Exhibit 3.4
AMENDED AND RESTATED
BYLAWS
OF
SUMMIT CARE CORPORATION
Article 1
Offices
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1.1 Principal Office. The board of directors shall fix the
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location of the principal executive office of the corporation at any place
within or outside 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
likewise fix and designate a principal business office in the State of
California.
1.2 Other Offices. The corporation may also establish
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offices at such other places, both within and outside the State of California,
as the board of directors may from time to time determine or the business of
the corporation may require.
Article 2
Meetings of Shareholders
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2.1 Place of Meetings. Meetings of shareholders shall be held
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at any place within or outside the State of California designated by the board
of directors. In the absence of any such designation, shareholders' meetings
shall be held at the principal executive office of the corporation.
2.2 Annual Meetings. The annual meeting of shareholders shall
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be held on the 15th day of November in each year at 10:00 o'c1ock, a.m., or such
other date or time as may be fixed by the board of directors; provided, however,
that should said day fall upon a legal holiday, such annual meeting of
shareholders shall be held at the same time on the next succeeding day which is
a full business day. At such meeting, directors shall be elected and any other
proper business may be transacted.
2.3 Special Meetings. A special meeting of the shareholders
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may be called at any time by the board of directors, the chairman of the board,
the president, or one or more shareholders holding in the aggregate shares
entitled to cast not less than ten percent of the votes at any such meeting. If
a special meeting is called by any one other than the board of directors, the
request shall be in writing, specifying the time of the meeting and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, any vice president or
the secretary of the
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corporation. The officer receiving such request forthwith shall cause notice to
be given to the shareholders entitled to vote, in accordance with the provisions
of Sections 2.4 and 2.5, that a meeting will be held at the time requested by
the person or persons calling the meeting, not less than 35 nor more than 60
days after the receipt of the request. If the notice is not given within 20 days
after receipt of the request, the person or persons requesting the meeting may
give the notice. Nothing contained in this Section 2.3 shall be construed as
limiting, fixing or affecting the time when a meeting of shareholders called by
action of the board of directors may be held.
2.4 Notice of Meetings. All notices of meetings of
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shareholders shall be sent or otherwise given in accordance with Section 2.5 not
1ess than ten nor more than 60 days before the date of the meeting being
noticed. The notice shall specify the place, date and hour of the meeting and
(a) in the case of a special meeting, the general nature of the business to be
transacted, or (b) in the case of the annual meeting, those matters which the
board of directors, at the time of giving 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 name of any nominee or nominees whom, at the time
of the notice, the board intends to present for election
If action is proposed to be taken at any meeting for approval
of (i) a contract or transaction in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the California Corporations Code
(the "Code"), (ii) an amendment of the articles of incorporation, pursuant to
Section 902 of the Code, (iii) a reorganization of the corporation, pursuant to
Section 1201 of the Code, (iv) a voluntary dissolution of the corporation,
pursuant to Section 1900 of the Code, or (v) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, pursuant to
Section 2007 of the Code, the notice shall also state the general nature of such
proposal.
2.5 Manner of Giving Notice. Notice of any meeting of
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shareholders shall be given personally or by first-class mail or telegraphic or
other written communication, charges prepaid, addressed to the shareholder at
the shareholder's address appearing on the books of the corporation or given by
the shareholder to the corporation for the purpose of notice. If no such address
appears on the corporation's books or is given, notice shall be deemed to have
been given if sent to that shareholder by first-class mail or telegraphic or
other written communication to the corporation's principal executive office, or
if published at least once in a newspaper of general circulation in the county
in which the principal executive office is located. Notice shall be deemed to
have been given when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
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If any notice addressed to a 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
Service is unable to deliver the notice 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 to the shareholder upon written
demand at the principal executive office of the corporation for a period of one
year from the date of the giving of such notice or report to all other
shareholders.
An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting may be executed by the secretary, assistant
secretary or any transfer agent of the corporation, and shall be filed and
maintained in the minute book of the corporation.
2.6 Quorum. Unless otherwise provided in the articles of
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incorporation, the presence in person or by proxy of the holders of a majority
of the shares entitled to vote at any meeting of shareholders 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, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
2.7 Adjournment. Any shareholders' meeting, annual or
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special, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares represented at such meeting, either in
person or by proxy, but, in the absence of a quorum, no other business may be
transacted at such meeting, except as provided in Section 2.6.
When any meeting of shareholders, annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than 45 days from the date set for
the original meeting, in which case the board of directors shall set a new
record date. Notice of any such adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 2.4 and 2.5. At any adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting.
2.8 Voting. The shareholders entitled to notice of and to
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vote at any meeting of shareholders shall be determined in accordance with the
provisions of Section 2.11, subject to the provisions of Sections 702 to 704 of
the Code (relating to voting shares held by a fiduciary, in the name of a
corporation, or in
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the names of two or more persons). The vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by ballot if demanded
by a shareholder at the meeting and before the voting begins. Any shareholder
entitled to vote on any matter (other than elections of directors) 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 the number of shares such shareholder is voting affirmatively, it will
be conclusively presumed that the shareholder's approving vote is with respect
to all shares such shareholder is entitled to vote. 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 (other than the election of directors) shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the Code or the articles of incorporation.
At a shareholders' meeting involving the election of
directors, no shareholder shall be entitled to cumulate votes on behalf of any
candidate for director (i.e., cast for any candidate a number of votes greater
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than the number of votes which such shareholder normally is entitled to cast)
unless such candidate or candidates' names have been placed in nomination prior
to the voting and the shareholder has given notice prior to the voting of the
shareholder's intention to cumulate votes. If any shareholder has given such
notice, every shareholder entitled to vote may cumulate votes for candidates in
nomination 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 share-
holder's shares are normally entitled, or distribute the shareholder's votes on
the same principle among as many candidates as the shareholder thinks fit. The
candidates receiving the highest number of affirmative votes, up to the number
of directors to be elected, shall be elected; votes against the director and
votes withheld shall have no legal effect.
2.9 Waiver of Notice and Consent. The transactions of any
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meeting of shareholders, annual or special, however called and noticed, and
wherever held, shall be as valid as though they had occurred 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 person entitled to
vote, who was not present in person or by proxy, signs a written waiver of
notice, or a consent to a holding of the meeting, or an approval of the minutes
thereof. Neither the waiver of notice nor the consent to holding of the meeting
nor the approval of the minutes thereof need specify either the business to be
transacted or the purpose of any annual or special meeting of shareholders,
except that if action is taken or proposed to be taken for approval of any
matters specified in the second paragraph of section 2.4, the waiver of notice
or the consent to the holding of the meeting and the approval of the minutes
thereof shall state the general nature
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of the proposal. All such waivers, consents or 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 also 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 not included in the notice of such meeting if such
objection is expressly made at the meeting.
2.10 Action Without Meeting. Unless otherwise provided in the
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articles of incorporation, 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, 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. In the case of
election of directors, such consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of
directors; provided, however, that a director may be elected at any time to fill
a vacancy on the board of directors 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. 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 proxy holder, or
a transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received by
the secretary of 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.
Unless the consents of all shareholders entitled to vote have
been solicited in writing, the secretary shall give prompt notice of any
corporate action approved by the shareholders without a meeting by less than
unanimous written consent to those shareholders entitled to vote who have not
consented in writing. Such notice shall be given in the manner specified in
Section 2.5. In the case of approval of (a) contracts or transactions in which a
director has a direct or indirect financial interest, pursuant to Section 310 of
the Code, (b) indemnification of agents of the corporation, pursuant to Section
317 of the Code, (c) a reorganization of the corporation, pursuant to Section
1201 of the Code, or (d) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of the
Code, such notice shall be given at least ten days before the consummation of
the action authorized by any such approval.
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2.11 Record Data. For purposes of determining the
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shareholders entitled to notice or any meeting or to vote or entitled to give
consent to corporate action without a meeting the board of directors may fix, in
advance, a record date, which shall not be more than 60 days nor less than ten
days prior to the date of the meeting nor more than 60 days prior to the action
without a meeting, and in such case only shareholders of record at the close of
business on the date so fixed are entitled to notice and to vote or to give
consents, 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 California General corporation Law.
If the board of directors does not so fix a record date:
(a) 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.
(b) The record date for determining shareholders
entitled to give consent to corporate action in writing without a meeting, (i)
when no prior action by the board has been taken, shall be the day on which the
first written consent is given, or (ii) when prior action of the board has been
taken, shall be at the close of business on the day on which the board adopts
the resolution relating thereto, or the sixtieth day prior to the date of such
other action, whichever is later.
2.12 Proxies. Every person entitled to vote for directors
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or on any other matter shall have the right to do so either in person or by one
or more agents authorized by a written proxy signed by the person and filed
with the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (a)
revoked by the person executing it, prior to the vote pursuant thereto, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy which is executed by the person executing the prior proxy and
is presented to the meeting, or as to any meeting by attendance at such meeting
and voting in person by the person executing the proxy; or (b) written notice of
the death or incapacity of the maker of the proxy is received by the corporation
before the vote pursuant thereto is counted; provided, however, that no such
proxy shall be valid after the expiration of eleven months from the date of the
proxy, unless otherwise provided in the proxy. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the provisions of
Section 705(e) and (f) of the Code.
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2.13 Inspectors of Election. Before any meeting of
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shareholders, the board of directors may appoint any persons (other than
nominees for office) to act as inspectors of election at the meeting or any
adjournments thereof. If inspectors of election are not so appointed, the
chairman of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election at the meeting. The
number of inspectors shall be either one or three. If inspectors are 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. If any person appointed as inspector fails to
appear or refuses to act, the chairman of the meeting may, and upon the request
of any shareholder or a shareholder's proxy shall, appoint a person to replace
the one who so failed or refused. If there are three inspectors of election, the
decision, act or certificate of a majority of them 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.
Article 3
Directors
3.1 Powers. Subject to the provisions of the California
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General Corporation Law and any limitations in the articles of incorporation and
these bylaws relating to action required to be approved by the shareholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the board of directors.
3.2 Number. The authorized number of directors shall be six
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until changed by an amendment to the articles of incorporation or, if permitted
by section 212 of the Code, by an amendment to this bylaw, duly adopted by the
vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided, however, that an amendment reducing the 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% of the outstanding shares
entitled to vote.
3.3 Election and Term of Office. Directors shall be elected
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at each annual meeting of the shareholders to hold office until the next annual
meeting. 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 qualified.
3.4 Removal. Any or all of the directors may be removed by
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order of court pursuant to Section 304 of the Code, or by the shareholders
pursuant to the provisions of Section 303 of the Code.
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3.5 Vacancies. Vacancies in the board of directors may be
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filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, except that a vacancy created by the removal of a
director may be filled only 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 holders of a majority of the outstanding shares entitled to
vote. Each director so elected shall hold office until the next annual meeting
of the shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be
deemed to exist in the case of the death, resignation or removal of any
director, or if the board of directors by resolution declares vacant the office
of a director who had been declared of unsound mind by an order of court or who
has been convicted of a felony, or if the authorized number of directors is
increased, or if the shareholders fail, at any meeting of shareholders at which
any director or directors are elected, to elect the number of directors to be
voted for at that meeting
The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies not filled by the directors, but any such
election by written consent other than to fill a vacancy created by removal
shall require the consent of a majority of the outstanding shares entitled to
vote.
Any director may resign effective upon giving written notice
to the chairman of the board, the president, the secretary or the board of
directors, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration of his or her
term of office.
3.6 Place of Meetings and Meetings by Telephone. Regular
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meetings of the board of directors may be held at any place within or outside
the State of California that has been designated from time to time by resolution
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 shall be held at any place within or outside the State of California that
has been designated in the notice of the meeting or, if not stated in the notice
or if there is no notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating can hear one
another, and all such directors shall be deemed to be present in person at such
meeting.
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3.7 Regular Meetings. Immediately following each annual
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meeting of shareholders, the board of directors shall hold a regular meeting for
the purpose of organization any, desired election of officers and the
transaction of other business. Other regular meetings of the board of directors
shall be held without call at such time as shall from time to time be fixed by
the board of directors. Notice of regular meetings shall not be required.
3.8 Special Meetings. Special meetings of the board of
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directors for any purpose or purposes may be called at any time by the chairman
of the board or the president or any vice president or the secretary or any two
directors.
Notice of the time and place of special meetings shall be
delivered to each director personally or by telephone or sent by first-class
mail or telegram, charges prepaid, addressed to each director at his or her
address as it is shown on the records of the corporation. In case the 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 delivered
personally or by telephone or telegraph, it shall be delivered personally or by
telephone or to the telegraph company at least 48 hours prior to the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose of the meeting and
it need not specify the place if the meeting is to be held at the principal
executive office of the corporation.
3.9 Quorum. A majority of the authorized number of directors
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shall constitute a quorum for the transaction of business, except to adjourn as
hereinafter provided. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of
Section 310 of the Code (approval of contracts or transactions in which a
director has a direct or indirect material financial interest), Section 311 of
the Code (appointment of committees), and Section 317(e) of the Code
(indemnification of directors). 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.
3.10 Contents of Notice and Waiver of Notice. The waiver of
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notice or consent need not specify the purpose of the meeting nor the business
to be transacted thereat. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes 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
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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
that director.
3.11 Adjournment. A majority of the directors present, whether
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or not constituting a quorum, may adjourn any meeting to another time and
place. Notice of the time and place of holding an adjourned meeting need not be
given, unless the meeting is adjourned for more than 24 hours, in which case
notice of such time and place shall be given prior to the time of the adjourned
meeting, in the manner specified in Section 3.8, to the directors who were not
present at the time of the adjournment.
3.12 Action Without Meeting. Any action required or
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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 action by written consent shall have the same force
and effect as a unanimous vote of the board of directors. The written consent or
consents shall be filed with the minutes of the proceedings of the board.
3.13 Fees and Compensation. Directors and members of
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committees may receive such, compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
board of directors. Nothing contained herein shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for such service.
Article 4
Committees
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4.1 Committees of Directors. The board of directors may, by
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resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors. Any such committee, to the extent provided in the resolution of
the board, may have all the authority of the board, except with respect to:
(a) the approval of any action which, under the California
General Corporation Law, also requires shareholders' approval or approval of the
outstanding shares;
(b) the filling of vacancies on the board of directors or
in any committee
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(c) the fixing of compensation of the directors for serving on the
board or an any committee;
(d) the amendment or repeal of bylaws or the adoption of new bylaws;
(e) the amendment or repeal of any resolution of the board of directors
which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the corporation, except at a
rate, in a periodic amount or within a price range set forth in the articles of
incorporation or determined by the board of directors; or
(g) the appointment of any other committees of the board of directors
or the members thereof.
4.2 Meetings and Action. Meetings and action of committees shall be
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governed by, and held and taken in accordance with, the provisions of Sections
3.6 (place of meetings and meetings by telephone), 3.7 (regular meetings), 3.8
(special meetings), 3.9 (quorum), 3.10 (contents of notice and waiver of
notice), 3.11 (adjournment) and 3.12 (action without meeting), with such changes
in the context of those bylaws as are necessary to substitute the committee and
its members for the board of directors and its members, except that: the time of
regular meetings of committees may be determined by resolution of the board of
directors as well as the committee; special meetings of committees may also be
called by resolution of the board of directors; and notice of special meetings
of committees shall also be given to all alternate members, who shall have the
right to attend all meetings of the committee. The board of directors may adopt
rules for the government of any committee not inconsistent with the provisions
of these bylaws.
Article 5
Officers
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5.1 Officers. The officers of the corporation shall be a president, a
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secretary and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant secretaries, one or more assistant treasurers,
and such other officers as may be appointed in accordance with the provisions of
Section 5.3. Any number of offices may be held by the same person.
5.2 Election. The officers of the corporation, except such officers as may
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be appointed in accordance with the provisions of Section 5.3 or 5.5, shall be
chosen by the board of directors, and each shall serve at the pleasure of the
board, subject to the rights, if any, of an officer under any contract of
employment.
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5.3 Other Officers. The board of directors may appoint, and may empower the
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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.
5.4 Removal and Resignation. Subject to the rights, if any, of any officer
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under any contract of employment, any officer may be removed, either with or
without cause, by the board of directors 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.
Any officer may resign at any time by giving written notice to the
corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Any such resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is a party.
5.5 Vacancies. A vacancy in any office because of death, resignation,
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removal, disqualification or any other cause shall be filled in the manner
prescribed in these bylaws for regular appointments to such office.
5.6 Chairman of the Board. The chairman of the board, if such an officer be
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elected, shall, if present, preside at meetings of the board of directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him or her by the board of directors or prescribed by the bylaws. If
there is no president, the chairman of the board shall in addition be the chief
executive officer of the corporation and shall have the powers and duties
prescribed in Section 5.9.
5.7 Vice Chairman of the Board. The vice chairman of the board, if such an
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officer be elected, shall exercise and perform such powers and duties as may be
from time to time assigned to him or her by the board of directors or prescribed
by the bylaws.
5.8 Chief executive Officer. The chief executive officer, if such an
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officer be elected, shall exercise and perform such powers and duties as may be
from time to time assigned to him or her by the board of directors or prescribed
by the bylaws.
5.9 President. Subject to such supervisory powers, if any, as may be given
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by the board of directors to the chairman of the board or the chief executive
officer, if there be such officers, 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
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business and the officers of the corporation. He or she shall preside at all
meetings of the shareholders and, in the absence of the chairman of the board,
or if there be none, at all meetings of the board of directors. He or she 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.
5.10 Vice Presidents. In the absence or disability of the president, the
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vice presidents, if any, 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 and the president or the chairman of the board.
5.11 Secretary. The secretary shall keep, or cause to be kept, at the
---------
principal executive office or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice thereof given,
the names of those present at directors' and committee meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings
thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, a
share register, or a duplicate share register, showing the names of all
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same, and the number and date
of cancellation of every certificate surrendered for cancellation.
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 or she shall keep the seal of the corporation, if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors.
5.12 Chief Financial Officer. The chief financial officer shall keep and
-----------------------
maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities receipts,
disbursements, gains, losses, capital, retained earnings and shares.
The chief financial officer shall deposit, or cause to be deposited, all
moneys and other valuables in the name and to
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the credit of the corporation with such depositaries as may be designated by the
board of directors. He or she shall disburse, or cause to be disbursed, 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 financial transactions and of the financial condition of the corporation,
and shall have such other powers and perform such other duties as may be
prescribed by the board of directors.
Article 6
Indemnification of Directors, Officers,
Employees and Other Agents
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6.1 Indemnification. The corporation shall, to the maximum extent permitted
---------------
by the California General Corporation Law, have power to indemnify each of its
agents against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact any such person is or was an agent of the corporation. For
purposes of this Article 6, an "agent" of the corporation includes any person
who is or was a director, officer, employee or other agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.2 Advance of Expenses. Expenses incurred in defending any proceeding may
-------------------
be advanced by this corporation prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the agent to repay
such amount unless it shall be determined ultimately that the agent is entitled
to be indemnified as authorized in this Article 6.
6.3 Other Contractual Rights. Nothing contained in this Article shall
------------------------
affect any right to indemnification to which persons other than directors and
officers of this corporation or of any subsidiary of this corporation may be
entitled by contract or otherwise.
6.4 Insurance. Upon and in the event of a determination by the board of
---------
directors of this corporation to purchase such insurance, this corporation shall
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not this corporation
would have the power to indemnify the agent against such liability.
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Article 7
Certain Loans and Guarantees
----------------------------
7.1. Shareholder Approval. Except as otherwise provided in this Article 7,
--------------------
the corporation shall not make any loan of money or property to, or guarantee
the obligation of, any director or officer of the corporation or of its parent
corporation, if any, unless the transaction, or an employee benefit plan
authorizing the loan or guarantee after disclosure of the right under such a
plan to include officers or directors, is approved by a majority of the
shareholders entitled to act thereon (without counting any shares owned by any
officer or director eligible to participate in the plan or transaction that is
subject to approval).
7.2 Security. The corporation shall not make any loan of money or property
--------
to, or guarantee the obligation of, any person upon the security of shares of
the corporation or of its parent corporation, if any, if the corporation's
recourse in the event of default is limited to the security for the loan or
guarantee, unless (a) the loan or guarantee is adequately secured without
considering such shares, or (b) the loan or guarantee is approved by a majority
of the shareholders entitled to act thereon (without counting any shares owned
by any officer or director eligible to participate in the plan or transaction
that is subject to approval).
7.3 Exceptions. The provisions of Section 7.1 do not apply to:
----------
(a) Any advance of money to a director or officer of the corporation or
of its parent corporation, if any, for any expenses reasonably anticipated to be
incurred in the performance of the duties of the director or officer, provided
that in the absence of the advance the director or officer would be entitled to
be reimbursed for the expenses by the corporation, its parent corporation, if
any, or any subsidiary corporation;
(b) The payment of premiums in whole or in part by the corporation on a
life insurance policy on the life of a director or officer, so long as repayment
to the corporation of the amount of premiums so paid is secured by the proceeds
of the policy and its cash surrender value; or
(c) Any transaction, plan, or agreement permitted under Section 408 of
the Code.
Article 8
Records and Reports
-------------------
8.1 Maintenance and Inspection of Share Register. The corporation shall
--------------------------------------------
keep at its principal executive office, or at the office of its transfer agent
or registrar, if either be appointed, a record of its shareholders, giving the
names and
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addresses of all shareholders and the number and class of shares held by each
shareholder.
A shareholder or shareholders of the corporation holding at least five
percent in the aggregate of the outstanding voting shares of the corporation may
(a) inspect and copy the records of shareholders' names and addresses and
shareholdings during usual business hours upon five days' prior written demand
upon the corporation, or (b) obtain from the transfer agent of the corporation,
upon written demand and upon the tender of the transfer agent's usual charges
for such list, a list of the shareholders' names and addresses, who are entitled
to vote for the election of directors, and their shareholdings, as of the most
recent record date for which such list has been compiled or as of a date
specified by the shareholder subsequent to the date of demand. The list shall be
made available to that shareholder on or before the later of five days after the
demand is received or the date specified therein as the date as of which the
list is to be compiled. The record of shareholders shall also be open to
inspection upon the written demand of any shareholder or holder of a voting
trust certificate, at any time during usual business hours, for a purpose
reasonably related to such holder's interests as a shareholder or as the
holder of a voting trust certificate. Any inspection and copying under this
Section 8.1 may be made in person or by an agent or attorney of the shareholder
or holder of a voting trust certificate making such demand.
8.2 Maintenance and Inspection of Bylaws. The corporation shall keep at its
------------------------------------
principal executive office, or if its principal executive office is not in the
State of California, at its principal business office in that State, the
original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the State of
California and the corporation has no principal business office in that State,
the Secretary shall, upon the written request of any shareholder, furnish to
such shareholder a copy of the bylaws as amended to date.
8.3 Maintenance and Inspection of Other Corporate Records. The accounting
-----------------------------------------------------
books and records and minutes of proceedings of the shareholders and the board
of directors and any committee or committees of the board of directors shall be
kept at such place or places designated by the board of directors or, in the
absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. Such minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or
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attorney, and shall include the right to copy and make extracts. The foregoing
rights of inspection shall extend to the records of each subsidiary of the
corporation.
8.4 Inspection by Directors. Every director shall have the absolute right
-----------------------
at any reasonable time to inspect all books, records and documents of every kind
and the physical properties of the corporation and each subsidiary corporation.
Such inspection by a director may be made in person or by agent or attorney and
the right of inspection includes the right to copy and make extracts.
8.5 Annual Reports. The annual report to shareholders referred to in
--------------
Section 1501 of the Code is expressly dispensed with, but nothing herein shall
be interpreted as prohibiting the board of directors from issuing annual or
other periodic reports to the shareholders of the corporation as they may deem
appropriate.
If no annual report meeting the requirements of Section 1501(a) of the Code
has been delivered or mailed by the corporation to the shareholders covering the
immediately preceding fiscal year, the corporation shall deliver or mail such
financial statements and other information requested by a shareholder relating
to the immediately preceding fiscal year as such shareholder may be entitled to
receive pursuant to Section 1501(c) or other provisions of the Code.
8.6 Financial Statements. A copy of any annual financial statement and any
--------------------
income statement of the corporation for each quarterly period of each fiscal
year, and any accompanying balance sheet of the corporation as of the end of
each such period, that has been prepared by the corporation shall be kept on
file in the principal executive office of the corporation for 12 months.
If a shareholder or shareholders holding at least five percent of the
outstanding shares of any class of stock of the corporation makes 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 then current fiscal year
ended more than 30 days prior to the date of the request, and a balance sheet of
the corporation as of the end of such period, the chief financial officer shall
cause such statement or statements to be prepared, if not already prepared, and
shall deliver personally or mail such statement or statements to the person
making the request within 30 days after the receipt of such request. If the
corporation has not sent to the shareholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to such
shareholder or shareholders within 30 days after such request.
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Article 9
General Matters
---------------
9.1 Record Date for Purposes Other Than Notice and Voting. For purposes of
-----------------------------------------------------
determining the shareholders 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 (other than action by shareholders
by written consent without a meeting), the board of directors may fix, in
advance, a record date, which shall not be more than 60 days prior to any such
action, and in such case only shareholders of record on the date so fixed are
entitled 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 so fixed, except as
otherwise provided in the California General Corporation Law.
If the board of directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the date on which the board adopts the resolution relating thereto,
or the sixtieth day prior to the date of such action, whichever is later.
9.2 Checks, Drafts, Evidences of Indebtedness. 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.
9.3 Corporate Contracts and Instruments; How Executed. The board of
-------------------------------------------------
directors, except as otherwise provided in these bylaws, 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 or
ratified by the board of directors or within the agency power of an officer, 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 for any amount.
9.4 Certificates for Shares. A certificate or certificates for shares of
-----------------------
the capital stock of the corporation shall be issued to each shareholder when
any such shares are fully paid, and the board of directors may authorize the
issuance of certificates or shares as partly paid provided that such
certificates shall state the amount of the consideration to be paid therefor and
the amount paid thereon. All certificates shall be signed in the name of the
corporation by the chairman of the board or vice chairman of the board or the
president or vice president and by the chief financial officer or an assistant
treasurer or the secretary or any assistant secretary, certifying the number of
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shares and the class or series of shares owned by the shareholder. Any or all 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 has ceased to be such officer, transfer agent or
registrar before such certificate is issued, 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.
9.5 Lost Certificates. Except as provided in this Section 9.5, no new
-----------------
certificates for shares shall be issued in lieu of an old certificate unless the
latter is surrendered to the corporation and cancelled. The board of directors
may, in case any share certificate or certificate for any other security is
lost, stolen or destroyed, authorize the issuance of a new certificate in lieu
thereof, upon such terms and conditions as the board may require, including
provision for indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of such certificate or the issuance of a
replacement certificate.
9.6 Representation of Shares of Other Corporations. The chairman of the
----------------------------------------------
board, the president, or any vice president, or any other person authorized by
resolution of the board of directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority granted to said officers to vote or
represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by any
such officer in person or by any person authorized to do so by a proxy duly
executed by said officer.
9.7 Construction and Definitions. Unless the context requires otherwise,
----------------------------
the general provisions, rules of construction, and definitions in the California
General Corporation Law shall govern the construction of these bylaws. Without
limiting the generality of the foregoing, the singular number includes the
plural, the plural number included the singular, and the term "person" includes
both a corporation and a natural person. All references in these bylaws to the
California General Corporation Law or to sections of the Code shall be deemed to
be to such Law or sections as they may be amended and in effect and, if
renumbered, to such renumbered provisions at the time of any action taken under
the bylaws. References to Articles and Sections are to Articles and Sections of
these bylaws unless the context expressly indicates otherwise.
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Article 10
Amendments
----------
10.1 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 articles of
incorporation set forth the number of authorized directors of the corporation,
the authorized number of directors may be changed only by an amendment of the
articles of incorporation.
10.2 Board of Directors. Subject to the rights of the shareholders to
------------------
adopt, amend or repeal bylaws as provided in Section 10.1, bylaws, other than a
bylaw amendment changing the authorized number of directors, may be adopted,
amended or repealed by the board of directors.
* * * *
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