividend distribution, which date shall not be less than
three (3) days nor more than twenty (20) days from the date on which
such Board took such action. The shareholders of record as of the
record date shall be entitled to receive the dividends.
ARTICLE IX
SEAL
The Board of Directors may provide a corporate seal which shall be
in the form of a circle and shall have inscribed thereon the name of
the Corporation.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of these bylaws or under the provisions of the Articles of
Incorporation or under the provisions of the California General
Corporation Law, waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice.
ARTICLE XI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation, by approval given to these bylaws, indemnifies
each and every Director and officer and each person who may hereafter
at any time serve at its request as a Director or officer of another
corporation in which it owns shares of capital stock or of which it is
a creditor, against expenses actually and reasonably incurred by each
such Director and officer in connection with the settlement or defense
of any action, suit or proceeding, civil or criminal, in which he is
made a party by reason of being or having been such Director or
officer, except in relation to matters as to which he shall be adjudged
in such action, suit or proceeding to be liable for negligence or
misconduct in the performance of duty to the Corporation; and it
specifically indemnifies each such Director and officer from payment of
any judgment, levy, or demand that might be granted against any such
Director or officer by virtue of his occupancy of said directorship or
office growing out of any such action, suit, or proceeding.
The indemnification described in this ARTICLE XI is in addition
to, and not in lieu of, the indemnification of directors and officers
described in Section 317 of the California General Corporation Law, as
the same may be amended from time to time.
ARTICLE XII
AMENDMENTS
These bylaws may be altered, amended or repealed and new bylaws
may be adopted at any annual meeting of the Board of Directors of the
Corporation or at any special meeting when the proposal to amend these
bylaws has been stated in the notice of such special meeting, by a
majority vote of the Directors represented at the meeting.
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting Secretary of Empire Oil Co.,
a California corporation; and
2. That the foregoing Amended and Restated Bylaws, consisting of eight
(8) pages, constitute the Bylaws of said corporation, as duly adopted
by the Board of Directors on January 2, 2007.
IN WITNESS WHEREOF, I have executed this Certificate as of this 2nd day
of January, 2007.
/s/ KIM H. BULLERDICK
----------------------------
Kim H. Bullerdick, Secretary