Exhibit 3.3(b)
AMENDED AND RESTATED BYLAWS
OF
BONUTTO-HOFER INVESTMENTS
INDEX
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ARTICLE I OFFICES ......................................................... 1
Section 1. PRINCIPAL OFFICES ........................................... 1
Section 2. OTHER OFFICES ............................................... 1
ARTICLE II MEETINGS OF SHAREHOLDERS ....................................... 1
Section 1. PLACE OF MEETINGS ........................................... 1
Section 2. ANNUAL MEETING .............................................. 1
Section 3. SPECIAL MEETINGS ............................................ 1
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS ............................ 2
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE ................ 2
Section 6. QUORUM ...................................................... 3
Section 7. ADJOURNED MEETING; NOTICE ................................... 3
Section 8. VOTING ...................................................... 3
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS .......... 4
Section 10. SHAREHOLDERS ACTION BY WRITTEN CONSENT WITHOUT A
MEETING ................................................... 4
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND
GIVING CONSENTS ........................................... 5
Section 12. PROXIES ..................................................... 5
Section 13. INSPECTORS OF ELECTION ...................................... 6
ARTICLE III DIRECTORS ..................................................... 6
Section 1. POWERS ...................................................... 6
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS ....................... 6
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS .................... 7
Section 4. VACANCIES ................................................... 7
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Section 5. PLACE OF MEETINGS ........................................... 7
Section 6. MEETINGS BY TELEPHONE ....................................... 7
Section 7. ANNUAL MEETINGS ............................................. 8
Section 8. SPECIAL MEETINGS ............................................ 8
Section 9. QUORUM ...................................................... 8
Section 10. WAIVER OF NOTICE ............................................ 8
Section 11. ADJOURNMENT ................................................. 9
Section 12. NOTICE OF ADJOURNMENT ....................................... 9
Section 13. ACTION WITHOUT MEETING ...................................... 9
Section 14. FEES AND COMPENSATION OF DIRECTORS .......................... 9
ARTICLE IV COMMITTEES .................................................... 9
Section 1. COMMITTEES OF DIRECTORS ..................................... 9
Section 2. MEETINGS AND ACTION OF COMMITTEES ........................... 10
ARTICLE V OFFICERS ....................................................... 10
Section 1. OFFICERS .................................................... 10
Section 2. ELECTION OF OFFICERS ........................................ 10
Section 3. SUBORDINATE OFFICERS ........................................ 10
Section 4. REMOVAL AND RESIGNATION OF OFFICERS ......................... 11
Section 5. VACANCIES IN OFFICES ........................................ 11
Section 6. CHAIRMAN OF THE BOARD ....................................... 11
Section 7. PRESIDENT ................................................... 11
Section 8. VICE PRESIDENTS ............................................. 11
Section 9. SECRETARY ................................................... 11
Section 10. CHIEF FINANCIAL OFFICER ..................................... 12
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ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
OTHER AGENTS ................................................ 12
Section 1. INDEMNIFICATION ............................................. 12
Section 2. INSURANCE ................................................... 12
ARTICLE VII RECORDS AND REPORTS .......................................... 13
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER ................ 13
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS ........................ 13
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS ....... 13
Section 4. INSPECTION BY DIRECTORS ..................................... 14
Section 5. ANNUAL REPORT TO SHAREHOLDERS ............................... 14
Section 6. FINANCIAL STATEMENTS ........................................ 14
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION ..................... 14
ARTICLE VIII GENERAL CORPORATE MATTERS ................................... 15
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ....... 15
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS ................... 15
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED ........... 15
Section 4. CERTIFICATES FOR SHARES ..................................... 15
Section 5. LOST CERTIFICATES ........................................... 16
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS .............. 16
Section 7. CONSTRUCTION AND DEFINITIONS ................................ 16
ARTICLE IX AMENDMENTS .................................................... 16
Section 1. AMENDMENT BY SHAREHOLDERS ................................... 16
Section 2. AMENDMENT BY DIRECTORS ...................................... 17
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AMENDED AND RESTATED BYLAWS
OF
BONUTTO-HOFER INVESTMENTS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES. The Board of Directors of Bonutto-Hofer
Investments (the "Corporation") shall fix the location of the principal
executive office of the Corporation any place within or outside the State of
California. If the principal executive office is located outside this State, and
the Corporation has one or more business offices in this State, the Board of
Directors shall fix and designate a principal business office in the State of
California.
Section 2. OTHER OFFICES. The Board of Directors may at any time establish
branch or subordinate offices at any place or places where the Corporation is
qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held either
at the principal executive office of the Corporation or at any other place
within or outside the State of California which may be designated either by the
Board of Directors or by the written consent of all persons entitled to vote
there at, given either before or after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETING. The annual meeting of shareholders shall be held
on the second Tuesday of March of each year, beginning in 1994, at 10:00 a.m.,
or such other date or such other time as may be designated by the Board of
Directors; provided, however, that should said day fall on a legal holiday, then
the annual meeting of shareholders shall be held at the same time on the next
succeeding business day. At each annual meeting directors shall be elected, and
any other proper business may be transacted.
Section 3. SPECIAL MEETINGS. A special meeting of the shareholders may be
called at any time by the Board of Directors, or by the Chairman of the Board,
or by the President, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at that
meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board,
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the President, any Vice President, or the Secretary of the Corporation. The
officer receiving the request shall cause notice to be promptly given to the
shareholders entitled to vote, in accordance with the provisions of Sections 4
and 5 of this Article II, that a meeting will be held at the 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 person or
persons requesting the meeting may give the notice. Nothing contained in this
paragraph of this Section 3 shall be construed as limiting, fixing or affecting
the time when a meeting of shareholders called by action of the Board of
Directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meeting of
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall specify 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, or (ii) in the case of the annual meeting, those
matters which the Board of Directors, at the time of giving the notice, intends
to present for action by the shareholders, but, subject to the provisions of
applicable law, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the name of any nominee or nominees whom, at the time of the notice,
management intends to present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the California General Corporation Law,
(ii) an amendment of the Articles of Incorporation, pursuant to Section 902 of
that Law, (iii) a reorganization of the Corporation, pursuant to Section 1201 of
that Law, (iv) a voluntary dissolution of the Corporation, pursuant to Section
1900 of that Law, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of
that Law, the notice shall also state the general nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
meeting of shareholders shall be given either personally or by first class mail
or telegraphic or other written communication, charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the books of the
Corporation or given by the shareholder to the Corporation for the purpose of
notice. If no such address appears on the Corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by first
class mail or telegraphic or other written communication to the Corporation's
principal executive office, or if published at least once in a newspaper of
general circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally to the recipient
or deposited in the mail or sent by telegram or other means of written
communication.
If any notice addressed to a shareholder at the address of that shareholder
appearing on the books of the Corporation is returned to the Corporation by the
United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the shareholder at that address, all
future notices or reports shall be deemed to have
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been duly given without further mailing if these shall be available to the
shareholder on written demand of the shareholder at the principal executive
office of the Corporation for a period of one year from the date of the giving
of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by any officer or any transfer agent of
the Corporation giving the notice, and shall be filed and maintained in the
minute book of the Corporation.
Section 6. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote 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 7. ADJOURNED MEETING; NOTICE. Any shareholders' meeting, whether or
not a quorum is present, may be adjourned from time to time by the vote of the
majority of the shares represented at that meeting, either in person or by
proxy, but in the absence of a quorum, no other business may be transacted at
that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the Board of Directors shall set a new record
date. Notice of any such adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section 11
of this Article II, subject to the provisions of Sections 702 to 704, inclusive,
of the California General Corporation Law (relating to voting shares held by a
fiduciary, in the name of a Corporation, or in joint ownership). The
shareholders' vote may be by voice vote or by ballot; provided, however, that
any election for directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than elections of directors,
any shareholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, but, if the
shareholder fails to specify the number of shares which the shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares that the shareholder is entitled to
vote. If a quorum is present, the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote on any matter (other than the
election of Directors) shall be the act of the shareholders, unless the vote of
a greater number or voting by classes is required by the California General
Corporation Law or by the Articles of Incorporation.
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At a shareholders' meeting at which Directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the number of the shareholder's
shares) unless the candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice prior to
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination 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 that shareholder's shares are entitled, or distribute the
shareholder's votes on the same principle among any or all of the candidates, as
the shareholder thinks fit. The candidates receiving the highest number of
votes, up to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
transactions of any meeting of shareholders, however called and noticed, and
wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy,
and if, either before or after the meeting, each person entitled to vote, who
was not present in person or by proxy, signs a written waiver of notice or a
consent to holding of the meeting, or an approval of the minutes thereof. The
waiver of notice or consent need not specify either the business to be
transacted or the purpose of any annual or special meeting of shareholders,
except that if action is taken or proposed to be taken for approval of any of
those matters specified in the second paragraph of Section 4 of this Article II,
the waiver of notice or consent shall state the general nature of the proposal.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if that objection is expressly made at the meeting.
Section 10. SHAREHOLDERS ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action which may be taken at any annual or special meeting of shareholders may
be taken without a meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote on that action were present and voted. In the case of election of
Directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of Directors; provided,
however, that a Director may be elected at any time to fill a vacancy on the
Board of Directors that has not been filled by the Directors, by written consent
of the holders of a majority of the outstanding shares entitled to vote for the
election of Directors. All such consents shall be filed with the Secretary of
the Corporation and shall be maintained in the corporate records. Any
shareholder giving a written consent, or the shareholder's proxy holders, or a
transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received by
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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.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 5 of this Article
II. In the case of approval of (i) contracts or transactions in which a Director
has a direct or indirect financial interest, pursuant to Section 310 of the
California General Corporation Law, (ii) indemnification of agents of the
Corporation, pursuant to Section 317 of that Law, (iii) a reorganization of the
Corporation, pursuant to Section 1201 of that Law, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of that Law, the notice shall be given at least
ten (10) days before the consummation of any action authorized by that approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING
CONSENTS. For purposes of determining the shareholders entitled to notice of any
meeting or to vote or entitled to give consent to corporate action without a
meeting, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only shareholders of record on the date so fixed are
entitled to notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation after
the record date, except as otherwise provided in the California General
Corporation Law.
If the Board of Directors does not so fix a record date:
(a) 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.
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the Board has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the Board has been
taken, shall be at the close of business on the day on which the Board
adopts the resolution relating to that action, or the sixtieth (60th) day
before the date of such other action, whichever is later.
Section 12. PROXIES. Every person entitled to vote shares has 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. A validly executed proxy
which does not state that it is irrevocable shall continue in full force and
effect unless (i) revoked by the person executing it, before the vote pursuant
to that proxy, by a writing delivered to the
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Corporation stating that the proxy is revoked, or by a subsequent proxy executed
by, or attendance at the meeting and voting in person by, the person executing
the proxy; or (ii) written notice of the death or incapacity of the maker of
that proxy is received by the Corporation before the vote pursuant to that proxy
is counted; provided, however, that no proxy shall be valid after the expiration
of eleven (11) months from the date of the proxy, unless otherwise provided in
the proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of
the California General Corporation Law.
Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders, the
Board of Directors may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or any adjournment thereof. If no
inspectors of election are so appointed, the Chairman of the meeting may, and on
the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one (1) or three (3). If inspectors are appointed at a meeting on the request of
one or more shareholders or proxies, the holders of a majority of shares or
their proxies present at the meeting shall determine whether one (1) or three
(3) inspectors are to be appointed. If any person appointed as inspector fails
to appear or fails or refuses to act, the Chairman of the meeting may, and upon
the request of any shareholder or a shareholder's proxy shall, appoint a person
to fill that vacancy.
The duties of the 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 any other acts that may be proper
to conduct the election or vote with fairness to all shareholders.
If there are three (3) 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
Section 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 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 of Directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of
directors shall be five (5) until changed by a duly adopted amendment to this
Bylaw adopted by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that an amendment
reducing the fixed number or the minimum
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number of directors to a number less than five (5) cannot be adopted if the
votes cast against its adoption at a meeting, or the shares not consenting in
the case of an action by written consent, are equal to more than sixteen and
two-thirds percent (16 2/3%) of the outstanding shares entitled to vote thereon.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be
elected at each annual meeting of shareholders to hold office until the next
annual meeting. Each Director, including a Director elected to fill a vacancy,
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified.
Section 4. VACANCIES. Vacancies in the Board of Directors may be filled by
a majority of the remaining Directors, though less than a quorum, or by a sole
remaining Director, except that a vacancy created by the removal of a Director
by the vote or written consent of the shareholders or by court order may be
filled only by the vote of a majority of the shares entitled to vote represented
at a duly held meeting at which a quorum is present, or by the written consent
of holders of a majority of the outstanding shares entitled to vote. Each
Director so elected shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to exist
in the event of the death, resignation, or removal of any Director, or if the
Board of Directors by resolution declares vacant the office of a Director who
has been declared of unsound mind by an order of court or convicted of a felony,
or if the authorized number of Directors is increased, or if the shareholders
fail, at any meeting of shareholders at which any Director or Directors are
elected, to elect the number of Directors to be voted for at that meeting.
The shareholders may elect a Director or Directors at any time
to fill any vacancy or vacancies not filled by the Directors, but any such
election by written consent shall require the consent of a majority of the
outstanding 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 time for such resignation to become effective. If
the resignation of a Director is effective at a future time, the Board of
Directors may elect a successor to take office when the resignation becomes
effective.
No reduction of the authorized number of Directors shall have the effect of
removing any Director before that Director's term of office expires.
Section 5. PLACE OF MEETINGS. Regular or special meetings of the Board of
Directors shall be held at any place within or without the State of California
which has been designated from time to time by resolution of the Board. In the
absence of such a designation, regular or special meetings shall be held at the
principal executive office of the Corporation.
Section 6. MEETINGS BY TELEPHONE. Any meeting, regular or special, may be
held by conference telephone or similar communication equipment, so long as all
Directors
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participating in the meeting can hear one another, and all such Directors shall
be deemed to be present in person at the meeting.
Section 7. ANNUAL MEETINGS. Immediately following each annual meeting of
shareholders, the Board of Directors shall hold an annual meeting for the
purpose of organization, any desired election of officers, and the transaction
of other business. Other regular meetings of the Board of Directors may be held
at such time as shall from time to time be fixed by the Board of Directors. Call
and notice of all regular meetings shall not be required.
Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors for
any purpose or purposes may be called at any time by the Chairman of the Board
or the President or any Vice President or the Secretary or any two Directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone, telegram, telex, or other similar means of
communication to each Director or sent by first class mail, addressed to each
director at the Director's address as it is shown on the records of the
Corporation. In case the notice is mailed, it shall be deposited in the United
States mail at least four (4) days before the time of the holding of the
meeting. In case the notice is delivered personally, or by telephone, telegram,
telex, or other similar means of communication, it shall be given at least
forty-eight (48) hours before the time of the holding of the meeting. Notice by
mail shall be deemed to have been given at the time written notice is deposited
in the United States mail, 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 notice by electronic means, to the recipient.
Any oral notice given personally or by telephone may be communicated either to
the Director or to a person at the office of the Director who the person giving
the notice has reason to believe will promptly communicate it to the Director.
The notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the Corporation.
Section 9. QUORUM. A majority of the authorized number of Directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article III. 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 of Directors, subject to
the provisions of Section 310 of the California General Corporation Law (as to
approval of contracts or transactions in which a Director has a direct or
indirect material financial interest), Section 311 of that Law (as to
appointment of committees), and Section 317(e) of that Law (as to
indemnification of Directors). 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 of
the meeting.
Section 10. WAIVER OF NOTICE. The transactions of any meeting of the Board
of Directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice, a consent to holding the meeting, or
an approval of the minutes thereof. The waiver of notice or consent need
9
not specify the purpose of the meeting. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Notice of a meeting shall also be deemed given to any Director who
attends the meeting without protesting, before or at its commencement, the lack
of notice to that Director.
Section 11. ADJOURNMENT. A majority of the Directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of holding
an adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four (24) hours, in which case notice of the time and place shall be
given before the time of the adjourned meeting, in the manner specified in
Section 8 of this Article III, to the Directors who were not present at the time
of adjournment.
Section 13. ACTION WITHOUT MEETING. 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 shall individually or collectively consent in writing to that
action. Such action by written consent shall have the same force and effect as a
unanimous vote of the Board of Directors. Such written consent or consents shall
be filed with the minutes of the proceedings of the Board.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursements of expenses, as may be fixed or determined by resolution of the
Board of Directors. This Section 14 shall not be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee or otherwise, or from receiving compensation for those services.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution adopted by a majority of the authorized number of Directors,
designate one or more committees, each consisting of two (2) or more Directors,
to serve at the pleasure of the Board. The Board may designate one (1) or more
Directors as alternate members of the committee, who may replace any absent
member at any meeting of the committee. Any committee, to the extent provided in
the resolution of the Board, shall have all the authority of the Board, except
with respect to:
(a) The approval of any action which, under the California General
Corporation Law, also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the Board of Directors or in any
committee;
(c) The fixing of compensation of the directors for serving on the
Board or on any committee;
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(d) The amendment or repeal of Bylaws or the adoption of new Bylaws;
(e) The amendment or repeal of any resolution of the Board of
Directors 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 of Directors; or
(g) The appointment of any other committees of the Board of Directors
or the members of these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article II of these Bylaws, Sections 1 (place of meetings), 2
(regular meetings), 3 (special meetings), 4 (notice), 6 (quorum), 7 (notice of
adjournment), 9 (waiver of notice), 10 (action without meeting) and 11
(adjournment), 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 the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee; special meetings of committees may also be called by resolution
of the Board of Directors; and notice of special meetings of committees shall
also be given to all alternate members, who shall have the right to attend all
meetings of the committee. The Board of Directors may adopt rules for the
government of any committee which rules are not to be inconsistent with the
provisions of these Bylaws.
ARTICLE V
OFFICERS
Section 1. OFFICERS. 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 of Directors, a Chairman of the Board, one or more
Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Financial Officers, and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article V. Any number of offices may be
held by the same person.
Section 2. ELECTION OF OFFICERS. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section 3
or Section 5 of this Article V, shall be chosen by the Board of Directors, and
each shall serve at the pleasure of the Board, subject to the rights, if any, of
an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may appoint, 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 the Bylaws or as the
Board of Directors may from time to time determine.
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Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board of Directors, at any regular or
special meeting of the Board, or, except in case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the officer is a
party.
Section 5. VACANCIES IN OFFICES. 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 appointments to that office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by the
Bylaws. If there is no President, the Chairman of the Board shall in addition be
the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, the President shall be the Chief Executive Officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and the officers of
the Corporation. He 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 of Directors. He shall have the general powers and duties as from
time to time may be prescribed by the Board of Directors or the Bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of the President,
the Vice Presidents, if any, in order of their rank as fixed by the Board of
Directors, or, if not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the Bylaws and the President, or the Chairman of the
Board.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, at the
principal executive office or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of Directors, committees
of Directors, and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at Directors' meetings or committee meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings.
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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, as
determined by resolution of the Board of Directors, a share register, or a
duplicate share register, showing the names of all 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 of Directors required by the Bylaws or by law
to be given, and he shall keep the seal of the Corporation, if one be adopted,
in safe custody, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or by the Bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep
and maintain, or cause to be kept and maintained, 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 deposit all monies and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
President and Directors, whenever they request it, an account of all of his
transactions as Chief Financial Officer and of the financial condition of the
Corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. INDEMNIFICATION. This Corporation shall have the power to
indemnify and hold harmless each "agent" of the Corporation, as the term "agent"
is defined in Section 317(a) of the California General Corporation Law, from and
against any expenses, judgments, fines, settlements, and other amounts actually
and reasonably incurred in connection with any "proceeding" (as defined in said
Section 317(a)) to the fullest extent permitted by applicable law. The
Corporation may advance to its agents expenses incurred in defending any
proceeding prior to the final disposition thereof to the fullest extent and in
the manner permitted by applicable law.
Section 2. INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any agent of 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.
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ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The Corporation
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, if either be appointed and as determined by resolution of
the Board of Directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each
shareholder.
A shareholder or shareholders of the Corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
Corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days prior
written demand on the Corporation, and (ii) obtain from the transfer agent of
the Corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, 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 that list has been compiled or as of
a date specified by the shareholder after the date of demand. This list shall be
made available to any such shareholder by the transfer agent on or before the
later of five (5) days after the demand is received or the date specified in the
demand as the date as of which the list is to be compiled. The record of
shareholders shall also be open to inspection on the written demand of any
shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. Any inspection and
copying under this Section 1 may be made in person or by an agent or attorney of
the shareholder or holder of a voting trust certificate making the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The Corporation shall keep
at its principal executive office, or if its principal executive office is not
in the State of 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 the State of
California and the Corporation has no principal business office in this state,
the Secretary shall, upon the written request of any shareholder, furnish to
that shareholder a copy of the Bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The
accounting books and records and minutes of proceedings of the shareholders and
the Board of Directors and any committee or committees of the Board of Directors
shall be kept at such place or places designated by the Board of Directors, or,
in the absence of such designation, at the principal executive office of the
Corporation. The minutes shall be kept either in written form or in any other
form capable of being converted into written form. The minutes and accounting
books and records shall be open to inspection upon the written demand of any
shareholder or holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to the holder's
interests as a shareholder or as the holder of a voting trust certificate. The
inspection may be made in person or by an agent or attorney, and
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shall include the right to copy and make extracts. These rights of inspection
shall extend to the records of each subsidiary Corporation of the Corporation.
Section 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 by a Director may be made in person or
by an agent or attorney, and the right of inspection includes the right to copy
and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders
referred to in Section 1501 of the California General Corporation Law is
expressly dispensed with, but nothing herein shall be interpreted as prohibiting
the Board of Directors from issuing annual or other periodic reports to the
shareholders of the Corporation as they consider appropriate.
Section 6. FINANCIAL STATEMENTS. A copy of any annual financial statement
and any income statement of the Corporation for each quarterly period of each
fiscal year, and any accompanying balance sheet of the Corporation as of the end
of each such period, that has been prepared by the Corporation shall be kept on
file in the principal executive office of the Corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any such statement, or a copy shall be
mailed to any such shareholder.
If a shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the Corporation makes a written
request to the Corporation for an income statement of the Corporation for the
three-month, six-month or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and a balance
sheet of the Corporation as of the end of that period, the Chief Financial
Officer shall cause that statement to be prepared, if not already prepared, and
shall deliver personally or mail that statement or statements to the person
making the request within thirty (30) days after the receipt of the request. If
the Corporation has not sent to the shareholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to the
shareholder or shareholders within thirty (30) days after the request.
The Corporation shall also, on the written request of any shareholder, mail
to the shareholder a copy of the last annual, semi-annual, or quarterly income
statement which it has prepared, and a balance sheet as of the end of that
period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the Corporation or the certificate of an authorized
officer of the Corporation that the financial statements were prepared without
audit from the books and records of the Corporation.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. The Corporation shall,
during the applicable filing period, as defined in Section 1502(c) of the
California General Corporation Law, file with the Secretary of State of the
State of California, on
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the prescribed form, a statement setting forth the authorized number of
Directors, the names and complete business or residence addresses of all
incumbent Directors, the names and complete business or residence addresses of
the Chief Executive Officer, Secretary, and Chief Financial Officer, the street
address of its principal executive office or principal business office in this
state, and the general type of business constituting the principal business
activity of the Corporation, together with a designation of the agent of the
Corporation for the purpose of service of process, all in compliance with
Section 1502 of the California General Corporation Law.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For
purposes of determining the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
before any such action, and in that case only shareholders of record on the date
so fixed are entitled to receive the dividend, distribution, or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the record date so
fixed, except as otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts,
or other orders for payment of money, notes, or other evidences of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board of Directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the Corporation, and this authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the Board of Directors or within the agency power of an officer, 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 for any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for
shares of the capital stock of the Corporation shall be issued to each
shareholder when any of these
16
shares are fully paid, and the Board of Directors may authorize the issuance of
certificates or shares as partly paid, provided that these certificates shall
state the amount of the consideration to be paid for them and the amount paid.
All certificates shall be signed in the name of the Corporation by the Chairman
of the Board or Vice Chairman of the Board or the President or Vice President
and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or
any 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. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on a certificate
shall have ceased to be that officer, transfer agent or registrar before that
certificate is issued, it may be issued by the Corporation with the same effect
as if that person were an officer, transfer agent, or registrar at the date of
issue.
Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no new
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the Corporation and canceled at the same time. The
Board of Directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board may require,
including provision for indemnification of the Corporation secured by a bond or
other adequate security sufficient to protect the Corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of
the Board, the President, or any Vice President, or any other person authorized
by resolution of the Board of Directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the Corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the Corporation. The authority granted to these officers to vote or
represent on behalf of the Corporation any and all shares held by the
Corporation in any other corporation or corporations may be exercised by any of
these officers in person or by any person authorized to do so by a proxy duty
executed by these officers.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
California General Corporation Law shall govern the construction of these
Bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the Articles of Incorporation of the Corporation set forth the number of
authorized Directors of the Corporation,
17
the authorized number of Directors may be changed only by an amendment of the
Articles of Incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 1 of this Article IX and Section 2 of
Article III, new Bylaws may be adopted, and these Bylaws may be amended or
repealed, by the Board of Directors.
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CERTIFICATE OF SECRETARY
I HEREBY CERTIFY that I am the duly elected, qualified and acting Secretary
of BONUTTO-HOFER INVESTMENTS (the "Corporation"), and that the above and
foregoing Amended and Restated Bylaws were adopted as the Bylaws of the
Corporation on the 31st day of January, 1994, by the directors of the
Corporation by unanimous written consent dated January 31, 1994.
IN WITNESS WHEREOF, I have hereunto set my hand this 31st day of January,
1994.
/s/ Robert C. Peterson
-----------------------------------------
Robert C. Peterson, Secretary