EXHIBIT 3.(ii).1
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BYLAWS
OF
SIMPSON MANUFACTURING CO., INC.
(formerly SIMPSON HOLDINGS, INC.)
ARTICLE I
Principal Office
The principal executive office of the Corporation or the
principal business office of the Corporation in California may be fixed and
located at such place or places as the Board of Directors may specify. The
Board of Directors may change any such office from time to time from one
location to another.
ARTICLE II
Shareholders
Section 1. Place of Meetings.
All meetings of the shareholders shall be held at any place
within or without the State of California which may be designated either by
the Board of Directors or by the written consent of all shareholders
entitled to vote thereat and not present at the meeting given before or
after the meeting and filed with the Secretary of the Corporation. In the
absence of any such designation, shareholders' meetings shall be held at
the principal executive office of the Corporation, if any, or, if none, at
the principal business office of the Corporation in California.
Section 2. Annual Meeting.
The annual meeting of the shareholders shall be held at a place
and time designated by the Board of Directors. At the annual meeting,
directors shall be elected, reports of the affairs of the Corporation shall
be considered and any other proper business may be transacted which is
within the power of the shareholders.
Section 3. Special Meetings.
Special meetings of the shareholders for the purpose of taking
any action permitted to be taken by the shareholders under the California
Corporations Code and the Articles of Incorporation of the Corporation may
be called at any time by the Chairman of the Board, President or Board of
Directors or by the holders of shares entitled to cast not less than ten
percent of the votes at the meeting.
On request in writing to the Chairman of the Board, the
President, any Vice President or the Secretary of the Corporation by any
person or persons (other than the Board of Directors) entitled to call a
special meeting of shareholders, the officer to whom such request is made
shall forthwith cause notice to be given to the shareholders entitled to
vote that a meeting of the shareholders will be held at the time requested
by the person or persons calling the meeting, which time shall be not less
than thirty-five nor more than sixty days after the receipt of such
request.
Section 4. Notice of Meetings; Advance Notice of Shareholder Business;
Notice of Shareholder Nominees.
Whenever shareholders are required or permitted to take any
action at a meeting, a written notice of the meeting 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. In the case of a special meeting,
such notice shall specify the general nature of the business to be
transacted and no other business may be transacted at such meeting. In the
case of the annual meeting, the notice shall specify those matters which
the Board of Directors, at the time of the mailing of the notice, intends
to present for action by the shareholders. 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 the Board for
election. Any such notice shall also state any other matters required by
statute.
At an annual meeting of the shareholders, only such business
shall be conducted as shall have been properly brought before the meeting.
Commencing with the annual meeting in the year 2000, to be properly
brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a shareholder. For business to be
properly brought before an annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation,
not less than 75 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 85 days' notice or prior public
disclosure of the date of the meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not later than
the close of business on the 10th day following the day on which such
notice of the date of the annual meeting was mailed or such public
disclosure was made. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at
the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business, (c) the
class and number of shares of the Corporation which are beneficially owned
by the shareholder, and (d) any material interest of the shareholder in
such business. Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at any annual meeting except in accordance with
the procedures set forth in this Section 4. The Chairman of the annual
meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance
with the provisions of this Section 4, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
Commencing with the annual meeting in the year 2000, only
persons who are nominated in accordance with the procedures set forth in
this Section 4 shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors of the Corporation may be
made at a meeting of shareholders by or at the direction of the Board of
Directors or by any shareholder of the Corporation entitled to vote for the
election of Directors at the meeting who complies with the notice
procedures set forth in this Section 4. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation.
To be timely, a shareholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less
than 75 days nor more than 90 days prior to the meeting provided, however,
that in the event that less than 85 days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. Such
shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a Director,
(i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii)
the class and number of shares of the Corporation which are beneficially
owned by such person, and (iv) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such persons' written consent to being named
in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the shareholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such shareholder and
(ii) the class and number of shares of the Corporation which are
beneficially owned by such shareholder. At the request of the Board of
Directors any person nominated by the Board of Directors for election as a
Director shall furnish to the Secretary of the Corporation that information
required to be set forth in a shareholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a
Director of the Corporation unless nominated in accordance with the
procedures set forth in this Section 4. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
Bylaws, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 5. Consent to Shareholders' Meetings and Actions without Meetings.
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 law 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, except that
any shareholder approval at a meeting, other than unanimous approval by
those entitled to vote, pursuant to section 310 (transactions between the
Corporation and one or more of the Directors), section 902 (amendment to
Articles of Incorporation), section 1201 (reorganization), section 1900
(voluntary dissolution) or section 2007 (plan of distribution on
dissolution) of the California Corporations Code shall be valid only if the
general nature of the proposal so approved is stated in the notice of
meeting or in any written waiver of notice.
Any action which 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. All such consents shall be filed with the secretary of the
Corporation and shall be maintained in the corporate records. Any
shareholder giving a written consent, or the shareholder's proxyholder, or
a transferee of the shares or a personal representative of the shareholder
or the transferee's or personal representative's respective proxyholder,
may revoke the consent by a writing received by the Secretary of the
Corporation before written consents with respect to the number of shares
required to authorize the proposed action have been filed with the
Secretary, but may not do so thereafter. Such revocation is effective on
its receipt by the Secretary of the Corporation. Unless the consents of all
shareholders entitled to vote have been solicited in writing, (a) notice of
any shareholder approval pursuant to section 310 (transactions between the
Corporation and one or more of the Directors), section 317 (indemnification
of an officer, director or employee), section 1201 (reorganization) or
section 2007 (plan of distribution on dissolution) of the California
Corporations Code without a meeting by less than unanimous written consent
shall be given at least ten days before the consummation of the action
authorized by such approval to those shareholders entitled to vote who have
not consented in writing and (b) prompt notice shall be given of the taking
of any other corporate action approved by shareholders without a meeting by
less than unanimous written consent to those shareholders entitled to vote
who have not consented in writing. In the case of election of directors,
such a consent shall be effective only if signed by the holders of all
outstanding shares entitled to vote for the election of such directors (in
accordance with section 3 of Article III of these Bylaws); provided that a
director may be elected at any time to fill a vacancy on the Board of
Directors, except a vacancy created by removal, by the written consent of
the holders of shares entitled to cast a majority of the votes entitled to
be cast by the holders of all outstanding shares entitled to vote for the
election of such director (in accordance with section 3 of Article III of
these Bylaws).
Section 6. Quorum.
A majority of the shares entitled to vote, represented in
person or by proxy, shall constitute a quorum for the transaction of
business at a meeting of shareholders. If a quorum is present, the
affirmative vote of the majority of the shares represented and voting at a
duly held meeting and (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the
shareholders.
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.
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 the preceding paragraph.
Section 7. Voting Rights.
Except as otherwise provided by law or the Articles of
Incorporation, each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote of shareholders.
Any holder of shares entitled to vote on any matter may vote part of the
shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal, other than elections to office,
but, if any shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it will be conclusively presumed that
such shareholder's approving vote is with respect to all shares such
shareholder is entitled to vote.
Every person entitled to vote shares may authorize another
person or persons to act by proxy with respect to such shares. No proxy
shall be valid after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy. Subject to the foregoing and to
the express terms and conditions of any proxy, every proxy shall continue
in full force and effect until revoked by the person executing it prior to
the vote pursuant thereto. Such revocation may be effected by a writing
delivered to 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 attendance at such
meeting and voting in person by the person executing the proxy. A proxy is
not revoked by the death or incapacity of the maker unless, before the vote
is counted, written notice of such death or incapacity is received by the
Corporation.
In any election of directors, any form of proxy in which the
Directors to be voted on are named therein as candidates and which is
marked by a shareholder "withhold" or otherwise marked in a manner
indicating that the authority to vote for the election of directors is
withheld shall not be voted for the election of a director.
Every shareholder entitled to vote at any election of directors
may cumulate such shareholder's votes and give one candidate a number of
votes equal to the number of directors to be elected multiplied by the
number of votes to which such shareholder's shares are normally entitled,
or distribute such shareholder's votes on the same principle among as many
candidates as such shareholder thinks fit; provided, that no shareholder
shall be entitled so to cumulate votes or cast for any candidate a number
of votes greater than the number of votes which such shareholder normally
is entitled to cast unless such candidate's or candidates' name(s) have
been placed in nomination prior to the voting and a shareholder has given
notice at the meeting prior to the voting of intention to vote
cumulatively. In any election of directors, the candidates receiving the
highest number of affirmative votes of the shares entitled to be voted for
them up to the number of directors to be elected by such shares are
elected; votes against the directors and votes withheld shall have no legal
effect. Elections for directors need not be by ballot unless a shareholder
demands election by ballot at the meeting and before the voting begins.
Section 8. Determination of Shareholders of Record.
So that the Corporation may determine the shareholders entitled
to notice of any meeting or to vote or entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days prior to the date of such meeting nor more
than sixty days prior to any other action.
If no record date is fixed, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next preceding the
day on which notice is given or, if notice is waived, at the close of
business on the business day next preceding the day on which the meeting is
held. The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting when no prior
action by the Board of Directors has been taken shall be the day on which
the first written consent is given. The record date for determining
shareholders for any other purpose shall be at the close of business on the
day on which the Board of Directors adopts the resolution relating thereto,
or the sixtieth day prior to the date of such other action, whichever is
later.
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 of Directors fixes a new record date for the
adjourned meeting, but the Board of Directors shall fix a new record date
if the meeting is adjourned for more than forty-five days from the date set
for the original meeting.
Shareholders at the close of business on the record date are
entitled to notice and to vote or to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation
after the record date, except as otherwise provided in the Articles of
Incorporation or by agreement.
ARTICLE III
Board of Directors
Section 1. Powers and Duties.
Subject to the California Corporations Code and any limitations
in the Articles of Incorporation and these Bylaws as to action to be
authorized or approved by the shareholders, the business affairs of the
Corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. Without prejudice to
such general powers, but subject to the same limitations, the Board of
Directors shall have the following powers:
First: 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 of Incorporation
or with the Bylaws, as they may deem best;
Second: To elect and remove at pleasure the officers,
agents and employees of the Corporation, prescribe their duties and fix
their compensation;
Third: To authorize the issuance of shares of stock of
the Corporation from time to time upon such terms as may be lawful;
Fourth: 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
securities therefor; and
Fifth: To alter, repeal or amend, from time to time and
at any time, these Bylaws and any and all amendments of the same, and, from
time to time and at any time, to make and adopt such new and additional
Bylaws as may be necessary and proper, subject to the power of the
shareholders to adopt, amend or repeal such Bylaws, or to revoke the
delegation of authority of the Directors, as provided by law or by Article
IX of these Bylaws.
A director shall perform the duties of a director, including
duties as a member of any committee of the Board of Directors on which a
director may serve, in good faith, in a manner such director believes to be
in the best interests of the Corporation and with such care, including
reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances.
Section 2. Number.
The authorized number of directors shall not be less than four
nor more than seven. The exact authorized number of directors shall be
fixed from time to time, within the limits specified in this section or in
the Articles of Incorporation, by approval of the Board of Directors or the
shareholders in the manner provided in these Bylaws. Subject to the
foregoing provisions for changing the authorized number of directors, the
authorized number of directors of this Corporation is initially fixed at
four.
Section 3. Election and Term.
Directors shall be elected at each annual meeting of the
shareholders to hold office until the next annual meeting, but if any such
annual meeting is not held or the Directors are not elected thereat, the
Directors may be elected at any special meeting of the shareholders held
for that purpose. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which
elected and until a successor has been elected and qualifies, except as
otherwise provided by the California Corporations Code or the Articles of
Incorporation. Directors, including directors elected to fill vacancies,
shall be elected by the holders of shares empowered to vote therefor
pursuant to the provisions of the California Corporations Code and the
Articles of Incorporation.
Section 4. Vacancies.
A vacancy or vacancies in the Board of Directors shall be
deemed to exist in the event of the death, resignation or removal of any
director in accordance with section 303 or 304 of the California
Corporations Code, or in the event of an increase in the authorized number
of directors by the Board of Directors or by the shareholders, or
declaration of a vacancy by the Board of Directors for one of the reasons
specified in section 302 of the California Corporations Code.
Unless otherwise provided in the Articles of Incorporation or
these Bylaws and except for a vacancy created by the removal of a director,
vacancies on the Board of Directors may be filled by a majority of the
Directors then in office, whether or not less than a quorum or by a sole
remaining director. Unless the Articles of Incorporation or a Bylaw
adopted by the shareholders provides that the Board of Directors may fill
vacancies occurring in the Board of Directors by reason of the removal of
directors, such vacancies may be filled only by approval of the
shareholders.
Subject to the Articles of Incorporation, the shareholders
entitled to vote for the election of directors may elect a director at any
time to fill any vacancy not filled by the Directors. Any such election by
written consent shall be conducted in accordance with section 5 of Article
II of these Bylaws.
If, after the filling of any vacancy by the Directors, the
Directors then in office who have been elected by the shareholders shall
constitute less than a majority of the Directors then in office, any holder
or holders of an aggregate of five percent or more of the total number of
shares at the time outstanding having the right to vote for directors may
call a special meeting of shareholders to be held to elect the entire Board
of Directors. The term of office of any director shall terminate on such
election of a successor.
Section 5. Removal of Directors.
Subject to the Articles of Incorporation, the entire Board of
Directors or any individual Director may be removed from office as provided
by Sections 302, 303, and 304 of the California Corporations Code. In such
case, subject to the Articles of Incorporation, the remaining Directors may
elect a successor Director to fill such vacancy for the remaining unexpired
term of the Director so removed.
Section 6. Meetings.
Immediately following each annual meeting of the shareholders,
a regular meeting of the Board of Directors of the Corporation shall be
held at the place of said annual meeting or such other place as shall have
been designated by the Board of Directors for the purpose of organization,
election of officers and the transaction of other business. Other regular
meetings of the Board of Directors shall be held without call on such date
and time as may be fixed by the Board of Directors; provided, however, that
should any such day fall on a legal holiday, then said meeting shall be
held at the same time on the next day thereafter ensuing which is not a
legal holiday. No notice of regular meetings of the Board of Directors
need be given; provided, that notice of any change in the time or place of
any such regular meeting shall be given to all of the Directors in the same
manner as notice for special meetings of the Board of Directors.
Special meetings of the Board of Directors for any purpose or
purposes may be called at any time by the Chairman of the Board or
President or, if both the Chairman of the Board and the President are
absent or are unable or refuse to act, by any Vice President or by any two
directors. Notice of the time and place of special meetings shall be
delivered personally or by telephone to each Director or sent by first-
class mail or telegram or facsimile transmission, charges prepaid,
addressed to such Director's address as it appears on the records of the
Corporation or, if it is not so shown on the records and is not readily
ascertainable, at the place at which the meetings of the Directors are
regularly held. In case such notice is mailed, it shall be deposited in
the United States mail at least four days prior to the time of the holding
of the meeting. In case such notice is telegraphed or sent by facsimile
transmission, it shall be delivered to a common carrier for transmission to
the Director or actually transmitted by the person giving the notice by
electronic means to the Director at least forty-eight hours prior to the
time of the holding of the meeting. In case such notice is delivered
personally or by telephone as above provided, it shall be so delivered at
least twenty-four hours prior to the time of the holding of the meeting.
Any notice given personally or by telephone may be communicated either to
the Director or to a person at the office of the Director whom the person
giving the notice has reason to believe will promptly communicate it to the
Director. Such deposit in the mail, delivery to a common carrier,
transmission by electronic means or delivery, personally or by telephone,
as above provided, shall be due, legal and personal notice to such
Director. The notice need not specify the place of the meeting if the
meeting is to be held at the principal executive office of the Corporation,
if any, or, if none, at the principal business office of the Corporation in
California, and need not specify the purpose of the meeting.
Notice of a meeting need not be given to any director who signs
a waiver of notice or a consent to holding the meeting or an approval of
the minutes thereof, whether before or after the meeting, or who attends
the meeting without protesting, prior thereto or at its commencement, the
lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of
the meeting.
A majority of the Directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. 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 adjourned
meeting to the Directors who were not present at the time of the
adjournment.
Meetings of the Board of Directors may be held at any place
within or without the state which has been designated in the notice of the
meeting or, if not stated in the notice or there is no notice, designated
in the Bylaws or by resolution of the Board of Directors.
Members of the Board of Directors 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.
Participation in a meeting pursuant to this section constitutes presence in
person at such meeting.
Section 7. Quorum.
A majority of the authorized number of directors constitutes a
quorum of the Board of Directors for the transaction of business.
Every act or decision done or made by a majority of the
Directors present at a meeting duly held at which a quorum is present is
the act of the Board of Directors, unless otherwise provided by law or
unless a greater number be required by the Articles of Incorporation or
these Bylaws. 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 8. Action Without a Meeting.
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, if all members of the Board shall
individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the
proceedings of the Board. Such action by written consent shall have the
same force and effect as a unanimous vote of the Board of Directors.
Section 9. 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 resolution of the Board of
Directors.
Section 10. Committees.
The provisions of this Article III shall also apply, with
necessary changes in points of detail, to committees of the Board of
Directors, if any, and to actions by such committees (except for the first
sentence of section 5 of this Article III, which shall not apply, and
except that special meetings of a committee may also be called at any time
by any two members of the committee), unless otherwise provided by these
Bylaws or by the resolution of the Board of Directors designating such
committees. For such purpose, references to "the Board of Directors" shall
be deemed to refer to each such committee and references to "directors" and
"members of the Board" shall be deemed to refer to members of the
committee. Committees of the Board of Directors may be designated and
shall be subject to limitations on their authority as provided in section
311 of the California Corporations Code.
ARTICLE IV
Officers
Section 1. Designation of Officers.
The Board of Directors shall appoint the officers of the
Corporation, including the Chairman of the Board or the President or both,
the Secretary, and the Chief Financial Officer. The Corporation may also
have such other officers as may be appointed by the Board of Directors with
such titles and duties as may be determined by the Board of Directors and
as may be necessary to enable it to sign instruments and share
certificates. If the Board shall name one or more persons as Vice
Presidents, the order of their seniority shall be in the order of their
appointment, unless otherwise specified by the Board of Directors. Any
number of offices may be held by the same person. All officers of the
Corporation shall hold office from the date appointed to the date of the
next succeeding regular meeting of the Board of Directors following the
meeting of shareholders at which the Board of Directors is elected and
until their successors are elected; provided, that any officers may be
removed at any time with or without cause by the Board of Directors. On
the removal, resignation, death or incapacity of any officer, the Board of
Directors may declare such office vacant and fill such vacancy. Any
officer may resign at any time on written notice to the Corporation without
prejudice to the rights, if any, of the Corporation under any contract to
which the officer is a party. The salary and other compensation of the
officers shall be fixed from time to time by resolution of the Board of
Directors.
Section 2. Chairman of the Board.
The Chairman of the Board shall, when present, preside at all
meetings of the Board of Directors, shall have authority to execute in the
name of the Corporation bonds, contracts, deeds, leases and other written
instruments to be executed by the Corporation (except where by law the
signature of another officer is required) and shall perform such other
duties as the Board of Directors may prescribe from time to time.
Section 3. President.
Subject to the control of the Board of Directors and to such
supervisory powers, if any, as may be given by the Board of Directors to
the Chairman of the Board, the President shall be the general manager and
chief executive officer of the Corporation, shall have general supervision,
direction and control of the business and officers of the Corporation and
shall perform all the duties customarily incident to that office. The
President shall preside at all meetings of the shareholders and, in the
absence of the Chairman of the Board or if there be no Chairman of the
Board, shall preside at all meetings of the Board of Directors and shall
perform the duties of and may exercise all other authority otherwise given
to the Chairman of the Board, and shall perform such other duties as the
Board of Directors may prescribe from time to time.
Section 4. Vice Presidents.
If the Board of Directors shall appoint one or more Vice
Presidents, the Vice Presidents, in the order of their seniority, may
assume and perform the duties of the President in the absence or disability
of the President or whenever the office of President is vacant. The Vice
Presidents shall have such titles, perform such other duties, and have such
other powers as the Board of Directors may prescribe from time to time.
Section 5. Secretary.
The Secretary shall attend all meetings of the shareholders,
the Board of Directors and any committee appointed pursuant to section 9 of
Article III of these Bylaws and shall keep or cause to be kept at the
principal executive office or such other place as the Board of Directors
may order, a minute book of all such meetings, containing all acts and
proceedings thereof, the time and place of holding thereof, whether regular
or special, and, if special, how authorized, the notice thereof given, the
names of those present at directors' or committee meetings and the number
of shares present or represented at shareholders' meetings. The Secretary
shall give notice, in conformity with these Bylaws, of all meetings of the
shareholders, the Board of Directors or any such committee requiring
notice. The Secretary shall keep or cause to be kept at the principal
executive office, if any, or, if none, the principal business office in
California, or at the office of the Corporation's transfer agent a share
register or a duplicate share register showing the names of the
shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates issued for same, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall perform such other duties and have such other powers
as the Board of Directors may prescribe from time to time. The President
may direct any Assistant Secretary to assume and perform the duties of the
Secretary in the absence or disability of the Secretary and each Assistant
Secretary shall perform such other duties and have such other powers as the
Board of Directors may prescribe from time to time.
Section 6. Chief Financial Officer.
The Chief Financial Officer shall keep or cause to be kept the
books of account of the Corporation in a thorough and proper manner, and
shall render statements of the financial affairs of the Corporation in such
form and as often as required by the Board of Directors. The Chief
Financial Officer, subject to the direction of the Board of Directors,
shall have the custody of all funds and securities of the Corporation. The
Chief Financial Officer shall perform all other duties customarily incident
to that office and shall perform such other duties and have such other
powers as the Board of Directors may prescribe from time to time. The
President may direct any Deputy Financial Officer to assume and perform the
duties of the Chief Financial Officer in the absence or disability of the
Chief Financial Officer and each Deputy Financial Officer shall perform
such other duties and have such other powers as the Board of Directors may
prescribe from time to time.
ARTICLE V
Execution of Corporate Instruments and Exercise of
Rights Under Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
The Board of Directors may, in its discretion, determine the
method and designate the signatory officer or officers or other person or
persons to execute any corporate instrument or document, or to sign the
corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall bind the Corporation.
Unless otherwise required by law, any note, mortgage, evidence
of indebtedness, contract, share certificate, conveyance or other
instrument in writing, and any assignment or endorsement thereof, executed
or entered into between the Corporation and any other person, when signed
by the Chairman of the Board, the President or any Vice President and the
Secretary, any Assistant Secretary, the Chief Financial Officer or any
Deputy Financial Officer of the Corporation, is not invalidated as to the
Corporation by any lack of authority of the signing officers in the absence
of actual knowledge on the part of the other person that the signing
officers had no authority to execute the same.
All checks and drafts drawn on banks or other depositories of
funds to the credit of the Corporation, or in special accounts of the
Corporation, shall be signed by such person or persons as the Board of
Directors shall authorize so to do.
Section 2. Securities Owned by Corporation.
All securities of other corporations or other entities owned or
held by the Corporation for itself, or for other parties in any capacity,
shall be voted, all proxies and other powers with respect thereto shall be
executed, and all rights appurtenant or pursuant thereto shall be exercised
on behalf of the Corporation by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board, the President or any Vice
President.
ARTICLE VI
Shares of Stock
Section 1. Form of Certificates.
Every holder of shares in the Corporation shall be entitled to
have a certificate signed in the name of the Corporation by the Chairman of
the Board, the President or a Vice President, and by the Chief Financial
Officer, a Deputy Financial Officer, the Secretary or any Assistant
Secretary, certifying the number and class or series of shares owned by
such shareholder. Any or all of the signatures on any such certificate may
be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed on a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, the issuance of such certificate by the Corporation
shall have the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
If the shares of the Corporation are classified or if any class
of shares is divided into two or more series, any certificate representing
such shares shall bear conspicuously on its face, or on the reverse thereof
with conspicuous reference thereto on its face, one of the following: (a)
a statement of the rights, preferences, privileges and restrictions granted
to or imposed on the class or series of shares represented by such
certificate and on the holders thereof; (b) a summary of such rights,
preferences, privileges and restrictions with reference to the provisions
of the Articles of Incorporation and any Certificates of Determination
establishing the same; or (c) a statement setting forth the office or
agency of the Corporation from which shareholders may obtain, on request
and without charge, a copy of the statement prescribed by clause (a) of
this paragraph.
Each such certificate shall also bear, conspicuously on its
face or on the reverse thereof with conspicuous reference thereto on its
face, any of the following to the extent applicable: (a) that the shares
are subject to restrictions on transfer; (b) that the shares are assessable
or are not fully paid, including, in the case of partly paid shares, the
total amount of the consideration to be paid therefor and the amount paid
thereon; (c) that the shares are subject to a close corporation voting
agreement or an irrevocable proxy or restrictions on voting rights
contractually imposed by the Corporation; (d) that the shares are
redeemable; and (e) that the shares are convertible and the period for
conversion.
When the Articles of Incorporation are amended in any way
affecting the statements contained in certificates representing outstanding
shares, or it becomes desirable for any reason, in the discretion of the
Board of Directors, to cancel any outstanding certificate representing
shares and issue a new certificate therefor conforming to the rights of the
holder, the Board of Directors may order any holders of outstanding
certificates representing shares to surrender and exchange them for new
certificates within a reasonable time to be fixed by the Board of
Directors.
Section 2. Transfer of Shares.
Shares of stock of the Corporation may be transferred in any
manner permitted or provided by law. Before any transfer of stock is
entered on the books of the Corporation, or any new certificate issued
therefor, the outstanding certificate properly endorsed shall be
surrendered and cancelled, unless such outstanding certificate has been
lost, stolen or destroyed.
Section 3. Lost Certificates.
The Corporation shall issue a new certificate representing
shares in the place of any certificate theretofore issued by it, alleged to
have been lost, stolen or destroyed; provided, that, prior and as a
condition to the issuance of such new certificate, the Board of Directors
may require the owner of the lost, stolen or destroyed certificate or the
owner's legal representative to give the Corporation a bond (or other
adequate security) sufficient to indemnify it against any claim that may be
made against it (including any expense or liability) on account of the
alleged loss, theft or destruction of any such certificate or the issuance
of such new certificate and may require such owner to furnish to the
Corporation such other affidavits, certificates or other documents as the
Board of Directors may deem necessary or advisable.
Section 4. Electronic Securities Recordation.
Notwithstanding the provisions of sections 1, 2 and 3 of this
Article VI, the Corporation may adopt a system of issuance, recordation and
transfer of its shares by electronic or other means not involving any
issuance of certificates, provided the use of such system by the
Corporation is permitted by and in accordance with applicable law.
ARTICLE VII
Annual Report
An annual report, meeting the requirements specified in section
1501 of the California Corporations Code, shall be sent to the shareholders
not later than the 120th day after the close of the fiscal year of the
Corporation or the fifteenth day preceding the annual meeting of
shareholders for the next succeeding fiscal year, whichever shall first
occur; provided, however, that such requirements are waived and no such
report need be sent so long as the number of shareholders of record
(determined as provided in section 605 of the California Corporations Code)
is less than one hundred.
ARTICLE VIII
Corporate Seal
The corporate seal shall consist of a circular die bearing the
name of the Corporation and the state and date of its incorporation and
shall be kept and used by the Secretary or any Assistant Secretary as the
Secretary may direct. If and when authorized by the Board of Directors, a
duplicate of the corporate seal may be kept and used by such officer or
person as the Board of Directors may designate. Failure to affix the
corporate seal does not affect the validity of any instrument of the
Corporation.
ARTICLE IX
Amendments
New Bylaws may be adopted or these Bylaws may be amended or
repealed by the affirmative vote or written consent of a majority of the
outstanding shares entitled to vote, except as otherwise provided by law,
the Articles of Incorporation or these Bylaws. Subject to such right of
the shareholders to adopt, amend or repeal Bylaws, and except as otherwise
provided by law or the Articles of Incorporation, Bylaws may be adopted,
amended or repealed by the Board of Directors; provided that subject to the
Articles of Incorporation, a bylaw or amendment thereof 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 the
affirmative vote or written consent of a majority of the outstanding shares
entitled to vote; and provided that a bylaw or amendment of the articles
reducing the fixed number or the minimum number of directors to a number
less than five cannot be adopted if the votes cast against its adoption at
a meeting or the shares not consenting in the case of action by written
consent are equal to more than 16-2/3 percent of the outstanding shares
entitled to vote.
ARTICLE X
Indemnification of Agents
The Corporation shall indemnify each agent (as that term is
defined in Section 317 of the California Corporations Code) to the maximum
extent that the Corporation is permitted or empowered to do so under
Section 317 of the California Corporations Code. In addition, the
Corporation shall indemnify any person who is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation
as a director or officer of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or was a director or
officer of a foreign or a domestic corporation which was a predecessor
corporation of the Corporation or of another enterprise at the request of
such predecessor corporation, and the Corporation shall hold such director
or officer harmless, from and against any and all claims, liabilities,
damages and expenses suffered or incurred by such director or officer as a
result of or in connection with any act or omission or transaction of such
director or officer in his or her capacity as such director or officer;
provided that such director or officer shall not be indemnified by the
Corporation for any acts or omissions or transactions from which a director
may not be relieved of liability as set forth in the exception to
paragraph (10) of Section 204(a) of the California Corporations Code, or as
to circumstances in which indemnity is expressly prohibited by Section 317
of the California Corporations Code.