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EXHIBIT 3.4
BYLAWS
OF
MODTECH, INC.
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office for the transaction
of business of the corporation is hereby fixed and located at 1631 Coteau
Drive, in the City of Riverside, County of Riverside, State of California. The
location may be changed by approval of a majority of the authorized directors,
and additional offices may be established and maintained at such other place or
places, either within or without the State of California, as the Board of
Directors may from time to time designate.
Section 2. OTHER OFFICES. Branch or subordinate offices may at any
time be established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
DIRECTORS - MANAGEMENT
Section 1. RESPONSIBILITY OF BOARD OF DIRECTORS. Subject to the
provisions of the General Corporation Law and to any limitations in the
Articles of Incorporation of the corporation relating to action required to be
approved by the shareholders, as that term is defined in section 153 of the
California Corporations Code, or by the outstanding shares, as that term is
defined in section 152 of the code, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board of Directors. The board may delegate the management of
the day-to-day operation of the business of the corporation to a management
company or other person, 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.
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Section 2. STANDARD OF CARE. Each director shall perform the duties of
a director, including the duties as a member of any committee of the board upon
which the director may serve, in good faith, in a manner such director believes
to be in the best interests of the corporation, and with such care, including
reasonable inquiry, as an ordinary prudent person in a like position would use
under similar circumstances.
Section 3. EXCEPTION FOR CLOSE CORPORATION. Notwithstanding the
provisions of section 1, in the event that this corporation shall elect to
become a close corporation as defined in section 186, its shareholders may enter
into a shareholders' agreement as provided in Section 300(b). Said agreement may
provide for the exercise of corporate powers and the management of the business
and affairs of this corporation by the shareholders, provided, however, such
agreement shall, to the extent and so long as the discretion or the powers of
the board in its management of corporate affairs is controlled by such agreement
impose upon each shareholder who is party thereof, liability for managerial acts
performed or omitted by such person pursuant thereto otherwise imposed upon
directors as provided in section 300(d).
Section 4. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized
number of directors shall be one (1) until changed by a duly adopted amendment
to the Articles of Incorporation or by an amendment to this Bylaw adopted by
the vote or written consent of holders of a majority of the outstanding shares
entitled to vote, as provided in section 212.
Section 5. 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 successors has been elected and qualified.
Section 6. VACANCIES. Vacancies in the Board of Directors may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, except that a vacancy created by the removal of a
director by the vote or written consent of the shareholders or by court order
may be filled only by the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present, or by the
written consent of the holders of a majority of the outstanding shares
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entitled to vote. Each director so elected shall hold office until the next
annual meeting of the shareholders and until a successor has been elected and
qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the event of the death, resignation, or removal of any director, or if
the Board of Directors by resolution declares vacant the office of a director
who has been declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any director or
directors are elected, to elect the number of directors to be voted for at that
meeting.
The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
Any director may resign effective on giving written notice to the
Chairman of the Board, the Chief Executive Officer, the Secretary, or the Board
of Directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the Board of Directors may elect a successor to take office when the
resignation becomes effective.
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 7. REMOVAL OF DIRECTORS. The entire Board of Directors or
any individual directors may be removed from office as provided by sections
302, 303, and 304 of the Corporations Code of the State of California. In such
case, the remaining board members may elect a successor director to fill such
vacancy for the remaining unexpired term of the director so removed.
Section 8. NOTICE, PLACE, AND MANNER OF MEETINGS. Meetings of the
Board of Directors may be called by the Chairman of the Board, or the Chief
Executive Officer, or any Vice President, or the Secretary, or any two (2)
directors and shall be held at the principal executive office of the
corporation, unless some other place is designated in the notice of the
meeting. Members of the board may participate in a meeting through use of a
conference telephone or similar
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communications equipment so long as all members participating in such a meeting
can hear one another. Accurate minutes of any meeting of the board or any
committee thereof, shall be maintained as required by section 312 of the code by
the Secretary of other officer designated for that purpose.
Section 9. ORGANIZATION MEETINGS. The organization meetings of the
Board of Directors shall be held immediately following the adjournment of the
annual meetings of the shareholders.
Section 10. OTHER REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at the corporate offices, or such other place as may be
designated by the Board of Directors, as follows:
Time of Regular Meeting: 4:00 p.m.
Date of Regular Meeting: June 30
If said day shall fall upon a holiday, such meeting shall be held on
the next succeeding business day thereafter. No notice need be given of such
regular meetings.
Section 11. SPECIAL MEETINGS - NOTICES - WAIVERS. Special meetings of
the board may be called at any time by the Chief Executive Officer, or, if he or
she is absent or unable or refuses to act, by any Vice President or the
Secretary or by any two (2) directors, or by one (1) director if only one is
provided.
At least forty-eight (48) hours' notice of the time and place of
special meetings shall be delivered personally to the directors or personally
communicated to them by a corporate officer by telephone or telegraph. If the
notice is sent to a director by letter, it shall be addressed to him or her at
his or her address as it is shown upon the records of the corporation, or if it
is not so shown on such records or is not readily ascertainable, at the place in
which the meetings of the directors are regularly held. In case such notice is
mailed, it shall be deposited in the United States mail, postage prepaid, in the
place in which the principal executive office of the corporation is located at
least four (4) days prior to the time of the holding of the meeting. Such
mailing, telegraphing, telephoning or delivery as above provided shall be due,
legal and personal notice to such director.
When all of the directors are present at any directors' meeting,
however called or noticed, and either (i) sign
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a written consent thereto on the records of such meeting, or (ii) if a majority
of the directors are present and if those not present sign a waiver of notice
of such meeting or a consent to holding the meeting or an approval of the
minutes thereof, whether prior to or after the holding of such meeting, which
said waiver, consent or approval shall be filed with the Secretary of the
corporation, or (iii) if a director attends a meeting without notice but
without protesting, prior thereto or at its commencement, the lack of notice,
then the transactions thereof are as valid as if had at a meeting regularly
called and noticed.
Section 12. SOLE DIRECTOR PROVIDED BY ARTICLES OF INCORPORATION OR
BYLAWS. In the event only one (1) director is required by the Bylaws or
Articles of Incorporation, then any reference herein to notices, waivers,
consents, meetings or other actions by a majority or quorum of the directors
shall be deemed to refer to such notice, waiver, etc., by such sole director,
who shall have all the rights and duties and shall be entitled to exercise all
of the powers and shall assume all the responsibilities otherwise herein
described as given to a Board of Directors.
Section 13. DIRECTORS ACTION BY UNANIMOUS WRITTEN CONSENT. Any action
required or permitted to be taken by the Board of Directors may be taken
without a meeting and with the same force and effect as if taken by a unanimous
vote of directors, if authorized by a writing signed individually or
collectively by all members of the board. Such consent shall be filed with the
regular minutes of the board.
Section 14. QUORUM. A majority of the number of directors as fixed by
the Articles of Incorporation or Bylaws shall be necessary to constitute a
quorum for the transaction of business, and the action of a majority of the
directors present at any meeting at which there is a quorum, when duly
assembled, is valid as a corporate act; provided that a minority of the
directors, in the absence of a quorum, may adjourn from time to time, but may
not transact any business. 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 a majority of the required quorum for such
meeting.
Section 15. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given to absent directors if the time
and place be fixed at the meeting adjourned and held without twenty-four (24)
hours, but if adjourned more than twenty-four (24) hours,
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notice shall be given to all directors not present at the time of the
adjournment.
Section 16. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but by resolution of the board a
fixed sum and expense of attendance, if any, may be allowed for attendance at
each regular and special meeting of the board; provided that nothing therein
contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 17. COMMITTEES. Committees of the board may be appointed by
resolution passed by a majority of the whole board, and shall have such powers
of the board as may be expressly delegated to it by resolution of the Board of
Directors, except those powers expressly made non-delegable by section 311.
Section 18. ADVISORY DIRECTORS. The Board of Directors from time to
time may elect one or more persons to be advisory directors who shall not by
such appointment be members of the Board of Directors. Advisory directors shall
be available from time to time to perform special assignments specified by the
Chief Executive Officer, to attend meetings of the Board of Directors upon
invitation and to furnish consultation to the board. The period during which
the title shall be held may be prescribed by the Board of Directors. If no
period is prescribed, the title shall be held at the pleasure of the board.
Section 19. RESIGNATIONS. Any director may resign effective upon
giving written notice to the Chairman of the Board, the Chief Executive
Officer, the Secretary or the Board of Directors of the corporation, unless the
notice specifies a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
ARTICLE III
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a Chief
Executive Officer, a Secretary, and a Chief Financial Officer. The corporation
may also have, at
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the discretion of the Board of Directors, a Chairman 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 the
provisions of section 3 of this Article III. Any number of offices may be held
by the same person.
Section 2. ELECTION. The officers of the corporation, except such officers
as may be appointed in accordance with the provisions of section 3 or section 5
of this article, shall be chosen annually by the Board of Directors, and each
shall hold office until he or she shall resign or shall be removed or otherwise
disqualified to serve, or a successor shall be elected and qualified.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of Directors may appoint
such other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the Bylaws or as the Board of Directors may from time to time
determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting of the board, or, except in case of an officers chosen by the
Board of Directors, by any officer upon whom such power or removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular appointments to that office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer 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 from
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time to time assigned by the Board of Directors or prescribed by the Bylaws. If
there is no Chief Executive Officer, the Chairman of the Board shall in
addition be the Chief Executive Officer of the corporation and shall have the
powers and duties prescribed in section 7 of this Article III.
Section 7. CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers,
if any, as may be given by the Board of Directors to the Chairman of the Board,
if there be such an officer, the Chief Executive Officer shall be the chief
executive officer of the corporation and shall, subject to the control of the
Board of Directors, have general supervision, direction and control of the
business and officers of the corporation. He or she shall preside at all
meetings of the shareholders and in the absence of the Chairman of the Board,
or if there be none, at all meetings of the Board of Directors. The Chief
Executive Officer shall be ex officio a member of all the standing committees,
including the Executive Committee, if any, and shall have the general powers
and duties of management usually vested in the office of Chief Executive
Officer of a corporation, and shall have such other powers and duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 8. VICE PRESIDENT. In the absence or disability of the Chief
Executive Officer, the Vice Presidents, if any, in order of their rank as fixed
by the Board of Directors, or if not ranked, the Vice President designated by
the Board of Directors, shall perform all the duties of the Chief Executive
Officer, and when so acting shall have all the powers of, and be subject to,
all the restrictions upon, the Chief Executive Officer. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board of Directors or the Bylaws.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, a
book of minutes at the principal office or such other place as the Board of
Directors may order, of all meetings of directors and shareholders, with the
time and place of holding, whether regular or special, and if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office
or at the office of the corporation's transfer agent, a share register, or
duplicate share
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register, showing the names of the shareholders and their addresses; the number
and classes of shares held by each; the number and date of certificates issued
for the same; and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board of Directors required by the
Bylaws or by the law to be given. He or she shall keep the seal of corporation
in safe custody, and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall keep and maintain, or cause to be kept and maintained in accordance with
generally accepted accounting principles, adequate and correct accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
earnings (or surplus) and shares. The books of account shall at all reasonable
times be open to inspection by any director.
This officer shall deposit all moneys and other valuables in the name
and to the credit of the corporation with such depositaries as may be designated
by the Board of Directors. He or she shall disburse the funds of the
corporation as may be ordered by the Board of Directors, shall render to the
Chief Executive Officer and directors, whenever they request it, an account his
or her transactions and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of Directors or by the Bylaws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
Section 1. PLACE OF MEETINGS. All meetings of the shareholders shall
be held at the principal executive office of the corporation unless some other
appropriate and convenient location be designated for that purpose from time to
time by the Board of Directors.
Section 2. ANNUAL MEETINGS. The annual meetings of the shareholders
shall be held, each year, at the time and on the day following:
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Time of Meeting: 3:00 p.m.
Date of Meeting: June 30
If this day shall be a legal holiday, then the meeting shall be
held on the next succeeding business day, at the same hour. At the annual
meeting, the shareholders shall elect a Board of Directors, consider reports of
the affairs of the corporation and transact such other business as may be
properly brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders
may be called at any time by the Board of Directors, the Chairman of the Board,
the Chief Executive Officer, a Vice President, the Secretary, or by one or more
shareholders holding not less than one-tenth (1/10th) of the voting power of
the corporation. Except as next provided, notice shall be given as for the
annual meeting.
Upon receipt of a written request addressed to the Chairman, Chief
Executive Officer, Vice President, or Secretary, mailed or delivered personally
to such officer by any person (other than the board) entitled to call a special
meeting of the shareholders, such officer shall cause notice to be given, to
the shareholders entitled to vote, that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt of such
request. If such notice is not given within twenty (20) days after receipt of
such request, the persons calling the meeting may give notice thereof in the
manner provided by these Bylaws or apply to the superior court as provided in
section 305(c).
Section 4. NOTICE OF MEETINGS - REPORTS. Notices of meetings,
annual or special, shall be given in writing not less than ten (10) nor more
than sixty (60) days before the date of the meeting to shareholders entitled to
vote thereat. Such notice shall be given by the Secretary or the Assistant
Secretary, or if there be no such officer, or in the case of his or her neglect
or refusal, by any director or shareholder.
Such notices or any reports shall be given personally or by mail
or other means of written communication as provided in section 601 of the code
and shall be sent to the shareholder's address appearing on the books of the
corporation, or supplied by him or her to the corporation for the purpose of
notice, and in the absence thereof, as provided in section 601 of the code.
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Notice of any meeting of shareholders shall specify the place, the day and
the hour of meeting, and (1) in case of a special meeting, the general nature of
the business to be transacted and no other business may be transacted, or (2) in
the case of an annual meeting, those matters which the board at date of mailing,
intends to present for action by the shareholders. At any meetings where
directors are to be elected, notice shall include the names of the nominees, if
any, intended at date of notice to be presented by management for election.
If a shareholders supplies no address, notice shall be deemed to have been
given if mailed to the place where the principal executive office of the
corporation, in California, is situated, or published at least once in some
newspaper of general circulation in the county of said principal office.
Notice shall be deemed given at the time it is delivered personally or
deposited in the mail or sent by other means of written communication. The
officer giving such notice or report shall prepare and file an affidavit or
declaration thereof.
When a meeting is adjourned for forty-five (45) days or more, notice of the
adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, it shall not be necessary to give any notice of adjournment or of the
business to be transacted at an adjourned meeting other than by announcement at
the meeting at which such adjournment is taken.
Section 5. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, however called and notice, shall be
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present either in person or by proxy, and if, either before or after
the meeting, each of the shareholders entitled to vote, not present in person or
by proxy, sign a written waiver of notice, or a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance shall constitute a waiver of notice, unless
objection shall be made as provided in section 601(g).
Section 6. SHAREHOLDERS ACTING WITHOUT A MEETING -- DIRECTORS. Any action
which may be taken at a meeting of the shareholders, may be taken without a
meeting or notice of
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meeting if authorized by a writing signed by all of the shareholders entitled
to vote at a meeting for such purpose, and filed with the Secretary of the
corporation, provided, further, that while ordinarily directors can only be
elected by unanimous written consent under section 603(d), if the directors
fail to fill a vacancy, then a director to fill that vacancy may be elected by
the written consent of persons holding a majority of shares entitled to vote
for the election of directors.
Section 7. OTHER ACTIONS WITHOUT A MEETING. Unless otherwise provided in
the General Corporation Law or the Articles, any action which may be taken at
any annual or special meeting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action so
taken, signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
Unless consents of all shareholders entitled to vote have been solicited
in writing,
(1) Notice of any shareholder approval pursuant to sections 310, 317,
1201, or 2007 without a meeting by less than unanimous written consent
shall be given at least ten (10) days before the consummation of the action
authorized by such approval, and
(2) Prompt notice shall be given of the taking of any other corporate
action approved by shareholders without a meeting by less than unanimous
written consent, to each of those shareholders entitled to vote who have
not consented in writing.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares of a personal representative of the
shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the corporation.
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Section 8. QUORUM. The holders of a majority of the shares entitled to
vote thereat, present in person, or represented by proxy, shall constitute a
quorum at all meetings of the shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation, or by
these Bylaws. If, however, such majority shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person, or by proxy, shall have the power to adjourn the meeting
from time to time, until the requisite amount of voting shares shall be
present. At such adjourned meeting at which the requisite amount of voting
shares shall be represented, any business may be transacted which might have
been transacted at a meeting as originally notified.
If a quorum be initially present, the shareholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken is approved by a
majority of the shareholders required to initially constitute a quorum.
Section 9. VOTING. Only persons in whose names shares entitled to vote
stand on the stock records of the corporation on the day of any meeting of
shareholders, unless some other day be fixed by the Board of Directors for the
determination of shareholders of record, and then on such other day, shall be
entitled to vote at such meeting.
Provided the candidate's name has been placed in nomination prior to the
voting and one or more shareholder has given notice at the meeting prior to the
voting of the shareholders's intent to cumulate the shareholder's votes, every
shareholder entitled to vote at any election for directors of any corporation
for profit may cumulate their votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of
votes to which his or her shares are entitled, or distribute his or her votes
on the same principle among as many candidates as he or she thinks fit.
The candidates receiving the highest number of votes up to the number of
directors to be elected are elected.
The Board of Directors may fix a time in the future not exceeding thirty
(30) days preceding the date of any meeting of shareholders or the date fixed
for the payment of any dividend or distribution, or for the allotment of
rights, or when any change or conversion or exchange of shares shall go into
effect, as a record date for the determination of the shareholders entitled to
notice of and to vote at any such
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meeting, or entitled to receive any such dividend or distribution, or any
allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of shares. In such case only shareholders of record on
the date so fixed shall be entitled to notice of and to vote at such meeting, or
to receive such dividends, distribution or allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any share on
the books of the corporation after any record date fixed as aforesaid. The Board
of Directors may close the books of the corporation against transfers of shares
during the whole or any part of such period.
Section 10. PROXIES. Every shareholder entitled to vote, or to execute
consents, may do so, either in person or by written proxy, executed in
accordance with the provisions of sections 604 and 705 of the code and filed
with the Secretary of the corporation.
Section 11. ORGANIZATION. The Chief Executive Officer, or in the absence of
the Chief Executive Officer, any Vice President, shall call the meeting of the
shareholders to order, and shall act as chairman of the meeting. In the absence
of the Chief Executive Officer and all of the Vice Presidents, the shareholders
shall appoint a chairman for such meeting. The Secretary of the corporation
shall act as secretary of all meetings of the shareholders, but in the absence
of the Secretary at any meeting of the shareholders, the presiding officer may
appoint any person to act as secretary of the meeting.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders the Board of Directors may, if they so elect, appoint inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election be not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any such meeting may, and on the request of any
shareholder or his or her proxy shall, make such appointment at the meeting in
which case the number of inspectors shall be either one (1) or three (3) as
determined by a majority of the shareholders represented at the meeting.
Section 13. (A) SHAREHOLDERS' AGREEMENTS. Notwithstanding the above
provisions, in the event this corporation elects to become a close corporation,
an agreement between two (2) or more shareholders thereof, if in writing and
signed by the parties thereof, may provide that in exercising any voting rights
the shares held by them shall be
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voted as provided therein or in section 706, and may otherwise modify these
provisions as to shareholders' meetings and actions.
(B) EFFECTS OF SHAREHOLDERS' AGREEMENTS. Any shareholders'
agreement authorized by section 300(b), shall only be effective to modify the
terms of these Bylaws if this corporation elects to become a close corporation
with appropriate filing of or amendment to its Articles as required by section
202 and shall terminate when this corporation ceases to be a close corporation.
Such an agreement cannot waive or alter sections 158, (defining close
corporations), 202 (requirements of Articles of Incorporation), 500 and 501
relative to distributions, 111 (merger), 1201(e) (reorganization) or chapters 15
(records and reports), 16 (rights of inspection), 18 (involuntary dissolution)
or 22 (crimes and penalties). Any other provisions of the code or these Bylaws
may be altered or waived thereby, but to the extent they are not so altered or
waived, these Bylaws shall be applicable.
ARTICLE V
CERTIFICATES AND TRANSFER OF SHARES
Section 1. CERTIFICATES FOR SHARES. Certificates for shares shall be
of such form and device as the Board of Directors may designate and shall state
the name of the record holder of the shares represented thereby; its number;
date of issuance; the number of shares for which it is issued; a statement of
the rights, privileges, preferences and restrictions, if any; a statement as to
the redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
All certificates shall be signed in the name of the corporation by the
Chairman of the Board or Vice Chairman of the Board or the Chief Executive
Officer or Vice President and by the Chief Financial Officer or an Assistant
Treasurer or the Secretary or any Assistant Secretary, certifying the number of
shares and the class or series of shares owned by the shareholder.
Any or all of the signatures on the certificate may be facsimile. In
case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been
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placed on a certificate shall have ceased to be that officer, transfer agent,
or registrar before that certificate is issued, it 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 2. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit of
affirmation of that fact and shall, if the directors so require, give the
corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the board, in at least double the value of the stock
represented by said certificate, whereupon a new certificate may be issued in
the same tenor and for the same number of shares as the one alleged to be lost
or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company, either
domestic or foreign, who shall be appointed at such times and places as the
requirements of the corporation may necessitate and the Board of Directors may
designate.
Section 5. CLOSING STOCK TRANSFER BOOKS - RECORD DATE. In order that the
corporation may determine the shareholders entitled to notice of any meeting or
to vote or entitled to receive payment of any dividend or other distribution or
allotment of any rights or entitled to exercise any rights in respect of any
other lawful action, the board may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days prior to the date of
such meeting nor more than sixty (60) days prior to any other action.
If no record date is fixed, the record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting
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is held. The record date for determining shareholders entitled to give consent
to corporate action in writing without a meeting, when no prior action by the
board is necessary, shall be the day on which the first written consent is
given.
The record date for determining shareholders for any other purpose shall
be at the close of business on the day on which the board adopts the resolution
relating thereto, or the sixtieth (60th) day prior to the date of such other
action, whichever is later.
Section 6. LEGEND CONDITION. In the event any shares of this
corporation are issued pursuant to a permit or exemption therefrom requiring
the imposition of a legend condition, the person or persons issuing or
transferring said shares shall make sure said legend appears on the
certificate and shall not be required to transfer any shares free of such
legend unless an amendment to such permit or a new permit be first issued so
authorizing such a deletion.
Section 7. CLOSE CORPORATION CERTIFICATES. All certificates representing
shares of this corporation, in the event it shall elect to become a close
corporation, shall contain the legend required by section 418(c).
ARTICLE VI
RECORDS -- REPORTS -- INSPECTION
Section 1. RECORDS. The corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books
and records of its business and properties. All of such books, records and
accounts shall be kept at its principal executive office in the State of
California, as fixed by the Board of Directors from time to time.
Section 2. INSPECTION OF BOOKS AND RECORDS. All books and records
provided for in section 1500 shall be open to inspection of the directors and
shareholders from time to time and in the manner provided in said sections 1600
through 1602.
Section 3. CERTIFICATION AND INSPECTION OF BYLAWS. The original or a
copy of these Bylaws, as amended or otherwise altered to date, certified by
the Secretary, shall be kept at the corporation's principal executive office
and shall be open to inspection by the shareholders of the
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corporation at all reasonable times during office hours, as provided in section
213 of the Corporations Code.
Section 4. CHECKS, DRAFTS, ETC. All checks, drafts, or 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 as shall be determined from time to time by
resolution of the Board of Directors.
Section 5. CONTRACTS ETC, -- HOW EXECUTED. The Board of Directors, except
as in the Bylaws otherwise provided, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation. Such authority may be general or
confined to specific instances. Unless so authorized by the Board of Directors,
no officer, agent, or employee shall have any power or authority to bind the
corporation by any contract or agreement, or to pledge its credit, or to render
it liable for any purpose or to any amount, except as provided in section 313 of
the Corporations Code.
ARTICLE VII
ANNUAL REPORTS
Section 1. REPORT TO SHAREHOLDERS, DUE DATE. The Board of Directors shall
cause an annual report to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal or calendar year adopted by the
corporation. This report shall be sent at least fifteen (15) days before the
annual meeting of shareholders to be held during the next fiscal year and in the
manner specified in section 4 of Article IV of these Bylaws for giving notice to
shareholders of the corporation. The annual report shall contain a balance sheet
as of the end of the fiscal year and an income statement and statement of
changes in financial position for the fiscal year, accompanied by any report of
independent accountants or, if there is no such report, the certificate of an
authorized officer of the corporation that the statements were prepared without
audit from the books and records of the corporation.
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ARTICLE VIII
AMENDMENTS TO BYLAWS
Section 1. AMENDMENT BY SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the Articles of Incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of directors may
be changed only by an amendment of the Articles of Incorporation.
Section 2. POWERS OF DIRECTORS. Subject to the right of the shareholders to
adopt, amend, or repeal Bylaws, as provided in section 1 of this Article VIII,
and the limitations of section 204(a)(5) and section 212, the Board of Directors
may adopt, amend, or repeal any of these Bylaws other than a Bylaw or amendment
thereof changing the authorized number of directors.
Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new Bylaw is
adopted, it shall be copied in the book of Bylaws with the original Bylaws, in
the appropriate place. If any Bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written assent was filed
shall be stated in said book.
ARTICLE IX
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the
word, "California."
Section 1. REFERENCES TO CODE SECTIONS. "Section" references herein refer
to the equivalent sections of the General Corporation Law effective January 1,
1977, as amended.
Section 2. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of other
corporations standing in the name of this corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the Chief Executive Officer, or any
Vice President and the Secretary or an Assistant Secretary.
Section 3. SUBSIDIARY CORPORATIONS. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. A subsidiary for these
purposes is
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defined as a corporation, the shares of which possessing more than 25 percent
of the total combined voting power of all classes or shares entitled to vote,
are owned directly or indirectly through one (1) or more subsidiaries.
Section 4. INDEMNITY. The corporation may indemnify any director,
officer, agent, or employee as to those liabilities and on those terms and
conditions as are specified in section 317 of the code. In any event, the
corporation shall have the right to purchase and maintain insurance on behalf
of any such persons whether or not the corporation would have the power to
indemnify such person against the liability insured against.
Section 5. ACCOUNTING YEAR. The accounting year of the corporation shall
be fixed by resolution of the Board of Directors.
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CERTIFICATE OF ADOPTION OF BYLAWS
ADOPTION BY INCORPORATOR(S) OR FIRST DIRECTOR(S)
The undersigned person appointed in the Articles of Incorporation to act
as the Incorporator or First Director of the above-named corporation hereby
adopts the same as the Bylaws of said corporation.
Executed this 15th day of May, 1984.
/s/ G. B. Bashaw
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G. B. BASHAW
CERTIFICATE BY SECRETARY
I DO HEREBY CERTIFY AS FOLLOWS:
That I am the duly elected, qualified and acting Secretary of the
above-named corporation; that the foregoing Bylaws were adopted as the Bylaws
of said corporation on the date set forth above by the person appointed in the
Articles of Incorporation to act as the Incorporator of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal this 15th day of May, 1984.
/s/ G. B. Bashaw
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G. B. BASHAW
Secretary
CERTIFICATE BY SECRETARY OF CORPORATION
BY SHAREHOLDERS' VOTE
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of the
above-named corporation and that the above and foregoing code of Bylaws was
submitted to the shareholders at their first meeting and recorded in the
minutes thereof, was ratified by the vote of shareholders entitled to exercise
the majority of the voting power of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of May, 1984.
/s/ G. B. Bashaw
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G. B. BASHAW
Secretary