EXHIBIT 3(b)
AMENDED AND RESTATED
BYLAWS
OF
20th CENTURY INDUSTRIES,
A California Corporation
(As Further Amended Through February 25, 1997)
ARTICLE I. OFFICES
Section 1.01 Principal Executive Office. The principal executive office
of the corporation is hereby fixed at 6301 Owensmouth Avenue, Woodland Hills,
California 91367. The Board of Directors (hereinafter called the "Board") is
hereby granted full power and authority to change said principal office from
one location to another.
Section 1.02 OTHER OFFICES. 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 may from time to time determine or as the business
of the corporation may require.
ARTICLE II. SHAREHOLDERS
Section 2.01 Annual Meetings. The Annual Meeting of shareholders of the
corporation, for the purpose of electing directors and for the transaction of
such other proper
business as may come before such meeting, shall be held each year at 10:00
a.m. on the Tuesday of the week in May preceding that in which Memorial Day
falls, or such other date or time as may be fixed by the Board.(1)
Section 2.02 SPECIAL MEETINGS. Special Meetings of shareholders may be
called at any time for any purpose or purposes permitted under California law
by the Board, by the Chairman of the Board, by the President or by holders of
the common stock of the corporation entitled to cast not less than ten
percent (10%) of the votes entitled to be cast at such meeting.
Section 2.03 PLACE OF MEETINGS. All meetings of shareholders shall be
held either at the principal executive office of the corporation or at any
other location within or without the State of California, as shall be
determined from time to tine by the Board of Directors or as specified in the
respective notices or waivers of notice thereof.
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(1) Section 2.01, as amended by the Board of Directors on November 19,
1996.
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Section 2.04 NOTICE OF MEETINGS.
(a) Written notice of each Annual or Special Meeting of shareholders shall
be given not less than ten (10) nor more than sixty (60) days before the date
of the meeting to each shareholder entitled to vote thereat. Such notice
shall state the place, date, and hour of the meeting, and (i) in the case of
a Special Meeting, the general nature of the business to be transacted; or
(ii) in the case of the Annual Meeting, those matters which the Board, at the
time of the mailing of the notice, intends to present for action by the
shareholders, but any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the names of the nominees intended, at the time of the notice, to be
presented by management for election.
(b) Notice of a meeting of shareholders shall be given either personally
or by mail addressed, postage prepaid, to the shareholder at the address of
such shareholder appearing on the authorized record books of the corporation,
or if no such address appears or is given, by publication at least once in a
newspaper of general circulation in the City of Los Angeles,
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California. Notice of any meeting of shareholders shall not be required to
be given to any shareholder who shall have waived such notice; and such
notice shall be deemed to be waived by any shareholder who shall attend such
meeting in person or by proxy, except a shareholder who shall attend such
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the grounds that the meeting
has not been lawfully called or convened. An affidavit of mailing of any
notice or report in accordance with the provisions of the California General
Corporation Law, executed by the Secretary, Assistant Secretary or any
transfer agent, shall be prima facie evidence of the giving of notice or
report.
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Section 2.05 QUORUM AND VOTE REQUIRED.
(a) At any meeting of shareholders, holders of record of shares of stock
having a majority of the votes entitled to be cast thereat, represented in
person or by proxy, shall constitute a quorum for the transaction of
business. The affirmative vote of the holders of shares of stock having a
majority of the votes so constituting a quorum shall be considered to be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by the California General Corporation Law or by the
Articles of Incorporation of the corporation.
(b) The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment,
notwithstanding withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by holders
of shares of stock having at least a majority of the number of votes required
to constitute a quorum.
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Section 2.06 ADJOURNED MEETING AND NOTICE THEREOF.
(a) Any meeting of shareholders, whether or not a quorum is present, may
be adjourned from time to time. In the absence of a quorum
[except as provided in Section 2.05(b) of this Article], no other business
may be transacted at such adjourned meeting.
(b) It shall not be necessary to give any notice of the time and place of
an adjourned meeting or of the business to be transacted thereat, other than
by announcement at the meeting at which such adjournment is taken; provided,
however, that when a meeting of shareholders is adjourned for more than
fifteen (15) days or, if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the
case of an original meeting.
Section 2.07 VOTING.
(a) The shareholders entitled to notice of any meeting or to vote at any
such meeting shall be only persons in whose name shares stand on the share
records of the corporation
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on the record date determined in accordance with Section 2.08 of this
Article. Persons holding shares of the corporation in a fiduciary capacity
shall be entitled to vote such shares. Persons whose shares are pledged shall
be entitled to vote the pledged shares, unless in the transfer by the
pledgor, the pledgor shall have expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his proxy, may represent such
shares and vote thereon. Shares having voting power standing of record in
the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or with respect to which two or more persons have the same
fiduciary relationship, shall be voted by any one of the registered holders,
either in person or by proxy.
(b) The vote at any meeting of shareholders on any question need not be by
written ballot unless so directed by the Chairman of the meeting or so
requested by any shareholder at such meeting. On a vote by written ballot,
each ballot shall be signed by the shareholder voting, or by his duly
appointed proxy
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if there be such proxy, and it shall state the number of shares voted.
Section 2.08 RECORD DATE.
(a) The Board may fix in advance a 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 rights, or entitled to exercise any rights in respect
to any other lawful action. The record date so fixed shall be not more than
sixty (60) nor less than ten (10) days prior to the date of the meeting, nor
more than sixty (60) days prior to any of the other aforementioned actions.
When a record date is so fixed, only shareholders 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 of the rights, as the
case may be, notwithstanding any transfer of shares on the books of the
corporation after the record date. 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
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date for the adjourned meeting. The Board shall fix a new record date if the
meeting is adjourned for more than fifteen (15) days from the date set for
the original meeting.
(b) If no record date is fixed by the Board, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the fifth (5th) business day
next preceding the day on which notice is given or, if notice is waived, at
the close of business on the fifth (5th) business day next preceding the day
on which the meeting is held. If no record date is fixed by the Board, the
record date for determining shareholders for any other purpose shall be at
the close of business on the fifth (5th) business day next preceding the day
on which the Board adopts the resolution relating thereto, or the sixtieth
(60th) day prior to the date of such other action, whichever is later.
Section 2.09 CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are 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
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after the meeting, each of the persons entitled to vote, not present in
person or by proxy, signs a written waiver of notice or a consent to the
holding of the meeting or an approval of the minutes thereof. All such
waivers, consents, or approvals shall be filed with the corporate records or
be made a part of the minutes of such meeting.
Section 2.10 ACTION WITHOUT MEETING. Any action which, under any
provision of law, may be taken at any Annual or Special Meeting of
shareholders, may be taken without a meeting and without prior notice thereof
if a consent in writing, setting forth the actions so taken, shall be signed
by shareholders having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Unless a record date
for voting purposes be fixed as provided in Section 2.08 of this Article, the
record date for determining shareholders entitled to give consent pursuant to
this Section 2.10, when no prior action by the Board has been taken, shall be
the day on which the first written consent is given.
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Section 2.11 PROXIES. Every person entitled to vote shares has the right
to do so either in person or by one or more persons authorized by a written
proxy executed by such shareholder and filed with the Secretary of the
corporation before or at the meeting; provided, however, that no proxy may be
voted or acted upon after eleven (11) months from the date set forth on the
said proxy unless the proxy shall provide therein for a longer period. A
proxy may be revoked by a writing delivered to the Secretary of the
corporation stating that the proxy is revoked, or by a subsequent proxy
executed by the person executing the prior proxy and presented to the
meeting, or, as to any meeting, by actual attendance at such meeting in
person and voting in person by the person executing the proxy.
Section 2.12 CONDUCT OF MEETINGS. The Chairman of the corporation or his
designee (which designee shall be an executive officer of the corporation),
or in the absence of the Chairman and any such designee the Vice Chairman,
shall preside as Chairman at all meetings of shareholders. The Chairman
shall conduct each such meeting in a businesslike and fair manner, but shall
not be obligated to follow any technical, formal or
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parliamentary rules or principles of procedure. The Chairman's ruling on
procedural matters shall be conclusive and binding on all shareholders;
unless at the time of such ruling a request for a vote is made by a
shareholder entitled to vote and who is represented in person or by proxy at
the meeting, in which case the decision of shareholders holding a majority of
the votes represented at the meeting and entitled to be cast shall be
conclusive and binding on all Shareholders. Without limiting the generality
of the foregoing, the Chairman shall have all of the powers usually vested in
the chairman of a meeting of Shareholders.
Section 2.13 INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board may appoint inspectors of election to act at the
meeting and any adjournment thereof. If inspectors are not appointed, or if
any persons so appointed fail to appear or refuse to act, the Chairman of
such meeting may appoint inspectors at the meeting. The number of inspectors
shall be either one or three. Each inspector so appointed shall first
subscribe an oath to faithfully execute the duties of an inspector at such
meeting with strict impartiality and according
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to the best of his ability. Such inspectors shall have the duties prescribed
by Section 707(b) of the California General Corporation Law and they (i)
shall decide upon the qualification of those entitled to vote, (ii) shall
report the number of shares represented at the meeting and entitled to vote
on the question presented, (iii) shall conduct the balloting and accept the
votes, and (iv) when the voting is completed, shall ascertain and report the
number of votes respectively for and against each question presented.
Reports of the inspectors shall be in writing and subscribed and delivered by
them to the Secretary of the corporation. If there are three inspectors of
election, the decision, act, or certificate of a majority is effective in all
respects as the decision, act or certificate of all.
ARTICLE III. DIRECTORS
Section 3.01 Powers. Subject to any limitation of the Articles of
Incorporation, of these Bylaws, and of actions required by law to be approved
by the shareholders, the business and affairs of the corporation shall be
managed and all corporate powers shall be vested in, and exercised by or
under the direction of the Board of Directors. The Board may, as permitted
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by law, delegate the management of the day-to-day operation of the business
of the corporation to a management company or other persons or officers of
the corporation, provided that the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised under the
ultimate direction and policies of the Board.
Section 3.02 NUMBER OF DIRECTORS. The authorized number of directors of
the corporation shall be eleven.(2)
Section 3.03 ELECTION AND TERM OF OFFICE.
(a) Directors will be elected in the manner provided herein at each Annual
Meeting of shareholders, but if such Annual Meeting of shareholders is not
held or the directors are not elected thereat, the directors may be elected
at any Special Meeting of shareholders held for that purpose. Each director,
including a director elected to fill a vacancy, shall hold office until the
next Annual Meeting of shareholders and
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(2) Section 3.02, as amended by the Board of Directors on February 25,
1997.
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until a successor has been duly elected and qualified, or until he or she
shall resign or shall have been removed.
(b) At each election, the persons receiving the greatest number of votes
from the class of stock entitled to vote therefor, up to the number of
directors then to be elected by such class, shall be the persons then
elected. The election of directors shall be subject to any provisions
contained in the Articles of Incorporation relating thereto, and to any
provisions of California law for cumulative voting in the election of
directors. Nominations of persons to serve as directors shall be submitted
to the Secretary of the corporation at the meeting of shareholders at which
directors will be elected.
Section 3.04 RESIGNATION. Any director may resign at any time by giving
written notice to the Board or to the Chairman of the Board, the President or
the Secretary of the corporation. Any such resignation shall take effect at
the times specified therein or, if the time be not specified, it shall take
effect immediately upon its receipt; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it
effective. If a resignation is to be
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effective at a future time, a successor may be elected to take office when
the resignation becomes effective.
Section 3.05 VACANCIES.
(a) A vacancy or vacancies in the Board 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 holders of any class of stock
fail at any Annual or Special Meeting of shareholders at which any directors
are elected to elect the full authorized number of directors to be voted for
by such class at said meeting.
(b) The Board may declare vacant the office of a director who has been
declared of unsound mind by an order of court of duly authorized jurisdiction
or a director who has been convicted of a felony. Except to the extent it
would be contrary to the Articles of Incorporation or law, any director may
be removed at any time, with or without cause, by the affirmative vote of the
holders of a majority of the voting power of the class of stock entitled to
elect such director given at a Special Meeting of shareholders called for
that purpose; provided,
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however, that no director may be removed (unless the entire Board of
Directors is removed) when the votes from the class of stock entitled to
elect such director cast against such removal, or not consenting in writing
to such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the total number of votes entitled to be
cast by such class were cast (or if such action is taken by written consent,
all shares entitled to vote were voted) and the entire number of directors
authorized to be elected by such class at the time of the directors' most
recent election were then being elected.
(c) No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of the director's
term of office.
(d) Except as otherwise provided in the Articles of Incorporation, any
vacancy on the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by the vote of the majority of the remaining directors,
although less than a quorum; provided, however, that a vacancy occurring by
reason of removal of a director by the vote of shareholders entitled to
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remove such director may be filled only by the vote of such shareholders.
The shareholders of a class of stock entitled to elect a director may elect
such director at any time to fill a vacancy not filled by the directors, and
any such election by such shareholders shall require the consent of a
majority of the votes of such shareholders entitled to be cast therefor;
provided, however, that no director shall be elected by written consent to
fill a vacancy created by removal of any director, except by the unanimous
written consent of all shareholders of the class of stock entitled to vote
for the election of such director. Each director chosen to fill a vacancy
shall hold office until the next Annual Meeting of shareholders and until his
successor shall have been elected and qualified or until he shall resign or
shall have been removed.
Section 3.06 PLACE OF MEETINGS. All meetings of the Board shall be held
either at the principal executive office of the corporation or at any other
location within or without the State of California as shall be determined,
from time to time, by the Board of Directors, or as specified in the
respective notices or waivers of notice thereof.
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Section 3.07 FIRST MEETING. Immediately following each Annual Meeting of
shareholders the Board shall meet for the purpose of organization, selection
of a Chairman of the Board, election of officers, and the transaction of any
other proper business. Except as provided by law, notice of such First
Meeting is hereby dispensed with.
Section 3.08 REGULAR MEETINGS. The Board of Directors shall hold Regular
Meetings on the last Tuesday of February and August, and in November on the
Tuesday of the week preceding that in which Thanksgiving falls, at 10:00
a.m., but the Executive Committee of the Board, if any is created, may meet
more often if the Committee deems it necessary or appropriate. Except as
provided by law, notice of Regular Meetings of the Board of Directors is
hereby dispensed with.
Section 3.09 SPECIAL MEETINGS.
(a) Special Meetings of the Board may be called at any time by the
Chairman of the Board, the President, or the Secretary or by any two
directors.
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(b) Special Meetings of the Board shall be held upon at least four days'
written notice or 48 hours' notice given personally or by telephone,
telegraph, telex or other similar means of communication. Any such notice
shall be addressed or delivered to each director at such director's address
as it is shown upon the records of the corporation or as may have been given
to the corporation by the director for purposes of notice.
Section 3.10 QUORUM. The presence of a majority of the authorized number
of directors shall be required to constitute a quorum of the Board of
Directors for the transaction of business at any meeting of the Board, except
to adjourn as hereinafter provided. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board, unless a greater number of
directors is required for any specific action by law, or by these Bylaws, or
by the Articles of Incorporation of the corporation. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, and every act or
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decision approved by at least a majority of the number of directors required,
as noted above, to constitute a quorum for such meeting shall be regarded as
the act or decision of the Board, unless a greater number of directors is
required by law, by the Bylaws, or by the Articles of Incorporation of the
corporation. The directors shall act only as a Board, and the individual
directors shall have no power as such, unless such power be expressly
conferred upon a director by a duly adopted resolution of the Board.
Section 3.11 PARTICIPATION IN MEETINGS BY COMMUNICATIONS EQUIPMENT.
Members of the Board may participate in a meeting of the Board through use of
telephone conference, electronic video screen communication, or other
communications equipment, but only so long as each member participating can
participate with the others concurrently and each member is provided the
means of participating in all matters before the Board, including the
capacity to propose, or to interpose an objection, to a specific action to be
taken by the corporation. With respect to any member of the Board of
Directors who participates in a meeting of the Board of Directors by
conference
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telephone or other communications equipment, the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer or other
party duly chairing the meeting shall verify by voice recognition or any
other means reasonably selected at the outset of such meeting (i) the
identity of that member, and (ii) that statements, questions, actions or
votes by members so participation are made by such members and not by persons
who are not permitted to participate as directors.(3)
Section 3.12 WAIVER OF NOTICE. The transactions of any meeting of the
Board, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum
be present at such meeting, and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, and a consent
to the holding of such meeting, or an approval of the minutes thereof. All
such waivers and consents or approvals shall be filed with the corporate
records or be made a part of the minutes of the meeting.
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(3) Section 3.11, as amended by the Board of Directors on February 25,
1997.
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Section 3.13 ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any meeting of directors to another time
and place. If the meeting is adjourned for more than twenty-four (24) hours,
notice of such adjournment to another time or place shall be given prior to
the time of the reconvening of the adjourned meeting to the directors who
were not present at the meeting at the time of the adjournment.
Section 3.14 FEES AND COMPENSATION. Directors and members of committees
may receive such compensation, if any, for their services and such
reimbursement for expenses, as may be fixed or determined by the Board.
Section 3.15 ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting of the Board if all
members of the Board shall individually or collectively consent in writing to
such action. Such unanimous written consent or consents shall have the same
effect as a unanimous vote of the Board, and shall be filed with the minutes
of the proceedings of the Board.
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Section 3.16 COMMITTEES.
(a) The Board may, by resolution passed by a majority of the authorized
number of directors, designate one or more committees of the Board, each
committee to consist of one or more of the directors of the corporation.
Among the committees which may be appointed may be an Executive Committee
which shall have and may exercise all the powers and authority of the Board
in the management of the affairs of the corporation between Regular or
Special meetings of the Board.
(b) All committees shall have and may exercise the powers and authority of
the Board in the management of the business and affairs of the corporation to
the extent provided in the resolution of the Board creating said committees;
but no committee shall have any power or authority in reference to (i) the
approval of any action which requires shareholders' approval or approval of
the outstanding shares; (ii) amending the Articles of Incorporation; (iii)
adopting an agreement of merger or consolidation; (iv) recommending to the
shareholders the sale, lease or exchange of all or substantially all of the
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corporation's properties and assets; (v) recommending to the shareholders a
dissolution of the corporation or a revocation of the dissolution; (vi)
amending or repealing the Bylaws of the corporation; (vii) the filling of
vacancies on the Board or on any committee; (viii) the fixing of compensation
of directors for serving on the Board or on any committee; (ix) amending or
repealing any resolution of the Board which by its express terms is not so
amendable or repealable by the Board; (x) declaring a distribution to
shareholders; and (x) issuing shares.
(c) The Board shall have the power to prescribe the manner in which the
proceedings of any such committee shall be conducted. Unless the Board or
such committee shall otherwise provide, the regular or special meetings and
other actions of any such committee shall be governed by the provisions in
this Article applicable to meetings and actions of the Board. Written
Minutes shall be kept of each meeting of each committee of the Board.
Section 3.17 OFFICERS OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders (or shall designate an executive
officer of the
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corporation to so preside, as provided in Section 2.12 of these Bylaws) and
at all meetings of the Board. The Board also shall have a Vice-Chairman of
the Board who shall preside at meetings of shareholders (in the absence or
disability of the Chairman and in the absence of a designee of the Chairman
to preside as provided in Section 2.12 of these Bylaws) and the Board of
Directors (in the absence or disability of the Chairman of the Board). The
Chairman and Vice-Chairman shall have such other powers and duties as are
specifically designated by the Board. The Board may appoint individuals to
serve as a Chairman Emeritus or Director Emeritus. A Chairman Emeritus or
Director Emeritus shall have no duties or responsibilities, and shall not be
entitled to vote in their capacity as Chairman Emeritus or Director Emeritus
in connection with any meeting or proceeding of the Board and may be
appointed or removed at the pleasure of the Board. A Chairman Emeritus or
Director Emeritus shall not be deemed to be a member of the Board for any
purpose whatsoever, solely by reason of such designation.
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ARTICLE IV. OFFICERS
Section 4.01 Officers. The officers of the corporation shall be a
Chairman of the Board, a Vice-Chairman of the Board, a Chief Executive
Officer, a President, a Secretary, and a Chief Financial Officer. The
Corporation may also have at the discretion of the Board such other officers,
each to hold office for a period, and have authority to perform such duties
as the Board may from time to time determine.
Section 4.02. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders (or shall designate an executive
officer of the corporation to so preside, as provided in Section 2.12 of
these Bylaws) and at all meetings of the Board of Directors.
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Section 4.03. VICE-CHAIRMAN OF THE BOARD. The Vice-Chairman of the Board
shall perform the duties of the Chairman, during the Chairman's absence or
disability.
Section 4.04 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the General Manager of the corporation and shall have, subject to the
control of the Board, general supervision and direction of the business and
affairs of the corporation.
Section 4.05 PRESIDENT. The President shall have the general powers and
duties of management as are described by the Board.
Section 4.06. SECRETARY. The Secretary shall be responsible for the
maintenance of the corporate records of the Company, such as the Articles of
Incorporation, Bylaws, minutes and list of shareholders. The Secretary shall
be responsible for the maintenance of the list of shareholders which may be
delegated to a transfer agent. The Secretary shall give or cause to be given
notice of all meetings of shareholders and of the Board and any committees of
the Board required by the Bylaws or
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by law to be given. The Secretary shall have other powers and duties as may
be described by the Board.
Section 4.07. CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the
corporation shall maintain or cause to be maintained adequate and correct
accounts of the properties, and financial and business transactions of the
Corporation, and shall send or cause to be sent to the shareholders of the
Corporation such financial statements and reports as are by law and these
Bylaws required to be sent to them.
Section 4.08 APPOINTMENT. The Chairman of the Board, the Vice-Chairman of
the Board, and the Chief Executive Officer, the President and Chief Operating
Officer, the Chief Financial Officer and the Secretary shall be elected by
the Board. Other officers may be elected or appointed and their duties
prescribed by the Board or the Chief Executive Officer. If such appointment
is by the Chief Executive Officer, it shall terminate at the next meeting of
the Board unless the Board affirms the appointment.
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Section 4.09. REMOVAL AND RESIGNATION.
(a) All officers shall serve as officers and employees of the corporation
at the pleasure of the Board and may be removed from office, and their
employment may be terminated with or without cause, and with or without
notice:
(i) by the Board, or
(ii) by the Chief Executive Officer, prior to the affirmation of the
officer's appointment by the Board if such officer was appointed by the
Chief Executive Officer, or
(iii) by the Chief Executive Officer, with the concurrence or
ratification of the Board, or the Executive Committee of the Board.
No officer of the corporation shall have any employment status other than
that of an "at will" employee whose employment can be terminated at any time
pursuant to the procedures set forth in this Section 4.09, unless there is a
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written agreement altering this "at will" employment status, approved by a
resolution of the board before it is binding and effective.
(b) Any officer may resign at any time without prejudice to the rights of
the corporation under any contract to which the corporation is a party by
giving written notice to the Board, or to the Chief Executive Officer or to
the Secretary of 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 provided therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.10. VACANCIES. A vacancy of any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed by these Bylaws for the regular appointment to such
office.
Section 4.11 RETIREMENT OF OFFICERS. Provided that the exemption
conditions set forth in applicable Federal and California statutes are
satisfied (e.g. 29 USC Section 631(c); 29 CFR Sections 1625.12 and 1627.17;
Cal. Govt. Code Section
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12942(c) and FEHC Regulation Subsection 7296(c)(2)), each officer elected or
required to be elected by the Board shall retire as of the last day of the
month in which such officer's 65th birthday occurs; however, such officer may
continue to be employed for such additional period of time, and under such
conditions as are specifically authorized by resolution of the Board of
Directors.
ARTICLE V. CONTRACTS, CHECKS,
DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 EXECUTION OF CONTRACTS. Except as these Bylaws may otherwise
provide, the Board may, by duly adopted resolution, authorize any officer or
agent of the corporation to enter into any contract or execute any instrument
in the name and on behalf of the corporation, and such authority may be
general or confined to specific instances; and unless so authorized by the
Board or by these Bylaws, 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 or to render it liable for any purpose or in any amount.
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Section 5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness issued in the name
of or which are payable to the corporation, shall be signed by or endorsed by
such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such person shall give such
bond, if any, as the Board may require.
Section 5.03 DEPOSIT. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositories as the Board may select, or as
may be selected by any Board committee, officer, assistant, agent or attorney
of the corporation to whom such power shall have been delegated by the Board.
For the purpose of deposit and for the purpose of collection for the account
of the corporation, the President, Secretary, any Vice-President or the
Treasurer (or any other officer, assistant, agent or attorney of the
corporation who shall from time to time be determined by the Board) may
endorse, assign and deliver checks, drafts and other orders for
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the payment of money which are payable to the order of the corporation.
Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from time to
time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may
select or as may be selected by any Board committee, officer, assistant,
agent or attorney of the corporation to whom such power shall have been
delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE VI. SHARES AND THEIR TRANSFER
Section 6.01 Certificates for Shares.
(a) Every owner of shares of the corporation shall be entitled to have a
certificate or certificates, to be in such form as the Board shall prescribe,
certifying the number and class of shares of the corporation owned by him. The
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certificates representing such shares shall be numbered in the order in
which they shall be issued, and shall be signed in the name of the
corporation by the Chairman of the Board, or by the President and by the
Secretary or Assistant Secretary, or by the duly appointed transfer agent or
registrar of the corporation. Any of the signatures on the certificates may
be a facsimile signature, provided that at least the signature of the
corporation's transfer agent or registrar on the certificate is an original
signature. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon any such certificate shall
thereafter have ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may nevertheless be issued by
the corporation with the same effect as though the person who signed such
certificate, or whose facsimile signature shall have been placed thereupon,
were such officer, transfer agent or registrar at the date of issue.
(b) A record shall be kept of the respective names of the persons, firms
or corporations owning the shares represented by such certificates, the
number and classes of
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shares represented by such certificates, respectively, and the respective
issuance dates thereof, and in case of cancellation, the respective dates of
cancellation. Every certificate surrendered to the corporation for exchange
or transfer shall be cancelled, and no new certificate or certificates shall
be issued in exchange for any existing certificate until such existing
certificate shall have been so cancelled, except in cases provided for in
Section 6.04.
Section 6.02 TRANSFER OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the registered holder
thereof, or by his attorney thereunto authorized by written power of attorney
duly executed and filed with the Secretary of the corporation or with a
transfer agent duly appointed as provided in Section 6.03, and upon surrender
of the certificate or certificates for such shares properly endorsed and the
payment of all required taxes thereon. The person in whose name shares of
stock stand on the books of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation. Whenever any transfer of shares
shall be made for collateral security purposes, and not
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absolutely, such fact shall be expressly stated in the entry of transfer if,
when the certificate or certificates shall be presented to the corporation
for transfer, both the transferor and the transferee request the corporation
to do so.
Section 6.03 REGULATIONS. The Board may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for shares of the
corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer agents and one or more registrars, and may require all
certificates for shares to bear the signature or signatures or facsimiles
thereof of any of them.
Section 6.04 LOST, STOLEN, DESTROYED, AND MUTILATED CERTIFICATES. In any
case of loss, theft, destruction, or mutilation of any certificate of shares,
another certificate may be issued in its place upon proof of such loss,
theft, destruction, or mutilation, and upon the giving of a bond of indemnity
to the corporation in such form and in such sum as the Board may direct;
provided, however, that a new certificate may
37
be issued without requiring any bond when, in the judgment of the Board, it
is appropriate and proper so to do.
ARTICLE VII. INDEMNIFICATION
Section 7.01 For the purposes of this Article VII, "agent" means any
person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation; "proceeding" means
any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses" includes without
limitation attorneys' fees and any expenses of establishing a right to
indemnification under Section 7.04 or Section 7.05(d) of this Article VII.
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Section 7.02 The corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an
agent of the corporation, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the corporation and, in
the case of a criminal proceeding, had no reasonable cause to believe the
conduct of such person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to
be in the best interests of the corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
Section 7.03 The corporation shall have power to indemnify any person who
was or is a party or is threatened to be
39
made a party to any threatened,
pending or completed action by or in the right of the corporation to procure
a judgment in its favor by reason of the fact that such person is or was an
agent of the corporation, against expenses actually and reasonably incurred
by such person in connection with the defense or settlement of such action if
such person acted in good faith, in a manner such person believed to be in
the best interests of the corporation and its shareholders.
No indemnification shall be made under this Section 7.03 for any of the
following:
(a) In respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation in the performance of such
person's duty to the corporation and its shareholders, unless and only to the
extent that the court in which such proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for expenses
and only to the extent that the court shall determine;
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(b) Of amounts paid in settling or otherwise disposing of a pending action
without court approval; or
(c) Of expenses incurred in defending a pending action which is settled or
otherwise disposed of without court approval.
Section 7.04 To the extent that an agent of the corporation has been
successful on the merits in defense of any proceeding referred to in Section
7.02 or Section 7.03 or in defense of any claim, issue or matter therein, the
agent shall be indemnified against expenses actually and reasonably incurred
by the agent in connection therewith.
Section 7.05 Except as provided in Section 7.04, any indemnification under
this Article VII shall be made by the corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the applicable standard
of conduct set forth in Section 7.02 or Section 7.03, by any of the following:
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(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) If such a quorum of directors is not obtainable, by independent legal
counsel in a written opinion;
(c) Approval by the affirmative vote of the holders of a majority of the
shares of common stock of the corporation entitled to vote represented at a
duly held meeting at which a quorum is present or by the written consent of
the holders of a majority of the outstanding shares of common stock entitled
to vote. For this purpose, the shares owned by the person to be indemnified
shall not be considered outstanding and shall not be entitled to vote
thereon; or
(d) The court in which such proceeding is or was pending upon application
made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
corporation.
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Section 7.06 Expenses incurred in defending any proceeding may be advanced
by the corporation prior to the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of the agent to repay such amount
if it shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this Article VII.
Section 7.07 The indemnification provided by this Article VII shall not be
deemed exclusive of any other rights to which those seeking indemnification
may be entitled under these Bylaws or under any agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, to the extent such additional rights to indemnification are
authorized in the Articles of Incorporation. The rights to indemnity
hereunder shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors and administrators of the person. Nothing contained in this
Article VII shall affect any right to indemnification to which
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persons other than such directors and officers may be entitled by contract or
otherwise.
Section 7.08 No indemnification or advance shall be made under this
Article VII, except as provided in Section 7.04 or Section 7.05(d), in any
circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles of
Incorporation, these Bylaws, a resolution of the shareholders or an agreement
in effect at the time of the accrual of the alleged cause of action asserted
in the proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed by
a court in approving a settlement.
Section 7.09 The corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any liability
asserted against or incurred by
44
the agent in such capacity or arising out of the agent's status as such
whether or not the corporation would have the power to indemnify the agent
against such liability under the provisions of this Article VII. The fact
that the corporation owns all or a portion of the shares of the company
issuing a policy of insurance shall not render this Section inapplicable if
either of the following conditions are satisfied:
(a) If the Articles of Incorporation authorize indemnification in excess
of that authorized in this Article VII and the insurance provided by this
Section is limited as indemnification is required to be limited by paragraph
(11) of subdivision (a) of Section 204 of the California Corporations Code; or
(b) (i) The company issuing the insurance policy is organized, licensed
and operated in a manner that complies with the insurance laws and
regulations applicable to its jurisdiction of organization;
(ii) The company issuing the policy provides procedures for processing
claims that do not permit that company
45
to be subject to the direct control of the corporation that purchased that
policy; and
(iii) The policy issued provides for some manner of risk sharing between
the issuer and purchaser of the policy, on the one hand, and some
unaffiliated person or persons, on the other, such as by providing for more
than one unaffiliated owner of the company issuing the policy or by providing
that a portion of the coverage furnished will be obtained from some
unaffiliated insurer or reinsurer.
Section 7.10 The provisions of this Article VII do not apply to any
proceeding against any trustee, investment manager or other fiduciary of any
employee benefit plan in such person's capacity as such, even though such
person may also be an agent of the employer corporation as defined in Section
7.01 of this Article VII. The corporation shall have power to indemnify such
a trustee, investment manager or other fiduciary to the extent permitted by
subdivision (f) of Section 207 of the California Corporations Code.
ARTICLE VIII. MISCELLANEOUS
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Section 8.01 Seal. The Board shall provide a corporate seal, which shall
be in the form of a circle and shall bear the name of the corporation and
words and figures showing that the corporation was incorporated in the State
of California and the year of the incorporation.
Section 8.02 WAIVER OF NOTICES. Whenever notice is required to be given
by these Bylaws or the Articles of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice.
Section 8.03 FISCAL YEAR. The fiscal year of the corporation shall be
that twelve-month period ending on December 31 in each year.
Section 8.04 DIVIDENDS. The Board may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and on
the terms and conditions provided by law, subject to any legal, regulatory or
contractual restrictions to which the corporation is then subject.
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Section 8.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman
of the Board or any officer or officers authorized by the Board or by the
Chairman of the Board are each 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,
including subsidiaries of the corporation. The authority granted herein may
be exercised either by any such officer in person or by any other person
authorized to do so by proxy or power of attorney duly executed by said
officer.
Section 8.06 INSPECTION OF BYLAWS. The corporation shall keep at its
principal executive office the original or a copy of its Bylaws as amended to
date, which copy shall be open to inspection by shareholders at all
reasonable times during office hours. If the principal executive office of
the corporation is outside the State of California and the corporation has no
principal business office in such state, it shall upon the written notice of
any shareholder furnish to such shareholder a copy of these Bylaws as amended
to date. The
48
original or a copy of the Bylaws certified to be a true copy by
the Secretary or an Assistant Secretary of the corporation shall be prima
facie evidence of the adoption of such Bylaws and of the matters stated
therein.
Section 8.07 AMENDMENT OF BYLAWS. Subject to the right of the outstanding
shares to adopt, amend, or repeal Bylaws, these Bylaws may, from time to time
and at any time, be amended or repealed, and new or additional Bylaws
adopted, by approval of the Board; provided, however, that such Bylaws may
not contain any provision in conflict with law or with the Articles of
Incorporation of the corporation. After the issuance of shares, any Bylaw
specifying or changing a fixed number of directors or the maximum or minimum
number or changing from a fixed to a variable Board or vice versa may only be
adopted by approval of the outstanding shares; provided, however, that a
Bylaw or amendment of the Articles of Incorporation reducing a fixed number
or the minimum number of directors to a number less than five cannot be
adopted if the vote cast against its adoption at a meeting, or the shares not
consenting in the case of action
49
by written consent, are equal to more than 16 2/3 percent of the votes
entitled to be cast.
Section 8.08 CONSTRUCTION OF BYLAWS. Unless otherwise stated in these
Bylaws or unless the context requires, the definitions contained in the
California General Corporation Law shall govern the construction of these
Bylaws. Without limiting the generality of the foregoing, the masculine
gender includes the feminine and neuter, the singular number includes the
plural and the plural number includes the singular, and the word "person"
includes a corporation or other entity as well as a natural person.
Section 8.09 ANNUAL REPORT TO SHAREHOLDERS. The annual report to
shareholders referred to in Section 1501 of the California General
Corporation Law is expressly dispensed with, but nothing herein shall be
interpreted as prohibiting the Board of Directors from issuing annual or
other periodic reports to the shareholders of the corporation as they
consider to be appropriate.
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Section 8.10 NATIONAL EMERGENCY. In the event of a national emergency as
described in Section 688 of the California Insurance Code, this corporation
shall be considered to have those emergency bylaw provisions which are
provided for by statute in Article 1.7 of Chapter 1 of Part 2 of Division 1
of the California Insurance Code as now in effect or as hereafter may be
amended.
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