EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
RAVENSWOOD WINERY, INC.
TABLE OF CONTENTS
Page
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ARTICLE 1 - OFFICES...............................................................................................1
1.1 Principal Office...........................................................................................1
1.2 Other Offices..............................................................................................1
ARTICLE 2 - MEETINGS OF SHAREHOLDERS..............................................................................1
2.1 Place of Meetings..........................................................................................1
2.2 Annual Meetings of Shareholders............................................................................1
2.3 Special Meetings...........................................................................................1
2.4 Notice of Shareholders' Meetings...........................................................................2
2.5 Manner of Giving Notice; Affidavit of Notice...............................................................2
2.6 Quorum.....................................................................................................2
2.7 Adjourned Meeting and Notice Thereof.......................................................................3
2.8 Voting.....................................................................................................3
2.9 Waiver of Notice or Consent by Absent Shareholders.........................................................4
2.10 Record Date for Shareholder Notice and Voting.............................................................4
2.11 Proxies...................................................................................................4
2.12 Inspectors of Election....................................................................................5
2.13 Advance Notice of Shareholder Nominees....................................................................6
2.14 Advance Notice of Shareholder Business....................................................................6
ARTICLE 3 - DIRECTORS.............................................................................................7
3.1 Powers.....................................................................................................7
3.2 Number and Qualification of Directors......................................................................7
3.3 Election and Term of Office of Directors...................................................................7
3.4 Vacancies..................................................................................................7
3.5 Place of Meetings and Telephonic Meetings..................................................................8
3.6 Annual Meetings............................................................................................8
3.7 Other Regular Meetings.....................................................................................8
3.8 Special Meetings...........................................................................................8
3.9 Quorum.....................................................................................................9
3.10 Waiver of Notice..........................................................................................9
3.11 Adjournment...............................................................................................9
3.12 Notice of Adjournment.....................................................................................9
3.13 Action Without Meeting....................................................................................9
3.14 Fees and Compensation of Directors.......................................................................10
ARTICLE 4 - COMMITTEES...........................................................................................10
4.1 Committees of Directors...................................................................................10
4.2 Meetings and Action of Committees.........................................................................10
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ARTICLE 5 - OFFICERS.............................................................................................11
5.1 Officers..................................................................................................11
5.2 Election of Officers......................................................................................11
5.3 Subordinate Officers, Etc. ...............................................................................11
5.4 Removal and Resignation of Officers.......................................................................11
5.5 Vacancies in Offices......................................................................................11
5.6 Chairman of the Board.....................................................................................11
5.7 Chief Executive Officer...................................................................................12
5.8 President.................................................................................................12
5.9 Vice Presidents...........................................................................................12
5.10 Secretary................................................................................................12
5.11 Chief Financial Officer..................................................................................13
ARTICLE 6 - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS...................................13
6.1 Agents, Proceedings and Expenses..........................................................................13
6.2 Actions Other Than by the Corporation.....................................................................13
6.3 Actions by the Corporation................................................................................14
6.4 Successful Defense by Agent...............................................................................14
6.5 Required Approval.........................................................................................14
6.6 Advance of Expenses.......................................................................................15
6.7 Other Contractual Rights..................................................................................15
6.8 Limitations...............................................................................................15
6.9 Insurance.................................................................................................15
6.10 Fiduciaries of Corporate Employer Benefit Plan...........................................................16
6.11 Other Indemnification....................................................................................16
ARTICLE 7 - RECORDS AND REPORTS..................................................................................16
7.1 Maintenance of Share Register.............................................................................16
7.2 Maintenance and Inspection of Bylaws......................................................................16
7.3 Maintenance of Other Corporate Records....................................................................16
7.4 Inspection by Directors...................................................................................17
7.5 Annual Report to Shareholders.............................................................................17
ARTICLE 8 - CORPORATE LOANS AND GUARANTEES.......................................................................17
8.1 Shareholder Approval......................................................................................17
8.2 Board Approval............................................................................................17
ARTICLE 9 - GENERAL CORPORATE MATTERS............................................................................17
9.1 Record Date for Purposes Other Than Notice and Voting.....................................................17
9.2 Checks, Drafts, Evidences of Indebtedness.................................................................18
9.3 Corporate Contracts and Instruments; How Executed.........................................................18
9.4 Certificates for Shares...................................................................................18
9.5 Lost Certificates.........................................................................................18
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9.6 Representation of Shares of Other Corporations............................................................19
9.7 Construction and Definitions..............................................................................19
ARTICLE 10 - AMENDMENTS..........................................................................................19
10.1 Amendments...............................................................................................19
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AMENDED AND RESTATED BYLAWS
OF
RAVENSWOOD WINERY, INC.
ARTICLE 1
OFFICES
1.1 Principal Office. The Board of Directors shall fix the 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
this state, and the corporation has one or more business offices in this state,
the Board of Directors shall likewise fix and designate a principal business
office in the State of California.
1.2 Other Offices. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the corporation is
qualified to do business.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
2.1 Place of Meetings. Meetings of shareholders shall be held 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 of Shareholders. The annual meeting of shareholders
shall be held each year on a date and at a time designated by the Board of
Directors. At each annual meeting directors shall be elected, and any other
proper business may be transacted.
2.3 Special Meetings. A special meeting of the shareholders may be
called at any time by the Board of Directors, or by the Chairman of the Board,
or by the President, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at any
such meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
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 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 thirty-five (35) nor more than sixty (60) days after the receipt
of the request. If the notice is not given within twenty (20) days after receipt
of the request, the person or persons requesting the meeting may give the
notice. Nothing contained in this paragraph of 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.
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2.4 Notice of Shareholders' Meetings. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 2.5 not
less than ten (10) nor more than sixty (60) days before the date of the meeting
being noticed. The notice shall specify the place, date and hour of the meeting
and (i) in the case of a special meeting, the general nature of the business to
be transacted, or (ii) in the case of the annual meeting, those matters which
the Board 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 which, at the time
of the notice, management 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 Corporations Code of California, (ii)
an amendment of the Articles of Incorporation, pursuant to Section 902 of such
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
such Code, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of such Code, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares pursuant to Section 2007 of such
Code, the notice shall also state the general nature of such proposal.
2.5 Manner of Giving Notice; Affidavit of Notice. Notice of any meeting
of shareholders shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or has been so
given, notice shall be deemed to have been given if sent 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 where such office is located. Notice shall be deemed
to have been given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication.
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
United States Postal 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 of the shareholder at the principal executive office of the
corporation for a period of one (1) year from the date of the giving of such
notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the Secretary, any Assistant
Secretary or any transfer agent of the corporation giving such notice, and shall
be filed and maintained in the minute book of the corporation.
2.6 Quorum. 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
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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 Adjourned Meeting and Notice Thereof. Any shareholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of the 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, either 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 forty-five (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, if required, 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. Every shareholder shall be entitled to one vote for each
full share of the corporation held, and to cumulate such votes at any election
of directors under the conditions prescribed by law; provided that, effective
upon the corporation becoming a "listed company" (as defined in Section 301.5 of
the Corporations Code of California), cumulative voting shall be eliminated.
The shareholders entitled to 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, inclusive, of the Corporations Code of
California (relating to voting shares held by a fiduciary, in the name of a
corporation or in joint ownership). Such vote may be by voice vote or by ballot;
provided, however, that all elections for directors must be by ballot upon
demand by a shareholder at any election and before the voting begins. Any
shareholder entitled to vote on any matter (other than the election 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 so long as cumulative voting is in effect) shall be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by the California General Corporation Law or the Articles of
Incorporation.
So long as cumulative voting is in effect, at any shareholders' meeting
involving the election of directors, no shareholder shall be entitled to
cumulate votes (i.e., cast for any one
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or more candidates a number of votes greater than the number of the
shareholder's shares) unless such candidate or candidates' names have been
placed in nomination prior to commencement of the voting and a shareholder has
given notice prior to commencement of the voting of the shareholder's intention
to cumulate votes. If any shareholder has given such notice, then every
shareholder entitled to vote may cumulate such shareholder's 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 shareholder's shares are entitled, or distribute the shareholder's votes on
the same principle among any or all of the candidates, as the shareholder thinks
fit. The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
2.9 Waiver of Notice or Consent by Absent Shareholders. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, 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. The waiver of notice or consent need not 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 of
those matters specified in the second paragraph of Section 2.4, the waiver of
notice or consent shall state the general nature of such 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 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 the meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if such objection is expressly made at the meeting.
2.10 Record Date for Shareholder Notice and Voting . For purposes of
determining the shareholders entitled to notice of any meeting or to vote, the
Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days prior to the date of any such
meeting, and in such case only shareholders of record on the date so fixed are
entitled to notice and to vote, as the case may be, notwithstanding any transfer
of any shares on the books of the corporation after the record date fixed as
aforesaid, 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 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.
2.11 Proxies. Every person entitled to vote for directors 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
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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 transaction 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 (i) 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 executed by, or attendance at the
meeting and voting in person by, the person executing the proxy; or (ii) written
notice of the death or incapacity of the maker of such 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 (11) months from the
date of such 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 Corporations Code of California.
2.12 Inspectors of Election. Before any meeting of shareholders, the
Board of Directors may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or its adjournment. If no inspectors of
election are 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 (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails 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
fill such vacancy.
The duties of these inspectors shall be as follows:
(a) 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;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
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2.13 Advance Notice of Shareholder Nominees. Nominations of persons for
election to the Board of Directors of the corporation may be made at a meeting
of shareholders by or at the direction of the Board of Directors or by any
shareholder of the corporation entitled to vote in the election of directors at
the meeting who complies with the notice procedures set forth in this Section.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the corporation. To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the corporation not
less than thirty (30) days nor more than sixty (60) days prior to the meeting;
provided, however, that in the event less than forty-five (45) days notice or
prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. Such shareholder's notice shall set forth (a) as to each person, if any,
whom the shareholder proposes to nominate for election or re-election as a
director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the corporation which are beneficially owned by
such person, (iv) any other information relating to such person that is required
by law to be disclosed in solicitations of proxies for election of directors,
and (v) such person's written consent to being named as a nominee and to serving
as a director if elected; and (b) as to the shareholder giving the notice: (i)
the name and address, as they appear on the corporation's books, of such
shareholder, (ii) the class and number of shares of the corporation which are
beneficially owned by such shareholder, and (iii) a description of all
arrangements or understandings between such shareholder and each nominee and any
other person or persons (naming such person or persons) relating to the
nomination. At the request of the Board of Directors, any person nominated by
the Board for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in the shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in this Section. The chairman of the meeting
shall, if the facts warrant, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare at the meeting and
the defective nomination shall be disregarded.
2.14 Advance Notice of Shareholder Business. At an annual meeting of
the shareholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be: (a) as specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
shareholder. Business to be brought before an annual meeting by a shareholder
shall not be considered properly brought if the shareholder has not given timely
notice thereof in writing to the Secretary of the corporation. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than thirty (30) nor
more than sixty (60) days prior to the meeting; provided, however, that in the
event that less than forty-five (45) days notice or prior public disclosure of
the date of the meeting is given or made to shareholders, notice by the
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shareholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made. A
shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting: (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address of
the shareholder proposing such business, (iii) the class and number of shares of
the corporation which are beneficially owned by the shareholder, (iv) any
material interest of the shareholder in such business, and (v) any other
information that is required by law to be provided by the shareholder in his
capacity as a proponent of a shareholder proposal. Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this Section. The
chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this Section, and, if he should so
determine, he shall so declare at the meeting that any such business not
properly brought before the meeting shall not be transacted.
ARTICLE 3
DIRECTORS
3.1 Powers. Subject to the provisions of the California 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 and Qualification of Directors. The authorized number of
directors shall be, until changed by a Bylaw duly adopted by the shareholders,
such number as may from time to time be authorized by resolution of the Board of
Directors, provided that the minimum number of directors of the corporation
shall not be less than four (4) and the maximum number of directors of the
corporation shall not be more than seven (7) and that no amendment may change
the stated maximum number of authorized directors to a number greater than two
(2) times the stated minimum number of directors minus one (1). The Board of
Directors, and not the shareholders, shall have the exclusive right to fix the
exact number of authorized directors within the limits set forth above.
3.3 Election and Term of Office of Directors. Directors shall be
elected 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 Vacancies. Vacancies in the Board of Directors (including, without
limitation, vacancies occurring by reason of the removal of directors) may be
filled by approval of the Board or, if the number of directors then in office is
less than a quorum, by (i) the unanimous written consent of the directors then
in office, (ii) the affirmative vote of a majority of
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the directors then in office at a meeting held pursuant to notice or waivers of
notice complying with Section 307 of the Corporations Code or (iii) a sole
remaining director. 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 has been declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of directors be increased, or if the
shareholders fail, at any meeting of shareholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors.
Any director may resign upon giving written notice to the Chairman of
the Board, the President, the Secretary or the Board of Directors. A resignation
shall be effective upon the giving of the notice, unless the notice specifies a
later time for its effectiveness. 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 term of office.
3.5 Place of Meetings and Telephonic Meetings. Regular meetings of the
Board of Directors shall be held at such times and places as the Board, by
resolution, may designate from time to time. Notice of regular meetings need not
be given. Special meetings of the Board shall be held at any place within or
without the State 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 in such meeting can hear one another, and all such
directors shall be deemed to be present in person at such meeting.
3.6 Annual Meetings. Immediately following each annual 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. Notice of this meeting shall not be required.
3.7 Other Regular Meetings. 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. Such regular meetings may be held without
notice.
3.8 Special Meetings. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Chairman of the Board
or the President or any Vice President or Secretary or any two (2) directors.
8
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at his or her address as
it is shown upon the records of the corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four (4) days prior to
the time of the holding of the meeting. In case such notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours prior to
the time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated to either 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 or 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 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 Corporations Code of California (approval of contracts or
transactions in which a director has a direct or indirect material financial
interest), Section 311 (appointment of committees), and Section 317(e)
(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 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 be
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes thereof. The waiver of notice or consent need not
specify the purpose of the meeting. 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 shall also be deemed given to any director who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director.
3.11 Adjournment. A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
3.12 Notice of Adjournment. Notice of the time and place of holding an
adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four (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.
3.13 Action Without Meeting. Any action required or permitted to be
taken by the Board of Directors may be taken without a meeting, if all members
of the Board shall individually or collectively consent in writing to such
action. Such action by written consent
9
shall have the same force and effect as a unanimous vote of the Board of
Directors. Such written consent or consents shall be filed with the minutes of
the proceedings of the Board.
3.14 Fees and Compensation of Directors. Directors and members of
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 herein contained 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 services.
ARTICLE 4
COMMITTEES
4.1 Committees of Directors. The Board of Directors may, by resolution
adopted by a majority of the authorized number of directors, designate one (1)
or more committees, each consisting of two (2) or more directors, to serve at
the pleasure of the Board. The Board may designate one (1) or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the Board, shall have all the authority of the Board, except with
respect to:
(a) the approval of any action which, under the General
Corporation Law of California, also requires shareholders' approval or
approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors or in
any committee;
(c) the fixing of compensation of the directors for serving on
the Board or on 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 or in a periodic amount or within a price range
determined by the Board of Directors; or
(g) the appointment of any other committees of the Board of
Directors or members thereof.
4.2 Meetings and Action of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of these Bylaws, Section 3.5 (place of meetings), 3.7 (regular
meetings), 3.8 (special meetings and notice), 3.9 (quorum), 3.10 (waiver of
notice), 3.11 (adjournment), 3.12 (notice of adjournment) and 3.13 (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
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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
5.1 Officers. The officers of the corporation shall be (i) a Chairman
of the Board or a President (or both), (ii) a Secretary, and (iii) a Chief
Financial Officer. The corporation may also have, at the discretion of the Board
of Directors, 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 of Officers. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 5.1,
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.
5.3 Subordinate Officers, Etc. The Board of Directors may appoint, and
may empower the Chairman of the Board or 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.
5.4 Removal and Resignation of Officers. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting thereof, 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 in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointments to such office.
5.6 Chairman of the Board. The Chairman of the Board, shall, if
present, preside at all meetings of the Board of Directors and all meetings of
shareholders and shall
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exercise and perform such other powers and duties as may be from time to time
assigned to the Chairman by the Board of Directors or prescribed by the Bylaws.
If there is no Chief Executive Officer (including by reason of disability), 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 5.7.
5.7 Chief Executive Officer. Subject to such oversight authority, if
any, as may be given by the Board of Directors to the Chairman of the Board, if
there be such an officer, the Chief Executive Officer shall, subject to the
control of the Board of Directors, have general authority for the supervision,
direction and control of the business and the officers of the corporation. In
the absence of the Chairman of the Board, or if there be none, the Chief
Executive Officer shall preside at all meetings of the shareholders and all
meetings of the Board of Directors. He shall have the general powers and duties
of management usually vested in the office of Chief Executive Officer of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors or the Bylaws.
5.8 President. Subject to such oversight authority, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, or to the Chief Executive Officer, if there be such an officer, the
President shall, subject to the control of the Board of Directors, have general
supervision of the operations of the business. In the absence of the Chairman of
the Board and the Chief Executive Officer, or if there be none, the President
shall preside at all meetings of the shareholders and all meetings of the Board
of Directors. He 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.
If there is no Chief Executive Officer or Chairman of the Board (including by
reason of disability), the President shall, in addition, be the Chief Executive
Officer of the corporation and shall have the powers and duties prescribed in
Section 5.7.
5.9 Vice Presidents. In the absence or disability of the President, the
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 or the Bylaws, the President or the Chairman of the Board
if there is no President.
5.10 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
order, 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, as determined by resolution of the
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Board of Directors, 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 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 or by the Bylaws.
5.11 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 books
of account shall be open at all reasonable times to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the Board of Directors. The Chief Financial
Officer 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, and shall have other powers and
perform such other duties as may be prescribed by the Board of Directors or the
Bylaws.
ARTICLE 6
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
6.1 Agents, Proceedings and Expenses. For the purposes of this Article,
"agent" means any person who is or was a director, officer, employee or other
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under Section 6.4 or paragraph (c) of Section 6.5.
6.2 Actions Other Than by the Corporation. Subject to the specific
determination required by Section 6.5, the corporation shall, and it hereby
agrees to, indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such
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proceeding if it is determined, pursuant to Section 6.5, that such person acted
in good faith and in a manner such person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
6.3 Actions by the Corporation. Subject to the specific determination
required by Section 6.5, the corporation shall, and it hereby agrees to,
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was an agent of the corporation, against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such action if it is determined, pursuant to Section 6.5, that such person
acted in good faith, in a manner such person believed to be in the best interest
of the corporation and with such care, including reasonable inquiry, as an
ordinarily prudent person in a like position would use under similar
circumstances. No indemnification shall be made under this Section 6.3:
(a) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the corporation, unless and only
to the extent that the court in which such proceeding is or was pending
shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity
for the expenses which such court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court
approval.
6.4 Successful Defense by Agent. To the extent that an agent of the
corporation has been successful on the merits in defense of any proceeding
referred to in Section 6.2 or 6.3 or in defense of any claim, issue or matter
therein, the agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
6.5 Required Approval. Except as provided in Section 6.4, any
indemnification under this Article shall be made by the corporation only if
authorized in the specific case, upon a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Section 6.2 or 6.3, by:
(a) A majority vote of a quorum consisting of directors who
are not parties to such proceeding;
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(b) Approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether
or not such application by the agent, attorney or other person is
opposed by the corporation.
Upon written request to the Board by any person seeking indemnification
under Section 6.2 or 6.3, the Board shall promptly determine whether the
applicable standard of conduct set forth in Section 6.2 or 6.3 has been met and,
if so, the Board shall authorize indemnification. If the Board cannot authorize
indemnification because the number of directors who are parties to the
proceeding with respect to which indemnification is sought prevent the formation
of a quorum of directors who are not parties to such proceeding, the Board shall
promptly call a meeting of shareholders. At such meeting, the shareholders shall
determine whether the applicable standard of conduct set forth in Section 6.2 or
6.3 has been met and, if so, the shareholders present at the meeting in person
or by proxy shall authorize indemnification.
6.6 Advance of Expenses. Expenses incurred in defending any proceeding
shall be advanced by the corporation prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the agent to repay
such amount unless it shall be determined ultimately that the agent is entitled
to be indemnified as authorized in this Article.
6.7 Other Contractual Rights. No provision made by the corporation to
indemnify its or its subsidiary's directors or officers for the defense of any
proceeding, whether contained in a resolution of shareholders or directors, an
agreement or otherwise, shall be valid unless consistent with this Article.
Nothing contained in this Article shall affect any right to indemnification to
which persons other than such directors and officers may be entitled by contract
or otherwise.
6.8 Limitations. No indemnification or advance shall be made under this
Article, except as provided in Section 6.4 or paragraph (c) of Section 6.5, in
any circumstance where it appears:
(a) That it would be inconsistent with a provision of the
Articles, a Bylaw, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification;
or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
6.9 Insurance. The corporation shall have the power to 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
15
the corporation would have the power to indemnify the agent against such
liability under the provisions of this Article.
6.10 Fiduciaries of Corporate Employer Benefit Plan. This Article does
not apply to any proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan in such person's capacity as such, even
though such person may also be an agent as defined in Section 6.1 of the
employer corporation. The corporation shall, and it hereby agrees to, indemnify
each officer, director or employee of the corporation against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any action taken or omitted by such person in such person's
capacity as trustee, investment manager or other fiduciary of any employee
benefit plan of the corporation unless, or to the extent that, the Board of
Directors of the corporation shall reasonably determine that any such action so
taken or omitted by such person constituted gross negligence or willful
misconduct on the part of such person. Expenses reasonably incurred by any such
person in defending any liability asserted against such person in any such
capacity shall be advanced by the corporation but shall be repaid to the
corporation by such person if, or to the extent that, the Board of Directors of
the corporation shall reasonably determine that the action allegedly taken or
omitted by such person upon which the asserted liability is based constituted
gross negligence or willful misconduct on the part of such person.
6.11 Other Indemnification. Nothing in this Article shall restrict the
power of the corporation to indemnify its agents under any provision of the
California General Corporation Law, as amended from time to time, or under any
other provision of law from time to time applicable to the corporation, nor
shall anything in this Article authorize the corporation to indemnify its agents
in situations prohibited by the California General Corporation Law or other
applicable law.
ARTICLE 7
RECORDS AND REPORTS
7.1 Maintenance 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 and as determined by resolution of the Board of
Directors, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of shares held by each shareholder.
7.2 Maintenance 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 this 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 this State and the corporation
has no principal business office in this State, the Secretary shall, upon the
written request of any shareholder, furnish to such shareholder a copy of the
Bylaws as amended to date.
7.3 Maintenance 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
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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.
7.4 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 of its
subsidiary corporations. 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.
7.5 Annual Report to Shareholders. Unless otherwise expressly required
by the General Corporation Law, the annual report to shareholders referred to in
Section 1501 of the General Corporation Law is hereby expressly waived and
dispensed with; provided, that nothing herein set forth shall be construed to
prohibit or restrict the right of the Board to issue such annual or other
periodic reports to the shareholders of the corporation as they may from time to
time consider appropriate.
ARTICLE 8
CORPORATE LOANS AND GUARANTEES
8.1 Shareholder Approval. 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 its parent or subsidiary, unless the transaction or an
employee benefit plan authorizing such loans or guarantees, after disclosure of
the right under such a plan to include officers or directors:
(a) is approved by a majority of the shareholders, with the
shares owned by the director or officer, or by the directors or
officers then eligible to participate in such plan, not being entitled
to vote thereon; or
(b) is approved by the unanimous vote of the shareholders.
8.2 Board Approval. Notwithstanding Section 8.1, in the event the
corporation has outstanding shares held of record by one hundred (100) or more
persons on the date of approval by the Board, the Board alone by a vote
sufficient without counting the vote of any interested director or directors may
approve such a loan or guarantee to an officer, whether or not a director, or an
employee benefit plan authorizing such a loan or guarantee to an officer,
provided that the Board determines that such a loan or guarantee or plan may
reasonably be expected to benefit the corporation.
ARTICLE 9
GENERAL CORPORATE 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,
17
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (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 fixed as aforesaid, 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 day on which the Board adopts the resolution relating thereto,
or the sixtieth (60th) 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 to 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
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 shall have 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 hereinafter in this Section 9.5
provided, no new certificate for shares shall be issued in lieu of an old
certificate unless the latter is surrendered to the corporation and canceled at
the same time. 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
18
Board may require, including provisions 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 such new 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 herein 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 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 the Bylaws.
Without limiting the generality of the foregoing, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation or other entity and a natural person.
ARTICLE 10
AMENDMENTS
10.1 Amendments. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors shall have the power, both before
and after receipt of any payment for any of the corporation's capital stock, to
adopt, amend, repeal or otherwise alter these Bylaws without any action on the
part of the shareholders. The grant of such power to the Board of Directors,
however, shall not divest the shareholders of, nor limit, their power to adopt,
amend, repeal or otherwise alter these Bylaws; provided that any action by the
shareholders to adopt, amend, repeal or otherwise alter the Bylaws (including,
without limitation, this Section 10.1) shall not be effective except upon the
affirmative vote of not less than two-thirds of the shares of the corporation
then issued and outstanding which have the right to vote on the matter.
[CERTIFICATION APPEARS ON NEXT PAGE]
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I, Justin M. Faggioli, hereby certify:
1. That I am the duly elected and acting Secretary of Ravenswood
Winery, Inc., a California corporation.
2. That the foregoing Amended and Restated Bylaws constitute the Bylaws
of the Corporation as adopted by the directors of this corporation by unanimous
written consent on February 1, 1999.
3. That the foregoing Amended and Restated Bylaws of the Corporation
were adopted by the shareholders of the corporation by written consent on
February 1, 1999.
In witness whereof, I have hereunto subscribed my name on February 1,
1999.
/s/ Justin M. Faggioli
----------------------------------------
Justin M. Faggioli, Secretary
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