EXHIBIT 3.38
BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR ITS
ARTICLES OF INCORPORATION, OF
SWC GOLF GROUP, INC.
ARTICLE I
OFFICES
Section 1. Principal Office. The corporation will maintain offices for the
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transaction of business of the corporation at 3702 Via de la Valle, Suite 202,
Del Mar, California 92104.
Section 2. Other Offices. Branch or affiliate offices may at any time be
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established by the Board of Directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders shall be held
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at the principal office of the corporation or at any other place which may be
(i) designated by the Board of Directors, or (ii) consented to by the written
consent of all shareholders entitled to vote thereat, given either before or
after the meeting and filed with the Secretary of the corporation, or (iii) in
the city of residence of any shareholder holding over two-thirds of the capital
stock of the corporation.
Section 2. Annual Meetings. The annual meeting of shareholders shall be
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on the 1st Monday of May in each year at 10:00 a.m.; provided, however, that
should said day fall upon a legal holiday, then any such annual meeting of
shareholders shall be held at the same time and place on the next day thereafter
ensuing which is not a legal holiday. At such meetings, Directors shall be
elected, reports of the affairs of the corporation shall be considered, and any
other business may be transacted which is within the power of the shareholders.
Section 3. Special Meetings. Special meetings of the shareholders for
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any purpose whatsoever may be called at any time either by the President or by
the Board of Directors, to be held at such time as he or they may designate. In
addition, one or more shareholders holding not less than one-fifth of the voting
power of the corporation may call such a meeting by causing a written request to
be sent by registered mail or delivered personally to the President, Vice
President or Secretary. The officer forthwith shall cause notice to be given,
as provided below, that a meeting will be held at a time, fixed by the
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officer, not less than ten (10) nor more than sixty (60) days after the receipt
of the request.
Section 4. Notice of Meeting. Not less than ten (10) days prior to any
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meeting of shareholders, the Secretary or his delegate shall cause written
notice of such meeting to be given to all shareholders entitled to vote thereat.
If a shareholder gives no address, notice shall be deemed to have been duly
given if sent by mail or other means of written communication addressed to the
place where the principal office of the corporation is situated, or if published
at least once in a newspaper of general circulation in the county in which said
office is located.
The notice shall specify the place, the day and the hour of such
meeting, and, in the case of a special meeting, the general nature of the
business to be transacted. No action may be taken at any meeting of shareholders
on any of the following proposals unless the notice thereof specifies the
general nature of the proposal: (a) a proposal to sell, lease, convey, exchange,
transfer or otherwise dispose of all, or substantially all, of the property or
assets of the corporation, (b) a proposal to merge or consolidate with another
corporation, domestic or foreign, (c) a proposal to reduce the stated capital of
the corporation, (d) a proposal to amend the Articles of Incorporation, (e) a
proposal to wind up and dissolve the corporation, or (f) a proposal to adopt a
plan of distribution of shares, securities, or any other consideration (other
than money) in the process of winding up.
Section 5. Consent of Absentees. The transactions conducted at any
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meeting of shareholders, either annual or special, however called and noticed,
shall be as 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, signs a written waiver of notice, 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.
Section 6. Quorum. The presence in person or by proxy of persons
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entitled to vote a majority of the voting shares at any meeting 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.
Section 7. Voting. Unless a record date for voting purposes be fixed,
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as hereinafter provided, only persons in whose names shares entitled to vote
stand on the stock records of the corporation as of the date of such meeting
shall be entitled to vote thereat. Except as otherwise provided by law or the
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Articles of Incorporation, every shareholder shall be entitled to one vote for
each share standing in his name on the record of shareholders of the
corporation. Voting rights shall be noncumulative. Except as otherwise provided
herein or in the Articles of Incorporation, all corporate actions shall be
determined by vote of a majority of the votes cast at a meeting of shareholders
entitled to vote thereat. Such vote may be viva voce or by ballot; provided,
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however, that all elections for Directors must be by ballot upon demand made by
a shareholder at any election and before the voting begins. The candidates
receiving the highest number of votes up to the number of Directors to be
elected shall be elected.
Section 8. Proxies. Every person entitled to vote or execute consents
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shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his duly authorized
agent and filed with the Secretary of the corporation.
Section 9. Adjourned Meetings and Notice Thereof. Any shareholders'
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meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, the holders of which
are either present in person or represented by proxy thereat, but in the absence
of a quorum, no other business may be transacted at such meeting.
When any shareholders' meeting, either annual or special, is adjourned
for thirty (30) days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. Except as provided above, it shall not be
necessary to give any notice of any adjournment or of the business to be
transacted at any adjourned meeting other than by announcement at the meeting at
which such adjournment is taken.
Section 10. Action Without Meeting. Any action which may be taken at
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a meeting of the shareholders may be taken without a meeting if authorized by a
writing signed by all of the persons who would be entitled to vote upon such
action at a meeting and filed with the Secretary of the corporation; provided,
however, a meeting shall be held for dissolution, transfer of all or
substantially all of the assets of the corporation, or for merger or
consolidation of the corporation with other corporations, if same is required
under applicable law.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to limitations imposed by law or by the
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Articles of Incorporation, all corporate powers shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
controlled by, the Board of Directors. In the exercise of its powers, the Board
may appoint an Executive Committee and other committees and may delegate to
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the Executive Committee any of the powers and authority of the Board in the
management of the business and affairs of the corporation, except the power to
declare dividends and to adopt, amend or repeal bylaws. The Executive Committee
shall be composed of two or more Directors.
Section 2. Number of Directors. The authorized number of Directors of the
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corporation shall be not less than one nor more than five until changed by
amendment of the Articles of Incorporation or by a bylaw duly adopted by the
shareholders amending this section. Directors need not be shareholders of the
corporation.
Section 3. Election and Term of Office. The Directors shall be elected at
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the annual meeting of shareholders, but if any such annual meeting is not held
or the Directors are not elected thereat, Directors may be elected at any
special meeting of shareholders held for that purpose. Directors shall hold
office until the election and qualification of their respective successors.
Section 4. Vacancies. Vacancies in the Board of Directors may be filled
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by a majority of the remaining Directors, though less than a quorum, or by a
sole remaining Director, and each Director so elected shall hold office until
his successor is elected at an annual or a special meeting of the shareholders.
If the entire Board of Directors resigns at one time, the shareholders shall,
within a reasonable time thereafter, at a regular or special meeting, as
provided herein, elect a new Board of Directors.
A vacancy in the Board of Directors shall be deemed to exist in the case
of the death, resignation or removal of any Director, or if at any annual or
special meeting of shareholders at which any Director is elected the authorized
number of Directors is increased or if the shareholders fail to elect the full
authorized 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 remaining Director or Directors. If the
Board of Directors accepts the resignation of a Director tendered to take effect
at a future time, the Board or the shareholders shall have the power to elect a
successor to take office when the resignation is to become effective.
No reduction of the authorized number of Directors shall have the effect of
removing any Director prior to the expiration of his term of office.
Section 5. Quorum. A majority of the authorized number of Directors shall
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be necessary to constitute a quorum of the Board for the transaction of
business. Every act or decision done or made by a majority of the Directors
present at a meeting duly
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held at which a quorum is present shall be regarded as the act of the Board
of Directors, unless a greater number be required by law.
Section 6. Place of Directors' Meetings. Meetings of the Board of
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Directors shall be held at the principal office of the corporation, or at any
other location which has been designated by resolution of the Board, or by
written consent of all of the Directors.
Section 7. Regular Meetings. Immediately following each annual meeting of
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shareholders, the Board of Directors shall hold a regular meeting for the
purpose of electing officers and transacting any other business which may come
before them. No notice of such meeting need be given.
Section 8. Special Meetings. Special meetings of the Board of Directors
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for any purpose or purposes shall be called by the President, or, if he is
absent or unable or refuses to act, by any Vice President or by any two
Directors.
Written notice of the time and place of special meetings shall be delivered
personally to each Director or sent to each Director by mail or other form of
written communication, charges prepaid, addressed to him at his address as is
shown upon the records of the corporation, or, if it is not so shown and if it
is not readily ascertainable, addressed to him at the city or place where the
meetings of the Directors are regularly held. Notices mailed or telegraphed
shall be deposited in the United States mail or delivered to the telegraph
company at the place where the principal office of the corporation is located at
least forty-eight (48) hours prior to the time of the holding of the meeting,
and notices delivered personally shall be so delivered at least twenty-four (24)
hours prior to the time of the holding of the meeting.
Section 9. Notice of Adjournment. Notice of the time and place of holding
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an adjourned meeting need not be given to absent Directors if the time and place
are fixed at the meeting adjourned.
Section 10. Waiver of Notice: Consent to Meeting. The transactions
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conducted at any meeting of the Board of Directors, however called or noticed or
wherever held, shall be as valid as though conducted at a meeting duly held
after regular call and notice if a quorum is present and if, either before or
after the meeting, each of the Directors signs a waiver of notice, a consent to
hold such a meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records and made a part
of the minutes of the meeting.
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Section 11. Adjournment. A quorum of the Directors may adjourn to meet
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again at a set day and hour, and in the absence of a quorum, a majority of the
Directors present may adjourn from time to time until the time fixed for the
next regular meeting of the Board.
Section 12. Action Without Meeting. Any action required or permitted to
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be taken by the Board of Directors may be taken without a meeting if all members
of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall have the same
force and effect as a unanimous vote of such Directors.
Section 13. Fees and Compensation. Directors shall not receive any stated
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salary for their services as Directors, but by resolution of the Board, a fee or
other remuneration, with or without expenses of attendance, may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any Director from serving the corporation in any other capacity as an
officer, agent or employee, or otherwise, and receiving compensation therefor.
Section 14. Indemnification of Directors, Officers and Employees.
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A. In the event a person is sued, either alone or with others, because he
is or was a Director, officer or employee of the corporation, in any proceeding
arising out of his alleged misfeasance or nonfeasance in the performance of his
duties as such Director, officer or employee, or out of any alleged wrongful act
by the corporation, he shall be indemnified for his reasonable expenses,
including attorneys' fees incurred in the defense of the proceeding, if both of
the following conditions exist: (i) the person sued is successful in whole or in
part, or the proceeding against him is settled with the approval of the court,
and (ii) the court finds that his conduct fairly and equitable merits such
indemnity.
The amount of such indemnity may be assessed against the corporation, its
receiver, its trustee, or any other proper party, by the court in the same or in
a separate proceeding and shall be so much of the expenses, including attorneys'
fees incurred in the defense of the action as the court determines and finds to
be reasonable. Application for such indemnity may be made either by a person
sued or by the attorney or other person rendering services to him in
connection with the defense, and the court may order fees and expenses to be
paid directly to the attorney or other person although he is not a party to the
proceeding. Notice of the application for such indemnity shall be served upon
the corporation, its receiver, or its trustee and upon the plaintiff and other
parties to the proceeding. The court may also order notice to be given to the
shareholders in
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the manner provided elsewhere in these bylaws for giving notice of shareholders'
meetings, in such form as the court directs.
B. Notwithstanding the foregoing provisions, the Board of Directors may
authorize the corporation to pay expenses incurred by or to satisfy a judgment
or fine rendered or levied against a present or former Director, officer or
employee of the corporation in an action brought by a third party against such
person (whether or not the corporation is joined as a party defendant) to impose
a liability or penalty on such person for an act alleged to have been committed
by such person in the performance of his duties as such Director, officer or
employee, or by the corporation, or by both, provided the Board of Directors
determines that such Director, officer or employee was acting in good faith
within what he reasonably believed to be the scope of his employment or
authority and for a purpose which he reasonably believed to be in the best
interests of the corporation or its shareholders. Payments authorized hereunder
include amounts paid and expenses incurred in settling any such action or
threatened action. This Paragraph does not apply to any action instituted or
maintained as the right of the corporation by a shareholder or holder of a
voting trust certificate representing shares of the corporation.
C. The provisions of this Section shall apply to the estate, executor,
administrator, heirs, legatees or devisees of any such present or former
Director, officer or employee of the corporation.
D. The Board of Directors may, at its discretion, authorize the purchase
of a policy or policies of insurance against any liability of the corporation to
indemnify any person pursuant to this Section, containing such terms and
conditions as the Board may deem appropriate. Such policy or policies may
include provisions for the direct indemnification of directors, officers or
other persons for expenses of a kind not subject to indemnification hereunder,
provided the premiums on such combined policy are, in the judgment of the Board,
fairly allocated between the corporation and the insured persons.
E. The foregoing provisions of this Section 14 shall not be considered as
limiting the right of indemnification permitted by the Texas Business
Corporation Act, Articles 2.021, but indemnification shall be to the maximum
extent permitted under Texas Business Corporation Act, Article 2.02-1.
ARTICLE IV
OFFICERS
Section 1. Officers. The corporation shall have a President, one or more
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Vice Presidents, a Secretary and a Treasurer. Such officers shall be elected
annually by the Board
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of Directors and each shall hold office until he shall resign or shall be
removed or otherwise disqualified to serve and until his successor shall be
elected.
Section 2. Other Officers. The corporation may also have, in the
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discretion of the Board of Directors, a Chairman of the Board, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
and agents shall hold office for such terms and have such authority and perform
such duties as the Board of Directors may from time to time specify, and shall
hold office until they shall resign or shall be removed or otherwise
disqualified to serve.
Section 3. Removal and Resignation. Any officer or agent may be removed,
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either with or without cause, by a majority of the Directors at the time in
office at any regular or special meeting of the Board, or, except in case of an
office chosen by the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors.
Any officer or agent may resign at any time by giving written notice to the
Board of Directors, the President or the Secretary of the corporation. Any such
resignation shall take effect as of the date of the receipt of such notice or at
any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these Bylaws for regular appointments to such office.
Section 5. Chairman of the Board. The Chairman of the Board, if there
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shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors and exercise and perform such other powers and duties as may
from time to time be assigned to him by the Board of Directors.
Section 6. President. Subject to such supervisory powers, if any, as may
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be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President 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 affairs of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the Chairman of the Board, at all meetings of the Board of Directors.
He shall be an ex officio member of all the standing committees, including the
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Executive Committee, if any, and shall have the general powers and duties of
management usually vested in the office of the President of a corporation and
shall have such other powers and duties as may be prescribed by the Board of
Directors.
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Section 7. Vice President. In the absence or disability of the President,
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the Vice Presidents, 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 President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President. 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.
Section 8. Secretary. The Secretary shall keep, or cause to be kept, a book
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of minutes at the principal office of the corporation, or at 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 of
the corporation, or at the office of the corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of shares held by each, 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 meetings of
the shareholders and of the Board of Directors required by these Bylaws or by
law to be given, and he shall keep the seal of the corporation in safe custody
and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors.
Section 9. Treasurer. The Treasurer shall keep and maintain, or cause to
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be kept and maintained, adequate and correct accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital surplus and shares.
Any surplus, including earned surplus, paid-in surplus and surplus arising from
a reduction of stated capital, shall be classified according to source and shown
in a separate account. The books of account shall at all reasonable times be
open to inspection by any Director.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositories as may be designated by
the Board of Directors. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, shall render to the President and Board,
whenever they request it, an account of all of his transactions
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as Treasurer 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.
ARTICLE V
MISCELLANEOUS
Section 1. Record Date and Closing Stock Books. The Board of Directors may
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fix a time as a record date for the determination of the shareholders entitled
to notice of and to vote at any meeting of shareholders or entitled to receive
any dividend or distribution or any allotment of rights, or to exercise rights
in respect to any change, conversion or exchange of shares. The record date so
fixed shall not be more than fifty (50) days prior to the date of the meeting or
event for the purposes of which it is fixed. When a record date is so fixed,
only shareholders who are of record on that date are entitled to notice of and
to vote at the meeting or to receive the dividend, distribution or allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the record date.
The Board of Directors may close the books of the corporation against
transfers of shares during the whole or any part of a period not more than fifty
(50) days prior to the date of a shareholders' meeting, the date when the right
to any dividend, distribution or allotment of rights vests, or the effective
date of any change, conversion or exchange of shares.
Section 2. Inspection of Corporate Records. The share register or duplicate
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share register, the books of account and minutes of proceedings of the
shareholders, the Board of Directors and the Executive Committee shall be open
to inspection upon the written demand of any shareholder, or the holder of a
voting trust certificate, at any reasonable time and for a purpose reasonably
related to his interests as a shareholder, or as the holder of such voting trust
certificate, and shall be exhibited at any time when required by demand at any
shareholders' meeting of ten percent (10%) of the shares represented at the
meeting. Such inspection may be made in person or by an agent or attorney and
shall include the right to make extracts. Demand of inspection, other than at a
shareholders' meeting, shall be made in writing upon the President, Secretary or
Assistant Secretary of the corporation.
Every Director shall have the right at any reasonable time to inspect the
books, records, documents of every kind, and the physical properties of the
corporation and of its subsidiary corporations, domestic or foreign.
Section 3. Certificates for Shares. A certificate or certificates for
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shares of the corporation (in such form as may be approved from time to time by
the Board of Directors) shall be
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issued to each stockholder when such shares are fully paid. The certificates
shall be numbered and the holder's name, number of shares and the date of issue
shall be entered in the books of the corporation as they are issued. The
certificates shall exhibit the holder's name, the number and class of shares
evidenced thereby or a statement that the shares are without par value, and such
additional information as may be required by the Board of Directors. They shall
be signed by the President or a Vice President and the Secretary or an Assistant
Secretary, or be authenticated by facsimiles of the signatures of the President
and the Secretary. Every certificate authenticated by a facsimile of a signature
must be countersigned by a transfer clerk.
Section 4. Transfer of Stock. The corporation shall recognize the right of
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the person registered on its books as owner of shares to receive dividends and
to vote as such owner. Shares may be transferred on the books of the corporation
only by the person named in the certificate as the owner thereof, or by his
agent, attorney or legal representative, upon surrender to the Secretary of the
corporation of a certificate, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer. The Secretary shall thereupon
cause a new certificate to be issued to the person entitled thereto and shall
cancel the old certificate record the transaction upon the books of the
corporation.
Section 5. Lost Certificates. New certificates for shares or other
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securities of the corporation may be issued for an in place of any such
instrument theretofore issued which is alleged to have been lost or destroyed.
The Directors may, in their discretion, require the owner of such lost or
destroyed instrument, or his legal representative, to give the corporation a
bond or other security in an adequate amount as indemnity against any claim that
may be made against the corporation. A new instrument may be issued, however,
without requiring any bond or other security when in the judgment of the
Directors it is proper to do so.
Section 6. Corporate Seal. A corporate seal shall be provided and adopted
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by the Board of Directors and shall contain the name of the corporation and such
other wording as the Board may deem suitable or as may be required by law.
Section 7. Contracts - Execution of Documents. The Board of Directors may
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authorize any officer or officers, agent or agents to enter into any contract or
execute any instrument in the name of an on behalf of the corporation, and such
authority may be general or confined to specific instances, and 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 engagement or
to pledge its credit
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or to render it liable for any purpose or in any amount; except, however, the
club membership secretary may execute membership application agreements on
behalf of the corporation.
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 from
time to time shall be determined by resolution of the Board of Directors.
Section 8. Representation of Shares of Other Corporations. The President
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or any Vice President and the Secretary or Assistant Secretary of this
corporation are authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.
Section 9. Inspection of Bylaws. The corporation shall keep in its
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principal office for the transaction of business the original or a copy of these
Bylaws, as amended or otherwise altered to date, certified by the Secretary,
which shall be open to inspection by the shareholders at all reasonable times
during office hours.
ARTICLE VI
AMENDMENTS
Section 1. Power of Shareholders. New Bylaws may be adopted or these Bylaws
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may be amended or repealed by the vote of shareholders entitled to exercise a
majority of the voting power of the corporation or by the written consent of
such shareholders, except as otherwise provided by the Articles of
Incorporation, provided that the vote of written consent of shareholders holding
more than seventy-five percent (75%) of the voting power of the corporation
shall be required to reduce the authorized number of Directors.
Section 2. Power of Directors. Subject to the right of shareholders to
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adopt, amend or repeal these Bylaws, these Bylaws, other than a Bylaw or
amendment thereof changing the authorized number of Directors, may be adopted,
amended or repealed by the Board of Directors at any regular or special meeting
thereof.
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