EXHIBIT 99.1
AMENDED AND RESTATED BYLAWS
OF
CALAVO GROWERS, INC.,
A CALIFORNIA CORPORATION
TABLE OF CONTENTS
PAGE
ARTICLE I -- OFFICES............................................................................ 4
Section 1.01 Principal Office................................................................. 4
Section 1.02 Other Offices.................................................................... 4
ARTICLE II -- MEETINGS OF SHAREHOLDERS.......................................................... 4
Section 2.01 Place of Meetings................................................................ 4
Section 2.02 Annual Meetings.................................................................. 4
Section 2.03 Special Meetings................................................................. 4
Section 2.04 Adjourned Meetings and Notice Thereof............................................ 5
Section 2.05 Entry of Notice of Delivery...................................................... 5
Section 2.06 Voting by Shareholders; Advance Notice of Nominations for Director; Cumulative
Voting for Directors............................................................. 5
Section 2.07 Quorum........................................................................... 6
Section 2.08 Consent of Absentees............................................................. 6
Section 2.09 Action Without Meeting........................................................... 6
Section 2.10 Proxies.......................................................................... 7
Section 2.11 Districts........................................................................ 7
ARTICLE III -- DIRECTORS........................................................................ 7
Section 3.01 Powers; Committees of Directors, Including Executive Committee and Nominating
Committee....................................................................... 7
Section 3.02 Number and Qualifications of Directors........................................... 8
Section 3.03 Election and Term of Office; Removal of Directors................................ 8
Section 3.04 Vacancies........................................................................ 9
Section 3.05 Place of Meeting................................................................. 9
Section 3.06 Organizational Meeting........................................................... 9
Section 3.07 Other Regular Meetings........................................................... 9
Section 3.08 Special Meetings................................................................. 9
Section 3.09 Notice of Adjournment............................................................ 10
Section 3.10 Entry of Notice.................................................................. 10
Section 3.11 Waiver of Notice................................................................. 10
Section 3.12 Quorum........................................................................... 10
Section 3.13 Adjournment...................................................................... 10
Section 3.14 Action Without Meeting........................................................... 10
Section 3.15 Fees and Compensation............................................................ 10
ARTICLE IV -- OFFICERS.......................................................................... 11
Section 4.01 Officers......................................................................... 11
Section 4.02 Appointment...................................................................... 11
Section 4.03 Subordinate Officers............................................................. 11
Section 4.04 Removal and Resignation.......................................................... 11
Section 4.05 Vacancies........................................................................ 11
Section 4.06 Chairman of the Board............................................................ 11
Section 4.07 Chief Executive Officer.......................................................... 11
Section 4.08 President........................................................................ 11
Section 4.09 Vice President................................................................... 11
Section 4.10 Secretary........................................................................ 11
Section 4.11 Chief Financial Officer.......................................................... 12
ARTICLE V -- MISCELLANEOUS...................................................................... 12
Section 5.01 Record Date...................................................................... 12
Section 5.02 Inspection of Corporate Records.................................................. 12
Section 5.03 Checks, Drafts and Notes......................................................... 13
Section 5.04 Seal............................................................................. 13
Section 5.05 Financial Reports................................................................ 13
Section 5.06 Execution of Documents........................................................... 13
Section 5.07 Certificates of Stock............................................................ 13
Section 5.08 Representation of Shares of Other Corporations................................... 14
Section 5.09 Inspection of Bylaws............................................................. 14
2
PAGE
ARTICLE VI -- Restrictive Legend on Stock Certificates.......................................... 14
Section 6.01 Restrictive Legend on Stock Certificates......................................... 14
ARTICLE VII -- INDEMNIFICATION.................................................................. 14
Section 7.01 Indemnification of Directors..................................................... 14
Section 7.02 Indemnification of Officers, Employees and Other Agents.......................... 14
Section 7.03 Advance of Expenses.............................................................. 15
Section 7.04 Indemnification Not Exclusive.................................................... 15
Section 7.05 Insurance........................................................................ 15
Section 7.06 Conflicts........................................................................ 15
Section 7.07 Indemnification Agreements....................................................... 15
Section 7.08 Amendment, Repeal or Modification................................................ 15
ARTICLE VIII -- AMENDMENTS...................................................................... 15
Section 8.01 Power of Shareholders............................................................ 15
Section 8.02 Power of Directors............................................................... 15
3
AMENDED AND RESTATED BYLAWS
OF
CALAVO GROWERS, INC.
ARTICLE I -- OFFICES
SECTION 1.01 PRINCIPAL OFFICE. The principal executive office of Calavo
Growers, Inc. (the "CORPORATION") is hereby fixed and located at 2530 Red Hill
Avenue, Santa Ana, California. The Board of Directors is hereby granted full
power and authority to change said principal office from one location to another
at any place or places where the Corporation is qualified to do business.
SECTION 1.02 OTHER OFFICES. Branch or subordinate offices may at any time be
established by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE II -- MEETINGS OF SHAREHOLDERS
SECTION 2.01 PLACE OF MEETINGS. All meetings of shareholders shall be held
either at the principal executive office or at any other place within or without
the State of California which may be designated by the Board of Directors or by
the shareholders by obtaining written consent of all the persons entitled to
vote thereat.
SECTION 2.02 ANNUAL MEETINGS. An annual meeting of shareholders shall be held
each year on a date and at a time designated by the Board of Directors.
Notice of each annual meeting shall be given to each shareholder entitled to
vote thereat, either personally or by first-class mail or other means of written
communication, charges prepaid, addressed to such shareholder at the address
appearing on the books of the Corporation for such shareholder or given by such
shareholder to the Corporation for the purpose of notice. If no such address
appears or is given, notice shall be deemed to have been given such shareholder
if sent by mail or other means of written communication addressed to the place
where the principal executive office of the Corporation is situated, or if
published at least once in some newspaper of general circulation in the county
in which said office is located.
All such notices shall be delivered personally, or deposited in the mail or
sent by other means of written communication, to each shareholder entitled to
vote thereat, not less than ten (10) nor more than sixty (60) days before such
annual meeting, and shall specify the place, date and hour of such meeting and
those matters which the Board of Directors, at the time of the giving of such
notice, intends to present for action by the shareholders, including the names
of nominees intended at the time of such notice to be presented by the Board of
Directors for election to the Board of Directors. Such notice shall also state
the general nature of the business or proposal to be considered or acted upon at
such meeting before action may be taken at such meeting on:
(a) A proposal to approve a contract or other transaction between the
Corporation and one (1) or more directors or any corporation, firm or
association in which one (1) or more directors has a material financial
interest;
(b) A proposal to amend the Articles of Incorporation;
(c) A proposal to approve a reorganization of the Corporation;
(d) A proposal to wind up and dissolve the Corporation; or
(e) A proposal to approve a plan of distribution of the shares,
obligations or securities of any other corporation, or assets other than
money, which is not in accordance with the liquidation rights of any
preferred shares as specified in the Articles of Incorporation, in the
process of the winding up of the Corporation.
SECTION 2.03 SPECIAL MEETINGS. Special meetings of the shareholders, for any
purpose or purposes whatsoever, may be called at any time by the Chairman of the
Board, the President, the Board of Directors or by one (1) or more shareholders
entitled to cast not less than ten percent (10%) of the votes at the meeting.
Upon request in writing to the Chairman of the Board, the President, any Vice
President or the Secretary by any person, other than the Board of Directors,
entitled to call a special meeting of shareholders, such officer shall cause
notice to be given forthwith, but in no event later than twenty (20) days after
receipt of the request, that a meeting will be held at the time requested by the
person or persons calling the meeting, which time shall be not less than
thirty-five (35) and
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not more than sixty (60) days after receipt of the request. Except in special
cases where other express provision is made by statute and as set forth herein,
notice of such special meetings shall be given in the same manner as for annual
meetings of shareholders. Notices of any special meeting shall specify, in
addition to the place, date and hour of such meeting, the general nature of the
business to be transacted.
SECTION 2.04 ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by a vote of a majority of the shares, the holders of which
are either present in person or by proxy thereat, but in the absence of a
quorum, no other business may be transacted at any such meeting except as
provided in Section 2.07 of this Article.
When any shareholders' meeting, either annual or special, is adjourned for
forty-five (45) days or less, the time and place of the adjourned meeting shall
be announced at the meeting at which the adjournment is taken. When any
shareholders' meeting, either annual or special, is adjourned for more than
forty-five (45) days, or if after the adjournment a new record date is fixed for
the adjourned meeting, notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting as in the case
of an original meeting. Except as aforesaid, it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an adjourned
meeting, and at the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting.
SECTION 2.05 ENTRY OF NOTICE OF DELIVERY. An affidavit executed by the
Secretary, any Assistant Secretary or any transfer agent to the effect that any
notice or report required to be given to a shareholder by law or these Bylaws
was duly given to such shareholder shall be sufficient evidence that such notice
or report was duly given to such shareholder. If any notice or report addressed
to a shareholder at the address of such shareholder appearing on the books of
the Corporation is returned to the Corporation by the United States Postal
Service marked to indicate that the United States Postal Service is unable to
deliver the notice or report to the shareholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available for the shareholder upon written demand
of the shareholder at the principal executive office of the Corporation for a
period of one (1) year from the date of the giving of the notice or report to
all other shareholders.
SECTION 2.06 VOTING BY SHAREHOLDERS; ADVANCE NOTICE OF NOMINATIONS FOR
DIRECTOR; CUMULATIVE VOTING FOR DIRECTORS. Except as otherwise provided in the
Articles of Incorporation and in this Section, at all meetings of shareholders
every shareholder entitled to vote shall have the right to vote in person or by
proxy the number of shares standing in his or her name on the stock records of
the Corporation. Such vote may be given by viva voce or by ballot; provided,
however, that all elections for directors shall be by ballot upon demand made by
a shareholder at any election and before the voting begins.
Only persons who are nominated in accordance with the procedures set forth in
this Section shall be eligible for election as directors. Furthermore, each
director nominee must satisfy the qualification requirements that are described
in Section 3.02 of these Bylaws, and all solicitations of proxies to be used in
connection with the election of directors must satisfy applicable federal and
state securities laws and regulations and other applicable laws and regulations.
Nominations of persons for election to the Board of Directors may be made (i)
by or at the direction of the Board of Directors at or in advance of a meeting
of shareholders or (ii) by any shareholder entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this Section. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 30 days nor more than 120 days prior to the meeting.
However, if less than 40 days' notice or prior public disclosure of the date of
the meeting is given or made to the shareholders, notice by the shareholder to
be timely must be so received not later than the close of business on the 10th
day following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made.
The shareholder's notice must set forth: (a) as to each person whom the
shareholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, including evidence
demonstrating that such person satisfies the qualification requirements that are
described in Section 3.02 of these Bylaws, (iii) the class and number of shares
of the Corporation which are beneficially owned by such person, and (iv) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including, without limitation, such persons' written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); and (b) as to the shareholder giving the notice (i) the name and
address, as they appear on the
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Corporation's books, of such shareholder and (ii) the class and number of shares
of the Corporation which are beneficially owned by such shareholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a shareholder's notice
of nomination which pertains to the nominee.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
At each election of directors of the Corporation, each shareholder entitled
to vote shall have the right to cast as many votes as shall equal the number of
votes to which his or her shares are normally entitled multiplied by the number
of directors to be elected, and he or she may cast all of such votes for a
single candidate or may distribute them among some or all of the candidates as
he or she sees fit. The candidates receiving the highest number of affirmative
votes up to the number of directors to be elected shall be elected; provided,
however, that such candidates must satisfy the nomination requirements described
in this Section and the qualification requirements for directors that are
described in Section 3.02 of these Bylaws.
The affirmative vote of the majority of the shares represented and voting at
a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number is required
by law or by the Articles of Incorporation or these Bylaws, and except as set
forth in Section 2.07 of this Article and at elections of directors as set forth
in this Section.
SECTION 2.07 QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting shall constitute a quorum
for the transaction of business. The shareholders present at a duly called or
held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken, other than adjournment, is approved by at
least a majority of the shares required to constitute a quorum.
SECTION 2.08 CONSENT OF ABSENTEES. The proceedings and transactions of any
meeting of shareholders, either annual or special, however called and noticed
and wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy and
if, either before or after the meeting, each of the persons entitled to vote,
not present in person or by proxy, signs a written waiver of notice, a consent
to the holding of such meeting or an approval of the minutes thereof. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of shareholders need be specified in any written waiver of notice,
consent to the holding of the meeting or approval of the minutes thereof unless
otherwise provided in the Articles of Incorporation or these Bylaws, except for
the matters referred to in subparagraphs (a) through (e) of Section 2.02 of this
Article. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a waiver of notice of
and presence at such meeting, except when the person objects at the beginning of
the meeting to the transaction of any business because the meeting is not
lawfully called or convened, and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by law to
be included in the notice but not so included, if such objection is expressly
made at the meeting.
SECTION 2.09 ACTION WITHOUT MEETING. Any action which may be taken at any
annual or special meeting of the shareholders may be taken without a meeting and
without prior notice, if authorized by a written consent 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, and filed with the Secretary of the Corporation; provided,
however, that directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of
directors, except that a vacancy on the Board of Directors (other than a vacancy
created by removal of a director) not filled by the Board of Directors may be
filled by the written consent of a majority of the outstanding shares entitled
to vote. Any shareholder giving a written consent, such shareholder's
proxyholders, a transferee of the shares or a personal representative of such
shareholder or their respective proxyholders, may revoke any such consent by a
writing received by the Corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the Corporation, but may not do so thereafter. Such
revocation shall be effective upon its receipt by the Secretary of the
Corporation.
Unless the consents of all shareholders entitled to vote have been solicited
in writing and have been received, prompt notice shall be given, in the same
manner as for annual meetings of shareholders except as set forth in this
Section, to those shareholders entitled to vote who have not consented in
writing, of the taking of any corporate action approved by shareholders without
a meeting. Such
6
notice shall be given at least ten (10) days before the consummation of the
action authorized by such approval with respect to the following:
(a) Approval of any transaction referred to in subparagraph (a), (c) or
(e) of Section 2.02 of this Article; or
(b) Approval required by law of the indemnification of any person.
SECTION 2.10 PROXIES. Every person entitled to vote or execute consents shall
have the right to do so either in person or by an agent or agents authorized by
a written proxy executed by such person or his or her duly authorized agent;
provided, however, that no such proxy shall be valid after the expiration of
eleven (11) months from the date of its execution unless otherwise provided in
the proxy.
SECTION 2.11 DISTRICTS. For purposes of administering the Corporation, the
Board of Directors may divide the territory in which the Corporation has
shareholders into two (2) or more districts. The number of such districts may
correspond to the authorized number of directors of the Corporation. The
boundaries and number of the districts shall be determined by the Board of
Directors, which shall have authority to revise and redefine the number and
boundaries of the districts from time to time. If the Board of Directors
establishes such districts, it shall assign each shareholder to a district based
upon the district in which the shareholder (if a grower) has the largest acreage
or production and on other factors deemed relevant by the Board of Directors.
The Board of Directors may establish policies and procedures for
informational meetings of the members of the various districts that shall be
held from time to time. However, any such meetings are not intended to function
as a substitute for the annual and special meetings of the Corporation's
shareholders that are discussed in these Bylaws. Furthermore, voting for
directors shall not be conducted on a district basis but shall instead be
conducted in the manner described in the preceding sections of this Article II.
In each such election, each shareholder shall be entitled to cast votes for the
number of directors that are to be elected and shall not be limited to voting
only for directors from his or her district.
The determinations of the Board of Directors on all matters relating to the
Corporation's districts shall be final, binding and conclusive on all persons.
ARTICLE III -- DIRECTORS
SECTION 3.01 POWERS; COMMITTEES OF DIRECTORS, INCLUDING EXECUTIVE COMMITTEE
AND NOMINATING COMMITTEE. Subject to limitations of the Articles of
Incorporation, of these Bylaws and of the California General Corporation Law as
to action to be authorized or approved by the shareholders or by the outstanding
shares, and subject to the duties of directors as prescribed by these Bylaws,
the business and affairs of the Corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
Without prejudice to such general powers, but subject to the same limitations,
it is hereby expressly declared that the directors shall have the following
powers:
(a) To select and remove all officers, agents and employees of the
Corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the Articles of Incorporation or 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, the Articles of Incorporation or these Bylaws, as they may deem
best;
(c) To change the principal office for the transaction of the business of
the Corporation from one location to another within or without the State of
California, as provided in Section 1.01 of Article I; to fix and locate from
time to time one (1) or more branch or subsidiary offices of the Corporation
within or without the State of California, as provided in Section 1.02 of
Article I; to designate any place within or without the State of California
for the holding of any shareholders' meetings; and to adopt, make and use a
corporate seal, to prescribe the form of certificates of stock and to alter
the form of such seal and of such stock certificates from time to time as in
their judgment they may deem best, provided such seal and such certificates
shall at all times comply with the provisions of law;
(d) To authorize the issue of stock of the Corporation from time to time,
upon such terms as may be lawful, in consideration of money paid, labor done,
services actually rendered to the Corporation or for its benefit or in its
formation or reorganization, debts or securities cancelled, tangible or
intangible property actually received either by the Corporation or by a
wholly-owned
7
subsidiary, or as a share dividend, or upon a stock split, reverse stock
split, reclassification or conversion of outstanding shares into shares of
another class, exchange of outstanding shares for shares of another class, or
other change affecting outstanding shares;
(e) To borrow money and incur indebtedness for the purposes of the
Corporation and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations or other evidences of debt and security
therefor; and
(f) To designate one (1) or more committees and to appoint members and
alternate members therefor, by resolution adopted by a majority of the
authorized number of directors, each committee consisting of two (2) or more
directors and any alternate directors as may be designated to replace any
absent members at any meeting thereof, to serve at the pleasure of the Board
of Directors and to delegate to any such committee any of the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, except the following powers: to approve any
action which by law or by these Bylaws also requires shareholders' approval
or approval of the outstanding shares, to fill vacancies on the Board of
Directors or any committee thereof, to fix the compensation of directors for
serving on the Board of Directors or any committee thereof, to amend or
repeal bylaws or adopt new bylaws, to amend or repeal any resolution of the
Board of Directors which by its express terms is not so amendable or
repealable, to authorize a distribution to the shareholders of the
Corporation (other than a dividend in shares of the Corporation) except at a
rate or in a periodic amount or within a price range determined by the Board
of Directors or to appoint other committees of the Board of Directors or the
members thereof.
Without limiting the generality of the preceding paragraph:
There shall be an Executive Committee consisting of the Corporation's
Chairman of the Board and four (4) other directors who shall be appointed by
a majority of the authorized number of directors. The Executive Committee
shall have all of the functions and powers of the Board of Directors that are
delegated to it by the Board of Directors except as otherwise provided by law
and subject to the direction and control of the Board of Directors.
The Board of Directors may also appoint a Nominating Committee, which
shall consist of two (2) or more directors, to assist it in the
identification and nomination of candidates for election as directors. The
Nominating Committee shall have the functions and powers that are delegated
to it from time to time by the Board of Directors, although it shall remain
subject to the direction and control of the Board of Directors. With the
assistance of any such Nominating Committee that is appointed, the Board of
Directors shall establish such rules and procedures for its selection of
director nominees as it deems appropriate. Among other things, the Board of
Directors shall have discretion to nominate a candidate from each district
that is described in Section 2.11 of these Bylaws, although it shall not be
obligated to follow such nomination procedure.
SECTION 3.02 NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized number of
directors of the Corporation shall be not less than eight (8) nor more than
fifteen (15), and the exact number of directors within such limits shall be ten
(10) unless and until such exact number is changed from time to time, within
such specified limits, by a resolution which is duly adopted by the Board of
Directors or by the shareholders. The minimum and maximum number of directors
may be changed, or the Corporation may implement a board structure that
specifies a fixed number of directors without minimum and maximum numbers, by
amendment of the Articles of Incorporation or by a bylaw amending this Section
of these Bylaws duly adopted by the affirmative vote or written consent of a
majority of the outstanding shares entitled to vote; provided, however, that no
such amendment reducing the number of directors to a number less than five (5)
shall be adopted if the votes cast against its adoption at a meeting, or the
shares not consenting thereto in the case of action by written consent, are
equal to more than sixteen and two-thirds percent (16 2/3%) of the outstanding
shares entitled to vote.
An individual shall be qualified to be elected as a director, and to continue
serving as a director, (i) only if he or she (or a corporation, partnership,
limited liability company or other entity which he or she controls) is a party
to a marketing agreement, consignment agreement or other similar agreement with
the Corporation pursuant to which he or she (or such corporation, partnership,
limited liability company or other entity) has agreed to deliver
California-grown avocados to the Corporation for processing and marketing, and
(ii) only if he or she (or such corporation, partnership, limited liability
company or other entity) is not in default under such agreement with the
Corporation. The preceding qualification for directors shall be inapplicable to
any directors who are elected by the holders of shares of the Corporation's
preferred stock (if a class or series of preferred stock is issued and
outstanding) voting separately as a class or series in the election of
directors.
SECTION 3.03 ELECTION AND TERM OF OFFICE; REMOVAL OF DIRECTORS. 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
8
special meeting of the shareholders held for that purpose. Each director shall
hold office until the expiration of the term for which elected and until his or
her successor is elected and qualified or until his or her death, resignation or
removal from office.
As provided in Section 302 of the California Corporations Code, the Board of
Directors may declare vacant the office of a director who has been declared of
unsound mind by an order of court or convicted of a felony. As provided in
Section 304 of the California Corporations Code, the superior court of the
proper county may, at the suit of shareholders holding at least ten percent
(10%) of the number of outstanding shares of any class, remove from office any
director in case of fraudulent or dishonest acts or gross abuse of authority or
discretion with reference to the Corporation and may bar from reelection any
director so removed for a period prescribed by the court.
Any or all of the directors may be removed from office without cause by the
affirmative vote or written consent of a majority of the outstanding shares
entitled to vote. However, no director may be removed from office (unless the
entire Board of Directors is removed) when the votes cast against such
director's removal, or not consenting in writing to the removal, would be
sufficient to elect that director if voted cumulatively at an election at which
the same total number of votes were cast (or, if the action is taken by written
consent, all shares entitled to vote were voted) and the entire number of
directors authorized at the time of such director's most recent election were
then being elected. The removal of a director without cause shall be subject to
any other applicable limitations that are set forth in Section 303 of the
California Corporations Code.
SECTION 3.04 VACANCIES. Vacancies in the Board of Directors, other than those
created by the removal of a director, may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director,
and each director so elected shall hold office until his or her successor is
elected and qualified at an annual or special meeting of the shareholders or
until his or her death, resignation or removal from office.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
when any authorized position of director is not filled by a duly elected and
acting director, whether caused by the death, resignation or removal of any
director, increase in the authorized number of directors, failure of the
shareholders, at any annual or special meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be voted for at that meeting or otherwise.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies created by the removal of a director or not filled by the
directors. Any such election by written consent other than to fill a vacancy
created by removal (which shall require the unanimous written consent of all
shares entitled to vote for the election of directors) shall require the written
consent of a majority of the outstanding shares entitled to vote. If the
resignation of a director is given to take effect at a future time, the Board of
Directors or the shareholders shall have power to elect a successor to take
office when the resignation is to become effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his or her term of office.
SECTION 3.05 PLACE OF MEETING. Meetings of the Board of Directors or any
committee thereof shall be held at any place within or without the State of
California which has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, from time to time by resolution of
the Board of Directors or committee, as the case may be. In the absence of such
designation, meetings shall be held at the principal executive office of the
Corporation.
SECTION 3.06 ORGANIZATIONAL MEETING. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting for
the purpose of organization, election of officers and the transaction of other
business. Notice of such meetings is hereby dispensed with.
SECTION 3.07 OTHER REGULAR MEETINGS. Other regular meetings of the Board of
Directors and regular meetings of committees of the Board of Directors shall be
held without call on such dates as may be fixed by the Board of Directors or the
committee, as the case may be. Notice of all such regular meetings of the Board
of Directors and committees thereof is hereby dispensed with.
SECTION 3.08 SPECIAL MEETINGS. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Chairman of the Board,
by the President, by any Vice President, by the Secretary or by any two (2) or
more directors. Special meetings of any committee of the Board of Directors for
any purpose or purposes may be called at any time by the President, by the
Chairman or by any vice-chairman of the committee, by the Secretary or by any
two (2) or more members of the committee.
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Notice of the time and place of special meetings shall be delivered
personally to all directors or committee members as the case may be, either in
writing or orally or by telephone, or shall be sent to each such director by
first-class mail, facsimile, telegram or other electronic or voice mail message,
charges prepaid, addressed to him or her at his or her address as it is shown
upon the records of the Corporation or, if it is not shown on such records or is
not readily ascertainable, at the place in which the meetings of the directors
are regularly held. In case such notice is mailed, it shall be deposited with
the United States Postal Service in the place where the principal office of the
Corporation is located at least four (4) days prior to the time of the holding
of the meeting. In case such notice is delivered by facsimile, telegram or other
electronic or voice mail message or personally as above provided, it shall be
delivered at least forty-eight (48) hours prior to the time of the holding of
the meeting.
Such notice need not specify the purpose of the special meeting. Such
mailing, telegraphing or personal delivery as above provided shall be due,
timely, legal and personal notice to such director.
SECTION 3.09 NOTICE OF ADJOURNMENT. Unless a directors' or committee meeting
has been adjourned for more than twenty-four (24) hours, notice of the time and
place of holding an adjourned meeting need not be given to absent directors or
committee members if the time and place be fixed at the meeting adjourned. If
the meeting has been adjourned for more than twenty-four (24) hours, notice of
such adjournment and the time and place of the adjourned meeting shall be given
prior to the time of the adjourned meeting to all directors or committee members
who were not present at the time of the adjournment, in the same manner as
provided in Section 3.08 of this Article for special meetings of the Board of
Directors or committee thereof.
SECTION 3.10 ENTRY OF NOTICE. Whenever any director has been absent from any
special meeting of the Board of Directors or committee thereof, an affidavit
executed by the Secretary or any Assistant Secretary to the effect that notice
has been duly given as required by law and these Bylaws shall be sufficient
evidence that due notice of such special meeting was given to such director.
SECTION 3.11 WAIVER OF NOTICE. The transactions of any meeting of the Board
of Directors or committee thereof, however called and noticed and wherever held,
shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum be present and if, either before or after the meeting, each
of the directors or committee members not present, and each director or
committee member who is present but did not receive due notice thereof and
protests such lack of notice prior to such meeting or at its commencement, signs
a written waiver of notice, a consent to holding such meeting or an approval of
the minutes thereof. Such waiver of notice need not specify the purpose of the
meeting. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
SECTION 3.12 QUORUM. A majority of the authorized number of directors on the
Board of Directors or any committee thereof shall be necessary to constitute a
quorum for the transaction of business by such Board or committee, as the case
may be. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors or committee
members, if any action taken is approved by at least a majority of the required
quorum for such meeting. Subject to the foregoing sentence of this Section,
every act or decision done or made by a majority of the directors or committee
members present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors or committee thereof, as the case
may be, unless a greater number is required by law, the Articles of
Incorporation or these Bylaws. Directors shall be deemed present at any meeting
of the Board of Directors or any committee thereof and may participate therein
if present through use of conference telephone or similar communications
equipment, so long as all directors participating in such meeting can hear one
another.
SECTION 3.13 ADJOURNMENT. A majority of the directors or committee members
present, whether or not a quorum is present, may adjourn any directors' or
committee meeting to meet again at a stated time, place and hour.
SECTION 3.14 ACTION WITHOUT MEETING. Any action required or permitted to be
taken by the Board of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or such committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board of Directors or such committee, as the case may be. Such action by written
consent shall have the same force and effect as a unanimous vote of such
directors or committee members.
SECTION 3.15 FEES AND COMPENSATION. Directors shall not receive any stated
salary for their services as directors but, by resolution of the Board of
Directors, a fixed fee, with or without expenses of attending, may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent, employee or otherwise and receiving compensation therefor.
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ARTICLE IV -- OFFICERS
SECTION 4.01 OFFICERS. The officers of the Corporation shall be the Chairman
of the Board, the Chief Executive Officer, the President, the Secretary and the
Chief Financial Officer.
The Corporation may also have, at the discretion of the Board of Directors, a
Vice Chairman of the Board, one (1) or more Vice Presidents, one (1) or more
Assistant Secretaries, one (1) or more Assistant Chief Financial Officers and
such other officers as may be appointed in accordance with the provisions of
Section 4.02 of this Article. Officers other than the Chairman of the Board need
not be directors. Any number of offices may be held by the same person.
SECTION 4.02 APPOINTMENT. The officers of the Corporation shall be chosen by
the Board of Directors, and each shall hold his or her office until his or her
successor is appointed or until he or she resigns, dies or is removed from
office.
SECTION 4.03 SUBORDINATE OFFICERS. The Board of Directors may appoint such
other officers as the business of the Corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in these Bylaws or as the Board of Directors may from time to
time determine.
SECTION 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, either with
or without cause, by a majority of the directors at the time in office, at a
regular or special meeting of the Board of Directors.
Any officer may resign at any time by giving written notice to the Board of
Directors, the Chief Executive Officer, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled by the Board of
Directors at a regular or special meeting.
SECTION 4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if
present, preside at all meetings of the Board of Directors, and exercise and
perform such other powers and duties as may from time to time be assigned to him
or her by the Board of Directors or as prescribed by these Bylaws. The Board of
Directors may also designate one of its members as Vice Chairman of the Board.
The Vice Chairman of the Board shall, during the absence or inability to act of
the Chairman of the Board, have the powers and perform the duties of the
Chairman of the Board and shall have such other powers and perform such other
duties as may from time to time be assigned to him or her by the Board of
Directors or as prescribed by these Bylaws.
SECTION 4.07 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be
the general manager and chief executive officer of the Corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and affairs of the Corporation. He or she
shall preside at all meetings of the shareholders, and in the absence of the
Chairman or Vice Chairman of the Board, at all meetings of the Board of
Directors. He or she shall have the general powers and duties of management
usually vested in the office of chief executive officer of a corporation and
shall have such other powers and duties as may be prescribed by the Board of
Directors or these Bylaws. Unless and until otherwise determined by the Board of
Directors, the Chairman of the Board shall also serve as the Chief Executive
Officer.
SECTION 4.08 PRESIDENT. The President shall, after the Chief Executive
Officer, have general supervision, direction and control of the business and
affairs of the Corporation, subject to the control of the Board of Directors and
the Chief Executive Officer. The President shall have such other powers and
duties as may be prescribed by the Board of Directors or these Bylaws.
SECTION 4.09 VICE PRESIDENT. In the absence or disability of the President,
the Vice Presidents, if there shall be any such officers, in order of their rank
as fixed by the Board of Directors or, if not ranked, the Vice President
designated by the Board of Directors, shall perform all the duties of the
President and, when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. The Vice Presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the Board of Directors or these Bylaws.
SECTION 4.10 SECRETARY. The Secretary shall keep, or cause to be kept, a book
of minutes in written form at the principal executive office of the Corporation,
of all meetings of directors, committees of the Board of Directors and
shareholders, with the time and place of holding, whether regular or special,
and if special how authorized, the notice thereof given, the names of those
directors and
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shareholders present, the names of those present at directors' or committee
meetings, the number of shares present or represented at shareholders' meetings
and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the Corporation's transfer agent or registrar of
shares, a share register, or a duplicate share register, in written form or in
any other form capable of being converted into written form, showing the names
of the shareholders and their addresses, and the number and classes of shares
held by each of them.
The Secretary shall give or cause to be given notice of all meetings of
shareholders and the Board of Directors, as required by these Bylaws or by law
to be given, and he or she shall keep the seal of the Corporation in safe
custody and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or these Bylaws.
SECTION 4.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep
and maintain, or cause to be kept and maintained, in written form or in any
other form capable of being converted into written form, adequate and correct
books and records of account of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares.
The Chief Financial Officer shall deposit all monies and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He or she shall disburse the funds of the
Corporation as may be ordered by the Board of Directors and shall render to the
President and directors, as required by Section 5.05 of Article V of these
Bylaws and at such other times as they may request, an account of all of his or
her transactions as Chief Financial Officer and of the financial condition of
the Corporation, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or these Bylaws.
ARTICLE V -- MISCELLANEOUS
SECTION 5.01 RECORD DATE. The Board of Directors may fix a time in the future
as a record date for the determination of the shareholders entitled to notice of
and to vote at any meeting of shareholders, or to receive any dividend,
distribution or allotment of rights, or to exercise rights in respect of any
other lawful action. The record date so fixed shall not be more than sixty (60)
nor less than ten (10) days prior to the date of the meeting, nor more than
sixty (60) days prior to any other action, for which it is fixed. When a record
date is so fixed, only shareholders of record at the close of business on the
record date shall be entitled to notice of and to vote at such meeting, or to
receive such dividend, distribution or allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the Corporation after the record date, except as otherwise provided in
the Articles of Incorporation or by agreement or by law. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the Board of
Directors fixes a new record date for the adjourned meeting, but the Board of
Directors shall fix a new record date if the meeting is adjourned for more than
forty-five (45) days from the date set for the original meeting.
SECTION 5.02 INSPECTION OF CORPORATE RECORDS. The record of shareholders, the
accounting books and records, and minutes of proceedings of the shareholders,
the Board of Directors and committees of the Board of Directors, shall be open
to inspection in written form upon the written demand of any shareholder or
holder of a voting trust certificate, at any time during usual business hours,
for a purpose reasonably related to his or her interests as a shareholder or
holder of a voting trust certificate. Such inspection may be made in person or
by an agent or attorney and shall include the right to copy and make extracts.
Demand of inspection shall be made in writing upon the President, Secretary or
Assistant Secretary of the Corporation. The rights of inspection described in
this paragraph shall extend to the records of each subsidiary of the
Corporation.
A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the Corporation or holding at
least one percent (1%) of those voting shares and having filed a Schedule 14A
with the United States Securities and Exchange Commission shall have an absolute
right to do either or both of the following: (i) inspect and copy the record of
shareholders' names and addresses and shareholdings during usual business hours
upon five (5) business days' prior written demand upon the Corporation, or (ii)
obtain from the transfer agent for the Corporation, if any, upon written demand
and upon the tender of its usual charges for such a list (the amount of which
charges shall be stated to the shareholder by the transfer agent upon request),
a list of the names and addresses of the shareholders who are entitled to vote
for the election of directors, and their shareholdings, as of the most recent
record date for which it has been compiled or as of a date specified by the
shareholder subsequent to the date of demand. The list shall be made available
on or before the later of five (5) business days after the demand is received or
the date specified therein as the date as of which the list is to be compiled.
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Every director shall have the absolute right at any reasonable time to
inspect in written form and copy all books, records and documents of every kind
and to inspect the physical properties of the Corporation and its subsidiary
corporations, domestic or foreign. Such inspection may be made in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
SECTION 5.03 CHECKS, DRAFTS AND NOTES. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness issued in the name of
or payable to the Corporation shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors.
SECTION 5.04 SEAL. The Corporation shall have a common seal, and shall have
inscribed thereon the name of the Corporation, the date of its incorporation and
the word California.
SECTION 5.05 FINANCIAL REPORTS. The Chief Financial Officer shall prepare and
submit, or cause to be prepared and submitted, to the Board of Directors, not
later than one hundred twenty (120) days after the close of each fiscal year of
the Corporation, an annual report containing a balance sheet as of the end of
that fiscal year and an income statement and statement of changes in financial
position for that fiscal year, accompanied by the report thereon, if any, of any
independent accountants engaged by the Corporation or the certificate of an
authorized officer of the Corporation that the financial statements were
prepared without audit from the books and records of the Corporation. The
requirement of Section 1501 of the California Corporations Code that the Board
of Directors shall cause the annual report to be sent to the shareholders not
later than one hundred twenty (120) days after the close of the Corporation's
fiscal year and at least fifteen (15) days prior to the annual meeting of
shareholders is hereby expressly waived until such time as the Corporation has
one hundred (100) or more holders of record of its shares.
A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of the Corporation may make a written request to
the Corporation for an income statement of the Corporation for the three-month,
six-month or nine-month period of the current fiscal year ended more than thirty
(30) days prior to the date of the request and a balance sheet of the
Corporation as of the end of such period and, in addition, if no annual report
for the last fiscal year has been sent to shareholders, such annual report,
accompanied by the report thereon, if any, of any independent accountants
engaged by the Corporation or the certificate of an authorized officer of the
Corporation that such financial statements were prepared without audit from the
books and records of the Corporation. The annual report or statements so
requested shall be delivered or mailed to the person making the request within
thirty (30) days thereafter.
A copy of each such annual, semi-annual, and quarterly financial statement
shall be kept on file for a period of twelve (12) months after delivery to the
Board of Directors, and shall be exhibited at all reasonable times to any
shareholder demanding an examination thereof or a copy shall be mailed to the
shareholder.
SECTION 5.06 EXECUTION OF DOCUMENTS. The Board of Directors, except as these
Bylaws or the Articles of Incorporation otherwise provide, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances; and unless so
authorized by the Board of Directors, no officer, agent, or employee shall have
any power or authority to bind the Corporation by any contract or agreement or
to pledge its credit to render it liable for any purpose or to any amount.
SECTION 5.07 CERTIFICATES OF STOCK. A certificate or certificates for shares
of the capital stock of the Corporation shall be issued to each shareholder when
any such shares are fully paid. All such certificates shall be signed by the
Chairman of the Board or the President or a Vice President, and by the Chief
Financial Officer or an Assistant Chief Financial Officer, Secretary or an
Assistant Secretary, or shall be authenticated by facsimiles of such signatures.
Certificates for shares may be issued prior to full payment thereof, under
such restrictions and for such purposes as the Board of Directors or these
Bylaws may provide; provided, however, that any such certificates so issued
prior to full payment shall state the total amount of the consideration to be
paid therefor and the amount paid thereon, and such statement shall be
conspicuous.
There shall also appear on each certificate, to the extent applicable,
statements: that the shares represented thereby are subject to restrictions upon
transfer, to an irrevocable proxy under Section 705(e) of the California
Corporations Code, or to restrictions upon voting rights contractually imposed
by the Corporation; that such shares are redeemable or assessable or subject to
conversion and the period for conversion, and any such statement that such
shares are subject to restrictions upon transfer or are assessable shall be
conspicuous. If the shares of the Corporation are classified or if any class of
shares has two (2) or more series, there shall also appear on each certificate
the office or agency of the Corporation from which shareholders may obtain, upon
request and without charge, a
13
statement of the rights, preferences, privileges and restrictions granted to or
imposed upon each class or series of shares authorized to be issued and upon the
holders thereof.
Notwithstanding the foregoing provisions of this Section 5.07, the Board of
Directors is entitled to elect to cause the Corporation to adopt a system of
issuance, recordation and transfer of its shares by electronic or other means
not involving any issuance of certificates, subject, however, to compliance with
Section 416 of the California Corporations Code and other applicable law
regarding such system.
SECTION 5.08 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. Subject to the
instructions and control of the Board of Directors, the Chief Executive Officer,
the President or any Vice President and the Secretary or Assistant Secretary of
the Corporation, acting jointly, are 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 to said officers to vote or represent on behalf of the
Corporation any and all shares held by the Corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
person authorized so to do by proxy or power of attorney duly executed by said
officers.
SECTION 5.09 INSPECTION OF BYLAWS. The Corporation shall keep in its
principal executive office in the State of California, or if there be no such
office at its principal business office in such State, the original or a copy of
these Bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office is outside such State and the Corporation has no principal
business office in such State, the Corporation shall upon the written request of
any shareholder, made in writing upon the President, Secretary or Assistant
Secretary of the Corporation, furnish to such shareholder a copy of these Bylaws
as amended to date.
ARTICLE VI -- RESTRICTIVE LEGENDS ON STOCK CERTIFICATES
SECTION 6.01 RESTRICTIVE LEGENDS ON STOCK CERTIFICATES. If deemed necessary
or appropriate by the Board of Directors, a legend to the following effect (in
addition to any other legends required by applicable federal or state securities
laws) shall be placed (i) on certificates that represent shares of the
Corporation's stock that are beneficially owned by the Corporation's directors
and executive officers and by any other shareholders that the Board of Directors
determines are or may be "affiliates" of the Corporation within the meaning of
Rule 144 under the Securities Act of 1933, as amended, and (ii) on certificates
that represent shares of the Corporation's stock that are "restricted
securities" within the meaning of Rule 144 under the Securities Act of 1933, as
amended.
"THE SHARES THAT ARE REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, OFFERED FOR SALE, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS SUCH TRANSFER IS REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS COVERING SUCH
SHARES OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL OR OTHER
EVIDENCE SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED."
ARTICLE VII -- INDEMNIFICATION
SECTION 7.01 INDEMNIFICATION OF DIRECTORS. The Corporation shall, to the
maximum extent permitted by applicable law but subject to the terms and
conditions of any indemnification agreement that may be entered into between the
director and the Corporation, indemnify each of its directors against expenses
(as defined in Section 317(a) of the California Corporations Code), judgments,
fines, settlements and other amounts actually and reasonably incurred by such
director in connection with any proceeding (as defined in Section 317(a) of the
California Corporations Code) arising by reason of the fact that such director
(i) is or was a director of the Corporation, (ii) was a director of the
Corporation's predecessor, Calavo Growers of California, a California nonprofit
cooperative association, or (iii) is or was serving at the request of the
Corporation as a director of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise. For purposes of this
Article VII, a "director" includes any person who is or was a director of the
Corporation.
SECTION 7.02 INDEMNIFICATION OF OFFICERS, EMPLOYEES AND OTHER AGENTS. In
addition to the indemnification that is required to be provided to directors of
the Corporation under Section 7.01 of this Article, the Corporation shall have
the power, to the extent and in the manner permitted by applicable law, to
indemnify each of its officers, employees and other 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 such person
is or was an officer, employee or other agent of the Corporation. For purposes
of this Article VII, an "employee,"
14
"officer" or "agent" of the Corporation includes any person (i) who is or was an
officer, employee or other agent of the Corporation, (ii) who 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 (iii) who was an officer, employee or other agent
of Calavo Growers of California or of another enterprise at the request of
Calavo Growers of California.
SECTION 7.03 ADVANCE OF EXPENSES. Attorneys' fees and other expenses incurred
in defending any proceeding may be advanced by the Corporation prior to the
final disposition of such proceeding upon receipt of an undertaking by or on
behalf of the indemnified party to repay such amounts if it shall ultimately be
determined that the indemnified party is not entitled to be indemnified as
authorized or provided by this Article VII.
SECTION 7.04 INDEMNIFICATION NOT EXCLUSIVE. The indemnification authorized or
provided by this Article VII shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any Bylaw,
agreement, vote of shareholders or directors or otherwise, both as to action in
an official capacity and as to action in another capacity while holding such
office. The rights to indemnification hereunder shall continue as to a person
who has ceased to be a director, officer, employee or other agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
SECTION 7.05 INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or other agent of the Corporation against any liability asserted
against or incurred by such person in such capacity or arising out of that
person's status as such, whether or not the Corporation would have the power to
indemnify that person against such liability under the provisions of this
Article VII.
SECTION 7.06 CONFLICTS. No indemnification or advance shall be made under
this Article VII, except where such indemnification or advance is mandated by
law or the order, judgment or decree of any court of competent jurisdiction, in
any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Corporation's
Articles of Incorporation, these Bylaws, a resolution of the shareholders or
an agreement in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding in which the expenses were incurred or
other amounts were paid which prohibits or otherwise limits indemnification;
or
(b) That it would be inconsistent with any condition expressly imposed by
a court in approving a settlement.
SECTION 7.07 INDEMNIFICATION AGREEMENTS. Notwithstanding anything to the
contrary in this Article VII, the Corporation is authorized to enter into a
contract with any director, officer, employee or other agent of the Corporation
(or with any person who is or was serving at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust or other enterprise, including employee benefit plans, or
any person who was a director, officer, employee or agent of a corporation which
was a predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation) which provides for indemnification
rights equivalent to or, if the Board of Directors so determines and to the
extent permitted by applicable law, greater than those provided for in this
Article VII.
SECTION 7.08 AMENDMENT, REPEAL OR MODIFICATION. No amendment, repeal or
modification of any provision of this Article VII shall adversely affect any
right or protection of any director, officer, employee or other agent of the
Corporation which exists at the time of such amendment, repeal or modification.
ARTICLE VIII -- AMENDMENTS
SECTION 8.01 POWER OF SHAREHOLDERS. New Bylaws may be adopted or these Bylaws
may be amended or repealed by the affirmative vote or written consent of a
majority of the outstanding shares entitled to vote, except as may be
specifically set forth in the Articles of Incorporation or these Bylaws to the
contrary.
SECTION 8.02 POWER OF DIRECTORS. Subject to the right of the shareholders as
provided in Section 8.01 of this Article to adopt, amend or repeal these Bylaws,
Bylaws other than a Bylaw or amendment thereof changing the authorized number of
directors may be adopted, amended or repealed by the affirmative vote of at
least seventy-five percent (75%) of the authorized number of directors. The
adoption of a resolution by the Board of Directors that fixes the exact number
of directors within the authorized range of directors specified in Section 3.02
of these Bylaws shall not be considered an amendment of these Bylaws.
15