Exhibit 3.28
Bylaws OF
BIA HOTEL CORP.
A California Corporation
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The board of directors shall fix the
location of the principal executive office of the corporation at any place
within or without the State of California. If the principal executive office is
located outside the State of California, and the corporation has one or more
business offices in the State of California, the board of directors shall fix
and designate a principal business office in the State of California.
Section 2. OTHER OFFICES. Other business offices may be established at any
time by the board of directors at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETING OF SHAREHOLDERS
Section. 1. PLACE OF MEETING. All meetings of shareholders shall be held
at the principal executive office of the corporation, or at any other 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 persons entitled to vote at
such meeting who are not present thereat. Such consent may be given either
before or after the meeting and shall be filed with the secretary of the
corporation.
Section 2. ANNUAL MEETINGS.
(a) Annual meetings of shareholders shall be held on the 30th day of
January, each year, at 10 o'clock a.m.; provided, however, that when such day
falls upon a legal holiday, then the annual meeting shall be held at the same
time and place on the next day thereafter ensuing which is a full business day.
At such meetings directors shall be elected, reports of the affairs of the
corporation shall be considered, and any other business may be transacted which
is within the powers of the shareholders.
(b) Written notice of each annual meeting shall be given to each
shareholder entitled to vote, either personally or by mail or other means of
written communication, charges prepaid, addressed to such shareholder at his
address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice.
(c) If any notice or report addressed to the shareholder at the address of
such shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder upon written demand of the shareholder at the principal
executive office of the corporation for a period of one year from the date of
the giving of the notice or report to all other shareholders.
(d) If a shareholder gives no address, notice shall be deemed to have been
given him if sent by mail or other means of written communication addressed to
the place where the principal executive office of the corporation is situated,
or if published at least once in a newspaper of general circulation in the
county in which said principal executive office is located.
(e) Any notice of an annual meeting shall be given to each shareholder
entitled thereto not less than ten days nor more than sixty days before such
meeting. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such notice in accordance with the
foregoing provisions, executed by the secretary, assistant secretary or any
transfer agent of the corporation shall be prima facie evidence of the giving of
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the notice.
(f) Notice of an annual meeting shall specify:
(1) the place, the date, and the hour of such meeting;
(2) those matters which the board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(3) if directors are to be elected, the names of nominees intended at
the time of the notice to be presented by management for election;
(4) the general nature of any proposal to approve (i) a contract or
other transaction with an interested director, as described in Section 310 of
the Corporations Code, (ii) an amendment to the articles of incorporation
pursuant to Section
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902 thereof, (iii) a reorganization pursuant to Section 1201 thereof, (iv) a
voluntary dissolution pursuant to Section 1900 thereof, or (v) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 thereof, and
(5) such other matters, if any, as may be expressly required by a
statute.
Section 3. SPECIAL MEETINGS.
(a) Special meetings of the shareholders may be called at any time by
the chairman of the board or the president, or by the board of directors, or by
one or more shareholders holding not less than ten percent of the votes at the
meeting.
(b) Upon receipt of a request in writing delivered personally or sent
by registered mail or by telegraphic or other facsimile transmission to the
chairman of the board, president, any vice president or secretary by any person
(other than the board) entitled to call a special meeting of shareholders that a
special meeting of shareholders be called at the specified time for any proper
purpose set forth in such request, the officer shall forthwith cause notice to
be given to shareholders entitled to vote that a meeting will be held at the
times requested by the person or persons calling the meeting, not less than
thirty-five nor more than sixty days after receipt of the request.
(c) If such notice shall not be given within twenty days after the date
of receipt of such request, the person or persons entitled to call the meeting
may give notice of the meeting. Except where other express provisions are made
by statute, notice of such special meetings shall be given in the manner
provided for in Sections 2(b), (c), (d) and (e) for annual meetings of
shareholders. In addition to the requirements of items f(1) and, if applicable,
f(3) of Section 2, notice of any special meeting shall specify the general
nature of the business to be transacted.
Section 4. QUORUM. Subject to the articles of incorporation, the presence
in person or by proxy of the persons entitled to vote a majority of the voting
shares at any meeting shall constitute a quorum for the transaction of business.
The shareholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, but only if any
action taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
Section 5. ADJOURNED MEETING AND NOTICE THEREOF.
(a) Any shareholders' meeting may be adjourned from time to time by the
vote of a majority of the shares whose holders are either present in person or
represented by proxy thereat.
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(b) When any shareholders' meeting is adjourned for more than forty-
five days, or if after adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given as in the case of an
original meeting. Except as provided above, 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 of the time and place thereof
at the meeting at which such adjournment is taken.
Section 6. VOTING.
(a) Unless a record date for voting purposes is filed as provided in
Section 1 of Article V of these bylaws then, subject to the provisions of
Sections 702, 703 and 704 of the Corporations Code relating to voting of shares
held by a fiduciary, in the name of a corporation, or in joint ownership, only
persons in whose names shares entitled to vote stand on the stock records of the
corporation at the close of business on the business day next preceding the day
on which notice of the meeting is given or, if such notice is waived, at the
close of business on the business day next preceding the day on which the
meeting of shareholders is held, shall be entitled to vote at such meeting.
Except with respect to the election of directors, each shareholder shall be
entitled to one vote for each full share entitled to be voted by such
shareholder and any fractional share held by such shareholder shall not be
entitled to any voting rights whatsoever. On any matter other than the election
of directors, any shareholder may vote part of the shares in favor of the
proposal and refrain from voting the remaining shares or vote them against the
proposal, but, if the shareholder fails to specify it will be conclusively
presumed that the shareholder's approving vote is with respect to all shares
that the shareholder is entitled to vote.
(b) Voting may be by voice or by ballot; provided, however, that all
elections for directors must be by ballot if a shareholder so demands before the
voting begins.
(c) Except as provided in Subsection (d) or as required by the
Corporations Code or the articles of incorporation, if a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting and
entitled to vote on any matter shall be the act of the shareholders.
(d) Every shareholder entitled to vote at any election for directors
shall have the right to cumulate his 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 his shares are entitled, or to distribute his votes on the same
principal among as many candidates as he shall think fit, provided that no
shareholder shall be entitled to cumulate votes unless the name of the candidate
or candidates for whom such votes would be cast has been placed in nomination
prior to the voting and a shareholder has given notice at the meeting prior to
the voting of his intention
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to cumulate his votes. The candidates receiving the highest number of votes of
shares entitled to be voted for them, up to the number of directors to be
elected, shall be elected.
Section 7. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, however called and noticed, shall
be as valid as though had at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy, and if, either before or
after the meeting, each of the persons entitled to vote not present in person or
by proxy or who, though present, has, at the beginning of the meeting, properly
objected to the transaction of any business because the meeting was not lawfully
called or convened or because of the exclusion of particular matters of business
legally required to be included in the notice, signs a written waiver of notice,
or a consent to the holding of such meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business to
be transacted or the purpose of any meeting of shareholders, except that if
action is taken or proposed to be taken for approval of any of those matters
specified in Section 2(f)(4) of this Article II, the waiver of notice or consent
shall state the general nature of the action taken or proposed to be taken. All
such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 8. ACTION WITHOUT A MEETING.
(a) Directors may be elected without a meeting by a written consent,
signed by all of the persons who would be entitled to vote for the election of
directors, provided that a director may be elected without notice at any time to
fill a vacancy other than one created by removal, not filled by the directors by
the written consent of the holders of a majority of the outstanding shares
entitled to vote for the election of directors.
(b) Any other action which may be taken at a meeting of the
shareholders, may be taken without a meeting, and, except as provided in
Subsection (c), without notice, if a consent in writing, setting forth the
action so taken, is 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.
(c) If the consents of all shareholders entitled to vote have not been
solicited in writing, shareholders entitled to vote who have not given written
consent shall be given the following:
(1) Notice of any proposed shareholder approval of, (i) a contract
or other transaction with an interested director as described in Section 310 of
the Corporations Code, (ii) indemnification of an agent of the corporation as
authorized by
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Section 11 of Article V of these bylaws, (iii) a reorganization of the
corporation pursuant to Section 1201 of the Corporations Code, or (iv) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, pursuant to Section 2007 thereof, at least ten
days before the consummation of the action authorized by such approval; and
(2) Prompt notice of the taking of any other corporate action
approved by shareholders without a meeting by Less than unanimous written
consent.
(d) Notices given pursuant to Subsection (c) of this Section shall be
given in the manner provided in. Section 2 of this Article.
(e) Unless the board of directors has fixed a record date for the
determination of shareholders entitled to receive such notice and to give such
written consent pursuant to Section 1. of Article V hereof, the record date for
such determination shall be the day on which the first written consent is given.
All such written consents shall be filed with the secretary of the corporation.
(f) Any shareholder, proxyholder, or a transferee of shares, personal
representative of the shareholder or their respective proxyholders, giving a
written consent, may revoke the consent by a writing received by the corporation
prior to the time that written consents of the number of shares required to
authorize the proposed action have been filed with the secretary of the
corporation, but may not do so thereafter. Such revocation is effective upon its
receipt by the secretary of the corporation.
Section 9. PROXIES.
(a) Every person entitled to vote or execute consents shall have the
right to do so either in person or by one or more agents authorized by a written
proxy executed by such person or his duly authorized agent and filed with the
secretary of the corporation. A proxy shall be deemed executed if the
shareholder's name is placed on the proxy (either by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney in fact. A duly executed proxy which does not state that
it is irrevocable shall continue in full force and effect until, (i) an
instrument revoking it or a duly executed proxy bearing a later date is filed
with the secretary of the corporation prior to the vote pursuant thereto, (ii)
the person executing the proxy attends the meeting and votes in person, or (iii)
written notice of the death or incapacity of the maker of such proxy is received
by the corporation before the counting of the vote in which such proxy has been
cast; provided that no such proxy shall be valid after the expiration of eleven
months from the date of its execution, unless the person executing it specifies
therein the length of time for which such proxy is to continue in force.
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(b) The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Subsections 703(e) and 705(f)
of the Corporations Code.
(c) Executors, administrators, guardians, trustees or any fiduciary,
may give proxies, waive notice of and consent to any meeting of shareholders, or
authorize by a writing, any action which could be taken by shareholders. The
manner of execution, revocation and use of proxies shall be governed by the
provisions of the Corporations Code except that the board of directors may, in
advance of any meeting of the shareholders, prescribe additional regulations
concerning the manner of execution, filing and validation of proxies which are
intended to be voted at any such meeting.
(d) If any instrument of proxy designates two or more persons to act as
proxy, in the absence of any provision in the proxy to the contrary, the persons
designated may represent and vote the shares in accordance with the vote or
consent of the majority of the persons named as such proxies. If only one such
proxy is present, he may vote all the shares, and all the shares standing in the
name of the principal or principals for whom such proxy acts shall be deemed
represented for the purpose of obtaining a quorum. The foregoing provisions
shall apply to the voting of shares by proxies for any two or more
administrators, executors, trustees or other fiduciaries, unless an instrument
or order of court appointing them otherwise directs.
Section 10. INSPECTORS OF ELECTION.
(a) In advance of any meeting of shareholders, the board of directors
may appoint any persons other than nominees for office as inspectors of election
to act at such meeting or any adjournment thereof. If inspectors of election are
not so appointed, the chairman of any such meeting may, and on the request of
any shareholder or his proxy shall, make such appointment at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting on
the request of one or more shareholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one or three
inspectors are to be appointed. In case any person appointed as inspector fails
to appear or fails or refuses to act, the vacancy may, and on the request of any
shareholder or his proxy shall, be filled by appointment by the board of
directors in advance of the meeting, or at the meeting by the chairman of the
meeting.
(b) Such inspectors shall (1) determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum and the authenticity, validity and effect of proxies;
(2) receive votes, ballots or consents; (3) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (4) count
and tabulate all votes or consents; (5) determine when the
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polls shall close; (6) determine the result; and (7) perform such acts as may be
proper to conduct the election or vote with fairness to all shareholders. In
determining the validity and effect of proxies, the dates contained on the forms
of proxy shall presumptively determine the order of execution of the proxies,
regardless of the postmark dates on the envelope in which they are mailed.
(c) If there are three inspectors of election, the decision, act, or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein.
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Section 11. ORGANIZATION. At every meeting of the shareholders, the
president, or in his absence any vice president designated by the president or
the board of directors or a chairman chosen by a majority in interest of the
shareholders of the corporation present in person or by proxy and entitled to
vote, shall act as chairman. The secretary of the corporation, or in his absence
an assistant secretary, shall act as secretary of all meetings of the
shareholders. In the absence of the secretary and assistant secretary, the
chairman may appoint another person to act as secretary of the meeting.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the articles of incorporation
and of the Corporations Code pertaining to action to be authorized or approved
by the shareholders, and subject to the duties of directors as prescribed by the
bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the corporation shall be controlled by, the
board of directors. Without prejudice to such general powers, but subject to the
same limitations, it is hereby expressly declared that the directors shall have
the following powers:
(a) To select and remove all the officers, agents and employees of the
corporation, prescribe powers and duties for them not inconsistent with law,
with the articles of incorporation or the bylaws, to fix their compensation, and
to 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 of incorporation or the bylaws;
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(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 may deem best,
provided such seal and such certificates shall at all times comply with the
provisions of the law;
(d) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms as are 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 securities;
(f) By resolution adopted by a majority of the authorized number of
directors, to designate an executive committee or other committees, each
consisting of two or more directors to serve at the pleasure of the board, and
to prescribe the manner in which proceedings of such committees shall be
conducted. Unless the board of directors shall prescribe a different manner for
such proceedings, meetings of such committees may be regularly scheduled in
advance or may be called at any time by any two members thereof; otherwise, the
provisions of these bylaws with respect to notice and conduct of meetings of the
board shall govern. Any such committee, to the extent provided in a resolution
of the board, shall have all of the authority of the board, except with respect
to:
(1) the approval of any action for which the Corporations Code or the
articles of incorporation also requires shareholder approval;
(2) the filling of vacancies on the board or in any committee;
(3) the fixing of compensation of the directors for serving on the
board or on any committee;
(4) the adoption, amendment or repeal of bylaws;
(5) the amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repealable;
(6) any distribution to the shareholders, except at a rate or in a
periodic amount or within a price range determined by the board; and
(7) the appointment of other committees of the board or the members
thereof.
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Section 2. NUMBER AND QUALIFICATION OF DIRECTORS.
(a) The number of directors of the corporation shall be not less than 3
nor more than 5 until changed by amendment of the articles of incorporation or
by a bylaw amending this Section 2 duly adopted by the vote or written consent
of holders of a majority of the outstanding shares entitled to vote, provided
that a proposal to reduce the authorized number or the minimum number of
directors below 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.
(b) The exact number of directors shall be fixed from time to time,
within the limits specified in the articles of incorporation or in this Section
2, by a bylaw or amendment thereof duly adopted by the vote of a majority of the
shares entitled to vote represented at a duly held meeting at which a quorum is
present, or by the written consent of the holders of a majority of the
outstanding shares entitled to vote, or by the board of directors. The exact
number of directors of this corporation shall be 3 until changed in compliance
with this Subsection. No director need be a shareholder.
Section 3. ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of 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 duly noticed special meeting of
shareholders. All directors shall hold office until their respective successors
are elected and qualified, subject to the provisions of the Corporations Code
and of these bylaws with respect to vacancies on the board.
Section 4. VACANCIES.
(a) A vacancy on the board of directors shall be deemed to exist if a
director has died, resigned or been removed, or if the authorized number of
directors is 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
board of directors may also declare vacant the office of a director who has been
declared of unsound mind by an order of court or has been convicted of a felony.
(b) Vacancies on the board of directors, except for a vacancy created
by the removal of a director, may be filled by a majority of the remaining
directors, though less than quorum, or by a sole remaining director, and each
director so elected shall hold office until his successor is elected at an
annual or a special meeting of the shareholders. A vacancy on the board created
by the removal of a director may only be filled by the vote of a majority of
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the shares entitled to vote represented at a duly held meeting at which a quorum
is present, or by the written consent of the holders of a majority of the
outstanding shares.
(C) The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the directors. Any such
election by written consent shall require the consent of holders of a majority
of the outstanding shares entitled to vote.
(d) Any director may resign effective upon giving written notice
to the chairman of the board, the president, or the secretary of the board of
directors of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the board of directors 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.
(e) No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of his term of
office.
Section 5. PLACE OF MEETING. Regular meetings of the board of
directors shall be held at any place within or without the State of California
which has been designated from time to time by resolution of the board or by
written consent of all members of the board. In the absence of such designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board may be held either at a place
designated by resolution of the board or in the notice of meeting, or if not so
designated, at the principal executive office.
Section 6. ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders, the board of directors shall hold a regular meeting at
the place of said annual meeting or at such other place as shall be fixed by the
board of directors, for the purpose of organization, election of officers, and
the transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the
board of directors shall be held without notice if the date and place of such
meetings are fixed by the board. Should said date fall upon a legal holiday,
then said meeting shall be held at the same time on the next day thereafter
ensuing which is a full business day.
Section 8. SPECIAL MEETINGS.
(a) Special meetings of the board of directors for any
purpose or purposes may be called at any time by the chairman of the board, the
president, any vice president, the secretary or by any two directors.
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(b) Special meetings of the board of directors shall be
held upon at least four days' notice by mail or upon forty-eight hours' notice
delivered personally or by telephone or telegraph.
(c) Notice by mail shall be deemed given at the time a
written notice is deposited in the United States mail, first class postage
prepaid, addressed to the recipient at his address as it is shown upon the
records of the corporation, or, if it is not so shown on such records and is not
readily ascertainable, at the principal executive office of the corporation.
Notice by telegraph shall be deemed given when it is actually transmitted by the
telegraph company. Notice by telephone shall be deemed given when it is
communicated by telephone to the recipient or to a person at the office of the
recipient, if the person giving the notice has reason to believe it will
promptly be communicated to the recipient.
(d) Any notice of a special meeting shall state the date,
place and hour of the meeting. A notice need not specify the purpose of the
meeting.
Section 9. ACTION WITHOUT MEETING. Any action 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 and shall have the same force and effect as a unanimous vote of the
directors.
Section 10. ACTION AT A MEETING: QUORUM AND REQUIRED VOTE.
(a) Presence of a majority of the authorized number of
directors at a meeting of the board of directors constitutes a quorum for the
transaction of business, except as hereinafter provided. 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. Participation in a meeting as permitted in the preceding
sentence constitutes presence in person at such meeting.
(b) 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 of directors, subject to the articles of
incorporation and the provisions of Section 310 of the Corporations Code
regarding transactions with interested directors, Section 311 thereof regarding
the appointment of committees, and of Subsection 317(e) thereof regarding
indemnification of corporate officers, directors and other agents. A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, provided that any action taken is
approved by at least a majority of the required quorum for such meeting.
12.
Section 11. WAIVER OF NOTICE. The transactions of any meeting of
the board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is present and if, either before or after the meeting, each of the
directors who was not present or who, though present, had prior to the meeting
or at its commencement, protested the lack of proper notice to him, signs a
written waiver of notice or 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 12. ADJOURNMENT. A majority of the directors present, whether
or not constituting a quorum, may adjourn any directors' meeting to another time
and place.
Section 13. NOTICE OF ADJOURNMENT. 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 adjournment. Otherwise notice of the time
and place of holding an adjourned meeting need not be given to absent directors
if the time and place be fixed at the original meeting.
Section 14. CONDUCT OF MEETINGS. At every meeting of the board of
directors the chairman of the board of directors, if there shall be such an
officer, shall preside. If not, a chairman chosen by a majority of the directors
present shall preside. The secretary of the corporation shall act as secretary
of the board of directors. In case the secretary shall be absent from any
meeting of the board, an assistant secretary shall perform the duties of the
secretary at such meeting. In the absence from any such meetings of both the
secretary and the assistant secretary, the chairman may appoint any person to
act as secretary of the meeting.
Section 15. FEES AND COMPENSATION. Directors and members of committees
may receive such compensation for their services, and such reimbursement for
expenses, as may be fixed or determined by resolution of the board. This Section
shall not be construed as precluding any director from serving the corporation
in any other capacity as an officer, agent, employee, or otherwise, and
receiving compensation for those services.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The corporation shall have a chairman of the board
or a president, or both of such officers, a secretary, a chief financial officer
and, if the board of directors
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so determines, may have one or more vice presidents, assistant secretaries and
assistant financial officers. The board of directors may from time to time also
elect such other officers as it shall deem necessary and shall determine the
terms of office, powers and duties of such officers. Any number of offices may
be held by the same person.
Section 2. ELECTION. The officers of the corporation except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be chosen annually by the board of directors,
and each shall hold his office at the pleasure of the board, or until he shall
resign or shall be removed or otherwise disqualified to serve, or his successor
shall be elected and qualified.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint,
and may empower the president to 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 of directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION.
(a) Any officer may be removed either with or without cause by a
majority of the directors at the time in office, at any regular or special
meeting of the board, or, except in case of an officer chosen by the board of
directors, by any officer upon whom such power of removal may be conferred by
the board of directors. The corporation's right to remove any officer shall be
subject to such officer's rights under any contract of employment.
(b) Any officer may resign at any time by giving written notice
to the board of directors or to the president, or to the secretary of the
corporation, without prejudice, however, to any right which the corporation may
have under any contract to which such 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 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the bylaws for regular appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The chairman of the board, if
there shall be such an officer, shall, if present, preside at all meetings of
the board of directors and exercise and perform such other powers and duties as
may be assigned to him from time to time by the board of directors or prescribed
by the bylaws.
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Section 7. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the board of directors to the chairman of the board, if there is
such an officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and in the
absence of the chairman of the board, or if there is none, at all meetings of
the board of directors. He shall be ex-officio a member of all the standing
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committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of
president of a corporation and shall have such other powers and duties as may be
prescribed by the board of directors or the bylaws.
Section 8. VICE PRESIDENT. In the absence or disability of the
president, the vice presidents in order of their rank as fixed by the board of
directors or, if not ranked, a vice president designated by the board of
directors, 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 vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors or the bylaws or by the chairman of the board or the
president.
Section 9. SECRETARY.
(a) The secretary shall record or cause to be recorded, and shall
keep or cause to be kept, written minutes of the proceedings of the
shareholders, board of directors, and committees of the board.
(b) The secretary shall keep, or cause to kept, at the
principal executive office or at the office of the corporation's transfer agent
a record of its shareholders showing the names and addresses of shareholders and
the number and all classes of shares held by each.
(c) The secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the board of directors required by the
bylaws or by law to be given, and he shall keep the seal of the corporation in
safe custody and shall affix it to stock certificates prior to issuance and to
such other instruments as the board of directors shall prescribe. He shall
perform all other duties incident to the office of secretary and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or by the bylaws.
Section 10. ASSISTANT SECRETARY. At the request of the secretary, or in
his absence or disability, the assistant secretary, designated by him shall
perform all the duties of the secretary, and when so acting, he shall have all
the powers of, and be subject to
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all the restrictions upon, the secretary. The assistant secretary shall perform
such other duties as from time to time may be assigned to him by the board of
directors or the secretary.
Section 11. CHIEF FINANCIAL OFFICER.
(a) The chief financial officer of the corporation shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and of the business transactions
of the corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital and shares.
(b) The chief financial officer shall have charge and
custody of, and be responsible for, all funds and securities of the corporation
and shall open accounts at, and deposit all monies 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. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the
corporation. He shall perform all other duties incident to the office of chief
financial officer and have such other powers and perform such other duties as
may be prescribed by the board of directors or the bylaws.
Section 12. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
MISCELLANEOUS
Section 1. RECORD DATE. The board of directors may fix, in advance, a
record date not more than sixty days nor less than ten days prior to the date of
any meeting, nor more than sixty days prior to any other action for which it is
fixed. Only shareholders of record on a record date so fixed are entitled to
notice of and to vote at any such meeting, to give consent without a meeting, to
receive any report, to receive a dividend or distribution or any allotment of
rights or to exercise any other rights of shareholders, 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 bylaws.
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Section 2. INSPECTION OF CORPORATE RECORDS.
(a) The accounting books and records, the record of
shareholders, and minutes of proceedings of the shareholders and the board and
committees of the board of the corporation and any subsidiary of the corporation
shall be open to inspection upon the written demand on the corporation of any
shareholder or holder of a voting trust certificate at any reasonable time
during usual business hours, for a purpose reasonably related to such holder's
interests as a shareholder or as the holder of such voting trust certificate.
Such inspection by a shareholder or holder of a voting trust certificate may be
made in person or by agent or attorney, and the right of inspection includes the
right to copy and make extracts.
(b) A shareholder or shareholders holding at least five
percent in the aggregate of the outstanding voting shares of the corporation or
who hold at least one percent of such voting shares and have filed a Schedule
14B with the United States Securities and Exchange Commission relating to the
election of directors of the corporation shall have the absolute right (in
person, or by agent or attorney) to inspect and copy the record of shareholders'
names and addresses and shareholdings during usual business hours upon five
business days' prior written demand upon the corporation and to obtain from the
transfer agent for the corporation, upon written demand and upon the render of
its usual charges, a list of names and addresses of the shareholders who are
entitled to vote for the election of directors, and their shareholdings, as of
the most recent record date for which it has been compiled or as of a date
specified by the shareholder subsequent to the date of demand. The list shall be
made available on or before the later of five business days after the date the
demand is received or the date specified therein as the date of which the list
is to be compiled.
(c) Every director shall have the absolute right at any
reasonable time to inspect and copy all books, records and documents of every
kind and to inspect the physical properties of the corporation and any
subsidiary corporation. Such inspection by a director may be made in person or
by agent or attorney.
Section 3. CHECKS, DRAFTS, ETC.
(a) All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness issued in the name of or payable
to the corporation shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
board of directors.
(b) Endorsements for deposit to the credit of the corporation in
any of its duly authorized depositories may be made without countersignature by
the president or any vice president or the chief financial officer or by any
other officer or agent of the
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corporation to whom the board of directors, by resolution, shall have delegated
such power, or by hand-stamped impression in the name of the corporation.
Section 4. ANNUAL AND OTHER REPORTS.
(a) The corporation shall not be required to send to its
shareholders the annual report described in Section 1501 of the Corporations
Code.
(b) A shareholder or shareholders holding at least five
percent of the outstanding shares of any class of the corporation may make a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the current fiscal year
ended more than thirty days prior to the date of the request and a balance sheet
of the corporation as of the end of such period. The statement shall be
delivered or mailed to the person making the request within thirty days
thereafter. A copy of the statements shall be kept on file in the principal
executive office of the corporation for twelve months and they shall be
exhibited at all reasonable times to any shareholder demanding an examination of
them or a copy shall be mailed to such shareholder.
(c) The corporation shall; upon the written request of
any shareholder, mail to the shareholder a copy of the last annual, semi-annual
or quarterly income statement which it has prepared and a balance sheet as of
the end of the period. The quarterly income statements and balance sheets shall
be accompanied by the report thereon, if any, of any independent accountants
engaged by the corporation or by the certificate of an authorized officer of the
corporation or by the certificate of an authorized officer of the corporation
that such financial statements were prepared without audit from the books and
records of the corporation.
Section 5. CONTRACTS. Except as otherwise provided in the
bylaws, the board of directors may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the corporation, and such authority may be general or confined to
specific instances; and, unless so authorized by the board of directors, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or to any amount, except as otherwise provided by law.
Section 6. STOCK CERTIFICATES.
(a) Every holder of shares in the corporation shall be
entitled to have a certificate signed in the name of the corporation by the
chairman or vice chairman of the board or the president or a vice president and
by the chief financial officer or
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the secretary or assistant secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any of the signatures on the
certificate may be facsimile. in case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, it may be issued by the corporation with
the same effect as if such person were an officer, transfer agent or registrar
at the date of issue.
(b) Any such certificate shall also contain any legend or
other statement required by Sections 417 or 418 of the Corporations Code, by the
Corporate Securities Law of 1968, and by the federal securities laws. This shall
include, without limitation any statement required by the existence of any
agreement between the corporation and the proposed issues of a certificate.
(c) Certificates for shares may be issued prior to full
payment under such restrictions and for such purposes as the board of directors
or the bylaws may provide; provided, however, that any such certificate so
issued prior to full payment shall state on the face thereof the amount
remaining unpaid and the terms of payment thereof.
Section 7. TRANSFER ON THE BOOKS.
(a) Upon surrender to the secretary or transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the
secretary or transfer agent shall issue a new certificate to the person entitled
thereto. A person in whose name shares of stock stand on the books of the
corporation shall be deemed the owner thereof as regards the corporation;
provided that whenever any transfer of shares shall be made for collateral
security, and not absolutely, and written notice thereof shall be given to the
secretary of the corporation or its transfer agent, such fact shall be stated in
the entry of the transfer.
(b) when a transfer of shares is requested and there is
reasonable doubt as to the right of the person seeking the transfer, the
corporation or its transfer agent, before recording the transfer of the shares
on its books or issuing any certificate therefor, may require from the person
seeking the transfer reasonable proof of his right to the transfer, or may
require adequate security or a bond of indemnity executed by a corporate surety
or by two individual sureties satisfactory to the corporation as to form,
amount, and responsibility of sureties. The bond shall be conditioned to protect
the corporation, its officers, transfer agents, and registrars, or any of them,
against any loss, damage, expense, or other liability to the owner of the shares
by reason of the recordation of the transfer or the issuance of a new
certificate for shares.
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Section 8. LOST, STOLEN AND DESTROYED CERTIFICATES. The holder
of any certificate for shares of the corporation shall immediately notify the
corporation of any loss, theft or destruction of such certificate, and the
corporation may issue a new certificate to replace such certificate alleged to
have been lost, stolen or destroyed. The board of directors may, in its
discretion, require the owner of the lost, stolen or destroyed certificate or
his legal representative to give the corporation a bond in such sum and with
such surety or sureties, as it may direct, to indemnify the corporation, its
transfer agent and registrar against any claim that may be made against it on
account of or arising out of the alleged loss, theft or destruction of any such
certificate or the issuance of the new certificate.
Section 9. COMPULSORY EXCHANGE OF CERTIFICATES. When the articles of
incorporation are amended in any way affecting the statement contained in the
certificates for outstanding shares, or when, in the discretion of the board of
directors, it becomes desirable for any reason to cancel any outstanding
certificate for shares and issue a new certificate therefor conforming to the
rights of the holder, the board of directors may order any holder of outstanding
certificates for shares to surrender and exchange them for new certificates
within a reasonable time to be fixed by the board of directors. Such order may
provide that a holder of any certificate so ordered to be surrendered is not
entitled to vote or to receive dividends or to exercise any of the other rights
of shareholders of record until he has complied with the order, but such order
shall operate to suspend such rights only after notice and until compliance.
Section 10. INSPECTION OF BY-LAWS. The secretary shall keep at
the principal executive office in California, or if the principal executive
office is not in California, then at the principal business office in
California, the original or a copy of the bylaws as amended to date, certified
by the secretary, which shall be available for inspection by the shareholders at
all reasonable times during office hours. If the corporation has neither a
principal executive office nor a principal business office in California, it
shall furnish a copy of the bylaws as amended to date to any shareholder who
makes a written request for such bylaws.
Section 11. INDEMNIFICATION. The corporation shall indemnify any
officer, director or other agent of the corporation who has been successful on
the merits in defense of any proceeding referred to in Subsections 317(b) or (c)
of the Corporations Code, or in defense of any claim, issue or matter in such
proceeding, against expenses actually and reasonably incurred by the agent in
connection therewith. The corporation may also indemnify, or purchase and
maintain insurance for, any officer, director, or other agent, to the extent
permitted by Section 317 of the Corporations Code.
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Section 12. CONSTRUCTIONS AND DEFINITIONS. Unless the content otherwise
requires the general provisions, rules of construction and definitions contained
in the California Corporations Code shall govern the construction of these
bylaws.
ARTICLE VI
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted
or these bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the corporation's articles of incorporation set forth the
number of its authorized directors, the authorized number of directors may be
changed only by an amendment of the articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article VI, new bylaws may be
adopted or these bylaws amended or repealed by the board of directors, provided
that no such bylaw may change the authorized number of directors of the
corporation except that, if the corporation has a variable board of directors,
such bylaw may fix the exact number of directors within the limits specified in
the articles of incorporation or in Section 2 of Article III of the bylaws.
CERTIFICATE OF SECRETARY
THE UNDERSIGNED DOES HEREBY CERTIFY:
That I am the duly elected, qualified and acting Secretary of
BIA HOTEL CORP., a California corporation, and that the above and foregoing
Bylaws were adopted as the Bylaws of said corporation on April 15, 1984, by the
directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of April, 1984.
/s/ Robert Snukal
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Robert Snukal, Secretary
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