Exhibit 3.1
Bylaws of Registrant
BYLAWS
FOR THE REGULATION, EXCEPT
AS OTHERWISE PROVIDED BY STATUTE OR
ITS ARTICLES OF INCORPORATION,
OF
AMERICAN STATES WATER COMPANY
(A CALIFORNIA CORPORATION)
ARTICLE I. OFFICES.
Section 1. PRINCIPAL EXECUTIVE OFFICE. The corporation's
principal executive office shall be fixed and located at such place as the Board
of Directors (herein called the "Board") shall determine. The Board is granted
full power and authority to change said principal executive office from one
location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may be
established at any time by the Board at any place or places.
ARTICLE II. 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 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. SPECIAL MEETINGS. 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 shares entitled to cast not less than ten
percent of the votes at such meeting. Upon request in writing to the Chairman of
the Board, the President, any Vice President or the Secretary by any person
(other than the Board) 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 nor more than sixty days after
the receipt of the request. Such request shall be made in accordance with
applicable law and these Bylaws. If the notice is not given within twenty days
after receipt of the request, the persons entitled to call the meeting may give
the notice.
Section 3. ANNUAL MEETINGS. The annual meetings of
shareholders shall be held on such date and at such time as may be fixed by the
Board. At such meetings, directors shall be elected and any other proper
business may be transacted in accordance with applicable law and these Bylaws.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written
notice of each annual or special meeting of shareholders shall be given not less
than ten nor more than sixty 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 and these
Bylaws, 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 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. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. If a quorum is present, the affirmative vote of a majority of the
shares represented and voting at the meeting (which shares voting affirmatively
also constitute at least a majority of the required quorum) shall be the act of
the shareholders, unless the vote of a greater number or voting by classes is
required by law or by the Articles, except as provided in the following
sentence. 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. ADJOURNED MEETINGS AND NOTICE THEREOF. Any
shareholders' meeting, whether or not a quorum is present, may be adjourned from
time to time by the vote of shareholders entitled to exercise a majority of the
voting power represented either in person or by proxy, 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.
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 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. The shareholders entitled to notice of any
meeting or to vote at 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.
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.
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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.
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.
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 outstanding 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 chairman of the board, president or any vice president of such
other corporation. Shares which are purported to be voted or any proxy purported
to be executed in the name of a corporation (whether or not any title of the
person signing is indicated) shall be presumed to be voted or the proxy executed
in accordance with the provisions of this clause, unless the contrary is shown.
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(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 issuing 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 is 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 or even split in interest.
Section 8. RECORD DATE. 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 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
days nor less than ten days prior to the date of the meeting nor more than sixty
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 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 day prior to the date of such other action, whichever
is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any
meeting of shareholders, however called and noticed, and wherever held, are as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is 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 thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except when the person
objects, at the beginning of the meeting, to the transactions of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not waiver of any right to object to the
consideration of matters required by the California General Corporation Law to
be included in the notice but not so included, if such objection is expressly
made at the meeting. Neither the business to be transacted at nor the purpose of
any regular or special meeting of shareholders need to be specified in any
written waiver of notice, consent to the holding of the meeting or approval of
the minutes thereof, except as provided in Section 601(f) of the California
General Corporation Law.
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Section 10. ACTION WITHOUT MEETING. 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 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. 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 the person executing the prior proxy and presented
to the meeting, 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 months from the date of its execution unless
otherwise provided in the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting
of shareholders, the Board may appoint 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 or
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 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;
determining the shares represented at the meeting; determining the existence of
a quorum; determining 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.
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Section 13. CONDUCT OF MEETING. The Chairman of the Board
shall preside as chairman at all meetings of the shareholders. The chairman
shall conduct each such meeting in a businesslike and fair manner, but shall not
be obligated to follow any technical, formal or parliamentary rules or
principles of procedure. The chairman's rulings on procedural matters shall be
conclusive and binding on all shareholders, unless at the time of a ruling a
request for a vote is made to the shareholders holding shares entitled to vote
and which are represented in person or by proxy at the meeting, in which case
the decision of a majority of such shares shall be conclusive and binding on all
shareholders. Without limiting the generality of the foregoing, the chairman
shall have all of the powers usually vested in the chairman of a meeting of
shareholders.
Section 14. QUALIFICATIONS OF DIRECTORS. Only persons who are
nominated in accordance with the procedures set forth in these Bylaws shall be
qualified to serve as directors. Nominations of persons for election to the
Board may be made at a meeting of shareholders (a) by or at the direction of the
Board or (b) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided for in this Bylaw, who shall be
entitled to vote for the election of directors at the meeting and who complies
with the notice procedures set forth in this Bylaw.
Nominations by shareholders shall be made pursuant to timely
notice in writing to the Secretary. To be timely as to an annual meeting, a
shareholder's notice must be received at the principal executive officers of the
corporation not less than 75 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that if
the date of the annual meeting is changed by more than 30 days from such
anniversary date, notice by the shareholder to be timely must be so received not
later than the close of business on the 10th day following the earlier of the
day on which notice of the date of the meeting was mailed to shareholders or
public disclosure of such date was made. To be timely as to a special meeting at
which directors are to be elected, a shareholder's notice must be received not
later than the close of business on the 10th day following the earlier of the
day on which notice of the date of the meeting was mailed to shareholders or
public disclosure of such date was made. Such shareholder's notice shall set
forth (a) as to each person whom the shareholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to the shareholder giving the notice
(i) the name and address, as they appear on the corporation's books, of such
shareholder and (ii) the class and number of shares of the corporation which are
beneficially owned by such shareholder and also which are owned of record by
such shareholder; and (c) as to the beneficial owner, if any, on whose behalf
the nomination is made, (i) the name and address of such person and (ii) the
class and number of shares of the corporation which are beneficially owned by
such person. At the request of the Board, any person nominated by the Board for
election as a director shall furnish to the Secretary that information required
to be set forth in the shareholder's notice of nomination which pertains to the
nominee.
No person shall be qualified to serve as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Bylaw. The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if the Chairman should so determine,
that the defective nomination shall be disregarded. Notwithstanding the
foregoing provisions of this Bylaw, a shareholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Bylaw.
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Section 15. PROPER BUSINESS FOR SHAREHOLDER MEETINGS. At a
meeting of the shareholders, only such business shall be proper as shall be
brought before the meeting (a) pursuant to the corporation's notice of meeting,
(b) by or at the direction of the Board or (c) by any shareholder of the
corporation who is a shareholder of record at the time of giving of the notice
provided for in this Bylaw, who shall be entitled to vote at such meeting and
who complies with the notice procedures set forth in this Bylaw.
For business to be properly brought before a meeting by a
shareholder pursuant to clause (c) of the first paragraph of this Bylaw, the
shareholder must have given timely notice thereof in writing to the Secretary.
To be timely as to an annual meeting of shareholders, a shareholder's notice
must be received at the principal executive offices of the corporation not less
than 75 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that if the date of the
meeting is changed by more than 30 days from such anniversary date, notice by
the shareholder to be timely must be received no later than the close of
business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed to shareholders or public disclosure of such date
was made. To be timely as to a special meeting of shareholders, a shareholder's
notice must be received not later than the call of the meeting by the Board, the
Chairman of the Board or the President, or the date of receipt of a valid
request by a person (other than the Board) that the special meeting be called.
Such shareholder's notice shall set forth as to each matter the shareholder
proposes to bring before the meeting (a) a brief description of such matter and
the reasons for proposing such matters(s) at the meeting, (b) the name and
address, as they appear on the corporation's books, of the shareholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (c) the class and number of shares of the
corporation which are owned beneficially and of record by such shareholder of
record and by the beneficial owner, if any, on whose behalf the proposal is made
and (d) any material interest of such shareholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such proposal.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be proper at a meeting unless brought before it in accordance
with the procedures set forth in this Bylaw. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the procedures
prescribed by these Bylaws, and if the Chairman should so determine, that any
such business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Bylaw, a shareholder shall also
comply with all applicable requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder with respect to the matters
set forth in this Bylaw.
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ARTICLE III. DIRECTORS.
Section 1. POWERS. Subject to 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. 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, 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, 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 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 purposes of
the corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
Section 2. NUMBER OF DIRECTORS. The authorized number of
directors shall be not less than five nor more than nine until changed by
amendment of the Articles or by a Bylaw duly adopted by the shareholders
amending this Section 2. The exact number of directors shall be fixed, within
the limits specified, by the Board from time to time in a resolution adopted by
a majority of the directors. The exact number of directors shall be eight until
changed as provided in this Section 2.
Section 3. ELECTION AND TERM OF OFFICE. Except as otherwise
provided in the Articles, the directors shall be elected at each annual meeting
of the shareholders, but if any such annual meeting is not held or the directors
are not elected thereat, the directors may be elected at any 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. Any director may resign effective upon
giving written notice to the Chairman of the Board, the President, the 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.
Vacancies in the Board, except 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 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.
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The shareholders, subject to applicable law and these Bylaws,
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, other than to
fill a vacancy created by removal, requires the consent of a majority of the
outstanding shares entitled to vote. Any such election by written consent to
fill a vacancy created by removal requires unanimous consent.
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. PLACE OF MEETING. 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 6. REGULAR MEETINGS. 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.
Other regular meetings of the Board shall be held without call
on such dates and at such times as may be fixed by the Board. Call and notice of
all regular meetings of the Board are hereby dispensed with.
Section 7. SPECIAL MEETINGS. Special meetings of the Board for
any purpose or purposes may be called at any time by the Chairman of the Board,
the President, any Vice President, the Secretary or by any two directors.
Special meetings of the Board shall be held upon four days'
written notice or forty-eight hours' notice given personally or by telephone,
telegraph, telex, or other similar 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 8. QUORUM. A majority of the authorized number of
directors constitutes a quorum of the Board for the transaction of business,
except to adjourn as provided in Section 11 of this Article. 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 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
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.
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Section 10. WAIVER OF NOTICE. Notice of a meeting need not be
given to any director who signs a waiver of notice or consent to holding the
meeting or an approval of the minutes thereof, 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. All such waivers, consents
and approvals shall be filed with the corporate records or made a part of the
minutes of the meetings.
Section 11. ADJOURNMENT. 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, except as provided in the next sentence. If the meeting
is adjourned for more than twenty-four 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.
Section 12. FEES AND COMPENSATION. 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 13. ACTION WITHOUT MEETING. 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 14. RIGHTS OF INSPECTION. 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 its 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 15. COMMITTEES. 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 California
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 service 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; or
(g) The appointment of other committees of the Board or the
members thereof.
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Any such committee must be designated, and the members or
alternate members thereof appointed, by resolution adopted by a majority of the
authorized number of directors and any such committee may be designated an
Executive Committee or by such other name as the Board shall specify.
Alternative members of a committee may replace any absent member at any meeting
of the committee. 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.
ARTICLE IV. 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, a Chairman of the Board, an Executive Vice
President, a Senior Vice President, one or more Vice Presidents, a Treasurer,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be elected or appointed in accordance with the provisions
of Section 3 of this Article.
Section 2. ELECTION. 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 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. The Board may elect, and may
empower the Chairman of the Board, if there be such an officer, or 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. Any officer may be
removed, either with or without cause, by the Board at any time or, except in
the case of an officer chosen by the Board, by an 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 it effective.
Section 5. VACANCIES. 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.
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Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board,
if there shall be such an officer, shall be the Chief Executive Officer of the
corporation unless, in its sole discretion, the Board should elect the President
to be such. The Chief Executive Officer 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 Chairman of the Board, if there shall be such an
officer, shall, if present, preside at all meetings of the shareholders and the
Board and exercise and perform such other powers and duties as may be from time
to time assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may
be given to the Chairman of the Board, if there be such an officer, the
President shall have the general powers and duties of management usually vested
in the office of the president of a corporation and such other powers and duties
as may be prescribed by the Board or the Chief Executive Officer, if other than
the President. In the absence of the Chairman of the Board, or if there be none,
the President shall preside at all meetings of the shareholders and the Board.
In the absence or disability of the Chief Executive Officer, if other than the
President, the President shall perform all the duties of the Chief Executive
Officer and, when so acting, shall have all of the powers of, and be subject to
all the restrictions upon, the Chief Executive Officer.
Section 8. VICE PRESIDENTS. The Executive Vice President and
Senior Vice President, if any, and other Vice Presidents shall have (subject to
the authority of the Board) such powers and perform such duties as from time to
time determined by the Chief Executive Officer. In the absence or disability of
the President, the Vice Presidents, in the following order, shall perform all
the duties of the President and, when so acing, shall have all the powers of,
and be subject to all the restrictions upon, the President: the Executive Vice
President, if any, the Senior Vice President, if any, and the Vice Presidents in
the order of their rank as fixed by the Board, or if not ranked, the Vice
President designated by the Board. The Vice President 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, how
authorized, the notice thereof given, the names of those present at Board and
committee meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings thereof. The Secretary shall keep, or cause to be
kept, 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
of 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 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 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 or these Bylaws
required to be sent to them. The books of account shall at all times be open to
inspection by any director.
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The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries 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 the 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.
ARTICLE V. OTHER PROVISIONS.
Section 1. INSPECTION OF CORPORATE RECORDS.
(a) A shareholder or shareholders holding at least five
percent in the aggregate of the outstanding voting shares of the corporation or
who hold at least one percent 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 the absolute right to do
either or both of the following:
(i) Inspect and copy the record of
shareholders' names and addresses and shareholders during usual
business hours upon five business days' prior written demand
upon the corporation; or
(ii) Obtain from the transfer agent, if any,
for the corporation, upon five 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 complied or as of the 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 in the State of California, or if its principal
executive office is not in such State at its principal business office in such
state, the original or 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 located outside the
State of California and the corporation has no principal business office in such
state, it shall upon the written request of any shareholder furnish to such
shareholder a copy of these Bylaws as amended to date.
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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 the
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, the Treasurer or any Assistant Treasurer of the
corporation, shall be valid and binding on the 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, the Treasurer or an Assistant Treasurer or
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 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, if 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
Chief Executive Officer, the President or any other officer or officers
authorized by the Board or the Chief Executive Officer 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 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.
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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, an option or obligation
on the part of the corporation, to repurchase the shares upon termination of
employment, restrictions upon transfer of 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. 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. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Each person who was or is a party or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
corporation, or of any predecessor corporation, or is or was a director or
officer who is or was serving at the request of the corporation as a director,
officer, employee or other agent of another corporation, a partnership, joint
venture, trust or other enterprise (including service with respect to
corporation-sponsored employee benefit plans), whether the basis of such
proceeding is alleged action or inaction in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall, subject to the terms of any agreement between the corporation and such
person, be indemnified and held harmless by the corporation to the fullest
extent permissible under California law and the corporation's Articles, against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith;
provided, however, that amounts paid in settlement of a proceeding shall be
payable only if the settlement is approved in writing by the corporation. Such
indemnification shall continue as to a person who has ceased to be a director or
officer for acts performed while a director or officer and shall inure to the
benefit of his or her heirs, executors and administrators. Notwithstanding the
foregoing, the corporation shall indemnify any such person in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of the corporation. The right to
indemnification conferred in this Article shall include the right to be paid by
the corporation the expenses incurred in defending any proceeding in advance of
final disposition to the fullest extent permitted by law; provided, however,
that the payment under this Article of such expenses in advance of the final
disposition of a proceedings shall be conditioned upon the delivery to the
corporation of a written request for such advance and of an undertaking by or on
behalf of the director or officer to repay all amounts so advanced if it shall
be ultimately determined that such director or officer is not entitled to be
indemnified.
(b) Notwithstanding the foregoing or any other provisions
under this Article, the corporation shall not be liable under this Article to
indemnify a director or officer against expenses, liabilities or losses incurred
or suffered in connection with, or make any advances with respect to, any
proceeding against a director or officer: (i) as to which the corporation is
prohibited by applicable law from paying as an indemnity; (ii) with respect to
expenses of defense or investigation, if such expenses were or are incurred
without the corporation's consent (which consent may not be unreasonably
withheld); (iii) for which payment is actually made to the director or officer
under a valid and collectible insurance policy maintained by the corporation,
except in respect of any excess beyond the amount of payment under such
insurance; (iv) for which payment is actually made to the director or officer
under an indemnity by the corporation otherwise than pursuant to this Bylaw
Article, except in respect of any excess beyond the amount of payment under such
indemnity; (v) based upon or attributable to the director or officer gaining in
fact any personal profit or advantage to which he or she was not legally
entitled; (vi) for an accounting of profits made from the purchase or sale by
the director or officer of securities of the corporation pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law; or (vii) based upon acts or omissions involving intentional
misconduct or a knowing and culpable violation of law.
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Section 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. A person
who was or is a party or is threatened to be made a party to or is involved in
any proceeding by reason of the fact that he or she is or was an employee or
agent of the corporation or is or was an employee or agent of the corporation
who is or was serving at the request of the corporation as an employee or agent
of another enterprise, including service with respect to corporation-sponsored
employee benefits plans, whether the basis of such action is alleged action or
inaction in an official capacity or in any other capacity while serving as an
employee or agent, may, upon appropriate action by the corporation and subject
to the terms of any agreement between the corporation and such person, be
indemnified and held harmless by the corporation up to the fullest extent
permitted by California law and the corporation's Articles, against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith.
Section 3. RIGHT OF DIRECTORS AND OFFICERS TO BRING SUIT. If a
claim under Section 1 of this Article is not paid by the corporation or on its
behalf within 90 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim, and, if successful in
whole or in part, the claimant also shall be entitled to be paid the expense of
prosecuting such claim.
Section 4. SUCCESSFUL DEFENSE. Notwithstanding any other
provision of this Article, to the extent that a director or officer has been
successful on the merits or otherwise (including the dismissal of a proceeding
without prejudice or the settlement with the written consent of the corporation
of a proceeding without admission of liability) in defense of any proceeding
referred to in Section 1 or in defense of any claim, issue or matter therein,
such director or officer shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith.
Section 5. INDEMNITY AGREEMENTS. The corporation may enter
into agreements with any director, officer, employee or agent of the corporation
providing for indemnification to the fullest extent permissible under applicable
law and the corporation's Articles.
Section 6. SUBROGATION. In the event of payment by the
corporation of a claim under Section 1 of this Article, the corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of the
indemnified person, who shall execute all papers required and shall do
everything that may be necessary or appropriate to secure such rights, including
the execution of such documents necessary or appropriate to enable the
corporation effectively to bring suit to enforce such rights.
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Section 7. NON-EXCLUSIVITY RIGHTS. The right to
indemnification provided by this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
Section 8. INSURANCE. The corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent
of the corporation or another corporation, a partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under California law.
Section 9. EXPENSES AS A WITNESS. To the extent that any
director, officer or employee of the corporation is by reason of such position a
witness in any action, suit or proceeding, he or she will be indemnified against
all costs and expenses actually and reasonably incurred by him or her or on his
or her behalf in connection therewith.
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. The corporation shall have power to indemnify such trustee,
investment manager or other fiduciary to the extent permitted by subdivision (f)
of Section 207 of the California General Corporation Law.
Section 11. SEPARABILITY. Each and every paragraph, sentence,
term and provision of this Article is separate and distinct so that if any
paragraph, sentence, term or provision shall be held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
affect the validity or enforceability of any other paragraph, sentence, term or
provision hereof. To the extent required, any paragraph, sentence, term or
provision of this Article may be modified by a court of competent jurisdiction
to preserve its validity and to provide the claimant with, subject to the
limitations set forth in this Article and any agreement between the corporation
and the claimant, the broadest possible indemnification permitted under
applicable law.
Section 12. EFFECT OF REPEAL OR MODIFICATION. Any repeal or
modification of this Article shall not adversely affect any right of
indemnification of a director, officer, employee or agent of the corporation
existing at the time of such repeal or modification with respect to any action
or omission occurring prior to such repeal or modification.
ARTICLE VII. EMERGENCY PROVISIONS.
Section 1. GENERAL. The provisions of this Article shall be
operative only during a national emergency declared by the President of the
United States or the person performing the President's functions, or in the
event of a nuclear, atomic or other attack on the United States or a disaster
making it impossible or impracticable for the corporation to conduct its
business without recourse to the provisions of this Article. Said provisions in
such event shall override all other Bylaws of the corporation in conflict with
any provisions of this Article, and shall remain operative so long as it remains
impossible or impracticable to continue the business of the corporation
otherwise, but thereafter shall be inoperative; provided that all actions taken
in good faith pursuant to such provisions shall thereafter remain in full force
and effect unless and until revoked by action taken pursuant to the provisions
of the Bylaws other than those contained in this Article.
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Section 2. UNAVAILABLE DIRECTORS. All directors of the
corporation who are not available to perform their duties as directors by reason
of physical or mental incapacity or for any other reason or who are unwilling to
perform their duties or whose whereabouts are unknown shall automatically cease
to be directors, with like effect as if such persons had resigned as directors,
so long as such unavailability continues.
Section 3. AUTHORIZED NUMBER OF DIRECTORS. The authorized
number of directors shall be the number of directors remaining after eliminating
those who have ceased to be directors pursuant to Section 2, or the minimum
number required by law, whichever number is greater.
Section 4. QUORUM. The number of directors necessary to
constitute a quorum shall be one-third of the authorized number of directors as
specified in the foregoing Section, or other minimum number as, pursuant to the
law or lawful decree then in force, it is possible for the Bylaws of a
corporation to specify.
Section 5. CREATION OF EMERGENCY COMMITTEE. In the event the
number of directors remaining after eliminating those who have ceased to be
directors pursuant to Section 2 is less than the minimum number of authorized
directors required by law, then until the appointment of additional directors to
make up such required minimum, all the powers and authorities which the Board
could by law delegate, including all powers and authorities which the Board
could delegate to a committee, shall be automatically vested in an emergency
committee, and the emergency committee shall thereafter manage the affairs of
the corporation pursuant to such powers and authorities and shall have all other
powers and authorities as may by law or lawful decree be conferred on any person
or body of persons during a period of emergency.
Section 6. CONSTITUTION OF EMERGENCY COMMITTEE. The emergency
committee shall consist of all the directors remaining after eliminating those
who have ceased to be directors pursuant to Section 2, provided that such
remaining directors are not less than three in number. In the event such
remaining directors are less than three in number the emergency committee shall
consist of three persons, who shall be the remaining director or directors and
either one or two officers or employees of the corporation as the remaining
director or directors may in writing designate. If there is no remaining
director, the emergency committee shall consist of the three most senior
officers of the corporation who are available to serve, and if and to the extent
that officers are not available, the most senior employees of the corporation.
Seniority shall be determined in accordance with any designation of seniority in
the minutes of the proceedings of the Board, and in the absence of such
designation, shall be determined by rate of remuneration. In the event that
there are no remaining directors and no officers or employees of the corporation
available, the emergency committee shall consist of three persons designated in
writing by the shareholder owning the largest number of shares of record as of
the date of the last record date.
Section 7. POWERS OF EMERGENCY COMMITTEE. The emergency
committee, once appointed, shall govern its own procedures and shall have power
to increase the number of members thereof beyond the original number, and in the
event of a vacancy or vacancies therein, arising at any time, the remaining
member or members of the emergency committee shall have the power to fill such
vacancy or vacancies. In the event at any time after its appointment all members
of the emergency committee shall die or resign or become unavailable to act for
any reason whatsoever, a new emergency committee shall be appointed in
accordance with the foregoing provisions of this Article.
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Section 8. DIRECTORS BECOMING AVAILABLE. Any person who has
ceased to be a director pursuant to the provisions of Section 2 and who
thereafter becomes available to serve as a director shall automatically become a
member of the emergency committee.
Section 9. ELECTION OF BOARD OF DIRECTORS. The emergency
committee, shall, as soon after its appointment as is practicable, take all
requisite action to secure the election of a board of directors, and upon such
election, all the powers and authorities of the emergency committee shall cease.
Section 10. TERMINATION OF EMERGENCY COMMITTEE. In the event,
after the appointment of an emergency committee, a sufficient number of persons
who ceased to be directors pursuant to Section 2 become available to serve as
directors, so that if they had not ceased to be directors as aforesaid, there
would be enough directors to constitute the minimum number of directors required
by law, then all such persons shall automatically be deemed to be reappointed as
directors and the powers and authorities of the emergency committee shall be at
an end.
ARTICLE VIII. AMENDMENTS.
Subject to the Articles of Incorporation, these Bylaws may be
amended or repealed either by approval of the outstanding shares (as defined in
Section 152 of the California General Corporation Law) 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 number of directors or vice versa may only
be adopted by approval of the outstanding shares and a bylaw reducing the fixed
number or the minimum number of directors to a number less than five shall be
subject to the provisions of Section 212(a) of the California General
Corporation Law.
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