EXHIBIT 3.20
BYLAWS
OF
NIGUEL ENERGY COMPANY
AS AMENDED THROUGH MAY 10, 1994
NIGUEL ENERGY COMPANY
INDEX
Article I -- Offices
Section 1.1 Principal Executive Office................... 1
Section 1.2 Other Offices................................ 1
Article II -- Shareholders
Section 2.1 Meeting Locations............................ 1
Section 2.2 Annual Meetings.............................. 1
Section 2.3 Special Meetings............................. 2
Section 2.4 Notice of Annual or Special Meeting.......... 2
Section 2.5 Quorum; Adjournment.......................... 3
Section 2.6 Adjourned Meeting and Notice Thereof......... 3
Section 2.7 Voting....................................... 4
Section 2.8 Record Date.................................. 4
Section 2.9 Consent of Absentees; Waiver of Notice....... 5
Section 2.10 Action Without Meeting....................... 5
Section 2.11 Proxies...................................... 6
Article III -- Directors
Section 3.1 Powers....................................... 6
Section 3.2 Number of Directors.......................... 7
Section 3.3 Election and Term of Office.................. 7
Section 3.4 Vacancies.................................... 7
Section 3.5 Place of Meeting............................. 8
Section 3.6 Organization Meeting......................... 8
Section 3.7 Special Meetings............................. 8
Section 3.8 Quorum....................................... 9
Section 3.9 Participation in Meetings by
Conference Telephone......................... 9
Section 3.10 Waiver of Notice............................. 9
Section 3.11 Adjournment.................................. 10
Section 3.12 Fees and Compensation........................ 10
Section 3.13 Action Without Meeting....................... 10
Article IV -- Officers
Section 4.1 Officers..................................... 10
Section 4.2 Election..................................... 11
Section 4.3 Eligibility of Chairman of the
Board or President........................... 11
Section 4.4 Removal and Resignation...................... 11
Section 4.5 Appointment of Other Officers................ 11
Section 4.6 Vacancies.................................... 11
Section 4.7 Salaries..................................... 12
Section 4.8 Chairman of the Board........................ 12
Section 4.9 President.................................... 12
Section 4.10 Vice President............................... 12
Section 4.11 Chief Operating Officer...................... 13
Section 4.12 General Manager.............................. 13
Section 4.13 General Counsel.............................. 13
Section 4.14 Assistant General Counsel.................... 13
Section 4.15 Controller................................... 13
Section 4.16 Secretary.................................... 14
Section 4.17 Assistant Secretary.......................... 14
Section 4.18 Secretary Pro Tempore........................ 14
Section 4.19 Treasurer.................................... 14
Section 4.20 Assistant Treasurer.......................... 15
Section 4.21 Performance of Duties........................ 15
Article V -- Other Provisions
Section 5.1 Inspection of Bylaws......................... 15
Section 5.2 Contracts and Other Instruments, Loans,
Notes and Deposit of Funds................... 15
Section 5.3 Representation of Shares of Other
Corporations................................. 16
Section 5.4 Annual Report to Shareholders................ 16
Section 5.5 Fiscal Year and Subdivisions................. 16
Section 5.6 Construction and Definitions................. 16
Article VI -- Indemnification
Section 6.1 Indemnification of Directors
and Officers................................. 17
Section 6.2 Indemnification of Employees and Agents...... 18
Section 6.3 Right of Directors and Officers to Bring
Suit......................................... 19
Section 6.4 Successful Defense........................... 19
Section 6.5 Nonexclusivity of Rights..................... 19
Section 6.6 Insurance.................................... 19
Section 6.7 Expenses as a Witness........................ 20
Section 6.8 Indemnity Agreements......................... 20
Section 6.9 Severability................................. 20
Section 6.10 Effect of Repeal or Modification............. 20
Article VII -- Amendments
Section 7.1 Amendments................................... 21
BYLAWS
Bylaws for the regulation, except
as otherwise provided by statute
or its Articles of Incorporation
of
NIGUEL ENERGY COMPANY
AS AMENDED THROUGH MAY 10, 1994
ARTICLE I -- OFFICES
Section 1.1 Principal Executive Office
The principal executive office of the corporation is hereby fixed
and located at 18101 Von Karman Avenue, Suite 1700, in the City of Irvine,
County of Orange, State of California. The Board of Directors ("the Board") is
hereby granted full power and authority to change the principal executive
office from one location to another.
Section 1.2 Other Offices
Branches or subordinate offices may be established at any time by
the Board of Directors or the President at any place within or without the
State of California.
ARTICLE II -- SHAREHOLDERS
Section 2.1 Meeting Locations.
All meetings of shareholders shall be held at the principal
executive office, or at such other office or places within or without the
State of California as may be designated by either the Board or by the person
or persons giving notice of the meeting pursuant to Section 2.4.
Section 2.2 Annual Meetings.
The annual meeting of shareholders shall be held on the 2nd Tuesday
in the month of May of each year, at the hour of 4:00 p.m. on said day, or at
such other time on such other day as shall be fixed by the Board, to elect
directors to hold office for the year next ensuing and until their successors
shall be elected, and to consider and act upon such other matters as may
lawfully be presented to such meeting; provided, however, that should said day
fall upon a legal holiday observed by this corporation, then any such annual
meeting of shareholders shall
be held at the same time and place on the next day thereafter ensuing which is
a full business day.
Section 2.3 Special Meetings
Special meetings of the shareholders may be called at any time by
the Board, the Chairman of the Board, if any, the President, the Executive
Vice President, if any, the Senior Vice President, if any, or the holders of
shares entitled to cast not less than ten percent of the votes at such
meeting. Upon request to the Chairman of the Board, if any, the President, the
Executive Vice President, the Senior Vice President, the Secretary or
Assistant Secretary by any person entitled to call a special meeting of
shareholders, the officer forthwith shall cause notice to be given to the
shareholders entitled to vote that a meeting will be held at a time requested
by the person or persons calling the meeting, not less than thirty-five nor
more than sixty days after the receipt of the request. If the notice is not
given within twenty days after receipt of the request, the persons entitled to
call the meeting may give the notice.
Section 2.4 Notice of Annual or Special Meeting.
Written notice of each annual or special meeting of shareholders
shall be given not less than ten nor more than sixty days before the date of
the meeting to each shareholder entitled to vote thereat. Such notice shall
state 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, and no other
business may be transacted, or (ii) in the case of the annual meeting, those
matters which the Board, at the time of the mailing of the notice, intends to
present for action by the shareholders, but subject to the provisions of
applicable law, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the name of nominees intended at the time of the notice to be
presented by the Board for election.
Notice of a shareholders' meeting or any report to the shareholders
shall be given either personally to the recipient or to a person in the office
of the recipient or by first-class United States mail, by private mail or
messenger service, by telephone facsimile transmission, or by any other means
of written communication, addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice; or if no such
address appears or is given, at the place where the principal executive office
of the corporation is located or by publication at least once in a newspaper
of general circulation in the county in which the principal executive office
is located. Such notice or report shall be deemed to have been given at the
time when delivered
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personally, deposited in the United States mail or sent by private mail or
messenger service, by telephone facsimile transmission or sent by any other
means of written or electronic communication.
Section 2.5 Quorum; Adjournment.
(a) A majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum at any meeting of the shareholders.
(b) Except as provided in subsection (c) 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 by the Articles.
(c) The shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact 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.
(d) In the absence of a quorum, any meeting of shareholders may be
adjourned from time to time by the vote of a majority of the shares
represented either in person or by proxy, but no other business may be
transacted, except as provided in subsection (c) above.
Section 2.6 Adjourned Meeting and Notice Thereof.
Any shareholders' meeting, 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 (except as permitted by applicable law in the
case of withdrawals by shareholders to reduce the number remaining to less
than a quorum) no other business may be transacted at such meeting.
With exceptions under Section 601(d) of the California Corporations
Code and any other applicable law, it shall not be necessary to give any
notice of the time and place of the adjourned meeting or of the business to be
transacted thereat, other than by announcement at the meeting at which such
adjournment is taken. At the adjourned meeting, the corporation may transact
any business which might have been transacted at the original meeting.
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Section 2.7 Voting.
The shareholders entitled to notice of any meeting or to vote at any
such meeting shall be only persons in whose name shares stand on the stock
records of the corporation on the record date determined in accordance with
Section 2.8.
Voting shall in all cases be subject to the provisions of Chapter 7
of the California General Corporation Law, including the following provisions:
(a) Shares standing in the name of another corporation, domestic or
foreign, may be voted by an officer, agent, or proxyholder as
the bylaws of the other corporation may prescribe or, in the
absence of such provision, as the Board of the other
corporation may determine or, in the absence of that
determination, by the chairman of the board, president or any
vice president of the other corporation, or by any other person
authorized to do so by the chairman of the board, president, or
any vice president of the other corporation. Shares which are
purported to be voted or any proxy purported to be executed in
the name of a corporation (whether or not any title of the
person signing is indicated) shall be presumed to be voted or
the proxy executed in accordance with the provisions of the
California General Corporation Law, unless the contrary is
shown.
(b) Shares of this corporation owned by its subsidiary shall not be
entitled to vote on any matter.
(c) Shares of this corporation held by this corporation in a
fiduciary capacity, and shares of this corporation held in a
fiduciary capacity by its subsidiary, shall not be entitled to
vote on any matter, except as follows: (i) to the extent that
the settlor or beneficial owner possesses and exercises a right
to vote or to give this corporation binding instructions as to
how to vote such shares; or (ii) where there are one or more
co-trustees who are not affected by the prohibition of this
subsection, in which case the shares may be voted by the
co-trustees as if it or they are the sole trustees.
Section 2.8 Record Date.
The Board may fix, in advance, a record date for the determination
of the shareholders entitled to notice of any meeting or to vote or entitled
to receive payment of any dividend
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or other distribution, or any allotment of any rights or entitled to exercise
any rights, in respect of any other lawful action. The record date so fixed
shall be not more than sixty days nor less than ten days prior to the date of
the meeting nor more than sixty days prior to any other action. When a record
date is so fixed, only shareholders of record at the close of business on that
date are entitled to notice of and to vote at the meeting or to receive the
dividend, distribution, or allotment of rights, or to exercise the rights, as
the case may be, notwithstanding any transfer of shares on the books of the
corporation after the record date, except as otherwise provided by law or
these Bylaws.
Section 2.9 Consent of Absentees; Waiver of Notice.
The transactions of any meeting of shareholders, however called and
noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting or an approval of the
minutes thereof. All such waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Attendance
of a person at a meeting shall constitute a waiver of notice of and presence
at such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by this
division to be included in the notice but not so included, if such objection
is expressly made at the meeting. Neither the business to be transacted at nor
the purpose of any regular or special meeting of shareholders need be
specified in any written waiver of notice, consent to the holding of the
meeting or approval of the minutes thereof, unless otherwise provided in the
Articles or Bylaws, except as provided in the California General Corporation
Law.
Section 2.10 Action Without Meeting.
Subject to Section 603 of the California General Corporation Law,
any action which, under any provision of the California General Corporation
Law, 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.
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Section 2.11 Proxies.
Every person entitled to vote shares has the right to do so either
in person or by one or more persons authorized by a written proxy executed by
such shareholder and filed with the Secretary. No proxy shall be valid after
the expiration of eleven (11) months from the date thereof, unless otherwise
provided in the proxy.
ARTICLE III -- DIRECTORS
Section 3.1 Powers.
Subject to any limitations of the Articles, of these Bylaws and of
the California General Corporation Law 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. The Board may delegate the
management of the day-to-day operation of the business of the corporation
provided that the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised under the ultimate direction of the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board shall have the
following powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove all the other officers, agents and
employees of the corporation, prescribe the powers and duties
for them as may not be inconsistent with law, with the Articles
or these Bylaws, fix their compensation and require from them
security for faithful service.
(b) To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not
inconsistent with law, or with the Articles or these Bylaws, as
they may deem best.
(c) To adopt, make and use a corporate seal, and to prescribe the
forms of certificates of stock, and to alter the form of such
seal and of such certificates from time to time as in their
judgment they deem best.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration
as may be lawful.
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(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered
therefor, in the corporate name, promissory notes, bonds,
debentures, deeds of trust, mortgages, pledges, hypothecations
or other evidences of debt and securities therefor.
Section 3.2 Number of Directors.
The authorized number of directors shall not be less than three (3)
nor more than six (6) until changed by amendment of the Articles or by a Bylaw
duly adopted by the shareholders. The exact number of directors shall be
fixed, within the limits specified, by the Board or the shareholders in the
same manner provided in these Bylaws for the amendment thereof. The exact
number of authorized directors shall be six (6) until changed as provided in
these Bylaws.
Section 3.3 Election and Term of Office.
The directors shall be elected at each annual meeting of the
shareholders, but if any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose. Each director shall hold office until the
next annual meeting and until a successor has been elected and qualified.
Section 3.4 Vacancies.
Any director may resign effective upon giving written notice to the
Chairman of the Board, if any, the President, the Secretary, or the Board,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Vacancies in the Board, except those existing as a result of a
removal of a director, may be filled by a majority of the remaining directors,
whether or not less than a quorum, or by a sole remaining director, and each
director so elected shall hold office until the next annual meeting and until
such director's successor has been elected and qualified. Vacancies existing
as a result of a removal of a director may be filled by the shareholders as
provided by law.
A vacancy or vacancies in the Board shall be deemed to exist in case
of the death, resignation or removal of any director, or if the authorized
number of directors be increased, or if the shareholders fail, at any annual
or special meeting of shareholders at which any director or directors are
elected, to
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elect the full authorized number of directors to be voted for at that meeting.
The shareholders may elect a director or directors at any time to
fill any vacancy not filled by the directors. Any such election by written
consent other than to fill a vacancy created by removal requires the consent
of a majority of the outstanding shares entitled to vote. If the Board accepts
the resignation of a director tendered to take effect at a future time, the
Board or the shareholders shall have power to elect a successor to take office
when the resignation is to become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of the director's term
of office.
Section 3.5 Place of Meeting.
Regular or special meetings of the Board shall be held at any place
within or without the State of California which has been designated from time
to time by the Board or as provided in these Bylaws. In the absence of such
designation, regular meetings shall be held at the principal executive office.
Section 3.6 Organization Meeting.
Promptly following each annual meeting of shareholders the Board
shall hold a regular meeting for the purpose of organization, election of
officers and the transaction of other business.
Section 3.7 Special Meetings.
Special meetings other than organization meetings of the Board for
any purpose or purposes may be called at any time by the Chairman of the
Board, if any, the President, any Executive Vice President, Senior Vice
President, the Secretary, an Assistant Secretary or by any two directors.
Such meetings of the Board shall be held upon four days' written
notice by mail or forty-eight hours' notice given personally or by telephone,
telephone facsimile transmission, telegraph, telex or other similar means of
communication. Any such notice shall be addressed or delivered to each
director at such director's address as it is shown upon the records of the
corporation or as may have been given to the corporation by the director for
purposes of notice or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held. The notice need not specify the purpose of such meeting.
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Notice by first-class mail shall be deemed to have been given at the
time a written notice is deposited in the United States mail, postage prepaid
or sent by private mail or messenger service. Any other written notice shall
be deemed to have been given at the time it is personally delivered to the
recipient, to a person in the office of the recipient who the person giving
the notice has reason to believe will promptly communicate it to the
recipient, delivered to a common carrier for transmission, or actually
transmitted by the person giving the notice by electronic means to the
recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person, by telephone to the recipient or to a person at the
office of the recipient who the person giving the notice has reason to believe
will promptly communicate it to the recipient.
Section 3.8 Quorum.
One-third of the maximum number of authorized directors constitutes
a quorum of the Board for the transaction of business, except to adjourn as
provided in Section 3.11 of this Article. As defined in Article III, Section
3.2, the maximum number of authorized directors is six. 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, unless a
greater number is required by law or by the Articles; provided, however, that
a meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
Section 3.9 Participation in Meetings by Conference Telephone.
Members of the Board 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. Such participation
constitutes presence in person at such meeting.
Section 3.10 Waiver of Notice.
The transactions of any meeting of the Board, however called and
noticed or wherever held, are as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, a consent to holding such meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
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Section 3.11 Adjournment.
A majority of the directors present, whether or not a quorum is
present, may adjourn any directors' meeting to another time and place. Notice
of the time and place of holding an adjourned meeting need not be given to
absent directors if the time and place is fixed at the meeting adjourned. If
the meeting is adjourned for more than twenty-four hours, notice of any
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
Section 3.12 Fees and Compensation.
Directors and members of committees may receive such compensation,
if any, for their services, and such reimbursement for expenses, as may be
fixed or determined by the Board.
Section 3.13 Action Without Meeting.
In accordance with the provisions of Section 307(8)(b) of the
California General Corporation Law, any action required or permitted to be
taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall have the same force and effect as a
unanimous vote of the Board and shall be filed with the minutes of the
proceedings of the Board.
ARTICLE IV -- OFFICERS
Section 4.1 Officers.
The officers of the corporation shall be a President, Vice
President, a Controller, a Secretary and a Treasurer. The corporation may also
have, at the discretion of the Board, a Chairman of the Board, one or more
additional Vice Presidents, a Chief Operating Officer, a General Manager,
General Counsel, one or more Assistant General Counsels, one or more Assistant
Controllers, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 4.5 of this Article.
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Section 4.2 Election.
The officers of the corporation, except such officers as may
be elected or appointed in accordance with the provisions of Section 4.5 or
Section 4.6 of this Article, shall be chosen annually by, and shall serve at
the pleasure of the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected.
Section 4.3 Eligibility of Chairman of the Board or President.
No person shall be eligible for the office of Chairman of the Board,
if there shall be such an officer, or President unless such person is a member
of the Board of the corporation; any other officer may or may not be a
director.
Section 4.4 Removal and Resignation.
Any officer may be removed, either with or without cause, by the
Board at any time or by any officer upon whom such power of removal may be
conferred by the Board. Any such removal shall be without prejudice to the
rights, if any, of the officer under any contract of employment of the
officer.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract of employment to which the officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4.5 Appointment of Other Officers.
The Board 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 may from time to time determine. Notwithstanding the job title for
such person, no employee or other representative of this corporation shall be
an officer of this corporation unless elected by the Board.
Section 4.6 Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in
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the manner prescribed in these Bylaws for regular election or appointment to
such office.
Section 4.7 Salaries.
The salaries of the Chairman of the Board, if any, President,
General Manager, if any, Vice Presidents, Controller, Treasurer and Secretary
of the corporation shall be fixed by the Board. Salaries of all other officers
shall be approved from time to time by the chief executive officer.
Section 4.8 Chairman of the Board.
The Chairman of the Board, if there shall be such an officer, shall
preside at all meetings of the Board, and shall exercise such powers and
perform such duties as from time to time may be conferred upon or assigned to
him by the Board or the Bylaws.
Section 4.9 President.
Subject to such supervisory powers, if any, as may be given by the
Board to the Chairman of the Board, if there be such an officer, the President
shall be the chief executive officer of the corporation and has, subject to
the control of the Board, general supervision, direction, and control of the
business and affairs of the corporation. The President shall preside at all
meetings of the shareholders and, in the absence of the Chairman of the Board
or if there be none, at all meetings of the Board. The President has the
general powers and duties of management usually vested in the office of
president of a corporation and has such other powers and duties as may be
prescribed by the Board or the Bylaws. The President may designate from time
to time the titles which the employees or other representatives of this
corporation shall use, including the appointment of agent for service of
process. Without limiting the foregoing, the President may designate one or
more employees as regional vice-presidents.
Section 4.10 Vice President.
In the absence or disability of the President, the Vice Presidents
in order of their rank shall perform all the duties of the President and when
so acting shall have all the powers of, and be subject to all the restrictions
upon the President. The Board of Directors may establish the order of rank of
the Vice Presidents. In the absence of such ranking, the Vice Presidents shall
be ranked as follows: Executive Vice President (if any), Senior Vice President
(if any). Vice Presidents holding
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identical titles shall be ranked in order of election to that office by the
Board.
Section 4.11 Chief Operating Officer.
The Chief Operating Officer, if there shall be such an officer, must
be a vice president of the corporation and shall be subject to the exercise of
the general powers of supervision, direction and control of the business and
officers of the corporation by the President, and supervise the operations of
the corporation.
Section 4.12 General Manager.
The General Manager, if there shall be such an officer, must be a
vice president of the corporation and shall, subject to the exercise of the
general powers of supervision, direction and control by the President, or the
Chief Operating Officer, if any, shall manage the operations of the
corporation. In the absence of the Chief Operating Officer, the General
Manager shall perform all the duties of the Chief Operating Officer and when
so acting shall have all the powers of, and be subject to, all the
restrictions upon the Chief Operating Officer.
Section 4.13 General Counsel.
The General Counsel shall be the chief consulting officer of the
corporation in all legal matters and, subject to the President, shall have
control over all matters of legal import concerning the corporation.
Section 4.14 Assistant General Counsel.
One or more Assistant General Counsels, if any, shall perform such
of the duties of the General Counsel as the General Counsel may designate, and
in the absence or disability of the General Counsel, any Assistant General
Counsel, in order of election to that office by the Board, shall perform the
duties of the General Counsel.
Section 4.15 Controller.
The Controller shall be the chief accounting officer of the
corporation and shall have control over all accounting matters concerning the
corporation and shall perform such other duties as the President or General
Manager shall designate.
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Section 4.16 Secretary.
The Secretary shall keep or cause to be kept, at the principal
executive office and such other place as the Board may order, a book of
minutes of all meetings of the shareholders, the Board, and its committees,
and a share register or a duplicate share register.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board and any committees thereof
required by the Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, shall from time to time issue such corporate
secretarial certificates as may be required for the business and affairs of
the corporation, and shall have such other general powers and duties of
management usually vested in the office of secretary of a corporation and as
may be prescribed by the Board, the President or the Bylaws.
Section 4.17 Assistant Secretary.
One or more Assistant Secretaries, if any, shall perform such of the
duties of the Secretary as the Secretary shall designate, and in the absence
or disability of the Secretary, any Assistant Secretary, in order of election
to that office by the Board, shall perform the duties of the Secretary.
Section 4.18 Secretary Pro Tempore.
At any meeting of the Board or of the shareholders from which the
Secretary and Assistant Secretary are absent, a Secretary pro tempore may be
appointed by the Board of Directors or shareholders as appropriate and act.
Section 4.19 Treasurer.
The Treasurer is the chief financial officer of the corporation and
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the
corporation. The books of account shall at all times be open to inspection by
any director.
The Treasurer shall deposit, or cause to be deposited, all moneys
and other valuables in the name and to the credit of the corporation with such
depositories as may be designated by the Board of Directors pursuant to
Section 5.2. The Treasurer shall disburse or cause to be disbursed, the funds
of the corporation as may be ordered by the President or the General Manager,
shall render to the President, the General Manager or the directors, whenever
they request it, an account of all transactions as Treasurer and of the
financial condition of the
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corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board, or the Bylaws.
Section 4.20 Assistant Treasurer.
One or more Assistant Treasurers, if any, shall perform such of the
duties of the Treasurer as the Treasurer shall designate, and in the absence
or disability of the Treasurer, any Assistant Treasurer, in order of election
to that office by the Board, shall perform the duties of the Treasurer.
Section 4.21 Performance of Duties.
Officers shall perform the duties of their respective offices as
stated in these Bylaws, and such additional duties as the Board shall
designate.
ARTICLE V -- OTHER PROVISIONS
Section 5.1 Inspection of Bylaws.
The corporation shall keep in its principal executive office the
original or a copy of these Bylaws, as amended to date, which shall be open to
inspection by shareholders at all reasonable times during office hours.
Section 5.2 Contracts and Other Instruments, Loans, Notes and Deposit of
Funds.
The Chairman of the Board, if any, the President and any Vice
President of this corporation, either alone or with the Secretary or an
Assistant Secretary, shall execute in the name of the corporation such written
instruments as may be authorized by the Board and, without special direction
of the Board, such instruments as transactions of the ordinary business of the
corporation may require, and such officers without the special direction of
the Board may authenticate, attest or countersign any such instruments when
deemed appropriate. The Board may authorize any person, persons, entity,
entities, attorney, attorneys, attorney-in-fact, attorneys-in-fact, agent or
agents, to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances.
No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized by
resolution of the Board as it may direct. Such authority may be general or
confined to specific instances.
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All checks, drafts, or other similar orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
corporation shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as the Board, Chief Executive Officer or
Treasurer may direct.
Unless authorized by the Board or these Bylaws, no officer, agent,
employee or any other person or persons shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or
to render it liable for any purpose or amount.
All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the Board may direct.
Section 5.3 Representation of Shares of Other Corporations.
The President or any other officer or officers authorized by the
Board or the President are each authorized to vote, represent and exercise on
behalf of the corporation all rights incident to any and all shares of any
other corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in person
or by any other person authorized so to do by proxy or power of attorney duly
executed by said officer.
Section 5.4 Annual Report to Shareholders.
The annual report to shareholders referred to in Section 1501 of the
California General Corporation Law is expressly waived, but nothing herein
shall be interpreted as prohibiting the Board from issuing annual or other
periodic reports to shareholders.
Section 5.5 Fiscal Year and Subdivisions.
The calendar year shall be the corporate fiscal year of the
corporation. For the purpose of paying dividends, for making reports and for
the convenient transaction of the business of the corporation, the Board may
divide the fiscal year into appropriate subdivisions.
Section 5.6 Construction and Definitions.
Unless the context otherwise requires, the general provisions, rules
of construction and definitions contained in
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the General Provisions of the California Corporations Code and in the
California General Corporation Law shall govern the construction of these
Bylaws.
ARTICLE VI -- INDEMNIFICATION
Section 6.1 Indemnification of Directors and Officers.
Each person who was or is a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit
or proceeding, formal or informal, whether brought in the name of the
corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature (hereinafter a "proceeding"), by reason of the fact that
he or she, or a person of whom he or she is the legal representative, is or
was a director or officer of this corporation or is or was serving at the
request of this corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is an alleged action or inaction in an official
capacity or in any other capacity while serving as a director or officer
shall, subject to the terms of any agreement between this corporation and such
person, be indemnified and held harmless by this corporation to the fullest
extent permissible under California law and this corporation's Articles of
Incorporation, against all costs, charges, expenses, liabilities, and losses
(including attorneys' fees, judgments, fines, Employee Retirement Income
Security Act excise taxes or penalties, and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of
his or her heirs, executors, and administrators; provided, however, that (A)
this corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of this
corporation other than a suit permitted by Section 6.3; (B) this corporation
shall indemnify any such person seeking indemnification in connection with
settlement of a proceeding (or part thereof) other than a proceeding by or in
the name of this corporation to procure a judgment in its favor only if any
settlement of such a proceeding is approved in writing by this corporation;
(C) that no such person shall be indemnified (i) except to the extent that the
aggregate of losses to be indemnified exceeds the amount of such losses for
which the director or officer is paid pursuant to any directors' and officers'
liability insurance policy maintained by the corporation; (ii) on account of
any suit in which judgment is rendered against such person for an accounting
of profits made from the purchase or sale by such person of securities of this
corporation pursuant to the provisions of Section 16(b) of the
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Securities Exchange Act of 1934 and amendments thereto or similar provisions
of any federal, state, or local statutory law; (iii) if a court of competent
jurisdiction finally determines that any indemnification hereunder is
unlawful; and (iv) as to circumstances in which indemnity is expressly
prohibited by Section 317 of the General Corporation Law of California (the
"Law"); and (D) that no such person shall be indemnified with regard to any
action brought by or in the right of this corporation for breach of duty to
this corporation and its shareholders (a) for acts or omissions involving
intentional misconduct or knowing and culpable violation of law; (b) for acts
or omissions that the director or officer believes to be contrary to the best
interests of this corporation or its shareholders or that involve the absence
of good faith on the part of the director or officer; (c) for any transaction
from which the director or officer derived an improper personal benefit; (d)
for acts or omissions that show a reckless disregard for the director's or
officer's duty to this corporation or its shareholders in circumstances in
which the director or officer was aware, or should have been aware, in the
ordinary course of performing his or her duties, of a risk of serious injury
to this corporation or its shareholders; (e) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication
of the director's or officer's duties to this corporation or its shareholders;
and (f) for costs, charges, expenses, liabilities, and losses arising under
Section 310 or 316 of the Law. The right to indemnification conferred in this
Article shall include the right to be paid by this corporation expenses
incurred in defending any proceeding in advance of its final disposition;
provided, however, that if the Law permits the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding, such advances shall be made only upon delivery to this corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts to this corporation if it shall be ultimately determined that such
person is not entitled to be indemnified.
Section 6.2 Indemnification of Employees and Agents.
A person who was or is a party or is threatened to be made a party
to or is involved in any proceeding by reason of the fact that he or she is or
was an employee or agent of this corporation or is or was serving at the
request of this corporation as an employee or agent of another enterprise,
including service with respect to employee benefit plans, whether the basis of
such action is an alleged action or inaction in an official capacity or in any
other capacity while serving as an employee or agent, may, subject to the
terms of any agreement between this corporation and such person, be
indemnified and held
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harmless by this corporation to the fullest extent permitted by California law
and this corporation's Articles of Incorporation, against all costs, charges,
expenses, liabilities, and losses (including attorneys' fees, judgments,
fines, Employee Retirement Income Security Act excise taxes or penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith.
Section 6.3 Right of Directors and Officers to Bring Suit.
If a claim under Section 6.1 of this Article is not paid in full by
this corporation within 30 days after a written claim has been received by
this corporation, the claimant may at any time thereafter bring suit against
this corporation to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall also be entitled to be paid the
expense of prosecuting such claim. Neither the failure of this corporation
(including its Board, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is permissible in the circumstances because he
or she has met the applicable standard of conduct, if any, nor an actual
determination by this corporation (including its Board, independent legal
counsel, or its shareholders) that the claimant has not met the applicable
standard of conduct, shall be a defense to the action or create a presumption
for the purpose of an action that the claimant has not met the applicable
standard of conduct.
Section 6.4 Successful Defense.
Notwithstanding any other provisions of this Article, to the extent
that a director or officer has been successful on the merits in defense of any
proceeding referred to in Section 6.1 or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
Section 6.5 Nonexclusivity of Rights.
The right to indemnification provided by this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, bylaw, agreement, vote of shareholders, or disinterested
directors, or otherwise.
Section 6.6 Insurance.
This corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of this corporation or
another corporation, partnership,
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joint venture, trust, or other enterprise against any expense, liability, or
loss, whether or not this corporation would have the power to indemnify such
person against such expense, liability, or loss under the Law.
Section 6.7 Expenses as a Witness.
To the extent that any director, officer, employee, or agent of this
corporation is, by reason of such position or a position with another entity
at the request of this corporation, a witness in any action, suit, or
proceeding, he or she shall be indemnified against all costs and expenses
actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
Section 6.8 Indemnity Agreements.
This corporation may enter into agreements with any direct or,
officer, employee, or agent of this corporation providing for indemnification
to the fullest extent permissible under the Law and this corporation's
Articles of Incorporation.
Section 6.9 Severability
Each and every paragraph, sentence, term, and provision of this
Article is separate and distinct so that if any paragraph, sentence, term, or
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term, or provision hereof. To
the extent required, any paragraph, sentence, term, or provision of this
Article may be modified by a court of competent jurisdiction to preserve its
validity and to provide the claimant with, subject to the limitations set
forth in this Article and any agreement between this corporation and claimant,
the broadest possible indemnification permitted under applicable law.
Section 6.10 Effect of Repeal or Modification.
Any repeal or modification of this Article shall not adversely affect any
right of indemnification of a director or officer existing at the time of such
repeal or modification with respect to any action or omission occurring prior
to such repeal or modification.
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ARTICLE VII -- AMENDMENTS
Section 7.1 Amendments.
In accordance with Section 211 and subject to the provisions
contained in Section 212 of the California Corporation Law, these Bylaws may
be amended or repealed either by approval of the outstanding shares or by the
approval of the Board; provided, however, that a Bylaw specifying or changing
a fixed number of directors or the maximum or minimum number or changing from
a fixed to a variable Board or vice versa may only be adopted by approval of
the outstanding shares. The exact number of directors within the maximum and
minimum number specified in these Bylaws may be amended by the Board alone.
[End of Bylaws]