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EXHIBIT 3.5
BYLAWS
OF
INTERNATIONAL AIRCRAFT INVESTORS
ARTICLE I: OFFICES
1. PRINCIPAL OFFICE. The location of the corporation's principal
executive office shall be as designated at the end of this paragraph. The
Board of Directors may change the location of the principal executive office to
any place within or outside of California. If the principal executive office
is located outside of California and the corporation has one or more business
offices in California, the Board of Directors shall fix and designate a
principal business office in California.
The principal executive office is located at:
1901 Avenue of the Stars, Suite 1600
Los Angeles, California 90067
2. OTHER OFFICES. Branch or subordinate offices may be
established at any time and at any place by the Board of Directors.
ARTICLE II: SHAREHOLDERS
1. PLACE OF MEETINGS. Meetings of shareholders shall be held at
any place within or outside of California designated by the Board of Directors
and stated in the notice of the meeting. If no place is so specified,
shareholders' meetings shall be held at the corporation's principal executive
office.
2. ANNUAL MEETING. Annual meetings of the shareholders shall be
held on the date and time specified below. However, if this date falls on a
legal holiday, then the meeting shall be held at the same time and place on the
next succeeding full business day. At this meeting, Directors shall be elected
and any other proper business within the power of the shareholders may be
transacted.
Date: 10:00 a.m.
Time: December 15, 1988
3. SPECIAL MEETINGS; HOW CALLED. A special meeting of the
shareholders may be called at any time by any of the following: The Board of
Directors, the Chairman of the Board, the President, any Vice President, or one
or more shareholders holding shares that in the aggregate are entitled to cast
no less than 10 percent of the votes at that meeting. For special meetings
called by anyone other than the Board of Directors, the person or persons
calling
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the meeting shall make a request in writing to the Chairman of the Board, the
President, Vice President, or Secretary, specifying a time and date for the
proposed meeting (which is not less than 35 nor more than 60 days after receipt
of the request) and the general nature of the business to be transacted.
Within 20 days after receipt, the officer receiving the request shall cause
notice to be given to the shareholders entitled to vote at the meeting. The
notice shall state that a meeting will be held at the time requested by the
person(s) calling the meeting, and shall state the general nature of the
business proposed to be transacted. If notice is not given within 20 days
after receipt of the request, the person or persons requesting the meeting may
give the notice. Nothing in this paragraph shall limit, fix, or affect the
time or notice requirements for shareholder meetings called by the Board of
Directors.
4. NOTICE OF MEETINGS; TIME AND CONTENTS. Notice of meetings of
shareholders shall be sent or otherwise given not less than 10 nor more than 60
days before the meeting date. The notice shall specify the place, date, and
hour of the meeting. It shall also state (a) for special meetings, the general
nature of the proposed business, or (b) for annual meetings, those matters
which the Board of Directors at the time of giving the notice intends to
present for action by the shareholders. If Directors are to be elected, the
notice shall include the names of all nominees and persons whom the Board
intends to present for election, as of the date of the notice. The notice
shall also state the general nature of any proposed action at the meeting to
approve:
(a) A transaction in which a Director has a financial
interest, within the meaning of Section 310 of the California Corporations
Code;
(b) An amendment of the Articles of Incorporation under
Section 902 of that Code;
(c) A reorganization under Section 1201 of that Code;
(d) A voluntary dissolution of the corporation under
Section 1900 of that Code; or
(e) A distribution in dissolution that requires approval
of the outstanding shares under Section 2007 of that Code.
The manner of giving notice and the determination of
shareholders entitled to receive notice shall be in accordance with these
bylaws.
5. MANNER OF GIVING NOTICE, AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting shall be given either (a) personally, or (b) by
first-class mail or by telegraphic or other written communication, charges
prepaid, addressed to the shareholder at the address appearing on the
corporation's books or supplied by the
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shareholder for purposes of notice. If the corporation has no such address for
a shareholder, notice shall be either (a) sent by first-class mail addressed to
the shareholder at the corporation's principal executive office, or (b)
published at least once in a newspaper of general circulation in the county
where the corporation's principal executive office is located. Notice is
deemed to have been given at the time it was delivered personally, deposited in
the mail, or sent by other means of written communication.
If any notice or report mailed to a shareholder at the
shareholder's address (as specified in the preceding paragraph) is returned
marked "unable to deliver" at that address, subsequent notices or reports shall
be deemed to have been duly given without further mailing if the corporation
holds the document available for the shareholder on written demand at its
principal executive office for one year from the date on which the notice or
report was sent to the other shareholders.
An affidavit, certificate, or declaration of mailing (or other
authorized means of delivery) of any notice of shareholders' meeting, report,
or other document sent to shareholders shall be executed by the corporate
Secretary, assistant Secretary, or transfer agent, and filed in the
corporation's minute book.
6. ADJOURNED MEETINGS; NOTICE. Shareholders' meetings (either
annual or special) may be adjourned from time to time by a vote of the majority
of the shareholders represented at that meeting in person or by proxy, whether
or not a quorum is present; however, in the absence of a quorum, no other
business may be transacted, except as specifically authorized in these bylaws.
If a meeting is adjourned to another time or place, new notice
is not required if the new time and place were announced at the original
meeting, unless (a) the Board sets a new record date for this purpose, or (b)
the adjournment is for more than 45 days from the original meeting date, in
which case the Board must set a new record date. If a new record date is set,
new notice shall be given to the shareholders of record as of that date, in the
same manner as other notices of meetings. At an adjourned meeting, the
corporation may transact any business that would be proper at the original
meeting.
7. WAIVER OF NOTICE OR CONSENT BY ABSENTEES. The transactions of
any shareholders' meeting, either annual or special, however called and noticed
and wherever held, shall be as valid as though they were had at a meeting duly
held after regular call and notice, if a quorum is present either in person or
by proxy, and if each person entitled to vote but not present at the meeting
signs a written waiver of notice, a consent to holding the meeting, or an
approval of the minutes. Shareholders' signatures may be obtained either
before or after the meeting. The waiver of notice or consent need not specify
either the intended business or the purpose of the meeting, except that if
action is taken or
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proposed to be taken regarding any of the matters specified in Section 601(f)
of the California Corporations Code (and listed above in the paragraph on
contents of notices of shareholder meetings), the general nature of the action
or proposed action must be stated in the waiver of notice or consent. All
written waivers, consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Notice is also waived by a shareholder's attendance at the
meeting, unless the shareholder at the beginning of the meeting objects to the
transaction of any business on the ground that the meeting was not lawfully
called or convened. Attendance and failure to object to the validity of the
meeting, however, does not constitute a waiver of any right to object
expressly, at a meeting, to consideration of matters required by law to be
included in the notice of the meeting which were not so included.
8. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action that
could be taken at an annual or special meeting of shareholders, except for the
election of Directors (see following paragraph), may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having at least the
minimum number of votes necessary to authorize or take that action at a meeting
at which all shares entitled to vote on that action were present and voting.
Directors may be elected without a meeting only by the
unanimous written consent of all shares entitled to vote for the election of
Directors, except that vacancies the Board is entitled to fill (vacancies other
than those caused by removal of a Director) may be filled by the written
consent of a majority of the outstanding shares entitled to vote.
All written consents shall be filed with the Secretary of the
corporation and maintained in the corporate records. Anyone who has given a
written consent may revoke it by a writing received by the Secretary of the
corporation before written consents of the number of shares required to
authorize the proposed action have been filed with the Secretary.
Unless the consents of all shareholders entitled to vote have
been solicited in writing, the Secretary shall give prompt notice of any
corporate action approved by the shareholders without a meeting by less than
unanimous consent, to those shareholders entitled to vote who have not
consented in writing. As to approvals required by California Corporations Code
Section 310 (transactions in which a Director has a financial interest),
Section 317 (indemnification of corporate agents), Section 1201 (corporate
reorganization), or Section 2007 (certain distributions on dissolution), notice
of the approval shall be given at least ten days before the consummation of any
action authorized by the
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approval. Notice shall be given in the manner specified in these bylaws for
notice of shareholders' meetings.
9. RECORD DATE FOR SHAREHOLDER NOTICE AND VOTING.
(a) For purposes of determining the shareholders entitled
to receive notice of and vote at a shareholders' meeting or give written
consent to corporate action without a meeting, the Board may fix in advance a
record date that is not more than 60 days nor less than 10 days before the date
of any such meeting, or not more than 60 days before any such action without a
meeting.
(b) If no record date has been fixed:
(i) The record date for determining shareholders entitled
to receive notice of and vote at a shareholders' meeting shall be the business
day next preceding the day on which notice is given, or if notice is waived as
provided in these bylaws, the business day next preceding the day on which the
meeting is held;
(ii) The record date for determining shareholders entitled
to give written consent to corporate action without a meeting shall be the day
on which the action to be approved was taken by the Board, or, if the Board has
not yet acted, the day on which the first written consent is given; and
(iii) The record date for any other purpose shall be as set
forth in the section of these bylaws regarding record date for purposes other
than notice and voting.
(c) A determination of shareholders of record entitled to
receive notice of and vote at a shareholders' meeting shall apply to any
adjournment of the meeting unless the Board fixes a new record date for the
adjourned meeting. However, the Board shall fix a new record date if the
adjournment is to a date more than 45 days after the date set for the original
meeting.
(d) Except as otherwise required by law, only
shareholders of record on the corporation's books at the close of business on
the record date shall be entitled to any of the notice and voting rights listed
in subsection (a) of this section, notwithstanding any transfer of shares on
the corporation's books after the record date.
10. QUORUM. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum was initially present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum; however, any action taken
(other than adjournment) must be approved by at least a majority of the shares
required to constitute a quorum.
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11. VOTING. The corporation shall determine the shareholders
entitled to vote at any shareholders' meeting in accordance with bylaw
provisions for record date, subject to Sections 702 through 704 of the
California Corporations Code (concerning the voting of shares held by a
fiduciary, a corporation, or joint owners). Except as otherwise provided by
law or as otherwise provided in the Articles of Incorporation, each outstanding
share shall be entitled to one vote on each matter submitted to a vote of the
shareholders.
The shareholders may vote by voice vote or by ballot, except
that if any shareholder so demands before the voting begins, any election for
Directors must be by ballot. On any matter other than the election of
Directors, a shareholder may vote part of his or her shares in favor of the
proposal and refrain from voting the remaining shares or vote them against the
proposal. If a shareholder does not specify the number of shares being voted,
it will be conclusively presumed that the shareholder's vote covers all shares
which that shareholder is entitled to vote.
If a quorum is present (or if a quorum had been present
earlier at the meeting but some shareholders have withdrawn), the affirmative
vote of a majority of the shares represented and voting, provided such
affirmative vote also constitutes a majority of the number of shares required
for a quorum, shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by statute or by the Articles of
Incorporation.
12. CUMULATIVE VOTING. Cumulative voting for the election of
Directors is permitted if one or more shareholders present at the meeting give
notice, before the voting begins, of their intention to cumulate votes (i.e.,
cast for any candidate a number of votes greater than the number of votes which
that shareholder would normally be entitled to cast). If any shareholder has
given such notice, and if the candidates' names have been placed in nomination,
then all shareholders entitled to vote may cumulate their votes, giving any
nominated candidate a number of votes equal to the number of Directors to be
elected multiplied by the number of votes to which that shareholder's shares
are normally entitled, or distributing the cumulative number of votes among any
or all of the candidates. The elected Directors shall be those candidates (up
to the number of Directorships open for election) receiving the most votes.
13. PROXIES. Every person entitled to vote for Directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the Secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney in fact.
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A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (e) it is revoked by
the person who executed the proxy, either by a writing delivered to the
corporation before the proxy has been voted, or by attendance at the meeting;
or (f) the corporation receives written notice of the shareholder's death or
incapacity before the vote pursuant to that proxy has been counted; provided,
however, that no proxy shall be valid after the expiration of 11 months from
the date of the proxy unless the proxy itself provides otherwise.
Proxies stating on their face that they are irrevocable shall
be governed by Sections 705(e) and 705(f) of the California Corporations Code.
14. VOTING TRUSTS. If any shareholders file a voting trust
agreement with the corporation, the corporation shall take notice of its terms
and trustee limitations.
15. ELECTION INSPECTORS. Before any shareholders' meeting, the
Board of Directors may appoint any persons other than nominees for office to
act as election inspectors. If no election inspectors have been so appointed,
the Chairman of the meeting may, and on the request of any shareholder or
shareholder's proxy shall, appoint election inspectors at the meeting. The
number of inspectors shall be either 1 or 3. If inspectors are appointed at
the meeting on the request of one or more shareholders or their proxies, the
holders of a majority of shares or their proxies present at the meeting shall
determine whether 1 or 3 inspectors are to be appointed. If any inspector
fails to appear or fails or refuses to act, the Chairman of the meeting may,
and on the request of any shareholder or shareholder's proxy shall, appoint a
person to fill that vacancy. These inspectors shall (g) determine the number
of shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum, and the authenticity, validity, and
effect of proxies; (h) receive votes, ballots, or consents; (i) hear and
determine all challenges and questions in any way arising in connection with
the right to vote; (j) count and tabulate all votes or consents; (k) determine
when the polls shall close; (l) determine the result; and (m) do any other acts
that may be proper to conduct the election or vote with fairness to all
shareholders.
ARTICLE III: DIRECTORS
1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the Articles of Incorporation and these
bylaws relating to actions requiring approval by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the Board of Directors.
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Without prejudice to these general powers, and subject to the
same limitations, the Board of Directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the Articles of Incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service;
(b) Change the principal executive office or the principal
business office in the State of California from one location to another;
qualify the corporation to do business in any other state, territory,
dependency, or country; conduct business within or outside the State of
California; and designate any place within or outside the State of California
for the holding of any shareholders' meeting;
(c) Adopt, make and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates;
(d) Authorize the issuance of shares of corporate stock on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received; and
(e) Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered for the corporation's
purposes, in the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
2. NUMBER OF DIRECTORS. The authorized number of Directors shall
be as set forth below. This number can be changed by an amendment to the
Articles of Incorporation or an amendment to this bylaw adopted by the vote or
written consent of a majority of the outstanding shares entitled to vote.
However, if the number of Directors is five or more, an amendment that would
reduce the number of Directors to a number less than five cannot be adopted if
the votes cast against its adoption at a meeting or the shares not consenting
to an action by written consent are equal to more than one sixth (16 2/3
percent) of the outstanding shares entitled to vote.
Number of Directors: 7
3. ELECTION AND TERM OF DIRECTORS. Directors shall be elected at
each annual shareholders' meeting, to hold office until the next annual
meeting. Election of Directors by written consent without a meeting requires
the unanimous written consent of the outstanding shares entitled to vote. Each
Director, including a Director elected to fill a vacancy, shall hold office
until the
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expiration of the term for which elected and until a successor has been elected
and qualified.
No reduction of the authorized number of Directors shall have
the effect of removing any Director before his or her term of office expires.
4. VACANCIES. A vacancy in the Board of Directors shall be
deemed to exist (a) if a Director dies, resigns, or is removed by the
shareholders or an appropriate court, as provided in Section 303 or Section 304
of the California Corporations Code; (b) if the Board of Directors declares
vacant the office of a Director who has been convicted of a felony or declared
of unsound mind by an order of court; (c) if the authorized number of Directors
is increased; or (d) if at a shareholders' meeting the shareholders fail to
elect the full authorized number of Directors. Vacancies (except for those
caused by a Director's removal) may be filled by a majority of the remaining
Directors, whether or not they constitute a quorum, or by a sole remaining
Director.
Vacancies on the Board caused by the removal of a Director
(except for vacancies created when the Board declares the office of a Director
vacant as provided in clause (b) of the first paragraph of this section) may be
filled only by the shareholders, either by majority vote of the shares
represented and voting at a meeting at which a quorum is present, or by the
unanimous written consent of all shares entitled to vote.
Any Director may resign effective on giving written notice to
the Chairman of the Board, the President, the Secretary, or the Board of
Directors, unless the notice specifies a later effective date. If the
resignation is effective at a future time, the Board of Directors may elect a
successor to take office when the resignation becomes effective.
The shareholders may elect a Director at any time to fill a
vacancy not filled by the Board of Directors.
The term of office of a Director elected to fill a vacancy
shall run until the next annual shareholders' meeting, and the Director shall
hold office until a successor is elected and qualified.
5. PLACE OF MEETINGS. Regular meetings of the Board of Directors
may be held at any place within or outside the State of California as
designated from time to time by the Board. In the absence of a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the Board may be held at any place within or
outside the State of California designated in the notice of the meeting, or if
the notice does not state a place, at the principal executive office of the
corporation. Any meeting, regular or special, may be held by
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conference telephone or similar communication equipment, provided that all
Directors participating can hear one another.
6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the Board of Directors shall hold a regular meeting at
the same place or at any other place designated by the Board, to elect officers
and transact other necessary business as desired. Notice of this meeting shall
not be required unless some place other than the place of the annual
shareholders' meeting has been designated.
7. OTHER REGULAR MEETINGS. Other regular meetings of the Board
of Directors shall be held without call at times to be fixed by the Board of
Directors from time to time. Such regular meetings may be held without notice.
8. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called for any purpose or purposes at any time by the Chairman of the
Board, the President, any Vice President, the Secretary, or any two Directors.
Special meetings shall be held on 4 days' notice by mail or 48
hours' notice delivered personally or by telephone or telegraph. Oral notice
given personally or by telephone may be transmitted either to the Director or
to a person at the Director's office who can reasonably be expected to
communicate it promptly to the Director. Written notice, if used, shall be
addressed to each Director at his or her address shown on the corporate
records. The notice need not specify the purpose of the meeting, nor need it
specify the place if the meeting is to be held at the principal executive
office of the corporation.
9. WAIVER OF NOTICE. Notice of a meeting, if otherwise required,
need not be given to any Director who (a) either before or after the meeting
signs a waiver of notice or a consent to holding the meeting without being
given notice, (b) signs an approval of the minutes of the meeting, or (c)
attends the meeting without protesting the lack of notice before or at the
beginning of the meeting. Waivers of notice or consents need not specify the
purpose of the meeting. All such waivers, consents, and approvals of the
minutes, if written, shall be filed with the corporate records or made a part
of the minutes of the meeting.
10. QUORUM. A majority of the authorized number of Directors
shall constitute a quorum for the transaction of business, except for
adjournment.
Except as otherwise required by California Corporations Code
Section 310 (approval of contracts or transactions in which a Director has a
material financial interest), Section 311 (appointment of committees), and
Section 317(e) (indemnification of Directors), every act done or decision made
by a majority of the Directors present at a meeting duly held at which a quorum
is
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present shall be deemed the act of the Board of Directors, unless a different
requirement is imposed by the Articles of Incorporation.
A meeting at which a quorum was initially present may continue
to transact business despite the withdrawal of Directors, if the action taken
is approved by at least a majority of the quorum required for that meeting.
11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not a quorum
is present, a majority of the Directors present may adjourn any meeting to
another time and place.
12. NOTICE OF ADJOURNED MEETING. Notice of the time and place of
resuming an adjourned meeting need not be given if the adjournment is for 24
hours or less. If the adjournment is for more than 24 hours, notice of the new
time and place shall be given, before the time set for resuming the meeting, to
any Directors who were not present at the time of adjournment, but need not be
given to Directors who were present at the time of adjournment.
13. ACTION WITHOUT A MEETING BY WRITTEN CONSENT. Any action
required or permitted to be taken by the Board of Directors may be taken
without a meeting, if all members of the Board individually or collectively
consent in writing to that action. Any action by written consent shall have
the same effect as a unanimous vote of the Board of Directors. All such
written consents shall be filed with the minutes of the proceedings of the
Board of Directors.
14. COMPENSATION OF DIRECTORS. Directors and members of
committees of the Board may be compensated for their services, and shall be
reimbursed for expenses, as fixed or determined by resolution of the Board of
Directors. This section shall not preclude any Director from serving the
corporation as an officer, agent, employee, or in any other capacity, and
receiving compensation for those services.
15. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part of
the compensation, including expenses, paid by the corporation to a Director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the Director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The Board of Directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
ARTICLE IV: COMMITTEES
1. EXECUTIVE AND OTHER COMMITTEES OF THE BOARD. The Board of
Directors, by resolution adopted by a majority of the authorized number of
Directors, may create one or more committees with the authority of the Board
("Board committees" or "committees of the
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Board"), including an executive committee. Each Board committee shall consist
of two or more Directors, and may have one or more alternate members, also
Directors. Appointment of members and alternate members requires the
affirmative vote of a majority of the authorized number of Directors.
Committees of the Board, to the extent provided in the Board resolution
establishing the committee, may be granted any or all of the powers and
authority of the Board except for the following:
(a) Approving any action for which the California Corporations
Code also requires the approval of the shareholders or of the outstanding
shares;
(b) Filling vacancies on the Board of Directors or any committee
of the Board;
(c) Fixing Directors' compensation for serving on the Board or a
committee of the Board;
(d) Adopting, amending, or repealing bylaws;
(e) Amending or repealing any resolution of the Board of Directors
which by its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in a
periodic amount or within a price range determined by the Board of Directors;
or
(g) Appointing other committees of the Board or their members.
2. MEETINGS AND ACTIONS OF BOARD COMMITTEES. Meetings and
actions of committees of the Board shall be governed by the bylaw provisions
applicable to meetings and actions of the Board of Directors as to place of
meetings, regular meetings, special meetings, waiver of notice, quorum,
adjournment, notice of adjournment, and action by written consent without a
meeting, with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the Board of Directors and its
members, except that (a) the time of regular committee meetings may be
determined either by resolution of the Board of Directors or by resolution of
the committee; (b) special committee meetings may also be called by resolution
of the Board of Directors; (c) notice of special committee meetings shall also
be given to all alternate members; and (d) alternate members shall have the
right to attend all meetings of the committee. The Board may adopt rules, not
inconsistent with the bylaws, for the governance of committees of the Board.
3. NON-BOARD COMMITTEES. One or more committees without the
power and authority of the Board ("non-Board" committees) may be created by
Board resolution, for investigative and other
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appropriate purposes. Membership on non-Board committees is not limited to
Directors. To bind the corporation, actions of non-Board committees must be
ratified by the Board of Directors.
ARTICLE V: OFFICERS
1. OFFICERS; ELECTION. The corporation shall have a chief
executive officer, a Secretary, and a chief financial officer. There may also
be other officers as specified in the bylaws or designated by the Board. Any
number of offices may be held by the same person. The officers of the
corporation (except for subordinate officers appointed in accordance with the
provisions below) shall be elected annually by the Board of Directors. All
officers shall serve at the pleasure of the Board.
2. CHIEF EXECUTIVE OFFICER. Except to the extent that the bylaws
or the Board of Directors assign specific powers and duties to the Chairman of
the Board, the President shall serve as general manager and chief executive
officer of the corporation and shall have general supervision, direction, and
control over the corporation's business and its officers, with all the general
powers and duties of management usually vested in a corporation's chief
executive officer.
The President shall preside at all shareholders' meetings, and
shall exercise and perform such other powers and duties as prescribed by the
bylaws or by the Board of Directors. The President shall also preside at Board
meetings if there is no Chairman of the Board or if the Chairman is absent.
3. SECRETARY. The Secretary shall have the following duties:
(a) MINUTES. The Secretary shall be present at and take the
minutes of all meetings of the shareholders, the Board of Directors, and
committees of the Board. If the Secretary is unable to be present, the
Secretary or the presiding officer of the meeting shall designate another
person to take the minutes of the meeting. The Secretary shall keep, or cause
to be kept, at the principal executive office or such other place as designated
by the Board of Directors, a book of minutes of all meetings and actions of the
shareholders, the Board of Directors, and committees of the Board. The minutes
of each meeting shall state the following: The time and place of the meeting;
whether it was regular or special; if special, how it was called or authorized;
the notice given or waivers or consents obtained; the names of Directors
present at Board or committee meetings; the number of shares present or
represented at shareholders' meetings, and an accurate account of the
proceedings.
(b) RECORD OF SHAREHOLDERS. The Secretary shall keep or cause to
be kept, at the principal executive office or at the office of the transfer
agent or registrar, a record or duplicate
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record of shareholders. This record shall show the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of share certificates issued to each shareholder, and the number and
date of cancellation of any certificates surrendered for cancellation.
(c) NOTICE OF MEETINGS. The Secretary shall give notice, or cause
notice to be given, of all shareholders' meetings, Board meetings, and
committee meetings for which notice is required by statute or by the bylaws.
If the Secretary or other person authorized by the Secretary to give notice
fails to act, notice of any meeting may be given by any other officer of the
corporation. The Secretary shall maintain records of the mailing or other
delivery of notices and documents to shareholders or Directors, as prescribed
by the bylaws or by the Board of Directors.
(d) OTHER DUTIES. The Secretary shall keep the seal of the
corporation, if any, in safe custody. The Secretary shall have such other
powers and perform such other duties as prescribed by the bylaws or by the
Board of Directors.
4. CHIEF FINANCIAL OFFICER. The chief financial officer, who may
also be referred to as the treasurer, shall keep or cause to be kept adequate
and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings, and shares.
The books of account shall at all reasonable times be open to inspection by any
Director.
The chief financial officer shall (a) deposit corporate funds
and other valuables in the corporation's name and to its credit with
depositories designated by the Board; (b) disburse corporate funds as
authorized by the Board; (c) whenever requested by the Board or the chief
executive officer, render a statement of the corporation's financial condition
and an account of all transactions he or she has conducted as chief financial
officer; and (d) exercise such other powers and perform such other duties as
prescribed by the bylaws or by the Board of Directors.
The chief financial officer shall be deemed the treasurer for
any purpose requiring action by the corporation's treasurer.
5. VICE PRESIDENTS. There may be one or more Vice Presidents, as
determined by the Board. In the absence or disability of the President, the
President's duties and responsibilities shall be carried out by the
highest-ranking available Vice President, or if there are two or more unranked
Vice Presidents, by a Vice President designated by the Board of Directors.
When so acting, a Vice President shall have all the powers of and be subject to
all the restrictions on the President. Vice Presidents shall have such other
powers and perform such other
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duties as prescribed by the bylaws or assigned from time to time by the Board
of Directors or the chief executive officer.
6. SUBORDINATE OFFICERS. The Board of Directors may appoint, and
may empower the chief executive officer to appoint, subordinate officers as
required by the corporation's business, whose duties shall be as provided in
the bylaws or as determined from time to time by the Board of Directors or the
chief executive officer.
7. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by
the Board of Directors may be removed by the Board at any time, with or without
cause or notice. Subordinate officers appointed by persons other than the
Board may be removed at any time, with or without cause or notice, by the Board
or by the person by whom appointed. A removed officer shall have no claim
against the corporation or individual officers or Board members arising from
such removal (other than any rights he or she may have to monetary compensation
or damages under an employment contract).
Any officer may resign at any time by giving the corporation
written notice. Unless otherwise specified in the notice, resignations shall
take effect on the date the notice is received, and acceptance of the
resignation is not necessary to make it effective. An officer's resignation or
its acceptance by the corporation shall not prejudice any rights the
corporation may have to monetary damages under an employment contract.
8. VACANCIES IN OFFICES. Vacancies in offices resulting from an
officer's death, resignation, removal, disqualification, or any other cause
shall be filled by the Board or by the person, if any, authorized by the bylaws
or the Board to make an appointment to that office.
9. COMPENSATION. Salaries of officers and other shareholders
employed by the corporation shall be fixed from time to time by the Board of
Directors or established under employment agreements approved by the Board of
Directors. No officer shall be prevented from receiving this salary because he
or she is also a Director of the corporation.
10. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part
of the compensation, including expenses, paid by the corporation to a Director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the Director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The Board of Directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
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ARTICLE VI: INDEMNIFICATION
1. INDEMNIFICATION OF AGENTS. The corporation, to the maximum
extent permitted by the California General Corporation Law, shall have power to
indemnify any of its agents against expenses, judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with any
proceeding or potential proceeding arising out of the relationship, and to the
maximum extent permitted by law, the corporation shall have power to advance
the agent's reasonable defense expenses in any such proceeding. For the
purposes of this section, "agent" means any person who is or was a Director,
officer, employee, or other agent of this corporation or its predecessor, and
any person who is or was serving as a Director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise, at
the request of this corporation or its predecessor; "proceeding" means any
threatened, pending, or completed action or proceeding, whether civil,
criminal, administrative, or investigative; and "expenses" include but are not
limited to attorneys' fees and any expenses of establishing a right to
indemnification under this section.
ARTICLE VII: RECORDS AND REPORTS
1. SHAREHOLDER LISTS; INSPECTION BY SHAREHOLDERS. The
corporation shall keep at its principal executive office or at the office of
its transfer agent or registrar, as the Board shall determine, a record of the
names and addresses of all shareholders and the number and class of shares held
by each.
A shareholder or group of shareholders holding 5 percent or
more of the outstanding voting shares of the corporation may (a) inspect and
copy the record of shareholders' names and addresses and shareholdings during
usual business hours, on 5 days' prior written demand on the corporation;
and/or (b) obtain from the corporation's transfer agent, on written demand and
tender of the transfer agent's usual charges for this service, a list of the
names and addresses of shareholders entitled to vote for the election of
Directors and their shareholdings, as of the most recent date for which a
record has been compiled or as of a specified date which is later than the date
of demand. This list shall be made available within 5 days after demand or
within 5 days after the specified later date as of which the list is to be
compiled.
The record of shareholders shall also be open to inspection
during usual business hours, on the written demand of any shareholder or holder
of a voting trust certificate, for a purpose reasonably related to the holder's
interest in the corporation. Any inspection or copying under this section may
be made in person or by the holder's agent or attorney.
2. MAINTENANCE OF BYLAWS. The corporation shall keep at its
principal executive office, or if its principal executive office is
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not in California, at its principal business office in this state, the original
or a copy of the bylaws as amended to date, which shall be open to inspection
by the shareholders at all reasonable times during office hours. If the
principal executive office of the corporation is outside of California and the
corporation has no principal business office in this state, the Secretary
shall, upon a shareholder's written request, furnish to that shareholder a copy
of the bylaws as amended to date.
3. MINUTES AND ACCOUNTING RECORDS. The minutes of proceedings of
the shareholders, Board of Directors, and committees of the Board, and the
accounting books and records shall be kept at the principal executive office of
the corporation, or at such other place or places as designated by the Board of
Directors. The minutes shall be kept in written form, and the accounting books
and records shall be kept either in written form or in a form capable of being
converted into written form. The minutes and accounting books and records
shall be open to inspection during usual business hours on the written demand
of any shareholder or holder of a voting trust certificate, for a purpose
reasonably related to the holder's interests in the corporation. The
inspection may be made in person or by an agent or attorney, and includes the
right to copy and make extracts. These rights of inspection shall extend to
the records of each subsidiary of the corporation.
4. INSPECTION BY DIRECTORS. Every Director shall have the
absolute right at any reasonable time to inspect all books, records, and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. This inspection may be made by the Director in
person or by an agent or attorney, and the right of inspection includes the
right to copy and make extracts of documents.
5. ANNUAL REPORT TO SHAREHOLDERS. The Board of Directors shall
cause an annual report to be sent to the shareholders not later than 120 days
after the close of the fiscal year adopted by the corporation. This report
shall be sent at least 15 days (if third-class mail is used, 35 days) before
the next annual meeting of shareholders, in the manner specified in these
bylaws for giving notice to shareholders. The annual report shall contain a
balance sheet as of the end of the fiscal year and an income statement and a
statement of changes in financial position for the fiscal year, prepared in
accordance with generally accepted accounting principles applied on a
consistent basis and accompanied by any report of independent accountants, or,
if there is none, by the certificate of an authorized officer of the
corporation that the statements were prepared without audit from the
corporation's books and records.
6. FINANCIAL STATEMENTS. The corporation shall keep a copy of
any annual financial statement, quarterly or other periodic income statement,
and accompanying balance sheets on file in its principal executive office for
12 months; these documents shall be
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exhibited (or copies provided) to shareholders at all reasonable times. If no
annual report for the last fiscal year has been sent to shareholders, on
written request of any shareholder made more than 120 days after the close of
the fiscal year, the corporation shall deliver or mail to the shareholder,
within 30 days after receipt of the request, a balance sheet as of the end of
that fiscal year and an income statement and statement of changes in financial
position for that fiscal year.
A shareholder or shareholders holding 5 percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request) of
the current fiscal year, and a balance sheet as of the end of that period. If
such documents are not already prepared, the chief financial officer shall
cause them to be prepared and shall deliver them personally or by mail to the
requesting shareholders within 30 days after the receipt of the request. A
balance sheet, income statement, and statement of changes in financial position
for the last fiscal year shall also be included, unless the corporation has
sent the shareholders an annual report for the last fiscal year.
Quarterly income statements and balance sheets referred to in
this section shall be accompanied by the report, if any, of independent
accountants engaged by the corporation, or a certificate by the authorized
corporate officer stating that the financial statements were prepared without
audit from the corporation's books and records.
7. ANNUAL INFORMATION STATEMENT.
(a) Every year, during the calendar month in which the
original Articles of Incorporation were filed with the California Secretary of
State or during the preceding five calendar months, the corporation shall file
a statement with the Secretary of State on the prescribed form, setting forth
the authorized number of Directors; the names and complete business or
residence addresses of the chief executive officer, the Secretary, and the
chief financial officer; the street address of the corporation's principal
executive office or principal business office in this state; a statement of the
general type of business constituting the principal business activity of the
corporation, and a designation of the corporation's agent for service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
(b) Notwithstanding the provisions of paragraph (a) of
this section, if there has been no change in the information contained in the
corporation's last annual statement on file in the Secretary of State's office,
the corporation may, in lieu of filing the annual statement, advise the
Secretary of State, on the
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appropriate form, that no changes in the required information have occurred
during the applicable period.
ARTICLE VIII: GENERAL CORPORATE MATTERS
1. RECORD DATE FOR DIVIDENDS AND DISTRIBUTIONS. For purposes of
determining the shareholders entitled to receive payment of dividends or other
distributions or allotment of rights, or entitled to exercise any rights in
respect of any other lawful action (other than voting at and receiving notice
of shareholders' meetings and giving written consent of the shareholders
without a meeting), the Board of Directors may fix in advance a record date not
more than 60 nor less than 10 days before the date of the dividend payment,
distribution, allotment, or other action. If a record date is so fixed, only
shareholders of record at the close of business on that date shall be entitled
to receive the dividend, distribution, or allotment of rights, or to exercise
the other rights, as the case may be, notwithstanding any transfer of any
shares on the corporate books after the record date, except as otherwise
provided by statute.
If the Board of Directors does not so fix a record date in
advance, the record date for these purposes shall be at the close of business
on the later of (a) the day on which the Board of Directors adopts the
applicable resolution or (b) the 60th day before the date of the dividend
payment, distribution, allotment of rights, or other action.
2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, or
other orders for payment of money, notes, and other evidences of indebtedness
issued in the name of or payable to the corporation shall be signed or endorsed
in the manner and by the persons authorized by the Board of Directors.
3. EXECUTING CONTRACTS AND INSTRUMENTS. The Board of Directors
may authorize any of its officers or agents to enter into any contract or
execute any instrument in the name of and on behalf of the corporation. This
authority may be general or it may be confined to one or more specific matters.
No officer, agent, employee, or other person purporting to act on behalf of the
corporation shall have any power or authority to bind the corporation in any
way, pledge its credit, or render it liable for any purpose in any amount,
unless that person was acting with authority duly granted by the Board of
Directors as provided in these bylaws, or unless an unauthorized act was later
ratified by the corporation.
4. SHARE CERTIFICATES. One or more certificates for shares of
the capital stock of the corporation shall be issued to each shareholder when
any of the shareholder's shares are fully paid.
All certificates shall certify the number of shares and the
class or series of shares represented by the certificate. All
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certificates shall be signed in the name of the corporation by (a) one of the
following: the Chairman or vice Chairman of the Board of Directors, the
President, or any Vice President; and (b) one of the following: the chief
financial officer, any assistant treasurer, the Secretary, or any assistant
Secretary. Any of the signatures on the certificate may be facsimile. If a
party who has signed share certificates ceases to be an officer or other agent
before the certificate is issued, the corporation may issue the certificate
with the same effect as if that person were an officer, transfer agent, or
registrar at the date of issue.
The share certificates shall state, by way of appropriate
legend, any restrictions on share ownership or transfer, and any other
statements required by applicable federal or state securities regulations.
5. LOST CERTIFICATES. Except as provided in this section, no new
certificates for shares shall be issued to replace old certificates unless the
old certificates are surrendered to the corporation for cancellation at the
same time. If share certificates or certificates for any other security have
been lost, stolen, or destroyed, the Board of Directors may authorize the
issuance of replacement certificates on terms and conditions as the Board may
require, which may include a requirement that the owner give the corporation a
bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it (including any expenses or liability) on
account of the alleged loss, theft, or destruction of the old certificate or
the issuance of the replacement certificate.
6. SHARES OF OTHER CORPORATIONS; HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by the
chief executive officer or a person designated by the chief executive officer.
If neither of them is able to act, the shares may be voted by a person
designated by the Board of Directors. The authority to vote shares includes
the authority to execute a proxy in the corporation's name for purposes of
voting the shares.
7. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part
of the compensation, including expenses, paid by the corporation to a Director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the Director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The Board of Directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
8. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
Sections 100 through 195 of the California Corporations Code shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular
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number includes the plural, the plural number includes the singular, and the
term "person" includes a corporation and a natural person.
9. TRANSFER RESTRICTIONS; RIGHT OF FIRST REFUSAL. Any
shareholder wishing to sell or transfer shares of the corporation
("transferring shareholder") shall, under procedures adopted by the Board of
Directors, disclose to the Board the number of shares submitted for sale or
transfer, the price per share, the terms and conditions of sale, and the name
of any proposed transferee, and shall make those shares available to the
corporation and other shareholders under the same terms. If, within a
reasonable time or before a reasonable date specified by the transferring
shareholder, neither the corporation nor the other shareholders offer to
purchase that number of shares under the same terms, the Board of Directors
shall grant the transferring shareholder permission to sell or transfer those
shares as specified, but not at terms more favorable to the transferee than
those under which the shares were submitted to the corporation and
shareholders.
ARTICLE IX: AMENDMENTS
1. AMENDMENT OF ARTICLES OF INCORPORATION. Unless otherwise
provided under California Corporations Code Sections 900 through 911,
amendments to the Articles of Incorporation may be adopted if approved by the
Board and approved by a majority of the outstanding shares entitled to vote,
either before or after approval by the Board. An amendment to the Articles of
Incorporation shall be effective as of the date that the appropriate
certificate of amendment is filed with the Secretary of State.
2. AMENDMENT OF BYLAWS. Except as otherwise required by law or
by the Articles of Incorporation, these bylaws may be amended or repealed, and
new bylaws may be adopted, by the Board of Directors or by a majority of the
outstanding shares entitled to vote.
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