EXHIBIT 3.9(b)
AMENDED AND RESTATED
BYLAWS
of
D.A. MANAGEMENT, INC.
A California Corporation
ARTICLE I.
OFFICES
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Section 1. Principal Executive Office.
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The principal executive office of the corporation is hereby fixed
and located at: 7777 Center Avenue, Suite 500, Huntington Beach, California
92647. The Board of Directors (herein called the "Board") is hereby granted full
power and authority to change said principal executive office from one location
to another. Any such change shall be noted on the Bylaws opposite this Section,
or this Section may be amended to state the new location.
Section 2. Other Offices.
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Branch or subordinate offices may at any time be established by
the Board at any place or places.
ARTICLE II.
SHAREHOLDERS
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Section 1. Place of Meetings.
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Meetings of shareholders shall be held either at the principal
executive office of the corporation or at any other place within or without the
State of California which may be designated either by the Board or by the
written consent of all persons entitled to vote thereat, given either before or
after the meeting and filed with the Secretary.
Section 2. Annual Meetings.
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The annual meetings of shareholders shall be held on: March 15,
at 10:00 a.m., local time, or such other date or such other time as may be fixed
by the Board; provided, however, that should said day fall upon a Saturday,
Sunday, or legal holiday observed by the corporation at its principal executive
office, then any such annual meeting of shareholders shall be held at the same
time and place on the next day thereafter ensuing which is a full business day.
At such meeting directors shall be elected and any other proper business may be
transacted.
Section 3. Special Meetings.
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Special meetings of the shareholders may be called at any time by
the Board, the Chairman of the Board, the President or by the holders of the
shares entitled to cast not less than ten percent (10%) of the votes at such
meeting. Upon request in writing to the Chairman of the
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Board, the President, any Vice President or the Secretary, by any person (other
than the Board) entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to the shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons calling
the meeting, not less than thirty-five (35) nor more than sixty (60) days after
the receipt of the request. If the notice is not given within twenty (20) days
after receipt of the request, the persons entitled to call the meeting may give
the notice.
Section 4. Notice of Annual or Special Meeting.
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Written notice of each annual or special meeting of shareholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each shareholder entitled to vote thereat. Such notice
shall state the place, date and hour of the meeting, and (i) in the case of a
special meeting, the general nature of the business to be transacted, and no
other business may be transacted; or (ii) in the case of the annual meeting,
those matters which the Board, at the time of the mailing of the notice, intends
to present for action by the shareholders, but, subject to the provisions of
applicable law, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the names of the nominees intended at the time of the notice to be
presented by management for election.
Notice of a shareholders meeting shall be given either personally
or by mail or by other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or, if no such address appears or is given, at the place where the
principal executive office of the corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located. Notice by mail shall be deemed to have
been given at the time a written notice is deposited in the United States mails,
postage prepaid. Any other written notice shall be deemed to have been given at
the time it is personally delivered to the recipient or is delivered to a common
carrier for transmission or actually transmitted by the person giving the notice
by electronic means to the recipient.
Section 5. Quorum.
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A majority of the shares entitled to vote, represented in person
or by proxy, shall constitute a quorum at any meeting of shareholders. 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 6. Adjournment Meeting and Notice Thereof.
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Any shareholders' meeting, whether or not a quorum is present,
may be adjourned from time to time by the vote of a majority of the shares, the
holders of which are either present in person or represented by proxy thereat,
but in the absence of a quorum (except as provided in section 5 of this Article)
no other business may be transacted at such meeting.
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It shall not be necessary to give any notice of the time and
place of the adjourned meeting or of the business to be transacted thereat other
than by announcement at the meeting at which such adjournment is taken;
provided, however, when any shareholders' meeting is adjourned for more than
forty-five (45) days or, if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the case
of an original meeting.
Section 7. Voting.
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The shareholders entitled to notice of any meeting or to vote at
any such meeting shall be only persons in whose name shares stand on the stock
records of the corporation on the record date determined in accordance with
Section 8 of this Article.
Voting shall in all cases be subject to the provisions of Chapter
7 of the California General Corporation Law and to the following provisions:
(a) Subject to clause (g), shares held by an administrator,
executor, guardian, conservator or custodian may be voted by such holder
either in person or by proxy, without a transfer of such shares into the
holder's name; and shares standing in the name of a trustee may be voted by
the trustee, either in person or by proxy, but no trustee shall be entitled
to vote shares held by such trustee without a transfer of such shares into
the trustee's name.
(b) Shares standing in the name of a receiver may be voted
by such receiver; and shares held by or under the control of a receiver may
be voted by such receiver without the transfer thereof into the receiver's
name if authority to do so is contained in the order of the court by which
such receiver was appointed.
(c) Subject to the provisions of Section 705 of the
California General Corporation Law, and except where otherwise agreed in
writing between the parties, a shareholder whose shares are pledged shall
be entitled to vote such shares until the shares have been transferred into
the name of the pledgee, and thereafter the pledgee shall be entitled to
vote the shares so transferred.
(d) Shares standing in the name of a minor may be voted and
the corporation may treat all rights incident thereto as exercisable by the
minor, in person or by proxy, whether or not the corporation has notice,
actual or constructive, of the nonage, unless a guardian of the minor's
property has been appointed and written notice of such appointment given to
the corporation.
(e) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxyholder as
the Bylaws of such other corporation may prescribe or, in the absence of
such provision, as the Board of Directors of such other corporation may
determine or, in the absence of such determination, by the Chairman of the
Board, President or any Vice President of such other corporation, or by any
other person authorized to do so by the Board, President or any Vice
President of such other corporation. Shares which are purported to be
executed in the name of a corporation (whether or not any title of the
person is indicated) shall be presumed to be
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voted or the proxy executed in accordance with the provisions of this
subdivision, unless the contrary is shown.
(f) Shares of the corporation owned by any subsidiary
shall not be entitled to vote on any matter.
(g) Shares held by the corporation in a fiduciary capacity
and shares of the corporation held in a fiduciary capacity by any
subsidiary shall not be entitled to vote on any matter, except to the
extent that the settlor or beneficial owner possesses and exercises a right
to vote or to give the corporation binding instructions as to how to vote
such shares.
(h) If shares stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, husband and wife as community property, tenants by the
entirety, voting trustees, persons entitled to vote under a shareholder
voting agreement or otherwise, or if two or more persons (including
proxyholders) have the same fiduciary relationship respecting the same
shares, unless the Secretary of the corporation is given written notice to
the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority so
voting binds all;
(iii) If more than one vote, but the vote is evenly split on
any particular matter, each faction may vote the securities in
question proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this section shall be a majority of even split in interest.
Subject to the following sentence and to the provisions of Section 708
of the California General Corporation Law, every shareholder entitled to vote at
any election of directors may cumulate such shareholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the shareholder's shares are
entitled, or distribute the shareholder's votes on the same principle among as
many candidates as the shareholder thinks fit. No shareholder shall be entitled
to cumulate votes for any candidate or candidates pursuant to the preceding
sentence unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice, at the
meeting prior to the voting of the shareholder's intention to cumulate the
shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination.
Elections need not be by ballot; provided however, that all elections
for directors must be by ballot upon demand made by a shareholder at the meeting
and before the voting begins.
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In any election of directors, the candidates receiving the
highest number of votes of the shares entitled to be voted for them up to the
number of directors to be elected by such shares are elected.
Section 8. Record Date.
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The Board may fix, in advance, a record date for the
determination of the shareholders entitled to notice of any meeting or to vote
or entitled to receive payment of any dividend or any other distribution or any
allotment of rights or to exercise rights in respect of any other lawful action.
The record date so fixed shall be not 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. When a record date is so fixed, only shareholders of record
on that date are entitled to notice of and to vote at the meeting or to receive
the dividend, distribution or allotment of rights or to exercise of the rights,
as the case may be, notwithstanding any transfer of shares on the books of the
corporation after the record date. 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 fixes a new record date for the
adjourned meeting. The Board shall fix a new record date if the meeting is
adjourned for more than forty-five (45) days.
If no record date is fixed by the Board, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held. The record date for determining shareholders for any purpose other than
set forth in this Section 8 or Section 10 of this Article shall be at the close
of business on the day on which the Board adopts the resolution relating thereto
or the sixtieth (60th) day prior to the date of such other action, whichever is
later.
Section 9. Consent to Shareholders' Meetings.
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The transactions of any meeting of shareholders, however called
and noticed, shall be valid as though had at a meeting duly held after regular
call and notice of a quorum be present either in person or by proxy and if,
either before or after the meeting, each of the shareholders entitled to vote,
not present in person or by proxy, signs a written waiver of notice, or a
consent to the holding of such meeting or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed with the corporation
records or made a part of the minutes of the meeting. Neither the business to be
transacted at nor the purpose of any regular or special meeting of shareholders
need be specified in any written waiver of notice, except as provided in Section
601(f) of the California General Corporation Law.
Section 10. Action Without Meeting.
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Subject to Section 603 of the California General Corporation Law,
any action which, under any provision of the California General Corporation Law,
may be taken at any annual or special meeting of shareholders, may be taken
without a meeting and without prior notice if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
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authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Unless a record date for voting purposes be
fixed as provided in Section 8 of this Article, the record date for determining
shareholders entitled to give consent pursuant to this Section 10, when no prior
action by the Board has been taken, shall be the day on which the first written
consent is given.
Section 11. Proxies.
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Every person entitled to vote shares has the right to do so
either in person or by one or more persons authorized by a written proxy
executed by such shareholder and filed with the Secretary. Any proxy duly
executed is not revoked and continues in full force and effect until revoked by
the person executing it prior to the vote pursuant thereto by a writing
delivered to the corporation, stating that the proxy is revoked or by a
subsequent proxy executed by, or by attendance at the meeting and voting in
person by, the person executing the proxy; provided, however, that no proxy
shall be valid after the expiration of eleven (11) months from the date of its
execution unless otherwise provided in the proxy.
Section 12. Inspectors of Election.
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In advance of any meeting of shareholders, the Board may appoint
any persons other than nominees for office as inspectors of election to act at
such meeting and any adjournment thereof. If inspectors of election be not so
appointed or if any persons so appointed fail to appear or refuse to act, the
chairman of any such meeting may, and on the request of any shareholder of
shareholder's proxy shall, make such appointment at the meeting. The number of
inspectors shall be either one or three. If appointed at a meeting on the
request of one or more shareholders or proxies, the majority of shares present
shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Section
707(b) of the California General Corporation Law and shall include determining
the number of shares outstanding and the voting power of each; the shares
represented at the meeting; the existence of a quorum; the authenticity,
validity and effect of proxies; receiving votes, ballots or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes or consents;
determining when the polls shall close; determining the result; and doing such
acts as may be proper to conduct the election or vote with fairness to all
shareholders. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all.
ARTICLE III.
DIRECTORS
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Section 1. Powers.
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Subject to the limitations of the Articles, of these Bylaws and
of the California General Corporation Law relating to action required to be
approved by the shareholders or by the outstanding shares, the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board. The Board may delegate the
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management of the day-to-day operation of the business of the corporation to a
management company or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board. Without prejudice to such general powers,
but subject to the same limitations, it is hereby expressly declared that the
Board shall have the following powers in addition to the other powers enumerated
in these Bylaws:
(a) To select and remove all the other officers, agents and
employees of the corporation; prescribe the powers and duties for them as
may not be inconsistent with law or with the Articles or these Bylaws; fix
their compensation; and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and
business of the corporation and to make such rules and regulations therefor
not inconsistent with law, or with the Articles or these Bylaws, as they
may deem best.
(c) To adopt, make, and use a corporate seal, and to
prescribe the forms of certificates of stock, and to alter the form of such
seal and of such certificates from time to time as in their judgment they
may deem best.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for such consideration
as may be lawful.
(e) To borrow money and incur indebtedness for the purpose
of the corporation, and to cause to be executed and delivered therefor, in
the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor.
Section 2. Number and Qualification of Directors.
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The authorized number of directors shall be two (2) until changed
by amendment of the Articles or by a Bylaw duly adopted by the shareholders.
Section 3. Election and Term of Office.
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The directors shall be elected at each annual meeting of
shareholders but if any such annual meeting is not held or the directors are not
elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose. Each director shall hold office until the
next annual meeting and until a successor has been elected and qualified.
Section 4. Vacancies.
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Any director may resign effective upon giving written notice to
the Chairman of the Board, the President, Secretary, or the Board, unless the
notice specifies a later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
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Vacancies in the Board, including those existing as a result of a
removal of a director, may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director, and each director so
elected shall hold office until the next annual meeting and until such
director's successor has been elected and qualified.
A vacancy or vacancies in the Board shall be deemed to exist in
case of the death, resignation or removal of any director or if the authorized
number of directors be increased or if the shareholders fail, at any annual or
special meeting of the shareholders at which any director or directors are
elected, to elect the full authorized number of directors to be voted for at
that meeting.
The Board 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.
The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors. Any such election by
written consent requires the consent of a majority of the outstanding shares
entitled to vote. If the Board accepts the resignation of a director tendered to
take effect at a future time, the Board or the shareholders shall have power to
elect a successor to take office when the resignation is to become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of the director's term
of office.
Section 5. Removal of Directors.
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The entire Board of Directors or any individual director may be
removed from office as provided by Section 303 of the California General
Corporation Law.
Section 6. Place of Meeting.
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Regular or special meetings of the Board shall be held at any
place within or without the State of California which has been designated from
time to time by the Board. In the absence of such designation regular meetings
shall be held at the principal executive office of the corporation.
Section 7. Regular Meetings.
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Immediately following each annual meeting of shareholders the
Board shall hold a regular meeting for the purpose of organization, election of
officers and the transaction of other business.
Section 8. Special Meetings.
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Special meetings of the Board for any purpose or purposes may be
called at any time by the Chairman of the Board, the President or the Secretary
or by any two directors.
Special meetings of the Board shall be held upon four (4) days
written notice or forty-eight (48) hours notice given personally or by
telephone, telegraph, telex or other similar
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means of communication. Any such notice shall be addressed or delivered to each
director at such director's address as it is shown upon the records of the
corporation or as may have been given to the corporation by the director for
purposes of notice or, if such address is not shown on such records or is not
readily ascertainable, at the place in which the meetings of the directors are
regularly held.
Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission or actually transmitted by the person giving the notice by
electronic means to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
Section 9. Quorum.
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A majority of the authorized number of directors constitutes a
quorum of the Board for the transaction of business except to adjourn as
hereinafter provided. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board unless a greater number be required by law or
by the Articles. A meeting at which a quorum is initially present may continue
to transact business notwithstanding the withdrawal of directors if any action
taken is approved by at least a majority of the required quorum for such
meeting.
Section 10. Participation in Meetings by Conference Telephone.
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Members of the Board may participate in a meeting through use of
conference telephone or similar communications equipment so long as all members
participating in such meeting can hear one another.
Section 11. Waiver of Notice.
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When all of the directors are present at any directors' meeting,
however called or noticed, and sign a written consent thereto on the records of
such meeting or if a majority of the directors are present and if those not
present sign in writing a waiver of notice of such meeting, whether prior to or
after the holding of such meeting, which said waiver shall be filed with the
Secretary of the corporation, the transactions thereof are as valid as if had at
a meeting regularly called and noticed.
Section 12. Adjournment.
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A majority of the directors present, whether or not a quorum is
present, may adjourn any directors' meeting to another time and place. Notice of
the time and place of holding an adjourned meeting need not be given to absent
directors if the time and place be fixed at the meeting adjourned. If the
meeting is adjourned for more than twenty-four (24) hours, notice of any
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
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Section 13. Fees and Compensation.
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Directors and members of committees may receive such
compensation, if any, for their services and such reimbursement for expenses, as
may be fixed or determined by the Board.
Section 14. Action Without Meeting.
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Any action required or permitted to be taken by the Board may be
taken without a meeting if all members of the Board shall individually or
collectively consent in writing to such action. Such consent or consents shall
have the same effect as a unanimous vote of the Board and shall be filed with
the minutes of the proceedings of the Board.
Section 15. Rights of Inspection.
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Every director shall have the absolute right at any reasonable
time to inspect and copy all books, records and documents of every kind and to
inspect the physical properties of the corporation and also of it subsidiary
corporations, domestic or foreign. Such inspection by a director may be made in
person or by agent or attorney and includes the right to copy and obtain
extracts.
Section 16. Committees.
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The Board may appoint one or more committees, each consisting of
two or more directors, and delegate to such committees any of the authority of
the Board except with respect to:
(a) The approval of any action for which the General
Corporation Law also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board or on any
committee;
(c) The fixing of compensation of the directors for serving
on the Board or on any committee;
(d) The amendment or repeal of Bylaws or the adoption of
new Bylaws;
(e) The amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation
except at a rate or in a periodic amount or within a price range determined
by the Board;
(g) The appointment of other committees of the Board or the
members thereof.
Any such committee must be appointed by resolution adopted by a
majority of the authorized number of directors and may be designated an
Executive Committee or by such other
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name as the Board shall specify. The Board shall have the power to prescribe the
manner in which proceedings of any such committee shall be conducted. In the
absence of any such prescription, such committee shall have the power to
prescribe the manner in which its proceedings shall be conducted. Unless the
Board or such committee shall otherwise provide, the regular and special
meetings and other actions of any such committee shall be governed by the
provisions of this Article applicable to meetings and actions of the Board.
Minutes shall be kept of each meeting of each committee.
Section 17. Liability.
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As provided in the Articles of Incorporation of the corporation,
a director of the corporation shall be subject to no personal liability in an
action brought by or in the right of the corporation for breach of a director's
duties to the corporation and its shareholders, as set forth in Section 309 of
the Corporations Code of the State of California; provided, however, that a
director's personal liability shall not be limited (i) for acts or omissions
that involve intentional misconduct or a knowing and culpable violation of law,
(ii) for acts or omissions that a director believes to be contrary to the best
interests of the corporation or its shareholders or that involve the absence of
good faith on the part of the director, (iii) for any transaction from which a
director derived an improper personal benefit, (iv) for acts or omissions that
show a reckless disregard for the director's duty to the corporation or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the corporation or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its shareholders, (vi)
under Section 310 of the Corporations Code of the State of California, (vii)
under Section 316 of the Corporations Code of the State of California, (viii)
for any act or omission occuring prior to the date when the Articles of
Incorporation of the Corporation containing said provision becomes effective, or
(ix) with respect to a director who is also an officer of this corporation, for
any act or omission as an officer, notwithstanding that his or her actions, if
negligent or improper, have been ratified by the other directors of the
corporation.
ARTICLE IV.
OFFICERS
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Section 1. Officers.
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The officers of the corporation shall be a president, a secretary
and a chief financial officer. The corporation may also have, at the discretion
of the Board, a chairman of the board, one or more vice presidents, one or more
assistant secretaries, one or more assistant chief financial officers and such
other officers as may be elected or appointed in accordance with the provisions
of Section 3 of this Article.
Section 2. Election.
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The officers of the corporation, except such officers as may be
elected or appointed in accordance with the provisions of Section 3 or Section 5
of this Article, shall be
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chosen annually by, and shall serve at the pleasure of, the Board and shall hold
their respective offices until their resignation, removal or other
disqualification from service or until their respective successors shall be
elected.
Section 3. Subordinate Officers.
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The Board may elect, and may empower the President to 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 may from time to time determine.
Section 4. Removal and Resignation.
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Any officer may be removed, either with or without cause, by the
Board of Directors at any time or, except in the case of an officer chosen by
the Board, by any officer upon whom such power of removal may be conferred by
the Board. Any such removal shall be without prejudice to the rights, if any, of
the officer under any contract of employment of the officer.
Any officer may resign at any time by giving written notice to
the corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make if effective.
Section 5. Vacancies.
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A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular election or appointment to such office.
Section 6. Chairman of the Board.
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The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the Board and exercise and perform
such other powers and duties as may from time to time be assigned by the Board.
Section 7. President.
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Subject to such powers, if any, as may be given by the Board to
the Chairman of the Board, if there be such an officer, the President is the
general manager and chief executive officer of the corporation and has, subject
to the control of the Board, general supervision, direction and control of the
business and officers of the corporation. The President shall preside at all
meetings of the shareholders and, in the absence of the Chairman of the Board,
or if there be none, at all meetings of the Board. The President has the general
powers and duties of management usually vested in the office of president and
general manager of a corporation and such other powers and duties as may be
prescribed by the Board.
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Section 8. Vice Presidents.
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In the absence or disability of the President, the Vice
Presidents in order of their rank as fixed by the Board or, if not ranked, the
Vice President designated by the Board, 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.
Section 9. Secretary.
---------
The Secretary shall keep or cause to be kept, at the principal
executive office and such other place as the Board may order, a book of minutes
of all meetings of shareholders, the Board and its committees, with the time and
place of holding, whether regular or special, and, if special, how authorized,
the notice thereof given, the names of those present at Board and committee
meeting, and number of shares present or represented at shareholders' meetings
and the proceedings thereof. The Secretary shall keep, or cause to be kept, a
copy of the Bylaws of the corporation at the principal executive office or
business office in accordance with Section 213 of the California General
Corporation Law.
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, if one be appointed, a share register or a duplicate share register,
showing the names of the shareholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board and of any committees thereof
required by these Bylaws or by law to be given, 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.
Section 10. Chief Financial Officer.
-----------------------
The chief financial officer of the corporation shall keep and
maintain, or cause to be kept and maintained, adequate and correct accounts of
the properties and business transactions of the corporation and shall send or
cause to be sent to the shareholders of the corporation such financial
statements and reports as are by law of these Bylaws required to be sent to
them. The books of account shall at all times be open to inspection by any
director.
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. The chief financial officer
shall disburse the funds of the corporation as may be ordered by the Board,
shall render to the President and directors, whenever they request it, an
account of all 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.
14
ARTICLE V.
OTHER PROVISIONS
----------------
Section 1. Inspection of Corporate Records.
-------------------------------
(a) A shareholder or shareholders holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation or who hold at least one percent (1%) of such voting shares and
have filed a Schedule 14B with the United States Securities and Exchange
Commission relating to the election of directors of the corporation 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, if any, for the
corporation, upon five (5) business days' prior 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 shareholders' names and addresses 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.
(b) The record of shareholders shall also be open to
inspection and copying by any shareholder or holder of a voting trust
certificate at any time during usual business hours upon written demand on
the corporation, for a purpose reasonably related to such holder's interest
as a shareholder or holder of a voting trust certificate.
(c) The accounting books and records and minutes of
proceedings of the shareholders and the Board and committees of the Board
shall be open to inspection upon written demand on the corporation of any
shareholder or holder of a voting trust certificate at any reasonable time
during usual business hours, for a purpose reasonably related to such
holder's interests as a shareholder or as a holder of such voting trust
certificate.
(d) Any inspection and copying under this Article may be
made in person or by agent or attorney.
Section 2. Inspection of Bylaws.
--------------------
The corporation shall keep in its principal executive office the
original or a copy of these Bylaws as amended to date which shall be open to
inspection by shareholders at all reasonable times during office hours. If the
principal executive office of the corporation is outside the State of California
and the corporation has no principal business office in such state, it shall
upon the written notice of any shareholder furnish to such a shareholder a copy
of these Bylaws as amended to date.
15
Section 3. Endorsement of Documents; Contracts.
-----------------------------------
Subject to the provisions of applicable law, any note, mortgage,
evidence of indebtedness, contract, share certificate, conveyance or other
instrument in writing and any assignment or endorsements thereof executed or
entered into between this corporation and any other person, when signed by the
Chairman of the Board, the President or any Vice President, and the Secretary,
any Assistant Secretary, the Chief Financial Officer or any Assistant Financial
Officer of this corporation shall be valid and binding on this corporation in
the absence of actual knowledge on the part of the other person that the signing
officers had no authority to execute the same. Any such instruments may be
signed by any other person or persons and in such manner as from time to time
shall be determined by the Board, and unless so authorized by the Board, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or amount.
Section 4. Certificates of Stock.
---------------------
Every holder of shares of the corporation shall be entitled to
have a certificate signed in the name of the corporation by the Chairman of the
Board, the President or a Vice President and by the Chief Financial Officer or
an Assistant Financial Officer of the Secretary or an Assistant Secretary,
certifying the number of shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may be facsimile.
If any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such an
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
Certificates for shares may be issued prior to full payment under
such restrictions and for such purposes as the Board may provide; provided,
however, that on any certificate issued to represent any partly paid shares, the
total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated.
Except as provided in this Section, no new certificate for shares
shall be issued in lieu of an old one unless the latter is surrendered and
cancelled at the same time. The Board may, however, in case any certificate for
shares is alleged to have been lost, stolen or destroyed, authorize the issuance
of a new certificate in lieu thereof, and the corporation may require that the
corporation be given a bond or other adequate security sufficient to indemnify
it against any claim that may be made against it (including expense or
liability) on account of the alleged loss, theft or destruction of such
certificate or the issuance of such new certificate.
Section 5. Representation of Shares of Other Corporations.
----------------------------------------------
The President or any other officer or officers authorized by the
Board or the President are each authorized to vote, represent and exercise on
behalf of the corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in
16
person or by any other person authorized so to do by proxy or power of attorney
duly executed by said officer.
Section 6. Stock Purchase Plans.
--------------------
The corporation may adopt and carry out a stock purchase plan or
agreement or stock option plan or agreement providing for the issue and sale for
such consideration as may be fixed of its unissued shares, or of issued shares
acquired or to be acquired, to one or more of the employees or directors of the
corporation or of a subsidiary or to a trustee on their behalf and for the
payment for such shares in installments or at one time and may provide for
aiding any such persons in paying for such shares by compensation for services
rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment and option or obligation
on the part of the corporation to repurchase the shares, the time limits of and
termination of the plan and any other matters not in violation of applicable
law, as may be included in the plan as approved or authorized by the Board or
any committee of the Board.
Section 7. Annual Report to Shareholders.
-----------------------------
The annual report to shareholders referred to in Section 1501 of
the California General Corporation Law is expressly waived, but nothing herein
shall be interpreted as prohibiting the Board from issuing annual or other
periodic reports to shareholders.
Section 8. Construction and Definitions.
----------------------------
Unless the context otherwise requires, the general provisions,
rules of construction and definitions contained in the General Provisions of the
California Corporations Code and in the California General Corporation Law shall
govern the construction of these Bylaws.
ARTICLE VI.
INDEMNIFICATION
---------------
Section 1. Definitions.
-----------
For the purposes of this Article, "agent" includes any person who
is or was a director, officer, employee or other agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, or was a director, officer, employee or
agent of a foreign or domestic corporation which was a predecessor corporation
of the corporation of another enterprise at the request of such predecessor
corporation; "proceeding" includes any threatened, pending or completed action
or proceeding, whether civil,
17
criminal, administrative or investigative; and "expenses" includes attorneys'
fees and any expenses of establishing a right to indemnification under Section 4
of Section 5(c).
Section 2. Indemnification in Actions by Third Parties.
-------------------------------------------
The corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any proceeding (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
Section 3. Indemnification in Actions by or in the Right of the Corporation.
----------------------------------------------------------------
The corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith, in a manner such person believed to be in the best interests of the
corporation, and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
(a) In respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the corporation, unless and only to
the extent that the court in which such action was brought shall determine
upon application that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for the expenses
which such court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or
pending action which is settled or otherwise disposed of without court
approval.
Section 4. Indemnification Against Expenses.
--------------------------------
To the extent that an agent of the corporation has been
successful on the merits in defense of any proceeding referred to in Sections 2
or 3 or in defense of any claim, issue or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
18
Section 5. Required Determination.
----------------------
Except as provided in Section 4, any indemnification under this
Article shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper is in the
circumstances because the agent has met the applicable standard of conduct set
forth in Sections 2 or 3 by:
(a) A majority vote of a quorum consisting of directors who
are not parties to such proceeding;
(b) Approval of the shareholders, with the shares owned by
the person to be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending
upon application made by the corporation or the agent or the attorney or
other person rendering services in connection with the defense, whether or
not such application by the agent, attorney or other person is opposed by
the corporation.
Section 6. Advance of Expenses.
-------------------
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 agent to repay such amount unless it
shall be determined ultimately that the agent is entitled to be indemnified as
authorized in this Article.
Section 7. Other Indemnification.
---------------------
No provision made by the corporation to indemnify its or its
subsidiary's directors or officers for the defense of any proceeding, whether
contained in the Articles, Bylaws, a resolution of shareholders or directors, an
agreement, or otherwise, shall be valid unless consistent with this Article.
Nothing contained in this Article shall affect any right to indemnification to
which persons other than such directors and officers may be entitled by contract
or otherwise.
Section 8. Forms of Indemnification Not Permitted.
--------------------------------------
No indemnification or advance shall be made under this Article,
except as provided in Section 4 or Section 5(c) in any circumstance where it
appears:
(a) That it would be inconsistent with a provision of the
Articles, 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 alleged 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.
19
Section 9. Insurance.
---------
The corporation shall have power to purchase and maintain
insurance on behalf of any agent or the corporation against any liability
asserted against or incurred by the agent in such capacity or arising out of the
agent's status as such whether or not the corporation would have the power to
indemnify the agent against such liability under the provisions of this Article.
Section 10. Nonapplicability to Fiduciaries of Employee Benefit Plans.
---------------------------------------------------------
This Article does not apply to any proceeding against any
trustee, investment manager or other fiduciary of an employee benefit plan in
such person's capacity as such even though such person may also be an agent of
the corporation as defined in Section 1. Nothing contained in this Article shall
limit any right to indemnification to which such a trustee, investment manager
or other fiduciary may be entitled by contract or otherwise which shall be
enforceable to the extent permitted by applicable law other than Section 317 of
the California General Corporation Law.
ARTICLE VII.
AMENDMENTS
----------
These Bylaws may be amended or repealed either by approval of the
outstanding shares or by the approval of the Board; provided, however, that
after the issuance of shares, a Bylaw specifying or changing a fixed number of
directors or the maximum or minimum number or changing from a fixed to a
variable Board or vice versa may only be adopted by approval of the outstanding
shares.