Exhibit 3.92
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BYLAWS FOR THE REGULATION
OF
MONTEREY LANDFILL GAS CORPORATION,
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
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Section 1.1 Principal Executive Office.
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The principal executive office of Monterey Landfill Gas Corporation
(hereinafter called the "Corporation") in the State of California shall be at
400 South El Camino Real, Suite 1200, San Mateo, California 94402.
Section 1.2 Other Offices.
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The Corporation may also have an office or offices at such other place or
places, either within or without the State of California, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
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Section 2.1 Place of Meetings.
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Each annual or special meeting of shareholders shall be held at such
location as may be determined by the Board of Directors, or if no such
determination is made, at such place as may be determined by the chief executive
officer, or by any other officer authorized by the Board of Directors or the
chief executive officer to make such determination. If no location is so
determined, any annual or special meeting shall be held at the principal
executive office of the corporation.
Section 2.2 Annual Meetings.
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The annual meetings of shareholders shall be held on such day and at such
hour as may be fixed by the Board of Directors. At such meeting, Directors
shall be elected, and any other proper business may be transacted.
Section 2.3 Special Meetings.
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Special meetings of the shareholders may be called at any time by the Board
of Directors, the Chairman of the Board, the President, or by the holders of
shares entitled to cast not less than ten percent (10%) of the votes at the
meeting. Notice of such special meeting shall be given in the same manner as
for the annual meeting of shareholders. Notices of any special meetings
shall specify in addition to the place, date and hour of such meeting, the
general nature of the business to be transacted thereat.
Section 2.4 Notice of Meetings or Reports.
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Notice of each annual or special meeting of shareholders shall contain such
information, and shall be given to such persons at such time, and in such
manner, as the board of directors shall determine, or if no such determination
is made, as the chief executive officer, or any other officer so authorized by
the board of directors or the chief executive officer, shall determine, subject
to the requirements of applicable law.
Section 2.5 Adjourned Meetings and Notice Thereof.
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Any shareholders' 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, represented either in person or by proxy, but in the absence of a
quorum, no other business may be transacted at such meeting, except as provided
in Section 2.7 of these By-Laws.
When a shareholders' meeting is adjourned to another time or place, notice
of the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken; except that if the
adjournment is for more than forty-five (45) days or if after the adjournment a
new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote thereat.
At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting.
Section 2.6 Voting.
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Except as provided below or as otherwise provided by the Articles of
Incorporation or these Bylaws, a shareholder shall be entitled to one vote for
each share held of record on the record date fixed for the determination of the
shareholders entitled to vote at a meeting or, if no such date is fixed, the
date determined in accordance with law. Upon the demand of any shareholder made
at a meeting before the voting begins, the election of directors shall be by
ballot. No shareholder will be permitted to cumulate votes at any election of
directors.
Any holder of shares entitled to vote on any matter may vote part of the
shares in favor of the proposal and refrain from voting the remaining shares or
vote them against the proposal, other than elections to office, but, if the
shareholder fails to specify the number of shares such shareholder is voting
affirmatively, it shall be conclusively presumed that the shareholder's
approving vote is with respect to all shares said shareholder is entitled to
vote.
Section 2.7 Quorum.
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A majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at any meeting of shareholders. If a quorum is
present, the affirmative vote
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of a majority of the shares represented at the meeting and entitled to vote on
any matter shall be the act of the shareholders, unless otherwise required by
the Articles of Incorporation.
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 2.8 Consent of Absentees.
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The transactions of any meeting of shareholders, if not duly called and
noticed, and wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum is present either in person or
by proxy, and if, either before or after the meeting, each of the shareholders
entitled to vote, not present in person or by proxy, signs 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 of a person at a meeting shall constitute a waiver of notice of
such meeting, except when a person objects, at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened; provided, that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by law or these By-Laws to be
included in the notice but not so included if such objection is expressly made
at the meeting.
Section 2.9 Action Without Meeting.
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Any action which may be taken at any meeting of shareholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the actions so taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes which would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted; provided, that except to fill a vacancy as
provided in Section 3.6 of these By-Laws, Directors may not be elected by
written consent except by unanimous written consent of all shares entitled to
vote for the election of Directors.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, notice of the following actions approved by shareholders
without a meeting by less than unanimous written consent shall be given to those
shareholders entitled to vote who have not consented in writing at least ten
(10) days before the consummation of the action authorized by such approval:
1. Approval of contract or other transaction between the Corporation and
one or more of its Directors, or between the Corporation and any corporation,
firm or association in which one or more of its Directors has a material
financial interest.
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2. Approval of any indemnification to be made by the Corporation of a
person who was or is a party or is threatened to be made a party to any
proceeding by reason of the fact that such person was or is an agent of the
Corporation.
3. Approval of the principal terms of a reorganization.
4. Approval of a plan of distribution of the shares, obligations or
securities of any other Corporation, or assets other than money, which is not in
accordance with the liquidation rights of the preferred shares as specified in
the Articles of Incorporation or a Certificate of Determination.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, prompt notice of the taking of any corporate action not
listed above which is approved by shareholders without a meeting by less than
unanimous written consent, shall be given to those shareholders entitled to vote
who have not consented in writing.
Such notice shall be given as provided in Section 2.4 of these By-Laws.
Section 2.10 Proxies.
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Every person entitled to vote shares may authorize another person or
persons to act by proxy with respect to such shares. No proxy shall be valid
after the expiration of eleven (11) months from the date thereof unless
otherwise provided in the proxy.
ARTICLE III
DIRECTORS
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Section 3.1 Powers.
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Subject to the limitations stated in the Articles of Incorporation, these
By-Laws, and the California Corporations Code as to actions which shall be
approved by the shareholders or by the affirmative vote of a majority of the
outstanding shares entitled to vote, and subject to the duties of Directors as
prescribed by the California Corporations Code, all corporate powers shall be
exercised by, or under the direction of, and the business and affairs of the
Corporation shall be managed by, the Board of Directors.
Section 3.2 Number of Directors.
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The number of directors of the Corporation shall be two, until changed in
accordance with applicable law.
Section 3.3 Election and Term of Office.
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The Directors shall be elected at each annual meeting of shareholders, but
if any such annual meeting is not held, or the Directors are not elected
thereat, the Directors may be elected at any special meeting of the shareholders
held for that purpose. All Directors shall hold office
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until the expiration of the term for which elected and until their respective
successors are elected, except in the case of the death, resignation or removal
of any Director. A Director need not be a shareholder.
Section 3.4 Resignation.
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Any Director may resign effective upon giving written notice to the
Chairman of the Board, the President, 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.
Section 3.5 Removal.
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The entire Board of Directors or any individual Director may be removed
from office prior to the expiration of their or his term of office, with or
without cause, in the manner and within the limitations provided by the
California Corporations Code.
No reduction of the authorized number of Directors shall have the effect of
removing any Director prior to the expiration of such Director's term of office.
Section 3.6 Vacancies.
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A vacancy on the Board of Directors shall be deemed to exist in case of the
death, resignation or removal of any Director, or if the authorized number of
Directors be increased, or if the shareholders fail at any annual or special
meeting of shareholders at which any Director or Directors are elected to elect
the full authorized number of Directors to be voted for at that meeting.
Vacancies in the Board of Directors may be filled by a majority of the
Directors then in office, whether or not less than a quorum, or by a sole
remaining Director. Each Director so elected shall hold office until the
expiration of the term for which he was elected and until his successor is
elected at an annual or a special meeting of the shareholders, or until his
death, resignation or removal.
The shareholders may elect a Director or Directors at any time to fill any
vacancy or vacancies not filled by the Directors. Any such election by written
consent other than to fill a vacancy created by removal requires the consent of
a majority of the outstanding shares entitled to vote. A Director may not be
elected by written consent to fill a vacancy created by removal except by
unanimous written consent of all shares entitled to vote for the election of
directors.
Section 3.7 Organization Meeting.
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Immediately after each annual meeting of shareholders, the Board of
Directors shall hold a regular meeting for the purpose of organization, the
election of officers and the transaction of other business. No notice of such
meeting need be given.
Section 3.8 Other Regular Meetings.
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The Board of Directors may provide by resolution the time and place for the
holding of regular meetings of the Board; provided, however, that if the date so
designated falls upon a legal holiday, then the meeting shall be held at the
same time and place on the next succeeding day which is not a legal holiday. No
notice of such regular meetings of the Board need be given.
Section 3.9 Calling Meetings.
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Meetings of the Board of Directors for any purpose or purposes shall be
held whenever called by the Chairman of the Board, the President or the
Secretary or any two Directors of the Corporation.
Section 3.10 Place of Meetings.
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Meetings of the Board of Directors shall be held at any place within or
without the State of California which may be designated in the notice of the
meeting, or, if not stated in the notice or there is no notice, designated by
resolution of the Board. In the absence of such designation, meetings of the
Board of Directors shall be held at the principal executive office of the
Corporation.
Section 3.11 Telephonic Meetings.
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Members of the Board may participate in a regular or special meeting
through use of conference telephone or similar communications equipment, so long
as all members participating in such meeting can hear one another.
Participation in a meeting pursuant to this Section 3.11 constitutes presence in
person at such meeting.
Section 3.12 Notice of Special Meetings.
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Written notice of the time and place of special meetings of the Board of
Directors shall be delivered personally to each Director, or sent to each
Director by mail, telephone or telegraph. In case such notice is sent by mail,
it shall be deposited in the United States mail at least four (4) days prior to
the time of the holding of the meeting. In case such notice is delivered
personally, or by telephone or telegraph, it shall be so delivered at least
forty-eight (48) hours prior to the time of the holding of the meeting. Such
notice may be given by the Secretary of the Corporation or by the persons who
called said meeting. Such notice need not specify the purpose of the meeting,
and notice shall not be necessary if appropriate waivers, consents and/or
approvals are filed in accordance with Section 3.13 of these By-Laws.
Section 3.13 Waiver of Notice.
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Notice of a meeting need not be given to any Director who signs a waiver of
notice, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
Director.
The transactions of any meeting of the Board of Directors, however called
and noticed or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice
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if a quorum is present and if, either before or after the meeting, each of the
Directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes thereof. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 3.14 Action Without Meeting.
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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 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 3.15 Quorum.
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A majority of the authorized number of Directors shall constitute a quorum
for the transaction of business. 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 the act of the Board of Directors, unless the Articles of
Incorporation, or the California Corporations Code, specifically requires a
greater number. In the absence of a quorum at any meeting of the Board of
Directors, a majority of the Directors present may adjourn the meeting as
provided in Section 3.16 of these By-Laws. A meeting at which a quorum is
initially present may continue to transact business, notwithstanding the
withdrawal of enough Directors to leave less than a quorum, if any action taken
is approved by at least a majority of the required quorum for such meeting.
Section 3.16 Adjournment.
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Any meeting of the Board of Directors, whether or not a quorum is present,
may be adjourned to another time and place by the vote of a majority of the
Directors present. Notice of the time and place of the adjourned meeting need
not be given to absent Directors if said time and place are fixed at the meeting
adjourned.
Section 3.17 Inspection Rights.
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Every Director shall have the absolute right at any time to inspect, copy
and make extra copies of, in person or by agent or attorney, all books, records
and documents of every kind and to inspect the physical properties of the
Corporation.
Section 3.18 Fees and Compensation.
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Directors shall not receive any stated salary for their services as
directors, but, by resolution of the Board, a fixed fee, 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, employee, or otherwise,
and receiving compensation therefor.
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ARTICLE IV
OFFICERS
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Section 4.1 Officers.
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The officers of the Corporation shall be a President, a Vice President, a
Secretary, and a Treasurer, who shall be the Chief Financial Officer of the
Corporation. The Corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board, one or more additional Vice Presidents, one
or more Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 4.3. One person may hold two or more
offices.
Section 4.2 Election.
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The officers of the Corporation, except such officers as may be appointed
in accordance with the provisions of Sections 4.3 and 4.5, shall be chosen
annually by the Board of Directors and each shall hold his office until he shall
resign or shall be removed or otherwise disqualified to serve, or his successor
shall be elected and qualified.
Section 4.3 Subordinate Officers, etc.
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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 these By-Laws or
as the Board of Directors may from time to time determine.
Section 4.4 Removal and Resignation.
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Any officer may be removed, either with or without cause, by a majority of
the Directors at the time in office, at any regular or special meeting of the
Board, or, except in case of an officer chosen by the Board of Directors, by an
officer upon whom such power of removal may be conferred by the Board of
Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall, not be necessary to
make it effective.
Section 4.5 Vacancies.
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A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these By-Laws for regular appointments to such office.
Section 4.6 Chairman of the Board.
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The Chairman of the Board, if there 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 be from time to time assigned to him
by the Board of Directors or prescribed by these By-Laws.
Section 4.7 President.
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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
President shall be the general manager and 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 shall preside at all meetings of the shareholders. He 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 president of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or by
these By-Laws.
Section 4.8 Vice President.
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In the absence or disability of the President, 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 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 or these By-Laws.
Section 4.9 Secretary.
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The Secretary shall keep, or cause to be kept, a book of minutes in written
form of the proceedings of the Board of Directors, committees of the Board, and
shareholders. Such minutes shall include all waivers of notice, consents to the
holding of meetings, or approvals of the minutes of meetings executed pursuant
to these By-Laws or the California Corporations Code. The Secretary shall keep,
or cause to be kept at the principal executive office or at the office of the
Corporation's transfer agent or registrar, a record of its shareholders, giving
the names and addresses of all shareholders and the number and class of shares
held by each.
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 By-Laws or by
law to be given, and 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 or these By-Laws.
Section 4.10 Treasurer and Chief Financial Officer.
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The Treasurer and Chief Financial Officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of account in
written form or any other form capable of being converted into written form.
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The Treasurer and Chief Financial Officer shall deposit all monies 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 shall disburse
all funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and Directors, whenever they request it, an account of
all of his transactions as Treasurer and Chief Financial Officer 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
these By-Laws.
Section 4.11 Assistant Secretary.
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The Assistant Secretary shall have all the powers, and perform all the
duties of, the Secretary in the absence or inability of the Secretary to act.
Section 4.12 Compensation.
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The compensation of the officers shall be fixed from time to time by the
Board of Directors, and no officer shall be prevented from receiving such
compensation by reason of the fact that he is also a Director of the
Corporation.
ARTICLE V
MISCELLANEOUS
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Section 5.1 Record Date.
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The Board of Directors may fix, in advance, a time in the future as the
record date for the determination of 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. Shareholders on the record date are
entitled to notice and to vote or receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares in the books of the Corporation after
the record date, except as otherwise provided by law. Said record date shall
not be more than sixty (60) or less than ten (10) days prior to the date of such
meeting, nor more than sixty (60) days prior to any other action.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than
forty-five (45) days from the date set for the original meeting.
If no record date is fixed by the Board of Directors, the record date shall
be fixed pursuant to the California Corporations Code.
Section 5.2 Inspection of Corporate Records
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The accounting books and records, and minutes of proceedings of the
shareholders and the Board of Directors and committees of the Board shall be
open to inspection upon written demand made upon the Corporation by any
shareholder or the holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to his interest as
a shareholder, or as the holder of such voting trust certificate. The record of
shareholders shall also be open to inspection by any shareholder or holder of a
voting trust certificate at any time during usual business hours upon written
demand on the Corporation, for a purpose reasonably related to such holder's
interest as a shareholder or holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney, and shall include
the right to copy and to make extracts.
Section 5.3 Execution of Corporate Instruments.
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The Board of Directors may, in its discretion, determine the method and
designate the statutory officer or officers, or other person or persons, to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such execution
or signature shall be binding upon the Corporation. Unless otherwise
specifically determined by the Board of Directors, formal contracts of the
Corporation, promissory notes, mortgages, evidences of indebtedness, conveyances
or other instruments in writing, and any assignment or endorsement thereof,
executed or entered into between the Corporation and any person, may be signed
by the Chairman of the Board, the President, any Vice President, the Secretary,
the Treasurer, any Assistant Secretary and any Assistant Treasurer of the
Corporation.
Section 5.4 Ratification by Shareholders.
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The Board of Directors may, subject to applicable notice requirements, in
its discretion, submit any contract or act for approval or ratification of the
shareholders at any annual meeting of shareholders, or at any special meeting of
shareholders called for that purpose; and any contract or act which shall be
approved or ratified by the affirmative 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 shareholders, shall be as valid and
binding upon the Corporation and upon the shareholders thereof as though
approved or ratified by each and every shareholder of the Corporation, unless a
greater vote is required by law for such purpose.
Section 5.5 Annual Report.
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For so long as the Corporation has less than 100 holders of record of its
shares, the mandatory requirement of an annual report is hereby expressly
waived. The Board of Directors may, in its discretion, cause an annual report
to be sent to the shareholders. Such reports shall contain at least a balance
sheet as of the close of such fiscal year and an income statement and statement
of changes in financial position for such fiscal year, and shall be accompanied
by any report thereon of independent accountants, or if there is no such report,
the certificate of an authorized officer of the Corporation that such statements
were prepared without audit in the books and records of the Corporation.
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A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of the Corporation may make a written request to
the Corporation for an income statement and/or a balance sheet of the
Corporation for the three-month, six-month or nine-month period of the current
fiscal year ended more than thirty (30) days prior to the date of the request,
and such statement shall be delivered or mailed to the person making the request
within thirty (30) days thereafter. Such statements shall be accompanied by the
report thereon, if any, of any independent accountants engaged by the
Corporation or the certificates of an authorized officer of the Corporation that
such financial statements were prepared without audit from the books and records
of the Corporation.
Section 5.6 Representation of Shares of Other Corporations.
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The President and Vice President of this Corporation are authorized to
vote, represent and exercise on behalf of the Corporation all rights incident to
any and all shares of any other corporation or corporations standing in the name
of this Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation and 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 and duly executed by said officers.
Section 5.7 Inspection of By-Laws.
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The Corporation shall keep in its principal executive office in this State
the original or a copy of the By-Laws as amended or otherwise altered to date,
which shall be open to inspection by the shareholders at all reasonable times
during office hours.
ARTICLE VI
SHARES OF STOCK
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Section 6.1 Form of Certificates.
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Certificates for shares of stock of the Corporation shall be in such form
and design as the Board of Directors shall determine and shall be signed in the
name of the Corporation by the Chairman of the Board, or the President or Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or any
Assistant Secretary. Each certificate shall state the certificate number, the
date of issuance, the number, class or series and the name of the record holder
of the shares represented thereby, the name of the Corporation, and, if the
shams of the Corporation are classified or if any class of shares has two or
more series, there shall appear the statement required by the California
Corporations Code.
Section 6.2 Transfer of Shares.
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Shares of stock may be transferred in any manner permitted or provided by
law. Before any transfer of stock is entered upon the books of the Corporation,
or any new certificate issued
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therefor, the older certificate, properly endorsed, shall be surrendered and
canceled, except when a certificate has been lost, stolen or destroyed.
Section 6.3 Lost Certificates.
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The Board of Directors may order a new certificate for shares of stock to
be issued in the place of any certificate alleged to have been lost, stolen or
destroyed, but in every such case, the owner or the legal representative of the
owner of the lost, stolen or destroyed certificates may be required to give the
Corporation a bond (or other adequate security) in such form and amount as the
Board may deem sufficient to indemnify it against any claim that may be made
against the Corporation (including any expense or liability) on account of the
alleged loss, theft or destruction of any such certificate or issuance of such
new certificate.
ARTICLE VII
INDEMNIFICATION
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Section 7.1 Indemnification by Corporation.
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Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, or was a director, officer, employee or
agent of a corporation which was a predecessor corporation of the Corporation or
of another enterprise at the request of such predecessor corporation, whether
the basis of such Proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the California General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said Law permitted
the Corporation to provide prior to such amendment) against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
--------- -------
Section 7.2 of this Article VII, the Corporation shall indemnify any such person
seeking indemnity in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification conferred
by this Section shall include the right to be paid by the Corporation expenses
incurred in defending any such Proceeding in advance of its final disposition to
the fullest extent authorized by the California General Corporation Law;
provided, however that, if required by the California
- --------
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General Corporation Law, the payment of such expenses incurred by such person in
advance of the final disposition of such Proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such person,
to repay all amounts so advanced if it should be determined ultimately that such
person is not entitled to be indemnified under this Section or otherwise.
Section 7.2 Right of Claimant to Bring Suit.
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If a claim under Section 7.1 of this Article VII is not paid in full by the
Corporation within ninety (90) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the California General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its board of directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the California General Corporation Law, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel, or its shareholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
Section 7.3 Indemnification of Employees and Agents of the Corporation.
----------- ----------------------------------------------------------
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification of and
advancement of expenses to directors and officers of the Corporation.
Section 7.4 Rights Not Exclusive.
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The rights conferred on any person by this Article VII above shall not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, By-Law,
agreement, vote of shareholders or disinterested directors or otherwise.
Section 7.5 Indemnity Agreements.
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The Board of Directors is authorized to enter into a contract with any
Director, officer, employee or agent of the Corporation, or any person who is or
was serving at the request of the Corporation as a Director, officer, employee
or agent of another corporation, partnership, joint
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venture, trust or other enterprise, including employee benefit plans, or any
person who was a director, officer, employee or agent of a corporation which was
a predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation, providing for indemnification rights
equivalent to or, if the Board of Directors so determines, greater than, those
provided for in this Article VII.
Section 7.6 Insurance.
----------- ---------
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any Director, officer, employee or agent of the Corporation
or another corporation (including a predecessor corporation), partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the California Corporations Code.
Section 7.7 Amendment, Repeal or Modification.
----------- ---------------------------------
Any amendment, repeal or modification of any provision of this Article VII
by the shareholders or the Directors of the Corporation shall not adversely
affect any right or protection of a Director or officer of the Corporation
existing at the time of such amendment, repeal or modification.
ARTICLE VIII
AMENDMENTS
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Section 8.1 Power of Shareholders.
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New By-Laws may be adopted or these By-Laws may be amended or repealed by
the affirmative vote of a majority of the outstanding shares entitled to vote or
by the written consent thereof, except as otherwise provided by law or by the
Articles of Incorporation.
Section 8.2 Power of Directors.
----------- ------------------
Subject to the right of shareholders as provided in Section 8.1 of these
By-Laws, By-Laws other than a By-Law or amendment thereof specifying or changing
the authorized number of Directors, or the minimum or maximum number of a
variable Board of Directors, or changing from a fixed to a variable Board of
Directors or vice versa, may be adopted, amended or repealed by the approval of
the Board of Directors.
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