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EXHIBIT 3.04
AMENDED AND RESTATED BYLAWS
OF
KRAGEN AUTO SUPPLY CO.
(A CALIFORNIA CORPORATION)
(ADOPTED BY THE SHAREHOLDERS OF THE CORPORATION AS OF OCTOBER 29, 1996)
ARTICLE I
OFFICES
Section 1. Principal Office.
The principal office for the transaction of business in this State shall
be located in the County of Alameda, State of California.
Section 2. Other Offices.
This corporation may also have offices at such other places, both within
and without the State of California, as the Board of Directors may from time to
time determine as the business of the corporation may require.
ARTICLE II
SHAREHOLDERS' MEETING
Section 1. Place of Meetings.
Meetings of shareholders may be held at such place within or without the
State of California as may be designated for that purpose from time to time by
the Board of Directors; provided, however, that if a meeting is a special
meeting that was not called by the Board of Directors or the Chairman of the
Board or the President, any other place other than the principal executive
office of the corporation must have been approved by the written consent of all
persons entitled to vote thereat and not present at the meeting, given either
before or after the meeting and filed with the Secretary of the corporation.
Section 2. Annual Meetings.
The annual meeting of the shareholders shall be held, each year, at the
time and on the day following:
Time of Meeting: 1:10 p.m.
Date of Meeting: Third Tuesday in March,
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or at such other time and/or date as the Board of Directors shall determine.
If this day shall be a legal holiday, then the meeting shall be held on the
next succeeding business day at the same hour. At the annual meeting, the
shareholders shall elect a Board of Directors, consider reports of the affairs
of the corporation and transact such other business as may properly be brought
before the meeting.
Section 3. Special Meetings.
Special meetings of the shareholders for any purpose or purposes may be
called at any time by the President, a Vice President, the Secretary, an
Assistant Secretary, the Board of Directors, or shareholders holding not less
than ten percent (10%) of the voting power of the corporation.
No business may be transacted at any meeting of shareholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), as set forth in Section 4 of this
Article II below, (b) otherwise properly brought before the meeting by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the meeting by any
shareholder of the corporation.
Section 4. Notice of Meetings.
Notices of meetings, annual or special, shall be given either personally
or in writing to shareholders entitled to vote by the Secretary or the
Assistant Secretary, or, if there be no such officer, or in the case of his
neglect or refusal by any director or shareholder.
Notices shall be sent to the shareholder's address appearing on the books
of the corporation, or supplied by him to the corporation for the purpose of
notice, not less than ten (10) days nor more than sixty (60) days before such
meeting, except in the case of a meeting for the purpose of approving a merger
or consolidation agreement, in which case the notice must be given not less
than twenty (20) days prior to the date of the meeting.
Notice of any meeting of shareholders shall specify the place, the day and
the hour of the meeting, and in case of special meetings, as provided by the
General Corporation Law of California, the general nature of the business to be
transacted, and no other business may be transacted. The notice of any meeting
at which directors are to be elected shall include the names of nominees
intended at the time of the notice to be presented by management for election.
It shall not be necessary to give any notice of the time and place of an
adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which the adjournment is taken, provided,
however, when any shareholders' meeting is adjourned for more than forty-five
(45) days or, if after adjournment, a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the
case of an original meeting.
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Section 5. Adjourned Meetings.
Any shareholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of the
shares, the holders of which are either present in person or represented by
proxy thereat, but in the absence of a quorum no other business may be
transacted at such meeting, except as provided in Section 8 of this Article II.
When a shareholders' meeting is adjourned to another time or place, except
as provided below, notice need not be given of the time and place of or of the
business to be conducted at the adjourned meeting if the time and place thereof
are announced at the meeting at which such adjournment is taken. When any
shareholders' meeting is adjourned for forty-five (45) days or more, or if
after 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 meeting.
At the adjourned meeting, provided that the quorum requirements of Section
8 of this Article II are satisfied, the corporation may transact any business
which might have been transacted at the original meeting.
Section 6. Consent to Shareholders' Meeting.
Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice if a
consent in writing, setting forth the action so taken, shall be 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; provided that
directors may be elected by such written consent only if such consent is signed
by the holders of all outstanding shares entitled to vote for the election of
directors. All such consents shall be filed with the Secretary of the
corporation. Any shareholder giving a written consent may revoke the consent
by a writing received by the Secretary of the corporation prior to the time
that written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary, but may not do so
thereafter; such revocation is effective upon its receipt by the Secretary of
the corporation. Unless the consents of all shareholders entitled to vote have
been solicited in writing, the Secretary of the corporation shall, within the
time required by law, give to those shareholders entitled to vote who have not
consented in writing notice of any shareholder approval by less than unanimous
written consent.
Section 7. Shareholders Acting Without a Meeting.
Except as provided in Article III, Section 3, any action which may be
taken at a meeting of the shareholders may be taken without a meeting, without
prior notice and without a vote, if authorized by a writing setting 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. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing.
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Section 8. Quorum.
Except as otherwise provided by law or in the Articles of Incorporation,
the holders of a majority of the shares entitled to vote present in person or
represented by proxy shall be requisite and shall constitute a quorum at all
meetings of the shareholders for the transaction of business. In the absence
of a quorum, any meeting of shareholders may be adjourned from time to time by
the vote of a majority of the shares, the holders of which are either present
in person or represented by proxy, but no other business may be transacted. At
an adjourned meeting at which the requisite amount of voting shares is
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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.
Section 9. Voting Rights.
Only persons in whose names shares entitled to vote and stand on the stock
records of the corporation on the day of any meeting of shareholders, unless
some other day be fixed by the Board of Directors for the determination of
shareholders of record, and then on such other day, shall be entitled to vote
at such meeting.
Except as provided below, the affirmative vote of a 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 or voting by classes is required for such act by the California
General Corporation Law or the Articles of Incorporation or these Bylaws.
The Board of Directors may fix a time in the future not exceeding thirty
(30) days preceding the date of any meeting of shareholders or the date fixed
for the payment of any dividend or distribution, or for the allotment of
rights, or when any change or conversion or exchange of shares shall go into
effect, as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting, or entitled to receive any dividend or
distribution, or any allotment of rights, or to exercise the rights in respect
to any change, conversion or exchange of shares. Only shareholders of record
on the date so fixed shall be entitled to notice of and to vote at such
meeting, or to receive such dividends, distribution or allotment of rights, or
to exercise such rights, notwithstanding any transfer of any shares on the
books of the company after the record date.
Section 10. Proxies.
Every person entitled to vote or execute consents shall have the right to
do so either in person or by one or more agents authorized by a written proxy
executed by such person or his duly authorized agent and filed with the
Secretary of the corporation. Any duly elected proxy shall continue in full
force and effect until revoked by the person executing it prior to the vote
pursuant thereto, which revocation may be effected by a written instrument
revoking it or by a subsequent proxy, filed with the Secretary of the
corporation, or by attendance at the meeting and voting in person.
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ARTICLE III
DIRECTORS; MANAGEMENT
Section 1. Powers.
Subject to the limitation of the Articles of Incorporation, of the Bylaws
and of the laws of the State of California as to action to be authorized or
approved by the shareholders, all corporate powers shall be exercised by or
under authority of, and the business and affairs of this corporation shall be
controlled by a Board of Directors.
Section 2. Number and Qualification.
The number of directors constituting the entire Board of Directors shall,
upon effectiveness of these Amended and Restated Bylaws be set at nine (9)
directors. The authorized number of directors may be changed by amendment to
this Section 2, Article III, of these Bylaws, adopted by a vote or written
assent of the shareholders entitled to exercise majority voting power;
provided, however, that a bylaw reducing the fixed number of directors to a
number less than five (5) cannot be adopted if the votes cast against its
adoption at a meeting, or the shares not consenting in the case of action by
written consent, are equal to more than 16-2/3 percent of the outstanding
shares entitled to vote.
Section 3. Election and Tenure of Office.
The directors shall be elected by ballot at the annual meeting of the
shareholders, to serve for one (1) year or until their successors are elected
and have qualified. Elections for directors need not be by ballot unless a
shareholder demands election by ballot at the election and before the voting
begins, or unless the Bylaws so require. The term of office of the directors
shall begin immediately after election.
Notwithstanding Section 7 of Article II of these Bylaws, no director may
be elected by written consent except by unanimous written consent of all shares
entitled to vote for the election of directors.
Section 4. Vacancies.
A vacancy on the Board of Directors shall be deemed to exist when any
authorized position of director is not then filled, whether caused by death,
resignation, removal, change in the authorized number of directors, or
otherwise, or if the shareholders fail, at any annual or special meeting of
shareholders at which any director or directors are to be elected, to elect the
full authorized number of directors to be elected at that meeting.
Unless otherwise provided in the Articles of Incorporation, vacancies in
the Board of Directors, except for a vacancy 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 the expiration of the term for which elected and until
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such director's successor has been elected and qualified. Shareholders may
elect a director or directors at any time to fill any vacancy or vacancies not
filled by the directors.
Section 5. Removal of Directors.
The entire Board of Directors or any individual director may be removed
from office as provided by Section 303 of the California General Corporation
Law.
Section 6. Resignation of Directors.
Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board of Directors
of the corporation, 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. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Section 7. Place of Meetings.
Meetings of the Board of Directors may be held at any place within or
without the state which has been designated in the notice of the meeting or, if
not stated in the notice or there is no notice, designated by resolutions of
the Board of Directors. Any meeting shall be valid, wherever held, if held by
the written consent of all members of the Board of Directors, given either
before or after the meeting and filed with the Secretary of the corporation.
Members of the Board of Directors may participate in a meeting of the
Board of Directors by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other and such participation in a meeting shall constitute presence in
person at the meeting.
Section 8. Organization Meetings.
The organization meetings of the Board of Directors shall be held
immediately following the adjournment of the annual meetings of the
shareholders.
Section 9. Other Regular Meetings.
Regular meetings of the Board of Directors may be held at the corporate
offices, or such other place as may be designated by the Board of Directors, at
the time fixed in advance by the Board of Directors. Call and notice of such
regular meetings are hereby dispensed with.
Section 10. Special Meetings - Notices.
Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the Chairman of the Board, Vice Chairman, Chief
Executive Officer or the President on the written request of a majority of the
directors and shall be held at such place or places as may be determined by the
directors, or as shall be stated in the call of the meeting.
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Written notice of the time and place of special meetings shall be
delivered personally to each director or sent to each director by letter,
telephone, facsimile or by telegram, charges prepaid, addressed to him at his
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 in the United States mail at least four (4) days
prior to the time of the holding of the meeting. In case such notice is
delivered personally, by telephone, by telegram or by facsimile, it shall be
delivered at least forty-eight (48) hours prior to the time of the holding of
the meeting.
Section 11. Waiver of Notice.
When all of the directors are present at any directors' meeting, however
called or noticed, and sign a written consent thereto on the records of such
meeting, or, if a majority of the directors are present, and if those not
present sign a written waiver of notice of such meeting, whether prior to or
after the holding of such meeting, which said waiver shall be filed with the
Secretary of the corporation, the transactions thereof are as valid as if had
at a meeting regularly called and noticed.
Section 12. Directors Acting Without a Meeting by Unanimous Written
Consent.
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting and with the same force and effect as if taken by a
unanimous vote of directors, if authorized by a writing signed by all members
of the Board of Directors. Such consent shall be filed with the regular
minutes of the Board of Directors.
Section 13. Notice of Adjournment.
Notice of the time and place of holding an adjourned meeting shall be
given to absent directors prior to the time of the meeting if the adjournment
is for more than twenty-four (24) hours.
Section 14. Quorum.
A majority of the number of directors as fixed by the Articles of
Incorporation or Bylaws shall be necessary to constitute a quorum for the
transactions of business, and the action of a majority of the directors present
at any meeting at which there is a quorum, when duly assembled, is valid as a
corporate act; provided that a minority of the directors, in the absence of a
quorum, may adjourn from time to time, but may not transact any business. A
duly called and noticed Board of Directors meeting at which a quorum is
initially present and assembled shall be able to continue the transaction of
business notwithstanding the withdrawal of a sufficient number of directors to
break a quorum provided that any action so taken is approved by at least a
majority of the required quorum for such a meeting.
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Section 15. Compensation of Directors.
Compensation of directors and reimbursement of their expenses incurred in
connection with the business of the corporation, if any, shall be as determined
from time to time by resolution of the Board of Directors.
Section 16. Committees.
By resolution adopted by a majority of the authorized number of Directors,
the Board of Directors may designate one or more committees, each consisting of
two or more directors, to serve at the pleasure of the Board of Directors. The
appointment of members or alternate members of a committee shall be by a
majority vote of the authorized number of Directors.
The provisions of these Bylaws with respect to notice, conduct of meetings
of the board of directors and indemnification shall govern committees of the
Board of Directors and action by such committees, unless, to the extent
permitted by the General Corporation Law, the board of directors shall
otherwise prescribe.
Section 17. Participation at Meetings by Telephone.
Members of the Board of Directors may participate in a meeting through use
of conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another. Participation in a
meeting as permitted in the preceding sentence constitutes presence in person
at such meeting.
ARTICLE IV
OFFICERS
Section 1. Officers.
The officers of the corporation shall be a President, a Vice President, a
Secretary and a Treasurer. The corporation may also have, at the discretion
of, the Board of Directors, a Chairman of the Board, one or more additional
Vice Presidents (one or more of which may be designated Executive or Senior
Vice Presidents or as otherwise determined by the Board of Directors), a
Controller, one or more Assistant Secretaries, one or more Assistant
Controllers, one or more Assistant Treasurers, and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article.
Any number of offices may be held by the same person.
Section 2. Election.
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Section 3 or Section 5 of this Article,
shall be chosen annually by the Board of Directors, and each shall hold his
office until he shall resign or shall be removed or otherwise disqualified to
serve, or his successor shall be elected and qualified.
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Section 3. Subordinate Officers, etc.
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. 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 any 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, or to the President, or to the Secretary of the corporation. Any
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein. Unless otherwise specified therein, the
acceptance of the resignation shall not be necessary to make it effective.
Section 5. Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
the Bylaws for regular appointments to such office.
Section 6. 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 shall exercise
and perform such other powers and duties as may be from time to time assigned
to him by the Board of Directors or prescribed by the Bylaws.
Section 7. Chief Executive Officer.
The Chief Executive Officer, if one be elected, shall, in the absence or
disability of the Chairman, preside at all meetings of the shareholders and at
all meetings of the Board of Directors, and shall have general supervision,
direction and control of the business and affairs of the corporation subject to
the authorization and control of the Board of Directors, and shall have such
other power and authority and perform such other duties as may be prescribed by
these Bylaws or as may be assigned from time to time by the Board of Directors.
In the absence or disability of the Chief Executive Officer, the
President, if available, and if the President is not available the Chief
Operating Officer, if available, shall have the authority, and shall perform
the duties, of the Chief Executive Officer.
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Section 8. President.
The President shall, in the absence or disability of the Chairman and
Chief Executive Officer, preside at all meetings of the shareholders and at all
meetings of the Board of Directors, and shall have such other power and
authority and perform such other duties as may be prescribed by these Bylaws or
as may be assigned from time to time by the Board of Directors or the Chief
Executive Officer.
In the absence or disability of the Chief Executive Officer, the
President, if available, shall have the authority, and shall perform the
duties, of the Chief Executive Officer.
Section 9. Chief Operating Officer.
The Chief Operating Officer, if one be elected, shall have such power and
authority and perform such duties as may be prescribed by these Bylaws or as
may be assigned from time to time by the Board of Directors.
In the absence or disability of the President, the Chief Operating
Officer, if available, shall have the authority, and shall perform the duties,
of the President. In addition, in the absence or disability of the Chief
Executive Officer and the President, the Chief Operating Officer, if available,
shall have the authority and perform the duties of the Chief Executive Officer.
Section 10. Vice-President.
Each Vice-President shall have such power and authority and perform such
duties as may be prescribed by these Bylaws or as may be assigned from time to
time by the Board of Directors or the Chief Executive Officer.
The Board of Directors may designate one or more Vice-Presidents, in such
order of priority as shall be specified by the Board of Directors, to have the
authority, and to perform the duties, of the Chief Executive Officer in the
absence or disability of the Chief Executive Officer, the President and the
Chief Operating Officer; provided, however, that no Vice-President shall have
such authority or perform such duties unless specifically designated for that
purpose by the Board of Directors.
Section 11. Chief Financial Officer.
The Chief Financial Officer shall have the custody of the corporate funds
and securities, shall keep full and accurate account of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuables in the name and to the credit of the corporation in
such depositaries as may be designated by the Board of Directors.
The Chief Financial Officer shall disburse the funds of the corporation as
may be ordered by the Board of Directors, or the Chief Executive Officer,
taking proper vouchers for such disbursements. He shall render to the Chief
Executive Officer and Board of Directors at the regular meetings of the Board
of Directors, or whenever they may request it, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
corporation. If
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required by the Board of Directors, he shall give the corporation a bond for
the faithful discharge of his duties in such amount and with such surety as the
Board of Directors shall prescribe.
Section 12. Secretary.
The Secretary shall give, or cause to be given, notice of all meetings of
shareholders and directors, and all other notices required by law or by these
Bylaws, and in case of his absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chief Executive
Officer, the President, the Chairman or by the Board of Directors or
shareholders, upon whose requisition the meeting is called as provided in these
Bylaws.
The Secretary shall record all the proceedings of the meetings of the
corporation and of the directors in a book to be kept for that purpose, and
shall perform such other duties as may be assigned to him by the Chief
Executive Officer or the Board of Directors. He shall have custody of the seal
of the corporation and shall affix the same to all instruments requiring it,
when authorized by the Chief Executive Officer or the Board of Directors, and
attest the same.
Section 13. Assistants.
Assistant Chief Financial Officers, if any shall be elected, shall, in the
absence of the Chief Financial Officer, have the authority, and perform the
duties, of the Chief Financial Officer, and shall have such other power and
authority and perform such other duties as may be prescribed by these Bylaws or
as may be assigned from time to time by the Board of Directors or the Chief
Executive Officer.
Assistant Secretaries, if any shall be elected, shall, in the absence of
the Secretary, have the authority and perform the duties, of the Secretary, and
shall have such other power and authority and perform such other duties as may
be prescribed by these Bylaws or as may be assigned from time to time by the
Board of Directors or the Chief Executive Officer.
ARTICLE V
CORPORATE RECORDS AND REPORTS --- INSPECTION
Section 1. Records.
The corporation shall maintain adequate and correct accounts, books and
records of its business and properties at its principal place of business in
the State of California, as fixed by the Board of Directors from time to time.
Section 2. Inspection of Books and Records.
All books and records provided for in Sections 1600 through 1602 of the
California General Corporation Law shall be open to inspection of the directors
and shareholders from time to time and in the manner provided in Sections 1600
through 1602.
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Section 3. Certification and Inspection of Bylaws.
The original or a copy of these Bylaws, as amended or otherwise altered to
date, certified by the Secretary, shall be open to inspection by the
shareholders of the corporation, as provided in Section 213 of the California
General Corporation Law.
Section 4. Checks.
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
shall be determined from time to time by resolution of the Board of Directors.
Section 5. Contracts.
The Board of Directors may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the corporation. Such authority may be general or confined to
specific instances. Unless so authorized by the Board of Directors, no
officer, agent or employee shall have any power or authority to bind the
corporation in any material matter by any contract or engagement, or to pledge
its credit to any significant extent or to render it liable for any material
purposes or to any significant amount.
ARTICLE VI
CERTIFICATES AND TRANSFER OF SHARES
Section 1. Certificates for Shares.
Certificates for shares shall be of such form and device as the Board of
Directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a statement of the rights, privileges, preferences and
restrictions, if any; a statement as to the redemption or conversion, if any; a
statement of liens or restrictions upon transfer or voting if any; if the
shares be assessable or, if assessments are collectible by personal action, a
plain statements of such facts.
Every certificate for shares must be signed by the President or a Vice
President and the Secretary or an Assistant Secretary or by facsimiles of the
signatures of the President and Secretary.
Section 2. Transfer on the Books.
Upon surrender to the Secretary or transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
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Section 3. Lost or Destroyed Certificates.
Where the holder of a share certificate claims that the certificate has
been lost, destroyed or wrongfully taken, the holder shall make an affidavit or
affirmation of that fact and advertise the same in such manner as the Board of
Directors may require, and shall, if the directors so require, give the
corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the Board, in at least double the value of the stock
represented by said certificate, whereupon a new certificate shall be issued in
the same tenor and for the same number of shares as the one alleged to be lost,
destroyed or wrongfully taken if the owner so requests before the corporation
has notice that the share has been acquired by a bona fide purchaser.
Where a share certificate has been lost, apparently destroyed or
wrongfully taken and the owner fails to notify the corporation of that fact
within a reasonable time after he has notice of it, and the corporation
registers a transfer of the shares represented by the certificate before
receiving such a notification, the owner is precluded from asserting against
the corporation any claim to a new certificate.
If after the issue of a new certificate as a replacement for a lost,
destroyed or wrongfully taken certificate, a bona fide purchaser of the
original certificate presents it for registration of transfer, the corporation
must register the transfer unless registration would result in overissue. In
addition to any rights on the indemnity bond, the corporation may recover the
new certificate from the person to whom it was issued or any person taking
under him except a bona fide purchaser.
Section 4. Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars which shall be an incorporated bank or trust
company, either domestic or foreign, and which shall be appointed at such times
and places as the requirements of the corporation may necessitate and the Board
of Directors may designate.
Section 5. Closing Stock Transfer Books.
The Board of Directors may close the transfer books in its discretion for
a period not exceeding thirty (30) days preceding any meeting, annual or
special, of the shareholders, or the day appointed for the payment of a
dividend.
Section 6. Legend Condition.
In the event any shares of this corporation are issued pursuant to a
permit or exemption therefrom requiring the imposition of a legend condition,
the person or persons issuing or transferring such shares shall make sure the
legend appears on the certificate and on the stub relating thereto in the stock
record book and shall not be required to transfer any shares free of such
legend unless an amendment to the permit or a new permit is issued authorizing
such a deletion.
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ARTICLE VII
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation and the word
"California".
ARTICLE VIII
INDEMNIFICATION
Section 1. Indemnification.
The corporation shall indemnify any person who is or was an agent (as such
term is defined in Section 317 of the California General Corporation Law) of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or other agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation, to the full extent permitted by
Section 317 of the California General Corporation Law and applicable law.
Section 2. Advancing Expenses.
Expenses incurred in defending any proceeding may be advanced by this
corporation prior to the final disposition of such proceeding upon receipt of
an undertaking by or on behalf of the agent to repay such amount if it shall be
determined ultimately that the agent is not entitled to be indemnified as
authorized in this Article VIII.
Section 3. Liability Insurance.
This corporation may purchase and maintain insurance on behalf of any
agent of this corporation against any liability asserted against or incurred by
the agent in such capacity or arising out of the agent's status as such,
whether or not this corporation would have the power to indemnify the agent
against such liability under the provisions of this Article VIII.
ARTICLE IX
AMENDMENTS TO BYLAWS
Section 1. By Shareholders.
New Bylaws may be adopted or these Bylaws may be repealed or amended at
the annual meeting, or any other meeting of the shareholders called for that
purpose, by a vote of shareholders entitled to exercise a majority of the
voting power of the corporation, or by written assent of such shareholders.
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Section 2. Powers of Directors.
Subject to the right of the shareholders to adopt, amend or repeal Bylaws,
as provided in Section 1 of this Article IX, the Board of Directors may adopt,
amend or repeal any of these Bylaws, except as provided in Section 2, Article
III of these Bylaws or as provided by applicable law.
Section 3. Record of Amendments.
Whenever an amendment or new Bylaw is adopted, it shall be copied in the
book of Bylaws with the original Bylaws in the appropriate place. If any Bylaw
is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or written assent was filed shall be stated in said book.
ARTICLE X
INCORPORATION BY REFERENCE
Whenever any reference is made in these Bylaws to any legislative
enactment, whether law, statute or ordinance, such enactment shall be deemed
incorporated by reference herein.
ARTICLE XI
LOANS TO OFFICERS OR DIRECTORS
The Board of Directors (without shareholder approval) may approve any loan
of money or property to, or guarantee the obligation of any director or officer
of the corporation or of its parent as provided by Section 315 of the
California General Corporation Law.
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