1
EXHIBIT 3.2
BYLAWS
OF
BEVERAGE WORKS, INC.
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OR BUSINESS OFFICES. The board of
directors shall fix the location of the principal executive office of the
corporation at any place within or outside the State of California. If the
principal executive office is located outside California and the corporation has
one or more business offices in California, the board shall fix and designate a
principal business office in California.
Section 2. OTHER OFFICES. Branch or subordinate offices may be
established at any time and at any place by the board of
directors.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be
held at any place within or outside the State of California designated by the
board of directors. In the absence of a designation by the board, shareholders'
meetings shall be held at the corporation's principal executive office.
Section 2. ANNUAL MEETING. The annual meeting of shareholders
shall be held each year on a date and at a time designated by the board of
directors. The date so designated shall be within five months after the end of
the corporation's fiscal year, and within fifteen months after the last annual
meeting. At each annual meeting, directors shall be elected and any other proper
business within the power of the shareholders may be transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders
may be called at any time by the board of directors, by the chair of the board,
by the president, by the secretary or by one or more shareholders holding shares
that in the aggregate are entitled to cast ten percent or more of the votes at
that meeting. If a special meeting is called by anyone other than the board of
directors, the person or persons calling the meeting shall make a request in
writing, delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission, to the chair of the board, the president, or
secretary, specifying the time and date of the meeting (which is not less than
35 nor more than 60 days after receipt of the request) and the general nature of
the business proposed to be transacted. Within 20 days after receipt, the
officer receiving the request shall cause notice to be given to the shareholders
entitled to vote, in accordance with Sections 4
2
and 5 of this Article II, stating that a meeting will be held at the time
requested by the person(s) calling the meeting, and stating the general nature
of the business proposed to be transacted. If notice is not given within 20 days
after receipt of the request, the person or persons requesting the meeting may
give the notice. Nothing in this paragraph shall be construed as limiting,
fixing, or affecting the time when a meeting of shareholders called by action of
the board may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of
meetings of shareholders shall be sent or otherwise given in accordance with
Section 5 of this Article II, not fewer than 10 nor more than 60 days before the
date of the meeting. Shareholders entitled to notice shall be determined in
accordance with Section 11 of this Article II. The notice shall specify 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 that the board of directors, at the time of giving
the notice, intends to present for action by the shareholders. If directors are
to be elected, the notice shall include the names of all nominees whom the board
intends, at the time of the notice, to present for election. The notice shall
also state the general nature of any proposed action to be taken at the meeting
to approve any of the following matters:
(i) A transaction in which a director has a financial
interest, within the meaning of Section 310 of the California Corporations
Code;
(ii) An amendment of the articles of incorporation under Section
902 of that Code:
(iii) A reorganization under Section 1201 of that Code;
(iv) A voluntary dissolution under Section 1900 of that Code; or
(v) A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
Section 5. MANNER OF GIVING NOTICE: AFFIDAVIT OF NOTICE. Notice
of any shareholders' meeting shall be given either personally or by first-class
mail or telegraphic or other written communication, charges prepaid, addressed
to the shareholder at the address appearing on the corporation's books or given
by the shareholder to the corporation for purposes of notice. If no address
appears on the corporation's books or has been given as specified above, notice
shall be either (1) sent by first-class mail addressed to the shareholder at the
corporation's principal executive office, or (2) published at least once in a
newspaper of general circulation in the county where the corporation's principal
executive office is located. Notice is deemed to have been given at the time
when delivered personally or deposited in the mail or sent
2
3
by other means of written communication. If any notice or report mailed to a
shareholder at the address appearing on the corporation's books is returned
marked to indicate that the United States Postal Service is unable to deliver
the document to the shareholder at that address, all future notices or reports
shall be deemed to have been duly given without further mailing if the
corporation holds the document available for the shareholder on written demand
at the corporation's principal executive office for a period of one year from
the date the notice or report was given to all other shareholders. An affidavit
of the mailing or other authorized means of giving notice or delivering a
document, of any notice of shareholders' meeting, report, or other document sent
to shareholders, may be executed by the corporation's secretary, assistant
secretary, or transfer agent and, if executed, shall be filed and maintained in
the minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the
holders of a majority of the shares entitled to vote at any meeting of the
shareholders shall constitute a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a quorum is
present may continue to do 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 at least a majority of the shares
required to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of the majority of the shares represented at that
meeting, either in person or by proxy, but in the absence of a quorum, no other
business may be transacted at that meeting, except as provided in Section 6 of
this Article II. When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice of the adjourned meeting need not be
given if the time and place are announced at the meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than 45 days after the date set for
the original meeting, in which case the board of directors shall set a new
record date. Notice of any such adjourned meeting, if required, shall be given
to each shareholder of record entitled to vote at the adjourned meeting, in
accordance with Sections 4 and 5 of this Article II. At any adjourned meeting,
the corporation may transact any business that might have been transacted at the
original meeting.
Section 8. VOTING. The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with Section 11 of
this Article II, subject to the provisions of sections 702 through 704 of the
California Corporations Code relating to voting shares held by a fiduciary, in
the name of a corporation, or in joint ownership). The shareholders' vote may be
by voice vote or by ballot, provided, however, that any election
3
4
for directors must be by ballot if demanded by any shareholder before the voting
has begun. On any matter other than the election of directors, any shareholder
may vote part of the shares the shareholder is to vote in favor of the proposal
and refrain from voting the remaining shares or vote them against the proposal,
but, if the shareholder fails to specify the number of shares that the
shareholder is voting affirmatively, it will be conclusively presumed that the
shareholder's approving vote is with respect to all shares that the shareholder
is entitled to vote. If a quorum is present (or if a quorum has been present
earlier at the meeting but some shareholders have withdrawn), the affirmative
vote of a majority of the shares represented and voting, provided such shares
voting affirmatively also constitute a majority of the number of shares required
for a quorum, shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by law or by the articles of
incorporation. At a shareholders' meeting at which directors are to be elected,
no shareholder shall be entitled to cumulate votes (i.e., cast for any candidate
a number of votes greater than the number of votes which that shareholder
normally would be entitled to cast), unless the candidates' names have been
placed in nomination before commencement of the voting and a shareholder has
given notice at the meeting, before the voting has begun, of the shareholder's
intention to cumulate votes. If any shareholder has given such a notice, then
all shareholders entitled to vote may cumulate their votes for candidates in
nomination, and may give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which that
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among any or all of the candidates, as the
shareholder thinks fit. The candidates receiving the highest number of votes, up
to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS.
The transactions of any meeting of shareholders, either annual or special,
however called and noticed and wherever held, shall be as valid as though they
were had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if each person entitled to vote who
was not present in person or by proxy, either before or after the meeting, signs
a written waiver of notice or a consent to holding the meeting or an approval of
the minutes of the meeting. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of the shareholders, except that, if action is taken or proposed to be
taken for approval of any of those matters specified in section 601(f) of the
California Corporations Code, i.e.,
(i) A transaction in which a director has a financial
interest, within the meaning of Section 310 of the California Corporations
Code;
4
5
(ii) An amendment of the articles of incorporation under Section
902 of that Code;
(iii) A reorganization under Section 1201 of that Code;
(iv) A voluntary dissolution under Section 1900 of that Code;
or
(v) A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
The waiver of notice or consent is required to state the general nature of the
action or proposed action. All waivers, consents, and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting. A
shareholder's attendance at a meeting also constitutes a waiver of notice of
that meeting, unless the shareholder at the beginning of the meeting objects to
the transaction of any business on the ground that the meeting was not lawfully
called or convened. In addition, attendance at a meeting does not constitute a
waiver of any right to object to consideration of matters required by law to be
included in the notice of the meeting which were not so included, if that
objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING. Any action that could be taken at an annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting at which all
shares entitled to vote on that action were present and voted. Directors may be
elected by written consent of the shareholders without a meeting only if the
written consents of all outstanding shares entitled to vote are obtained, except
that vacancies on the board (other than vacancies created by removal) not filled
by the board may be filled by the written consent of the holders of a majority
of the outstanding shares entitled to vote. All consents shall be filed with the
secretary of the corporation and shall be maintained in the corporate records.
Any shareholder or other authorized person who has given a written consent may
revoke it by a writing received by the secretary of the corporation before
written consents of the number of shares required to authorize the proposed
action have been filed with the secretary. Unless the consents of all
shareholders entitled to vote have been solicited in writing, prompt notice
shall be given of any corporate action approved by shareholders without a
meeting by less than unanimous consent, to those shareholders entitled to vote
who have not consented in writing. As to approvals required by California
Corporations Code section 310 (transactions in which a director has a financial
interest), section 317 (indemnification of corporate agents), section 1201
(corporate reorganization), or section 2007 (certain
5
6
distributions on dissolution), notice of the approval shall be given at least
ten days before the consummation of any action authorized by the approval.
Notice shall be given in the manner specified in Section 5 of this Article II.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE OF MEETING,
VOTING, AND GIVING CONSENT.
(a) For purposes of determining the shareholders entitled to
receive notice of and vote at a shareholders' meeting or give written consent to
corporate action without a meeting, the board may fix in advance a record date
that is not more than 60 nor less than 10 days before the date of a
shareholders' meeting, or not more than 60 days before any other action.
(b) If no record date is fixed:
(i) The record date for determining shareholders
entitled to receive notice of and vote at a shareholders' meeting shall be the
business day next preceding the day on which notice is given, or if notice is
waived as provided in Section 9 of this Article II the business day next
preceding the day on which the meeting is held.
(ii) The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting, if no
prior action has been taken by the board, shall be the day on which the first
written consent is given.
(iii) The record date for determining shareholders
for any other purpose shall be as set forth in Section 1 of Article VIII of
these bylaws.
(c) A determination of shareholders of record entitled to receive
notice of and vote at a shareholders' meeting shall apply to any adjournment of
the meeting unless the board fixes a new record date for the adjourned meeting.
However, the board shall fix a new record date if the adjournment is to a date
more than 45 days after the date set for the original meeting.
(d) Only shareholders of record on the corporation's books at the
close of business on the record date shall be entitled to any of the notice and
voting rights listed in subsection (a) of this section, notwithstanding any
transfer of shares on the corporation's books after the record date, except as
otherwise required by law.
Section 12. PROXIES. Every person entitled to vote for directors
or on any other matter shall have the right to do so either in person or by one
or more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's
6
7
name is placed on the proxy (whether by manual signature, typewriting,
telegraphic transmission, or otherwise) by the shareholder or the shareholder's
attorney in fact. A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote under that proxy, by a writing delivered to
the corporation stating that the proxy is revoked, or by attendance at the
meeting and voting in person by the person executing the proxy or by a
subsequent proxy executed by the same person and presented at the meeting; or
(ii) written notice of the death or incapacity of the maker of that proxy is
received by the corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the expiration of 11
months from the date of the proxy, unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of sections 705(e) and 705(f) of the Corporations
Code of California.
Section 13. INSPECTORS OF ELECTION. Before any meeting of
shareholders, the board of directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or its adjournment.
If no inspectors of election are so appointed, the chair of the meeting may, and
on the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one or three. If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one or three inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chair of the meeting may, and upon the request of
any shareholder or a shareholder's proxy shall, appoint a person to fill that
vacancy. These inspectors shall: (a) 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;
(b) receive votes, ballots, or consents; (c) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (d) count
and tabulate all votes or consents; (e) determine when the polls shall close;
(f) determine the result; and (g) do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the California
General Corporation Law and any limitations in the articles of incorporation and
these bylaws relating to action required to be approved by the shareholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all
7
8
corporate powers shall be exercised by or under the direction of the board of
directors. Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the articles of incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(b) Change the principal executive office or the principal
business office in the State of California from one location to another; cause
the corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or outside the State of
California; and designate any place within or outside the State of California
for holding any shareholders' meeting or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation
on any lawful terms, in consideration of money paid, labor done, services
actually rendered, debts or securities canceled, or tangible or intangible
property actually received.
(e) Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered for the corporation's
purposes, in the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized
number of directors shall be no fewer than five (5) nor more than nine (9). The
exact number of authorized directors shall be six (6) until changed, within the
limits specified above, by a bylaw amending this section, duly adopted by the
board of directors or by the shareholders. The maximum or minimum number of
directors cannot be changed, nor can a fixed number be substituted for the
maximum and minimum numbers, except by an amendment to this bylaw duly approved
by a majority of the outstanding shares entitled to vote. An amendment that
would reduce the minimum number to fewer than five, however, cannot be adopted
if the votes cast against its adoption at a shareholders' meeting or the shares
not consenting to an action by written consent are equal to more than one-sixth
(16- 2/3 percent) of the outstanding shares entitled to vote. No amendment may
change the stated maximum number of authorized directors to a number greater
than two times the stated minimum number minus one.
8
9
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors
shall be elected at each annual meeting of the shareholders to hold office until
the next annual meeting. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified. No reduction of the
authorized number of directors shall have the effect of removing any director
before that director's term of office expires.
Section 4. VACANCIES. A vacancy in the board of directors shall
be deemed to exist: (a) if a director dies, resigns, or is removed by the
shareholders or an appropriate court, as provided in sections 303 or 304 of the
California Corporations Code; (b) if the board of directors declares vacant the
office of a director who has been convicted of a felony or declared of unsound
mind by an order of court; (c) if the authorized number of directors is
increased; or (d) if at any shareholders' meeting at which one or more directors
are elected the shareholders fail to elect the full authorized number of
directors to be voted for at that meeting. Any director may resign effective on
giving written notice to the chair of the board, the president, the secretary,
or the board of directors, unless the notice specifies a later effective date.
If the resignation is effective at a future time, the board may elect a
successor to take office when the resignation becomes effective. Except for a
vacancy caused by the removal of a director, vacancies on the board may be
filled by approval of the board or, if the number of directors then in office is
less than a quorum, by (1) the unanimous written consent of the directors then
in office, (2) the affirmative vote of a majority of the directors then in
office at a meeting held pursuant to notice or waivers of notice complying with
section 307 of the Corporations Code, or (3) a sole remaining director. A
vacancy on the board caused by the removal of a director may be filled only by
the shareholders, except that a vacancy created when the board declares the
office of a director vacant as provided in clause (b) of the first paragraph of
this section of the bylaws may be filled by the board of directors. The
shareholders may elect a director at any time to fill a vacancy not filled by
the board of directors. The term of office of a director elected to fill a
vacancy shall run until the next annual meeting of the shareholders, and such a
director shall hold office until a successor is elected and qualified.
Section 5. PLACE OF MEETINGS; TELEPHONE MEETINGS. Regular
meetings of the board of directors may be held at any place within or outside
the State of California as designated from time to time by the board. In the
absence of a designation, regular meetings shall be held at the principal
executive office of the corporation. Special meetings of the board shall be held
at any place within or outside the State of California designated in the notice
of the meeting, or if the notice does not state a place, or if there is no
notice, at the principal executive office of the corporation. Any meeting,
regular or special, may be held by conference telephone or
9
10
similar communication equipment, provided that all directors participating can
hear one another.
Section 6. ANNUAL DIRECTORS' MEETING. Immediately after each
annual shareholders' meeting, the board of directors shall hold a regular
meeting at the same place, or at any other place that has been designated by the
board of directors, to consider matters of organization, election of officers,
and other business as desired. Notice of this meeting shall not be required
unless some place other than the place of the annual shareholders' meeting has
been designated.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the
board of directors shall be held without call at times to be fixed by the board
of directors from time to time. Such regular meetings may be held without
notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board of
directors may be called for any purpose or purposes at any time by the chair of
the board, the president, any vice president, the secretary, or any two
directors. Special meetings shall be held on four days' notice by mail or
forty-eight hours' notice delivered personally or by telephone or telegraph.
Oral notice given personally or by telephone may be transmitted either to the
director or to a person at the director's office who can reasonably be expected
to communicate it promptly to the director. Written notice, if used, shall be
addressed to each director at the address shown on the corporation's records.
The notice need not specify the purpose of the meeting, nor need it specify the
place if the meeting is to be held at the principal executive office of the
corporation.
Section 9. QUORUM. A majority of the authorized number of
directors shall constitute a quorum for the transaction of business, except to
adjourn as provided in Section 11 of this Article III. 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, subject to the provisions of Corporations Code section 310 (as to
approval of contracts or transactions in which a director has a direct or
indirect material financial interest); section 311 (as to appointment of
committees), and section 317(e) (as to indemnification of directors). A meeting
at which a quorum is initially present may continue to transact business,
despite a withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for that meeting.
Section 10. WAIVER OF NOTICE. Notice of a meeting, although
otherwise required, need not be given to any director who (i) either before or
after the meeting signs a waiver of notice or a consent to holding the meeting
without being given notice; (ii) signs an approval of the minutes of the
meeting; or (iii) attends
10
11
the meeting without protesting the lack of notice before or at the beginning of
the meeting. Waivers of notice or consents need not specify the purpose of the
meeting. All waivers, consents, and approvals of the minutes shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not
a quorum is present, a majority of the directors present may adjourn any meeting
to another time or place.
Section 12. NOTICE OF ADJOURNED MEETING. Notice of the time and
place of resuming a meeting that has been adjourned need not be given unless the
adjournment is for more than 24 hours, in which case notice shall be given,
before the time set for resuming the adjourned meeting, to the directors who
were not present at the time of the adjournment. Notice need not be given in any
case to directors who were present at the time of adjournment.
Section 13. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken by the board of directors may be taken without a meeting,
if all members of the board of directors individually or collectively consent in
writing to that action. Any action by written consent shall have the same force
and effect as a unanimous vote of the board of directors. All written consents
shall be filed with the minutes of the proceedings of the board of directors.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and
members of committees of the board may be compensated for their services, and
shall be reimbursed for expenses, as fixed or determined by resolution of the
board of directors. This section shall not be construed to preclude any director
from serving the corporation in any other capacity, as an officer, agent,
employee, or otherwise, or from receiving compensation for those services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF THE BOARD. The board of directors may,
by resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors. The
board may designate one or more directors as alternate members of any committee,
to replace any absent member at a committee meeting. The appointment of
committee members or alternate members requires the vote of a majority of the
authorized number of directors. A committee may be granted any or all of the
powers and authority of the board, to the extent provided in the resolution of
the board of directors establishing the committee, except with respect to:
(a) Approving any action for which the California Corporations
Code also requires the approval of the shareholders or of the
11
12
outstanding shares;
(b) Filling vacancies on the board of directors or any
committee of the board;
(c) Fixing directors' compensation for serving on the board or
a committee of the board;
(d) Adopting, amending, or repealing bylaws;
(e) Amending or repealing any resolution of the board of
directors that by its express terms is not so amendable or
repealable;
(f) Making distributions to shareholders, except at a rate or
in a periodic amount or within a price range determined by the
board of directors; or
(g) Appointing other committees of the board or their members.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action
of committees shall be governed by, and held and taken in accordance with, bylaw
provisions applicable to meetings and actions of the board of directors, with
such changes in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its members, except
that (a) the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; (b)
special meetings of committees may also be called by resolution of the board of
directors; and (c) notice of special meetings of committees shall also be given
to all alternative members who shall have the right to attend all meetings of
the committee. The board of directors may adopt rules for the governance of any
committee not inconsistent with these bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a
president, a secretary, and a chief financial officer. The corporation may also
have, at the discretion of the board of directors, a chair of the board, one or
more vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in accordance with
Section 3 of this Article V. Any number of offices may be held by the same
person.
Section 2. APPOINTMENT OF OFFICERS. The officers of the
corporation, except for subordinate officers appointed in accordance with
Section 3 of this Article V, shall be appointed annually by the board of
directors, and shall serve at the pleasure of the board of directors.
12
13
Section 3. SUBORDINATE OFFICERS. The board of directors may
appoint, and may empower the president to appoint other officers as required by
the business of the corporation, whose duties shall be as provided in the
bylaws, or as determined from time to time by the board of directors or the
president.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Any officer
chosen by the board of directors may be removed at any time, with or without
cause or notice, by the board of directors. Subordinate officers appointed by
persons other than the board under Section 3 of this Article V may be removed at
any time, with or without cause or notice, by the board of directors or by the
officer by whom appointed. Officers may be employed for a specified term under a
contract of employment if authorized by the board of directors; such officers
may be removed from office at any time under this section, and shall have no
claim against the corporation or individual officers or board members because of
the removal except any right to monetary compensation to which the officer may
be entitled under the contract of employment. Any officer may resign at any time
by giving written notice to the corporation. Resignations shall take effect on
the date of receipt of the notice, unless a later time is specified in the
notice. Unless otherwise specified in the notice, acceptance of the resignation
is not necessary to make it effective. Any resignation is without prejudice to
the rights, if any, of the corporation to monetary damages under any contract of
employment to which the officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office
resulting from an officer's death, resignation, removal, disqualification, or
from any other cause shall be filled in the manner prescribed in these bylaws
for regular election or appointment to that office.
Section 6. CHAIRMAN OF THE BOARD. The president shall be the
chairman and shall preside, if present, at board meetings and shall exercise and
perform such other powers and duties as may be assigned from time to time by the
board of directors.
Section 7. PRESIDENT. The president shall be the corporation's
general manager and chief executive officer and, subject to the control of the
board of directors, shall have general supervision, direction, and control over
the corporation's business and its officers. The managerial powers and duties of
the president shall include, but are not limited to, all the general powers and
duties of management usually vested in the office of president of a corporation,
and the president shall have other powers and duties as prescribed by the board
of directors or the bylaws. The president shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board or if there is no
chairman of the board, shall also preside at meetings of the board of directors.
13
14
Section 8. VICE PRESIDENTS. If desired, one or more vice
presidents may be chosen by the board of directors in accordance with the
provisions for appointing officers set forth in Section 2 of this Article V. In
the absence or disability of the president, the president's duties and
responsibilities shall be carried out by the highest ranking available vice
president if vice presidents are ranked, or if not, by a vice president
designated by the board of directors. When so acting, a vice president shall
have all the powers of and be subject to all the restrictions on the president.
Vice presidents of the corporation shall have such other powers and perform such
other duties as prescribed from time to time by the board of directors, the
bylaws, or the president.
Section 9. SECRETARY
(a) Minutes. The secretary shall keep, or cause to be kept,
minutes of all of the shareholders' meetings and of all other board meetings. If
the secretary is unable to be present, the secretary, or if there is no
secretary the presiding officer of the meeting, shall designate another person
to take the minutes of the meeting. The secretary shall keep, or cause to be
kept, at the principal executive office or such other place as designated by the
board of directors, a book of minutes of all meetings and actions of the
shareholders, of the board of directors, and of committees of the board. The
minutes of each meeting shall state the time and place the meeting was held;
whether it was regular or special; if special, how it was called or authorized;
the names of directors present at board or committee meetings; the number of
shares present or represented at shareholders' meetings; an accurate account of
the proceedings; and when it was adjourned.
(b) Record of Shareholders. The secretary shall keep, or cause to
be kept, at the principal executive office or at the office of the transfer
agent or registrar, a record or duplicate record of shareholders. This record
shall show the names of all shareholders and their addresses, the number and
classes of shares held by each, the number and date of share certificates issued
to each shareholder, and the number and date of cancellation of any certificates
surrendered for cancellation.
(c) Notice of Meetings. The secretary shall give notice, or cause
notice to be given, of all shareholders' meetings, board meetings, and meetings
of committees of the board for which notice is required by statute or by the
bylaws. If the secretary or other person authorized by the secretary to give
notice fails to act, notice of any meeting may be given by any other officer of
the corporation.
(d) Other Duties. The secretary shall keep the seal of the
corporation, if any, in safe custody. The secretary shall have such other powers
and perform other duties as prescribed by the board of directors or by the
bylaws.
14
15
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer
shall keep or cause to be kept adequate and correct books and records of
accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings, and shares. The books of account shall at
all reasonable times be open to inspection by any director. The chief financial
officer shall (1) deposit corporate funds and other valuables in the
corporation's name and to its credit with depositaries designated by the board
of directors; (2) make disbursements of corporate funds as authorized by the
board; (3) render a statement of the corporation's financial condition and an
account of all transactions conducted as chief financial officer whenever
requested by the president or the board of directors; and (4) have other powers
and perform other duties as prescribed by the board of directors or the bylaws.
Unless the board of directors has elected a separate treasurer, the chief
financial officer shall be deemed to be the treasurer for purposes of giving any
reports or executing any certificates or other documents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS, AND EXPENSES. For the purposes of
this Article, "agent" means any person who is or was a director, officer,
employee, or other agent of this corporation, or who is or was serving at the
request of this corporation as a director, officer, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or who was a director, officer, employee, or agent of a
foreign or domestic corporation that was a predecessor corporation of this
corporation or of another enterprise at the request of such predecessor
corporation; "proceeding" means any threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or investigative; and
"expenses" includes, without limitation, attorney fees and any expenses of
establishing a right to indemnification under Section 4 or Section 5(d) of this
Article VI.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. This
corporation shall have the power to indemnify any person who was or is a party,
or is threatened to be made a party, to any proceeding (other than an action by
or in the right of this corporation to procure a judgment in its favor) by
reason of the fact that such person is or was an agent of this corporation,
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with such proceeding if that person acted in
good faith and in a manner that the person reasonably believed to be in the best
interests of this corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of that person was unlawful. The
termination
15
16
of any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that the person did not act in good faith and in a manner that the person
reasonably believed to be in the best interests of this corporation or that the
person had reasonable cause to believe that the person's conduct was not
unlawful.
Section 3. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. This
corporation shall have the power to indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending, or completed
action by or in the right of this corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of this corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of that action, if such person acted in good
faith, in a manner such person believed to be in the best interests of this
corporation and its shareholders. No indemnification shall be made under this
Section 3 for the following:
(a) With respect to any claim, issue, or matter on which such
person has been adjudged to be liable to this corporation in the performance of
such person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which such proceeding is or was pending shall
determine on application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine;
(b) Amounts paid in settling or otherwise disposing of a
pending action without court approval; or
(c) Expenses incurred in defending a pending action that is
settled or otherwise disposed of without court approval.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that an
agent of this corporation has been successful on the merits in defense of any
proceeding referred to in Section 2 or 3 of this Article VI, or in defense of
any claim, issue, or matter therein, the agent shall be indemnified against
expenses actually and reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED APPROVAL. Except as provided in Section 4 of
this Article VI, any indemnification under this Section shall be made by the
corporation only if authorized in the specific case, after a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Section 2 or 3 by one of
the following:
(a) A majority vote of a quorum consisting of directors who
16
17
are not parties to such proceeding;
(b) Independent legal counsel in a written opinion if a quorum
of directors who are not parties to such a proceeding is not
available;
(c) (i) The affirmative vote of a majority of shares of this
corporation entitled to vote represented at a duly held meeting at which a
quorum is present; or
(ii) the written consent of holders of a majority of the
outstanding shares entitled to vote (for purposes of this subsection 5(c), the
shares owned by the person to be indemnified shall not be considered outstanding
or entitled to vote thereon); or
(d) The court in which the proceeding is or was pending, on
application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by this
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending
any proceeding may be advanced by the corporation before the final disposition
of such proceeding on receipt of an undertaking by or on behalf of the agent to
repay such amounts if it shall be determined ultimately that the agent is not
entitled to be indemnified as authorized in this Article VI.
Section 7. OTHER CONTRACTUAL RIGHTS. The indemnification provided
by this Article VI shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors, or otherwise, both as to action in
an official capacity and as to action in another capacity while holding such
office, to the extent such additional rights to indemnification are authorized
in the articles of the corporation. Nothing in this section shall affect any
right to indemnification to which persons other than such directors and officers
may be entitled by contract or otherwise.
Section 8. LIMITATIONS. No indemnification or advance shall be
made under this Article VI, except as provided in Section 4 or
Section 5(d), in any circumstance if it appears:
(a) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the shareholders, or an agreement in effect at
the time of the accrual of the alleged cause of action asserted in the
proceeding in which expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
17
18
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving settlement.
Section 9. INSURANCE. This corporation may purchase and maintain
insurance on behalf of any agent of the corporation insuring against any
liability asserted against or incurred by the agent in that capacity or arising
out of the agent's status as such, whether or not this corporation would have
the power to indemnify the agent against that liability under the provisions of
this Article VI. Notwithstanding the foregoing, if this corporation owns all or
a portion of the shares of the company issuing the policy of insurance, the
insuring company and/or the policy shall meet the conditions set forth in
section 317(i) of the Corporations Code.
Section 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN. This
Article VI does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in that person's
capacity as such, even though that person may also be an agent of the
corporation. The corporation shall have the power to indemnify, and to purchase
and maintain insurance on behalf of any such trustee, investment manager, or
other fiduciary of any benefit plan for any or all of the directors, officers,
and employees of the corporation or any of its subsidiary or affiliated
corporations.
Section 11. SURVIVAL OF RIGHTS. The rights provided by this
Article VI shall continue for 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 12. EFFECT OF AMENDMENT. Any amendment, repeal, or
modification of this Article VI shall not adversely affect an agent's right or
protection existing at the time of such amendment, repeal, or modification.
Section 13. SETTLEMENT OF CLAIMS. The corporation shall not be
liable to indemnify any agent under this Article VI for (a) 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) any judicial
award, if the corporation was not given a reasonable and timely opportunity to
participate, at its expense, in the defense of such action.
Section 14. SUBROGATION. In the event of payment under this
Article VI, 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 as may be necessary to enable the
corporation effectively to bring suit to enforce such rights.
18
19
Section 15. NO DUPLICATION OF PAYMENTS. The corporation shall not
be liable under this Article VI to make any payment in connection with any claim
made against the agent to the extent the agent has otherwise actually received
payment, whether under a policy of insurance, agreement, vote, or otherwise, of
the amounts otherwise indemnifiable under this Article.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE OF SHAREHOLDER RECORD AND INSPECTION BY
SHAREHOLDERS. The corporation shall keep at its principal executive office or at
the office of its transfer agent or registrar, as determined by resolution of
the board of directors, a record of the names and addresses of all shareholders
and the number and class of shares held by each shareholder. A shareholder or
shareholders holding at least 5 percent in the aggregate of the outstanding
voting shares of the corporation have the right to do either or both of the
following:
(a) Inspect and copy the record of shareholders' names and
addresses and shareholdings during usual business hours, on five days' prior
written demand on the corporation, or
(b) Obtain from the corporation's transfer agent, on written
demand and tender of the transfer agent's usual charges for this service, a list
of the names and addresses of shareholders who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which a list has been compiled or as of a specified date later than the
date of demand. This list shall be made available within five days after (i) the
date of demand or (ii) the specified later date as of which the list is to be
compiled. The record of shareholders shall also be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or holder of a voting trust certificate. Any
inspection and copying under this section may be made in person or by an agent
or attorney of the shareholder or holder of a voting trust certificate making
the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation
shall keep at its principal executive office, or if its principal executive
office is not in the State of California, at its principal business office in
this state, the original or a copy of the bylaws as amended to date, which shall
be open to inspection by the shareholders at all reasonable times during office
hours. If the principal executive office of the corporation is outside the State
of California and the corporation has no principal business office in this
state, the secretary shall, on the written request of any shareholder, furnish
to that shareholder a copy of the bylaws as amended to date.
19
20
Section 3. MAINTENANCE AND INSPECTION OF MINUTES AND ACCOUNTING
RECORDS. The minutes of proceedings of the shareholders, board of directors, and
committees of the board, and the accounting books and records shall be kept at
the principal executive office of the corporation, or at such other place or
places as designated by the board of directors. The minutes shall be kept in
written form, and the accounting books and records shall be kept either in
written form or in a form capable of being converted into written form. The
minutes and accounting books and records shall be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or holder of a voting trust certificate.
The inspection may be made in person or by an agent or attorney, and shall
include the right to copy and make extracts. These rights of inspection shall
extend to the records of each subsidiary of the corporation.
Section 4. INSPECTION BY DIRECTORS. Every director shall have the
absolute right at any reasonable time to inspect all books, records, and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. This inspection by a director may be made in
person or by an agent or attorney and the right of inspection includes the right
to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. Inasmuch as, and for as
long as, there are fewer than 100 shareholders, the requirement of an annual
report to shareholders referred to in section 1501 of the California
Corporations Code is expressly waived. However, nothing in this provision shall
be interpreted as prohibiting the board of directors from issuing annual or
other periodic reports to the shareholders, as the board considers appropriate.
Section 6. FINANCIAL STATEMENTS. The corporation shall keep a
copy of each annual financial statement, quarterly or other periodic income
statement, and accompanying balance sheets prepared by the corporation on file
in the corporation's principal executive office for 12 months; these documents
shall be exhibited at all reasonable times, or copies provided, to any
shareholder on demand. If no annual report for the last fiscal year has been
sent to shareholders, on written request of any shareholder made more than 120
days after the close of the fiscal year the corporation shall deliver or mail to
the shareholder, within 30 days after receipt of the request, a balance sheet as
of the end of that fiscal year and an income statement and statement of changes
in financial position for that fiscal year. A shareholder or shareholders
holding five percent or more of the outstanding shares of any class of stock of
the corporation may request in writing an income statement for the most recent
three-month, six-month, or nine-month period (ending more than 30 days before
the date of the request) of the current fiscal year, and a balance sheet of the
corporation as of the end
20
21
of that period. If such documents are not already prepared, the chief financial
officer shall cause them to be prepared and shall deliver the documents
personally or mail them to the requesting shareholders within 30 days after
receipt of the request. A balance sheet, income statement, and statement of
changes in financial position for the last fiscal year shall also be included,
unless the corporation has sent the shareholders an annual report for the last
fiscal year. Quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of independent accountants
engaged by the corporation or the certificate of an authorized corporate officer
stating that the financial statements were prepared without audit from the
corporation's books and records.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
(a) Every year, during the calendar month in which the original
articles of incorporation were filed with the California Secretary of State, or
during the preceding five calendar months, the corporation shall file a
statement with the Secretary of State on the prescribed form, setting forth the
authorized number of directors; the names and complete business or residence
addresses of all incumbent directors; the names and complete business or
residence addresses of the chief executive officer, the secretary, and the chief
financial officer; the street address of the corporation's principal executive
office or principal business office in this state; a statement of the general
type of business constituting the principal business activity of the
corporation; and a designation of the agent of the corporation for the purpose
of service of process, all in compliance with section 1502 of the Corporations
Code of California.
(b) Notwithstanding the provisions of paragraph (a) of this
section, if there has been no change in the information in the corporation's
last annual statement on file in the Secretary of State's office, the
corporation may, in lieu of filing the annual statement described in paragraph
(a) of this section, advise the Secretary of State, on the appropriate form,
that no changes in the required information have occurred during the applicable
period.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
For purposes of determining the shareholders entitled to receive payment of
dividends or other distributions or allotment of rights, or entitled to exercise
any rights in respect of any other lawful action (other than voting at and
receiving notice of shareholders' meetings and giving written consent of the
shareholders without a meeting), the board of directors may fix in advance a
record date which shall be not more than 60 nor less than 10 days before the
date of the dividend payment, distribution,
21
22
allotment, or other action. If a record date is so fixed, only shareholders of
record at the close of business on that date shall be entitled to receive the
dividend, distribution, or allotment of rights, or to exercise the other rights,
as the case may be, notwithstanding any transfer of shares on the corporation's
books after the record date, except as otherwise provided by statute. If the
board of directors does not so fix a record date in advance, the record date
shall be at the close of business on the later of (1) the day on which the board
of directors adopts the applicable resolution or (2) the 60th day before the
date of the dividend payment, distribution, allotment of rights, or other
action.
Section 2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts,
other orders for payment of money, notes, or other evidences of indebtedness
issued in the name of or payable to the corporation shall be signed or endorsed
by such person or persons and in such manner authorized from time to time by
resolution of the board of directors.
Section 3. EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS. Except
as otherwise provided in the articles or in these bylaws, the board of directors
by resolution may authorize any officer, officers, agent, or agents to enter
into any contract or to execute any instrument in the name of and on behalf of
the corporation. This authority may be general or it may be confined to one or
more specific matters. No officer, agent, employee, or other person purporting
to act on behalf of the corporation shall have any power or authority to bind
the corporation in any way, to pledge the corporation's credit, or to render the
corporation liable for any purpose or in any amount, unless that person was
acting with authority duly granted by the board of directors as provided in
these bylaws, or unless an unauthorized act was later ratified by the
corporation.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates
for shares of the capital stock of the corporation shall be issued to each
shareholder when any of the shares are fully paid. In addition to certificates
for fully paid shares, the board of directors may authorize the issuance of
certificates for shares that are partly paid and subject to call for the
remainder of the purchase price, provided that the certificates representing
partly paid shares shall state the total amount of the consideration to be paid
for the shares and the amount actually paid. All certificates shall certify the
number of shares and the class or series of shares represented by the
certificate. All certificates shall be signed in the name of the corporation by
(1) either the chairman of the board of directors, the vice chairman of the
board of directors, the president, or any vice president, and (2) either the
chief financial officer, any assistant treasurer, the secretary, or any
assistant secretary. The signatures on the certificate may be facsimile. If any
officer, transfer, agent, or registrar who has signed a certificate shall have
ceased to be that
22
23
officer, transfer agent, or registrar before that certificate is issued, the
certificate may be issued by the corporation with the same effect as if that
person were an officer, transfer agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as provided in this Section
5, no new certificates for shares shall be issued to replace old certificates
unless the old certificate is surrendered to the corporation for cancellation at
the same time. If share certificates or certificates for any other security have
been lost, stolen, or destroyed, the board of directors may authorize the
issuance of replacement certificates on terms and conditions as required by the
board, which may include a requirement that the owner give the corporation a
bond (or other adequate security) sufficient to indemnify the corporation
against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, or destruction of the old
certificate or the issuance of the replacement certificate.
Section 6. SHARES OF OTHER CORPORATIONS: HOW VOTED. Shares of
other corporations standing in the name of this corporation shall be voted by
one of the following persons, listed in order of preference: (1) chairman of the
board, or person designated by the chairman of the board; (2) president, or
person designated by the president; (3) other person designated by the board of
directors. The authority to vote shares granted by this section includes the
authority to execute a proxy in the name of the corporation for purposes of
voting the shares.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context
requires otherwise, the general provisions, rules of construction, and
definitions in sections 100 through 195 of the California Corporations Code
shall govern the construction of these bylaws. Without limiting the generality
of this provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY BOARD OF DIRECTORS OR SHAREHOLDERS.
Except as otherwise required by law or by the articles of incorporation, these
bylaws may be amended or repealed, and new bylaws may be adopted, by the board
of directors or by the holders of a majority of the outstanding shares entitled
to vote.
23
24
CERTIFICATE OF BYLAWS
OF
BEVERAGE WORKS, INC.
A CALIFORNIA CORPORATION
I, Lyle Maul, the Secretary of Beverage Works, Inc., a California
corporation, (the "Corporation") certify that the foregoing are the true and
correct bylaws of the Corporation.
Dated: November 19, 1995
-------------------------
Lyle Maul, Secretary