EXHIBIT 3.10
BYLAWS
OF
MISSION ENERGY WESTSIDE, INC.
AS AMENDED THROUGH APRIL 5, 1994
MISSION ENERGY WESTSIDE, INC.
INDEX
ARTICLE I -- OFFICES
Section 1.1 Principal Executive Office....................................................1
Section 1.2 Other Offices.................................................................1
ARTICLE II -- SHAREHOLDERS
Section 2.1 Meeting Locations.............................................................1
Section 2.2 Annual Meetings...............................................................1
Section 2.3 Special Meetings..............................................................2
Section 2.4 Notice of Annual or Special Meeting...........................................2
Section 2.5 Quorum; Adjournment...........................................................2
Section 2.6 Adjourned Meeting and Notice Thereof..........................................3
Section 2.7 Voting........................................................................3
Section 2.8 Record Date...................................................................4
Section 2.9 Consent of Absentees; Waiver of Notice........................................4
Section 2.10 Action Without Meeting........................................................5
Section 2.11 Proxies.......................................................................5
ARTICLE III -- DIRECTORS
Section 3.1 Powers........................................................................5
Section 3.2 Number of Directors...........................................................6
Section 3.3 Election and Term of Office...................................................6
Section 3.4 Vacancies.....................................................................6
Section 3.5 Place of Meeting..............................................................7
Section 3.6 Organization Meeting..........................................................7
Section 3.7 Special Meetings..............................................................7
Section 3.8 Quorum........................................................................8
Section 3.9 Participation in Meetings by Conference Telephone.............................8
Section 3.10 Waiver of Notice..............................................................8
Section 3.11 Adjournment...................................................................8
Section 3.12 Fees and Compensation.........................................................9
Section 3.13 Action Without Meeting........................................................9
ARTICLE IV -- OFFICERS
Section 4.1 Officers......................................................................9
Section 4.2 Election......................................................................9
Section 4.3 Eligibility of Chairman of the Board or President.............................9
Section 4.4 Removal and Resignation......................................................10
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Section 4.5 Appointment of Other Officers................................................10
Section 4.6 Vacancies....................................................................10
Section 4.7 Salaries.....................................................................10
Section 4.8 Chairman of the Board........................................................10
Section 4.9 President....................................................................11
Section 4.10 Vice President...............................................................11
Section 4.11 Chief Operating Officer......................................................11
Section 4.12 General Manager..............................................................11
Section 4.13 General Counsel..............................................................12
Section 4.14 Assistant General Counsel....................................................12
Section 4.15 Controller...................................................................12
Section 4.16 Secretary....................................................................12
Section 4.17 Assistant Secretary..........................................................12
Section 4.18 Secretary Pro Tempore........................................................13
Section 4.19 Treasurer....................................................................13
Section 4.20 Assistant Treasurer..........................................................13
Section 4.21 Performance of Duties........................................................13
ARTICLE V -- OTHER PROVISIONS
Section 5.1 Inspection of Bylaws.........................................................13
Section 5.2 Contracts and Other Instruments, Loans, Notes and Deposit of Funds...........14
Section 5.3 Representation of Shares of Other Corporations...............................14
Section 5.4 Annual Report to Shareholders................................................14
Section 5.5 Fiscal Year and Subdivisions.................................................15
Section 5.6 Construction and Definitions.................................................15
ARTICLE VI -- INDEMNIFICATION
Section 6.1 Indemnification of Directors and Officers....................................15
Section 6.2 Indemnification of Employees and Agents......................................16
Section 6.3 Right of Directors and Officers to Bring Suit................................17
Section 6.4 Successful Defense...........................................................17
Section 6.5 Nonexclusivity of Rights.....................................................17
Section 6.6 Insurance....................................................................17
Section 6.7 Expenses as a Witness........................................................17
Section 6.8 Indemnity Agreements.........................................................18
Section 6.9 Severability.................................................................18
Section 6.10 Effect of Repeal or Modification.............................................18
ARTICLE VII -- AMENDMENTS
Section 7.1 Amendments...................................................................18
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BYLAWS
BYLAWS FOR THE REGULATION, EXCEPT
AS OTHERWISE PROVIDED BY STATUTE
OR ITS ARTICLES OF INCORPORATION
OF
MISSION ENERGY WESTSIDE, INC.
AS AMENDED THROUGH APRIL 5, 1994
ARTICLE I -- OFFICES
Section 1.1 PRINCIPAL EXECUTIVE OFFICE
The principal executive office of the corporation is hereby
fixed and located at 18101 Von Karman Avenue, Suite 1700, in the City of Irvine,
County of Orange, State of California. The Board of Directors ("the Board") is
hereby granted full power and authority to change the principal executive office
from one location to another.
Section 1.2 OTHER OFFICES
Branches or subordinate offices may be established at any time
by the Board of Directors or the President at any place within or without the
State of California.
ARTICLE II -- SHAREHOLDERS
Section 2.1 MEETING LOCATIONS
All meetings of shareholders shall be held at the principal
executive office, or at such other office or places within or without the State
of California as may be designated by either the Board or by the person or
persons giving notice of the meeting pursuant to Section 2.4.
Section 2.2 ANNUAL MEETINGS
The annual meeting of shareholders shall be held on the 1st
Tuesday in the month of April of each year, at the hour of 10:30 a.m. on said
day, or at such other time on
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such other day as shall be fixed by the Board, to elect directors to hold office
for the year next ensuing and until their successors shall be elected, and to
consider and act upon such other matters as may lawfully be presented to such
meeting; provided, however, that should said day fall upon a legal holiday
observed by this corporation, then any such annual meeting of shareholders shall
be held at the same time and place on the next day thereafter ensuing which is a
full business day.
Section 2.3 SPECIAL MEETINGS
Special meetings of the shareholders may be called at any time
by the Board, the Chairman of the Board, if any, the President, the Executive
Vice President, if any, the Senior Vice President, if any, or the holders of
shares entitled to cast not less than ten percent of the votes at such meeting.
Upon request to the Chairman of the Board, if any, the President, the Executive
Vice President, the Senior Vice President, the Secretary or Assistant Secretary
by any person entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to the shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons calling
the meeting, not less than thirty-five nor more than sixty days after the
receipt of the request. If the notice is not given within twenty days after
receipt of the request, the persons entitled to call the meeting may give the
notice.
Section 2.4 NOTICE OF ANNUAL OR SPECIAL MEETING
Written notice of each annual or special meeting of
shareholders shall be given not less than ten nor more than sixty 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, and
no other business may 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 subject to the provisions of
applicable law, 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 name of nominees intended at the time of the notice to be presented
by the Board for election.
Notice of a shareholders' meeting or any report to the
shareholders shall be given either personally to the recipient or to a person in
the office of the recipient or by first-class United States mail, by private
mail or messenger service, by telephone facsimile transmission, or by any other
means of written communication, addressed to the shareholder at the address of
such shareholder appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice; or if no such address
appears or is given, at the place where the principal executive office of the
corporation is located or by publication at least once in a newspaper of general
circulation in the county in which the
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principal executive office is located. Such notice or report shall be deemed to
have been given at the time when delivered personally, deposited in the United
States mail or sent by private mail or messenger service, by telephone facsimile
transmission or sent by any other means of written or electronic communication.
Section 2.5 QUORUM; ADJOURNMENT
(a) A majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum at any meeting of the
shareholders.
(b) Except as provided in subsection (c) below, the
affirmative vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by the Articles.
(c) The shareholders present at a duly called or held meeting
at which a quorum is present may continue to transact 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.
(d) In the absence of a quorum, any meeting of shareholders
may be adjourned from time to time by the vote of a majority of the shares
represented either in person or by proxy, but no other business may be
transacted, except as provided in subsection (c) above.
Section 2.6 ADJOURNED MEETING AND NOTICE THEREOF
Any shareholders' meeting, whether or not a quorum is present,
may be adjourned from time to time by the vote of a majority of the shares, the
holders of which are either present in person or represented by proxy thereat,
but in the absence of a quorum (except as permitted by applicable law in the
case of withdrawals by shareholders to reduce the number remaining to less than
a quorum) no other business may be transacted at such meeting.
With exceptions under Section 601(d) of the California
Corporations Code and any other applicable law, it shall not be necessary to
give any notice of the time and place of the adjourned meeting or of the
business to be transacted thereat, other than by announcement at the meeting at
which such adjournment is taken. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the original meeting.
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Section 2.7 VOTING
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
stock records of the corporation on the record date determined in accordance
with Section 2.8.
Voting shall in all cases be subject to the provisions of
Chapter 7 of the California General Corporation Law, including the following
provisions:
(a) Shares standing in the name of another corporation,
domestic or foreign, may be voted by an officer, agent,
or proxyholder as the bylaws of the other corporation may
prescribe or, in the absence of such provision, as the
Board of the other corporation may determine or, in the
absence of that determination, by the chairman of the
board, president or any vice president of the other
corporation, or by any other person authorized to do so
by the chairman of the board, president, or any vice
president of the other corporation. Shares which are
purported to be voted or any proxy purported to be
executed in the name of a corporation (whether or not any
title of the person signing is indicated) shall be
presumed to be voted or the proxy executed in accordance
with the provisions of the California General Corporation
Law, unless the contrary is shown.
(b) Shares of this corporation owned by its subsidiary shall
not be entitled to vote on any matter.
(c) Shares of this corporation held by this corporation in a
fiduciary capacity, and shares of this corporation held
in a fiduciary capacity by its subsidiary, shall not be
entitled to vote on any matter, except as follows: (i) to
the extent that the settlor or beneficial owner possesses
and exercises a right to vote or to give this corporation
binding instructions as to how to vote such shares; or
(ii) where there are one or more cotrustees who are not
affected by the prohibition of this subsection, in which
case the shares may be voted by the cotrustees as if it
or they are the sole trustees.
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Section 2.8. RECORD DATE
The Board may fix, in advance, a record date for the
determination of the shareholders entitled to notice of any meeting or to vote
or entitled to receive payment of any dividend or other distribution, or any
allotment of any rights or entitled to exercise any rights, in respect of any
other lawful action. The record date so fixed shall be not more than sixty days
nor less than ten days prior to the date of the meeting nor more than sixty days
prior to any other action. When a record date is so fixed, only shareholders of
record at the close of business on that date are entitled to notice of and to
vote at the meeting or to receive the dividend, distribution, or allotment of
rights, or to exercise the rights, as the case may be, notwithstanding any
transfer of shares on the books of the corporation after the record date, except
as otherwise provided by law or these Bylaws.
Section 2.9 CONSENT OF ABSENTEES; WAIVER OF NOTICE
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 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 and 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 and presence at such
meeting, except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by this division to be included
in the notice but not so included, if such objection is expressly made at the
meeting. Neither the business to be transacted at nor the purpose of any regular
or special meeting of shareholders need be specified in any written waiver of
notice, consent to the holding of the meeting or approval of the minutes
thereof, unless otherwise provided in the Articles or Bylaws, except as provided
in the California General Corporation Law.
Section 2.10 ACTION WITHOUT MEETING
Subject to Section 603 of the California General Corporation
Law, any action which, under any provision of the California General Corporation
Law, may be taken at any annual or special meeting of shareholders may be taken
without a meeting and without prior notice, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
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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. 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
Section 3.1 POWERS
Subject to any limitations of the Articles, of these Bylaws
and of the California General Corporation Law relating to action required to be
approved by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board. The Board may delegate the
management of the day-to-day operation of the business 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 of the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board shall have the
following powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove all the other officers, agents and
employees of the corporation, prescribe the powers and
duties for them as may not be inconsistent with law, with
the Articles or these Bylaws, fix their compensation and
require from them security for faithful service.
(b) To conduct, manage and control the affairs and business
of the corporation and to make such rules and regulations
therefor not inconsistent with law, or with the Articles
or these Bylaws, as they may deem best.
(c) To adopt, make and use a corporate seal, and to prescribe
the forms of certificates of stock, and to alter the form
of such seal and of such certificates from time to time
as in their judgment they deem best.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for
such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes
of the corporation, and to cause to be executed and
delivered therefor, in the corporate name, promissory
notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and
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securities therefor.
Section 3.2 NUMBER OF DIRECTORS
The authorized number of directors shall not be less than
three (3) nor more than six (6) until changed by amendment of the Articles or by
a Bylaw duly adopted by the shareholders. The exact number of directors shall be
fixed, within the limits specified, by the Board or the shareholders in the same
manner provided in these Bylaws for the amendment thereof. The exact number of
authorized directors shall be six (6) until changed as provided in these Bylaws.
Section 3.3 ELECTION AND TERM OF OFFICE
The directors shall be elected at each annual meeting of the
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
shareholders held for that purpose. Each director shall hold office until the
next annual meeting and until a successor has been elected and qualified.
Section 3.4 VACANCIES
Any director may resign effective upon giving written notice
to the Chairman of the Board, if any, the President, the Secretary, or the
Board, 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.
Vacancies in the Board, except those existing as a result of a
removal of a director, may be filled by a majority of the remaining directors,
whether or not less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until the next annual meeting and until
such director's successor has been elected and qualified. Vacancies existing as
a result of a removal of a director may be filled by the shareholders as
provided by law.
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 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.
The shareholders may elect a director or directors at any time
to fill any vacancy 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
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entitled to vote. If the Board accepts the resignation of a director tendered to
take effect at a future time, the Board or the shareholders shall have power to
elect a successor to take office when the resignation is to become effective.
No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of the director's
term of office.
Section 3.5 PLACE OF MEETING
Regular or special meetings of the Board shall be held at any
place within or without the State of California which has been designated from
time to time by the Board or as provided in these Bylaws. In the absence of such
designation, regular meetings shall be held at the principal executive office.
Section 3.6 ORGANIZATION MEETING
Promptly following each annual meeting of shareholders the
Board shall hold a regular meeting for the purpose of organization, election of
officers and the transaction of other business.
Section 3.7 SPECIAL MEETINGS
Special meetings other than organization meetings of the Board
for any purpose or purposes may be called at any time by the Chairman of the
Board, if any, the President, any Executive Vice President, Senior Vice
President, the Secretary, an Assistant Secretary or by any two directors.
Such meetings of the Board shall be held upon four days'
written notice by mail or forty-eight hours' notice given personally or by
telephone, telephone facsimile transmission, 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 or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held. The notice need not specify the purpose of such meeting.
Notice by first-class mail shall be deemed to have been given
at the time a written notice is deposited in the United States mail, postage
prepaid or sent by private mail or messenger service. Any other written notice
shall be deemed to have been given at the time it is personally delivered to the
recipient, to a person in the office of the recipient who the person giving the
notice has reason to believe will promptly communicate it to the recipient,
delivered to a common carrier for transmission, or actually transmitted by the
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person giving the notice by electronic means to the recipient. Oral notice shall
be deemed to have been given at the time it is communicated, in person, by
telephone to the recipient or to a person at the office of the recipient who the
person giving the notice has reason to believe will promptly communicate it to
the recipient.
Section 3.8 QUORUM
One-third of the maximum number of authorized directors
constitutes a quorum of the Board for the transaction of business, except to
adjourn as provided in Section 3.11 of this Article. As defined in Article III,
Section 3.2, the maximum number of authorized directors is six. 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 is required by law or by the Articles; provided,
however, that a meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting.
Section 3.9 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
Members of the Board may participate in a meeting through use
of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another.
Such participation constitutes presence in person at such meeting.
Section 3.10 WAIVER OF NOTICE
The transactions of any meeting of the Board, however called
and noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, a consent to holding such meeting or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Section 3.11 ADJOURNMENT
A majority of the directors present, whether or not a quorum
is present, may adjourn any directors' meeting to another time and place. Notice
of the time and place of holding an adjourned meeting need not be given to
absent directors if the time and place is fixed at the meeting adjourned. If the
meeting is adjourned for more than twenty-four hours, notice of any adjournment
to another time or place shall be given prior to the time of the
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adjourned meeting to the directors who were not present at the time of the
adjournment.
Section 3.12 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 3.13 ACTION WITHOUT MEETING
In accordance with the provisions of Section 307(8)(b) of the
California General Corporation Law, any action required or permitted to be taken
by the Board 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 have the same force and effect as a unanimous vote of
the Board and shall be filed with the minutes of the proceedings of the Board.
ARTICLE IV -- OFFICERS
Section 4.1 OFFICERS
The officers of the corporation shall be a President, Vice
President, a Controller, a Secretary and a Treasurer. The corporation may also
have, at the discretion of the Board, a Chairman of the Board, one or more
additional Vice Presidents, a Chief Operating Officer, a General Manager,
General Counsel, one or more Assistant General Counsels, one or more Assistant
Controllers, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 4.5 of this Article.
Section 4.2 ELECTION
The officers of the corporation, except such officers as may
be elected or appointed in accordance with the provisions of Section 4.5 or
Section 4.6 of this Article, shall be chosen annually by, and shall serve at the
pleasure of the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
Section 4.3 ELIGIBILITY OF CHAIRMAN OF THE BOARD OR PRESIDENT
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No person shall be eligible for the office of Chairman of the
Board, if there shall be such an officer, or President unless such person is a
member of the Board of the corporation; any other officer may or may not be a
director.
Section 4.4 REMOVAL AND RESIGNATION
Any officer may be removed, either with or without cause, by
the Board at any time or by any officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to
the corporation, but without prejudice to the rights, if any, of the corporation
under any contract of employment to which the officer is a party. 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 APPOINTMENT OF OTHER OFFICERS
The Board may appoint such other officers as the business of
the corporation may require, each of whom shall hold office for such period,
have such authority, and perform such duties as are provided in the Bylaws or as
the Board may from time to time determine. Notwithstanding the job title for
such person, no employee or other representative of this corporation shall be an
officer of this corporation unless elected by the Board.
Section 4.6 VACANCIES
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these Bylaws for regular election or appointment to such office.
Section 4.7 SALARIES
The salaries of the Chairman of the Board, if any, President,
General Manager, if any, Vice Presidents, Controller, Treasurer and Secretary of
the corporation shall be fixed by the Board. Salaries of all other officers
shall be approved from time to time by the chief executive officer.
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Section 4.8 CHAIRMAN OF THE BOARD
The Chairman of the Board, if there shall be such an officer,
shall preside at all meetings of the Board, and shall exercise such powers and
perform such duties as from time to time may be conferred upon or assigned to
him by the Board or the Bylaws.
Section 4.9 PRESIDENT
Subject to such supervisory powers, if any, as may be given by
the Board to the Chairman of the Board, if there be such an officer, the
President shall be the chief executive officer of the corporation and has,
subject to the control of the Board, general supervision, direction, and control
of the business and affairs of the corporation. The President shall preside at
all meetings of the shareholders and, in the absence of the Chairman of the
Board or if there be none, at all meetings of the Board. The President has the
general powers and duties of management usually vested in the office of
president of a corporation and has such other powers and duties as may be
prescribed by the Board or the Bylaws. The President may designate from time to
time the titles which the employees or other representatives of this corporation
shall use, including the appointment of agent for service of process. Without
limiting the foregoing, the President may designate one or more employees as
regional vice-presidents.
Section 4.10 VICE PRESIDENT
In the absence or disability of the President, the Vice
Presidents in order of their rank shall perform all the duties of the President
and when so acting shall have all the powers of, and be subject to all the
restrictions upon the President. The Board of Directors may establish the order
of rank of the Vice Presidents. In the absence of such ranking, the Vice
Presidents shall be ranked as follows: Executive Vice President (if any), Senior
Vice President (if any). Vice Presidents holding identical titles shall be
ranked in order of election to that office by the Board.
Section 4.11 CHIEF OPERATING OFFICER
The Chief Operating Officer, if there shall be such an
officer, must be a vice president of the corporation and shall be subject to the
exercise of the general powers of supervision, direction and control of the
business and officers of the corporation by the President, and supervise the
operations of the corporation.
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Section 4.12 GENERAL MANAGER
The General Manager, if there shall be such an officer, must
be a vice president of the corporation and shall, subject to the exercise of the
general powers of supervision, direction and control by the President, or the
Chief Operating Officer, if any, shall manage the operations of the corporation.
In the absence of the Chief Operating Officer, the General Manager shall perform
all the duties of the Chief Operating Officer and when so acting shall have all
the powers of, and be subject to, all the restrictions upon the Chief Operating
Officer.
Section 4.13 GENERAL COUNSEL
The General Counsel shall be the chief consulting officer of
the corporation in all legal matters and, subject to the President, shall have
control over all matters of legal import concerning the corporation.
Section 4.14 ASSISTANT GENERAL COUNSEL
One or more Assistant General Counsels, if any, shall perform
such of the duties of the General Counsel as the General Counsel may designate,
and in the absence or disability of the General Counsel, any Assistant General
Counsel, in order of election to that office by the Board, shall perform the
duties of the General Counsel.
Section 4.15 CONTROLLER
The Controller shall be the chief accounting officer of the
corporation and shall have control over all accounting matters concerning the
corporation and shall perform such other duties as the President or General
Manager shall designate.
Section 4.16 SECRETARY
The Secretary shall keep or cause to be kept, at the principal
executive office and such other place as the Board may order, a book of minutes
of all meetings of the shareholders, the Board, and its committees, and a share
register or a duplicate share register.
The Secretary shall give, or cause to be given, notice of all
the meetings of the shareholders and of the Board and any committees thereof
required by the Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, shall from time to time issue such corporate
secretarial certificates as may be required for the business and affairs of
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the corporation, and shall have such other general powers and duties of
management usually vested in the office of secretary of a corporation and as may
be prescribed by the Board, the President or the Bylaws.
Section 4.17 ASSISTANT SECRETARY
One or more Assistant Secretaries, if any, shall perform such
of the duties of the Secretary as the Secretary shall designate, and in the
absence or disability of the Secretary, any Assistant Secretary, in order of
election to that office by the Board, shall perform the duties of the Secretary.
Section 4.18 SECRETARY PRO TEMPORE
At any meeting of the Board or of the shareholders from which
the Secretary and Assistant Secretary are absent, a Secretary pro tempore may be
appointed by the Board of Directors or shareholders as appropriate and act.
Section 4.19 TREASURER
The Treasurer is the chief financial officer of the
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation. The books of account shall at all times be open to inspection by
any director.
The Treasurer shall deposit, or cause to be deposited, all
moneys and other valuables in the name and to the credit of the corporation with
such depositories as may be designated by the Board of Directors pursuant to
Section 5.2. The Treasurer shall disburse or cause to be disbursed, the funds of
the corporation as may be ordered by the President or the General Manager, shall
render to the President, the General Manager or the directors, whenever they
request it, an account of all transactions as Treasurer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board, or the Bylaws.
Section 4.20 ASSISTANT TREASURER
One or more Assistant Treasurers, if any, shall perform such
of the duties of the Treasurer as the Treasurer shall designate, and in the
absence or disability of the Treasurer, any Assistant Treasurer, in order of
election to that office by the Board, shall perform the duties of the Treasurer.
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Section 4.21 PERFORMANCE OF DUTIES
Officers shall perform the duties of their respective offices
as stated in these Bylaws, and such additional duties as the Board shall
designate.
ARTICLE V -- OTHER PROVISIONS
Section 5.1 INSPECTION OF BYLAWS
The corporation shall keep in its principal executive office
the original or a copy of these Bylaws, as amended to date, which shall be open
to inspection by shareholders at all reasonable times during office hours.
Section 5.2 CONTRACTS AND OTHER INSTRUMENTS, LOANS, NOTES AND DEPOSIT
OF FUNDS.
The Chairman of the Board, if any, the President and any Vice
President of this corporation, either alone or with the Secretary or an
Assistant Secretary, shall execute in the name of the corporation such written
instruments as may be authorized by the Board and, without special direction of
the Board, such instruments as transactions of the ordinary business of the
corporation may require and, such officers without the special direction of the
Board may authenticate, attest or countersign any such instruments when deemed
appropriate. The Board may authorize any person, persons, entity, entities,
attorney, attorneys, attorney-in-fact, attorneys-in-fact, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation, and such authority may be general or confined to
specific instances.
No loans shall be contracted on behalf of the corporation and
no evidences of indebtedness shall be issued in its name unless authorized by
resolution of the Board as it may direct. Such authority may be general or
confined to specific instances.
All checks, drafts, or other similar orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of the
corporation and in such manner as the Board, Chief Executive Officer or
Treasurer may direct.
Unless authorized by the Board or these Bylaws, no officer,
agent, employee or any other person or persons 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 amount.
All funds of the corporation not otherwise employed shall be
deposited from
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time to time to the credit of the corporation in such banks, trust companies, or
other depositories as the Board may direct.
Section 5.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The President or any other officer or officers authorized by
the Board or the President 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 the corporation. The
authority herein granted may be exercised either by any such officer in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by said officer.
Section 5.4 ANNUAL REPORT TO SHAREHOLDERS
The annual report to shareholders referred to in Section 1501
of the California General Corporation Law is expressly waived, but nothing
herein shall be interpreted as prohibiting the Board from issuing annual or
other periodic reports to shareholders.
Section 5.5 FISCAL YEAR AND SUBDIVISIONS
The calendar year shall be the corporate fiscal year of the
corporation. For the purpose of paying dividends, for making reports and for the
convenient transaction of the business of the corporation, the Board may divide
the fiscal year into appropriate subdivisions.
Section 5.6 CONSTRUCTION AND DEFINITIONS
Unless the context otherwise requires, the general provisions,
rules of construction and definitions contained in the General Provisions of the
California Corporations Code and in the California General Corporation Law shall
govern the construction of these Bylaws.
ARTICLE VI -- INDEMNIFICATION
Section 6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Each person who was or is a party or is threatened to be made
a party to or is involved in any threatened, pending or completed action, suit
or proceeding, formal or informal, whether brought in the name of the
corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature (hereinafter a "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 this corporation or is or was serving at the request of
this 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, whether the basis of
such proceeding is an alleged action or inaction in an official capacity or in
any other capacity while serving as a director or officer shall, subject to the
terms of any agreement between this corporation and such person, be indemnified
and held harmless by this corporation to the fullest extent permissible under
California law and this corporation's Articles of Incorporation, against all
costs, charges, expenses, liabilities, and losses (including attorneys' fees,
judgments, fines, Employee Retirement Income Security Act excise taxes or
penalties, and amounts paid or to be paid in settlement) actually and 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 or
officer and shall inure to the benefit of his or her heirs, executors, and
administrators; provided, however, that (A) this corporation shall indemnify any
such person seeking indemnification 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 this corporation other than a suit permitted by
Section 6.3; (B) this corporation shall indemnify any such person seeking
indemnification in connection with settlement of a proceeding (or part thereof)
other than a proceeding by or in the name of this corporation to procure a
judgment in its favor only if any settlement of such a proceeding is approved in
writing by this corporation; (C) that no such person shall be indemnified (i)
except to the extent that the aggregate of losses to be indemnified exceeds the
amount of such losses for which the director or officer is paid pursuant to any
directors' and officers' liability insurance policy maintained by the
corporation; (ii) on account of any suit in which judgment is rendered against
such person for an accounting of profits made from the purchase or sale by such
person of securities of this corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state, or local statutory law; (iii) if a court of
competent jurisdiction finally determines that any indemnification hereunder is
unlawful; and (iv) as to circumstances in which indemnity is expressly
prohibited by Section 317 of the General Corporation Law of California (the
"Law"); and (D) that no such person shall be indemnified with regard to any
action brought by or in the right of this corporation for breach of duty to this
corporation and its shareholders (a) for acts or omissions involving intentional
misconduct or knowing and culpable violation of law; (b) for acts or omissions
that the director or officer believes to be contrary to the best interests of
this corporation or its shareholders or that involve the absence of good faith
on the part of the director or officer; (c) for any transaction from which the
director or officer derived an improper personal benefit; (d) for acts or
omissions that show a reckless disregard for the director's or officer's duty to
this corporation or its shareholders in circumstances in which the director or
officer was aware, or should have been aware, in the ordinary course of
performing his or her duties, of a risk of serious injury
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to this corporation or its shareholders; (e) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's or officer's duties to this corporation or its shareholders; and
(f) for costs, charges, expenses, liabilities, and losses arising under Section
310 or 316 of the Law. The right to indemnification conferred in this Article
shall include the right to be paid by this corporation expenses incurred in
defending any proceeding in advance of its final disposition; provided, however,
that if the Law permits the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, such advances shall be made
only upon delivery to this corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts to this corporation if it shall
be ultimately determined that such person is not entitled to be indemnified."
Section 6.2 INDEMNIFICATION OF EMPLOYEES AND AGENTS
A person who was or is a party or is threatened to be made a
party to or is involved in any proceeding by reason of the fact that he or she
is or was an employee or agent of this corporation or is or was serving at the
request of this corporation as an employee or agent of another enterprise,
including service with respect to employee benefit plans, whether the basis of
such action is an alleged action or inaction in an official capacity or in any
other capacity while serving as an employee or agent, may, subject to the terms
of any agreement between this corporation and such person, be indemnified and
held harmless by this corporation to the fullest extent permitted by California
law and this corporation's Articles of Incorporation, against all costs,
charges, expenses, liabilities, and losses, (including attorneys' fees,
judgments, fines, Employee Retirement Income Security Act excise taxes or
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith.
Section 6.3 RIGHT OF DIRECTORS AND OFFICERS TO BRING SUIT
If a claim under Section 6.1 of this Article is not paid in
full by this corporation within 30 days after a written claim has been received
by this corporation, the claimant may at any time thereafter bring suit against
this corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense of
prosecuting such claim. Neither the failure of this corporation (including its
Board, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met the
applicable standard of conduct, if any, nor an actual determination by this
corporation (including its Board, independent legal counsel, or its
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shareholders) that the claimant has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption for the purpose of an
action that the claimant has not met the applicable standard of conduct.
Section 6.4 SUCCESSFUL DEFENSE
Notwithstanding any other provisions of this Article, to the
extent that a director or officer has been successful on the merits in defense
of any proceeding referred to in Section 6.1 or in defense of any claim, issue
or matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
Section 6.5 NONEXCLUSIVITY OF RIGHTS
The right to indemnification provided by this Article shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, bylaw, agreement, vote of shareholders, or
disinterested directors, or otherwise.
Section 6.6 INSURANCE
This corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of this corporation
or another corporation, partnership, joint venture, trust, or other enterprise
against any expense, liability, or loss, whether or not this corporation would
have the power to indemnify such person against such expense, liability, or loss
under the Law.
Section 6.7 EXPENSES AS A WITNESS
To the extent that any director, officer, employee, or agent
of this corporation is, by reason of such position or a position with another
entity at the request of this corporation, a witness in any action, suit, or
proceeding, he or she shall be indemnified against all costs and expenses
actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
Section 6.8 INDEMNITY AGREEMENTS
This corporation may enter into agreements with any director,
officer, employee, or agent of this corporation providing for indemnification to
the fullest extent permissible under the Law and this corporation's Articles of
Incorporation.
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Section 6.9 SEVERABILITY
Each and every paragraph, sentence, term, and provision of
this Article is separate and distinct so that if any paragraph, sentence, term,
or provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term, or provision hereof. To
the extent required, any paragraph, sentence, term, or provision of this Article
may be modified by a court of competent jurisdiction to preserve its validity
and to provide the claimant with, subject to the limitations set forth in this
Article and any agreement between this corporation and claimant, the broadest
possible indemnification permitted under applicable law.
Section 6.10 EFFECT OF REPEAL OR MODIFICATION
Any repeal or modification of this Article shall not adversely
affect any right of indemnification of a director or officer existing at the
time of such repeal or modification with respect to any action or omission
occurring prior to such repeal or modification.
ARTICLE VII -- AMENDMENTS
Section 7.1 AMENDMENTS
In accordance with Section 211 and subject to the provisions
contained in Section 212 of the California Corporation Law, these Bylaws may be
amended or repealed either by approval of the outstanding shares or by the
approval of the Board; provided, however, that a 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. The exact number of directors within the maximum and minimum
number specified in these Bylaws may be amended by the Board alone.
[End of Bylaws]
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