BYLAWS
OF
ATC HOLDINGS, INC.
(A CALIFORNIA CORPORATION)
ARTICLE I - OFFICES
Section 1. The principal executive office of ATC HOLDINGS, INC.
(the "Corporation") shall be at such place inside or outside the State of
California as the Board of Directors may determine from time to time.
Section 2. The Corporation may also have offices at such other
places as the Board of Directors may from time to time designate, or as the
business of the Corporation may require.
ARTICLE II - SHAREHOLDERS' MEETINGS
Section 1. ANNUAL MEETINGS. The annual meeting of the
shareholders of the Corporation for the election of directors to succeed
those whose terms expire and for the transaction of such other business as
may properly come before the meeting shall be held at such place and at such
time as may be fixed from time to time by the Board of Directors and stated
in the notice of the meeting. If the annual meeting of the shareholders be
not held as herein prescribed, the election of directors may be held at any
meeting thereafter called pursuant to these Bylaws.
Section 2. SPECIAL MEETINGS. Special meetings of the
shareholders, for any purpose whatsoever, unless otherwise prescribed by
statute, may be called at any time by the Chairman of the Board, the
President, or by the Board of Directors, or by one or more shareholders
holding not less than ten percent (10%) of the voting power of the
Corporation.
Section 3. PLACE. All meetings of the shareholders shall be at
any place within or without the State of California designated by the Board
of Directors or by written consent of all the persons entitled to vote
thereat, given either before or after the meeting. In the absence of any such
designation, shareholders' meetings shall be held at the principal executive
office of the Corporation.
Section 4. NOTICE. Notice of meetings of the shareholders of the
Corporation shall be given in writing to each shareholder entitled to vote,
either personally or by first-class mail or other means of written
communication, charges prepaid, addressed to the shareholder at his address
appearing on the books of the Corporation or given by the shareholder to the
Corporation for the purpose of notice. Notice of any such meeting of
shareholders shall be sent to each shareholder entitled thereto not less than
ten (10) nor more than sixty (60) days before the meeting. Said notice shall
state the place, date and hour of the meeting and, (1) in the case of special
meetings, the general nature of
the business to be transacted, and no other business may be transacted, or
(2) in the case of annual meetings, those matters which the Board of
Directors, at the time of the mailing of the notice, intends to present for
action by the shareholders, but subject to Section 601(f) of the California
Corporations Code any proper matter may be presented at the meeting for
shareholder action, and (3) in the case of any meeting at which directors are
to be elected, the names of the nominees intended at the time of the mailing
of the notice to be presented by management for election.
Section 5. ADJOURNED MEETINGS. Any shareholders' meeting may be
adjourned from time to time by the vote of the holders of a majority of the
voting shares present at the meeting either in person or by proxy. Notice of
any adjourned meeting need not be given unless a meeting is adjourned for
forty-five (45) days or more from the date set for the original meeting.
Section 6. QUORUM. The presence in person or by proxy of the
persons entitled to vote a majority of the shares entitled to vote at any
meeting constitutes a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
In the absence of a quorum, any meeting of shareholders may be
adjourned from time to time by the vote of a majority of the shares, the
holders of which are either present in person or represented by proxy
thereat, but no other business may be transacted, except as provided above.
Section 7. SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action which
may be taken at any meeting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action
so taken, shall be signed by the holders of outstanding shares having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon
were present and voted; provided, however, that (1) unless the consents of
all shareholders entitled to vote have been solicited in writing, notice of
any shareholder approval without a meeting by less than unanimous written
consent shall be given as required by the California Corporations Code, and
(2) directors may not be elected by written consent except by unanimous
written consent of all shares entitled to vote for the election of directors.
Any written consent may be revoked by a writing received by the
Secretary of the Corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed
with the Secretary.
Section 8. WAIVER OF NOTICE. The transactions of any meeting of
shareholders, however called and noticed, and whenever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if
a quorum be present either in person or by proxy, and if, either before or
after the meeting, each of the persons entitled to vote, not present in
person or by proxy, signs a written waiver of notice, or a consent to the
holding of the meeting, or an approval of the minutes
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thereof. All such waivers, consents, or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 9. VOTING. The voting at all meetings of shareholders need
not be by ballot, but any qualified shareholder before the voting begins may
demand a stock vote whereupon such stock vote shall be taken by ballot, each
of which shall state the name of the shareholder voting and the number of
shares voted by such shareholder, and if such ballot be cast by a proxy, it
shall also state the name of such proxy.
At any meeting of the shareholders, every shareholder having the
right to vote shall be entitled to vote in person, or by proxy appointed in a
writing subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless the writing states that it
is irrevocable and is held by a person specified in Section 705(e) of the
California Corporations Code, in which event it is irrevocable for the period
specified in said writing and said Section 705(e).
Section 10. RECORD DATES. In the event the Board of Directors fixes
a day for the determination of shareholders of record entitled to vote as
provided in Section 1 of Article V of these Bylaws, then, subject to the
provisions of the General Corporation Law of the State of California, only
persons in whose name shares entitled to vote stand on the stock records of
the Corporation at the close of business on such day shall be entitled to
vote.
If no record date is fixed:
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 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 entitled to give
consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is given; and
The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto, or the sixtieth (60th) day prior to
the date of such other action, whichever is later.
A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date for the
adjourned meeting, but the Board of Directors shall fix a new record date if
the meeting is adjourned for more than forty-five (45) days.
Section 11. CUMULATIVE VOTING FOR ELECTION OF DIRECTORS. Provided
the candidate's name has been placed in nomination prior to the voting and
one or more shareholders has given notice at the meeting prior to the voting
of the shareholder's intent to cumulate the shareholder's votes, every
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shareholder entitled to vote at any election for directors shall have the
right to 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 normally entitled, or
distribute the shareholder's votes on the same principle among as many
candidates as the shareholder shall think fit. 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.
ARTICLE III - BOARD OF DIRECTORS
Section 1. POWERS. Subject to any limitations in the Articles of
Incorporation or these Bylaws and to any provision of the California
Corporations Code requiring shareholder authorization or approval for a
particular action, 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. The Board of Directors may delegate the
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 of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. The number of
directors that shall constitute the whole board shall be not less than five
(5) nor more than nine (9), the exact number of directors may be fixed from
time to time within such limit by a duly adopted resolution of the Board of
Directors or shareholders. Directors need not be shareholders.
Directors shall hold office until the next annual meeting of
shareholders and until their respective successors are elected. 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. Directors need not be shareholders.
Section 3. REGULAR MEETINGS. A regular annual meeting of the Board
of Directors shall be held without other notice than this Bylaw immediately
after, and at the same place as, the annual meeting of shareholders. The
Board of Directors may provide for other regular meetings from time to time
by resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors 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 (2) directors.
Written notice of the time and place of all special meetings of the Board of
Directors shall be delivered personally or by telephone or telegraph to each
director at least forty-eight (48) hours before the meeting, or sent to each
director by first-class mail, postage prepaid, at least four (4) days before
the meeting. Such notice need not specify the purpose of the meeting. Notice
of any meeting of the Board of Directors need not be given to any director
who signs a waiver
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of notice, whether before or after the meeting, or who attends the meeting
without protesting prior thereto or at its commencement, the lack of notice
to such director.
Section 5. PLACE OF MEETINGS. Meetings of the Board of Directors
may be held at any place within or without the State of California, which has
been designated in the notice, or if not stated in the notice or there is no
notice, the principal executive office of the Corporation or as designated by
the resolution duly adopted by the Board of Directors.
Section 6. PARTICIPATION BY TELEPHONE. Members of the Board of
Directors 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 7. QUORUM. A majority of the Board of Directors shall
constitute a quorum at all meetings. In the absence of a quorum a majority of
the directors present may adjourn any meeting to another time and place. If a
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
reconvened meeting to the directors who were not present at the time of
adjournment.
Section 8. ACTION AT MEETING. 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 is the act of the Board 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 for such meeting.
Section 9. WAIVER OF NOTICE. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, are as valid
as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding
the meeting, or an approval of the minutes thereof. All such waivers,
consents and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Section 10. 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 individually or collectively consent in
writing to such action. Such written consent or consents shall be filed with
the minutes of the proceedings of the Board. Such action by written consent
shall have the same force and effect as a unanimous vote of such directors.
Section 11. REMOVAL. The Board of Directors may declare vacant the
office of a director who has been declared of unsound mind by an order of
court or who has been convicted of a felony.
The entire Board of Directors or any individual director may be
removed from office without cause by a vote of shareholders holding a
majority of the outstanding shares entitled to vote at an election of
directors; provided, however, that unless the entire Board is removed, no
individual
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director may be removed when the votes cast against removal, or not
consenting in writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which the same total number
of votes cast were cast (or, if such action is taken by written consent, all
shares entitled to vote were voted) and the entire number of directors
authorized at the time of the director's most recent election were then being
elected.
In the event an office of a director is so declared vacant or in
case the Board or any one or more directors be so removed, new directors may
be elected at the same meeting.
Section 12. RESIGNATIONS. Any director may resign effective upon
giving written notice to the Chairman of the Board, the President, the
Secretary or the Board of Directors of the Corporation, 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.
Section 13. VACANCIES. Except for a vacancy created by the removal
of a director, all vacancies in the Board of Directors, whether caused by
resignation, death or otherwise, may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and
each director so elected shall hold office until his successor is elected at
an annual, regular or special meeting of the shareholders. Vacancies created
by the removal of a director may be filled only by approval of the
shareholders. The shareholders may elect a director at any time to fill any
vacancy not filled by the directors. Any such election by written consent
requires the consent of a majority of the outstanding shares entitled to vote.
Section 14. COMPENSATION. No stated salary shall be paid directors,
as such, for their services, but, by resolution of the Board of Directors, a
fixed sum and expenses of attendance, if any, may be allowed for attendance
at each regular or special meeting of such Board; provided that nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation
for attending committee meetings.
Section 15. COMMITTEES. 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 of Directors. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace
any absent member at any meeting of the committee. The appointment of members
or alternate members of a committee requires the vote of a majority of the
authorized number of directors. Any such committee, to the extent provided in
the resolution of the Board of Directors, shall have all the authority of the
Board of Directors in the management of the business and affairs of the
Corporation, except with respect to (a) the approval of any action requiring
shareholders' approval or approval of the outstanding shares, (b) the filling
of vacancies on the Board or any committee, (c) the fixing of compensation of
directors for serving on the Board or a committee, (d) the adoption,
amendment or repeal of 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 shareholders,
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except at a rate or in a periodic amount or within a price range determined
by the Board, and (g) the appointment of other committees of the Board or the
members thereof.
ARTICLE IV - OFFICERS
Section 1. NUMBER AND TERM. The officers of the Corporation shall
be a Chairman of the Board, a President, one or more Vice-Presidents, a
Secretary and a Chief Financial Officer, all of which shall be chosen by the
Board of Directors. In addition, the Board of Directors may appoint such
other officers as may be deemed expedient for the proper conduct of the
business of the Corporation, each of whom shall have such authority and
perform such duties as the Board of Directors may from time to time
determine. The officers to be appointed by the Board of Directors shall be
chosen annually at the regular meeting of the Board of Directors held after
the annual meeting of shareholders and shall serve at the pleasure of the
Board of Directors. If officers are not chosen at such meeting of the Board
of Directors, they shall be chosen as soon thereafter as shall be convenient.
Each officer shall hold office until his successor shall have been duly
chosen or until his removal or resignation.
Section 2. INABILITY TO ACT. In the case of absence or inability to
act of any officer of the Corporation and of any person herein authorized to
act in his place, the Board of Directors may from time to time delegate the
powers or duties of such officer to any other officer, or any director or
other person whom it may select.
Section 3. REMOVAL AND RESIGNATION. Any officer chosen by the Board
of Directors may be removed at any time, with or without cause, by the
affirmative vote of a majority of all the members of the Board of Directors.
Any officer chosen by the Board of Directors may resign at any time
by giving written notice of said resignation to the Corporation. Unless a
different time is specified therein, such resignation shall be effective upon
its receipt by the Chairman of the Board, the President, the Secretary or the
Board of Directors.
Section 4. VACANCIES. A vacancy in any office because of any cause
may be filled by the Board of Directors for the unexpired portion of the term.
Section 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Board.
Section 6. PRESIDENT. The President shall be the general manager
and chief executive officer of the Corporation, subject to the control of the
Board of Directors, and as such shall preside at all meetings of
shareholders, shall have general supervision of the affairs of the
Corporation, shall sign or countersign or authorize another officer to sign
all certificates, contracts, and other instruments of the Corporation as
authorized by the Board of Directors, shall make reports to the
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Board of Directors and shareholders, and shall perform all such other duties
as are incident to such office or are properly required by the Board of
Directors.
Section 7. VICE PRESIDENT. In the absence of the President, or in
the event of such officer's death, disability or refusal to act, the Vice
President, or in the event there be more than one Vice President, the Vice
Presidents in the order designated at the time of their selection, or in the
absence of such designation, then in the order of their selection, shall
perform the duties of President, and when so acting, shall have all the
powers and be subject to all restrictions upon the President. The Vice
President shall have such powers and discharge such duties as may be assigned
from time to time by the President or by the Board of Directors.
Section 8. SECRETARY. The Secretary shall see that notices for all
meetings are given in accordance with the provisions of these Bylaws and as
required by law, shall keep minutes of all meetings, shall have charge of the
seal and the corporate books, and shall make such reports and perform such
other duties as are incident to such office, or as are properly required by
the President or by the Board of Directors.
The Assistant Secretary or the Assistant Secretaries, in the order
of their seniority, shall, in the absence or disability of the Secretary, or
in the event of such officer's refusal to act, perform the duties and
exercise the powers and discharge such duties as may be assigned from time to
time by the President or by the Board of Directors.
Section 9. CHIEF FINANCIAL OFFICER. The Chief Financial Officer may
also be designated by the alternate title of "Treasurer." The Chief Financial
Officer shall have custody of all moneys and securities of the Corporation
and shall keep regular books of account. Such officer shall disburse the
funds of the Corporation in payment of the just demands against the
Corporation, or as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Board of Directors
from time to time as may be required of such officer, an account of all
transactions as Chief Financial Officer and of the financial condition of the
Corporation. Such officer shall perform all duties incident to such office or
which are properly required by the President or by the Board of Directors.
The Assistant Treasurer or the Assistant Treasurers, in the order
of their seniority, shall, in the absence or disability of the Chief
Financial Officer, or in the event of such officer's refusal to act, perform
the duties and exercise the powers of the Chief Financial Officer, and shall
have such powers and discharge such duties as may be assigned from time to
time by the President or by the Board of Directors.
Section 10. SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such officer is also a
director of the Corporation.
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Section 11. OFFICERS HOLDING MORE THAN ONE OFFICE. Any two or more
offices may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
Section 12. APPROVAL OF LOAN TO OFFICERS. The Corporation may upon
the approval of the Board of Directors alone, make loans or money or property
to, or guarantee the obligations of, any officer of the Corporation or its
parent or subsidiary, whether or not a director, or adopt an employee
;benefit plan or plans authorizing such loans or guaranties provided that (i)
the Board of Directors Determines that such a loan or guaranty or plan may
reasonably be expected to benefit the Corporation, (ii) the Corporation has
outstanding shares held of record by 100 or more persons (determined as
provided in Section 605 of the California Corporations Code) on the date of
approval by the Board of Directors, and (iii) the approval of the Board of
Directors is by a vote sufficient without counting the vote of any interested
director or directors.
ARTICLE V - MISCELLANEOUS
Section 1. RECORD DATE AND CLOSING OF STOCK BOOKS. The Board of
Directors may fix a time in the future as a record date for the determination
of the shareholders entitled to notice of and to vote at any meeting of
shareholders or entitled to receive payment of any dividend or distribution,
or any allotment of rights, or to exercise rights in respect to any other
lawful action. The record date so fixed shall not be more than sixty (60) nor
less than ten (10) days prior to the date of the meeting or event for the
purposes of which it is fixed. When a record date is so fixed, only
shareholders of record at the close of business on that date are entitled to
notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date.
The Board of Directors may close the books of the Corporation
against transfers of shares during the whole or any part of a period of not
more than sixty (60) days prior to the date of a shareholders' meeting, the
date when the right to any dividend, distribution, or allotment of rights
vests, or the effective date of any change, conversion or exchange of shares.
Section 2. CERTIFICATES. Certificates of stock shall be issued in
numerical order and each shareholder shall be entitled to a certificate
signed in the name of the Corporation by the Chairman of the Board or the
President or a Vice President, and the Chief Financial Officer or the
Secretary or an Assistant Secretary, certifying to the number of shares owned
by such shareholder. Any or all of the signatures on the certificate may be
facsimile. Prior to the due presentment for registration of transfer in the
stock transfer book of the Corporation, the registered owner shall be treated
as the person exclusively entitled to vote, to receive notifications and
otherwise to exercise all the rights and powers of an owner, except as
expressly provided otherwise by the laws of the State of California.
Section 3. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares
of other corporations standing in the name of this Corporation may be voted
or represented and all incidents
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thereto may be exercised on behalf of the Corporation by the Chairman of the
Board President or the Vice President and the Chief Financial Officer or the
Secretary or an Assistant Secretary.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall
end on the 31st day of December.
Section 5. ANNUAL REPORTS. The Annual Report to shareholders,
described in the California Corporations Code, is expressly waived and
dispensed with.
Section 6. AMENDMENTS. Bylaws may be adopted, amended, or repealed
by the vote or the written consent of shareholders entitled to exercise a
majority of the voting power of the Corporation. Subject to the right of
shareholders to adopt, amend, or repeal Bylaws, Bylaws may be adopted,
amended, or repealed by the Board of Directors, except that a Bylaw amendment
thereof changing the authorized number of directors may be adopted by the
Board of Directors only if these Bylaws permit an indefinite number of
directors and the Bylaw or amendment thereof adopted by the Board of
Directors changes the authorized number of directors within the limits
specified in these Bylaws.
Section 7. INDEMNIFICATION OF CORPORATE AGENTS. The Corporation
shall indemnify each of its agents against expenses, judgments, fines,
settlements and other amounts, actually and reasonably incurred by such
person by reason of such person's having been made or having been threatened
to be made a party to a proceeding to the fullest extent permissible under
the California Corporations Code and the Corporation shall advance the
expenses reasonably expected to be incurred by such agent in defending any
such proceeding upon receipt of the undertaking required by subdivision (f)
of Section 317 of the California Corporations Code. The terms "agent",
"proceeding" and "expenses" made in this Section 7 shall have the same
meaning as such terms in said Section 317.
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