Exhibit 3.109
AGREEMENT OF SHAREHOLDERS
OF
STRAIGHT DOWN, INC.
A California Corporation
The Shareholders Agreement is entered into and effective as of the date of
its execution by Jon Mark Hastings, Dennis Grant Steers and Wallace P. Rodgers,
the Shareholders.
WHEREAS, the Shareholders are all of the shareholders of Straight Down,
Inc., a close corporation, and desire to enter into a shareholders agreement to
provide for the management of the business, division of profits, distribution of
assets upon liquidation, and certain other matters; and
WHEREAS, the Shareholders believe it to be important to provide for
substantial restrictions on the transfer of shares, to provide for the
participation of each of the Shareholders in the business and affairs of the
Corporation, and to make other provisions with respect to the Corporation and
the relations of the Shareholders to it and among themselves, all as set forth
herein:
NOW, THEREFORE, in consideration of the agreements herein
contained, the Shareholders agree as follows:
1. Management and Control.
(a) Board of Directors. During the term of this Agreement, the Board
of Directors of the Corporation shall consist of the Shareholders of the
Corporation, and annual or other elections of directors are hereby waived. The
Corporation shall be managed and controlled in accordance with this Agreement.
Neither the
Board nor the Shareholders shall be required to hold annual, regular or
special meetings, and any action or decision made by the Board or the
Shareholders may be evidenced by any writing executed by the requisite number of
Shareholders, or otherwise as the Shareholders may agree. Each Shareholder, as a
member of the Board, however, agrees as such to consent to or vote in favor of
such resolutions as may be required by persons with whom the Corporation may
have business dealings to evidence corporate approvals or authorizations. Any
Shareholder may authorize any other Shareholder to represent or act as proxy for
the former at any meeting according to written instructions, general or
specific,of the authorizing Shareholder.
2
(b) Books, Records and Reports. The Shareholders shall cause the
Corporation to maintain the books, records and other documents required by
Section 1500 of the California General Corporation Law (the "Law").
Notwithstanding any waiver thereof,the Shareholders shall cause the Corporation
to furnish to the Shareholders an annual report referred to in Section 1501(a)
of the Law, which report need not be audited unless written request that such
report be audited is made by at least two Shareholders not less than sixty days
prior to the end of the year covered by the report.
(c) Shareholder Meetings. There shall be no regular meetings of the
Shareholders, but a special meeting may be called at any time in accordance with
Section 600(d) of the Law.
(d) Supermajority Requirement. All actions of substance shall
require the prior approval (by vote, or by written or oral consent) of the
Shareholders entitled to exercise not less than sixty-seven percent (67%) of the
voting power of the Corporation. "Actions of substance" are understood to
include all but the minor decisions of day-to-day business operations. Any
authority to take actions of substance may be delegated by like approval. It is
hereby recognized that this provision
3
gives effective veto power to Jon Mark Hastings and Dennis Grant Steers.
(e) There shall be two officers of the Corporation: Dennis Grant
Steers shall be President and Chief Executive Officer; Jon Mark Hastings shall
be Vice-President and Treasurer (Chief Financial Officer). The Shareholders may,
as an action of substance,change the number of officers of the Corporation or
change the identities of the officers. Any such change shall be evidenced by a
written resolution of the Shareholders, which shall be attached to the
Shareholders Agreement on file with the Corporation.
(f) The Shareholders agree that there shall be no Bylaws of the
Corporation. This Corporation is managed and controlled in accordance with this
Agreement, and it is hereby recognized that no useful purpose would be served by
having Bylaws of the Corporation in addition to this Agreement.
(g) The Shareholders may, as an action of substance, agree to cause
the Corporation to hire employees. The Shareholders may further agree to set
salaries for the Officers of the Corporation and to cause the Corporation to pay
such salaries as an expense of the
4
Corporation.
2. Distributions.
(a) Determination of Net Profit or Loss. For the purposes of this
Agreement, the net profit or loss of the Corporation for any accounting period
shall be its gross income less the Corporation's expenses during such period,
determined on a cash basis in accordance with generally accepted accounting
principles. Gross income shall include, but shall not be limited to, amounts
received upon or in respect of investments of the Corporation, gains realized
upon the sale or disposition of any proportionate any other income received by
the Corporation. Expenses shall include, but shall not be limited to, the
expenses of conducting the business, salaries, interest on any loans or
borrowings by the Corporation, taxes and assessments assessed to the Corporation
or levied upon its properties and payable by it, depreciation of and losses on
the Corporation's property (using such method of depreciation as the
Shareholders deem appropriate), bad debts and contingencies for which reserves
should properly be established and any and all other expenses incidental to the
conduct of the business of the Corporation.
5
(b) Regular Distributions of Net Profits. Unless the Shareholders shall
determine in good faith that the Corporation reasonably needs to retain the same
to meet its obligations or to maintain a sound financial condition in light of
its reasonable financial needs, and subject to the requirements of Sections 500
and 501 of the Law, the net profits of the Corporation for each fiscal year
shall be distributed to the Shareholders not later than thirty days after the
end of each such period in the same percentage as that percentage of the
outstanding shares of the Corporation held by each Shareholder. The Shareholders
may agree, as an action of substance, to distribute certain amounts as a draw to
any Shareholder as a credit against that Shareholder's percentage of net profits
next due. Any such amounts shall be subtracted from a Shareholder's distributive
share as above described, and until then shall be deemed a debt of the
Shareholder to the Corporation.
3. Dissolution.
(a) Restrictions on Voluntary Dissolution. The prior approval of the
Shareholders, as an action of substance, shall be required for the voluntary
dissolution of the Corporation under Chapter 19 of the Law, and each of the
Shareholders
6
hereby waives any right to the taking of such action by the approval,consent, or
vote of a lesser percentage.
(b) Procedure During Winding-Up; Distributions to Shareholders. Upon
commencement of proceedings for dissolution of the Corporation, the Corporation
shall cease to carry on business except as necessary to wind up its business and
distribute its assets. Upon dissolution, the assets of the Corporation shall be
applied as follows and in the following order of priority:
(i) The expenses of dissolution and of the liquidation of assets and
the debts and liabilities of the Corporation, other than debts owing to a
Shareholder, shall be paid first or provided for in accordance with law;
(ii) The principal of and accrued and unpaid interest on
indebtedness, if any, to a Shareholder shall next be paid in full. If the assets
of the Corporation shall be inadequate to pay all such amounts in full, all
accrued but unpaid interest thereon shall be first paid in full or in proportion
to such unpaid interest depending on the available assets, and thereafter the
principal amounts, unless by the terms of any such indebtedness it is
subordinate to any other
7
indebtedness to a Shareholder, in which case payment shall be made in accordance
with the subordination provisions of such indebtedness;
(iii) The balance, if any, of the assets of the Corporation shall
be distributed to the Shareholders in proportion to the number of shares held by
each.
4. Consideration for Shares.
Shares of the Corporation may be issued only for such consideration as
is determined from time to time by the Shareholders as an action of substance.
5. Restriction on Transfer of Shares.
Except as otherwise provided in this Paragraph 5, no shares of the
Corporation shall be sold or otherwise disposed of by any Shareholder until
after written notice of such intended sale or disposition shall have been
delivered to the Corporation, and until thirty days have expired subsequent to a
final determination of a price per share for such shares, all as hereinafter
provided
In the event any Shareholder proposes to sell or otherwise dispose of all
or any part of such Shareholder's shares, such Shareholder shall sign and
deliver to the Corporation a written notice stating such Shareholder's desire
8
to sell and dispose of the designated number of shares. Such Shareholder and the
Corporation shall then fix a price per share computed by determining the fair
market value of the net assets of the Corporation excluding "goodwill") on the
date of such notice, and multiplying the resulting figure by a fraction, the
numerator of which shall be one and the denominator of which shall be the number
of shares of the capital stock of the Corporation issued and outstanding as of
the date of such notice. in the event that the Shareholder and the Corporation
cannot agree on the price per share, computed as above, the Shareholder and the
Corporation shall each appoint an independent arbitrator. If either the
Shareholder or the Corporation fails to appoint an arbitrator, the arbitrator
appointee by the other shall have the power to act alone. The arbitrators thus
selected shall determine the price per share computed as above, and their
decision shall be final and conclusive upon the parties. In the event the two
arbitrators cannot agree on the price per share, the two arbitrators shall
appoint a third arbitrator, who shall receive the advice and counsel of the two
previous arbitrators, but the decision of the third arbitrator acting alone, as
to the price per share computed as above, shall be final, binding, and
9
conclusive upon the parties.
The Corporation shall have the prior option and right to purchase all or
any part of such shares for a period of sixty days after the final determination
of the price per share at the price thus determined. In the event the
Corporation does not exercise its option within the sixty day period with
respect to all the shares, each remaining Shareholder of the Corporation shall
have an option for a period of fifteen days next succeeding the expiration of
such sixty day period to purchase pro rata to the number of shares owned by such
Shareholder the shares remaining for sale at the price per share determined as
above. In the event options have not been exercised with respect to all of the
shares specified in the written notice pursuant to the options granted to the
Corporation and to the Shareholders as above set forth,Shareholders who exercise
their option within said fifteen day period shall have an additional option for
a period of five days next succeeding the expiration of such fifteen day period
to purchase all or any part of the balance of such shares at the price per share
determined as above. In the event there are two or more Shareholders who
exercise the last mentioned option for a total number of shares in excess of
10
the number available, the shares available for such option shall be allocated to
such Shareholders pro rata to the number of shares owned by each Shareholder.
If the Corporation and the remaining Shareholders do not exercise their
options to purchase all the shares set forth in the written notice, then the
Shareholder giving such written notice may sell all the remaining shares the
subject of that notice to third parties at the price per share determined as
above, not later than thirty days after the expiration of the last option. This
is subject, however, to the limitation of ten Shareholders for this Corporation,
a close corporation. Any attempted intervivos transfer which would violate this
requirement is void, and the Shareholders hereby agree to operate under said
restriction at all times and in all circumstances. If the selling Shareholder
wishes to sell or otherwise dispose of any such shares at a price per share less
than determined as above,or upon terms more favorable than previously offered to
the Corporation and the remaining Shareholders, as a condition precedent thereto
such shares must first have been offered to the Corporation and the remaining
Shareholders on the same terms and conditions in accordance with the procedures
and time periods hereinabove set forth.
11
The provisions of Paragraph 5 shall be applicable to all sales or other
dispositions of shares of the Corporation except (I) any transfer of shares to
the spouse, issue, or other heirs of a Shareholder upon the death of such
Shareholder, and (ii) any change in the respective interests in shares solely
between or among persons who beneficially hold shares as community
property,joint tenants, or tenants in common. Any transferee of shares of the
Corporation shall hold such shares subject to all the provisions of this
Paragraph 5, as well as subject to the other paragraphs and provisions of this
Agreement, and shall make no transfers other than as provided herein.
6. Legend.
Each certificate representing shares in this Corporation shall bear the
following legend:
"This Corporation is a close corporation. The number of holders
of record of its shares cannot exceed ten. Any attempted inter vivos
transfer which would violate this requirement is void. Refer to
Articles, Bylaws, and any Agreement on file with the Secretary of the
Corporation for further restrictions. The shares represented by this
certificate are subject to
12
additional transfer and other restrictions by a Shareholders Agreement
dated August 17, 1982, and are subject to a lien to secure any
indebtedness of the Shareholder to the Corporation."
7. Miscellaneous Provisions.
(a) Governing Law. This Agreement shall be governed and interpreted by and
construed in accordance with the laws of the State of California.
(b) Captions. The captions to the sections, sub-sections, and paragraphs in
this Agreement are inserted for convenience only and shall not affect the
construction or interpretation hereof.
(c) Successors. Anything in this Agreement to the contrary notwithstanding,
any transferee, successor, or assign, whether voluntary, by operation of law, or
otherwise, of the shares of the Corporation shall be subject to and bound by the
terms and conditions of this Agreement as fully as though such person was a
signatory hereto.
(d) Severability. If any term, provision, covenant, or condition of this
Agreement is held by a Court of competent jurisdiction to be invalid, void, or
unenforceable, it shall he deemed severed from the rest of this Agreement, which
shall
13
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
(e) Time. Time is of the essence of this Agreement.
(f) Filing of Agreement. A copy of this Agreement, as amended from time to
time, shall be filed with the Secretary of the Corporation for inspection by any
prospective purchaser of shares.
(g) Amendment. This Agreement may be amended only by a writing signed by
all holders of record of shares as of the date of said amendment.
(h) Fiscal Year. The fiscal year of the Corporation shall be the calendar
year.
14
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this
Seventeenth Day of August, Nineteen Hundred and Eighty Two.
Dennis Grant Steers
Jon Mark Hastings
Wallace F. Rodgers
The undersigned spouse of Wallace F. Rodgers hereby consents to his
execution of the foregoing Agreement, acknowledges that the Corporation is a
business interest that is subject to his sole management and control, agrees to
be bound by the terms of this Agreement and hereby irrevocably appoints him as
the agent the undersigned for purposes of executing and performing any actions
directly or indirectly relating to the Corporation and the foregoing Agreement
without further signature or consent or notice to the undersigned.
Dated: August 17, 1982
Lorie R. Rodgers
15