EXHIBIT 4.1
AMENDED AND RESTATED BYLAWS
OF
AMAN ENVIRONMENTAL CONSTRUCTION, INC.
A California Corporation
(Amended and Restated as of September 9, 2004)
ARTICLE I
OFFICES
Section 1.01 PRINCIPAL OFFICE. The principal executive office of the
Corporation is hereby fixed and located at 911 Wilshire Blvd., 7th Floor, Los
Angeles, California 90017. The Board of Directors is hereby granted full power
and authority to change said principal office from one location to another at
any place or places where the Corporation is qualified to do business.
Section 1.02 OTHER OFFICES. Branch or subordinate offices may at any time
be established by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.01 PLACE OF MEETINGS. All meetings of shareholders shall be held
either at the principal executive office or at any other place within or without
the State of California which may be designated by the Board of Directors, or by
the shareholders by obtaining written consent of all the persons entitled to
vote thereat.
Section 2.02 ANNUAL MEETINGS. The annual meetings of shareholders shall be
held on a date and time designated by the Board of Directors; provided, however,
that should said day fall upon a Saturday, Sunday or legal holiday under the
laws of the State of California or the United States of America, then such
annual meeting of shareholders shall be held at the same time and place on the
next day thereafter ensuing which is not a Saturday, Sunday or legal holiday.
Notice of each annual meeting shall be given to each shareholder entitled
to vote thereat, either personally or by first-class mail or other means of
written communication, charges prepaid, addressed to such shareholder at the
address appearing on the books of the Corporation for such shareholder or given
by such shareholder to the Corporation for the purpose of notice. If no such
address appears or is given, notice shall be deemed to have been given such
shareholder if sent by mail or other means of written communication addressed to
the place where the principal executive office of the Corporation is situated,
or if published at least once in some newspaper of general circulation in the
county in which said office is located.
All such notices shall be delivered personally, or deposited in the mail
or sent by other means of written communication, to each shareholder entitled to
vote thereat, not less than ten (10) nor more than sixty (60) days before such
annual meeting, and shall specify the place, date and hour of such meeting and
those matters which the Board of Directors, at the time of giving of such
notice, intends to present for action by the shareholders, including the names
of nominees intended at the time of such notice to be presented by the Board of
Directors for election to the Board of Directors. Such notice shall also state
the general nature of the business or proposal to be considered or acted upon at
such meeting before action may be taken at such meeting on:
(a) A proposal to approve a contract or other transaction between
the Corporation and one (1) or more directors or any corporation, firm or
association in which one or more directors has a material financial interest;
(b) A proposal to amend the Articles of Incorporation;
(c) A proposal to approve a reorganization of the Corporation;
(d) A proposal to wind up and dissolve the Corporation; or
(e) A proposal to approve a plan of distribution of the shares,
obligations or securities of any other corporation, or assets other than money,
which is not in accordance with the liquidation rights of any preferred shares
as specified in the Articles of Incorporation, in the process of the winding up
of the Corporation.
Section 2.03 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes whatsoever, may be called at any time by the Chairman of
the Board (if there shall be such an officer), the President, the Board of
Directors or by one or more shareholders entitled to cast not less than ten
percent (10%) of the votes at the meeting. Upon request in writing to the
Chairman of the Board, the President, any Vice-President or the Secretary by any
person, other than the Board of Directors, entitled to call a special meeting of
shareholders, such officer shall cause notice to be given forthwith, but in no
event later than twenty (20) days after receipt of the request, that a meeting
will be held at the time requested by the person or persons calling the meeting,
which time shall be not less than thirty-five (35) and not more than sixty (60)
days after receipt of the request. Except in special cases where other express
provision is made by statute and as set forth herein, notice of such special
meetings shall be given in the same manner as for annual meetings of
shareholders. Notices of any special meeting shall specify, in addition to the
place, date and hour of such meeting, the general nature of the business to be
transacted.
Section 2.04 ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by a vote of a majority of the shares, the holders of which
are either present in person or by proxy thereat, but in the absence of a
quorum, no other business may be transacted at any such meeting except as
provided in Section 2.07 of this Article.
When any shareholders' meeting, either annual or special, is adjourned for
forty-five (45) days or less, the time and place of the adjourned meeting shall
be announced at the meeting at which the adjournment is taken. When any
shareholders' meeting, either annual or special, is adjourned for more than
forty-five (45) days, or if after the adjournment a new record date is fixed for
the adjourned meeting, notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting as in the case
of an original meeting. Except as aforesaid, it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an adjourned
meeting, and at the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting.
Section 2.05 ENTRY OF NOTICE OF DELIVERY. An affidavit executed by the
Secretary, any Assistant Secretary or any transfer agent to the effect that any
notice or report required to be given to a shareholder by law or the Bylaws of
the Corporation was duly given to such shareholder shall be sufficient evidence
that such notice or report was duly given to such shareholder. If any notice or
report addressed to a shareholder at the address of such shareholder appearing
on the books of the Corporation is returned to the Corporation by the United
States Postal Service marked to indicate that the United States Postal Service
is unable to deliver the notice or report to the shareholder at such address,
all future notices or reports shall be deemed to have been duly given without
further mailing if the same shall be available for the shareholder upon written
demand of the shareholder at the principal executive office of the Corporation
for a period of one (1) year from the date of the giving of the notice or report
to all other shareholders.
Section 2.06 VOTING. Except as otherwise provided in the Articles of
Incorporation and in this Section 2.06, at all meetings of shareholders every
shareholder entitled to vote shall have the right to vote in person or by proxy
the number of shares standing in his or her name on the stock records of the
Corporation. Such vote may be given by viva voce or by ballot; provided,
however, that all elections for directors shall be by ballot upon demand made by
a shareholder at any election and before the voting begins.
At any election of directors of the Corporation, if the candidate or
candidates' names have been placed in nomination prior to the voting and any
shareholder has given notice at the meeting prior to the voting of his or her
intention to cumulate votes, each shareholder entitled to vote shall have the
right to cast as many votes as shall equal the number of votes to which his or
her shares are normally entitled multiplied by the number of directors to be
elected, and he or she may cast all of such votes for a single candidate or may
distribute them among some or all of the candidates as he or she sees fit. The
candidates receiving the highest number of affirmative votes up to the number of
directors to be elected shall be elected.
The affirmative vote of the majority of the shares represented and voting
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) shall
be the act of the shareholders, unless the vote of a greater number is required
by law or the Articles of Incorporation, and except as set forth in Section 2.07
of this Article and at elections of directors as set forth in this Section 2.06.
Section 2.07 QUORUM. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting shall constitute a
quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken, other than adjournment, is
approved by at least a majority of the shares required to constitute a quorum.
Section 2.08 CONSENT OF ABSENTEES. The proceedings and 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 of the persons entitled to vote,
not present in person or by proxy, signs a written waiver of notice, a consent
to the holding of such meeting or an approval of the minutes thereof. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of shareholders need be specified in any written waiver of notice,
consent to the holding of the meeting or approval of the minutes thereof unless
otherwise provided in the Articles of Incorporation or Bylaws, except for the
matters referred to in subparagraphs (a) through (e) of Section 2.02 of this
Article. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a waiver of notice of
and presence at such meeting, except when the person objects at the beginning of
the meeting to the transaction of any business because the meeting is not
lawfully called or convened, and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by law to
be included in the notice but not so included, if such objection is expressly
made at the meeting.
Section 2.09 ACTION WITHOUT MEETING. Any action which may be taken at any
annual or special meeting of the shareholders may be taken without a meeting and
without prior notice, if authorized by a written consent selling forth the
action so taken, signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted, and filed with the Secretary of the Corporation; provided,
however, that directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of
directors, except that a vacancy on the Board of Directors (other than a vacancy
created by removal of a director) not filled by the Board of Directors may be
filled by the written consent of a majority of the outstanding shares entitled
to vote. Any shareholder giving a written consent, such shareholder's
proxyholders, a transferee of the shares or a personal representative of such
shareholder or their respective proxyholders, may revoke any such consent by a
writing received by the Corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the Corporation, but may not do so thereafter. Such
revocation shall be effective upon its receipt by the Secretary of the
Corporation.
Unless the consents of all shareholders entitled to vote have been
solicited in writing and have been received, prompt notice shall be given, in
the same manner as for annual
meetings of shareholders except as set forth in this Section 2.09, to those
shareholders entitled to vote who have not consented in writing, of the taking
of any corporate action approved by shareholders without a meeting. Such notice
shall be given at least ten (10) days before the consummation of the action
authorized by such approval with respect to the following:
(a) Approval of any transaction referred to in subparagraphs a), (c)
or (e) of Section 2.02 of this Article; or
(b) Approval required by law of the indemnification of any person.
Section 2.10 PROXIES. Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or agents
authorized by a written proxy executed by such person or his or her duly
authorized agent; provided, however, that no such proxy shall be valid after the
expiration of eleven (11) months from the date of its execution, unless the
shareholder executing it specifies therein the length of time for which such
proxy is to continue in force.
ARTICLE III
DIRECTORS
Section 3.01 POWERS. Subject to limitations of the Articles of
Incorporation, of the Bylaws and of the California General Corporation Law as to
action to be authorized or approved by the shareholders or by the outstanding
shares, and subject to the duties of directors as prescribed by the Bylaws, the
business and affairs of the Corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
Without prejudice to such general powers, but subject to the same limitations,
it is hereby expressly declared that the directors shall have the following
powers:
(a) To select and remove all other officers, agents and employees of
the Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the Articles of Incorporation or the Bylaws, fix
their compensation and require from them security for faithful service;
(b) To conduct, manage and control the affairs and business of the
Corporation, and to make such rules and regulations therefor not inconsistent
with law, the Articles of Incorporation or the Bylaws, as they may deem best;
(c) To change the principal office for the transaction of the
business of the Corporation from one location to another within or without the
State of California, as provided in Article I, Section 1.01 hereof; to fix and
locate from time to time one or more branch or subsidiary offices of the
Corporation within or without the State of California, as provided in Article I,
Section 1.02 hereof; to designate any place within or without the State of
California for the holding of any shareholders' meetings; and to adopt, make and
use a corporate seal, to prescribe the form of certificates of stock and to
alter the form of such seal and of such stock certificates from time to time as
in their judgment they may deem best, provided such seal and such certificates
shall at all times comply with the provisions of law;
(d) To authorize the issue of stock of the Corporation from time to
time, upon such terms as may be lawful, in consideration of money paid, labor
done, services actually rendered to the Corporation or for its benefit or in its
formation or reorganization, debts or securities cancelled, tangible or
intangible property actually received either by the Corporation or by a
wholly-owned subsidiary, or as a share dividend, or upon a stock split, reverse
stock split, reclassification or conversion of outstanding shares into shares of
another class, exchange of outstanding shares for shares of another class, or
other change affecting outstanding shares;
(e) To borrow money and incur indebtedness for the purposes of the
Corporation and to cause to be executed and delivered therefor, in the Corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations or other evidences of debt and security therefor; and
(f) To designate one or more committees and to appoint members and
alternate members therefor, by resolution adopted by a majority of the
authorized number of directors, each committee consisting of two (2) or more
directors and any alternate directors as may be designated to replace any absent
members at any meeting thereof, to serve at the pleasure of the Board of
Directors and to delegate to any such committee any of the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation, except the following powers: to approve any action which by law or
by these Bylaws also requires shareholders' approval or approval of the
outstanding shares, to fill vacancies on the Board of Directors or any committee
thereof, to fix the compensation of directors for serving on the Board of
Directors or any committee thereof, to amend or repeal bylaws or adopt new
bylaws, to amend or repeal any resolution of the Board of Directors which by its
express terms is not so amendable or repealable, to authorize a distribution to
the shareholders of the Corporation (other than a dividend in shares of the
Corporation) except at a rate or in a periodic amount or within a price range
determined by the Board of Directors or to appoint other committees of the Board
of Directors or the members thereof.
Section 3.02 NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized number
of directors shall be determined from time to time by resolution of the Board of
Directors, provided that the Board of Directors shall consist of at least one
member.
Section 3.03 ELECTION AND TERM OF OFFICE. The directors shall be elected
at each annual meeting of the shareholders, but if any such annual meeting is
not held or the directors are not elected thereat, the directors may be elected
at any special meeting of the shareholders held for that purpose. Each director
shall hold office until the expiration of the term for which elected and until
his or her successor is elected and qualified or until he or she is removed from
office. No director may be removed prior to the expiration of his or her term of
office, except as permitted by law.
Section 3.04 VACANCIES. Vacancies in the Board of Directors, other than
those created by the removal of a director, may be filled by a majority of the
remaining directors,
though less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until his successor is elected at an annual or special
meeting of the shareholders.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
when any authorized position of director is not filled by a duly elected and
acting director, whether caused by the death, resignation or removal of any
director, increase in the authorized number of directors, failure of the
shareholders, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting or otherwise.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies created by the removal of a director or not filled by the
directors, but any such election by written consent other than to fill a vacancy
created by removal shall require the written consent of a majority of the
outstanding shares entitled to vote. If the resignation of a director is given
to take effect at a future time, the Board of Directors or the shareholders
shall have power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of his or her term of office.
Section 3.05 PLACE OF MEETING. Meetings of the Board of Directors or any
committee thereof shall be held at any place within or without the State of
California which has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, from time to time by resolution of
the Board of Directors or committee, as the case may be. In the absence of such
designation, meetings shall be held at the principal executive office of the
Corporation.
Section 3.06 ORGANIZATION MEETING. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting for
the purpose of organization, election of officers and the transaction of other
business. Notice of such meetings is hereby dispensed with.
Section 3.07 OTHER REGULAR MEETINGS. Other regular meetings of the Board
of Directors and regular meetings of committees of the Board of Directors shall
be held without call on such dates as may be fixed by the Board of Directors or
the committee, as the case may be. Notice of all such regular meetings of the
Board of Directors and committees thereof is hereby dispensed with.
Section 3.08 SPECIAL MEETINGS. Special meetings of the Board of Directors
for any purpose or purposes may be called at any time by the Chairman of the
Board (if there be such an officer), by the President, by any Vice-President, by
the Secretary or by any two directors. Special meetings of any committee of the
Board of Directors for any purpose or purposes may be called at any time by the
President, by the Chairman or by any vice-chairman of the committee, by the
Secretary or by any two members of the committee.
Notice of the time and place of special meetings shall be delivered
personally to all directors or committee members as the case may be, either in
writing or orally or by
telephone, or shall be sent to each such director by first-class mail or
telegraph, charges prepaid, addressed to him or her at his or her address as it
is shown upon the records of the Corporation or, if it is not shown on such
records or is not readily ascertainable, at the place in which the meetings of
the directors are regularly held. In case such notice is mailed, it shall be
deposited with the United States Postal Service in the place where the principal
office of the Corporation is located at least four (4) days prior to the time of
the holding of the meeting. In case such notice is delivered by telegraph or
personally as above provided, it shall be delivered to the telegraph company in
the place where the principal office of the Corporation is located or delivered
personally at least forty-eight (48) hours prior to the time of the holding of
the meeting.
Such notice need not specify the purpose of the special meeting. Such
mailing, telegraphing or personal delivery as above provided shall be due,
timely, legal and personal notice to such director.
Section 3.09 NOTICE OF ADJOURNMENT. Unless a directors' or committee
meeting has been adjourned for more than twenty-four (24) hours, notice of the
time and place of holding an adjourned meeting need not be given to absent
directors or committee members if the time and place be fixed at the meeting
adjourned. If the meeting has been adjourned for more than twenty-four (24)
hours, notice of such adjournment and the time and place of the adjourned
meeting shall be given prior to the time of the adjourned meeting to all
directors or committee members who were not present at the time of the
adjournment, in the same manner as provided in Section 3.08 of this Article for
special meetings of the Board of Directors or committee thereof.
Section 3.10 ENTRY OF NOTICE. Whenever any director has been absent from
any special meeting of the Board of Directors or committee thereof, an affidavit
executed by the Secretary or any Assistant Secretary to the effect that notice
has been duly given as required by law and the Bylaws of the Corporation shall
be sufficient evidence that due notice of such special meeting was given to such
director.
Section 3.11 WAIVER OF NOTICE. The transactions of any meeting of the
Board of Directors or committee thereof, 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 and if, either before or after the meeting,
each of the directors or committee members not present, and each director or
committee member who is present but did not receive due notice thereof and
protests such lack of notice prior to such meeting or at its commencement, signs
a written waiver of notice, a consent to holding such meeting or an approval of
the minutes thereof. Such waiver of notice need not specify the purpose of the
meeting. All such waivers, consents or approvals shall be filed with the
Corporate records or made a part of the minutes of the meeting.
Section 3.12 QUORUM. A majority of the authorized number of directors on
the Board of Directors or any committee thereof shall be necessary to constitute
a quorum for the transaction of business by such Board or committee, as the case
may be. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors or committee
members, if any action taken is approved by at least a majority of the required
quorum for such meeting. Subject to the foregoing sentence of this
Section 3.12, every act or decision done or made by a majority of the
directors or committee members present at a meeting duly held at which a quorum
is present shall be regarded as the act of the Board of Directors or committee
thereof, as the case may be, unless a greater number be required by law, the
Articles of Incorporation or the Bylaws. Directors shall be deemed present at
any meeting of the Board of Directors or any committee thereof and may
participate therein if present through use of conference telephone or similar
communications equipment, so long as all directors participating in such meeting
can hear one another.
Section 3.13 ADJOURNMENT. A majority of the directors or committee members
present, whether or not a quorum is present, may adjourn any directors' or
committee meeting to meet again at a stated time, place and hour.
Section 3.14 ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken without
a meeting if all members of the Board of Directors or such committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board of Directors or such committee, as the case may be. Such action by written
consent shall have the same force and effect as a unanimous vote of such
directors or committee members.
Section 3.15 FEES AND COMPENSATION. Directors shall not receive any stated
salary for their services as directors but, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attending, may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent, employee or otherwise and receiving compensation therefor.
ARTICLE IV
OFFICERS
Section 4.01 OFFICERS. The officers of the Corporation shall be the
President, the Secretary and the Chief Financial Officer.
The Corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board, one or more Vice-Presidents, one or more
Assistant Secretaries, one or more Assistant Chief Financial Officers and such
other officers as may be appointed in accordance with the provisions of Section
4.03 of this Article. Officers other than the President and Chairman of the
Board need not be directors. One person may hold two or more offices.
Section 4.02 ELECTIONS. The officers of the Corporation shall be chosen by
the Board of Directors and each shall hold his or her office until his or her
successor is appointed or until he or she resigns or is removed from office.
Section 4.03 SUBORDINATE OFFICERS. The Board of Directors 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 the Bylaws or as the Board of Directors may from time to time
determine.
Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by a majority of the directors at the time in office, at
a regular or special meeting of the Board of Directors or, except in case of an
officer chosen by the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled by the Board of
Directors at a regular or special meeting.
Section 4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board of Directors, and exercise and perform such other powers and duties as may
from time to time be assigned to him or her by the Board of Directors or as
prescribed by the Bylaws.
Section 4.07 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 general manager and 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
affairs of the Corporation. He or she shall preside at all meetings of the
shareholders, and in the absence of the Chairman of the Board, or if there be
none, at all meetings of the Board of Directors. He or she shall be ex officio a
member of all the standing committees of the Board of Directors, including the
executive committee, if any, shall have the general powers and duties of
management usually vested in the office of president of a corporation and shall
have such other powers and duties as may be prescribed by the Board of Directors
or the Bylaws.
Section 4.08 VICE-PRESIDENT. In the absence or disability of the
President, the Vice-Presidents if there shall be any such officers, in order of
their rank as fixed by the Board of Directors or, if not ranked, the
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.
Section 4.09 SECRETARY. The Secretary shall keep, or cause to be kept, a
book of minutes in written form at the principal executive office of the
Corporation, of all meetings of directors, committees of the Board of Directors
and shareholders, with the time and place of holding, whether regular or
special, and if special how authorized, the notice thereof
given, the names of those directors and shareholders present, the names of those
present at directors' 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 or at the office of the Corporation's transfer agent or registrar of
shares, a share register, or a duplicate share register, in written form or in
any other form capable of being converted into written form, showing the names
of the shareholders and their addresses, and the number and classes of shares
held by each of them.
The Secretary shall give or cause to be given notice of all meetings of
shareholders and the Board of Directors, as required by the Bylaws or by law to
be given, and he or she shall keep the seal of the Corporation in safe custody
and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 4.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, in written form or in any
other form capable of being convened into written form, adequate and correct
books and records of account of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares.
The Chief Financial Officer shall deposit all monies and other valuables
in the name and to the credit of the Corporation with such depositories as may
be designated by the Board of Directors. He or she shall disburse the funds of
the Corporation as may be ordered by the Board of Directors and shall render to
the President and directors, as required by Section 5.05 of Article V of these
Bylaws and at such other times as they may request, 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 the Bylaws.
ARTICLE V
MISCELLANEOUS
Section 5.01 RECORD DATE. The Board of Directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders, or to receive any
dividend, distribution or allotment of rights, or to exercise rights in respect
of any other lawful action. The record date so fixed shall not be more than
sixty (60) nor less than ten (10) days prior to the date of the meeting, nor
more than sixty (60) days prior to any other action, for which it is fixed. When
a record date is so fixed, only shareholders of record at the close of business
on the record date shall be entitled to notice of and to vote at such meeting,
or to receive such dividend, distribution or allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any shares on
the books of the Corporation after the record date, except as otherwise provided
in the Articles of Incorporation or by agreement or by law. 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.
Section 5.02 INSPECTION OF CORPORATE RECORDS. The record of shareholders,
the accounting books and records, and minutes of proceedings of the
shareholders, the Board of Directors and committees of the Board of Directors,
shall be open to inspection in written form 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 his or her
interests as a shareholder or holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney and shall include
the right to copy and make extracts. Demand of inspection shall be made in
writing upon the President, Secretary or Assistant Secretary of the Corporation.
A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the Corporation shall have an
absolute right to do either or both of the following: (i) inspect and copy the
record of shareholders' names and addresses and shareholdings during usual
business hours upon five (5) business days' prior written demand upon the
Corporation, or (ii) obtain from the transfer agent for the Corporation, if any,
upon written demand and upon the tender of its usual charges for such a list, a
list of the names and addresses of the shareholders who are entitled to vote for
the election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand, which list shall be made available on or
before the later of five (5) business days after the demand is received or the
date specified therein as the date as of which the list is to be compiled.
Every director shall have the absolute right at any reasonable time to
inspect in written form and copy all books, records and documents of every kind
and to inspect the physical properties of the Corporation and its subsidiary
corporations, domestic or foreign. Such inspection may be made in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
Section 5.03 CHECKS, DRAFTS AND NOTES. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness issued in the
name of or payable to the Corporation shall be signed or endorsed by such person
or persons and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors.
Section 5.04 SEAL. The Corporation shall have a common seal, and shall
have inscribed thereon the name of the Corporation, the date of its
incorporation and the word California.
Section 5.05 FINANCIAL REPORTS. The Chief Financial Officer shall prepare
and submit, or cause to be prepared and submitted, to the Board of Directors,
not later than one hundred twenty (120) days after the close of each fiscal year
of the Corporation, an annual report containing a balance sheet as of the end of
that fiscal year and an income statement and statement of changes in financial
position for that fiscal year, accompanied by the report thereon, if any, of any
independent accountants engaged by the Corporation or the
certificate of an authorized officer of the Corporation that the financial
statements were prepared without audit from the books and records of the
Corporation. The requirement of Section 1501 of the California General
Corporation Law that the Board of Directors shall cause the annual report to be
sent to the shareholders not later than one hundred twenty (120) days after the
close of the Corporation's fiscal year and at least fifteen (15) days prior to
the annual meeting of shareholders is hereby expressly waived until such time as
the Corporation has one hundred (100) or more holders of record of its shares.
A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of the Corporation may make a written request to
the Corporation for an income statement of the Corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than thirty
(30) days prior to the date of the request and a balance sheet of the
Corporation as of the end of such period and, in addition, if no annual report
for the last fiscal year has been sent to shareholders, such annual report,
accompanied by the report thereon, if any, of any independent accountants
engaged by the Corporation or the certificate of an authorized officer of the
Corporation that such financial statements were prepared without audit from the
books and records of the Corporation. The annual report or statements so
requested shall be delivered or mailed to the person making the request within
thirty (30) days thereafter.
A copy of each such annual, semi-annual, and quarterly financial statement
shall be kept on file for a period of twelve (12) months after delivery to the
Board of Directors, and shall be exhibited at all reasonable times to any
shareholder demanding an examination thereof or mailed to such shareholder
demand shall be made in writing upon the President, Secretary or Assistant
Secretary of the Corporation.
Section 5.06 EXECUTION OF DOCUMENTS. The Board of Directors, except as the
Bylaws or Articles of Incorporation otherwise provide, may authorize any officer
or officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the Corporation, and, such authority
may be general or confined to specific instances; and unless so authorized by
the Board of Directors, no officer, agent, or employee shall have any power or
authority to bind the Corporation by any contact or agreement or to pledge its
credit to render it liable for any purpose or to any amount.
Section 5.07 CERTIFICATES OF STOCK. A certificate or certificates for
shares of the capital stock of the Corporation shall be issued to each
shareholder when any such shares are fully paid. All such certificates shall be
signed by the Chairman of the Board or the President or a Vice-President, and by
the Chief Financial Officer or an Assistant Chief Financial Officer, Secretary
or an Assistant Secretary, or shall be authenticated by facsimiles of such
signatures.
Certificates for shares may be issued prior to full payment thereof, under
such restrictions and for such purposes as the Board of Directors or the Bylaws
may provide; provided, however, that any such certificates so issued prior to
full payment shall state the total amount of the consideration to be paid
therefor and the amount paid thereon, and such statement shall be conspicuous.
There shall also appear on each certificate, to the extent applicable,
statements: that the shares represented thereby are subject to restrictions upon
transfer, to an irrevocable proxy under Section 705(e) of the California General
Corporation Law, or to restrictions upon voting rights contractually imposed by
the Corporation; that such shares are redeemable or assessable or subject to
conversion and the period for conversion, and any such statement that such
shares are subject to restrictions upon transfer or are assessable shall be
conspicuous. If the shares of the Corporation are classified or if any class of
shares has two or more series, there shall also appear on each certificate the
office or agency of the Corporation from which shareholders may obtain, upon
request and without charge, a statement of the rights, preferences, privileges
and restrictions granted to or imposed upon each class or series of shares
authorized to be issued and upon the holders thereof.
Section 5.08 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President
or any Vice-President and the Secretary or Assistant Secretary of this
Corporation are 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 to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.
Section 5.09 INSPECTION OF BYLAWS. The Corporation shall keep in its
principal executive office in the State of California, or if there be no such
office at its principal business office in such State, the original or a copy of
the Bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office is outside such State and the Corporation has no principal
business office in such State, the Corporation shall upon the written request of
any shareholder, made in writing upon the President, Secretary or Assistant
Secretary of the Corporation, furnish to such shareholder a copy of the Bylaws
as amended to date.
Section 5.10 INDEMNIFICATION.
(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees) judgments, damages, settlements and other amounts actually incurred by
such person in connection with such action, if such person acted in good faith
and in a manner such person believed to be in the best interests of the
Corporation and its shareholders; provided, however, that no indemnification
shall be made under this Subsection (a) for any of the following:
(1) Of amounts paid in satisfaction of any judgment or fine in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation in the performance of such person's
duty to the Corporation and its
shareholders, if and to the extent that the indemnification is not permissible
under the General Corporation Law of California.
(2) Of expenses incurred in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation in the performance of such person's duty to the Corporation and its
shareholders unless and only to the extent that the court in which such
proceeding is or was pending shall determine upon application that, in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for expenses and then only to the extent that the court shall
determine.
(3) Of amounts paid in settling or otherwise disposing of a
pending action without court approval.
(4) Of expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval.
(b) The Corporation shall also indemnify any person who was or is a
party or is threatened to be made a party to any proceeding, whether threatened,
pending or completed, and whether civil, criminal, administrative or
investigative, other than an action by or in the right of the Corporation to
procure a judgment in its favor, by reason of the fact that such person is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Corporation and, in the
case of a criminal proceeding, had no reasonable cause to believe the conduct of
such person was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in the best interests
of the Corporation or that the person had reasonable cause to believe that his
or her conduct was unlawful.
(c) To the extent that any person has been successful on the merits
in defense of any proceeding referred to in Subsection (a) or (b) or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred by such person in connection
therewith.
(d) The Corporation may advance expenses incurred in any proceeding
covered by this Section 10 upon receipt of an undertaking by or on behalf of the
person receiving the advance to repay such amount if it shall be ultimately
determined that such person is not entitled to be indemnified as provided in
this Section.
(e) Except as provided in Subsection (c), no indemnification shall
be made under this Section in any circumstance where it appears:
(1) that it would be inconsistent with a provision of the
articles of incorporation, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action in the
proceeding in which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification.
(2) that it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(f) The indemnity provided for under this Section 10 shall be in
addition to any indemnity to which any person may be entitled under any
agreement, any law other than the General Corporation Law of California or
otherwise.
ARTICLE VI
AMENDMENTS
Section 6.01 POWER OF SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the affirmative vote or written consent of
outstanding shares entitled to vote, except as specifically set forth in the
Articles of Incorporation or these Bylaws to the contrary.
Section 6.02 POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section 6.01 of this Article VI to adopt, amend or repeal bylaws,
bylaws other than a bylaw or amendment thereof changing the authorized number of
directors may be adopted, amended or repealed by the Board of Directors, except
as specifically set forth in the Articles of Incorporation or these Bylaws to
the contrary.