EXHIBIT 3.6
BYLAWS
OF
CHAMPION HOME BUILDERS CO.
(As amended through November 29, 1994)
ARTICLE I
Offices
1.01 Principal Office. The principal office of the Corporation shall be
at such place within the State of Michigan as the Board of Directors shall
determine from time to time.
1.02 Other Offices. The Corporation may also have offices at such other
places as the Board of Directors from time to time determines or the business of
the Corporation requires.
ARTICLE II
Seal
2.01 Seal. The Corporation shall have a seal in such form as the Board
of Directors may from time to time determine. The seal may be used by causing it
or a facsimile to be impressed, affixed, reproduced or otherwise.
ARTICLE III
Capital Stock
3.01 Issuance of Shares. The shares of capital stock of the Corporation
shall be issued in such amounts, at such times, for such consideration and on
such terms and conditions as the Board shall deem advisable, subject to the
provisions of the Articles of Incorporation of the Corporation and the further
provisions of these Bylaws, and subject also to any requirements or restrictions
imposed by the laws of the State of Michigan.
3.02 Certificates for Shares. The shares of the Corporation shall be
represented by certificates signed by the Chairman of the Board, President or a
Vice President and by the Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary of the Corporation, and may be sealed with the seal of the Corporation
or a facsimile thereof. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or its employee. In case an officer who has
signed or whose facsimile signature has been placed upon a certificate ceases to
be such officer before the certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issuance. A certificate representing shares shall state upon its face that the
Corporation is formed under the laws of the State of Michigan; the name of the
person to whom it is issued; the
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number and class of shares, and the designation of the series, if any, which the
certificate represents; the par value of each share represented by the
certificate, or a statement that the shares are without par value; and such
other provisions as may be required by the laws of the State of Michigan.
3.03 Transfer of Shares. The shares of the capital stock of the
Corporation are transferable only on the books of the Corporation upon surrender
of the certificate therefor, properly endorsed for transfer, and the
presentation of such evidences of ownership and validity of the assignment as
the Corporation may require.
3.04 Registered Shareholders. The Corporation shall be entitled to
treat the person in whose name any share of stock is registered as the owner
thereof for purposes of dividends and other distributions in the course of
business, or in the course of recapitalization, consolidation, merger,
reorganization, sale of assets, liquidation or otherwise and for the purpose of
votes, approvals and consents by shareholders, and for the purpose of notices to
shareholders, and for all other purposes whatever, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not the Corporation shall have notice thereof,
save as expressly required by the laws of the State of Michigan.
3.05 Lost or Destroyed Certificates. Upon the presentation to the
Corporation of a proper affidavit attesting the loss, destruction or mutilation
of any certificate or certificates for shares of stock of the Corporation, the
Board of Directors shall direct the issuance of a new certificate or
certificates to replace the certificates so alleged to be lost, destroyed or
mutilated. The Board of Directors may require as a condition precedent to the
issuance of new certificates any or all of the following:
(a) Presentation of additional evidence or proof of the loss,
destruction or mutilation claimed;
(b) Advertisement of loss in such manner as the Board of Directors may
direct or approve;
(c) A bond or agreement of indemnity, in such form and amount and with
such sureties, or without sureties, as the Board of Directors may direct or
approve;
(d) Payment of any expenses incurred by the Corporation in processing
the claim of loss, or in lieu thereof payment of a lost certificate processing
fee in such amount as the Board of Directors may authorize or approve;
(e) The order or approval of a court or judge.
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ARTICLE IV
Shareholders and Meetings of Shareholders
4.01 Place of Meetings. All meetings of shareholders shall be held at
the principal office of the Corporation or at such other place as shall be
determined by the Board of Directors and stated in the notice of meeting.
4.02 Annual Meeting. The Annual Meeting of Shareholders of the
Corporation shall be held on such business day in the months of April or May of
each year, at such time, as the Board of Directors may fix. Directors shall be
elected at each Annual Meeting and such other business transacted as may
properly come before the meeting in accordance with these Bylaws. The Board of
Directors acting by resolution may postpone and reschedule any previously
scheduled Annual Meeting of Shareholders. Any Annual Meeting of Shareholders may
be adjourned by the Chairman of the meeting or pursuant to a resolution of the
Board of Directors.
4.03 Special Meetings. Special meetings of the shareholders may be
called by the Chairman of the Board, or by the President, or pursuant to
resolution of the Board of Directors. Business transacted at a special meeting
of shareholders shall be confined to the purpose or purposes of the meeting as
stated in the notice of the meeting. The Board of Directors acting by resolution
may postpone and reschedule any previously scheduled special meeting of
shareholders. Any special meeting of shareholders may be adjourned by the
Chairman of the meeting or pursuant to resolution of the Board of Directors.
4.04 Notice of Meetings. Except as otherwise provided by statute,
written notice of the time, place and purposes of a meeting of shareholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each shareholder of record entitled to vote at the meeting, either
personally or by mailing such notice to his last address as it appears on the
books of the Corporation. No notice need be given of an adjourned meeting of the
shareholders provided the time and place to which such meeting is adjourned is
announced at the meeting at which the adjournment is taken and at the adjourned
meeting only such business is transacted as might have been transacted at the
original meeting. However, if after the adjournment, a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice as provided
in this Bylaw.
4.05 Record Dates. The Board of Directors, the Chairman of the Board
(if such office is filled) or the President may fix in advance a date as the
record date for the purpose of determining shareholders entitled to notice of
and to vote at a meeting of shareholders or an adjournment thereof, or to
express consent or to dissent from a proposal without a meeting, or for the
purpose of
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determining shareholders entitled to receive payment of a dividend or allotment
of a right, or for the purpose of any other action. The date fixed shall not be
more than 60 nor less than 10 days before the date of the meeting, nor more than
60 days before any other action. In such case only such shareholders as shall be
shareholders of record on the date so fixed shall be entitled to notice of and
to vote at such meeting or adjournment thereof, or to express consent or to
dissent from such proposal, or to receive payment of such dividend or to
receive such allotment of rights, or to participate in any other action, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation, or otherwise, after any such record date. Nothing in this Bylaw
shall affect the rights of a shareholder and his transferee or transferor as
between themselves.
4.06 List of Shareholders. The Secretary of the Corporation or the
agent of the Corporation having charge of the stock transfer records for shares
of the Corporation shall make and certify a complete list of the shareholders
entitled to vote at a shareholders' meeting or any adjournment thereof. The
list shall be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each shareholder; be produced at
the time and place of the meeting; be subject to inspection by any shareholder
during the whole time of the meeting; and be prima facie evidence as to who are
the shareholders entitled to examine the list or vote at the meeting.
4.07 Quorum. Unless a greater or lesser quorum is required in the
Articles of Incorporation or by the laws of the State of Michigan, the
shareholders present at a meeting in person or by proxy who, as of the record
date for such meeting, were holders of a majority of the outstanding shares of
the Corporation entitled to vote at the meeting shall constitute a quorum at the
meeting. Whether or not a quorum is present, a meeting of shareholders may be
adjourned by a vote of the shares present in person or by proxy. When the
holders of a class or series of shares are entitled to vote separately on an
item of business, this Bylaw applies in determining the presence of a quorum of
such class or series for transaction of such item of business.
4.08 Proxies. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
other persons to act for him by proxy. A proxy shall be signed by the
shareholder or his authorized agent or representative and shall not be valid
after the expiration of three years from its date unless otherwise provided in
the proxy. A proxy is revocable at the pleasure of the shareholder executing it
except as otherwise provided by the laws of the State of Michigan.
4.09 Inspectors of Election. The Board of Directors, in advance of a
shareholders' meeting, may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If
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inspectors are not so appointed, the person presiding at the shareholders'
meeting may, and on request of a shareholder entitled to vote thereat shall,
appoint one or more inspectors. In case a person appointed fails to appear or
act, the vacancy may be filled by appointment made by the Board of Directors in
advance of the meeting or at the meeting by the person presiding thereat. If
appointed, the inspectors shall 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 validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine challenges and questions arising in
connection with the right to vote, count and tabulate votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the person
presiding at the meeting or a shareholder entitled to vote thereat, the
inspectors shall make and execute a written report to the person presiding at
the meeting of any of the facts found by them and matters determined by them.
The report shall be prima facie evidence of the facts stated and of the vote as
certified by the inspectors.
4.10 Voting. Each outstanding share is entitled to one vote on each
matter submitted to a vote, unless otherwise provided in the Articles of
Incorporation. Votes may be cast orally or in writing as the Chairman of the
meeting may determine, except that upon the written request of a shareholder
served on the President or Secretary not less than forty-eight (48) hours prior
to the time fixed for the meeting, votes shall be cast in writing. Votes taken
orally shall be cast by, and votes cast in writing shall be signed by, the
shareholder or his proxy. When an action, other than the election of directors,
is to be taken by a vote of the shareholders, it shall be authorized by a
majority of the votes cast by the holders of shares entitled to vote thereon,
unless a greater plurality is required by the Articles of Incorporation or by
the laws of the State of Michigan. Except as otherwise provided by the Articles
of Incorporation, directors shall be elected by a plurality of the votes cast at
any election.
ARTICLE V
Directors
5.01 Number; Qualifications. The business and affairs of the
Corporation shall be managed by a Board of not less than three nor more than
nine directors as shall be fixed from time to time by the Board of Directors.
Directors need not be residents of Michigan or shareholders of the Corporation.
No person who has reached age 70 shall be eligible for election to the Board of
Directors (but an incumbent director who reaches age 70 during his term of
office shall continue to serve until the next Annual Meeting of Shareholders and
until his successor is elected and shall have qualified).
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5.02 Election, Resignation and Removal. Directors shall be elected at
each annual meeting of the shareholders, each to hold office until the next
annual meeting of shareholders and until his successor is elected and qualified,
or until his resignation or removal. A director may resign by written notice to
the Corporation. The resignation is effective upon its receipt by the
Corporation or a subsequent time as set forth in the notice of resignation. A
director or the entire Board of Directors may be removed, with or without cause,
by vote of the holders of a majority of the shares entitled to vote at an
election of directors.
5.03 Vacancies. Vacancies in the Board of Directors occurring by reason
of death, resignation, removal, increase in the number of directors or otherwise
shall be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors, unless filled by proper
action of the shareholders of the Corporation. Each person so elected shall be a
director for a term of office continuing only until the next election of
directors by the shareholders.
5.04 Annual Meeting. The Board of Directors shall meet each year
immediately after the Annual Meeting of the Shareholders, or within three days
of such time excluding Sundays and legal holidays if such later time is deemed
advisable, at the place where such meeting of the shareholders has been held or
such other place as the Board may determine, for the purpose of election of
officers and consideration of such business that may properly be brought before
the meeting; provided, that if less than a majority of the directors appear for
an annual meeting of the Board of Directors the holding of such annual meeting
shall not be required and the matters which might have been taken up therein may
be taken up at any later special or annual meeting, or by consent resolution.
5.05 Regular and Special Meetings. Regular meetings of the Board of
Directors may be held at such times and places as the majority of the directors
may from time to time determine at a prior meeting or as shall be directed or
approved by the vote or written consent of all the directors. Special meetings
of the Board may be called by the Chairman of the Board (if such office is
filled) or the President and shall be called by the President or Secretary upon
the written request of any two directors.
5.06 Notices. No notice shall be required for annual or regular
meetings of the Board or for adjourned meetings, whether regular or special.
Three days written notice shall be given for special meetings of the Board, and
such notice shall state the time, place and purpose or purposes of the meeting.
5.07 Quorum. When the Board of Directors or any committee thereof
consists of seven or less persons, a majority of the Board of Directors then in
office, or of the members of a committee
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thereof, constitutes a quorum for the transaction of business. When the Board of
Directors or any committee thereof consists of eight or more persons, less than
a majority but in no event less than one-third of the members may constitute a
quorum. The vote of a majority of the directors present at any meeting at which
there is a quorum shall be the acts of the Board or of the committee, except as
a larger vote may be required by the laws of the State of Michigan. A member of
the Board or of a committee designated by the Board may participate in a
meeting by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
Participation in a meeting in this manner constitutes presence in person at the
meeting.
5.08 Executive and Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint two or more members
of the Board as an executive committee to exercise all powers and authorities of
the Board in management of the business and affairs of the Corporation;
provided, however, that such committee shall not have power or authority to:
(a) amend the Articles of Incorporation;
(b) adopt an agreement of merger or consolidation;
(c) recommend to shareholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets;
(d) recommend to shareholders a dissolution of the Corporation or
revocation of dissolution;
(e) amend these Bylaws;
(f) fill vacancies in the Board;
(g) fix the compensation of the directors for serving on the Board or
on a committee; or
(h) unless expressly authorized by the Board, declare a dividend or
authorize the issuance of stock.
The Board of Directors from time to time may, by like resolution,
appoint such other committees of one or more directors to have such authority as
shall be specified by the Board in the resolution making such appointments. The
Board of Directors may designate one or more directors as alternate members of
any committee who may replace an absent or disqualified member at any meeting
thereof.
5.09 Dissents. A director who is present at a meeting of the Board of
Directors, or a committee thereof of which he is a member,
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at which action on a corporate matter is taken is presumed to have concurred in
that action unless his dissent is entered in the minutes of the meeting or
unless he files his written dissent to the action with, the person acting as
secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the Corporation promptly after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action. A director who is absent from a
meeting of the Board, or a committee thereof of which he is a member, at which
any such action is taken is presumed to have concurred in the action unless he
files his written dissent with the Secretary of the Corporation within a
reasonable time after he has knowledge of the action.
5.10 Compensation. The Board of Directors, by affirmative vote of a
majority of directors in office and irrespective of any personal interest of any
of them, may establish reasonable compensation of directors for services to the
Corporation as directors or officers.
5.11 Employment of Others; Director-Emeritus. To assist in the
performance of its duties, the Board of Directors or any committee thereof may
employ any other corporation or any association, syndicate, trust, firm or
individual, or any group or combination thereof, to serve, assist, advise or
inform it, and may confer thereon such powers and authorities as it may deem
advisable, and make or contract to make such payments, fees or other
remuneration for services rendered as the Board may deem desirable. The Board of
Directors may, by resolution, adopted by a majority of the whole Board, appoint
a director or former director, who in either case, has served as a director for
ten years, or more, as a Director-Emeritus. Such appointment shall be for a term
expiring with the next Annual Meeting of Shareholders, but shall be subject to
renewal, by the same vote, at the organizational meeting of the Board of
Directors following such Annual Meeting. A Director-Emeritus shall not be
considered a member of the Board of Directors, but shall be a consultant to the
Board and, in such capacity, shall be invited to attend all meetings of the
Board and such meetings of committees of the Board as the Chairman of the Board
shall determine to be appropriate. For his services, a Director-Emeritus shall
be entitled to receive the same compensation for meetings actually attended as
members of the Board of Directors, but shall not be entitled to receive any
annual or other periodic fee or retainer paid to members of the Board.
ARTICLE VI
Notices, Waivers of Notice and Manner of Acting
6.01 Notices. All notices of meetings required to be given to
shareholders, directors or any committee of directors may be given by mail,
telegram or cablegram to any shareholder, director or
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committee member at his or her last address as it appears on the books of the
Corporation. Notice to directors may also be given by telex, facsimile
transmission or similar device.
6.02 Waiver of Notice. Notice of the time, place and purpose of any
meeting of shareholders, directors or committee of directors may be waived by
telegram, facsimile transmission, cablegram or other writing, either before or
after the meeting, or in such other manner as may be permitted by the laws of
the State of Michigan. Attendance of a person at any meeting of directors or a
committee of directors, constitutes a waiver of notice of the meeting except
when the person attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called and convened.
6.03 Action Without a Meetings. Any action required or permitted at any
meeting of shareholders or directors or committee of directors may be taken
without a meeting, without prior notice and without a vote, if all of the
shareholders or directors or committee members entitled to vote thereon consent
thereto in writing.
ARTICLE VII
Officers
7.01 Number. The Board of Directors shall elect or appoint a President,
a Secretary and a Treasurer, and may elect a Chairman of the Board, and one or
more Vice Presidents, Assistant Secretaries and/or Assistant Treasurers and such
other officers as it shall deem advisable. The President and Chairman of the
Board, if any, shall be members of the Board of Directors. Any two or more of
the above offices may be held by the same person, but no officer shall execute,
acknowledge or verify an instrument in more than one capacity.
7.02 Term of Office, Resignation and Removal. An officer shall hold
office for the term for which he is elected or appointed and until his successor
is elected or appointed and qualified, or until his resignation or removal. An
officer may resign by written notice to the Corporation. The resignation is
effective upon its receipt by the Corporation or at a subsequent time specified
in the notice of resignation. An officer may be removed by the Board with or
without cause. The removal of an officer shall be without prejudice to his
contract rights, if any. The election or appointment of an officer does not of
itself create contract rights.
7.03 Vacancies. The Board of Directors may fill any vacancies in any
office occurring for whatever reason.
7.04 Authority. All officers, employees and agents of theCorporation
shall have such authority and perform such duties in the conduct and management
of the business and affairs of the Corporation as may be designated by the Board
of Directors and these Bylaws.
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ARTICLE VIII
Duties of Officers
8.01 Chairman of the Board. The Chairman of the Board, if such office
is filled, shall preside at all meetings of the shareholders and of the Board of
Directors at which he is present. He shall consult with and advise the President
concerning the management and policies of the Corporation and, in conjunction
with the President; shall direct the policies of the Corporation. He shall
provide to the President whatever assistance is needed by the President in
performing his duties and responsibilities as such. The Chairman of the Board
shall also perform such other duties and execute such other duties and execute
such other powers as the Board of Directors may from time to time by resolution
prescribe.
8.02 President. The President shall be the chief executive officer of
the Corporation. He shall see that all orders and resolutions of the Board are
carried into effect, and he shall have the general powers of supervision and
management usually vested in the chief executive officer of a corporation,
including the authority to vote all securities of other corporations and
business organizations which are held by the Corporation. The President shall
consult with the Chairman of the Board concerning the management and policies of
the Corporation and shall, in conjunction with the Chairman of the Board, direct
the policies of the Corporation. In the absence or disability of the Chairman of
the Board, or if that office has not been filled, the President shall also
preside at all meetings of the shareholders and of the Board of Directors at
which he is present, and perform such other duties and execute such other powers
as the Board of Directors may from time to time prescribe.
8.03 Vice Presidents. The Vice Presidents, in order of their seniority,
shall, in the absence or disability of the President, perform is duties and
exercise his powers and shall perform such other duties as the Board of
Directors or the President may from time to time prescribe.
8.04 Secretary. The Secretary shall attend all meetings of the Board of
Directors and of shareholders and shall record all votes and minutes of all
proceedings in a book to be kept for that purpose. He shall give or cause to be
given notice of all meetings of the shareholders and of the Board of Directors.
He shall keep in safe custody the seal of the Corporation, and, when authorized
by the Board, affix the same to any instrument requiring it, and when so affixed
it shall be attested by his signature, or by the signature of the Treasurer or
an Assistant Secretary. The
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Secretary may delegate any of his duties, powers and authorities to one or more
Assistant Secretaries, unless such delegation is disapproved by the Board.
8.05 Treasurer. The Treasurer shall have the custody of the corporate
funds and securities; shall keep full and accurate accounts of receipts and
disbursements in books of the Corporation; and shall deposit all moneys and
other valuable affects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. He shall render to
the President and directors, whenever they may require it, an account of his
transactions as Treasurer and of the financial condition of the Corporation. The
Treasurer may delegate any of his duties, powers and authorities to one or more
Assistant Treasurers unless such delegation be disapproved by the Board of
Directors.
8.06 Assistant Secretaries and Treasurers. The Assistant Secretaries,
in order of their seniority, shall perform the duties and exercise the powers
and authorities of the Secretary in case of his absence or disability. The
Assistant Treasurers, in the order of their seniority, shall perform the duties
and exercise the powers and authorities of the Treasurer in case of his absence
or disability. The Assistant Secretaries and Assistant Treasurers shall also
perform such duties as may be delegated to them by the Secretary and Treasurer,
respectively, and also such duties as the Board of Directors may prescribe.
8.07 Bonds. The Board of Directors may require any officer, agent or
employee of the Corporation to give bond for the faithful discharge of his duty
and for the protection of the Corporation, in such sum and with such surety or
sureties as the Board may deem advisable.
ARTICLE IX
Special Corporate Acts
9.01 Orders for Payment of Money. All checks, drafts, notes, bonds,
bills of exchange and orders for payment of money of the Corporation shall be
signed by such officer of officers or such other person or persons as the Board
of Directors may from time to time designate.
9.02 Contracts and Conveyances. The Board of Directors of the
Corporation may in any instance designate the officer and/or agent who shall
have authority to execute any contract, conveyance, mortgage or other instrument
on behalf of the Corporation, or may ratify or confirm any execution. When the
execution of any instrument has been authorized without specification of the
executing officers or agents, the Chairman of the Board, the President or any
Vice President, and the Secretary or Assistant Secretary or Treasurer or
Assistant Treasurer, may execute the same in the name and on behalf of this
Corporation and may affix the corporate seal thereto.
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ARTICLE X
Books and Records
10.01 Maintenance of Books and Records. The proper officers and agents
of the Corporation shall keep and maintain such books, records, and accounts of
the Corporation's business and affairs, minutes of the proceedings of its
shareholders, Board and committees, if any, and such stock ledgers and lists of
shareholders, as the Board of Directors shall deem advisable, and as shall be
required by the laws of the State of Michigan and others states or jurisdictions
empowered to impose such requirements. Books, records and minutes may be kept
within or without the State of Michigan in a place which the Board shall
determine.
10.02 Reliance on Information, Opinions, Reports. In discharging his or
her duties, a director or officer is entitled to rely on information, opinions,
reports, or statements, including financial statements and other financial data,
if prepared or presented by any of the following:
(a) one or more directors, officers, or employees of the Corporation,
or of a business organization under joint or common control, whom the
director or officer reasonably believes to be reliable and competent in
the matters presented;
(b) legal counsel, public accountants, engineers, or other persons as
to matters the director or officer reasonably believes are within the
person's professional or expert competence; and
(c) a committee of the Board of which he or she is not a member if the
director or officer reasonably believes the committee merits
confidence.
A director or officer is not entitled to rely on the information set forth in
this Section 10.02 if he or she has knowledge concerning the matter in question
that makes reliance otherwise permitted by this Section 10.02 unwarranted.
10.03 Fiscal Year. The fiscal year of the Corporation shall be on a
"52-53 week" basis. This fiscal year shall end with the Saturday which is
closest to the last day of December of each year and the next fiscal year shall
begin with the Sunday immediately following the Saturday on which the preceding
fiscal year ended.
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ARTICLE XI
Indemnification
11.01 Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Michigan Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said Act permitted the Corporation to provide prior to such
amendment) against all expenses, liability and loss (including attorney's fees,
judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that the Corporation shall indemnify any such
person seeking indemnity in connection with an action, suit or proceeding (or
part thereof) initiated by such person only if such action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
Such right shall be a contract right and shall include the right to be paid by
the Corporation expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this Section or otherwise.
11.02 Right of Claimant to Bring Suit. If a claim under Section 11.01
is not paid in full by the Corporation within ninety days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a
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defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it permissible
under the Michigan Business Corporation Act for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Michigan Business Corporation
Act, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or it shareholders) that the claimant had
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant had not met the applicable standard of
conduct.
11.03 Non-Exclusivity of Rights. The right conferred on any person by
Sections 11.01 and 11.02 shall not be exclusive or any other rights which such
person may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise.
11.04 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself or any such director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise, or both, against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person against
such expense, liability or loss under the Michigan Business Corporation Act.
ARTICLE XII
Amendments
12.01 Amendments. The Bylaws of the Corporation may be amended, altered
or repealed, in whole or in part, by the shareholders or by the Board of
Directors at any meeting duly held in accordance with these Bylaws, provided
that notice of the meeting includes notice of the proposed amendment, alteration
or repeal.
14
BYLAWS
OF
Champion Home Centers, Inc.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The initial registered office shall be in
the City of Bingham Farms, County of Oakland, State of Michigan.
SECTION 2. OTHER OFFICES. The corporation may also have offices at such
other places both in and outside the State of Michigan as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders of the
corporation shall be held at the registered office or such other place, either
within or without the State of Michigan, as may be determined from time to time
by the board of directors.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
shareholders for election of directors and for such other business as may
properly come before the meeting, commencing with the year 1998, shall be held
on the first Monday of May, if not a legal holiday, and if a legal holiday, then
on the next business day following, at 10 a.m., local time, or at such other
date and time as shall be determined from time to time by the board of
directors, unless such action is taken by written consent as provided in Section
12 of this Article. If the annual meeting is not held on the date designated
therefor, the board shall cause the meeting to be held as soon thereafter as
convenient.
SECTION 3. ORDER OF BUSINESS AT ANNUAL MEETING. The order of business at
the annual meeting of the shareholders shall be as follows:
(a) Reading of notice and proof of mailing,
(b) Reports of Officers,
(c) Election of Directors,
(d) Transaction of other business mentioned in the notice,
(e) Adjournment.
provided that the presiding officer may vary the order of business at his or her
discretion.
SECTION 4. NOTICE OF MEETING OF SHAREHOLDERS. Except as otherwise provided
in the Michigan Business Corporation Act (herein called the "Act"), written
notice of the time, place and purposes of a meeting of shareholders shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting, either personally or by mail, to each shareholder of record
entitled to vote at the meeting. If a meeting is adjourned to another time or
place, it is not necessary to give notice of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken and at the adjourned meeting only business is
transacted as might have been transacted at the original meeting. If after the
adjournment the board of directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to vote at the meeting.
SECTION 5. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer or agent
having charge of the stock transfer books for shares of the corporation shall
make and certify a complete list of the shareholders entitled to vote at a
shareholders' meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and series, with the
address of, and the number of shares held by, each shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any shareholder during the whole time of
the meeting.
(d) Be prima facie evidence as to who are the shareholders entitled to
examine the list or to vote at the meeting.
SECTION 6. SPECIAL MEETING OF SHAREHOLDERS. A special meeting of
shareholders may be called at any time by the chief executive officer of the
corporation (see Article V, Section 4) or by a majority of the members of the
board of directors then in office, or by shareholders owning, in the aggregate,
not less than ten percent (10%) of all the shares entitled to vote at such
special meeting. The method by which such meeting may be called is as follows:
Upon receipt of a specification in writing setting forth the date and objects of
such proposed special meeting, signed by the chief executive officer, or by a
majority of the members of the board of directors then in office, or by
shareholders as above provided, the secretary of the corporation shall prepare,
sign and mail the notices requisite to such meeting.
SECTION 7. QUORUM OF SHAREHOLDERS. Unless a greater or lesser quorum is
provided in the articles of incorporation, in a bylaw adopted by the
shareholders or incorporators, or in the Act, shares entitled to cast a majority
of the votes at a meeting constitute a quorum at the meeting. The shareholders
present in person or by proxy at the meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. Whether or not a quorum is present, the meeting may be adjourned
by a vote of the shares present.
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SECTION 8. VOTE OF SHAREHOLDERS. Each outstanding share is entitled to one
(1) vote on each matter submitted to a vote, unless otherwise provided in the
articles of incorporation. A vote may be cast either orally or in writing. If an
action, other than the election of directors, is to be taken by vote of the
shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote on the action, unless a greater vote is
required by the articles of incorporation or the Act. Except as otherwise
provided in the articles of incorporation, directors shall be elected by a
plurality of the votes cast at an election.
SECTION 9. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS. For the purpose
of determining shareholders entitled to notice of and to vote at a meeting of
shareholders or an adjournment of a meeting, the board of directors may fix a
record date, which shall not precede the date on which the resolution fixing the
record date is adopted by the board. The date shall not be more than sixty (60)
nor less than ten (10) days before the date of the meeting. If a record date is
not fixed, the record date for determination of shareholders entitled to notice
of or to vote at a meeting of shareholders shall be the close of business on the
day next preceding the day on which notice is given, or if no notice is given,
the day next preceding the day on which the meeting is held. When a
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders has been made as provided in this Section, the
determination applies to any adjournment of the meeting, unless the board of
directors fixes a new record date under this Section for the adjourned meeting.
For the purpose of determining shareholders entitled to express consent to or
to dissent from a proposal without a meeting, the board of directors may fix a
record date, which shall not precede the date on which the resolution fixing the
record date is adopted by the board and shall not be more than ten (10) days
after the board resolution. If a record date is not fixed and prior action by
the board of directors is required with respect to the corporate action to be
taken without a meeting, the record date shall be the close of business on the
day on which the resolution of the board is adopted. If a record date is not
fixed and prior action by the board of directors is not required, the record
date shall be the first date on which a signed written consent is delivered to
the corporation as provided in Section 12 of this Article. For the purpose of
determining shareholders entitled to receive payment of a share dividend or
distribution, or allotment of a right, or for the purpose of any other action,
the board of directors may fix a record date, which shall not precede the date
on which the resolution fixing the record date is adopted by the board. The date
shall not be more than sixty (60) days before the payment of the share dividend
or distribution or allotment of a right or other action. If a record date is not
fixed, the record date shall be the close of business on the day on which the
resolution of the board of directors relating to the corporate action is
adopted.
SECTION 10. PROXIES. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
one or more other persons to act for him or her by proxy. A proxy shall be
signed by the shareholder or his or her authorized agent or representative. A
proxy is not valid after the expiration of three (3) years from its date unless
otherwise provided in the proxy.
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SECTION 11. INSPECTORS OF ELECTION. The board of directors, in advance of
a shareholders' meeting, may appoint one (1) or more inspectors of election to
act at the meeting or any adjournment thereof. If inspectors are not so
appointed, the person presiding at a shareholders' meeting may, and on request
of a shareholder entitled to vote thereat shall, appoint one (1) or more
inspectors. In case a person appointed fails to appear or act, the vacancy may
be filled by appointment made by the board of directors in advance of the
meeting or at the meeting by the person presiding thereat. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine challenges and questions arising in connection with the right to vote,
count and tabulate votes, ballots or consents, determine the result, and do such
acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting or a shareholder
entitled to vote thereat, the inspectors shall make and execute a written report
to the person presiding at the meeting of any of the facts found by them and
matters determined by them. The report is prima facie evidence of the facts
stated and of the vote as certified by the inspectors.
SECTION 12. ACTION BY WRITTEN CONSENT. The articles of incorporation may
provide that any action required or permitted by the Act to be taken at an
annual or special meeting of shareholders may be taken without a meeting,
without prior notice and without a vote, if consents in writing, setting forth
the action so taken, are signed by the holders of outstanding shares having not
less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote on the action
were present and voted. The written consents shall bear the date of signature of
each shareholder who signs the consent. No written consents shall be effective
to take the corporate action referred to unless, within sixty (60) days after
the record date for determining shareholders entitled to express consent to or
to dissent from a proposal without a meeting, written consents dated not more
than ten (10) days before the record date and signed by a sufficient number of
shareholders to take the action are delivered to the corporation. Delivery shall
be to the corporation's registered office, its principal place of business, or
an officer or agent of the corporation having custody of the minutes of the
proceedings of its shareholders. Delivery made to a corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. Prompt notice of the taking of the Corporate action without a meeting
by less than unanimous written consent shall be given to shareholders who would
have been entitled to notice of the shareholder meeting if the action had been
taken at a meeting and who have not consented in writing. Any action required or
permitted by the Act to be taken at an annual or special meeting of shareholders
may be taken without a meeting, without prior notice and without a vote if,
before or after the action, all the shareholders entitled to vote consent in
writing.
SECTION 13. PARTICIPATION IN MEETING BY TELEPHONE. Unless otherwise
restricted by the articles of incorporation, by oral or written permission of a
majority of the shareholders, a shareholder may participate in a meeting of
shareholders by a conference telephone or by other similar communications
equipment through which all persons
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participating in the meeting may communicate with the other participants. All
participants shall be advised of the communications equipment and the names of
the participants in the conference shall be divulged to all participants.
Participation in a meeting pursuant to this Section constitutes presence in
person at the meeting.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM OF DIRECTORS. The number of directors which
shall constitute the whole board shall be not less than three (3) nor more than
five (5). The first board shall consist of three (3) directors. Thereafter, the
number of directors which shall constitute the board of directors for each
ensuing year shall be determined at the annual meeting by vote of the
shareholders prior to such election; provided, however, that if a motion is not
made and carried to increase or decrease the number of directors, the board
shall consist of the same number of directors as were elected for the preceding
year. The shareholders may also increase or decrease the number of directors at
any meeting of the shareholders or by a written consent in lieu thereof. Either
the shareholders or the board of directors may fill the vacancy caused by an
increase in the number of directors. The first board of directors shall hold
office until the first annual meeting of shareholders. At the first annual
meeting of shareholders and at each annual meeting thereafter, the shareholders
shall elect directors to hold office until the succeeding annual meeting, except
in the case of classification of directors as permitted by the Act. A director
shall hold office for the term for which he or she is elected and until his or
her successor is elected and qualified, or until his or her resignation or
removal. Directors need not be shareholders and may serve continuous terms.
SECTION 2. VACANCIES. Unless otherwise limited by the articles of
incorporation, if a vacancy, including a vacancy resulting from an increase in
the number of directors, occurs in the board of directors, the vacancy may be
filled as follows:
(a) The shareholders may fill the vacancy.
(b) The board may fill the vacancy.
(c) If the directors remaining in office constitute fewer than a quorum
of the board of directors, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in
office.
Unless otherwise provided in the articles of incorporation, if the holders
of any class or classes of stock or series are entitled to elect one (1) or more
directors to the exclusion of other shareholders, vacancies of that class or
classes or series may be filled only by one (1) of the following:
(a) By a majority of the directors elected by the holders of that class
or classes or series then in office, whether or not those directors
constitute a quorum of the board of directors.
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(b) By the holders of shares of that class or classes of shares, or
series
Unless otherwise limited by the articles of incorporation or these bylaws, in
the case of a corporation the board of directors of which are divided into
classes, any director chosen to fill a vacancy shall hold office until the next
election of the class for which the director shall have been chosen, and until
his or her successor is elected and qualified. If because of death, resignation,
or other cause, a corporation has no directors in office, an officer, a
shareholder, a personal representative, administrator, trustee, or guardian of a
shareholder, or other fiduciary entrusted with like responsibility for the
person or estate of a shareholder, may call a special meeting of shareholders in
accordance with the articles of incorporation or these bylaws. A vacancy that
will occur at a specific date, by reason of a resignation effective at a later
date under Section 4 of this Article or otherwise, may be filled before the
vacancy occurs but the newly elected or appointed director may not take office
until the vacancy occurs.
SECTION 3. REMOVAL. The shareholders may remove one (1) or more directors
with or without cause unless the articles of incorporation provide that
directors may be removed only for cause. The vote for removal shall be by a
majority of shares entitled to vote at an election of directors, unless the
articles of incorporation require a higher vote for removal without cause.
SECTION 4. RESIGNATION. A director may resign by written notice to the
corporation. The resignation is effective upon its receipt by the corporation or
a later time as set forth in the notice of resignation.
SECTION 5. POWERS. The business and affairs of the corporation shall be
managed by its board of directors except as otherwise provided in the Act or in
the articles of incorporation.
SECTION 6. LOCATION OF MEETINGS. Regular or special meetings of the board
of directors may be held either in or outside the State of Michigan.
SECTION 7. ORGANIZATION MEETING OF BOARD. The first meeting of each
newly elected board of directors shall be held at the place of holding the
annual meeting of shareholders, and immediately following the same, for the
purpose of electing officers and transacting any other business properly brought
before it, provided that the organization meeting in any year may be held at a
different time and place than that herein provided by a consent of a majority of
the directors of such new board. No notice of such meeting shall be necessary to
the newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present, unless said meeting is not held at the place of
holding and immediately following the annual meeting of shareholders.
SECTION 8. REGULAR MEETING OF BOARD. Any regular meeting of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
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SECTION 9. SPECIAL MEETING OF BOARD. Any special meeting of the board of
directors may be called by the chief executive officer, or by a majority of the
persons then comprising the board of directors, at any time by means of notice
of the time and place thereof to each director, given not less than twenty-four
(24) hours before the time such special meeting is to be held.
SECTION 10. COMMITTEES OF DIRECTORS. The board of directors may designate
one (1) or more committees, each committee to consist of one (1) or more of the
directors of the corporation. The board may designate one (1) or more directors
as alternate members of any committee, who may replace an absent or disqualified
member at a meeting of the committee. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors
creating such committee, may exercise all the powers and authority of the board
of directors in the management of the business and affairs of the corporation. A
committee does not have the power or authority to amend the articles of
incorporation, adopt an agreement of merger or share exchange, recommend to the
shareholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommend to the shareholders a dissolution
of the corporation or a revocation of a dissolution, amend the bylaws of the
corporation or fill vacancies in the board of directors; and, unless the
resolution of the board of directors creating such committee, the articles of
incorporation or bylaws expressly so provide, a committee does not have the
power or authority to declare a distribution, dividend or to authorize the
issuance of stock. Any such committee, and each member thereof, shall serve at
the pleasure of the board of directors.
SECTION 11. QUORUM AND REQUIRED VOTE OF BOARD AND COMMITTEES. At all
meetings of the board of directors, or of a committee thereof, a majority of the
members of the board then in office, or of the members of a committee of the
board of directors, constitutes a quorum for transaction of business, unless the
articles of incorporation, these bylaws, or in the case of a committee, the
board resolution establishing the committee, provide for a larger or smaller
number. The vote of the majority of members present at a meeting at which a
quorum is present constitutes the action of the board of directors or of the
committee unless the vote of a larger number is required by the Act, the
articles of incorporation, or these bylaws, or in the case of a committee, the
board resolution establishing the committee. Amendment of these bylaws by the
board of directors requires the vote of not less than a majority of the members
of the board then in office. If a quorum shall not be present at any meeting of
the board of directors the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
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SECTION 12. ACTION BY WRITTEN CONSENT. Action required or permitted to be
taken under authorization voted at a meeting of the board of directors or a
committee of the board of directors, may be taken without a meeting if, before
or after the action, all members of the board then in office or of the committee
consent to the action in writing. The written consents shall be filed with the
minutes of the proceedings of the board of directors or committee. The consent
has the same effect as a vote of the board of directors or committee for all
purposes.
SECTION 13. COMPENSATION OF DIRECTORS. The board of directors, by
affirmative vote of a majority of directors in office and irrespective of any
personal interest of any of them, may establish reasonable compensation of
directors for services to the corporation as directors or officers, but approval
of the shareholders is required if the articles of incorporation, these bylaws
or any provisions of the Act so provide.
SECTION 14. PARTICIPATION IN MEETING BY TELEPHONE. By oral or written
permission of a majority of the board of directors, a member of the board of
directors or of a committee designated by the board may participate in a meeting
by means of conference telephone or similar communications equipment through
which all persons participating in the meeting can communicate with the other
participants. Participation in a meeting pursuant to this Section constitutes
presence in person at the meeting.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice or communication is required to be
given by mail to any director or shareholder under any provision of the Act, or
of the articles of incorporation or of these bylaws, it shall be given in
writing, except as otherwise provided in the Act, to such director or
shareholder at the address designated by him or her for that purpose or, if none
is designated, at his or her last known address. The notice or communication is
given when deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States postal
service. The mailing shall be registered, certified or other first class mail
except where otherwise provided in the Act. Written ,notice may also be given in
person or by telegram, telecopy, telex, radiogram, cablegram, or mailgram, and
such notice shall be deemed to be given when the recipient receives the notice
personally, or when the notice, addressed as provided above, has been delivered
to the corporation, or to the equipment transmitting such notice. Neither the
business to be transacted at, nor the purpose of, a regular or special meeting
of the board of directors need be specified in the notice of the meeting.
SECTION 2. WAIVER OF NOTICE. When, under the Act or the articles of
incorporation or these bylaws, or by the terms of an agreement or instrument, a
corporation or the board of directors or any committee thereof may take action
after notice to any person or after lapse of a prescribed period of time, the
action may be taken without notice
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and without lapse of the period of time, if at any time before or after the
action is completed the person entitled to notice or to participate in the
action to be taken or, in case of a shareholder, by his or her attorney-in-fact,
submits a signed waiver of such requirements. Neither the business to be
transacted at, nor the purpose of, a regular or special meeting of the board of
directors need be specified in the waiver of notice of the meeting. Attendance
of a person at a meeting of shareholders constitutes a waiver of objection to
lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting and a waiver of objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, unless the shareholder objects to considering the matter when it
is presented. A director's attendance at or participation in a meeting waives
any required notice to him or her of the meeting unless he or she at the
beginning of the meeting, or upon his or her arrival, objects to the meeting or
the transacting of business at the meeting and does not thereafter vote for or
assent to any action taken at the meeting.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The board of directors, at its first meeting and at
its organization meeting following the annual meeting of shareholders, shall
elect or appoint a president, a secretary and a treasurer. The board of
directors may also elect or appoint a chairman of the board, one (1) or more
vice presidents and such other officers, employees and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
board. Two (2) or more offices may be held by the same person but an officer
shall not execute, acknowledge or verify an instrument in more than one (1)
capacity if the instrument is required by law or the articles or bylaws to be
executed, acknowledged or verified by two (2) or more officers.
SECTION 2. COMPENSATION. The salaries of all officers, employees and
agents of the corporation shall be fixed by the board of directors; provided,
however, that the board may delegate to the officers the fixing of compensation
of assistant officers, employees and agents.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the corporation
shall hold office for the term for which he or she is elected or appointed and
until his or her successor is elected or appointed and qualified, or until his
or her resignation or removal. An officer elected or appointed by the board of
directors may be removed by the board with or without cause at any time. An
officer may resign by written notice to the corporation. The resignation is
effective upon its receipt by the corporation or at a subsequent time specified
in the notice of resignation. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
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SECTION 4. CHIEF EXECUTIVE OFFICER. If the board of directors desires to
elect or appoint a chief executive officer, the board shall designate the
chairman of the board or president as such officer at the first meeting of each
newly elected board of directors; provided, however, that if a motion is not
made and carried to change the designation, the designation shall be the same as
the designation for the preceding year; provided, further, that the designation
of the chief executive officer may be changed at any special meeting of the
board of directors. The president shall be the chief executive officer whenever
the office of chairman of the board is vacant. The chief executive officer shall
be responsible to the board of directors for the general supervision and
management of the business and affairs of the corporation and shall see that all
orders and resolutions of the board are carried into effect. The chairman of the
board or president who is not the chief executive officer shall be subject to
the authority of the chief executive officer, but shall exercise all of the
powers and discharge all of the duties of the chief executive officer during
the absence or disability of the chief executive officer.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. If the board of directors
elects or appoints a chairman of the board, he or she shall be elected or
appointed by, and from among the membership of, the board of directors. He or
she shall preside at all meetings of the shareholders, of the board of directors
and of any executive committee. He or she shall perform such other duties and
functions as shall be assigned to him or her from time to time by the board of
directors. He or she shall be, ex officio, a member of all standing committees.
Except where by law the signature of the president of the corporation is
required, the chairman of the board of directors shall possess the same power
and authority to sign all certificates, contracts, instruments, papers and
documents of every conceivable kind and character whatsoever in the name of and
on behalf of the corporation which may be authorized by the board of directors.
During the absence or disability of the president, or while that office is
vacant, the chairman of the board of directors shall exercise all of the powers
and discharge all of the duties of the president.
SECTION 6. PRESIDENT. During the absence or disability of the chairman of
the board, or while that office is vacant, the president shall preside over all
meetings of the board of directors, of the shareholders and of any executive
committee, and shall perform all of the duties and functions, and when so acting
shall have all powers and authority, of the chairman of the board. He or she
shall be, ex officio, a member of all standing committees. The president shall,
in general, perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors.
SECTION 7. VICE PRESIDENTS. The board of directors may elect or appoint
one or more vice presidents. The board of directors may designate one or more
vice presidents as executive or senior vice presidents. Unless the board of
directors shall otherwise provide by resolution duly adopted by it, such of the
vice presidents as shall have been designated executive or senior vice
presidents and are members of the board of directors in the order specified by
the board of directors (or if no vice president who is a member of the board of
directors shall have been designated as executive or senior vice president, then
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such vice presidents as are members of the board of directors in the order
specified by the board of directors) shall perform the duties and exercise the
powers of the president during the absence or disability of the president if the
office of the chairman of the board is vacant. The vice presidents shall perform
such other duties as may be delegated to them by the board of directors, any
executive committee, the chairman of the board or the president.
SECTION 8. SECRETARY. The secretary shall attend all meetings of the
shareholders, and of the board of directors and of any executive committee, and
shall preserve in the books of the corporation true minutes of the proceedings
of all such meetings. He or she shall safely keep in his or her custody the seal
of the corporation, if any, and shall have authority to affix the same to all
instruments where its use is required or permitted. He or she shall give all
notice required by the Act, these bylaws or resolution. He or she shall perform
such other duties as may be delegated to him or her by the board of directors,
any executive committee, the chairman of the board or the president.
SECTION 9. TREASURER. The treasurer shall have custody of all corporate
funds and securities and shall keep in books belonging to the corporation full
and accurate accounts of all receipts and disbursements; he or she shall deposit
all moneys, securities and other valuable effects in the name of the corporation
in such depositories as may be designated for that purpose by the board of
directors. He or she shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors
whenever requested an account of all his or her transactions as treasurer and of
the financial condition of the corporation. If required by the board of
directors, he or she shall keep in force a bond in form, amount and with a
surety or sureties satisfactory to the board of directors, conditioned for
faithful performance of the duties of his or her office, and for restoration to
the corporation in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and property of whatever kind
in his or her possession or under his or her control belonging to the
corporation. He or she shall perform such other duties as may be delegated to
him or her by the board of directors, any executive committee, the chairman of
the board or the president.
SECTION 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretary or assistant secretaries, in the absence or disability of the
secretary, shall perform the duties and exercise the powers of the secretary.
The assistant treasurer or assistant treasurers, in the absence or disability of
the treasurer, shall perform the duties and exercise the powers of the
treasurer. Any assistant treasurer, if required by the board of directors, shall
keep in force a bond as provided in Section 9 of this Article. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or by the treasurer, respectively, or
by the board of directors, any executive committee, the chairman of the board or
the president.
SECTION 11. DELEGATION OF AUTHORITY AND DUTIES BY BOARD OF DIRECTORS. All
officers, employees and agents shall, in addition to the authority conferred, or
duties imposed, on them by these bylaws, have such authority and perform
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such duties in the management of the corporation as may be determined by
resolution of the board of directors not inconsistent with these bylaws.
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS: CLAIMS BY THIRD
PARTIES. The corporation shall, to the fullest extent authorized or permitted by
the Act or other applicable law, as the same presently exist or may hereafter be
amended, but, in the case of any such amendment, only to the extent such
amendment permits the corporation to provide broader indemnification rights than
before such amendment, indemnify a director or officer (an "Indemnitee") who was
or is a party or is threatened to be made a party to a threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal, other than an action by or in
the right of the corporation, by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with the action, suit, or proceeding, if the Indemnitee acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders, and with respect to a criminal
action or proceeding, if the Indemnitee had no reasonable cause to believe his
or her conduct was unlawful. The termination of an action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
SECTION 2. INDEMNIFICATION OF DIRECTORS AND OFFICERS: CLAIMS BROUGHT BY OR
IN THE RIGHT OF THE CORPORATION. The corporation shall, to the fullest extent
authorized or permitted by the Act or other applicable law, as the same
presently exist or may hereafter be amended, but, in the case of any such
amendment, only to the extent such amendment permits the corporation to provide
broader indemnification rights than before such amendment, indemnify an
Indemnitee who was or is a party or is threatened to be made a party to a
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, whether for profit or
not, against expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in
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connection with the action or suit, if the Indemnitee acted in good faith and in
a manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders. Indemnification shall not be
made under this Section for a claim, issue, or matter in which the Indemnitee
has been found liable to the corporation except to the extent authorized in
Section 6 of this Article.
SECTION 3. ACTIONS BROUGHT BY THE INDEMNITEE. Notwithstanding the
provisions of Sections 1 and 2 of this Article, the corporation shall not be
required to indemnify an Indemnitee in connection with an action, suit,
proceeding or claim (or part thereof) brought or made by such Indemnitee except
as otherwise provided herein with respect to the enforcement of this Article;
unless such action, suit, proceeding or claim (or part thereof) was authorized
by the board of directors of the corporation.
SECTION 4. APPROVAL OF INDEMNIFICATION. An indemnification under Sections
1 or 2 of this Article, unless ordered by the court, shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper in the circumstances because such
Indemnitee has met the applicable standard of conduct set forth in Sections 1 or
2 of this Article, as the case may be, and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. This determination
and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the board of directors consisting
of directors who are not parties or threatened to be made parties to
the action, suit, or proceeding.
(b) If a quorum cannot be obtained in subsection (a), By majority vote
of a committee duly designated by the board of directors and
consisting solely of two (2) or more directors not at the time
parties or threatened to be made parties to the action, suit or
proceeding.
(c) By independent legal counsel in a written opinion, which counsel
shall be selected in one (1) of the following ways:
(i) By the board of directors or its committee in the manner
prescribed in subsection (a) or (b).
(ii) If a quorum of the board of directors cannot be obtained under
subsection (a) and a committee cannot be designated under
subsection (b), by the board of directors.
(d) By all independent directors (if any directors have been designated
as such by the board of directors or shareholders of the
corporation) who are not parties or threatened to be made parties to
the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made
parties to the action, suit, or proceeding may not be voted.
In the designation of a committee under subsection (b) or in the selection of
independent legal counsel under subsection (c)(ii), all directors may
participate.
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SECTION 5. ADVANCEMENT OF EXPENSES. The corporation may pay or reimburse
the reasonable expenses incurred by an Indemnitee who is a party or threatened
to be made a party to an action, suit, or proceeding in advance of final
disposition of the proceeding if all of the following apply:
(a) The Indemnitee furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the applicable
standard of conduct set forth in Sections 1 and 2 of this Article.
(b) The Indemnitee furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance if
it is ultimately determined that he or she did not meet the standard
of conduct.
(c) A determination is made that the facts then known to those making
the determination would not preclude indemnification under the Act.
The undertaking required by subsection (b) must be an unlimited general
obligation of the Indemnitee but need not be secured. Determinations and
evaluations of payments under this Section shall be made in the manner specified
in Section 4 of this Article.
SECTION 6. COURT APPROVAL. An Indemnitee who is a party or threatened to
be made a party to an action, suit, or proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving any notice it
considers necessary may order indemnification if it determines that the
Indemnitee is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances, whether or not he or she met the applicable standard
of conduct set forth in Sections 1 and 2 of this Article or was adjudged liable
as described in Section 2 of this Article, but if he or she was adjudged liable,
his or her indemnification is limited to reasonable expenses incurred.
SECTION 7. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled to
indemnification under Sections 1 or 2 of this Article for a portion of expenses,
including reasonable attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement, but not for the total amount, the corporation shall
indemnify the Indemnitee for the portion of the expenses, judgments, penalties,
fines, or amounts paid in settlement for which the indemnitee is entitled to be
indemnified.
SECTION 8. INDEMNIFICATION OF EMPLOYEES AND AGENTS. Any person who is not
covered by the foregoing provisions of this Article and who is or was an
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, may be indemnified to the fullest
extent authorized or permitted by the Act or other applicable law, as the same
exists or may hereafter be amended, but, in the case of any such amendment, only
to the extent such amendment permits the corporation to provide broader
indemnification rights than before such amendment, but in any event only to the
extent authorized at any time or from time to time by the board of directors.
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SECTION 9. OTHER RIGHTS OF INDEMNIFICATION. The indemnification or
advancement of expenses provided under Sections 1 through 8 of this Article is
not exclusive of other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of incorporation,
bylaws, or a contractual agreement. The total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement of
expenses. The indemnification provided for in Sections 1 through 8 of this
Article continues as to a person who ceases to be a director, officer, employee,
or agent and shall inure to the benefit of the heirs, personal representatives,
and administrators of the person.
SECTION 10. DEFINITIONS. "Other enterprises" shall include employee
benefit plans; "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and "serving at the request of the
corporation" shall include any service as a director, officer, employee, or
agent of the corporation which imposes duties on, or involves services by, the
director, officer, employee or agent with respect to an employee benefit plan,
its participants or its beneficiaries; and a person who acted in good faith and
in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be considered
to have acted in a manner "not opposed to the best interests of the corporation
or its shareholders" as referred to in Sections 1 and 2 of this Article.
SECTION 11. LIABILITY INSURANCE. The corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such,
whether or not the corporation would have power to indemnify him or her against
liability under the pertinent provisions of the Act.
SECTION 12. ENFORCEMENT. If a claim under this Article is not paid in full
by the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim, and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Act for the corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, a committee
thereof, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that
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indemnification of the claimant is proper in the circumstances because such
claimant has met the applicable standard of conduct set forth in the Act nor an
actual determination by the corporation (including its board of directors, a
committee thereof, independent legal counsel or its shareholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
SECTION 13. CONTRACT WITH THE CORPORATION. The right to indemnification
conferred in this Article shall be deemed to be a contract right between the
corporation and each director or officer who serves in any such capacity at any
time while this Article is in effect, and any repeal or modification of this
Article shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
SECTION 14. APPLICATION TO A RESULTING OR SURVIVING CORPORATION OR
CONSTITUENT CORPORATION. The definition for "corporation" found in Section 569
of the Act, as the same exists or may hereafter be amended is, and shall be,
specifically excluded from application to this Article. The indemnification and
other obligations set forth in this Article of the corporation shall be binding
upon any resulting or surviving corporation after any merger or consolidation
with the corporation. Notwithstanding anything to the contrary contained herein
or in Section 569 of the Act, no person shall be entitled to the indemnification
and other rights set forth in this Article for acting as a director or officer
of another corporation prior to such other corporation entering into a merger or
consolidation with the corporation.
SECTION 15. SEVERABILITY. Each and every paragraph, sentence, term and
provision of this Article shall be considered severable in that, in the event a
court finds any paragraph, sentence, term or provision to be invalid or
unenforceable, the validity and enforceability, operation, or effect of the
remaining paragraphs, sentences, terms, or provisions shall not be affected,
and this Article shall be construed in all respects as if the invalid or
unenforceable matter had been omitted.
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ARTICLE VII
STOCK AND TRANSFERS
SECTION 1. SHARE CERTIFICATES: REQUIRED SIGNATURES. The shares of the
corporation shall be represented by certificates which shall be signed by the
chairman of the board of directors, vice chairman of the board of directors,
president or a vice president and which also may be signed by another officer of
the corporation. The certificate may be sealed with the seal of the corporation
or a facsimile of the seal. The signatures of the officers may be facsimiles if
the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employee. If an officer who
has signed or whose facsimile signature has been placed upon a certificate
ceases to be an officer before the certificate is issued, it may be issued by
the corporation with the same effect as if he or she were the officer at the
date of issue.
SECTION 2. SHARE CERTIFICATES: REQUIRED PROVISIONS. A certificate
representing shares of the corporation shall state upon its face all of the
following:
(a) That the corporation is formed under the laws of this state.
(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the series,
if any, which the certificate represents.
A certificate representing shares issued by a corporation which is authorized to
issue shares of more than one (1) class shall set forth on its face or back or
state on its face or back that the corporation will furnish to a shareholder
upon request and without charge a full statement of the designation, relative
rights, preferences and limitations of the shares of each class authorized to be
issued, and if the corporation is authorized to issue any class of shares in
series, the designation, relative rights, preferences and limitations of each
series so far as the same have been prescribed and the authority of the board to
designate and prescribe the relative rights, preferences and limitations of
other series.
SECTION 3. REPLACEMENT OF LOST OR DESTROYED SHARE CERTIFICATES. The
corporation may issue a new certificate for shares or fractional shares in place
of a certificate theretofore issued by it, alleged to have been lost or
destroyed, and the board of directors may require the owner of the lost or
destroyed certificate, or his or her legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged lost or destroyed
certificate or the issuance of such new certificate.
SECTION 4. REGISTERED SHAREHOLDERS. The corporation shall have the right
to treat the registered holder of any share as the absolute owner thereof, and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the corporation shall
have express or other notice thereof, save as may be otherwise provided by the
statutes of Michigan.
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SECTION 5. TRANSFER AGENT AND REGISTRAR. The board of directors may
appoint a transfer agent and a registrar in the registration of transfers of its
securities.
SECTION 6. REGULATIONS. The board of directors shall have power and
authority to make all such rules and regulations as the board shall deem
expedient regulating the issue, transfer and registration of certificates for
shares in this corporation.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS IN CASH OR PROPERTY. The board of directors may
authorize and the corporation may make distributions to its shareholders subject
to restriction by the articles of incorporation and/or unless otherwise limited
by the articles of incorporation, these bylaws or the Act.
SECTION 2. RESERVES. The board of directors shall have power and authority
to set apart such reserve or reserves, for any proper purpose, as the board in
its discretion shall approve, and the board shall have the power and authority
to abolish any reserve created by the board.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the board of
directors, the chairman of the board or president, or in the case of their
absence or inability to act, the vice presidents, in order of their seniority,
shall have full power and authority on behalf of the corporation to attend and
to act and to vote, or to execute in the name or on behalf of the corporation a
consent in writing in lieu of a meeting of shareholders or a proxy authorizing
an agent or attorney-in-fact for the corporation to attend and vote at any
meetings of security holders of corporations in which the corporation may hold
securities, and at such meetings he or she or his or her duly authorized agent
or attorney-in-fact shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof,
the corporation might have possessed and exercised if present. The board of
directors by resolution from time to time may confer like power upon any other
person or persons.
SECTION 4. CHECKS. All checks, drafts and orders for the payment of money
shall be signed in the name of the corporation in such manner and by such
officer or officers or such other person or persons as the board of directors
shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any
contract, conveyance or other instrument has been authorized without
specification of the executing officers, the chairman of the board, president or
any vice president, and the secretary or assistant secretary, may execute the
same in the name and on behalf of this
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corporation and may affix the corporate seal thereto. The board of directors
shall have power to designate the officers and agents who shall have authority
to execute any instrument on behalf of this corporation.
SECTION 6. CORPORATE BOOKS AND RECORDS. The corporation shall keep books
and records of account and minutes of the proceedings of its shareholders, board
of directors and executive committees, if any. The books, records and minutes
may be kept outside this state. The corporation shall keep at its registered
office, or at the office of its transfer agent in or outside the State of
Michigan, records containing the names and addresses of all shareholders, the
number, class and series of shares held by each and the dates when they
respectively became holders of record. Any of the books, records or minutes may
be in written form or in any other form capable of being converted into written
form within a reasonable time. The corporation shall convert into written form
without charge any record not in written form, unless otherwise requested by a
person entitled to inspect the records.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
SECTION 8. SEAL. If the corporation has a corporate seal, it shall have
inscribed thereon the name of the corporation and the words "Corporate Seal" and
"Michigan." The seal may be used by causing it or a facsimile to be affixed,
impressed or reproduced in any other manner.
ARTICLE IX
AMENDMENTS
SECTION 1. The shareholders or the board of directors may amend or repeal
the bylaws or adopt new bylaws unless the articles of incorporation provide that
the power to adopt new bylaws is reserved exclusively to the shareholders or
that these bylaws or any particular bylaw shall not be altered or repealed by
the board of directors. Such action may be taken by written consent or at any
meeting of shareholders or the board of directors; provided that if notice of
any such meeting is required by these bylaws, it shall contain notice of the
proposed amendment, repeal or new bylaws. Amendment of these bylaws by the board
of directors requires the vote of not less than a majority of the members of the
board then in office.
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BYLAWS
OF
A-1 CHAMPION GP, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The initial registered office shall be in
the City of Bingham Farms, County of Oakland, State of Michigan.
SECTION 2. OTHER OFFICES. The corporation may also have offices at such
other places both in and outside the State of Michigan as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 1. PLACE OF MEETING. All meetings of the shareholders of the
corporation shall be held at the registered office or such other place, either
within or without the State of Michigan, as may be determined from time to time
by the board of directors.
SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of
shareholders for election of directors and for such other business as may
properly come before the meeting, commencing with the year 1998, shall be held
on the first Monday of May, if not a legal holiday, and if a legal holiday, then
on the next business day following, at 10 a.m., local time, or at such other
date and time as shall be determined from time to time by the board of
directors, unless such action is taken by written consent as provided in Section
12 of this Article. If the annual meeting is not held on the date designated
therefor, the board shall cause the meeting to be held as soon thereafter as
convenient.
SECTION 3. ORDER OF BUSINESS AT ANNUAL MEETING. The order of business
at the annual meeting of the shareholders shall be as follows:
(a) Reading of notice and proof of mailing,
(b) Reports of Officers,
(c) Election of Directors,
(d) Transaction of other business mentioned in the notice,
(e) Adjournment,
Provided that the presiding officer may vary the order of business at
his or her discretion.
SECTION 4. NOTICE OF MEETING OF SHAREHOLDERS. Except as otherwise
provided in the Michigan Business Corporation Act (herein called the "Act"),
written notice of the time, place and purposes of a meeting of shareholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, to each shareholder of record
entitled to vote at the meeting. If a meeting is adjourned to another time or
place, it is not necessary to give notice of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken and at the adjourned meeting only business is
transacted as might have been transacted at the original meeting. If after the
adjournment the board of directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to vote at the meeting.
SECTION 5. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer or agent
having charge of the stock transfer books for shares of the corporation shall
make and certify a complete list of the shareholders entitled to vote at a
shareholders' meeting or any adjournment thereof. The list shall:
(a) Be arranged alphabetically within each class and series, with
the address of, and the number of shares held by, each
shareholder.
(b) Be produced at the time and place of the meeting.
(c) Be subject to inspection by any shareholder during the whole
time of the meeting.
(d) Be prima facie evidence as to who are the shareholders
entitled to examine the list or to vote at the meeting.
SECTION 6. SPECIAL MEETING OF SHAREHOLDERS. A special meeting of
shareholders may be called at any time by the chief executive officer of the
corporation (see Article V, Section 4) or by a majority of the members of the
board of directors then in office, or by shareholders owning, in the aggregate,
not less than ten percent (10%) of all the shares entitled to vote at such
special meeting. The method by which such meeting may be called is as follows:
Upon receipt of a specification in writing setting forth the date and objects of
such proposed special meeting, signed by the chief executive officer, or by a
majority of the members of the board of directors then in office, or by
shareholders as above provided, the secretary of the corporation shall prepare,
sign and mail the notices requisite to such meeting.
SECTION 7. QUORUM OF SHAREHOLDERS. Unless a greater or lesser quorum is
provided in the articles of incorporation, in a bylaw adopted by the
shareholders or incorporators, or in the Act, shares entitled to cast a majority
of the votes at a meeting constitute a quorum at the meeting. The shareholders
present in person or by proxy at the meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. Whether or not a quorum is present, the meeting may be adjourned
by a vote of the shares present.
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SECTION 8. VOTE OF SHAREHOLDERS. Each outstanding share is entitled to
one (1) vote on each matter submitted to a vote, unless otherwise provided in
the articles of incorporation. A vote may be cast either orally or in writing.
If an action, other than the election of directors, is to be taken by vote of
the shareholders, it shall be authorized by a majority of the votes cast by the
holders of shares entitled to vote on the action, unless a greater vote is
required by the articles of incorporation or the Act. Except as otherwise
provided in the articles of incorporation, directors shall be elected by a
plurality of the votes cast at an election.
SECTION 9. RECORD DATE FOR DETERMINATION OF SHAREHOLDERS. For the
purpose of determining shareholders entitled to notice of and to vote at a
meeting of shareholders or an adjournment of a meeting, the board of directors
may fix a record date, which shall not precede the date on which the resolution
fixing the record date is adopted by the board. The date shall not be more than
sixty (60) nor less than ten (10) days before the date of the meeting. If a
record date is not fixed, the record date for determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be the close
of business on the day next preceding the day on which notice is given, or if no
notice is given, the day next preceding the day on which the meeting is held.
When a determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders has been made as provided in this Section, the
determination applies to any adjournment of the meeting, unless the board of
directors fixes a new record date under this Section for the adjourned meeting.
For the purpose of determining shareholders entitled to express consent to or to
dissent from a proposal without a meeting, the board of directors may fix a
record date, which shall not precede the date on which the resolution fixing the
record date is adopted by the board and shall not be more than ten (10) days
after the board resolution. If a record date is not fixed and prior action by
the board of directors is required with respect to the corporate action to be
taken without a meeting, the record date shall be the close of business on the
day on which the resolution of the board is adopted. If a record date is not
fixed and prior action by the board of directors is not required, the record
date shall be the first date on which a signed written consent is delivered to
the corporation as provided in Section 12 of this Article. For the purpose of
determining shareholders entitled to receive payment of a share dividend or
distribution, or allotment of a right, or for the purpose of any other action,
the board of directors may fix a record date, which shall not precede the date
on which the resolution fixing the record date is adopted by the board. The date
shall not be more than sixty (60) days before the payment of the share dividend
or distribution or allotment of a right or other action. If a record date is not
fixed, the record date shall be the close of business on the day on which the
resolution of the board of directors relating to the corporate action is
adopted.
SECTION 10. PROXIES. A shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
one or more other persons to act for him or her by proxy. A proxy shall be
signed by the shareholder or his or her authorized agent or representative. A
proxy is not valid after the expiration of three (3) years from its date unless
otherwise provided in the proxy.
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SECTION 11. INSPECTORS OF ELECTION. The board of directors, in advance
of a shareholders' meeting, may appoint one (1) or more inspectors of election
to act at the meeting or any adjournment thereof. If inspectors are not so
appointed, the person presiding at a shareholders' meeting may, and on request
of a shareholder entitled to vote thereat shall, appoint one (1) or more
inspectors. In case a person appointed fails to appear or act, the vacancy may
be filled by appointment made by the board of directors in advance of the
meeting or at the meeting by the person presiding thereat. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine challenges and questions arising in connection with the right to vote,
count and tabulate votes, ballots or consents, determine the result, and do such
acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting or a shareholder
entitled to vote thereat, the inspectors shall make and execute a written report
to the person presiding at the meeting of any of the facts found by them and
matters determined by them. The report is prima facie evidence of the facts
stated and of the vote as certified by the inspectors.
SECTION 12. ACTION BY WRITTEN CONSENT. The articles of incorporation
may provide that any action required or permitted by the Act to be taken at an
annual or special meeting of shareholders may be taken without a meeting,
without prior notice and without a vote, if consents in writing, setting forth
the action so taken, are signed by the holders of outstanding shares having not
less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote on the action
were present and voted. The written consents shall bear the date of signature of
each shareholder that signs the consent. No written consents shall be effective
to take the corporate action referred to unless, within sixty (60) days after
the record date for determining shareholders entitled to express consent to or
to dissent from a proposal without a meeting, written consents dated not more
than ten (10) days before the record date and signed by a sufficient number of
shareholders to take the action are delivered to the corporation. Delivery shall
be to the corporation's registered office, its principal place of business, or
an officer or agent of the corporation having custody of the minutes of the
proceedings of its shareholders. Delivery made to a corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to shareholders who would
have been entitled to notice of the shareholder meeting if the action had been
taken at a meeting and who have not consented in writing. Any action required or
permitted by the Act to be taken at an annual or special meeting of shareholders
may be taken without a meeting, without prior notice and without a vote if,
before or after the action, all the shareholders entitled to vote consent in
writing.
SECTION 13. PARTICIPATION IN MEETING BY TELEPHONE. Unless otherwise
restricted by the articles of incorporation, by oral or written permission of a
majority of the shareholders, a shareholder may participate in a meeting of
shareholders by a conference telephone or by other similar communications
equipment through which
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all persons participating in the meeting may communicate with the other
participants. All participants shall be advised of the communications equipment
and the names of the participants in the conference shall be divulged to all
participants. Participation in a meeting pursuant to this Section constitutes
presence in person at the meeting.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM OF DIRECTORS. The number of directors that
shall constitute the whole board shall be not less than one (1) nor more than
nine (9). The first board shall consist of number of directors stated by the
incorporator. Thereafter, the number of directors which shall constitute the
board of directors for each ensuing year shall be determined at the annual
meeting by vote of the shareholders prior to such election; provided, however,
that if a motion is not made and carried to increase or decrease the number of
directors, the board shall consist of the same number of directors as were
elected for the preceding year. The shareholders may also increase or decrease
the number of directors at any meeting of the shareholders or by a written
consent in lieu thereof. Either the shareholders or the board of directors may
fill the vacancy caused by an increase in the number of directors. The first
board of directors shall hold office until the first annual meeting of
shareholders. At the first annual meeting of shareholders and at each annual
meeting thereafter, the shareholders shall elect directors to hold office until
the succeeding annual meeting, except in the case of classification of
directors as permitted by the Act. A director shall hold office for the term for
which he or she is elected and until his or her successor is elected and
qualified, or until his or her resignation or removal. Directors need not be
shareholders and may serve continuous terms.
SECTION 2. VACANCIES. Unless otherwise limited by the articles of
incorporation, if a vacancy, including a vacancy resulting from an increase in
the number of directors, occurs in the board of directors, the vacancy may be
filled as follows:
(a) The shareholders may fill the vacancy.
(b) The board may fill the vacancy.
(c) If the directors remaining in office constitute fewer than a
quorum of the board of directors, they may fill the vacancy by
the affirmative vote of a majority of all the directors
remaining in office.
Unless otherwise provided in the articles of incorporation, if the holders of
any class or classes of stock or series are entitled to elect one (1) or more
directors to the exclusion of other shareholders, vacancies of that class or
classes or series may be filled only by one (1) of the following:
(a) By a majority of the directors elected by the holders of that
class or classes or series then in office, whether or not
those directors constitute a quorum of the board of directors.
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(b) By the holders of shares of that class or classes of shares,
or series.
Unless otherwise limited by the articles of incorporation or these bylaws, in
the case of a corporation the board of directors of which are divided into
classes, any director chosen to fill a vacancy shall hold office until the next
election of the class for which the director shall have been chosen, and until
his or her successor is elected and qualified. If because of death, resignation,
or other cause, a corporation has no directors in office, an officer, a
shareholder, a personal representative, administrator, trustee, or guardian of a
shareholder, or other fiduciary entrusted with like responsibility for the
person or estate of a shareholder, may call a special meeting of shareholders in
accordance with the articles of incorporation or these bylaws. A vacancy that
will occur at a specific date, by reason of a resignation effective at a later
date under Section 4 of this Article or otherwise, may be filled before the
vacancy occurs but the newly elected or appointed director may not take office
until the vacancy occurs.
SECTION 3. REMOVAL. The shareholders may remove one (1) or more
directors with or without cause unless the articles of incorporation provide
that directors may be removed only for cause. The vote for removal shall be by a
majority of shares entitled to vote at an election of directors, unless the
articles of incorporation require a higher vote for removal without cause.
SECTION 4. RESIGNATION. A director may resign by written notice to the
corporation. The resignation is effective upon its receipt by the corporation or
a later time as set forth in the notice of resignation.
SECTION 5. POWERS. The business and affairs of the corporation shall be
managed by its board of directors except as otherwise provided in the Act or in
the articles of incorporation.
SECTION 6. LOCATION OF MEETINGS. Regular or special meetings of the
board of directors may be held either in or outside the State of Michigan.
SECTION 7. ORGANIZATION MEETING OF BOARD. The first meeting of each
newly elected board of directors shall be held at the place of holding the
annual meeting of shareholders, and immediately following the same, for the
purpose of electing officers and transacting any other business properly brought
before it, provided that the organization meeting in any year may be held at a
different time and place than that herein provided by a consent of a majority of
the directors of such new board. No notice of such meeting shall be necessary to
the newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present, unless said meeting is not held at the place of
holding and immediately following the annual meeting of shareholders.
SECTION 8. REGULAR MEETING OF BOARD. Any regular meeting of the board
of directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
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SECTION 9. SPECIAL MEETING OF BOARD. Any special meeting of the board
of directors may be called by the chief executive officer, or by a majority of
the persons then comprising the board of directors, at any time by means of
notice of the time and place thereof to each director, given not less than
twenty-four (24) hours before the time such special meeting is to be held.
SECTION 10. COMMITTEES OF DIRECTORS. The board of directors may
designate one (1) or more committees, each committee to consist of one (1) or
more of the directors of the corporation. The board may designate one (1) or
more directors as alternate members of any committee, who may replace an absent
or disqualified member at a meeting of the committee. In the absence or
disqualification of a member of a committee, the members thereof present at a
meeting and not disqualified from voting, whether or not they constitute a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors
creating such committee, may exercise all the powers and authority of the board
of directors in the management of the business and affairs of the corporation. A
committee does not have the power or authority to amend the articles of
incorporation, adopt an agreement of merger or share exchange, recommend to the
shareholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommend to the shareholders a dissolution
of the corporation or a revocation of a dissolution, amend the bylaws of the
corporation or fill vacancies in the board of directors; and, unless the
resolution of the board of directors creating such committee, the articles of
incorporation or bylaws expressly so provide, a committee does not have the
power or authority to declare a distribution, dividend or to authorize the
issuance of stock. Any such committee, and each member thereof, shall serve at
the pleasure of the board of directors.
SECTION 11. QUORUM AND REQUIRED VOTE OF BOARD AND COMMITTEES. At all
meetings of the board of directors, or of a committee thereof, a majority of the
members of the board then in office, or of the members of a committee of the
board of directors, constitutes a quorum for transaction of business, unless the
articles of incorporation, these bylaws, or in the case of a committee, the
board resolution establishing the committee, provide for a larger or smaller
number. The vote of the majority of members present at a meeting at which a
quorum is present constitutes the action of the board of directors or of the
committee unless the vote of a larger number is required by the Act, the
articles of incorporation, or these bylaws, or in the case of a committee, the
board resolution establishing the committee. Amendment of these bylaws by the
board of directors requires the vote of not less than a majority of the members
of the board then in office. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
SECTION 12. ACTION BY WRITTEN CONSENT. Action required or permitted to
be taken under authorization voted at a meeting of the board of directors or a
committee
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of the board of directors, may be taken without a meeting if, before or after
the action, all members of the board then in office or of the committee consent
to the action in writing. The written consents shall be filed with the minutes
of the proceedings of the board of directors or committee. The consent has the
same effect as a vote of the board of directors or committee for all purposes.
SECTION 13. COMPENSATION OF DIRECTORS. The board of directors, by
affirmative vote of a majority of directors in office and irrespective of any
personal interest of any of them, may establish reasonable compensation of
directors for services to the corporation as directors or officers, but approval
of the shareholders is required if the articles of incorporation, these bylaws
or any provisions of the Act so provide.
SECTION 14. PARTICIPATION IN MEETING BY TELEPHONE. By oral or written
permission of a majority of the board of directors, a member of the board of
directors or of a committee designated by the board may participate in a meeting
by means of conference telephone or similar communications equipment through
which all persons participating in the meeting can communicate with the other
participants. Participation in a meeting pursuant to this Section constitutes
presence in person at the meeting.
ARTICLE IV
NOTICES
SECTION 1. NOTICE. Whenever any notice or communication is required to
be given by mail to any director or shareholder under any provision of the Act,
or of the articles of incorporation or of these bylaws, it shall be given in
writing, except as otherwise provided in the Act, to such director or
shareholder at the address designated by him or her for that purpose or, if none
is designated, at his or her last known address. The notice or communication is
given when deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States postal
service. The mailing shall be registered, certified or other first class mail
except where otherwise provided in the Act. Written notice may also be given in
person or by telegram, telecopy, telex, radiogram, cablegram, or mailgram, and
such notice shall be deemed to be given when the recipient receives the notice
personally, or when the notice, addressed as provided above, has been delivered
to the corporation, or to the equipment transmitting such notice. Neither the
business to be transacted at, nor the purpose of, a regular or special meeting
of the board of directors need be specified in the notice of the meeting.
SECTION 2. WAIVER OF NOTICE. When, under the Act or the articles of
incorporation or these bylaws, or by the terms of an agreement or instrument, a
corporation or the board of directors or any committee thereof may take action
after notice to any person or after lapse of a prescribed period of time, the
action may be taken without notice and without lapse of the period of time, if
at any time before or after the action is completed the person entitled to
notice or to participate in the action to be taken
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or, in case of a shareholder, by his or her attorney-in-fact, submits a signed
waiver of such requirements. Neither the business to be transacted at, nor the
purpose of, a regular or special meeting of the board of directors need be
specified in the waiver of notice of the meeting. Attendance of a person at a
meeting of shareholders constitutes a waiver of objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting
and a waiver of objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it is presented. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless he or she at the beginning of the
meeting, or upon his or her arrival, objects to the meeting or the transacting
of business at the meeting and does not thereafter vote for or assent to any
action taken at the meeting.
ARTICLE V
OFFICERS
SECTION 1. SELECTION. The board of directors, at its first meeting and
at its organization meeting following the annual meeting of shareholders, shall
elect or appoint a president, a secretary and a treasurer. The board of
directors may also elect or appoint a chairman of the board, one (1) or more
vice presidents and such other officers, employees and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
board. Two (2) or more offices may be held by the same person but an officer
shall not execute, acknowledge or verify an instrument in more than one (1)
capacity if the instrument is required by law or the articles or bylaws to be
executed, acknowledged or verified by two (2) or more officers.
SECTION 2. COMPENSATION. The salaries of all officers, employees and
agents of the corporation shall be fixed by the board of directors; provided,
however, that the board may delegate to the officers the fixing of compensation
of assistant officers, employees and agents.
SECTION 3. TERM, REMOVAL AND VACANCIES. Each officer of the corporation
shall hold office for the term for which he or she is. elected or appointed and
until his or her successor is elected or appointed and qualified, or until his
or her resignation or removal. An officer elected or appointed by the board of
directors may be removed by the board with or without cause at any time. An
officer may resign by written notice to the corporation. The resignation is
effective upon its receipt by the corporation or at a subsequent time specified
in the notice of resignation. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. If the board of directors desires
to elect or appoint a chief executive officer, the board shall designate the
chairman of the board or president as such officer at the first meeting of each
newly elected board of
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directors; provided, however, that if a motion is not made and carried to change
the designation, the designation shall be the same as the designation for the
preceding year; provided, further, that the designation of the chief executive
officer may be changed at any special meeting of the board of directors. The
president shall be the chief executive officer whenever the office of chairman
of the board is vacant. The chief executive officer shall be responsible to the
board of directors for the general supervision and management of the business
and affairs of the corporation and shall see that all orders and resolutions of
the board are carried into effect. The chairman of the board or president who is
not the chief executive officer shall be subject to the authority of the chief
executive officer, but shall exercise all of the powers and discharge all of the
duties of the chief executive officer during the absence or disability of the
chief executive officer.
SECTION 5. CHAIRMAN OF THE BOARD OF DIRECTORS. If the board of
directors elects or appoints a chairman of the board, he or she shall be elected
or appointed by, and from among the membership of, the board of directors. He or
she shall preside at all meetings of the shareholders, of the board of directors
and of any executive committee. He or she shall perform such other duties and
functions as shall be assigned to him or her from time to time by the board of
directors. He or she shall be, ex officio, a member of all standing committees.
Except where by law the signature of the president of the corporation is
required, the chairman of the board of directors shall possess the same power
and authority to sign all certificates, contracts, instruments, papers and
documents of every conceivable kind and character whatsoever in the name of and
on behalf of the corporation which may be authorized by the board of directors.
During the absence or disability of the president, or while that office is
vacant, the chairman of the board of directors shall exercise all of the powers
and discharge all of the duties of the president.
SECTION 6. PRESIDENT. During the absence or disability of the chairman
of the board, or while that office is vacant, the president shall preside over
all meetings of the board of directors, of the shareholders and of any executive
committee, and shall perform all of the duties and functions, and when so acting
shall have all powers and authority, of the chairman of the board. He or she
shall be, ex officio, a member of all standing committees. The president shall,
in general, perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors.
SECTION 7. VICE PRESIDENTS. The board of directors may elect or appoint
one or more vice presidents. The board of directors may designate one or more
vice presidents as executive or senior vice presidents. Unless the board of
directors shall otherwise provide by resolution duly adopted by it, such of the
vice presidents as shall have been designated executive or senior vice
presidents and are members of the board of directors in the order specified by
the board of directors (or if no vice president who is a member of the board of
directors shall have been designated as executive or senior vice president, then
such vice presidents as are members of the board of directors in the order
specified by the board of directors) shall perform the duties and exercise the
powers of the president during the absence or disability of the president if the
office of the chairman of the board is vacant. The vice presidents shall perform
such other duties as may be
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delegated to them by the board of directors, any executive committee, the,
chairman of the board or the president.
SECTION 8. SECRETARY. The secretary shall attend all meetings of the
shareholders, and of the board of directors and of any executive committee, and
shall preserve in the books of the corporation true minutes of the proceedings
of all such meetings. He or she shall safely keep in his or her custody the seal
of the corporation, if any, and shall have authority to affix the same to all
instruments where its use is required or permitted. He or she shall give all
notice required by the Act, these bylaws or resolution. He or she shall perform
such other duties as may be delegated to him or her by the board of directors,
any executive committee, the chairman of the board or the president.
SECTION 9. TREASURER. The treasurer shall have custody of all corporate
funds and securities and shall keep in books belonging to the corporation full
and accurate accounts of all receipts and disbursements; he or she shall deposit
all moneys, securities and other valuable effects in the name of the corporation
in such depositories as may be designated for that purpose by the board of
directors. He or she shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors
whenever requested an account of all his or her transactions as treasurer and of
the financial condition of the corporation. If required by the board of
directors, he or she shall keep in force a bond in form, amount and with a
surety or sureties satisfactory to the board of directors, conditioned for
faithful performance of the duties of his or her office, and for restoration to
the corporation in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and property of whatever kind
in his or her possession or under his or her control belonging to the
corporation. He or she shall perform such other duties as may be delegated to
him or her by the board of directors, any executive committee, the chairman of
the board or the president.
SECTION 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretary or assistant secretaries, in the absence or disability of
the secretary, shall perform the duties and exercise the powers of the
secretary. The assistant treasurer or assistant treasurers, in the absence or
disability of the treasurer, shall perform the duties and exercise the powers of
the treasurer. Any assistant treasurer, if required by the board of directors,
shall keep in force a bond as provided in Section 9 of this Article. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the secretary or by the treasurer,
respectively, or by the board of directors, any executive committee, the
chairman of the board or the president.
SECTION 11. DELEGATION OF AUTHORITY AND DUTIES BY BOARD OF DIRECTORS.
All officers, employees and agents shall, in addition to the authority
conferred, or duties imposed, on them by these bylaws, have such authority and
perform such duties in the management of the corporation as may be determined by
resolution of the board of directors not inconsistent with these bylaws.
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ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS: CLAIMS BY THIRD
PARTIES. The corporation shall, to the fullest extent authorized or permitted by
the Act or other applicable law, as the same presently exist or may hereafter be
amended, but, in the case of any such amendment, only to the extent such
amendment permits the corporation to provide broader indemnification rights than
before such amendment, indemnify a director or officer (an "Indemnitee") who was
or is a party or is threatened to be made a party to a threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal, other than an action by or in
the right of the corporation, by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with the action, suit, or proceeding, if the Indemnitee acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders, and with respect to a criminal
action or proceeding, if the Indemnitee had no reasonable cause to believe his
or her conduct was unlawful. The termination of an action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the Indemnitee
did not act in good faith and in a manner which he or she reasonably believed to
be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
SECTION 2. INDEMNIFICATION OF DIRECTORS AND OFFICERS: CLAIMS BROUGHT BY
OR IN THE RIGHT OF THE CORPORATION. The corporation shall, to the fullest extent
authorized or permitted by the Act or other applicable law, as the same
presently exist or may hereafter be amended, but, in the case of any such
amendment, only to the extent such amendment permits the corporation to provide
broader indemnification rights than before such amendment, indemnify an
Indemnitee who was or is a party or is threatened to be made a party to a
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, whether for profit or
not, against expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the action
or suit, if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders.
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Indemnification shall not be made under this Section for a claim, issue, or
matter in which the Indemnitee has been found liable to the corporation except
to the extent authorized in Section 6 of this Article.
SECTION 3. ACTIONS BROUGHT BY THE INDEMNITEE. Notwithstanding the
provisions of Sections 1 and 2 of this Article, the corporation shall not be
required to indemnify an Indemnitee in connection with an action, suit,
proceeding or claim (or part thereof) brought or made by such Indemnitee except
as otherwise provided herein with respect to the enforcement of this Article,
unless such action, suit, proceeding or claim (or part thereof) was authorized
by the board of directors of the corporation.
SECTION 4. APPROVAL OF INDEMNIFICATION. An indemnification under
Sections 1 or 2 of this Article, unless ordered by the court, shall be made by
the corporation only as authorized in the specific case upon a determination
that indemnification of the Indemnitee is proper in the circumstances because
such Indemnitee has met the applicable standard of conduct set forth in Sections
1 or 2 of this Article, as the case may be, and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. This determination
and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the board of directors
consisting of directors who are not parties or threatened to
be made parties to the action, suit, or proceeding.
(b) If a quorum cannot be obtained in subsection (a), by majority
vote of a committee duly designated by the board of directors
and consisting solely of two (2) or more directors not at the
time parties or threatened to be made parties to the action,
suit or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in one (1) of the following ways:
(i) By the board of directors or its committee in the
manner prescribed in subsection (a) or (b).
(ii) If a quorum of the board of directors cannot be
obtained under subsection (a) and a committee cannot
be designated under subsection (b), by the board of
directors.
(d) By all independent directors (if any directors have been
designated as such by the board of directors or shareholders
of the corporation) who are not parties or threatened to be
made parties to the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made
parties to the action, suit, or proceeding may not be voted.
In the designation of a committee under subsection (b) or in the selection of
independent legal counsel under subsection (c)(ii), all directors may
participate.
SECTION 5. ADVANCEMENT OF EXPENSES. The corporation may pay or
reimburse the reasonable expenses incurred by an Indemnitee who is a party or
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threatened to be made a party to an action, suit, or proceeding in advance of
final disposition of the proceeding if all of the following apply:
(a) The Indemnitee furnishes the corporation a written affirmation
of his or her good faith belief that he or she has met the
applicable standard of conduct set forth in Sections 1 and 2
of this Article.
(b) The Indemnitee furnishes the corporation a written
undertaking, executed personally or on his or her behalf, to
repay the advance if it is ultimately determined that he or
she did not meet the standard of conduct.
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification
under the Act.
The undertaking required by subsection (b) must be an unlimited general
obligation of the Indemnitee but need not be secured. Determinations and
evaluations of payments under this Section shall be made in the manner specified
in Section 4 of this Article.
SECTION 6. COURT APPROVAL. An Indemnitee who is a party or threatened
to be made a party to an action, suit, or proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving any
notice it considers necessary may order indemnification if it determines that
the Indemnitee is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not he or she met the applicable
standard of conduct set forth in Sections 1 and 2 of this Article or was
adjudged liable as described in Section 2 of this Article, but if he or she was
adjudged liable, his or her indemnification is limited to reasonable expenses
incurred.
SECTION 7. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled to
indemnification under Sections 1 or 2 of this Article for a portion of expenses,
including reasonable attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement, but not for the total amount, the corporation shall
indemnify the Indemnitee for the portion of the expenses, judgments, penalties,
fines, or amounts paid in settlement for which the Indemnitee is entitled to be
indemnified.
SECTION 8. INDEMNIFICATION OF EMPLOYEES AND AGENTS. Any person who is
not covered by the foregoing provisions of this Article and who is or was an
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, whether for profit or not, may be indemnified to the fullest
extent authorized or permitted by the Act or other applicable law, as the same
exists or may hereafter be amended, but, in the case of any such amendment, only
to the extent such amendment permits the corporation to provide broader
indemnification rights than before such amendment, but in any event only to the
extent authorized at any time or from time to time by the board of directors.
SECTION 9. OTHER RIGHTS OF INDEMNIFICATION. The indemnification or
advancement of expenses provided under Sections 1 through 8 of this Article is
not
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exclusive of other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of incorporation,
bylaws, or a contractual agreement. The total amount of expenses advanced or
indemnified from all sources combined shall not exceed the amount of actual
expenses incurred by the person seeking indemnification or advancement of
expenses. The indemnification provided for in Sections 1 through 8 of this
Article continues as to a person who ceases to be a director, officer, employee,
or agent and shall inure to the benefit of the heirs, personal representatives,
and administrators of the person.
SECTION 10. DEFINITIONS. "Other enterprises" shall include employee
benefit plans; "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and "serving at the request of the
corporation" shall include any service as a director, officer, employee, or
agent of the corporation which imposes duties on, or involves services by, the
director, officer, employee or agent with respect to an employee benefit plan,
its participants or its beneficiaries; and a person who acted in good faith and
in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be considered
to have acted in a manner "not opposed to the best interests of the corporation
or its shareholders" as referred to in Sections 1 and 2 of this Article.
SECTION 11. LIABILITY INSURANCE. The corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as such,
whether or not the corporation would have power to indemnify him or her against
liability under the pertinent provisions of the Act.
SECTION 12. ENFORCEMENT. If a claim under this Article is not paid in
full by the corporation within thirty (30) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim, and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Act for the corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, a committee
thereof, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because such claimant has met the
applicable standard of conduct set forth in the Act nor an actual determination
by the corporation (including its board of directors, a committee thereof,
independent legal counsel or its shareholders) that the claimant has not met
such
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applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION 13. CONTRACT WITH THE CORPORATION. The right to indemnification
conferred in this Article shall be deemed to be a contract right between the
corporation and each director or officer who serves in any such capacity at any
time while this Article is in effect, and any repeal or modification of this
Article shall not affect any rights or obligations then existing with respect
to any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
SECTION 14. APPLICATION TO A RESULTING OR SURVIVING CORPORATION OR
CONSTITUENT CORPORATION. The definition for "corporation" found in Section 569
of the Act, as the same exists or may hereafter be amended is, and shall be,
specifically excluded from application to this Article. The indemnification and
other obligations set forth in this Article of the corporation shall be binding
upon any resulting or surviving corporation after any merger or consolidation
with the corporation. Notwithstanding anything to the contrary contained herein
or in Section 569 of the Act, no person shall be entitled to the indemnification
and other rights set forth in this Article for acting as a director or officer
of another corporation prior to such other corporation entering into a merger or
consolidation with the corporation.
SECTION 15. SEVERABILITY. Each and every paragraph, sentence, term and
provision of this Article shall be considered severable in that, in the event a
court finds any paragraph, sentence, term or provision to be invalid or
unenforceable, the validity and enforceability, operation, or effect of the
remaining paragraphs, sentences, terms, or provisions shall not be affected, and
this Article shall be construed in all respects as if the invalid or
unenforceable matter had been omitted.
ARTICLE VII
STOCK AND TRANSFERS
SECTION 1. SHARE CERTIFICATES: REQUIRED SIGNATURES. The shares of the
corporation shall be represented by certificates which shall be signed by the
chairman of the board of directors, vice chairman of the board of directors,
president or a vice president and which also may be signed by another officer of
the corporation. The certificate may be sealed with the seal of the corporation
or a facsimile of the seal. The signatures of the officers may be facsimiles if
the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employee. If an officer who
has signed or whose facsimile signature has been placed upon a certificate
ceases to be an officer before the certificate is issued, it may be issued by
the corporation with the same effect as if he or she were the officer at the
date of issue.
SECTION 2. SHARE CERTIFICATES: REQUIRED PROVISIONS. A certificate
representing shares of the corporation shall state upon its face all of the
following:
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(a) That the corporation is formed under the laws of this state.
(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the
series, if any, which the certificate represents.
A certificate representing shares issued by a corporation which is authorized to
issue shares of more than one (1) class shall set forth on its face or back or
state on its face or back that the corporation will furnish to a shareholder
upon request and without charge a full statement of the designation, relative
rights, preferences and limitations of the shares of each class authorized to be
issued, and if the corporation is authorized to issue any class of shares in
series, the designation, relative rights, preferences and limitations of each
series so far as the same have been prescribed and the authority of the board to
designate and prescribe the relative rights, preferences and limitations of
other series.
SECTION 3. REPLACEMENT OF LOST OR DESTROYED SHARE CERTIFICATES. The
corporation may issue a new certificate for shares or fractional shares in place
of a certificate theretofore issued by it, alleged to have been lost or
destroyed, and the board of directors may require the owner of the lost or
destroyed certificate, or his or her legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged lost or destroyed
certificate or the issuance of such new certificate.
SECTION 4. REGISTERED SHAREHOLDERS. The corporation shall have the
right to treat the registered holder of any share as the absolute owner thereof,
and shall not be bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not the corporation
shall have express or other notice thereof, save as may be otherwise provided by
the statutes of Michigan.
SECTION 5. TRANSFER AGENT AND REGISTRAR. The board of directors may
appoint a transfer agent and a registrar in the registration of transfers of its
securities.
SECTION 6. REGULATIONS. The board of directors shall have power and
authority to make all such rules and regulations as the board shall deem
expedient regulating the issue, transfer and registration of certificates for
shares in this corporation.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS IN CASH OR PROPERTY. The board of directors
may authorize and the corporation may make distributions to its shareholders
subject to restriction by the articles of incorporation and/or unless otherwise
limited by the articles of incorporation, these bylaws or the Act.
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SECTION 2. RESERVES. The board of directors shall have power and
authority to set apart such reserve or reserves, for any proper purpose, as the
board in its discretion shall approve, and the board shall have the power and
authority to abolish any reserve created by the board.
SECTION 3. VOTING SECURITIES. Unless otherwise directed by the board of
directors, the chairman of the board or president, or in the case of their
absence or inability to act, the vice presidents, in order of their seniority,
shall have full power and authority on behalf of the corporation to attend and
to act and to vote, or to execute in the name or on behalf of the corporation a
consent in writing in lieu of a meeting of shareholders or a proxy authorizing
an agent or attorney-in-fact for the corporation to attend and vote at any
meetings of security holders of corporations in which the corporation may hold
securities, and at such meetings he or she or his or her duly authorized agent
or attorney-in-fact shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof,
the corporation might have possessed and exercised if present. The board of
directors by resolution from time to time may confer like power upon any other
person or persons.
SECTION 4. CHECKS. All checks, drafts and orders for the payment of
money shall be signed in the name of the corporation in such manner and by such
officer or officers or such other person or persons as the board of directors
shall from time to time designate for that purpose.
SECTION 5. CONTRACTS, CONVEYANCES, ETC. When the execution of any
contract, conveyance or other instrument has been authorized without
specification of the executing officers, the chairman of the board, president or
any vice president, and the secretary or assistant secretary, may execute the
same in the name and on behalf of this corporation and may affix the corporate
seal thereto. The board of directors shall have power to designate the officers
and agents who shall have authority to execute any instrument on behalf of this
corporation.
SECTION 6. CORPORATE BOOKS AND RECORDS. The corporation shall keep
books and records of account and minutes of the proceedings of its shareholders,
board of directors and executive committees, if any. The books, records and
minutes may be kept outside this state. The corporation shall keep at its
registered office, or at the office of its transfer agent in or outside the
State of Michigan, records containing the names and addresses of all
shareholders, the number, class and series of shares held by each and the dates
when they respectively became holders of record. Any of the books, records or
minutes may be in written form or in any other form capable of being converted
into written form within a reasonable time. The corporation shall convert into
written form without charge any record not in written form, unless otherwise
requested by a person entitled to inspect the records.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
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SECTION 8. SEAL. If the corporation has a corporate seal, it shall have
inscribed thereon the name of the corporation and the words "Corporate Seal" and
"Michigan." The seal may be used by causing it or a facsimile to be affixed,
impressed or reproduced in any other manner.
ARTICLE IX
AMENDMENTS
SECTION 1. The shareholders or the board of directors may amend or
repeal the bylaws or adopt new bylaws unless the articles of incorporation
provide that the power to adopt new bylaws is reserved exclusively to the
shareholders or that these bylaws or any particular bylaw shall not be altered
or repealed by the board of directors. Such action may be taken by written
consent or at any meeting of shareholders or the board of directors; provided
that if notice of any such meeting is required by these bylaws, it shall contain
notice of the proposed amendment, repeal or new bylaws. Amendment of these
bylaws by the board of directors requires the vote of not less than a majority
of the members of the board then in office.
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AGREEMENT OF LIMITED PARTNERSHIP
OF
A-1 HOMES GROUP, L.P.
A TEXAS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
OF
A-1 HOMES GROUP, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP of A-1 Homes Group, L.P. (this
"Agreement"), is entered into effective as of the 31st day of December, 2001,
among A-1 Champion GP, Inc., a Michigan corporation (the "General Partner") and
Champion Retail, Inc., a Michigan corporation (the "Limited Partner").
ARTICLE 1.
CERTAIN DEFINITIONS
Unless otherwise required by the context, for purposes of this
Agreement:
"Act" means the Texas Revised Limited Partnership Act, as amended and
superseded from time to time.
"Adjusted Capital Account" means, as of the end of each Fiscal Year,
the balance in a Partner's Capital Account (a) increased by (i) any additional
Capital Contributions the Partner is, or is treated as, unconditionally
obligated to make pursuant to this Agreement or the provisions of Treasury
Regulations Section 1.704-1(b)(2)(ii)(c); (ii) the amount of the Partner's share
of "partnership minimum gain" (as defined in Treasury Regulations Section
1.704-2(d)); and (iii) the amount of the Partner's share of "partner nonrecourse
debt minimum gain" (as defined in Treasury Regulations Section 1.704-2(i)(2)),
and (b) decreased by any adjustments, allocations or distributions described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4),(5) and (6). This
definition shall be interpreted and applied consistently with the provisions of
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d).
"Affiliate" means any person who, directly or indirectly, controls, is
controlled by or is under common control with the General Partner. For this
purpose, "control" means the direct or indirect ownership of more than 50% of
the beneficial voting interests in an entity, or the ability to direct or cause
the direction of the management or affairs of a person, whether through the
ownership of voting securities, by contract or otherwise.
"Available Cash" means the amount of cash, cash equivalents and other
temporary investments of Partnership cash on hand from time to time in excess of
amounts required, in the sole opinion of the General Partner, to satisfy present
and future obligations of the Partnership and to establish reserves for
Partnership working capital and contingent liabilities.
"Bankruptcy" or "Bankrupt" means the making of a general assignment for
the benefit of a person's creditors; the entry with respect to a person of an
order for relief in any bankruptcy, reorganization or insolvency proceeding; or
the filing by or against a person of any application or petition for the
appointment of a trustee or receiver over the person or any substantial part of
the person's assets, or the commencement by or against a person of any
proceeding under any bankruptcy, insolvency or reorganization statute or under
any dissolution or liquidation law, which, in the case of the filing against a
person of any such application or petition, or the
commencement against a person of any such proceeding, is not dismissed within 90
days after the date of its filing or commencement.
"Book Depreciation" means depreciation, amortization or other cost
recovery deductions determined in the manner described in Treasury Regulations
Section 1.704-1(b)(2)(iv)(g)(3).
"Book Value" means, with respect to each Partnership asset, the asset's
adjusted basis for federal income tax purposes, except that (i) the initial Book
Value of any asset contributed (or deemed to have been contributed pursuant to
Section 708(b)(1)(B) of the Code) to the Partnership by a Partner shall be the
asset's agreed fair market value on the date of contribution, (ii) upon the
occurrence a Revaluation Event, the Book Value of each Partnership asset shall
be adjusted to equal its then fair market value (as determined by a Required
Interest of the Partners), and (iii) when the Book Value of any Partnership
asset differs from its adjusted tax basis, the Book Value of the asset shall
thereafter be reduced by Book Depreciation in lieu of any depreciation,
amortization or other cost recovery deductions allowable for federal income tax
purposes.
"Capital Account" means the account established and maintained for each
Partner pursuant to Section 3.3 of this Agreement.
"Capital Contributions" means the amount of money and the agreed fair
market value of other property (net of liabilities secured thereby which the
Partnership is treated as having assumed or taken subject to under Code Section
752) contributed by a Partner or a Partner's predecessor in interest to the
capital of the Partnership.
"Certificate" means the certificate of limited partnership filed with
the Secretary of State of the State of Texas as an exhibit to the Articles of
Conversion providing for the formation of the Partnership, as amended from time
to time.
"Capital Contribution" means any contribution to the capital of the
Partnership made by the Partner.
"Code" means the Internal Revenue Code of 1986, as amended and
superseded from time to time.
"Fiscal Year" means, except as otherwise required by Code Section
706(b), the calendar year (or any portion thereof for which items of Partnership
taxable income, gain, loss and deduction are required to be determined and
allocated to the Partners pursuant to the Code and Treasury Regulations). The
Fiscal Year of the Partnership shall be the same for federal income tax and
financial accounting purposes.
"General Partner" means A-1 Champion GP, Inc. and any successor or
additional general partner hereafter admitted to the Partnership pursuant to the
terms of this Agreement and the Act.
"Income" and "Loss" mean, for each Fiscal Year, each item of
Partnership income and gain and each item of Partnership loss and deduction,
respectively, as determined, recognized and classified for federal income tax
purposes, adjusted as follows:
(a) Items of income and gain exempt from federal income tax
shall be included as items of Income;
(b) Expenditures of the Partnership described in Code Section
705(a)(2)(B), or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(i), shall be included as items of
Loss;
(c) Upon the occurrence of a Revaluation Event, each
Partnership asset shall be treated as if it had been sold for its then fair
market value (as determined by the General Partner) and the resulting items of
income, gain, loss and deduction arising therefrom shall be included as items of
Income or Loss and allocated to the Capital Accounts of the Partners as if
actually realized and recognized by the Partnership;
(d) As of the close of business on the date preceding the date
of any distribution of Partnership property other than money, the property to be
distributed shall be treated as if it had been sold for its then fair market
value (as determined by the General Partner) and the resulting items of income,
gain, loss and deduction arising therefrom shall be included as items of Income
or Loss and allocated to the Capital Accounts of the Partners as if actually
realized and recognized by the Partnership;
(e) Gain or loss arising from a disposition of any Partnership
asset shall be computed by reference to the Book Value of the asset immediately
prior to the disposition rather than its adjusted tax basis; and
(f) If the Book Value of any Partnership asset differs from
its adjusted tax basis, Book Depreciation shall be taken into account as an item
of Income or Loss in lieu of any depreciation, amortization or other cost
recovery deductions allowable for federal income tax purposes.
"Limited Partner" means Champion Retail, Inc. and any substituted or
additional Limited Partner hereafter admitted to the Partnership pursuant to the
terms of this Agreement and the Act.
"Liquidator" has the meaning set forth therefor in Section 8.3.
"Net Income" and "Net Loss" mean, for each Fiscal Year, the positive or
negative difference, respectively, between all items of Income and Loss; except
that items of Income and Loss specially allocated to a Partner pursuant to
Section 4.2 shall be excluded from the computation of Net Income and Net Loss.
"Partners" means the General Partner and the Limited Partner, and
"Partner" means any one of them.
"Partnership" means the Limited Partnership organized pursuant to this
Agreement.
"Percentage Interest" means the percentage specified for each Partner
in Exhibit "A" attached hereto.
"Required Interest" means, as to all or any specified group of
Partners, those holding more than 66 2/3% of the aggregate Percentage Interests
held by all of the Partners or by the specified group of Partners.
"Revaluation Event" means (i) the acquisition of an additional interest
in the Partnership by any new or existing Partner in exchange for more than a de
minimis Capital Contribution, (ii) a distribution by the Partnership of more
than a de minimis amount of money or other property to a Partner in
consideration for all or part of the Partner's interest in the Partnership, and
(iii) the liquidation of the Partnership within the meaning of Treasury
Regulations Section 1.704-1(b)(2)(ii)(g).
"Treasury Regulations" means temporary and final Income Tax Regulations
promulgated under the Code, as amended and superseded from time to time.
Terms not defined in this Agreement shall have the meanings, if any,
assigned to them in the Act.
ARTICLE 2.
THE PARTNERSHIP
2.1. ADOPTION. The Partners hereby adopt this Agreement as part of that
certain Plan of Conversion providing for the conversion of Cal-Nel, Inc., a
Texas corporation, into the Partnership.
2.2. ADMISSION OF ADDITIONAL LIMITED PARTNERS. Additional Limited
Partners may, with the consent of the General Partner and all of the Limited
Partners, be admitted to the Partnership at any time on terms and conditions
determined by the General Partner in its reasonable discretion. Each additional
Limited Partner shall be required to execute an agreement acceptable to the
General Partner pursuant to which the additional Limited Partner becomes bound
by the terms of this Agreement and containing such other representations,
warranties, covenants and conditions as the General Partner deems appropriate.
2.3. NAME. The name of the Partnership is A-1 Homes Group, L.P., and
all business of the Partnership shall be conducted in such name, or in such
other name or names as the General Partner may determine.
2.4. REGISTERED AGENT; REGISTERED AND PRINCIPAL OFFICES. The registered
agent, registered office and principal office of the Partnership shall be as
designated by the General Partner from time to time in accordance with the Act.
The General Partner shall cause the Partnership to maintain at its principal
office the records required by Section 1.07 of the Act and shall keep at its
registered office the street address of its principal office. The General
Partner may designate other Partnership offices from time to time and shall give
notice to each Limited Partner of the address of the Partnership's initial
registered office and principal office, and of any changes therein.
2.5. PURPOSES AND POWERS. The purposes of the Partnership shall be to
conduct any lawful businesses for which partnerships may be organized under the
Act.
2.6. OWNERSHIP OF PARTNERSHIP PROPERTY; WAIVER OF PARTITION. All
Partnership property presently owned or hereafter acquired by or on behalf of
the Partnership shall be owned by the Partnership and held in the name of the
Partnership. Each Partner expressly waives any right it might have to require a
partition thereof or, except as otherwise specifically provided herein, a
dissolution of the Partnership.
2.7. TERM OF PARTNERSHIP. The term of the Partnership shall commence on
the day its Certificate is filed with the Secretary of State of the State of
Texas and shall continue until the termination date listed in the Certificate or
until earlier wound up pursuant to the provisions of Article 8.
2.8. WAIVER OF CONFLICTS. No contract or other transaction between the
Partnership and any other entity shall be affected or invalidated by the fact
that any one or more directors, shareholders, officers or Partners of the
Partnership or the General Partner is or are interested in or is a director,
officer, shareholder, or partners or are directors, officers, shareholders or
partners of such other entity and no contract, act or transaction of the
Partnership with any person or persons, firm or corporation, shall be affected
or invalidated by the fact that any director, shareholder, officer or Partner of
the Partnership or the General Partner is a party, or are parties to or are
interested in such contract, act or transaction, or in any way connected with
such person or persons, firm or association, and each and every person who may
become an officer or Partner of the Partnership or the General Partner is hereby
relieved from any liability that might otherwise exist from contracting with the
Partnership for the benefit of himself or any firm, association, or corporation
in which he may be in any way interested; provided that such transaction or
contract is or shall be authorized, ratified or approved by a vote of a Required
Interest of the Limited Partners. No officer or Partner shall be liable to
account to the Partnership or its other Partners for any profits realized from
any such transaction or contract authorized, ratified, or approved as aforesaid
by reason of the fact that he, or any firm of which he is a member or any
corporation of which he is a stockholder, officer, or director was interested in
such transaction or contract. Nothing herein contained shall create liability in
the events above described or prevent the authorization, ratification or
approval of such contracts in any other manner permitted by law.
ARTICLE 3.
CAPITALIZATION
3.1. CAPITAL CONTRIBUTIONS. Except as specifically provided in Section
8.6, no Partner shall be required to make any additional Capital Contributions
beyond those made as of the date hereof unless otherwise required by law. If the
Partners agree upon an additional Capital Contribution, each Partner shall
deliver to the Partnership the Partner's pro rata share thereof (in proportion
to the respective Percentage Interest of the Partner on the date such notice is
given) no later than 60 days following the date such notice is given. If a
Partner does not deliver the Partner's share by that date, the defaulting
Partner's Percentage Interest shall be reduced by the amount of the defaulting
Partner's pro rata share of the agreed upon contribution. None of the terms,
covenants, obligations or rights contained in this Section is or shall be deemed
to be for the benefit of any person or entity other than the Partners and the
Partnership, and no such third person shall under any circumstances have any
right to compel any actions or payments by the Partners.
3.2. INTEREST; RETURN OF CONTRIBUTIONS. Except as otherwise
specifically provided in this Agreement, (i) no Partner shall be entitled to any
return on or of its Capital Contributions or Capital Account, (ii) no Partner
shall have the right to receive any distribution in a medium other than money,
(iii) no Partner shall be required to contribute money or property to the
Partnership to enable the return of any Partner's Capital Contributions or to
restore any negative balance in its Capital Account and (iv) no interest shall
be accrued or paid on the Capital Contributions or Capital Account of any
Partner.
3.3. CAPITAL ACCOUNTS. Each Partner shall have a separate "Capital
Account" which shall be established and maintained in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv). Consistent therewith, each Partner's
Capital Account (a) shall be increased by (i) the fair market value of its
Capital Contributions and (ii) allocations to it of Net Income and items of
Income, and (b) shall be decreased by (i) the amount of money and the fair
market value of other property (net of liabilities secured thereby which the
Partner is considered to have assumed or taken subject to under Code Section
752) distributed to it by the Partnership and (ii) allocations to it of Net Loss
and items of Loss. A Partner shall have a single Capital Account that reflects
all of its Partnership interests, regardless of the class of Partnership
interests owned by the Partner and regardless of the time or manner in which
those Partnership interests were acquired. Upon the transfer of all or part of a
Partnership interest, the transferee shall succeed to the Capital Account of the
transferor to the extent attributable to the interest transferred.
3.4. LOANS. A Partner may, with the consent of the General Partner, but
shall not be required to, lend money or other property to the Partnership and
any loans from a Partner or Affiliate of a Partner to the Partnership shall be
made only on commercially reasonable terms and conditions.
ARTICLE 4.
ALLOCATIONS AND DISTRIBUTIONS
4.1. ALLOCATIONS OF NET INCOME OR NET LOSS. After first giving effect
to the special allocations set forth in Section 4.2, for each Fiscal Year, Net
Income or Net Loss, as the case may be, shall be allocated to the Partners in
accordance with their respective Percentage Interests.
4.2. SPECIAL ALLOCATIONS. For each Fiscal Year, the following items of
Income and Loss shall be specially allocated to the Partners in the following
order and priority, before allocations of Net Income or Net Loss, as applicable,
are made pursuant to Section 4.1:
(a) If there is a net decrease in "partnership minimum gain"
(as defined in Treasury Regulations Section 1.704-2(d)), items of income and
gain (determined in accordance with Treasury Regulations Section 1.704-2(f)(6))
shall, to the extent required by the Treasury Regulations, be specially
allocated to the Partners in an amount equal to each Partner's share of the net
decrease in partnership minimum gain (determined in accordance with Treasury
Regulations Section 1.704-2(g)). This Section 4.2(a) shall be applied
consistently with, and subject to the exceptions contained in, the minimum gain
chargeback requirements of Treasury Regulations Section 1.704-2(f).
(b) If there is a net decrease in "partner nonrecourse debt
minimum gain" (as defined in Treasury Regulations Section 1.704-2(i)(2)), items
of income and gain (determined in accordance with the provisions of Treasury
Regulations Sections 1.704-2(i)(4)) shall, to the extent required by the
Treasury Regulations, be specially allocated to the Partners in an amount equal
to each Partner's share of the net decrease in partner nonrecourse debt minimum
gain (determined in accordance with the provisions of Treasury Regulations
Section 1.704-2(i)(5)). This Section 4.2(b) shall be applied consistently with,
and subject to the exceptions contained in, the partner nonrecourse debt minimum
gain chargeback requirements of Treasury Regulations Section 1.704-2(i)(4).
(c) If a Partner unexpectedly receives any adjustment,
allocation or distribution described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of income and gain (including gross
income) shall be specially allocated to the Partner in an amount and manner
sufficient to eliminate, to the extent required by the Treasury Regulations, the
deficit balance in the Partner's Adjusted Capital Account as quickly as
possible. This Section 4.2(c) shall be interpreted consistently with Treasury
Regulations Section 1.704-1(b)(2)(ii)(d).
(d) "Nonrecourse deductions" (as defined in Treasury
Regulations Section 1.704-2(c)) shall be specially allocated to the Partners in
accordance with their Percentage Interests.
(e) "Partner nonrecourse deductions" (as defined in Treasury
Regulations Section 1.704-2(i)(2)) shall be specially allocated to the Partners
who bear the economic risk of loss for the liability to which those deductions
are attributable, determined in accordance with the principles of Treasury
Regulations Section 1.704-2(i)(1).
(f) To the extent an adjustment to the adjusted tax basis of
any Partnership asset under Code Sections 734(b) or 743(b) is required to be
taken into account in determining Capital Accounts under Treasury Regulations
Section 1.704-1(b)(2)(iv)(m), the amount of the Capital Account adjustment shall
be included in Income or Loss as an item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases the basis of the
asset) and shall be specially allocated to the Partners consistent with the
manner in which their Capital Accounts are required to be adjusted by such
Treasury Regulation.
(g) To the extent any allocation of Net Loss would cause or
increase a deficit balance in any Partner's Adjusted Capital Account, determined
after all other allocations provided for in this Article 4 have been made, the
amount thereof shall instead be allocated to Partners with positive Adjusted
Capital Account balances, in proportion thereto and to the extent thereof, and
the balance, if any, shall be allocated to the General Partner.
(h) To minimize any distortions in the manner that the
Partners intend to share distributions which may result from the special
regulatory allocations required by Sections 4.2(a)-(g) ("Regulatory
Allocations"), the General Partner may specially allocate to the Partners items
of Income or Loss pursuant to this Section 4.2(h) so that the net amounts
allocated to each Partner pursuant to this Section 4.2(h), the Regulatory
Allocations, and Section 4.1 shall, to the
extent reasonably possible, be equal to the net amounts that would have been
allocated to each Partner pursuant to Section 4.1 if the Regulatory Allocations
had not occurred.
4.3. OTHER ALLOCATION RULES.
(a) To reflect the varying interests of the Partners during
any Fiscal Year, Income, Loss, Net Income and Net Loss shall be determined on a
daily, monthly or other basis by the General Partner using any convention or
method permitted under Code Section 706 and the Treasury Regulations thereunder.
(b) Excess nonrecourse liabilities of the Partnership (as
defined in Treasury Regulations Section 1.752-3(a)(3)) shall be shared among the
Partners in accordance with their Percentage Interests.
4.4. ALLOCATIONS FOR FEDERAL INCOME TAX PURPOSES.
(a) Subject to Section 4.4(b), for each Fiscal Year, income,
gain, loss and deduction (or item thereof) of the Partnership, determined for
federal income tax purposes, shall be allocated to the Partners in the same
manner as each correlative item of Income or Loss is allocated pursuant to the
provisions of Sections 4.1,4.2 and 4.3.
(b) In accordance with Section 704(c) of the Code and the
Treasury Regulations thereunder, (i) items of taxable income, gain, loss and
deduction with respect to any Partnership asset contributed to the Partnership
shall, solely for federal income tax purposes, be allocated among the Partners
so as to take into account any variation at the time of contribution between the
adjusted tax basis of the asset to the Partnership and the asset's initial Book
Value, and (ii) if the Book Value of any Partnership asset is adjusted upon the
occurrence of a Revaluation Event, subsequent allocations of taxable income,
gain, loss and deduction with respect to the asset shall take into account any
variation between the adjusted tax basis of the asset immediately prior to the
event and the Book Value of the asset immediately thereafter. Unless otherwise
agreed by a Required Interest of the Limited Partners and, if applicable, by the
contributing Partner, such allocations shall be made utilizing the "Remedial
Allocation Method" described in Treasury Regulations Section 1.704-3(d).
4.5. TAX DISTRIBUTIONS. For each Fiscal Year, the General Partner shall
use its best efforts to cause the Partnership to make cash distributions to each
of the Partners in an aggregate amount equal to the product of (i) the net
amount of all items of Partnership taxable income and loss, times (ii) an
imputed tax rate of 34% (each a "Tax Distribution"). The annual Tax
Distributions shall be distributed not later than the last business day of
February of the Fiscal Year following the Fiscal Year for which such Tax
Distribution was determined.
4.6. CURRENT DISTRIBUTIONS. Subject to Sections 4.5 and 4.7,
distributions of Available Cash shall be made to the Partners, at such times and
in such amounts as may be determined by the General Partner in its sole
discretion, in accordance with their Percentage Interests.
4.7. LIQUIDATING DISTRIBUTIONS. Upon the winding up of the Partnership,
the proceeds of liquidation and all other assets of the Partnership shall be
applied and distributed in the following order and priority:
(a) To the payment, or provision for payment, of the expenses
of liquidating the Partnership;
(b) To the payment, or provision for payment, of creditors of
the Partnership (including Partners, other than in respect of distributions) in
the order of priority as provided by law;
(c) To the establishment of any reserves deemed necessary or
advisable by the Liquidator to provide for any other Partnership obligations
(including contingent liabilities, known or unknown);
(d) To the Partners, by the later of the end of the Fiscal
Year during which the Partnership is liquidated (within the meaning of Treasury
Regulations Section 1.704-1(b)(2)(ii)(g)) or 90 days after the date of such
liquidation, in accordance with the positive balances of their respective
Capital Accounts (determined after taking into account all other Capital Account
adjustments for all periods); and
(e) The balance, if any, shall be distributed to the Partners
in accordance with their respective Percentage Interests.
ARTICLE 5.
MANAGEMENT
5.1. PARTICIPATION IN MANAGEMENT; LIMITED LIABILITY. The Limited
Partners in their capacity as such shall not be authorized to participate in the
management of the Partnership's affairs and shall have no power to act for or
bind the Partnership, said powers being vested exclusively in the General
Partner. If a Limited Partner does not participate in the control of the
business of the Partnership, then it shall not be personally liable for the
expenses, liabilities, contracts, leases or other obligations of the Partnership
in excess of its Capital Contributions and its share of Partnership capital and
undistributed profits.
5.2. GENERAL AUTHORITY OF GENERAL PARTNER. The General Partner shall
have exclusive responsibility for the affairs of the Partnership and for its
management and control and shall have full power and authority to do all things
necessary or appropriate to conduct the business of the Partnership.
5.3. RELIANCE BY THIRD PARTIES. Any third party dealing with the
General Partner in connection with the Partnership shall be entitled to rely
upon an affidavit of the General Partner to the effect that it has full power
and authority to engage in any and all dealings on behalf of the Partnership.
5.4. INDEPENDENT ACTIVITIES; GENERAL PARTNER'S TIME. The General
Partner and each Limited Partner may, notwithstanding the existence of this
Agreement, engage in whatever activities they choose, whether the same may be
competitive with the Partnership or otherwise,
without having or incurring any obligation to offer any interest in such
activities to the Partnership or any other Partner. Neither this Agreement nor
any activity undertaken pursuant hereto shall prevent the General Partner from
engaging in such activities, or require the General Partner to permit the
Partnership or any Limited Partner to participate in any such activities, and as
a material part of the consideration for the General Partner's execution hereof
and admission of such Limited Partner, each Limited Partner hereby waives any
such right or claim of participation. The General Partner shall devote such of
its time and efforts as is reasonably necessary to conduct the Partnership's
business and affairs.
5.5. TAX MATTERS PARTNER. The General Partner shall be the "tax matters
partner" for the Partnership, as that term is defined in Section 6231(a)(7) of
the Code. All out-of-pocket costs and expenses incurred by the tax matters
partner in connection with the performance of its duties and privileges as tax
matters partner shall be borne by the Partnership. The General Partner shall
have all rights and powers granted to it under the Code and Regulations, or
under other applicable law, including: (i) to extend statutes of limitations for
assessment of tax deficiencies against the Partnership or any Partner with
respect to adjustments to the Partnership's foreign, federal, state, or local
tax returns and reports; and (iii) to the extent provided in Code Sections 6221
through 6231, to represent the Partnership and the Partner before taxing
authorities or courts of competent jurisdiction in tax matters affecting the
Partnership, and to file any tax returns and reports and execute any agreements
or other documents relating to or affecting such tax matters, including
agreements or other documents that bind the Partners with respect thereto or
otherwise affect the rights of the Partnership or Partners.
5.6. EXCULPATION. The General Partner, its employees, Affiliates and
authorized representatives shall not be liable to the Partnership or any Partner
for any act or failure to act on behalf of the Partnership if the person acted
in good faith and reasonably believed (i) in the case of conduct in the person's
official capacity as General Partner, that the person's conduct was in the
Partnership's best interest, or in all other cases, that the person's conduct
was at least not opposed to the Partnership's best interests, and (ii) in the
case of a criminal proceeding, had no reasonable cause to believe that the
person's conduct was unlawful. Notwithstanding the foregoing, the General
Partner, its employees, Affiliates and authorized representatives shall not be
entitled to exculpation with respect to a proceeding in which the person has
been found liable for willful or intentional misconduct in the performance of
the person's duty to the Partnership, or the person is found liable on the basis
that the person received a personal benefit, whether or not the benefit resulted
from an action taken in the person's official capacity. A determination that the
standards for exculpation of the General Partner, its employees, Affiliates or
authorized representatives have been met pursuant to this Section 5.6 shall be
made by independent legal counsel selected by the General Partner.
5.7. INDEMNITY. To the fullest extent permitted by the Act or other
applicable law, the General Partner, its employees, Affiliates and authorized
representatives shall be indemnified by the Partnership against all losses,
judgments, liabilities, expenses, penalties, fines, taxes and amounts paid in
settlement sustained by them in connection with the defense or settlement of any
actual or threatened action, proceeding or claim, relating to the Partnership,
and shall be entitled to advancement of expenses related thereto; provided, that
any such indemnification shall be limited to the assets of the Partnership.
5.8. COMPENSATION OF GENERAL PARTNER.
(a) No Partner (acting in the capacity of a Partner) shall
receive any salary, fee, or draw for services rendered to or on behalf of the
Partnership, except to the extent agreed to by all the Partners.
(b) Each Partner shall be reimbursed by the Partnership for
out-of-pocket costs and expenses reasonably incurred on behalf of the
Partnership or in furtherance of its business.
ARTICLE 6.
ACCOUNTING, REPORTING, BANKING, AND TAX MATTERS
6.1. BOOKS OF ACCOUNT. The General Partner shall maintain the
Partnership's books and records and this Agreement at the principal office of
the Partnership, and each Partner shall have access thereto for the purposes of
examination and inspection at reasonable times and on reasonable notice. The
General Partner, in its sole discretion, shall determine the accounting
principles to be consistently applied and the accounting method to be used by
the Partnership.
6.2. REPORTS. The General Partner shall cause to be prepared and
delivered to the Partners, at the expense of the Partnership, the following
reports:
(a) Within a reasonable time after the end of each Fiscal
Year, an unaudited balance sheet, income statement and statement of changes in
the Partners' Capital Accounts for such year; and
(b) Within 10 days after the end of each Fiscal Year, all
Partnership information necessary for the preparation of the Partners' federal
income tax returns.
6.3. BANKING. All funds of the Partnership shall be deposited in a
separate account or accounts, not commingled with those of any other person, in
a commercial bank or other financial institution or in short term investment
accounts of brokers, mutual funds or similar companies. All checks drawn upon
said account or accounts shall be drawn only for Partnership purposes and shall
be signed by the General Partner or an authorized representative of the General
Partner or the Partnership.
6.4. TAX ELECTION FOR BASIS ADJUSTMENT. Upon a transfer of an interest
in the Partnership, or upon a distribution of assets of the Partnership, the
General Partner shall, if requested, elect under Section 754 of the Code to
adjust the basis of the Partnership's property as allowed by Sections 734(b) and
743(b) of the Code.
6.5. PARTNERSHIP RETURNS. The, General Partner shall file the annual
Partnership federal information tax return and all other tax returns required to
be filed by the Partnership within the time prescribed by law (including
extensions).
ARTICLE 7.
TRANSFERS; WITHDRAWAL
7.1. TRANSFERS BY PARTNERS. A Partner shall not sell, assign, or
transfer, by operation of law or otherwise, all or part of its interest in the
Partnership (including, but not limited to, the right to allocations and
distributions pursuant to this Agreement), and no transferee of an interest in
the Partnership shall be admitted to the Partnership as a Partner, without the
consent of the other Partners, which consent may, in each case, be given or
withheld for any reason or no reason. Any transfer in violation of this Article
7 shall be null and void ab initio. Nothing herein shall prevent a Partner from
pledging or otherwise encumbering that Partner's Percentage Interest.
7.2. WITHDRAWAL. Except upon a transfer of all of a Partner's interest
in the Partnership in accordance with Section 7.1, no Partner shall have the
right to withdraw from the Partnership before completion of the winding up of
the Partnership.
ARTICLE 8.
DISSOLUTION AND WINDING UP OF PARTNERSHIP
8.1. DISSOLUTION. The Partnership shall be dissolved only upon the
first to occur of any of the following events:
(a) The election to dissolve the Partnership by the General
Partner and all of the Limited Partners;
(b) The sale or other disposition of all or substantially all
of the assets of the Partnership and conversion into cash of all proceeds
thereof;
(c) The expiration of the term of the Partnership set forth in
Section 2.7; or
(d) The entry of a decree of judicial dissolution pursuant to
Section 8.02 of the Act.
8.2. WINDING UP. Upon dissolution of the Partnership, the Partnership
shall be wound up as set forth herein. The General Partner or, if the General
Partner has withdrawn, a liquidator elected by a Required Interest of the
Limited Partners (the "Liquidator"), shall take full account of the
Partnership's assets and liabilities, and the assets shall be liquidated as
promptly as is consistent with obtaining the fair market value thereof, and the
proceeds therefrom shall be applied and distributed as provided in Section 4.6.
8.3. LIQUIDATOR. Any Liquidator elected as herein provided need not be
a Partner and shall receive such compensation for its services as may be
approved by a Required Interest of the Limited Partners, and may be removed at
any time upon the vote of a Required Interest of the Limited Partners. Upon the
death, removal, or resignation of a Liquidator, a successor Liquidator (who
shall have and succeed to all the rights, powers, and duties of the original
Liquidator) shall, within 30 days thereafter, be appointed by the vote of a
Required Interest of the Limited Partners. Every reference herein to
"Liquidator" shall refer also to any successor Liquidator. Except as expressly
provided in this Article 8, the Liquidator appointed in the
manner provided herein shall have and may exercise, without further
authorization or consent of any of the parties hereto or their legal
representatives or successors in interest, all of the powers conferred upon the
General Partner under the terms of this Agreement to the extent necessary or
desirable in the good faith judgment of the Liquidator to carry out the duties
and functions of the Liquidator hereunder and shall be entitled to the benefits
of Sections 5.6 and 5.7 hereof. If within 30 days after any time a Liquidator is
required hereunder a Liquidator has not been appointed, any interested party may
make application to any Judge of the United States District Court of the
District in which the City of Dallas, Texas is then situated for appointment of
such Liquidator, and such Judge, acting as an individual and not in his judicial
capacity, shall be fully authorized and empowered to appoint and designate such
Liquidator, who shall have all the powers, duties, rights and authorities of the
Liquidator herein provided.
8.4. LIQUIDATION STATEMENTS. Each of the Partners shall be furnished
with a statement prepared by the General Partner or Liquidator setting forth the
disposition of assets and the discharge or provision for discharge of the
liabilities of the Partnership in liquidation thereof. Upon completion of the
liquidation of the Partnership, a proper certificate of cancellation shall be
filed by the General Partner or Liquidator reflecting the termination of the
Partnership.
8.5. DEFICIT CAPITAL ACCOUNTS. Upon the winding up of the Partnership,
each Partner shall look solely to the assets of the Partnership for the return
of its Capital Contributions, and, except as otherwise expressly provided in
this Agreement if the Partnership assets remaining after payment and discharge
of the Partnership's liabilities to creditors are insufficient to return the
Capital Contributions or Capital Account of a Partner, the Partner shall have no
recourse or further right or claim against any other Partner. Notwithstanding
the foregoing, if upon the liquidation of the General Partner's Interest (within
the meaning of Treasury Regulations Section 1.704-2(b)(ii)(g)), the General
Partner has a negative balance in its Capital Account, as among the Partners,
the sole obligation of the General Partner shall be to contribute to the
Partnership, before the end of the Fiscal Year during which the liquidation
occurs or, if later, within 90 days after the date of the liquidation, the
lesser of (X) the excess of (i) 1.01% of the sum of the Capital Contributions of
the Limited Partners, over (ii) the previous Capital Contributions of the
General Partner, or (Y) the negative balance of its Capital Account, which
amount shall be distributed to the other Partners in accordance with the
positive balances of their Capital Accounts (determined after taking into
account all Capital Account adjustments for all periods, except in respect of
distributions pursuant to this Section 8.6). Except as otherwise expressly
provided in this Agreement, no Limited Partner shall have any obligation
whatsoever to the Partnership or any Partner to restore a negative balance in
its Capital Account remaining upon liquidation of the Limited Partner's Interest
(within the meaning of Treasury Regulations Section 1.704-2(b)(ii)(g)).
ARTICLE 9.
POWER OF ATTORNEY
Each Limited Partner, by the execution of this Agreement or by
authorizing its execution on its behalf, irrevocably constitutes and appoints
the General Partner, and any successor General Partner, with full power of
substitution and resubstitution, its true and lawful attorney and agent, with
full power and authority for it and in its name, place, and stead to execute,
certify, acknowledge, swear to, file, and record in the appropriate public
offices this Agreement
and all amendments thereto and all certificates of limited partnership and
amendments thereto, and all other certificates and instruments which the General
Partner deems necessary or appropriate to conduct the Partnership's business,
including without limitation, (a) reflect the exercise by the General Partner of
any of the powers granted to it under this Agreement; (b) reflect any amendments
to this Agreement; (c) reflect the admission to the Partnership of any
substituted Limited Partner or the withdrawal of any Partner, in the manner
prescribed in this Agreement; (d) effect the dissolution of the Partnership, or
conveyance or encumbrance of any of its assets; and (e) execute, deliver,
acknowledge, file, and record any other instrument which may hereafter be
required by law to be filed on the Partnership's behalf. Each Limited Partner
authorizes such attorney-in-fact to take any further action it may consider
necessary or advisable in connection with any of the foregoing, hereby giving
such attorney-in-fact full power and authority to do and perform each and every
act or thing whatsoever requisite or advisable to be done in and about the
foregoing as fully as such Limited Partner might or could do if personally
present, and hereby ratifying and confirming all that such attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. This power of attorney
shall be deemed to be coupled with an interest and irrevocable, and shall
survive an assignment by a Limited Partner of all or part of its interest in the
Partnership (except that where the assignee, with the consent of the General
Partner, is admitted as a substituted Limited Partner, the power of attorney
shall survive the delivery of such assignment for the sole purpose of enabling
such attorney-in-fact to execute, acknowledge, swear to, and file any agreement,
certificate, instrument, or document necessary to effect such substitution), and
the death, incompetency, or termination of existence of the Limited Partner. Any
person dealing with the Partnership may conclusively presume and rely upon the
fact that any document executed by the attorney and agent herein appointed is
regular and binding without further inquiry.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
10.1. NOTICES. Any consent, notice, demand, offer, or other
communication required or permitted to be given by any provision of this
Agreement shall be in writing and shall be deemed to have been delivered and
given for all purposes as of the date received, if delivered personally to the
party to whom directed, or as of the date deposited in the United States mail,
registered or certified, postage prepaid, and addressed, if to the General
Partner, to its address set forth on the signature page of this Agreement or to
such other address as the General Partner may from time to time specify by
written notice to the Limited Partners, and if to a Limited Partner, to the
Limited Partner's address set forth on Exhibit "A" hereto, or to such other
address as the Limited Partner may from time to time specify by written notice
to the General Partner.
10.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS.
10.3. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, the legality, validity and enforceability of
the remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid, or unenforceable provision, there shall be
deemed to have been added as part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be legal, valid and enforceable.
10.4. CAPTIONS. Captions contained in this Agreement are for reference
only and shall not affect the interpretation hereof.
10.5. AMENDMENTS.
(a) All amendments to this Agreement shall be in writing and
may be adopted only upon the recommendation of the General Partner and the
affirmative vote of a Required Interest of the Limited Partners.
(b) Notwithstanding Section 10.5(a) and subject to Section
10.5(c), amendments to this Agreement which are of an inconsequential nature and
do not adversely affect the Limited Partners in any material respect, or are
necessary or desirable to comply with any applicable law or governmental
regulation, or are required or contemplated by this Agreement, may be made by
the General Partner alone pursuant to the power of attorney granted to it by
Article 9 of this Agreement.
(c) No amendment which alters the limited liability of a
Limited Partner, a Limited Partner's share of allocations and distributions
(except as a result of the admission of an additional Limited Partner as
provided herein) or a Partners' obligation to contribute capital shall be made
without the affirmative vote or written consent of each Limited Partner affected
thereby.
10.6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and,
except as otherwise provided herein, shall inure to the benefit of the Partners
and their respective legal representatives, successors, and permitted assigns.
10.7. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
10.8. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement among the Partners with respect to the subject
matter hereof and there are no agreements, understandings, restrictions,
representations or warranties among the Partners other than those set forth or
provided for herein.
10.9. CONSTRUCTION. Unless clearly otherwise required by the context,
as used herein (i) the gender of words shall include the masculine, feminine and
neuter, (ii) the singular shall include the plural, and vice versa, (iii)
references to Articles and Sections are to those of this Agreement, (iv)
references to Exhibits are to those attached hereto, each of which is made a
part hereof for all purposes, (v) the words herein, hereinafter or similar
derivations shall be construed as references to this Agreement as a whole, and
(vi) the words include, including and similar derivations shall be construed as
without limitation.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first written above.
GENERAL PARTNER:
A-l CHAMPION GP, INC.,
a Michigan corporation
By: /s/ [ILLEGIBLE]
-----------------
Its: Vice President
-----------------
LIMITED PARTNER:
CHAMPION RETAIL, INC.,
a Michigan corporation
By: /s/ [ILLEGIBLE]
-----------------
Its: Vice President
-----------------
EXHIBIT "A"
AGREEMENT OF LIMITED PARTNERSHIP
OF
A-l HOMES GROUP, L.P.
<Table>
<Caption>
NAMES AND ADDRESSES PERCENTAGE INTERESTS
------------------- --------------------
GENERAL PARTNER:
A-l Champion GP, Inc. 1%
2701 Cambridge Court, Suite 300
Auburn Hills, Michigan 48326
LIMITED PARTNER:
Champion Retail, Inc. 99%
2701 Cambridge Court, Suite 300
Auburn Hills, Michigan 48326
</Table>
AMENDED AND RESTATED
BYLAWS
OF
REDMAN HOMES, INC.
A Delaware Corporation
TABLE OF CONTENTS
Page
----
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent......................................... 1
1.2 Other Offices....................................................... 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting...................................................... 1
2.2 Special Meeting..................................................... 2
2.3 Place of Meetings................................................... 2
2.4 Notice.............................................................. 2
2.5 Voting List......................................................... 3
2.6 Quorum.............................................................. 3
2.7 Required Vote; Withdrawal of Quorum................................. 3
2.8 Method of Voting; Proxies........................................... 4
2.10 Conduct of Meeting.................................................. 5
2.11 Inspectors.......................................................... 6
ARTICLE THREE: DIRECTORS
3.1 Management.......................................................... 6
3.2 Number; Qualification; Election; Term............................... 6
3.3 Change in Number.................................................... 7
3.4 Removal............................................................. 7
3.5 Vacancies........................................................... 7
3.6 Meetings of Directors............................................... 8
3.7 First Meeting....................................................... 8
3.8 Election of Officers................................................ 8
3.9 Regular Meetings.................................................... 8
3.10 Special Meetings.................................................... 8
3.11 Notice.............................................................. 8
3.12 Quorum; Majority Vote............................................... 9
3.13 Procedure........................................................... 9
3.14 Presumption of Assent............................................... 9
3.15 Compensation........................................................ 10
ARTICLE FOUR: COMMITTEES
4.1 Designation......................................................... 10
4.2 Number; Qualification; Term......................................... 10
4.3 Authority........................................................... 10
4.4 Committee Changes................................................... 10
4.5 Alternate Members of Committees..................................... 10
4.6 Regular Meetings.................................................... 11
4.7 Special Meetings.................................................... 11
4.8 Quorum; Majority Vote............................................... 11
4.9 Minutes............................................................. 11
i
4.10 Compensation........................................................ 11
4.11 Responsibility...................................................... 11
ARTICLE FIVE: NOTICE
5.1 Method.............................................................. 12
5.2 Waiver.............................................................. 12
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office...................................... 12
6.2 Removal............................................................. 13
6.3 Vacancies........................................................... 13
6.4 Authority........................................................... 13
6.5 Compensation........................................................ 13
6.6 Chairman of the Board............................................... 13
6.7 Chief Executive Officer............................................. 13
6.8 President........................................................... 14
6.9 Vice Presidents..................................................... 14
6.10 Treasurer........................................................... 14
6.11 Assistant Treasurers................................................ 14
6.12 Secretary........................................................... 15
6.13 Assistant Secretaries............................................... 15
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares............................................. 15
7.2 Replacement of Lost or Destroyed Certificates....................... 16
7.3 Transfer of Shares.................................................. 16
7.4 Registered Stockholders............................................. 16
7.5 Regulations......................................................... 16
7.6 Legends............................................................. 17
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends........................................................... 17
8.2 Reserves............................................................ 17
8.3 Books and Records................................................... 17
8.4 Fiscal Year......................................................... 17
8.5 Seal................................................................ 17
8.6 Resignations........................................................ 18
8.7 Securities of Other Corporations.................................... 18
8.8 Telephone Meetings.................................................. 18
8.9 Action Without a Meeting............................................ 18
8.10 Invalid Provisions.................................................. 19
8.11 Mortgages; etc. .................................................... 19
8.12 Headings............................................................ 20
8.13 References.......................................................... 20
8.14 Amendments.......................................................... 20
ii
AMENDED AND RESTATED BYLAWS
OF
REDMAN HOMES, INC.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Redman Homes, Inc., a Delaware corporation (the
"Corporation"). In the event of a direct conflict between the provisions of
these bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the certificate of incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the certificate of
incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect
directors and transact such other business as may properly be brought before the
meeting.
2.2 Special Meeting. A special meeting of the stockholders may be called
at any time by the Chairman of the Board, the Chief Executive Officer, the
President, the board of directors, and shall be called by the President or the
Secretary at the request in writing of the stockholders of record of not less
than ten percent of all shares entitled to vote at such meeting or as otherwise
provided by the certificate of incorporation of the Corporation. A special
meeting shall be held on such date and at such time as shall be designated by
the person(s) calling the meeting and stated in the notice of the meeting or in
a duly executed waiver of notice of such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice of
such meeting or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary, or the
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, it shall be
directed to such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the
2
meeting is not lawfully called or convened, or who shall, either before or after
the meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of ten days
prior to such meeting, such list shall be kept on file at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled
to vote on a matter, present in person or by proxy, shall constitute a quorum at
any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting.
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2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. (a) For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days prior to
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such meeting nor more than 60 days prior to any other action. If no record date
is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a
new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the board
of directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no record date has been fixed by the board of directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by law or these bylaws, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
in the State of Delaware, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the board of directors and prior action by
the board of directors is required by law or these bylaws, the record date for
determining stockholders
5
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the board of directors adopts the
resolution taking such prior action.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer or the President shall preside at all
meetings of stockholders. The Secretary shall keep the records of each meeting
of stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these bylaws or by some person
appointed by the meeting.
2.11 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies
and shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
6
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors which
shall constitute the entire board of directors shall be not less than one. The
first board of directors shall consist of the number of directors named in the
certificate of incorporation of the Corporation or, if no directors are so
named, shall consist of the number of directors elected by the incorporator(s)
at an organizational meeting or by unanimous written consent in lieu thereof.
Thereafter, within the limits above specified, the number of directors which
shall constitute the entire board of directors shall be determined by resolution
of the board of directors or by resolution of the stockholders at the annual
meeting thereof or at a special meeting thereof called for that purpose. Except
as otherwise required by law, the certificate of incorporation of the
Corporation, or these bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. Directors shall be elected
by a plurality of the votes of the shares present in person or represented by
proxy and entitled to vote on the election of directors. Each director so chosen
shall hold office until the first annual meeting of stockholders held after his
election and until his successor is elected and qualified or, if earlier, until
his death, resignation, or removal from office. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation or these bylaws, at any meeting of stockholders
called expressly for that purpose, any director or the entire board of directors
may be removed, with or without cause, by a vote of the holders of a majority of
the shares then entitled to vote on
7
the election of directors; provided, however, that so long as stockholders have
the right to cumulate votes in the election of directors pursuant to the
certificate of incorporation of the Corporation, if less than the entire board
of directors is to be removed, no one of the directors may be removed if the
votes cast against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire board of directors.
3.5 Vacancies. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by the sole
remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole board of directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least 10% of the
total number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly-created directorships or to replace the directors chosen by
the directors then in office. Except as otherwise provided in these bylaws, when
one or more directors shall resign from the board of directors, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in these
bylaws with respect to the filling of other vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
8
3.7 First Meeting. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.8 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
3.9 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.10 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the Chief Executive
Officer, the President, or any director.
3.11 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
3.12 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series
9
of stock shall have more or less than one vote per director on any matter, every
reference in these bylaws to a majority or other proportion of directors shall
refer to a majority or other proportion of the votes of such directors.
3.13 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
Chief Executive Officer or the President shall preside at all meetings of the
board of directors. In the absence or inability to act of either such officer, a
chairman shall be chosen by the board of directors from among the directors
present. The Secretary of the Corporation shall act as the secretary of each
meeting of the board of directors unless the board of directors appoints another
person to act as secretary of the meeting. The board of directors shall keep
regular minutes of its proceedings which shall be placed in the minute book of
the Corporation.
3.14 Presumption of Assent. A director of the Corporation who is present
at the meeting of the board of directors at which action on any corporate matter
is taken shall be presumed to have assented to the action unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
3.15 Compensation. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
10
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to
a committee or each such alternate committee member is absent or disqualified,
the member or members of such committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
11
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request of
the board of directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation
of authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed upon it or such director by law.
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ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation, or these bylaws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation, or
(b) by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or telefax). Any notice required or permitted
to be given by mail shall be deemed to be delivered and given at the time when
the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the board of
directors may from time to time elect or appoint, including a Chairman of the
Board, a Chief Executive Officer, one or more Vice Presidents (with each Vice
President to have such descriptive title, if any,
13
as the board of directors shall determine), and a Treasurer. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified, until his death, or until he shall resign or shall have been removed
in the manner hereinafter provided. Any two or more offices may be held by the
same person. None of the officers need be a stockholder or a director of the
Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the board of directors; provided, however, that
the board of directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board, the Chief Executive Officer, or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 Chief Executive Officer. The Chief Executive Officer, if elected by
the board of directors, shall, subject to the board of directors, have general
executive charge, management and control of the properties and
14
operations of the Corporation in the ordinary course of its business, with all
such powers with respect to such properties and operations as may be reasonably
incident to such responsibilities. If the board of directors has not elected a
Chairman of the Board or in the absence or inability to act of the Chairman of
the Board, the Chief Executive Officer shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the Chief Executive Officer
in the performance of the duties of the Chairman of the Board shall be
conclusive evidence that there is no Chairman of the Board or that the Chairman
of the Board is absent or unable to act.
6.8 President. The President shall have such powers and duties as may be
assigned to him by the board of directors, the Chairman of the Board, or the
Chief Executive Officer. If the board of directors has not elected a Chief
Executive Officer or in the absence or inability to act of the Chief Executive
Officer, the President shall exercise all of the powers and discharge all of the
duties of the Chief Executive Officer. As between the Corporation and third
parties, any action taken by the President in the performance of the duties of
the Chief Executive Officer shall be conclusive evidence that there is no Chief
Executive Officer or that the Chief Executive Officer is absent or unable to
act.
6.9 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, the Chief Executive Officer or the President, and (in order of their
seniority as determined by the board of directors or, in the absence of such
determination, as determined by the length of time they have held the office of
Vice President) shall exercise the powers of the President during that officer's
absence or inability to act. As between the Corporation and third parties, any
action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
6.10 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors,
15
and shall perform such other duties as may be prescribed by the board of
directors, the Chairman of the Board, the Chief Executive Officer, or the
President.
6.11 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer, or the President. The
Assistant Treasurers (in the order of their seniority as determined by the board
of directors or, in the absence of such a determination, as determined by the
length of time they have held the office of Assistant Treasurer) shall exercise
the powers of the Treasurer during that officer's absence or inability to act.
6.12 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board, the Chief Executive Officer, or the President, in the name of the
Corporation, all contracts of the Corporation and affix the seal of the
Corporation thereto. He may sign with the Chairman of the Board, the Chief
Executive Officer, or the President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the board of directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all
duties incident to the office of the Secretary, subject to the control of the
board of directors, the Chairman of the Board, the Chief Executive Officer, and
the President.
6.13 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer, or the President. The
Assistant Secretaries (in the order of their seniority as determined by the
board of directors or, in the absence of such a determination, as determined by
the length of time they have held the office of Assistant Secretary) shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
16
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If 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, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly
17
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, the Corporation or its transfer agent shall issue a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
for a purpose which is not opposed to the best interests of the corporation.
18
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the Chief Executive
Officer, the President, or the Secretary. Such resignation shall take effect at
the time specified therein or, if no time is specified therein, immediately upon
its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
Chief Executive Officer, the President, or any Vice President of the Corporation
shall have the power and authority to transfer, endorse for transfer, vote,
consent, or take any other action with respect to any securities of another
issuer which may be held or owned by the Corporation and to make, execute, and
deliver any waiver, proxy, or consent with respect to any such securities.
19
8.8 Telephone Meetings. Stockholders (acting for themselves or through a
proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. (a) Unless otherwise provided in the
certificate of incorporation of the Corporation, any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting of
the stockholders, or any action which may be taken at any annual or special
meeting of the stockholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders (acting for themselves or
through a proxy) of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which the holders of all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Every written consent of stockholders
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the earliest dated consent delivered in the
manner required by this Section 8.9(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office, principal place
of business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
20
(b) Unless otherwise restricted by the certificate of incorporation of
the Corporation or by these bylaws, any action required or permitted to be taken
at a meeting of the board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or consents in writing,
setting forth the action so taken, shall be signed by all the directors or all
the committee members, as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same force and effect as
a vote of such directors or committee members, as the case may be, and may be
stated as such in any certificate or document filed with the Secretary of State
of the State of Delaware or in any certificate delivered to any person. Such
consent or consents shall be filed with the minutes of proceedings of the board
or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the stockholders or by the board of directors at any
regular meeting of the stockholders or the board of directors or at any special
meeting of the stockholders or the board of directors if notice of such
alteration, amendment, repeal, or adoption of new bylaws be contained in the
notice of such special meeting.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
21
The undersigned, being the Secretary of the Corporation, hereby certifies
that the foregoing bylaws were adopted by the consent of the board of directors
of the Corporation as of August 22, 1995.
/s/ Paul L. Barrett
----------------------------------
Paul L. Barrett
Secretary
22
AMENDED AND
RESTATED BYLAWS
OF
REDMAN INDUSTRIES, INC.
A Delaware Corporation
TABLE OF CONTENTS
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent ......................................... 1
1.2 Other Offices........................................................ 1
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting ...................................................... 1
2.2 Special Meeting ..................................................... 2
2.3 Place of Meetings ................................................... 2
2.4 Notice .............................................................. 2
2.5 Notice of Stockholder Business; Nomination of Director Candidates ... 2
2.6 Voting List ......................................................... 4
2.7 Quorum .............................................................. 4
2.8 Required Vote; Withdrawal of Quorum ................................. 4
2.9 Method of Voting; Proxies ........................................... 4
2.10 Record Date ......................................................... 5
2.11 Conduct of Meeting .................................................. 5
2.12 Inspectors .......................................................... 5
ARTICLE THREE: DIRECTORS
3.1 Management .......................................................... 6
3.2 Number; Qualification; Election; Term ............................... 6
3.3 Change in Number .................................................... 7
3.4 Removal; Vacancies .................................................. 7
3.5 Meetings of Directors ............................................... 8
3.6 First Meeting ....................................................... 8
3.7 Election of Officers ................................................ 8
3.8 Regular Meetings .................................................... 8
3.9 Special Meetings .................................................... 8
3.10 Notice .............................................................. 8
3.11 Quorum; Majority Vote ............................................... 8
3.12 Procedure ........................................................... 8
3.13 Presumption of Assent ............................................... 9
3.14 Compensation ........................................................ 9
ARTICLE FOUR: COMMITTEES
4.1 Designation ......................................................... 9
4.2 Number; Qualification; Term ......................................... 9
4.3 Authority ........................................................... 9
i
4.4 Committee Changes ................................................... 9
4.5 Alternate Members of Committees ..................................... 9
4.6 Regular Meetings .................................................... 10
4.7 Special Meetings .................................................... 10
4.8 Quorum; Majority Vote ............................................... 10
4.9 Minutes ............................................................. 10
4.10 Compensation ........................................................ 10
4.11 Responsibility ...................................................... 10
ARTICLE FIVE: NOTICE
5.1 Method .............................................................. 10
5.2 Waiver .............................................................. 11
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office ...................................... 11
6.2 Removal ............................................................. 11
6.3 Vacancies ........................................................... 11
6.4 Authority ........................................................... 11
6.5 Compensation ........................................................ 12
6.6 Chairman of the Board ............................................... 12
6.7 President ........................................................... 12
6.8 Vice Presidents ..................................................... 12
6.9 Treasurer ........................................................... 12
6.10 Assistant Treasurers ................................................ 12
6.11 Secretary ........................................................... 13
6.12 Assistant Secretaries ............................................... 13
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares ............................................. 13
7.2 Replacement of Lost or Destroyed Certificates ....................... 13
7.3 Transfer of Shares .................................................. 14
1.4 Registered Stockholders ............................................. 14
7.5 Regulations ......................................................... 14
7.6 Legends ............................................................. 14
ARTICLE EIGHT: MISCELLANEOUS; PROVISIONS
8.1 Dividends ........................................................... 14
8.2 Reserves............................................................. 14
8.3 Books and Records ................................................... 14
8.4 Fiscal Year ......................................................... 15
8.5 Seal ................................................................ 15
ii
8.6 Resignations ........................................................ 15
8.7 Securities of Other Corporations .................................... 15
8.8 Telephone Meetings .................................................. 15
8.9 Action Without a Meeting ............................................ 15
8.10 Invalid Provisions .................................................. 16
8.11 Mortgages ........................................................... 16
8.12 Headings ............................................................ 16
8.13 References .......................................................... 16
8.14 Amendments .......................................................... 16
iii
AMENDED AND RESTATED
BYLAWS
OF
REDMAN INDUSTRIES, INC.
A Delaware Corporation
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware Corporation Law") and the
certificate of incorporation of Redman Industries, Inc., a Delaware corporation
(the "Corporation"). In the event of a direct conflict between the provisions of
these Bylaws and the mandatory provisions of the Delaware Corporation Law or the
provisions of the certificate of incorporation of the Corporation, such
provisions of the Delaware Corporation Law or the certificate of incorporation
of the Corporation, as the case may be, will be controlling. These Bylaws will
become effective on the effective date of the Corporation's Registration
Statement on Form S-l (No. 33-65970), as amended, with respect to the initial
public offering of shares of common stock of the Corporation.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may be properly brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called by the board of directors pursuant to a resolution adopted by a majority
of the Classified Directors (as defined in Section 3.2 hereof) then serving, by
the Chairman of the Board, or by any holder or holders of record of at least 25%
of the outstanding shares of capital stock of the Corporation then entitled to
vote on any matter for which the respective special meeting is being called
(considered for this purpose as one class). A special meeting shall be held on
such date and at such time as shall be designated by the person(s) calling the
meeting and stated in the notice of the meeting or in a duly executed waiver of
notice of such meeting. Only such business shall be transacted at a special
meeting as may be stated or indicated in the notice of such meeting given in
accordance with these Bylaws or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the President, the Secretary, or the
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, it shall be
directed to such stockholder at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices to him be mailed to some other address, in which
case it shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Notice of Stockholder Business; Nomination of Director Candidates.
(a) At annual or special meetings of the stockholders, only
such business shall be conducted as shall have been brought before the
meetings (i) pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the board of directors, or (iii) by any
stockholder of the Corporation who is a stockholder of record at the
time of giving of notice provided for in this Section 2.5, who shall be
entitled to vote at such meeting, and who complies with the notice
procedures set forth in this Section 2.5.
(b) Only persons who are nominated in accordance with the
procedures set forth in these Bylaws shall be eligible to serve as
directors. Nominations of persons for election to
2
the board of directors may be made at an annual or special meeting of
stockholders (i) by or at the direction of the board of directors, (ii)
by any stockholder of the Corporation who is a stockholder of record at
the time of giving of notice provided for in this Section 2.5, who
shall be entitled to vote for the election of directors at the meeting,
and who complies with the notice procedures set forth in this Section
2.5.
(c) A stockholder must give timely, written notice to the
Secretary of the Corporation to nominate directors at an annual or
special meeting pursuant to Section 2.5(b) hereof or to propose
business to be brought before an annual or special meeting pursuant to
clause (iii) of Section 2.5(a) hereof. To be timely in the case of an
annual meeting, a stockholder's notice must be received at the
principal executive offices of the Corporation not less than 120 days
before the first anniversary of the preceding year's annual meeting (or
by April 30 with respect to the 1994 annual meeting). To be timely in
the case of a special meeting or in the event that the date of the
annual meeting is changed by more than 30 days from such anniversary
date, a stockholder's notice must be received at the principal
executive offices of the Corporation no later than the close of
business on the tenth day following the earlier of the day on which
notice of the meeting date was mailed or public disclosure of the
meeting date was made. Such stockholder's notice shall set forth (i)
with respect to each matter, if any, that the stockholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting and the reasons for conducting such
business at the meeting, (ii) with respect to each person, if any, whom
the stockholder proposes to nominate for election or re-election as a
director, all information relating to such person (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director) that is required under the
Securities Exchange Act of 1934, as amended, (iii) the name and
address, as they appear on the Corporation's records, of the
stockholder proposing such business or nominating such persons (as the
case may be), and the name and address of the beneficial owner, if any,
on whose behalf the proposal or nomination is made, (iv) the class and
number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder of record and by the
beneficial owner, if any, on whose behalf the proposal or nomination is
made, and (v) any material interest or relationship that such
stockholder of record and/or the beneficial owner, if any, on whose
behalf the proposal or nomination is made may respectively have in such
business or with such nominee. At the request of the board of
directors, any person nominated for election as a director shall
furnish to the Secretary of the Corporation the information required to
be set forth in a stockholder's notice of nomination which pertains to
the nominee.
(d) Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted, and no person shall be nominated to
serve as a director, at an annual or special meeting of stockholders,
except in accordance with the procedures set forth in this Section 2.5
and elsewhere in these Bylaws. The chairman of the meeting shall, if
the facts warrant, determine that business was not properly brought
before the meeting, or that a nomination was not made, in accordance
with the procedures prescribed by these Bylaws and, if he shall so
determine, he shall so declare to the meeting, and any such business
not properly brought
3
before the meeting shall not be transacted and any defective nomination
shall be disregarded. Notwithstanding the foregoing provisions of these
Bylaws, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set
forth in this Section 2.5.
2.6 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares of capital stock registered in the name of each stockholder. For a period
of ten days prior to such meeting, such list shall be kept on file at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of meeting or a duly executed waiver of notice of such meeting or,
if not so specified, at the place where the meeting is to be held and shall be
open to examination by any stockholder during ordinary business hours. Such list
shall be produced at such meeting and kept at the meeting at all times during
such meeting and may be inspected by any stockholder who is present.
2.7 Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote on a matter, present in person or by proxy, shall
constitute a quorum at any meeting of stockholders, except as otherwise provided
by law, the certificate of incorporation of the Corporation, or these Bylaws. If
a quorum shall not be present, in person or by proxy, at any meeting of
stockholders, the stockholders entitled to vote thereat who are present, in
person or by proxy (or, if no stockholder entitled to vote is present, any
officer of the Corporation), may adjourn the meeting from time to time without
notice other than announcement at the meeting (unless the board of directors,
after such adjournment, fixes a new record date for the adjourned meeting),
until a quorum shall be present, in person or by proxy. At any adjourned meeting
at which a quorum shall be present, in person or by proxy, any business may be
transacted which may have been transacted at the original meeting had a quorum
been present; provided that, if the adjournment is for more than 30 days or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares of capital stock entitled to vote thereat who are present, in person or
by proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of law, the certificate of
incorporation of the Corporation, or these Bylaws, a different vote is required,
in which case such express provision shall govern and control the decision of
such question. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share of capital stock, regardless of
4
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders. Elections of directors need not be by written ballot.
At any meeting of stockholders, every stockholder having the right to vote may
vote either in person or by a proxy executed in writing by the stockholder or by
his duly authorized attorney-in-fact. Each such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after three years from the date of its execution, unless
otherwise provided in the proxy. If no date is stated in a proxy, such proxy
shall be presumed to have been executed on the date of the meeting at which it
is to be voted. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and coupled with an interest sufficient in law to support an
irrevocable power or unless otherwise made irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders entitled
(a) to notice of or to vote at any meeting of stockholders or any adjournment
thereof, (b) to receive payment of any dividend or other distribution or
allotment of any rights, or (c) to exercise any rights in respect of any change,
conversion, or exchange of stock or for the purpose of any other lawful action,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the board of directors, for any such determination of stockholders, such date in
any case to be not more than 60 days and not less than ten days prior to such
meeting nor more than 60 days prior to any other action. If no record date is
fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
2.11 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these Bylaws or by some person appointed by the
meeting.
2.12 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors
5
shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count, and tabulate all votes, ballots, or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these Bylaws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The board of directors shall
consist of no fewer than five and no more than nine directors (plus such number
of directors as may be elected from time to time pursuant to the terms of any
series of preferred stock that may be issued and outstanding from time to time).
The directors of the Corporation (exclusive of directors who are elected
pursuant to the terms of, and serve as representatives of the holders of, any
series of preferred stock of the Corporation) shall be referred to herein as
"Classified Directors" and shall be divided into three classes, with the first
class referred to herein as "Class 1," the second class as "Class 2," and the
third class as "Class 3." Each class shall consist as nearly as possible of
one-third (l/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class 1 directors shall expire at
the 1994 annual meeting of stockholders, the term of office of the initial Class
2 directors shall expire at the 1995 annual meeting of stockholders, and the
term of office of the initial Class 3 directors shall expire at the 1996 annual
meeting of stockholders, with each director to hold office until his successor
shall have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his successor shall have been duly elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of common
stock), to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies, and other features of such
directorships shall be governed by the terms of the certificate of incorporation
(including any amendment to the
6
certificate of incorporation that designates a series of preferred stock), and
such directors so elected by the holders of preferred stock shall not be divided
into classes pursuant to this Section 3.2 unless expressly provided by the terms
of the certificate of incorporation.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal; Vacancies.
(a) Any or all Classified Directors may be removed, with
cause, at any annual or special meeting of stockholders, upon the
affirmative vote of the holders of a majority of the outstanding shares
of each class of capital stock then entitled to vote in person or by
proxy at an election of such Classified Directors, provided that notice
of the intention to act upon such matter shall have been given in the
notice calling such meeting. Newly created directorships resulting from
any increase in the authorized number of Classified Directors and any
vacancies occurring in the board of directors caused by death,
resignation, retirement, disqualification, removal or other termination
from office of any Classified Directors may be filled by the vote of a
majority of the Classified Directors then in office, though less than a
quorum, or by the affirmative vote, at any annual meeting or any
special meeting of the stockholders called for the purpose of filling
such directorship, of the holders of a majority of the outstanding
shares of each class of capital stock then entitled to vote in person
or by proxy at an election of such Classified Directors. Each successor
Classified Director so chosen shall hold office until the next election
of the class for which such director shall have been chosen and until
his respective successor shall have been duly elected and qualified.
(b) Unless otherwise provided by the terms of the certificate
of incorporation (including any amendment thereto that designates a
series of preferred stock), any or all directors other than Classified
Directors may be removed, with or without cause, at any annual or
special meeting of stockholders, upon the affirmative vote of the
holders of a majority of the outstanding shares of each class of
capital stock then entitled to vote in person or by proxy at an
election of such directors, provided that notice of the intention to
act upon such matter shall have been given in the notice calling such
meeting. Unless otherwise provided by the terms of the certificate of
incorporation (including any amendment thereto that designates a series
of preferred stock), any vacancies occurring in the board of directors
caused by death, resignation, retirement, disqualification, removal or
other termination from office of any directors other than Classified
Directors may be filled by the vote of a majority of the board of
directors then in office, though less than a quorum, or by the
affirmative vote, at any annual meeting or any special meeting of the
stockholders called for the purpose of filling such directorship, of
the holders of a majority of the outstanding shares of each class of
capital stock then entitled to vote in person or by proxy at an
election of such directors. Each successor director so chosen shall
hold office until the next election of the class for which such
director shall have been chosen and until his respective successor
shall have been duly elected and qualified.
7
3.5 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the records of the Corporation, except as otherwise
provided by law, in such place or places within or without the State of Delaware
as the board of directors may from time to time determine or as shall be
specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.6 First Meeting. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.7 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.9 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
3.10 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who, either before or after the meeting,
submits a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. The
purpose of any special meeting shall be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these Bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there is less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these Bylaws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these Bylaws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.12 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability
8
to act of either such officer, a chairman shall be chosen by the board of
directors from among the directors present. The Secretary of the Corporation
shall act as the secretary of each meeting of the board of directors unless the
board of directors appoints another person to act as secretary of the meeting.
The board of directors shall keep regular minutes of its proceedings which shall
be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.14 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by such
resolution or by law, the certificate of incorporation of the Corporation, or
these Bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any
9
absent or disqualified member at any meeting of the committee. If no alternate
committee members have been so appointed to a committee or each such alternate
committee member is absent or disqualified, the member or members of such
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these Bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for placement in the
minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of
the Corporation, or these Bylaws, notice is required to be given to any
committee member, director, or stockholder and
10
no provision is made as to how such notice shall be given, personal notice shall
not be required and any such notice may be given (a) in writing, by mail,
postage prepaid, addressed to such committee member, director, or stockholder at
his address as it appears on the books or (in the case of a stockholder) the
stock transfer records of the Corporation, or (b) by any other method permitted
by law (including but not limited to overnight courier service, telegram, telex,
or telefax). Any notice required or permitted to be given by mail shall be
deemed to be delivered and given at the time when the same is deposited in the
United States mail as aforesaid. Any notice required or permitted to be given by
overnight courier service shall be deemed to be delivered and given at the time
delivered to such service with all charges prepaid and addressed as aforesaid.
Any notice required or permitted to be given by telegram, telex, or telefax
shall be deemed to be delivered and given at the time transmitted with all
charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director, or committee
member at a meeting shall constitute a waiver of, notice of such meeting, except
where such person attends for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a Chairman of the Board, a President, a Secretary, and such other
officers as the board of directors may from time to time elect or appoint,
including one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine) and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and shall have qualified, until his death, or until he shall resign
or shall have been removed in the manner hereinafter provided. Any two or more
offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these Bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these Bylaws.
11
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board shall, subject to
the supervision of the board of directors of the Corporation, have the general
management and control of the Corporation. Such officer shall preside at all
meetings of the stockholders and of the board of directors and shall have such
duties as may from time to time be assigned by the board of directors. Such
officer may sign all certificates for shares of stock of the Corporation.
6.7 President. The President shall, subject to the supervision of the
board of directors of the Corporation, have general executive charge,
management, and control of the properties and operations of the Corporation in
the ordinary course of its business, with all such powers with respect to such
properties and operations as may be reasonably incident to such
responsibilities. In the absence or inability to act of the Chairman of the
Board, the President shall exercise all of the powers and discharge all of the
duties of the Chairman of the Board. As between the Corporation and third
parties, any action taken by the President in the performance of the duties of
the Chairman of the Board shall be conclusive evidence that the Chairman of the
Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
board of directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Corporation and third parties, any action taken by a Vice
President in the performance of the duties of the President shall be conclusive
evidence of the absence or inability to act of the President at the time such
action was taken.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
12
6.11 Secretary. Except as otherwise provided in these Bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President or any other authorized officer of the Corporation, in
the name of the Corporation, all contracts of the Corporation and affix the seal
of the Corporation thereto. He may sign with the Chairman of the Board or the
President or any Vice President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the board of directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all
duties incident to the office of the Secretary, subject to the control of the
board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If 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, such certificate may be issued by the Corporation with
the same effect as if he were such officer, transfer agent, or registrar at the
date of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a
13
claim, that may be made against the Corporation with respect to the certificate
or certificates alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS; PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer
14
agent or registrar, a record of its stockholders, giving the names and addresses
of all stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the board of directors or by giving written
notice to the board of directors, the Chairman of the Board, the President, or
the Secretary. Such resignation shall take effect at the time specified therein
or, if no time is specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or through
a proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting.
(a) Except as otherwise provided in the certificate of
incorporation of the Corporation, any action required by the Delaware
Corporation Law to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or
special meeting of the stockholders, may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the
holders (acting for themselves or through a proxy) of outstanding stock
having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which the
holders of all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are
15
recorded. Every written consent of stockholders shall bear the date of
signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the earliest dated consent
delivered in the manner required by this Section 8.9(a) to the
Corporation, written consents signed by a sufficient number of holders
to take action are delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office, principal place
of business, or such officer or agent shall be by hand or by certified
or registered mail, return receipt requested.
(b) Except as otherwise provided in the certificate of
incorporation of the Corporation or in these Bylaws, any action
required or permitted to be taken at a meeting of the board of
directors, or of any committee of the board of directors, may be taken
without a meeting if a consent or consents in writing, setting forth
the action so taken, shall be signed by all the directors or all the
committee members, as the case may be, entitled to vote with respect to
the subject matter thereof, and such consent shall have the same force
and effect as a vote of such directors or committee members, as the
case may be, and may be stated as such in any certificate or document
filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be
filed with the minutes of proceedings of the board or committee, as the
case may be.
8.10 Invalid Provisions. If any part of these Bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these Bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. The board of directors may, upon the affirmative vote
of a majority of the directors in accordance with Section 3.11 hereof and of at
least two-thirds of the Classified Directors then serving, make, adopt, alter,
amend, and repeal from time to time these Bylaws and
16
make from time to time new bylaws of the Corporation (subject to the right of
the stockholders entitled to vote thereon to adopt, alter, amend, and repeal
bylaws made by the board of directors or to make new bylaws); provided, however,
that the stockholders of the Corporation may adopt, alter, amend, or repeal
bylaws made by the board of directors or make new bylaws solely upon the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of each class of capital stock then entitled to vote thereon.
The undersigned Secretary of the Corporation hereby certifies that the
foregoing Amended and Restated Bylaws were adopted by unanimous consent by the
directors of the Corporation as of September 15, 1993.
/s/ Paul L. Barrett
-----------------------------------
Paul L. Barrett,
Secretary
17
================================================================================
BYLAWS OF
SAN JOSE ADVANTAGE HOMES, INC.,
A CALIFORNIA CORPORATION
================================================================================
TABLE OF CONTENTS
ARTICLE I. OFFICES
Section 1.1 PRINCIPAL OFFICES ...................................... 1
Section 1.2 OTHER OFFICE ........................................... 1
ARTICLE II. MEETING OF SHAREHOLDERS
Section 2.1 PLACE OF MEETING ....................................... 1
Section 2.2 ANNUAL MEETINGS ........................................ 1
Section 2.3 SPECIAL MEETINGS ....................................... 2
Section 2.4 NOTICE OF SHAREHOLDERS' MEETINGS ....................... 2
Section 2.5 MANNER OF GIVING NOTICE;
AFFIDAVIT OF NOTICE .................................... 3
Section 2.6 QUORUM ................................................. 3
Section 2.7 ADJOURNED MEETING; NOTICE .............................. 4
Section 2.8 VOTING ................................................. 4
Section 2.9 VALIDATION OF MEETINGS;
WAIVER OF NOTICE; CONSENT .............................. 5
Section 2.10 SHAREHOLDER ACTION BY WRITTEN
CONSENT WITHOUT A MEETING .............................. 5
Section 2.11 RECORD DATE FOR SHAREHOLDER NOTICE
VOTING, AND GIVING CONSENT ............................. 6
Section 2.12 PROXIES ................................................ 7
Section 2.13 INSPECTORS OF ELECTIONS ................................ 8
i.
ARTICLE III. DIRECTORS
Section 3.1 POWERS .................................................. 8
Section 3.2 NUMBER AND QUALIFICATION OF DIRECTORS ................... 8
Section 3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS ................ 8
Section 3.4 REMOVAL ................................................. 9
Section 3.5 RESIGNATION AND VACANCIES ............................... 9
Section 3.6 PLACE OF MEETINGS AND MEETING BY TELEPHONE .............. 10
Section 3.7 REGULAR MEETINGS ........................................ 11
Section 3.8 SPECIAL MEETINGS; NOTICE ................................ 11
Section 3.9 QUORUM .................................................. 11
Section 3.10 WAIVER OF NOTICE ........................................ 11
Section 3.11 ADJOURNMENT ............................................. 12
Section 3.12 NOTICE OF ADJOURNMENT ................................... 12
Section 3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING ....... 12
Section 3.14 FEES AND COMPENSATION OF DIRECTORS ...................... 12
ARTICLE IV. COMMITTEES
Section 4.1 COMMITTEES OF DIRECTORS ................................. 12
Section 4.2 MEETINGS AND ACTIONS OF COMMITTEES ...................... 13
ARTICLE V. OFFICERS
Section 5.1 OFFICERS ................................................ 14
Section 5.2 APPOINTMENT OF OFFICERS ................................. 14
Section 5.3 SUBORDINATE OFFICERS .................................... 14
Section 5.4 REMOVAL AND RESIGNATION OF OFFICERS ..................... 14
ii.
Section 5.5 VACANCIES IN OFFICES .................................... 14
Section 5.6 CHAIRMAN OF THE BOARD ................................... 15
Section 5.7 PRESIDENT ............................................... 15
Section 5.8 VICE PRESIDENT(S) ....................................... 15
Section 5.9 SECRETARY ............................................... 15
Section 5.10 CHIEF FINANCIAL OFFICER ................................. 16
Section 5.11 COMPENSATION OF OFFICERS ................................ 16
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 6.1 INDEMNIFICATION OF DIRECTORS ............................ 17
Section 6.2 INDEMNIFICATION OF OTHERS ............................... 17
Section 6.3 PAYMENT OF EXPENSES IN ADVANCE .......................... 17
Section 6.4 INDEMNITY NOT EXCLUSIVE ................................. 18
Section 6.5 INSURANCE INDEMNIFICATION ............................... 18
Section 6.6 CONFLICTS ............................................... 18
Section 6.7 RIGHT TO BRING SUIT ..................................... 18
Section 6.8 INDEMNITY AGREEMENTS .................................... 19
Section 6.9 AMENDMENT, REPEAL OR MODIFICATION ....................... 19
ARTICLE VII. RECORDS AND REPORTS
Section 7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER ............ 19
Section 7.2 MAINTENANCE AND INSPECTION OF BYLAWS .................... 20
Section 7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS ... 20
Section 7.4 INSPECTION BY DIRECTORS ................................. 21
Section 7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER ................... 21
Section 7.6 FINANCIAL STATEMENTS .................................... 21
iii.
Section 7.7 ANNUAL STATEMENT OF GENERAL INFORMATION ................. 22
ARTICLE VIII. GENERAL CORPORATE MATTERS
Section 8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ... 22
Section 8.2 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS ............... 22
Section 8.3 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED ....... 23
Section 8.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS .......... 23
Section 8.5 CERTIFICATES FOR SHARES ................................. 23
Section 8.6 LOST CERTIFICATES ....................................... 23
Section 8.7 CONSTRUCTION AND DEFINITIONS ............................ 23
Section 8.8 MANNER OF CONDUCT OF MEETINGS ........................... 24
ARTICLE IX. AMENDMENTS
Section 9.1 AMENDMENT BY SHAREHOLDERS ............................... 24
Section 9.2 AMENDMENT BY DIRECTORS .................................. 24
Section 9.3 RECORD OF AMENDMENTS .................................... 24
ARTICLE X. INTERPRETATION ................................................... 25
iv.
BYLAWS
OF
SAN JOSE ADVANTAGE HOMES, INC.,
A CALIFORNIA CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICES. The Board of Directors shall fix the
location of the principal office of the corporation at any place within or
outside the State of California. If the principal executive office is located
outside this state, the Board of Directors shall fix and designate a principal
business office in the State of California.
SECTION 1.2 OTHER OFFICES. The Board of Directors may at any time establish
branch or subordinate offices at any place or places, within or outside the
State of California.
ARTICLE II
MEETING OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETING. Meeting 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 or any place
consented to in writing by all persons entitled to vote at such meeting, given
before or after the meeting and filed with the Secretary of the corporation.
SECTION 2.2 ANNUAL MEETING. 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 which is within the powers of shareholders.
SECTION 2.3 SPECIAL MEETING. Special meeting(s) of the shareholders may be
called at any time, subject to Sections 2.4 and
1.
2.5 of these Bylaws, by the Board of Directors, the Chairman of the Board, the
President, or by one or more shareholders holding shares in the aggregate
entitled to cast not less the ten percent (10%) of the votes at the meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the President or the Chairman of the Board, 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 other written communication to the Chairman of the
Board, the President, any Vice President, or the Secretary of the corporation.
The officer receiving the request shall cause notice to be promptly given to the
shareholders entitled to vote, in accordance with the provisions of Sections 2.4
and 2.5 of this Article II, 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, then 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.
Section 2.4 NOTICE OF SHAREHOLDERS' MEETING. All notices of meeting of
shareholders shall be sent or otherwise given in accordance with Section 2.5 of
this Article II not less than ten (10) days nor more than sixty (60) days before
the date of meeting to each shareholder entitled to vote thereat. 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, but, subject to the provisions of the next paragraph of this
Section 2.4, any proper matter may be presented at the meeting for such action.
The notice of any meeting at which Directors are to be elected shall include the
name(s) of any nominee(s) intended, at the time of notice, to be presented by
the Board 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 Articles of Incorporation, pursuant to Section 902 of that Code,
(iii) a reorganization of the corporation, pursuant to Section 1201 of that
Code, (iv) a voluntary dissolution of the corporation, pursuant to Section 1900
of that Code, or (v) a distribution in outstanding preferred shares, pursuant to
Section 2007 of that Code, the notice shall also state the general nature of
that proposal.
2.
Section 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 that 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 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 where that 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
communications.
If any notice (or any report referenced in Article VII of these Bylaws)
addressed to a shareholder at the address of that 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 that address, all future
notices or reports shall be deemed to have been duly given without further
mailing if these shall be available to the shareholders on written demand of
the shareholders at the principal executive office of the corporation for a
period of one (1) year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice or report
in accordance with this Section 2.5, may be executed by the Secretary,
Assistant Secretary, or any transfer agent of the corporation and may be filed
and maintained in the minute book of the corporation, and shall be prima facie
evidence of the giving of the notice or report.
Section 2.6 QUORUM. Unless otherwise provided in the Articles of
Incorporation of this corporation, 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.
In the absence of a quorum, any meeting of shareholders may be adjourned
from time to time by the vote of a majority of the shares represented either in
person or by proxy, but no other business may be transacted, except as provided
in the last sentence of the preceding paragraph.
3.
Section 2.7 ADJOURNED MEETING; NOTICE. 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 that meeting,
either in person or by proxy.
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 are announced at a meeting at which the adjournment is taken,
unless a new record date for 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 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 of this Article II. At
any adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
Section 2.8 VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section
2.11 of this Article II, 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). The
shareholders' vote may be by voice vote or by ballot; provided, however, that
any election for Directors, or any other matter, must be by ballot if demanded
by any shareholder before the voting has begun. Except as provided in the last
paragraph of this Section 2.8, or as may be otherwise provided in the Articles
of Incorporation, each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote of the shareholders. On any
matter other than election of Directors, any shareholder may vote part of the
shares in favor of the proposal and refrain from voting the remaining shares, or
vote them against the proposal, but, if the shareholder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving vote is with
respect to all shares that the 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 greater
number or voting by classes is required by the California General Corporation
Law or by the Articles of Incorporation.
At a shareholders' meeting at which Directors are to be elected, a
shareholder shall be entitled to cumulate votes either (i) by giving one
candidate a number of votes equal to the number of Directors to be elected
multiplied by the number of votes to which the shareholder's shares are
normally entitled or (ii) by distributing the shareholder's votes on the same
principle among as many candidates as the shareholder thinks fit, if the
candidate or candidates' names have been placed in nomination prior to the
4.
voting and the shareholder has given notice prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such a notice, then every shareholder entitled to vote may
cumulate votes for candidates in nomination. The candidates receiving the
highest number of affirmative votes, up to the number of Directors to be
elected, shall be elected; votes against any candidate and votes withheld shall
have no legal effect.
SECTION 2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT. 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, who was not present in person or by proxy, signs a written
waiver of notice or consent to a holding of meeting, or an approval of the
minutes. 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 of this Article II, the waiver, or all such waivers, consents, or approvals
shall be filed with the corporate records or made part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included if the objection is
expressly made at the meeting.
SECTION 2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. 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 that action at a meeting at which all shares entitled to
vote on that action were present and voted. In the case of election of
Directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of Directors;
provided, however, that a Director may be elected at any time to fill a vacancy
on the Board of Directors that was not created by removal of a Director and
that has not been 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
5.
the corporate records. Any shareholder giving a written consent, or the
shareholder's proxy holders, 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 before
written consent of the number of shares required to authorize the proposed
action have been filed with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice to those shareholders entitled to vote of the corporation action
approved by the shareholders without a meeting. This notice shall be given in
the manner specified in Section 2.5 of this Article II. In the case of approval
of (i) contracts or financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a reorganization of
the corporation, pursuant to Section 1201 of that Code, and (iv) a distribution
in dissolution other than in accordance with the rights of the outstanding
preferred shares, pursuant to Section 2007 of that Code, the notice shall be
given at least ten (10) days before the consummation of any action authorized
by that approval, unless the consents of all shareholders entitled to vote have
been solicited in writing.
SECTION 2.11 RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING
CONSENT. For purposes of determining the shareholders entitled to notice of 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 sixty (60) nor less than ten (10) days before any such action
without a meeting, and in this event only shareholders of record 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 or the Articles of Incorporation.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned
meeting, but the Board of Directors shall fix a new record date if the meeting
is adjourned for more than forty-five (45) days from the date set for the
original meeting.
If the Board of Directors does not so fix a record date:
(a) the record date of 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
6.
which notice is given or, if notice is waived, at the close of business on the
business day next preceding the day 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 to that action, or the sixtieth (60th) day before the date of such
other action, whichever is later.
The record date for the other purpose shall be as provided in Section 8.1
of these Bylaws.
SECTION 2.12 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 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 or electronic 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 (i) revoked by the person executing it, before the vote pursuant
to that proxy, 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 that proxy is received by the
corporation before the vote pursuant to that proxy is counted; provided,
however, that no proxy shall be valid after the expiration of eleven (11)
months from the date of the proxy, unless otherwise provided in the proxy. The
dates contained on the forms of proxy presumptively determine the order of
execution, regardless of the postmark date(s) on the envelope(s) in which they
are mailed. The revocability of a proxy that stated on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f)
of the Corporations Code of California.
SECTION 2.13 INSPECTORS OF ELECTIONS. 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 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
7.
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
shareholder's proxy shall, appoint a person to fill that vacancy.
The inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each;
(b) the shares represented at the meeting;
(c) the authenticity, validity, and effect of proxies;
(d) the existence of a quorum;
(e) receive votes, ballots, or consents;
(f) hear and determine all challenges and questions, if any, arising
in connection with the right to vote;
(g) count and tabulate all votes or consents;
(h) determine when the polls shall close;
(i) determine the results; and,
(j) do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
SECTION 3.1 POWERS. Subject to the provisions of the California General
Corporation Code 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 corporation powers shall be exercised by or under the direction of the
Board of Directors (hereinafter "Board"). The Board may delegate the management
of the day-to-day operation of the business of the corporation to a management
company or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board.
SECTION 3.2 NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized
number of directors shall be two (2) until changed by a duly adopted amendment
to the Articles of Incorporation or by an amendment to this Bylaw adopted by the
vote or written consent of holders of a majority of the outstanding shares
entitled to vote.
No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
SECTION 3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall
be elected at each annual meeting of the
8.
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, except in the event of the death, resignation or removal of such
Director.
SECTION 3.4 REMOVAL. The entire Board or any individual Director may be
removed from office without cause by the affirmative vote of a majority of the
outstanding shares entitled to vote on such removal; provided, however, that
unless the entire Board is removed, no individual Director may be removed when
the votes cast against such Director's removal, or not consenting in writing to
such removal, would be sufficient to elect that Director if voted cumulatively
at an election at which the same total number of votes cast were cast (or, if
such action is taken by written consent, all shares entitled to vote were
voted) and the entire number of Directors authorized at the time of such
Director's most recent election were then being elected.
SECTION 3.5 RESIGNATION AND VACANCIES. Any Director may resign effective
upon giving oral or 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 may elect a successor to take
office when the resignation becomes effective.
Vacancies in the Board of Directors may be filled by a majority of the
remaining Directors, or if the number of Directors then in office is less than
a quorum by (i) unanimous written consent of the Directors then in office, (ii)
affirmative vote of a majority of the remaining Directors then in office at a
meeting held pursuant to notice or waivers of notice, or (iii) a sole remaining
Director; except that a vacancy created by the removal of a Director by the
vote or written consent of the shareholders or by court order may be filled
only by the affirmative vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present (which shares
voting affirmatively also constitute at least a majority of the required
quorum), or by the unanimous written consent of holders of all shares entitled
to vote thereon. 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
(i) in the event of the death, resignation, or removal of any Director, (ii) 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, (iii) if the authorized number of Directors is increased, or (iv) if
the shareholders fail, at any meeting of shareholders at
9.
which any Directors are elected, to elect the full authorized number of
Directors to be elected 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 thereon. A
Director may not be elected by written consent to fill a vacancy created by
removal except by unanimous consent of all shares entitled to vote for the
election of Directors.
SECTION 3.6 PLACE OF MEETING AND MEETING BY TELEPHONE. Regular 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 a designation, regular meetings shall be held at
the principal executive office of the corporation. Special meetings of the
Board may 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 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. Participation in a meeting pursuant to this
paragraph constitutes presence in person at such meeting.
SECTION 3.7 REGULAR MEETING. Regular meetings of the Board of Directors
may be held without notice if the time and place of such meetings are fixed by
the Board of Directors.
SECTION 3.8 SPECIAL MEETINGS; NOTICE. Subject to the provisions of the
following paragraph, special meetings of the Board of Directors for any purpose
or purposes may be called at any time by the Chairman of the Board, the
President, any Vice President, the Secretary or any two (2) Directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each Director or sent by first-class mail,
telegram, telecopier or facsimile transmission, charges prepaid, addressed to
each Director at that Director's address as it is shown on the records of the
corporation. If the notice is mailed, it shall be deposited in the United
States mail at least four (4) days before the time of the holding of the
meeting. If the notice is delivered personally or by telephone or by
telecopier, facsimile or telegram, it shall be delivered personally or by
telephone, facsimile transmission, telecopier or to the telegraph company at
least forty-eight (48) hours before the time of the holding of the meeting. Any
oral notice given personally or by telephone may be communicated either to the
10.
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.
Section 3.9 QUORUM. A majority of the authorized number of Directors
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.11 of this Article III. 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 (as to
approval of contracts or transactions in which a Director has a direct or
indirect material financial interest), Section 311 of that Code (as to
appointment of committees), and Section 317(e) of that Code (as to
indemnification of Directors), the Articles of Incorporation, and other
applicable law. 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 that
meeting.
Section 3.10 WAIVER OF NOTICE. Notice of a meeting need not be given
to any Director who signs a waiver of notice or a consent to holding the meeting
or an approval of the minutes thereof, whether before or after the meeting, or
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director. 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.
Section 3.11 ADJOURNMENT. A majority of the Directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 3.12 NOTICE OF ADJOURNMENT. If the meeting is adjourned for
more than twenty-four (24) hours, notice of any adjournment to another time and
place shall be given prior to the time of the adjourned meeting to the Directors
who were not present at the time of the adjournment.
Section 3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action required or permitted to be taken by the Board of Directors may be taken
without meeting, if all members of the Board shall individually or collectively
consent in writing to that action. Such action by written consent 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.
11.
Section 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 the Board of
Directors. This Section 3.14 shall not 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 those services.
ARTICLE IV
COMMITTEES
Section 4.1 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution adopted by a majority of the authorized number of Directors,
designate one or more committees, each consisting of two (2) or more Directors,
to serve at the pleasure of 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. 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 shall have authority to act in the manner and
to the extent provided in the resolution of the Board and may have all the
authority of the Board, except with respect to:
(a) The approval of any action which, under the 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, 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.
12.
Section 4.2 MEETINGS AND ACTIONS OF COMMITTEES. Meeting and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these Bylaws, Section 3.5 (place of meetings), 3.7
(regular meeting), 3.8 (special meeting 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 the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee, that special meetings of committees may also be called by
resolution of the Board; and, that notice of special meeting(s) 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 V
OFFICERS
Section 5.1 OFFICERS. The officers of the corporation shall be a President,
a Secretary, and a Chief Financial Officer. The corporation may also have, at
the discretion of the Chairman of the Board or the President, 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 of this Article V. Any number of
offices may be held by the same person.
Section 5.2 APPOINTMENT OF OFFICERS. The officers of the corporation, and
such officers as may be appointed in accordance with the provisions of Section
5.3 or Section 5.5 of this Article V, shall be chosen by the Chairman of the
Board or the President, subject to the rights, if any, of an officer under any
contract of employment.
Section 5.3 SUBORDINATE OFFICERS. The Chairman of the Board or the
President may appoint, such other officers as the business of the corporation
may require, each of whom shall hold office for such period, have such authority
and perform such duties as are provided in these Bylaws or as the Chairman of
the Board or the President may from time to time determine.
Section 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 Chairman of the Board or the President.
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Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
SECTION 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 appointment to that office.
SECTION 5.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be 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 by the Board of Directors or prescribed by these Bylaws.
If there is no President, the Chairman of the Board shall also be the Chief
Executive Officer of the corporation and shall have the powers and duties
prescribed in Section 5.7 of this Article V.
SECTION 5.7 PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and the officers of
the corporation. The President shall preside at all meetings of the shareholders
and, in the absence of the Chairman of the Board, or if there be none, at all
meetings of the Board of Directors. The President 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 by these Bylaws.
SECTION 5.8 VICE PRESIDENT. 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, and the President, or the Chairman of the
Board.
SECTION 5.9 SECRETARY. The Secretary shall keep or cause to be kept, at
the principal executive office of the corporation or such other place as the
Board of Directors may direct, a book of minutes of all meetings and actions of
Directors, committees of
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Directors, and shareholders. The minutes shall show the time and place of
meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at Directors' meetings or 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 of the corporation, or at the office of the corporation's transfer agent
or registrar, as determined by the resolution of the Board of Directors, a
share register or 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 evidencing such shares, 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 these Bylaws or the
law to be given. The Secretary 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 these Bylaws.
SECTION 5.10 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 at all reasonable times be open to inspection by any and all
Directors.
The Chief Financial Officer shall deposit all monies and other valuables
in the name and to the credit of the corporation with such depositaries 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 or her transactions as Chief Financial Officer 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 or
these Bylaws.
SECTION 5.11 COMPENSATION OF OFFICERS. An officer may, on resolution of
the Board of Directors, be compensated for services to the corporation.
However, if any of the compensation paid to an officer or expenses paid for an
officer, or any reimbursement of expenses paid to an officer shall be
determined not to be allowable deductions from the gross income of the
corporation, and such determination shall be acceded to by the corporation, or
such determinations shall be made final by the appropriate state or
15.
federal taxing authority or final judgment of a court of competent
jurisdiction, and no appeal shall be taken therefrom, or the applicable period
for filing notice of appeal shall have expired, then, in such event, the
officer shall repay to the corporation the amount of such disallowed
compensation or expenses, or both. Said repayment may not be waived by the
corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
SECTION 6.1 INDEMNIFICATION OF DIRECTORS. The corporation shall, to the
maximum extent and in the manner permitted by the Corporations Code of
California, indemnify each of its Directors against expenses [as defined in
section 317(a) of that code], judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding [as defined
in Section 317(a) of that Code], arising by reason of the fact that such person
is or was a Director of the corporation. For purposes of this Article VI, a
"Director" of the corporation includes any person (i) who is or was a Director
of the corporation, (ii) who is or was serving at the request of the corporation
as a Director of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a Director of a corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
SECTION 6.2 INDEMNIFICATION OF OTHERS. The corporation shall have the
power, to the extent and in the manner permitted by the Corporations Code of
California, to indemnify each of its employees, officers, and agents (other than
Directors) against expenses [as defined in Section 317(a) of that Code],
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding [as defined in Section 317(a) of that
Code], arising by reason of the fact that such person is or was an employee,
officer, or agent of the corporation. For purposes of this Article VI, an
"employee" or "officer" or "agent" of the corporation (other than a Director)
includes any person (i) who is or was an employee, officer, or agent of the
corporation, (ii) who is or was serving at the request of the corporation as an
employee, officer, or agent of another foreign or domestic corporation
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee, officer, or agent of a corporation which was a predecessor corporation
of the corporation or of another enterprise at the request of such predecessor
corporation.
SECTION 6.3 PAYMENT OF EXPENSES IN ADVANCE. Expenses and attorneys' fees
incurred in defending any civil or criminal action
16.
or proceeding for which indemnification is required pursuant to Section 6.1, or
if otherwise authorized by the Board of Directors, shall be paid by the
corporation in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of the indemnified party to repay
such amount if it shall ultimately be determined that the indemnified party is
not entitled to be indemnified as authorized in this Article VI.
SECTION 6.4 INDEMNITY NOT EXCLUSIVE. The indemnification provided by this
Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any Bylaw, agreement, vote of
shareholders or Directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office. The
rights to indemnity hereunder shall continue as to a person who has ceased to be
a Director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person.
SECTION 6.5 INSURANCE INDEMNIFICATION. The corporation shall have the power
to purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the corporation against any liability
asserted against or incurred by such person in such capacity or arising out of
that person's status as such, whether or not the corporation would have the
power to indemnify that person against such liability under the provisions of
this Article VI.
SECTION 6.6 CONFLICTS. No indemnification or advance shall be made under
this Article VI, except where such indemnification or advance is mandated by law
or the order, judgment or decree of any court of competent jurisdiction, and any
circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles of
Incorporation, these Bylaws, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged causes of the 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.
SECTION 6.7 RIGHT TO BRING SUIT. If a claim under this Article is not paid
in full by the corporation within 90 days after a written claim has been
received by the corporation (either because the claim is denied or because no
determination is made), the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled
17
to be paid the expense of prosecuting such claim. The corporation shall be
entitled to raise as a defense to any such action that the claimant has not met
the standards of conduct that make it permissible under the Code for the
corporation to indemnify the claimant for the claim. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or
its shareholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is permissible in the
circumstances because he or she has met the applicable standard of conduct, if
any, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its shareholders) that the claimant
has not met the applicable standard of conduct, shall be a defense to such
action or create a presumption for the purposes of such action that the
claimant has not met the applicable standard of conduct.
SECTION 6.8 INDEMNITY AGREEMENTS. The Board of Directors is authorized to
enter into a contract with any Director, officer, employee or agent of the
corporation, or any person who 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 enterprises, including employee
benefit plans, or any person who was a Director, officer, employee or agent of
a corporation or of another enterprise at the request of such predecessor
corporation, providing for indemnification rights equivalent to or, if the
Board of Directors so determines and to the extent permitted by applicable law,
greater than, those provided for in this Article VI.
SECTION 6.9 AMENDMENT, REPEAL OR MODIFICATION. Any amendment, repeal or
modification of any provision of this Article VI shall not adversely affect any
right or protection of a Director or agent of the corporation existing at the
time of such amendment, repeal or modification.
ARTICLE VII
RECORDS AND REPORTS
SECTION 7.1 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), 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.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting
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shares of the corporation may (i) inspect and copy the records of shareholders'
names, addresses and shareholdings during usual business hours with five (5)
days prior written demand on the corporation, and/or (ii) obtain from the
transfer agent of the corporation, on written demand and on the tender of such
transfer agent's usual charges for such list (the amount of which charges shall
be stated to the shareholder by the transfer agent upon request), 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
that list has been compiled or as of a date specified by the shareholder after
the date of demand. This list shall be made available to any such shareholder by
the transfer agent on or before the later of five (5) days after the demand is
received or the date specified in the demand as the date as of which the list is
to be compiled. The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate, at any time
during usual business hours upon written demand on the corporation, for a
purpose reasonably related to the holder's interests as a shareholder or as the
holder of a voting trust certificate. Any inspection and copy under this Section
7.1 may be made in person or by an agent or attorney of the shareholder or
holder of a voting trust certificate making the demand.
Section 7.2 MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall
keep at its principal executive office, or if it's principal executive office is
not in the State of California, at its principal business office in this state,
the original or a copy of these 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 this state,
the Secretary shall, upon the written request of any shareholder, furnish to
that shareholder a copy of these Bylaws as amended to date.
Section 7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The
accounting books and records and the minutes of proceedings of the shareholders
and the Board of Directors and any committee 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. The 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 interest as a
shareholder or as the holder of a voting trust certificate. The inspection by a
shareholder or holder of a voting trust certificate may be made in person or by
an agent or attorney,
19.
and shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
SECTION 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, domestic or foreign. This inspection by a Director may
be made in person or by an agent or attorney and the right of inspection
includes the right to copy and make extracts of documents.
SECTION 7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER. The annual report to
shareholders referred to in Section 1501 of the Corporations Code of California
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 consider appropriate.
SECTION 7.6 FINANCIAL STATEMENTS. If no annual report for the fiscal year
has been sent to shareholders, then the corporation shall, upon the written
request of any shareholder made more than one hundred twenty (120) days after
the close of such fiscal year, deliver or mail to the person making the request,
within thirty (30) days thereafter, a copy of a balance sheet as of the end of
such fiscal year and an income statement and statement of changes in financial
position for such fiscal year.
A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation may make a written
request to the corporation for an income statement of the then current fiscal
year ended more than thirty (30) days prior to the date of the request, and a
balance sheet of the corporation as of the end of that period. The statements
shall be delivered or mailed to the person making the request within thirty (30)
days after the receipt of the request. A copy of the statement shall be kept on
file in the principal office of the corporation for twelve (12) months and it
shall be exhibited at all reasonable times to any shareholder demanding an
examination of the statements or a copy shall be mailed to said shareholder. If
the corporation has not sent to the shareholders its annual report for the last
fiscal year, the statements referred to in the first paragraph of this Section
7.6 shall likewise be delivered or mailed to the shareholder or shareholders
within thirty (30) days after the request.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the
20
financial statements were prepared without audit from the books and records of
the corporation.
SECTION 7.7 ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation
shall, in each year, file with the Secretary of State of the State of
California, on the prescribed form, a statement setting forth the authorized
number of Directors, the names and complete business or residence addresses of
all incumbent Directors, the names and complete business or residence addresses
of the Chief Executive Officer, Secretary, and Chief Financial Officer, the
street address of its principal executive office or principal business office
in this state, and the general type of business constituting the principal
business activity of the corporation, together with a designation of the agent
of the corporation for the purpose of service of process, all in compliance
with Section 1502 of the Corporations Code of California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
SECTION 8.1 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 with
respect to notice or voting at a shareholders meeting or 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 sixty (60) days before any
such action. Only shareholders of record at the close of business on the record
date 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,
except as otherwise provided in the California Corporation Law or the Articles
of Incorporation.
If the Board of Directors does not so fix a record date, then the record
date for determining shareholder for any such purpose shall be at the close of
business on the date on which the Board adopts the applicable resolution or the
sixtieth (60th) day prior to the date of that action, whichever is later.
SECTION 8.2 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. From time to time,
the Board of Directors shall determine by resolution which person or persons
may sign or endorse all checks, drafts, other orders for payment of money,
notes or other evidences of indebtedness that are issued in the name of or
payable to the corporation, and only the persons so authorized shall sign or
endorse those instruments.
21.
Section 8.3 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; such authority may
be general or confined to specific instances. 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 any amount.
Section 8.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of
the Board, the President, any Vice President, the Chief Financial Officer, the
Secretary or Assistant Secretary of this corporation, or any other person
authorized by the Board of Directors, is authorized to vote, represent, and
exercise on behalf of this corporation all rights incident to any and all shares
of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
Section 8.5 CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the stock of the corporation shall be issued to each shareholder when
any of such shares are fully paid. The Board of Directors may authorize the
issuance of certificates for shares partly paid provided that these certificates
shall state the amount of the consideration to be paid for them and the amount
actually paid. 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 a
Vice President and by the Chief Financial Officer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, certifying the number of shares and the
class or series of shares owned by each 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
on a certificate has ceased to be that officer, transfer agent, or registrar
before that certificate is issued, it may be issued by the corporation with the
same effect as if that person were an officer, transfer agent, or registrar at
the date of issue.
Section 8.6 LOST CERTIFICATES. Except as provided in this Section 8.5, no
new certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation or its transfer
agent or registrar and cancelled at the same time. The Board of Directors may,
in case any share certificate or certificates for any other security is lost,
stolen, or destroyed (as evidenced by a written affidavit or affirmation of such
fact), authorize the issuance of replacement certificate(s) on such terms and
conditions as the Board may
22.
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
the certificate(s) or the issuance of the replacement certificate(s).
SECTION 8.7 CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
the Corporations Code of California shall govern the construction of these
Bylaws. Without limiting the generality of these provisions, the singular
number includes the plural, the plural number includes the singular, and term
"person" includes both a corporation and a natural person.
SECTION 8.8 MANNER OF CONDUCT OF MEETINGS. All meetings held by the Board
of Directors, Shareholders, or committees designated by the Board from time to
time, shall be conducted in accordance with the provisions of Roberts Rules of
Order unless in conflict with these Bylaws.
ARTICLE IX
AMENDMENTS
SECTION 9.1 AMENDMENT BY SHAREHOLDERS. New Bylaws may be adopted or the
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 of the corporation 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.
SECTION 9.2 AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 9.1 of these Bylaws, Bylaws, other than a
Bylaw or an amendment of a Bylaws changing the authorized number of Directors
(except to fix the authorized number of Directors pursuant to a Bylaw providing
for a variable number of Directors), may be adopted, amended, or repealed by
the Board of Directors.
SECTION 9.3 RECORD OF AMENDMENTS. Whenever an amendment or new Bylaw is
adopted, it shall be copied in the book of minutes with the original Bylaws. If
any Bylaw is repealed, the fact of repeal, with the date of the meeting at
which the repeal was enacted or written consent was filed, shall be stated in
said book.
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ARTICLE X
INTERPRETATION
Reference in these bylaws to any provision of the Corporations Code of
California shall be deemed to include all amendments thereof.
CERTIFICATE OF CORPORATE SECRETARY
The undersigned hereby declares as follows: (1) that he is the corporate
Secretary of SAN JOSE ADVANTAGE HOMES, INC., a California corporation; (2) that
the foregoing Bylaws were duly accepted by a Resolution of the Board of
Directors of SAN JOSE ADVANTAGE HOMES, INC.
I declare under the penalty of perjury under the laws of the State of
California that the foregoing matters are true and correct.
EXECUTED this 12th day of October 1995, in Sunnyvale, California.
/s/ Peter M. Sproul
-----------------------
PETER M. SPROUL
24.
B Y L A W S
OF
SOUTHERN SHOWCASE HOUSING, INC.
***********************************
ARTICLE I.
OFFICES
Section 1. Registered Office: The registered office of the Corporation
shall be 1001 West Fourth Street, Winston-Salem, Forsyth County,
North Carolina 27101.
Section 2. Principal Office: The principal office of the corporation shall
be located at 624 Guilford College Road, Suite C, Greensboro,
North Carolina 27409, or such other place as may be designated
by the Board of Directors.
Section 3. Other Offices: The corporation may have offices at such other
places, either within or without the State of North Carolina, as
the Board of Directors may from time to time determine, or as
the affairs of the corporation may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings: All meetings of shareholders shall be held
at the registered office of the corporation, or at such other
place, either within or without the State of North Carolina, as
shall be designated in the notice of the meeting or agreed on by
a majority of the shareholders entitled to vote thereat.
Section 2. Annual Meetings: The annual meeting of shareholders for the
election of Directors and the transaction of other business
shall be held in March of each year on any day except a
Saturday, Sunday or legal holiday in that month as determined by
the Board of Directors.
Section 3. Substitute Annual Meeting: If the annual meeting shall not be
held on the day designated by these bylaws, a substitute annual
meeting may be called in accordance with the provisions of
Section 4 of this Article. A meeting so called shall be desig-
Section 4. Special Meetings: Special meetings of the shareholders may be
called at any time by the President, Secretary or Board of
Directors of the corporation, or by any shareholder pursuant to
the written request of the holders of not less than one-tenth of
all the shares entitled to vote at the meeting.
Section 5. Notice of Meetings: Written or printed notice stating the time
and place of the meeting shall be delivered not less than ten nor
more than fifty days before the date thereof, either personally
or by mail, by or at the direction of the President, the
Secretary, or other person calling the meeting, to each
shareholder of record entitled to vote at such meeting.
In the case of an annual or substitute annual meeting, the notice
of meeting need not specifically state the business to be
transacted thereat unless it is a matter, other than election of
Directors, on which the vote of shareholders is expressly
required by the provisions of the North Carolina Business
Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for
which the meeting is called.
When a meeting is adjourned for thirty days or more, notice of
the adjourned meeting shall be given as in the case of an
original meeting. When a meeting is adjourned for less than
thirty days in any one adjournment, it is not necessary to give
any notice of the adjourned meeting other than by announcement at
the meeting at which the adjournment is taken.
Section 6. Voting Lists: At least ten days before each meeting of
shareholders, the Secretary of the corporation shall prepare an
alphabetical list of the shareholders entitled to vote at such
meeting, with the address of and number of shares held by each,
which list shall be kept on file at the registered office of the
corporation for a period of ten days prior to such meeting, and
shall be subject to inspection by any shareholder at any time
during the usual business hours. This list shall also be produced
and kept open at the time and place of the meeting and shall be
subject to inspection by any shareholder during the whole time
of the meeting.
Section 7. Quorum: The holders of a majority of the shares entitled to vote,
represented in person or by
2
proxy, shall constitute a quorum at meetings of shareholders. If
there is no quorum at the opening of a meeting of shareholders,
such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn; and, at any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the original
meeting.
The shareholders at a 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.
Section 8. Voting of Shares: Each outstanding share having voting rights shall
be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
Except in the election of Directors the vote of a majority of the
shares voted on any matter at a meeting of shareholders at which a
quorum is present shall be the act of the shareholders on the
matter, unless the vote of a greater number is required by law. In
the election of Directors those receiving the greatest number of
votes shall be deemed elected even though not receiving a majority.
Voting on all matters except the election of Directors shall be by
voice vote or by a show of hands unless the holders of one-tenth of
the shares represented at the meeting shall, prior to the voting on
any matter, demand a ballot vote on that particular matter.
Section 9. Informal Action by Shareholders: Any action which may be taken at a
meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be
signed by all of the persons who would be entitled to vote upon
such action at a meeting, and filed with the Secretary of the
corporation to be kept in the Corporate Minute Book.
Section 10. Proxies: At all meetings of shareholders, shares may be voted
either in person or by one or more agents authorized by a written
proxy executed by the shareholder or his duly authorized
attorney-in-fact. A telegram, cablegram, wireless message or
photogram appearing to have been transmitted by a shareholder, or a
photographic, photostatic or
3
equivalent reproduction of a writing appointing one or more
agents shall be deemed a written proxy within the meaning of this
section.
ARTICLE III.
DIRECTORS
Section 1. GENERAL POWERS: The business and affairs of the Corporation
shall be managed by the Board of Directors.
Section 2. NUMBER, TERM AND QUALIFICATIONS: The number of Directors
constituting the Board of Directors shall not be fewer than
three, except that if and so long as all of the shares of the
corporation are owned of record by either one or two
shareholders, the number of Directors may be fewer than three but
not fewer than the number of such shareholders. The authorized
number of Directors, within the limits above specified, shall be
determined by the affirmative vote of a majority of the whole
Board given at a regular or special meeting of the Board of
Directors; provided that if the number so determined is to be
increased, or decreased, notice of the proposed increase or
decrease shall be included in the notice of such meeting or all
of the Directors in office at the time shall be present at such
meeting or those not present at any time shall waive notice
thereof in writing; and provided, further, that the number of
Directors which shall constitute the whole Board shall not be
less than three nor shall it be reduced to a number less than the
number of Directors then in office unless such reduction shall
become effective only at and after the next ensuing meeting of
shareholders for the election of Directors. Each Director shall
hold office for a period of one year or until his death,
resignation, retirement, removal, disqualification, and until
such successor is elected and installed. Directors need not be
residents of the State of North Carolina or shareholders of the
corporation.
Section 3. ELECTION OF DIRECTORS: Except as provided in Section 5 of this
Article, the Directors shall be elected at the annual meeting of
shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. If any shareholder so
demands, election of Directors shall be by ballot.
4
Section 4. REMOVAL: Directors may be removed from office with or without
cause by a vote of shareholders holding a majority of the shares
entitled to vote at an election of Directors. However, unless the
entire Board is removed, an individual Director may not be
removed if the number of shares voting against the removal would
be sufficient to elect a Director if such shares were voted
cumulatively at an annual election. If any Directors are so
removed, new Directors may be elected at the same meeting.
Section 5. VACANCIES: A vacancy occurring in the Board of Directors may be
filled by a majority of the remaining Directors though less than
a quorum, or by the sole remaining Director; but a vacancy
created by an increase in the authorized number of Directors
shall be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose. The shareholders
may elect a Director at any time to fill any vacancy not filled
by the Directors.
Section 6. COMPENSATION: The Board of Directors may compensate Directors for
their services as such and may provide for the payment of all
expenses incurred by the Directors in attending regular and
special meetings of the Board.
ARTICLE IV.
EXECUTIVE AND OTHER COMMITTEES
Section 1. APPOINTMENT: The Board of Directors, by resolution adopted by a
majority of the number of Directors then in office, may designate
from among its members an Executive Committee or one or more
other committees, each consisting of two or more Directors. The
designation of any such committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or
any member thereof, of any responsibility or liability imposed
upon it or him by law.
Section 2. AUTHORITY: Any such committee shall have and exercise all
authority of the Board of Directors in the management of the
corporation except to the extent, if any, that such authority
shall be limited by the resolution appointing such committee and
except also to the extent limited by law.
Section 3. TENURE AND QUALIFICATIONS: Each member of any such committee
shall hold office until the next regular
5
annual meeting of the Board of Directors following his
designation and until his successor is designated as a member of
any such committee and is elected and qualified.
Section 4. Meetings: Regular meetings of any such committee may be held
without notice at such time and place as such committee may fix
from time to time by resolution. Special meetings of any such
committee may be called by any member thereof upon not less than
one day's notice stating the place, date and hour of such
meeting, which notice may be written or oral, and if mailed,
shall be deemed to be delivered when deposited in the United
States mail addressed to any member of the Executive Committee
at his business address. Any member of the Executive Committee
may waive notice of any meeting and no notice of any meeting
need be given to any member thereof to attend in person. The
notice of a meeting of the Executive Committee need not state
the business proposed to be transacted at the meeting.
Section 5. Quorum: A majority of the members of any such committee shall
constitute a quorum for the transaction of business at any
meeting thereof, and actions of such committee must be
authorized by the affirmative vote of a majority of the members
present at the meeting at which a quorum is present.
Section 6. Informal Action: Action taken by a majority of the members of
any such committee without meeting is nevertheless action of
such committee if written consent to the action in question is
signed by all of the members of such committee and filed with
the minutes of the proceedings of the committee, whether done
before or after the actions so taken.
Section 7. Removal: Any member of any such committee may be removed at any
time with or without cause by resolution adopted by a majority
of the Board of Directors.
Section 8. Vacancies: Any vacancy in any such committee may be filled by
resolution adopted by a majority of the Board of Directors.
Section 9. Procedure: Any such committee shall elect a presiding officer
from among its members and may fix its own rules of procedure
which shall not be inconsistent with these bylaws. It shall keep
regular minutes of its proceedings and report the same
6
to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
Section 10. Meeting by Telephone: Any one or more members of any such
committee may participate in a meeting of the committee by means of
a conference telephone or similar communications device which
allows all persons participating in the meeting to hear each other
and such participation in a meeting shall be deemed presence in
person at such meeting.
ARTICLE V.
MEETINGS OF DIRECTORS
Section 1. Regular Meetings: A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the
annual meeting of the shareholders. In addition, the Board of
Directors may provide, by resolution, the time and place, either
within or without the State of North Carolina, for the holding of
additional regular meetings.
Section 2. Special Meetings: Special meetings of the Board of Directors may
be called by or at the request of the President or any two
Directors. Such meetings may be held within or without the State of
North Carolina.
Section 3. Notice of Meetings: Regular meetings of the Board of Directors may
be held without notice.
The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice
thereof by any usual means of communication. Such notice need not
specify the purpose for which the meeting is called.
Attendance by a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting
for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called.
Section 4. Quorum: A majority of the Directors fixed by these bylaws shall
constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
7
Section 5. Manner of Acting: Except as otherwise provided in this section, the
act of the majority of the Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 6. Informal Action by Directors: Action taken by the required majority
of the Directors without a meeting is nevertheless Board action if
written consent to the action in question is signed by all the
Directors and filed with the minutes of the proceedings of the Board,
whether done before or after the action so taken.
Section 7. Meeting by Telephone: Any one or more Directors may participate in
a meeting of the Board of Directors by means of a conference
telephone or similar communications device which allows all persons
participating in the meeting to hear each other and such
participation in a meeting shall be deemed presence in person at such
meeting.
ARTICLE VI.
INDEMNIFICATION
Section 1. Expenses and Liabilities: The corporation shall have the power to
indemnify any present or former Director, officer, employee or agent
or any person who has served or is serving in such capacity at the
request of the corporation in any other corporation, partnership,
joint venture, trust or other enterprise or as a trustee or
administrator under an employee benefit plan, with respect to any
liability or litigation expense, including reasonable attorneys'
fees, incurred by any such person to the extent and upon the terms
and conditions provided by law.
To the extent and upon the terms and conditions provided by law, the
corporation shall indemnify any and all of its officers and Directors
against liability and litigation expense, including reasonable
attorneys' fees, arising out of their status as such or their
activities in any of the foregoing capacities (excluding, however,
liability or litigation expense which any of the foregoing may incur
on account of his activities which were at the time taken known or
believed by him to be clearly in conflict with the best interests of
the corporation), and said officers and Directors shall be entitled
to recover from the corporation, and the corporation shall pay, all
reasonable costs,
8
expenses, and attorneys' fees in connection with the enforcement
of rights to indemnification granted herein. Any person who at
any time after the adoption of this bylaw serves or has served in
either of the aforesaid capacities for or on behalf of the
corporation shall be deemed to be doing or to have done so in
reliance upon and as consideration for the right of
indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and shall
not be exclusive of any other right to which such person may be
entitled apart from the provisions of this bylaw.
Section 2. Advance Payment of Expenses: Expenses incurred by a Director,
officer, employee, or agent in defending a civil or criminal
action, suit, or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the
specific case or as authorized or required under any charter or
bylaw provision or by any applicable resolution or contract upon
receipt of an undertaking by or on behalf of the Director,
officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by
the corporation against such expenses.
Notwithstanding the provisions of the preceding paragraph, the
corporation shall, upon receipt of an undertaking by or on behalf
of the Director or officer involved to repay the expenses
described in Article VI, Section 1, Paragraph 2 unless it shall
ultimately be determined that he is entitled to be indemnified by
the corporation against such expenses, pay expenses incurred by
such Director or officer in defending a civil or criminal action,
suit or proceeding in advance of the final disposition of such
action, suit or proceeding.
Section 3. Insurance: The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a
Director, officer, employee or 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 as a trustee or
administrator under an employee benefit plan against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as
9
such, whether or not the corporation would have the power to
indemnify him against such liability.
ARTICLE VII.
OFFICERS
Section 1. Number: The officers of the corporation may consist of a Chairman
of the Board, a President, a Secretary, a Treasurer, and such Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other
officers as the Board of Directors may from time to time elect to
the extent provided or allowable by the laws of the state of North
Carolina. Any two or more offices may be held by the same person,
except the offices of President and Secretary.
Section 2. Election and Term: The officers of the corporation shall be
selected by the Board of Directors. Such elections may be held at
any regular or special meeting of the Board. Each officer shall
hold office for a period of one year or until his death,
resignation, retirement, removal, disqualification, or his
successor is elected and qualifies.
Section 3. Removal: Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board with or without cause; but
such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
Section 4. Chairman of the Board: The Chairman of the Board shall preside at
all meetings of the Board of Directors at which he shall be
present, and shall have such other powers and duties as he shall be
called upon to perform by the Board of Directors.
Section 5. President: The President shall be the principal executive officer
of the corporation and, subject to the control of the Board of
Directors, shall supervise and control the management of the
corporation in accordance with these bylaws.
He shall, when present, preside at all meetings of shareholders. He
shall sign, with any other proper officer, certificates for shares
of the corporation and any deeds, mortgages, bonds, contracts, or
other instruments which may be lawfully executed on behalf of the
corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution
10
thereof shall be delegated by the Board of Directors to some
other officer or agent; and, in general, he shall perform all
duties incident to the office of President and such other duties
as may be prescribed by the Board of Directors from time to time.
Section 6. Vice Presidents: The Vice Presidents in the order of their
election, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the President, perform the
duties and exercise the powers of that office. In addition, they
shall perform such other duties and have such other powers as the
Board of Directors shall prescribe.
Section 7. Secretary: The Secretary shall keep a correct record of all the
proceedings of the meetings of the shareholders and Directors. He
shall attend to the giving of notices, have custody of the
corporate seal, and affix it to all instruments required to be
executed under seal as authorized by the Board of Directors. He
shall perform such other duties as are incident to the office of
Secretary, and shall have such other powers and duties as may be
conferred upon him by the Board of Directors.
Section 8. Treasurer: The Treasurer shall have charge of all the moneys and
securities belonging to the corporation. He shall deposit said
property with such banks as the Board of Directors shall
designate and in the name of the corporation. He shall keep a
record of all receipts and disbursements, and shall have charge
of all records of the corporation relating to its finances. He
shall perform such other duties as are incident to the office of
Treasurer, and shall have such other powers and duties as may be
conferred upon him by the Board of Directors.
Section 9. Assistant Secretaries and Treasurers: The Assistant Secretaries
and Assistant Treasurers shall, in the absence or disability of
the Secretary or the Treasurer, respectively, perform the duties
and exercise the powers of those offices, and they shall, in
general, perform such other duties as shall be assigned to them
by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
Section 10. Bonds: The Board of Directors may by resolution require any or
all officers, agents and employees of the corporation to give
bond to the corporation,
11
with sufficient sureties, conditioned on the faithful performance
of the duties of their respective offices or positions, and to
comply with such other conditions as may from time to time be
required by the Board of Directors.
Section 11. Vacancies: A vacancy in any office because of the death,
resignation, removal, disqualification, or otherwise, may be
filled by the Board of Directors for the unexpired portion of the
term.
ARTICLE VIII.
CONTRACTS, CHECKS AND DEPOSITS
Section 1. Contracts: The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute
and deliver any instrument on behalf of the corporation and such
authority may be general or confined to specific instances.
Section 2. Checks and Drafts: All checks, drafts or other orders for the
payment of money issued in the name of the corporation shall be
signed by such officer or officers, agent or agents, of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 3. Deposits: All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the
corporation in such depositories as the Board of Directors shall
direct.
ARTICLE IX.
CERTIFICATES FOR SHARES AND TRANSFER THEREOF
Section 1. Certificates for Shares: Certificates representing shares of the
corporation shall be issued, in such form as the Board of
Directors shall determine, to every shareholder for the fully
paid shares owned by him. These certificates shall be signed by
the President or any Vice President, and the Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer. They shall be
consecutively numbered or otherwise identified; and the name and
address of the persons to whom they are issued, with the number
of shares and date of issue, shall be entered on the stock
transfer books of the corporation.
12
Section 2. TRANSFER OF SHARES: Transfer of shares shall be made on the stock
transfer books of the corporation only upon surrender of the
certificates for the shares sought to be transferred by the
record holder thereof or by his duly authorized agent, transferee
or legal representative. All certificates surrendered for
transfer shall be canceled before new certificates for the
transferred shares shall be issued.
Section 3. CLOSING TRANSFER BOOKS AND FIXING RECORD DATE: For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled
to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any
case, fifty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice or to
vote at a meeting of shareholders, such books shall be closed for
at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of shareholders, such record date in any case
to be not more than fifty days and, in case of a meeting of
shareholders, not less than ten days immediately preceding the
date on which the particular action, requiring such determination
of shareholders, is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or
the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders.
Section 4. LOST CERTIFICATES: The Board of Directors may authorize the
issuance of a new certificate in place of a certificate claimed
to have been lost or destroyed, upon receipt of an affidavit of
such fact from the person claiming the loss or destruction. When
authorizing such issuance of a new certificate, the Board may
require the claimant to give the corporation a bond in said sum
as it may direct
13
to indemnify the corporation against loss from any claim with
respect to the certificate claimed to have been lost or
destroyed; or the Board may, by resolution reciting that the
circumstances justify such action, authorize the issuance of a
new certificate without requiring such a bond.
ARTICLE X.
GENERAL PROVISIONS
Section 1. Dividends: The Board of Directors may from time to time
declare, and the corporation may pay, dividends on its
outstanding shares in the manner and upon the terms and
conditions provided by law and by its charter.
Section 2. Seal: The seal shall be in the form of a circle with the name
of the corporation and N.C. on the circumference and the word
"SEAL" in the center. Such seal may be an impression or stamp
and may be used by the officers of the corporation by causing it
or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 3. Waiver of Notice: Whenever any notice is required to be given
to any shareholder or Director under the provisions of the North
Carolina Business Corporation Act or under the provisions of the
charter or bylaws of this corporation, a waiver thereof in
writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be
equivalent to the giving of such notice.
Section 4. Fiscal Year: The fiscal year of the corporation shall be a year
ending December 31.
Section 5. Amendments: Except as otherwise provided herein, these bylaws
may be amended or repealed and new bylaws may be adopted by the
affirmative vote of a majority of the Directors then holding
office at any regular or special meeting of the Board of
Directors.
The Board of Directors shall have no power to adopt a bylaw: (1)
requiring more than a majority of the voting shares for a quorum
at a meeting of shareholders or more than a majority of the
votes cast to constitute action of the shareholders, except
where higher percentages are required by law; and (2) providing
for the management of the corporation
14
other than by the Board of Directors or a committee thereof.
No bylaw adopted or amended by the shareholders shall be altered
or repealed by the Board of Directors.
No alteration, amendment or rescission of a bylaw shall be voted
upon unless notice thereof has been given in the notice of the
meeting or unless all of the Directors of the corporation execute
a written waiver of notice stating that action upon the bylaws is
to be taken at the meeting, and the original of such waiver shall
be recorded in the Corporate Minute Book.
15
BYLAWS OF
WHITWORTH MANAGEMENT, INC.
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Reno, County of
Washoe, State of Nevada.
Section 2. The corporation may also have offices at such other places as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All annual meetings of the stockholders shall be at the call of
the Directors. Special meetings of the stockholders may be held at such place
as shall be stated in the notice of the meeting, or in a duly executed waiver
of notice thereof.
Section 2. Special meetings of the stockholders for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called by the president, and shall be called by the
president or secretary at the request in writing of stockholders owning a
majority of the entire stock of the corporation issued and outstanding, and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 3. Written notice of the annual meeting and of all special
meetings of the stockholders, signed by the president or a vice president, or
the secretary or an assistant secretary, stating the purpose or purposes for
which the meeting is called and the time when and the place where it is to be
held shall either be delivered personally or shall be mailed to each
stockholder of record entitled to vote thereat not less than ten nor more than
sixty days prior to the meeting, and if mailed it shall be directed to any such
stockholder at his address as it appears on the records of the corporation.
Section 4. Business transacted at all special meetings shall be confined
to the objects stated in the call.
Section 5. The holders of a majority of the stock issued and outstanding,
and entitled to vote thereat, present in person or represented by proxy, shall
be requisite and shall constitute
a quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute, by the Articles of Incorporation or by
these Bylaws. If, however, such quorum shall not be present or represented by
proxy, at any meeting of the stockholders, the stockholders entitle to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 6. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the Articles of Incorporation or of these Bylaws, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 7. At each meeting of the stockholders, every stockholder having
the right to vote shall be entitled to vote in person, or by proxy appointed by
an instrument in writing subscribed by such stockholder or by his duly
authorized attorney. Each stockholder shall have one vote for each share of
stock having voting power, registered in his name on the books of the
corporation on the date of closing the books of the corporation against
transfers of stock or on the record date fixed for the determination of
stockholders entitled to vote at such meeting or, if the books be not closed or
a record date fixed, then on the date of such meeting. All questions shall be
decided by a plurality vote.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole board
shall be one. The number of directors may from time to time be increased to not
more than nine or decreased to not less than one by amending this section of
the Bylaws. Directors need not be stockholders. They shall be elected at the
annual meeting of the stockholders, and each director shall be elected to serve
until his successor shall be elected and shall qualify.
Section 2. The directors may hold their meetings and have one or more
offices inside or outside Nevada at such places as they may from time to time
determine. The original or duplicate
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stock ledger or a statement setting out the name and address of the custodian
thereof shall be kept at the principal office in Nevada.
Section 3. Vacancies in the Board of Directors may be filled by a
majority vote of the remaining directors, though less than a quorum, and each
director so elected shall hold office for the unexpired term in respect to
which such vacancy occurred or until the next annual election of directors.
Section 4. The property and business of the corporation shall be managed
by its Board of Directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the Articles
of Incorporation or by these Bylaws directed or required to be exercised or
done by the stockbrokers.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The first meeting of each newly elected Board shall be held at
such time and place either within or without the State of Nevada, as shall be
fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order to
legally constitute the meeting, provided a quorum shall be present or they may
meet at such place and time as shall be fixed by the consent in writing of all
the directors.
Section 6. Regular meetings of the Board of Directors may be held without
notice at such time and place either within or without the State of Nevada as
shall from time to time be determined by the Board.
Section 7. Special meetings of the Board of Directors may be called by
the president on three days notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written consent of two
directors.
Section 8. A majority of the directors at a meeting duly assembled shall
be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Articles of
Incorporation or by these Bylaws. Any action of a majority, although not at a
regularly called meeting, and the record thereof, if assented to in writing by
all of the other members of the board, shall be as valid and effective in all
respects as if
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passed by the board in regular meeting. The Directors may act in lieu of a
meeting by written resolutions.
COMMITTEES OF DIRECTORS
Section 9. The Board of Directors may, by resolution or resolutions passed
by a majority of the whole board, designate one or more committees, each
committee to consist of two or more of the directors of the corporation, which,
to the extent provided in said resolution or resolutions, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the corporation, and may have power to authorize the seal of the
corporation to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors.
Section 10. The committees shall keep regular minutes of their proceedings
and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 11. Directors, as such shall not receive any stated salary for
their services, but by resolution of the board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special
meeting of the board; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 12. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 13. Any director may be removed from office by the vote or written
consent of stockholders representing not less than two-thirds of the issued and
outstanding capital stock having voting power, and his successor may be elected
at the same meeting. No director shall be removed from office except upon the
vote or written consent of stockholders owing sufficient shares to have
prevented his election to office in the first instance.
ARTICLE IV
NOTICES
Section 1. Whenever under the provisions of the statutes or of the Articles
of Incorporation or of these Bylaws, notice is required to be given to any
director or stockholder, it shall not
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be construed to mean personal notice, but such notice may be given in writing,
by mail, addressed to such director or stockholder at such address as appears
on the books of the corporation, and such notice shall be deemed to be given at
the time when the same shall be thus mailed.
Section 2. Whenever all parties entitled to vote at any meeting, whether
of directors or stockholders, consent, either by a writing on the records of
the meeting or filed with the secretary, or by presence at such meeting and
oral consent entered on the minutes, or by taking part in the deliberations at
such meeting without objection, the actions taken at such meeting shall be as
valid as if had at a meeting regularly called and noticed, and at such meeting
any business may be transacted which is not excepted from the written consent
or to the consideration of which no objection for want of notice is made at the
time, and if any meeting be irregular for want of notice or such consent,
provided a quorum was present at such meeting, the proceedings of such meeting
may be ratified and approved and rendered valid and the irregularity or defect
therein waived by a writing signed by all parties having the right to vote
thereat. Such consent or approval, if given by stockholders, may be by proxy or
attorney, but all such proxies and powers of attorney must be in writing.
Section 3. Whenever any notice whatsoever is required to be given under
the provisions of the statute, of the Articles of Incorporation or of these
Bylaws, a waiver thereof in writing signed by the person entitled to said
notice either before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
directors and shall be a president, a vice president, a secretary, and a
treasurer. Any two offices, except the offices of president and vice president,
may be held by the same person.
Section 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose a president from its members, and shall
choose a vice president, a secretary and a treasurer, none of whom need be a
member of the board.
Section 3. The board may appoint additional vice presidents, and
assistant secretaries and assistant treasurers and such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such
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powers and perform such duties as shall be determined from time to time by the
board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board by
the affirmative vote of a majority of the whole board of directors. If the
office of any officer becomes vacant for any reason, the vacancy shall be
filled by the Board of Directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; he shall preside at all meetings of the stockholders and
directors, shall be ex officio a member of all standing committees, shall have
general and active management of the business of the corporation and shall see
that all orders and resolutions of the board are carried into effect.
Section 7. He shall, execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation.
VICE PRESIDENT
Section 8. The vice president shall, in the absence or disability of the
president, perform the duties and exercise the powers of president, and shall
perform such other duties as the Board of Directors shall prescribe.
THE SECRETARY
Section 9. The secretary shall attend all sessions of the board and all
meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose, and shall perform like duties
for the standing [ILLEGIBLE COPY], notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or president,
under whose supervision he shall be. He shall keep in safe custody the
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seal of the corporation, and when authorized by the Board of Directors, affix
the same to any instrument requiring a seal, and when so affixed, it shall be
attested by his signature or by the signature of the treasurer or an assistant
secretary.
THE TREASURER
Section 10. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
Section 11. He shall disburse the funds of the corporation as may be
ordered by the board, taking proper vouchers for such disbursements, and shall
render to the president and directors, at the regular meetings of the board, or
whenever they may require it, an account of all his transactions as treasurer
and of the financial condition of the corporation.
Section 12. If required by the Board of Directors, he shall give the
corporation a bond in such sum, and with such surety or sureties as shall be
satisfactory to the board, for the faithful performance of the duties of his
office, and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the corporation.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Certificates of stock of the corporation shall be in such form
not inconsistent with the Articles of Incorporation as shall be approved by the
Board of Directors, shall be issued under the seal of the corporation and shall
be numbered and shall be entered in the books of the corporation as they are
issued. They shall exhibit the holder's name and the number of shares owned by
him and shall be signed by the president or vice president and the secretary or
an assistant secretary or the treasurer or an assistant treasurer. If any stock
certificate is countersigned or otherwise authenticated by a transfer agent or
transfer clerk and a registrar, a facsimile of the signatures of the said
officers may be printed or lithographed upon such certificates and the stock
certificates shall set forth the designations, preferences and relative,
participating, optional or other special rights of the various classes
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of stock or series thereof and the qualifications, limitations or restrictions
of such rights.
TRANSFERS OF STOCK
Section 2. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate of stock duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the older certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 3. The directors may prescribe a period not exceeding forty days
prior to any meeting of the stockholders or prior to the day appointed for the
payment of dividends during which no transfer of stock on the books of the
corporation may be made, or may fix a day not more than forty days prior to the
holding of any such meeting or the date for the payment of any such dividend as
the day as of which stockholders entitled to notice of and to vote at such
meeting and entitled to receive payment of such dividend shall be determined;
and only stockholders of record on such day shall be entitled to notice or to
vote at such meeting or to receive payment of such dividend.
REGISTERED STOCKHOLDERS
Section 4. The corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder-in-fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, except as expressly provided by the laws of
Nevada.
LOST CERTIFICATES
Section 5. The Board of Directors may direct a new certificate or
certificates of stock to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion,
as a condition precedent to the issuance thereof,
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require the owner of such lost or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the Articles of Incorporation, if any relate thereto, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Articles of Incorporation.
Section 2. Before payment of any dividend or making any distribution of
profits, there may be set aside out of the funds of the corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interests of the corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers as the Board of Directors may from
time to time designate.
FISCAL YEAR
Section 4. The fiscal year shall begin the first day of July of each year.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the date of its incorporation and the words "Corporate Seal,
Nevada."
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INDEMNIFICATION
Section 6. The corporation to the full extent of its power to do so shall
indemnify all directors, officers, employees and/or agents in accordance with
the provisions of Section 78.751 of the Nevada Revised Statutes or any successor
supplemented or similar Nevada law. Further, the corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, 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 as a
director, officer, employee or agent against any liability asserted against him
in any such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of Nevada law.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered or amended at any regular meeting of
the stockholders or at any special meeting of the stockholders at which a quorum
is present or represented, if notice of the proposed alteration or amendment be
contained in the notice of such meeting, by the affirmative vote of a majority
of the stock issued and outstanding entitled to vote at such meeting and present
and represented thereat, or by the affirmative vote of a majority of the board
or at any special meeting of the board if notice of the proposed alteration or
amendment be contained in the notice of such special meeting.
I SARAH SMITHSON, the undersigned, being the Secretary of WHITWORTH
MANAGEMENT, INC., DO HEREBY CERTIFY the foregoing to be the Bylaws of said
corporation, as adopted at a meeting of the directors held on the 8th day of
February, 1988.
/s/ Sarah Smithson
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Secretary
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