EXHIBIT 4.2
AMENDED AND RESTATED BY-LAWS
OF
BANSHEE CONSTRUCTION COMPANY, INC.
A California Corporation
(Amended and Restated As of September 9, 2004)
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OR BUSINESS OFFICES. The board of directors
shall fix the location of the principal executive office of the corporation at
any place within or outside the State of California. If the principal executive
office is located outside California and the corporation has one or more
business offices in California, the board shall fix and designate a principal
business office in California.
Section 2. OTHER OFFICES. Branch or subordinate offices may be established
at any time and at any place by the board of directors.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at
any place within or outside the State of California designated by the board of
directors. In the absence of a designation by the board, shareholders' meetings
shall be held at the corporation's principal executive office.
Section 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
within the power of the shareholders may be transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders may be
called at any time by the board of directors, by the chair of the board, by the
president or vice president, or by one or more shareholders holding shares that
in the aggregate are entitled to cast ten percent or more of the votes at that
meeting.
If a special meeting is called by anyone other than the board of
directors, the person or persons calling the meeting shall make a request in
writing, delivered personally or sent by registered mail or by telegraphic or
other facsimile
transmission, to the chair of the board or the president, vice president, or
secretary, specifying the time and date of the meeting (which is not less than
35 nor more than 60 days after receipt of the request) and the general nature of
the business proposed to be transacted. Within 20 days after receipt, the
officer receiving the request shall cause notice to be given to the shareholders
entitled to vote, in accordance with Sections 4 and 5 of this Article II,
stating that a meeting will be held at the time requested by the person(s)
calling the meeting, and stating the general nature of the business proposed to
be transacted. If notice is not given within 20 days after receipt of the
request, the person or persons requesting the meeting may give the notice.
Nothing in this paragraph shall be construed as limiting, fixing, or affecting
the time when a meeting of shareholders called by action of the board may be
held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not fewer than 10 nor more than 60 days before the date of the
meeting. Shareholders entitled to notice shall be determined in accordance with
Section 11 of this Article II. 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 that the board of directors, at the time of giving the
notice, intends to present for action by the shareholders. If directors are to
be elected, the notice shall include the names of all nominees whom the board
intends, at the time of the notice, to present for election.
The notice shall also state the general nature of any proposed action to
be taken at the meeting to approve any of the following matters:
(i) A transaction in which a director has a financial interest, within the
meaning of Section 310 of the California Corporations Code;
(ii) An amendment of the articles of incorporation under Section 902 of
that Code:
(iii) A reorganization under Section 1201 of that Code;
(iv) A voluntary dissolution under Section 1900 of that Code; or
(v) A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
Section 5. MANNER OF GIVING NOTICE: AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting 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 appearing on the corporation's books or given by the
shareholder to the corporation for purposes of notice. If no address appears on
the corporation's books or has been given as specified above, notice shall be
either (1) sent by first-class mail addressed to the shareholder at the
corporation's principal executive office, or (2) published at least once in a
newspaper of general circulation in the county where the corporation's principal
executive office is located. Notice is
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by other means of written communication.
If any notice or report mailed to a shareholder at the address appearing
on the corporation's books is returned marked to indicate that the United States
Postal Service is unable to deliver the document to the shareholder at that
address, all future notices or reports shall be deemed to have been duly given
without further mailing if the corporation holds the document available for the
shareholder on written demand at the corporation's principal executive office
for a period of one year from the date the notice or report was given to all
other shareholders.
An affidavit of the mailing or other authorized means of giving notice or
delivering a document, of any notice of shareholders' meeting, report, or other
document sent to shareholders, may be executed by the corporation's secretary,
assistant secretary, or transfer agent and, if executed, shall be filed and
maintained in the minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of the 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.
Section 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, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is adjourned
to another time or place, notice of the adjourned meeting need not be given if
the time and place are announced at the meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than 45 days after the date set for the original
meeting, in which case the board of directors shall set a new record date.
Notice of any such adjourned meeting, if required, shall be given to each
shareholder of record entitled to vote at the adjourned meeting, in accordance
with Sections 4 and 5 of this Article II. At any adjourned meeting, the
corporation may transact any business that might have been transacted at the
original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with Section 11 of this Article
II, subject to the provisions of sections 702 through 704 of the California
Corporations Code 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 must be by ballot if demanded
by any shareholder before the voting has begun. On any matter other than the
election of directors, any shareholder may vote part of the shares the
shareholder is to vote in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, but, if the shareholder
fails to specify the number of shares that 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 (or if a quorum has been present earlier at the meeting but
some shareholders have withdrawn), the affirmative vote of a majority of the
shares represented and voting, provided such shares voting affirmatively also
constitute a majority of the number of shares required for a quorum, shall be
the act of the shareholders unless the vote of a greater number or voting by
classes is required by law or by the articles of incorporation.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any candidate a
number of votes greater than the number of votes which that shareholder normally
would be entitled to cast), unless the candidates' names have been placed in
nomination before commencement of the voting and a shareholder has given notice
at the meeting, before the voting has begun, of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then all
shareholders entitled to vote may cumulate their votes for candidates in
nomination, and may give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which that
shareholder's shares are normally entitled, or distribute the shareholder's
votes on the same principle among any or all of the candidates, as the
shareholder thinks fit. The candidates receiving the highest number of votes, up
to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed and wherever held, shall be as valid as though they were had
at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if each person entitled to vote who was not
present in person or by proxy, either before or after the meeting, signs a
written waiver of notice or a consent to holding the meeting or an approval of
the minutes of the meeting. 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 the shareholders, except that, if action is taken or proposed to be
taken for approval of any of those matters specified in section 601(f) of the
California Corporations Code, i.e.,
(i) A transaction in which a director has a financial interest, within the
meaning of Section 310 of the California Corporations Code;
(ii) An amendment of the articles of incorporation under section 902 of
that Code;
(iii) A reorganization under section 1201 of that Code;
(iv) A voluntary dissolution under section 1900 of that Code; or
(v) A distribution in dissolution that requires approval of the
outstanding shares under section 2007 of that Code.
The waiver of notice or consent is required to state the general nature of
the action or proposed action. All waivers, consents, and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
A shareholder's attendance at a meeting also constitutes a waiver of
notice of that meeting, unless the shareholder at the beginning of the meeting
objects to the transaction of any business on the ground that the meeting was
not lawfully called or convened. In addition, attendance at a meeting does not
constitute a waiver of any right to object to consideration of matters required
by law to be included in the notice of the meeting which were not so included,
if that objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action that could be taken at an 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.
Directors may be elected by written consent of the shareholders without a
meeting only if the written consents of all outstanding shares entitled to vote
are obtained, except that vacancies on the board (other than vacancies created
by removal) not filled by the board may be filled by the written consent of the
holders of a majority of the outstanding shares entitled to vote.
All consents shall be filed with the secretary of the corporation and
shall be maintained in the corporate records. Any shareholder or other
authorized person who has given a written consent may revoke it by a writing
received by the secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, prompt notice shall be given of any corporate action
approved by shareholders without a meeting by less than unanimous consent, to
those shareholders entitled to vote who have not consented in writing. As to
approvals required by California Corporations Code section 310 (transactions in
which a director has a financial interest), section 317 (indemnification of
corporate agents), section 1201 (corporate reorganization), or section 2007
(certain distributions on dissolution), notice of the approval shall be given at
least ten days before the
consummation of any action authorized by the approval. Notice shall be given in
the manner specified in Section 5 of this Article II.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE OF MEETING, VOTING, AND
GIVING CONSENT.
(a) For purposes of determining the shareholders entitled to receive
notice of and vote at a shareholders' meeting or give written consent to
corporate action without a meeting, the board may fix in advance a record date
that is not more than 60 nor less than 10 days before the date of a
shareholders' meeting, or not more than 60 days before any other action.
(b) If no record date is fixed:
(i) The record date for determining shareholders entitled to receive
notice of and vote at a shareholders' meeting shall be the business day next
preceding the day on which notice is given, or if notice is waived as provided
in Section 9 of this Article II the business day next preceding the day on which
the meeting is held.
(ii) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, if no prior action has
been taken by the board, shall be the day on which the first written consent is
given.
(iii) The record date for determining shareholders for any other
purpose shall be as set forth in Section 1 of Article VIII of these bylaws.
(c) A determination of shareholders of record entitled to receive notice
of and vote at a shareholders' meeting shall apply to any adjournment of the
meeting unless the board fixes a new record date for the adjourned meeting.
However, the board shall fix a new record date if the adjournment is to a date
more than 45 days after the date set for the original meeting.
(d) Only shareholders of record on the corporation's books at the close of
business on the record date shall be entitled to any of the notice and voting
rights listed in subsection (a) of this section, notwithstanding any transfer of
shares on the corporation's books after the record date, except as otherwise
required by law.
Section 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 transmission, or otherwise) by the shareholder or the
shareholder's attorney in fact. A validly executed proxy that 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 under that proxy, by a
writing delivered to the corporation stating that the proxy is revoked, or by
attendance at the meeting and voting in person by the person executing the proxy
or by a subsequent proxy executed by the same person and presented at the
meeting; 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
11 months from the date of the proxy, unless otherwise provided in the proxy.
The revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of sections 705(e) and 705(f) of the Corporations
Code of California.
Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders,
the board of directors may appoint any persons other than nominees for office to
act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chair of the meeting may, and on
the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one or three. If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one or three inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chair of the meeting may, and upon the request of
any shareholder or a shareholder's proxy shall, appoint a person to fill that
vacancy.
These inspectors shall: (a) determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the existence
of a quorum, and the authenticity, validity, and effect of proxies; (b) receive
votes, ballots, or consents; (c) hear and determine all challenges and questions
in any way arising in connection with the right to vote; (d) count and tabulate
all votes or consents; (e) determine when the polls shall close; (f) determine
the result; and (g) do any other acts that may be proper to conduct the election
or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the
articles of incorporation, and with these bylaws; fix their compensation; and
require from them security for faithful service.
(b) Change the principal executive office or the principal business office
in the State of California from one location to another; cause the corporation
to be qualified to do business in any other state, territory, dependency, or
country and conduct business within or outside the State of California; and
designate any place within or outside the State of California for holding any
shareholders' meeting or meetings, including annual meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities canceled, or tangible or intangible property
actually received.
(e) Borrow money and incur indebtedness on behalf of the corporation, and
cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, and other evidences of debt and securities.
Section 2. NUMBER OF DIRECTORS. The authorized number of directors shall
be determined from time to time by resolution of the board of directors,
provided the board of directors shall consist of at least one member. Directors
need not be residents of the State of California nor shareholders of the
corporation.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of the shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
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 4. VACANCIES. A vacancy in the board of directors shall be deemed
to exist: (a) if a director dies, resigns, or is removed by the shareholders or
an appropriate court, as provided in sections 303 or 304 of the California
Corporations Code; (b) if the board of directors declares vacant the office of a
director who has been convicted of a felony or declared of unsound mind by an
order of court; (c) if the authorized number of directors is increased; or (d)
if at any shareholders' meeting at which one or more directors are elected the
shareholders fail to elect the full authorized number of directors to be voted
for at that meeting.
Any director may resign effective on giving written notice to the chair of
the board, the president, the secretary, or the board of directors, unless the
notice
specifies a later effective date. If the resignation is effective at a future
time, the board may elect a successor to take office when the resignation
becomes effective.
Except for a vacancy caused by the removal of a director, vacancies on the
board may be filled by approval of the board or, if the number of directors then
in office is less than a quorum, by (1) the unanimous written consent of the
directors then in office, (2) the affirmative vote of a majority of the
directors then in office at a meeting held pursuant to notice or waivers of
notice complying with section 307 of the Corporations Code, or (3) a sole
remaining director. A vacancy on the board caused by the removal of a director
may be filled only by the shareholders, except that a vacancy created when the
board declares the office of a director vacant as provided in clause (b) of the
first paragraph of this section of the bylaws may be filled by the board of
directors.
The shareholders may elect a director at any time to fill a vacancy not
filled by the board of directors.
The term of office of a director elected to fill a vacancy shall run until
the next annual meeting of the shareholders, and such a director shall hold
office until a successor is elected and qualified.
Section 5. PLACE OF MEETINGS; TELEPHONE MEETINGS. Regular meetings of the
board of directors may be held at any place within or outside the State of
California as designated from time to time by the board. In the absence of a
designation, regular meetings shall be held at the principal executive office of
the corporation. Special meetings of the board shall be held at any place within
or outside the State of California designated in the notice of the meeting, or
if the notice does not state a place, or if there is no notice, at the principal
executive office of the corporation. Any meeting, regular or special, may be
held by conference telephone or similar communication equipment, provided that
all directors participating can hear one another.
Section 6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place, or at any other place that has been designated by the board of
directors, to consider matters of organization, election of officers, and other
business as desired. Notice of this meeting shall not be required unless some
place other than the place of the annual shareholders' meeting has been
designated.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board of
directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board of directors
may be called for any purpose or purposes at any time by the chair of the board,
the president, any vice president, the secretary, or any two directors.
Special meetings shall be held on four days' notice by mail or forty-eight
hours' notice delivered personally or by telephone or telegraph. Oral notice
given personally or by telephone may be transmitted either to the director or to
a person at the director's office who can reasonably be expected to communicate
it promptly to the director. Written notice, if used, shall be addressed to each
director at the address shown on the corporation's records. The notice need not
specify the purpose of the meeting, nor need it specify the place if the meeting
is to be held at the principal executive office of the corporation.
Section 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 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 Corporations Code section 310 (as to approval of contracts or
transactions in which a director has a direct or indirect material financial
interest); section 311 (as to appointment of committees), and section 317(e) (as
to indemnification of directors). A meeting at which a quorum is initially
present may continue to transact business, despite a withdrawal of directors, if
any action taken is approved by at least a majority of the required quorum for
that meeting.
Section 10. WAIVER OF NOTICE. Notice of a meeting, although otherwise
required, need not be given to any director who (i) either before or after the
meeting signs a waiver of notice or a consent to holding the meeting without
being given notice; (ii) signs an approval of the minutes of the meeting; or
(iii) attends the meeting without protesting the lack of notice before or at the
beginning of the meeting. Waivers of notice or consents need not specify the
purpose of the meeting. All waivers, consents, and approvals of the minutes
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not a quorum
is present, a majority of the directors present may adjourn any meeting to
another time or place.
Section 12. NOTICE OF ADJOURNED MEETING. Notice of the time and place of
resuming a meeting that has been adjourned need not be given unless the
adjournment is for more than 24 hours, in which case notice shall be given,
before the time set for resuming the adjourned meeting, to the directors who
were not present at the time of the adjournment. Notice need not be given in any
case to directors who were present at the time of adjournment.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the board of directors may be taken without a meeting, if all
members of the board of directors individually or collectively consent in
writing to that action. Any action by written consent shall have the same force
and effect as a unanimous vote of the board of directors. All written consents
shall be filed with the minutes of the proceedings of the board of directors.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees of the board may be compensated for their services, and shall be
reimbursed for expenses, as fixed or determined by resolution of the board of
directors. This section shall not be construed to preclude any director from
serving the corporation in any other capacity, as an officer, agent, employee,
or otherwise, or from receiving compensation for those services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF THE BOARD. 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 or more directors. The
board may designate one or more directors as alternate members of any committee,
to replace any absent member at a committee meeting. The appointment of
committee members or alternate members requires the vote of a majority of the
authorized number of directors. A committee may be granted any or all of the
powers and authority of the board, to the extent provided in the resolution of
the board of directors establishing the committee, except with respect to:
(a) Approving any action for which the California Corporations Code also
requires the approval of the shareholders or of the outstanding shares;
(b) Filling vacancies on the board of directors or any committee of the
board;
(c) Fixing directors' compensation for serving on the board or a committee
of the board;
(d) Adopting, amending, or repealing bylaws;
(e) Amending or repealing any resolution of the board of directors that by
its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in a
periodic amount or within a price range determined by the board of directors; or
(g) Appointing other committees of the board or their members.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, bylaw
provisions applicable to meetings and actions of the board of directors, 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 (a) the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; (b)
special meetings of committees may also be called by resolution of the board of
directors; and (c) notice of special meetings of committees shall also be given
to all alternative members who shall have the right to attend all meetings of
the committee. The board of directors may adopt rules for the governance of any
committee not inconsistent with these bylaws.
ARTICLE V
OFFICERS
Section 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 board of directors, a chair 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, Section 3 of
this Article V. Any number of offices may be held by the same person.
Section 2. APPOINTMENT OF OFFICERS. The officers of the corporation,
except for subordinate officers appointed in accordance with Section 3 of this
Article V, shall be appointed annually by the board of directors, and shall
serve at the pleasure of the board of directors.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint, and
may empower the president to appoint other officers as required by the business
of the corporation, whose duties shall be as provided in the bylaws, or as
determined from time to time by the board of directors or the president.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by the
board of directors may be removed at any time, with or without cause or notice,
by the board of directors. Subordinate officers appointed by persons other
than the board under Section 3 of this Article V may be removed at any time,
with or without cause or notice, by the board of directors or by the officer by
whom appointed. Officers may be employed for a specified term under a contract
of employment if authorized by the board of directors; such officers may be
removed from office at any time under this section, and shall have no claim
against the corporation or individual officers or board members because of the
removal except any right to monetary compensation to which the officer may be
entitled under the contract of employment.
Any officer may resign at any time by giving written notice to the
corporation. Resignations shall take effect on the date of receipt of the
notice, unless a later time is specified in the notice. Unless otherwise
specified in the notice, acceptance of the resignation is not necessary to make
it effective. Any resignation is without prejudice to the rights, if any, of the
corporation to monetary damages under any contract of employment to which the
officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office resulting from an
officer's death, resignation, removal, disqualification, or from any other cause
shall be filled in the manner prescribed in these bylaws for regular election or
appointment to that office.
Section 6. CHAIRMAN OF THE BOARD. The board of directors may elect a
chairman, who shall preside, if present, at board meetings and shall exercise
and perform such other powers and duties as may be assigned from time to time by
the board of directors. If there is no president, the chairman of the board
shall in addition be the chief executive officer of the corporation, and shall
have the powers and duties as set forth in Section 7 of this Article V.
Section 7. PRESIDENT. Except to the extent that the bylaws or the board of
directors assign specific powers and duties to the chairman of the board (if
any), the president shall be the corporation's general manager and chief
executive officer and, subject to the control of the board of directors, shall
have general supervision, direction, and control over the corporation's business
and its officers. The managerial powers and duties of the president shall
include, but are not limited to, all the general powers and duties of management
usually vested in the office of president of a corporation, and the president
shall have other powers and duties as prescribed by the board of directors or
the bylaws. The president shall preside at all meetings of the shareholders and,
in the absence of the chairman of the board or if there is no chairman of the
board, shall also preside at meetings of the board of directors.
Section 8. VICE PRESIDENTS. If desired, one or more vice presidents may be
chosen by the board of directors in accordance with the provisions for
appointing officers set forth in Section 2 of this Article V. In the absence or
disability of the president, the president's duties and responsibilities shall
be carried out by the highest ranking available vice president if vice
presidents are ranked, or if not, by a vice president designated by the board of
directors. When so acting, a vice president
shall have all the powers of and be subject to all the restrictions on the
president. Vice presidents of the corporation shall have such other powers and
perform such other duties as prescribed from time to time by the board of
directors, the bylaws, or the president (or chairman of the board if there is no
president).
Section 9. SECRETARY
(a) Minutes. The secretary shall keep, or cause to be kept, minutes
of all of the shareholders' meetings and of all other board meetings. If the
secretary is unable to be present, the secretary or the presiding officer of the
meeting shall designate another person to take the minutes of the meeting.
The secretary shall keep, or cause to be kept, at the principal
executive office or such other place as designated by the board of directors, a
book of minutes of all meetings and actions of the shareholders, of the board of
directors, and of committees of the board. The minutes of each meeting shall
state the time and place the meeting was held; whether it was regular or
special; if special, how it was called or authorized; the names of directors
present at board or committee meetings; the number of shares present or
represented at shareholders' meetings; an accurate account of the proceedings;
and when it was adjourned.
(b) Record of Shareholders.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the transfer agent or registrar, a record
or duplicate record of shareholders. This record shall show the names of all
shareholders and their addresses, the number and classes of shares held by each,
the number and date of share certificates issued to each shareholder, and the
number and date of cancellation of any certificates surrendered for
cancellation.
(c) Notice of Meetings.
The secretary shall give notice, or cause notice to be given, of all
shareholders' meetings, board meetings, and meetings of committees of the board
for which notice is required by statute or by the bylaws. If the secretary or
other person authorized by the secretary to give notice fails to act, notice of
any meeting may be given by any other officer of the corporation.
(d) Other Duties.
The secretary shall keep the seal of the corporation, if any, in
safe custody. The secretary shall have such other powers and perform other
duties as prescribed by the board of directors or by the bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep or cause to be kept 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 limes be open
to inspection by any director.
The chief financial officer shall (1) deposit corporate funds and other
valuables in the corporation's name and to its credit with depositories
designated by the board of directors; (2) make disbursements of corporate funds
as authorized by the board; (3) render a statement of the corporation's
financial condition and an account of all transactions conducted as chief
financial officer whenever requested by the president or the board of directors;
and (4) have other powers and perform other duties as prescribed by the board of
directors or the bylaws.
Unless the board of directors has elected a separate treasurer, the chief
financial officer shall be deemed to be the treasurer for purpose of giving any
reports or executing any certificates or other documents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER AGENTS
The corporation shall, to the maximum extent permitted by the California
General Corporation Law, have power to indemnify each of its agents against
expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact that any such person is or was an agent of the corporation, and shall have
power to advance to each such agent expenses incurred in defending any such
proceeding to the maximum extent permitted by that law. For purposes of this
article, an "agent" of the corporation includes any person who is or was a
director, officer, employee, or other agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, or was a director, officer, employee, or agent of a corporation
which was a predecessor corporation of the corporation or of another enterprise
serving at the request of such predecessor corporation.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE OF SHAREHOLDER RECORD AND INSPECTION BY
SHAREHOLDERS. The corporation shall keep at its principal executive office or at
the office of its transfer agent or registrar, as determined by resolution of
the board of directors, a record of the names and addresses of all shareholders
and the number and class of shares held by each shareholder.
A shareholder or shareholders holding at least 5 percent in the aggregate
of the outstanding voting shares of the corporation have the right to do either
or both of the following:
(a) Inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours, on five days' prior written
demand on the corporation, or
(b) Obtain from the corporation's transfer agent, on written demand
and tender of the transfer agent's usual charges for this service, a list of the
names and addresses of shareholders who are entitled to vote for the election of
directors, and their shareholdings, as of the most recent record date for which
a list has been compiled or as of a specified date later than the date of
demand. This list shall be made available within five days after (i) the date of
demand or (ii) the specified later date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection on the written
demand of any shareholder or holder of a voting trust certificate, at any time
during usual business hours, for a purpose reasonably related to the holder's
interests as a shareholder or holder of a voting trust certificate. Any
inspection and copying under this section 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 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall
keep at its principal executive office, or if its principal executive office is
not in the State of California, at its principal business office in this state,
the original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the State of
California and the corporation has no principal business office in this state,
the secretary shall, on the written request of any shareholder, furnish to that
shareholder a copy of the bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF MINUTES AND ACCOUNTING RECORDS.
The minutes of proceedings of the shareholders, board of directors, and
committees of the board, and the accounting books and records shall be kept at
the principal executive office of the corporation, or at such other place or
places as designated by the board of directors. The minutes shall be kept in
written form, and the accounting books and records shall be kept either in
written form or in a form capable of being converted into written form. The
minutes and accounting books and records shall be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or holder of a voting trust certificate.
The inspection may be made in person or by an agent or attorney, and shall
include the right to copy and make extracts. These rights of inspection shall
extend to the records of each subsidiary of the corporation.
Section 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. 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 5. ANNUAL REPORT TO SHAREHOLDERS. Inasmuch as, and for as long as,
there are fewer than 100 shareholders, the requirement of an annual report to
shareholders referred to in section 1501 of the California Corporations Code is
expressly waived. However, nothing in this provision shall be interpreted as
prohibiting the board of directors from issuing annual or other periodic reports
to the shareholders, as the board considers appropriate.
Section 6. FINANCIAL STATEMENTS. The corporation shall keep a copy of each
annual financial statement, quarterly or other periodic income statement, and
accompanying balance sheets prepared by the corporation on file in the
corporation's principal executive office for 12 months; these documents shall be
exhibited at all reasonable times, or copies provided, to any shareholder on
demand.
If no annual report for the last fiscal year has been sent to
shareholders, on written request of any shareholder made more than 120 days
after the close of the fiscal year the corporation shall deliver or mail to the
shareholder, within 30 days after receipt of the request, 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.
A shareholder or shareholders holding five percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request) of
the current fiscal year, and a balance sheet of the corporation as of the end of
that period. If such documents are not already prepared, the chief financial
officer shall cause them to be prepared and shall deliver the documents
personally or mail them to the requesting shareholders within 30 days after
receipt of the request. A balance sheet, income statement, and statement of
changes in financial position for the last fiscal year shall also be included,
unless the corporation has sent the shareholders an annual report for the last
fiscal year.
Quarterly income statements and balance sheets referred to in this section
shall be accompanied by the report, if any, of independent accountants engaged
by the corporation or the certificate of an authorized corporate officer stating
that the financial statements were prepared without audit from the corporation's
books and records.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
(a) Every year, during the calendar month in which the original articles
of incorporation were filed with the California Secretary of State, or during
the
preceding five calendar months, the corporation shall file a statement with the
Secretary of State on the prescribed form, 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, the secretary, and the chief financial officer; the
street address of the corporation's principal executive office or principal
business office in this state; a statement of the general type of business
constituting the principal business activity of the corporation; and 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.
(b) Notwithstanding the provisions of paragraph (a) of this section, if
there has been no change in the information in the corporation's last annual
statement on file in the Secretary of State's office, the corporation may, in
lieu of filing the annual statement described in paragraph (a) of this section,
advise the Secretary of State, on the appropriate form, that no changes in the
required information have occurred during the applicable period.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For
purposes of determining the shareholders entitled to receive payment of
dividends or other distributions or allotment of rights, or entitled to exercise
any rights in respect of any other lawful action (other than voting at and
receiving notice of shareholders' meetings and giving written consent of the
shareholders without a meeting), the board of directors may fix in advance a
record date which shall be not more than 60 nor less than 10 days before the
date of the dividend payment, distribution, allotment, or other action. If a
record date is so fixed, only shareholders of record at the close of business on
that date shall be entitled to receive the dividend, distribution, or allotment
of rights, or to exercise the other rights, as the case may be, notwithstanding
any transfer of shares on the corporation's books after the record date, except
as otherwise provided by statute.
If the board of directors does not so fix a record date in advance, the
record date shall be at the close of business on the later of (1) the day on
which the board of directors adopts the applicable resolution or (2) the 60th
day before the date of the dividend payment, distribution, allotment of rights,
or other action.
Section 2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, 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 authorized from time to time by resolution
of the board of directors.
Section 3. EXECUTING CORPORATE CONTRACTS AND INSTRUMENTS. Except as
otherwise provided in the articles or in these bylaws, the board of directors by
resolution may authorize any officer, officers, agent, or agents to enter into
any contract or to execute any instrument in the name of and on behalf of the
corporation. This authority may be general or it may be confined to one or more
specific matters. No officer, agent, employee, or other person purporting to act
on behalf of the corporation shall have any power or authority to bind the
corporation in any way, to pledge the corporation's credit, or to render the
corporation liable for any purpose or in any amount, unless that person was
acting with authority duly granted by the board of directors as provided in
these bylaws, or unless an unauthorized act was later ratified by the
corporation.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of the shares are fully paid.
In addition to certificates for fully paid shares, the board of directors
may authorize the issuance of certificates for shares that are partly paid and
subject to call for the remainder of the purchase price, provided that the
certificates representing partly paid shares shall state the total amount of the
consideration to be paid for the shares and the amount actually paid.
All certificates shall certify the number of shares and the class or
series of shares represented by the certificate. All certificates shall be
signed in the name of the corporation by (1) either the chairman of the board of
directors, the vice chairman of the board of directors, the president, or any
vice president, and (2) either the chief financial officer, any assistant
treasurer, the secretary, or any assistant secretary.
None of the signatures on the certificate may be facsimile. If any
officer, transfer, agent, or registrar who has signed a certificate shall have
ceased to be that officer, transfer agent, or registrar before that certificate
is issued, the certificate 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 5. LOST CERTIFICATES. Except as provided in this Section 5, no new
certificates for shares shall be issued to replace old certificates unless the
old certificate is surrendered to the corporation for cancellation at the same
time. If share certificates or certificates for any other security have been
lost, stolen, or destroyed, the board of directors may authorize the issuance of
replacement certificates on terms and conditions as required by the board, which
may include a requirement that the owner give the corporation a bond (or other
adequate security) sufficient to indemnify 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 old certificate or the issuance
of the replacement certificate.
Section 6. SHARES OF OTHER CORPORATIONS: HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by one of
the following persons, listed in order of preference: (1) chairman of the board,
or person designated by the chairman of the board; (2) president, or person
designated by the president; (3) first vice president, or person designated by
the first vice president; (4) other person designated by the board of directors.
The authority to vote shares granted by this section includes the
authority to execute a proxy in the name of the corporation for purposes of
voting the shares.
Section 7. REIMBURSEMENT OF CORPORATION IF PAYMENT NOT TAX DEDUCTIBLE. If
all or part of the compensation, including expenses, paid by the corporation to
a director, officer, employee, or agent is finally determined not to be
allowable to the corporation as a federal or state income tax deduction, the
director, officer, employee, or agent to whom the payment was made shall repay
to the corporation the amount disallowed. The board of directors shall enforce
repayment of each such amount disallowed by the taxing authorities.
Section 8. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
sections 100 through 195 of the California Corporations Code shall govern the
construction of these bylaws. Without limiting the generality of this provision,
the singular number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a natural
person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY BOARD OF DIRECTORS OR SHAREHOLDERS. Except as
otherwise required by law or by the articles of incorporation, these bylaws may
be amended or repealed, and new bylaws may be adopted, by the board of directors
or by the holders of a majority of the outstanding shares entitled to vote.