Exhibit 3.31
BYLAWS
OF
PACIFIC CUSTOM MATERIALS, INC
A California Corporation
ARTICLE I: OFFICES
Section 1. PRINCIPAL OFFICE. The location of the corporation's
principal executive office shall be designated at the end of this paragraph. The
board of directors may change the location of the principal executive office to
any place within or outside of California. If the principal executive office is
located outside of California and the corporation has one or more business
offices in California, the board of directors shall fix and designate a
principal business office in California.
The principal executive office is located at:
9000 Carquinez Scenic Drive
Port Costa, CA 94569
Section 2. OTHER OFFICES. The board of directors may at any time
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II: SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held
at any place within or outside of California designated by the board of
directors and stated in the notice of the meeting. If no place is so specified,
shareholders' meetings shall be held at the corporation's principal executive
office.
Section 2. ANNUAL MEETING. Annual meetings of the shareholders shall
be held on March 15 of each year at 10:00 a.m., or on any other date and time as
determined by the board of directors. However, if this date falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At this meeting, directors shall be elected and
any other proper business within the power of the shareholders may be
transacted.
Written notice of the annual meeting of shareholders shall be given in
accordance with these bylaws.
Section 3. SPECIAL MEETINGS; HOW CALLED. A special meeting of the
shareholders may be called at any time by any of the following: the board of
directors, the chief executive officer,
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president, chief financial officer, secretary, chairman of the board, or one or
more shareholders holding shares that in the aggregate are entitled to cast no
less than 10 percent of the votes at that meeting. For special meetings called
by anyone other than the board of directors, the person or persons calling the
meeting shall make a request in writing to the chairman of the board, the chief
executive officer, president vice president, or secretary, specifying a time and
date for the proposed meeting (which is not less than 35 nor more than 60 days
after receipt of the request) and the general nature of the business to be
transacted. Within 20 days after receipt, the officer receiving the request
shall cause notice to be given to the shareholders entitled to vote at the
meeting. The notice shall state that a meeting will be held at the time
requested by the person(s) calling the meeting, and shall state the general
nature of the business proposed to be transacted. If notice is not given within
20 days after receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing in this paragraph shall limit, fix, or
affect the time or notice requirements for shareholder meetings called by the
board of directors.
Section 4. NOTICE OF MEETINGS; TIME AND CONTENTS. Notice of meetings
of shareholders shall be sent or otherwise given not less than 10 nor more than
60 days before the meeting date to the shareholders entitled to vote thereat.
The notice shall specify the place, date, and hour of the meeting. It shall also
state (a) for special meetings, the general nature of the proposed business, or
(b) for annual meetings, those matters which the board of directors at the time
of giving the notice intends to present for action by the shareholders. If
directors are to be elected, the notice shall include the names of all nominees
and persons whom the board intends to present for election, as of the date of
the notice. The notice shall also state the general nature of any proposed
action at the meeting to approve:
(a) A transaction in which a director has a financial interest, within
the meaning of Section 310 of the California Corporations Code;
(b) An amendment of the Articles of Incorporation under Section 902 of
that Code;
(c) A reorganization under Section 1201 of that Code;
(d) A voluntary dissolution of the corporation under Section 1900 of
that code; or
(e) A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
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The manner of giving notice and the determination of shareholders
entitled to receive notice shall be in accordance with these bylaws.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting shall be given either (a) personally, or (b) by
first-class mail or by telegraphic or other written communication, charges
prepaid, addressed to the shareholder at the address appearing on the
corporation's books or supplied by the shareholder for purposes of notice. If
the corporation has no such address for a shareholder, notice shall be either
(a) sent by first-class mail addressed to the shareholder at the corporation's
principal executive office, or (b) published at least once in a newspaper of
general circulation in the county where the corporation's principal executive
office is located. Notice is deemed to have been given at the time it was
delivered personally, deposited in the mail, or sent by other means of written
communication.
If any notice or report mailed to a shareholder at the shareholder's
address (as specified in the preceding paragraph) is returned marked "unable to
deliver" at that address, subsequent notices or reports shall be deemed to have
been duly given without further mailing if the corporation holds the document
available for the shareholder on written demand at its principal executive
office for one year from the date on which the notice or report was sent to the
other shareholders.
An affidavit, certificate, or declaration of mailing (or other
authorized means of delivery) of any notice of shareholders' meeting, report, or
other document sent to shareholders shall be executed by the corporate
secretary, assistant secretary, or transfer agent, and filed in the
corporation's minute book.
Section 6. ADJOURNED MEETINGS; NOTICE. Shareholders' meetings (either
annual or special) may be adjourned from time to time by a vote of the majority
of the shareholders represented at that meeting in person or by proxy, whether
or not a quorum is present; however, in the absence of a quorum, no other
business may be transacted, except as specifically authorized in these bylaws.
If a meeting is adjourned to another time or place, new notice is not
required if the new time and place were announced at the original meeting,
unless (a) the board sets a new record date for this purpose, or (b) the
adjournment is for more than 45 days from the original meeting date, in which
case the board must set a new record date. If a new record date is set, new
notice shall be given to the shareholders of record as of that date, in the same
manner as other notices of meetings. At an adjourned meeting, the corporation
may transact any business that would be proper at the original meeting.
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Section 7. WAIVER OF NOTICE OR CONSENT BY ABSENTEES. The transactions
of any shareholders' meeting, either annual or special, however called and
noticed and wherever held, shall be as valid as though they were had at a
meeting duly held after regular call and notice, if a quorum is present either
in person or by proxy, and if each person entitled to vote but not present at
the meeting signs a written waiver of notice, a consent to holding the meeting,
or an approval of the minutes. Shareholders' signatures may be obtained either
before or after the meeting. The waiver of notice or consent need not specify
either the intended business or the purpose of the meeting, except that if
action is taken or proposed to be taken regarding any of the matters specified
in Section 601(f) of the California Corporations Code (and listed above in the
paragraph on contents of notices of shareholder meetings), the general nature of
the action or proposed action must be stated in the waiver of notice or consent.
All written waivers, consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Notice is also waived by a shareholder's attendance at the meeting,
unless the shareholder at the beginning of the meeting objects to the
transaction of any business on the ground that the meeting was not lawfully
called or convened. Attendance and failure to object to the validity of the
meeting, however, does not constitute a waiver of any right to object
expressly, at a meeting, to consideration of matters required by law to be
included in the notice of the meeting which were not so included.
Section 8. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
that could be taken at an annual or special meeting of shareholders, except for
the election of directors (see following paragraph), may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding shares having at least
the minimum numbers of votes necessary to authorize or take that action at a
meeting at which all shares entitled to vote on that action were present and
voting.
Directors may be elected without a meeting only by the unanimous
written consent of all shares entitled to vote for the election of directors,
except that vacancies the board is entitled to fill (vacancies other than those
caused by removal of a director) may be filled by the written consent of a
majority of the outstanding shares entitled to vote.
All written consents shall be filed with the secretary of the
corporation and maintained in the corporate records. Anyone who has given a
written consent may revoke it by a writing received by the secretary of the
corporation before written consents of the number of shares required to
authorize the proposed action have been filed with the secretary.
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Unless the consents of all shareholders entitled to vote have been
solicited in writing, the secretary shall give prompt notice of any corporate
action approved by the shareholders without a meeting by less than unanimous
consent, to those shareholders entitled to vote who have not consented in
writing. As to approvals required by California Corporations Code Section 310
(transactions in which a director has a financial interest), Section 317
(indemnification of corporate agents), Section 1201 (corporate reorganization),
or Section 2007 (certain distributions on dissolution), notice of the approval
shall be given at least ten days before the consummation of any action
authorized by the approval. Notice shall be given in the manner specified in
these bylaws for notice of shareholders' meetings.
Section 9. RECORD DATE FOR SHAREHOLDER NOTICE AND VOTING.
(a) For purposes of determining the shareholders entitled to receive
notice of and vote at a shareholders' meeting or give written consent to
corporate action without a meeting, the board may fix in advance a record date
that is not more than 60 days nor less than 10 days before the date of any such
meeting, or not more than 60 days before any such action without a meeting.
(b) If no record date has been fixed:
(i) The record date for determining shareholders entitled to
receive notice of and vote at a shareholders' meeting shall be the business day
next preceding the day on which notice is given, or if notice is waived as
provided in these bylaws, the business day next preceding the day on which the
meeting is held;
(ii) The record date for determining shareholders entitled to
give written consent to corporate action without a meeting shall be the day on
which the action to be approved was taken by the board, or, if the board has not
yet acted, the day on which the first written consent is given; and
(iii) The record date for any other purpose shall be as set forth
in the section of these bylaws regarding record date for purposes other than
notice and voting.
(c) A determination of shareholders of record entitled to receive
notice of and vote at a shareholders' meeting shall apply to any adjournment of
the meeting unless the board fixes a new record date for the adjourned meeting.
However, the board shall fix a new record date if the adjournment is to a date
more than 45 days after the date set for the original meeting.
(d) Except as otherwise required by law, only shareholders of record
on the corporation's books at the close of business on the record date shall be
entitled to any of the notice
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and voting rights listed in subsection (a) of this section, notwithstanding any
transfer of shares on the corporation's books after the record date.
Section 10. QUORUM. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting of shareholders
shall constitute a quorum for the transaction of business. The shareholders
present at a duly called or held meeting at which a quorum was initially present
may continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum; however, any action taken
(other than adjournment) must be approved by at least a majority of the shares
requires to constitute a quorum.
Section 11. VOTING. The corporation shall determine the shareholders
entitled to vote at any shareholders' meeting in accordance with bylaw
provisions on the record date, subject to Sections 702 through 704 of the
California Corporations Code (concerning the voting of shares held by a
fiduciary, a corporation, or joint owners). Except as otherwise provided by law
or as otherwise provided in the Articles of Incorporation or these bylaws, each
outstanding share shall be entitled to one vote on each matter submitted to a
vote of the shareholders.
The shareholders may vote by voice vote or by ballot, except that if
any shareholder so demands before the voting begins, any election for directors
must be by ballot. On any matter other than the election of directors, a
shareholder may vote part of his or her shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal. If a
shareholder does not specify the number of shares being voted, it will be
conclusively presumed that the shareholder's vote covers all shares which that
shareholder is entitled to vote.
If a quorum is present (or if a quorum had been present earlier at the
meeting but some shareholders have withdrawn), the affirmative vote of a
majority of the shares represented and voting, provided such affirmative vote
also constitutes a majority of the number of shares required for a quorum, shall
be the act of the shareholders unless the vote of a greater number or voting by
classes is required by statute or by the Articles of Incorporation.
Section 12. CUMULATIVE VOTING. Cumulative voting for the election of
directors is permitted if one or more shareholders present at the meeting give
notice, before the voting begins, of their intention to cumulate votes (i.e.,
cast for any candidate a number of votes greater than the number of votes which
that shareholder would normally be entitled to cast). If any shareholder has
given such notice, and if the candidates' names have been placed in nomination,
then all shareholders entitled to vote may cumulate their votes, giving any
nominated candidate a
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number of votes equal to the number of directors to be elected multiplied by the
number of votes to which that shareholder's shares are normally entitled, or
distributing the cumulative number of votes among any or all of the candidates.
The elected directors shall be those candidates (up to the number of
directorships open for election) receiving the most votes.
Section 13. PROXIES. Every person entitled to vote for directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney in fact.
A validly executed proxy that does not state that it is irrevocable
shall continue in full force and effect unless (a) it is revoked by the person
who executed the proxy, either by a writing delivered to the corporation before
the proxy has been voted, or by attendance at the meeting; or (b) the
corporation receives written notice of the shareholder's death or incapacity
before the vote pursuant to that proxy has been counted; provided, however, that
no proxy shall be valid after the expiration of 11 months from the date of the
proxy unless the proxy itself provides otherwise.
Proxies stating on their face that they are irrevocable shall be
governed by Sections 705(e) and 705(f) of the California Corporations Code.
Section 14. VOTING TRUSTS. If any shareholders file a voting trust
agreement with the corporation, the corporation shall take notice of its terms
and trustee limitations.
Section 15. ELECTION INSPECTORS. Before any shareholders' meeting, the
board of directors may appoint any persons other than nominees for office to act
as election inspectors. If no election inspectors have been so appointed, the
chairman of the meeting may, and on the request of any shareholder or
shareholder's proxy shall, appoint election inspectors at the meeting. The
number of inspectors shall be either 1 or 3. If inspectors are appointed at the
meeting on the request of one or more shareholders or their proxies, the holders
of a majority of shares or their proxies present at the meeting shall determine
whether 1 or 3 inspectors are to be appointed. If any inspector fails to appear
or fails or refuses to act, the chairman of the meeting may, and on the request
of any shareholder or shareholder's proxy shall, appoint a person to fill that
vacancy. These inspectors shall (a) determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and
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effect of proxies; (b) receive votes, ballots, or consents; (c) hear and
determine all challenges and questions in any way arising in connection with the
right to vote; (d) count and tabulate all votes or consents; (e) determine when
the polls shall close; (f) determine the result; and (g) do any other acts that
may be proper to conduct the election or vote with fairness to all shareholders.
ARTICLE III: DIRECTORS
Section 1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the Articles of Incorporation and these
bylaws relating to actions requiring approval by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the Articles of Incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service;
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; qualify the
corporation to do business in any other state, territory, dependency, or
country; conduct business within or outside the State of California; and
designate any place within or outside the State of California for the holding of
any shareholders' meeting;
(c) Adopt, make and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates;
(d) Authorize the issuance of shares of corporate stock on any lawful
terms, in consideration of money paid, labor done, services actually rendered,
debts or securities canceled, or tangible or intangible property actually
received; and
(e) Borrow money and incur indebtedness on behalf of the corporation,
and cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, and other evidences of debt and securities.
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Section 2. NUMBER OF DIRECTORS. The authorized number of directors
shall be as set forth below. This number can be changed by an amendment to the
Articles of Incorporation or an amendment to this bylaw adopted by the vote or
written consent of a majority of the outstanding shares entitled to vote. If the
number of directors is indicated as being not less than a stated minimum and not
more than a stated maximum (which is no case shall be greater than two times the
stated minimum minus one), then the exact number of directors shall be fixed,
within the limits specified, by approval of the board of directors or
shareholders. However, if the fixed number or minimum number of directors is
five or more, an amendment that would reduce the fixed number or minimum number
of directors to a number less than five cannot be adopted if the votes cast
against its adoption at a meeting or the shares not consenting to an action by
written consent are equal to more than one sixth (16 2/3 percent) of the
outstanding shares entitled to vote.
DIRECTORS: THREE
Section 3. ELECTION AND TERM OF DIRECTORS. Directors shall be elected
at each annual shareholders' meeting, to hold office until the next annual
meeting. Election of directors by written consent without a meeting requires the
unanimous written consent of the outstanding shares entitled to vote. Each
director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified.
No reduction of the authorized number of directors shall have the
effect of removing any director before his or her term of office expires.
Section 4. VACANCIES. A vacancy in the board of directors shall be
deemed to exist (a) if a director dies, resigns, or is removed by the
shareholders or an appropriate court, as provided in Section 303 or Section 304
of the California Corporations Code; (b) if the board of directors declares
vacant the office of a director who has been convicted of a felony or declared
of unsound mind by an order of court; (c) if the authorized number of directors
is increased; or (d) if at a shareholders' meeting the shareholders fail to
elect the full authorized number of directors. Vacancies (except for those
caused by a director's removal) may be filled by a majority of the remaining
directors, whether or not they constitute a quorum, or by a sole remaining
director.
Vacancies on the board caused by the removal of a director (except for
vacancies created when the board declares the office of a director vacant as
provided in clause (b) of the first paragraph of this section) may be filled
only by the shareholders,
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either by majority vote of the shares represented and voting at a meeting at
which a quorum is present, or by the unanimous written consent of all shares
entitled to vote.
Any director may resign effective on giving written notice to the
chairman of the board, the chief executive officer, president the secretary, or
the board of directors, unless the notice specifies a later effective date. If
the resignation is effective at a future time, the board of directors may elect
a successor to take office when the resignation becomes effective.
The shareholders may elect a director at any time to fill a vacancy
not filled by the board of directors.
The term of office of a director elected to fill a vacancy shall run
until the next annual shareholders' meeting, and the director shall hold office
until a successor is elected and qualified.
Section 5. PLACE OF MEETINGS. Regular meetings of the board of
directors may be held at any place within or outside the State of California as
designated from time to time by the board. In the absence of a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board may be held at any place within or
outside the State of California designated in the notice of the meeting, or if
the notice does not state a place, at the principal executive office of the
corporation. Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, provided that all directors
participating can hear one another, and all such directors shall be deemed to be
present at the meeting.
Section 6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place or at any other place designated by the board, to elect officers
and transact other necessary business as desired. Notice of this meeting shall
not be required unless some place other than the place of the annual
shareholders' meeting has been designated.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board
of directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board of
directors may be called for any purpose or purposes at any time by the chairman
of the board, the chief executive officer, president any vice president, the
secretary, or any two directors.
Special meetings shall be held on 4 days' notice by mail or 48 hours'
notice delivered personally or by telephone or
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telegraph. Oral notice given personally or by telephone may be transmitted
either to the director or to a person at the director's office who can
reasonably be expected to communicate it promptly to the director. Written
notice, if used, shall be addressed to each director at his or her address shown
on the corporate records. The notice need not specify the purpose of the
meeting, nor need it specify the place if the meeting is to be held at the
principal executive office of the corporation.
Section 9. WAIVER OF NOTICE. Notice of a meeting, if otherwise
required, need not be given to any director who (a) either before or after the
meeting signs a waiver of notice or a consent to holding the meeting without
being given notice, (b) signs an approval of the minutes of the meeting, or (c)
attends the meeting without protesting the lack of notice before or at the
beginning of the meeting. Waivers of notice or consents need not specify the
purpose of the meeting. All such waivers, consents, and approvals of the
minutes, if written, shall be filed with the corporate records or made a part of
the minutes of the meeting.
Section 10. QUORUM. A majority of the authorized number of directors
shall constitute a quorum for the transaction of business, except for
adjournment.
Except as otherwise required by California Corporations Code Section
310 (approval of contracts or transactions in which a director has a material
financial interest), Section 311 (appointment of committees), and Section 317
(e) (indemnification of directors), every act done or decision made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be deemed the act of the board of directors, unless a different
requirement is imposed by the Articles of Incorporation.
A meeting at which a quorum was initially present may continue to
transact business despite the withdrawal of directors, if the action taken is
approved by at least a majority of the quorum required for that meeting.
Section 11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not a
quorum is present, a majority of the directors present may adjourn any meeting
to another time and place.
Section 12. NOTICE OF ADJOURNED MEETING. Notice of the time and place
of resuming an adjourned meeting need not be given if the adjournment is for 24
hours or less. If the adjournment is for more than 24 hours, notice of the new
time and place shall be given, before the time set for resuming the meeting, to
any directors who were not present at the time of adjournment, but need not be
given to directors who were present at the time of adjournment.
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Section 13. ACTION WITHOUT A MEETING BY WRITTEN CONSENT. Any action
required or permitted to be taken by the board of directors may be taken without
a meeting, if all members of the board individually or collectively consent in
writing to that action. Any action by written consent shall have the same effect
as a unanimous vote of the board of directors. All such written consents shall
be filed with the minutes of the proceedings of the board of directors.
Section 14. COMPENSATION OF DIRECTORS. Directors and members of
committees of the board may be compensated for their services, and shall be
reimbursed for expenses, as fixed or determined by resolution of the board of
directors. This section shall not preclude any director from serving the
corporation as an officer, agent, employee, or in any other capacity, and
receiving compensation for those services.
Section 15. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or
part of the compensation, including expenses, paid by the corporation to a
director, officer, employee, or agent is finally determined not to be allowable
to the corporation as a federal or state income tax deduction, the director,
officer, employee, or agent to whom the payment was made shall repay to the
corporation the amount disallowed. The board of directors shall enforce
repayment of each such amount disallowed by the taxing authorities.
ARTICLE IV: COMMITTEES
Section 1. EXECUTIVE AND OTHER COMMITTEES OF THE BOARD. The board of
directors, by resolution adopted by a majority of the authorized number of
directors, may create one or more committees with the authority of the board
("board committees" or "committees of the board"), including an executive
committee. Each board committee shall consist of two or more directors, and may
have one or more alternative members, also directors. Appointment of members and
alternate members requires the affirmative vote of a majority of the authorized
number of directors. Committees of the board, to the extent provided in the
board resolution establishing the committee, may be granted any or all of the
powers and authority of the board except for the following:
(a) Approving any action for which the California Corporations Code
also requires the approval of the shareholders or of the outstanding shares;
(b) Filling vacancies on the board of directors or any committee of
the board;
(c) Fixing directors' compensation for serving on the board or a
committee of the board;
(d) Adopting, amending, or repealing bylaws;
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(e) Amending or repealing any resolution of the board of directors
which by its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in a
periodic amount or within a price range determined by the board of directors; or
(g) Appointing other committees of the board or their members.
Section 2. MEETINGS AND ACTIONS OF BOARD COMMITTEES. Meetings and
actions of committees of the board shall be governed by the bylaw provisions
applicable to meetings and actions of the board of directors as to place of
meetings, regular meetings, special meetings, waiver of notice, quorum,
adjournment, notice of adjournment, and action by written consent without a
meeting, with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the board of directors and its
members, except that (a) the time of regular committee meetings may be
determined either by resolution of the board of directors or by resolution of
the committee; (b) special committee meetings may also be called by resolution
of the board of directors; (c) notice of special committee meetings shall also
be given to all alternate members; and (d) alternate members shall have the
right to attend all meetings of the committee. The board may adopt rules, not
inconsistent with the bylaws, for the governance of committees of the board.
Section 3. NON-BOARD COMMITTEES. One or more committees without the
power and authority of the board ("non-board" committees) may be created by
board resolution, for investigative and other appropriate purposes. Membership
on non-board committees is not limited to directors. To bind the corporation,
actions of non-board committees must be ratified by the board of directors.
ARTICLE V: OFFICERS
Section 1. OFFICERS; ELECTION. The corporation shall have a chief
executive officer, a secretary, and a chief financial officer. There may also be
other officers as specified in the bylaws or designated by the board. Any
number of offices may be held by the same person. The officers of the
corporation (except for subordinate officers appointed in accordance with the
provisions below) shall be elected annually by the board of directors. All
officers shall serve at the pleasure of the board.
Section 2. CHAIRMAN OF THE BOARD. The chairman of the board, if such
an officer be elected, shall, if present, preside at meetings of the board of
directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the board of directors or prescribed by the
bylaws. If there is
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no president, the chairman of the board shall in addition be the chief executive
officer of the corporation and shall have the powers and duties prescribed in
Section 3 of this Article V.
Section 3. PRESIDENT Subject to such supervisory power, if any, as may
be given by the board of directors to the chairman of the board, if there be
such an officer, the president shall be the chief executive officer of the
corporation and shall, subject to the control of the board of directors, have
general supervision, direction, and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there be no such officer, at all
meetings of the board of directors. He shall have the general powers and duties
of management usually vested in the office of the chief executive officer of a
corporation, and shall have such other powers and duties as may be prescribed by
the board of directors or the bylaws.
Section 4. SECRETARY. The secretary shall have the following duties:
(a) MINUTES. The secretary shall be present at and take the minutes of
all meetings of the shareholders, the board of directors, and committees of the
board. If the secretary is unable to be present, the secretary or the presiding
officer of the meeting shall designate another person to take the minutes of the
meeting. The secretary shall keep, or cause to be kept, at the principal
executive office or such other place as designated by the board of directors, a
book of minutes of all meetings and actions of the shareholders, the board of
directors, and committees of the board. The minutes of each meeting shall state
the following: The time and place of the meeting; whether it was regular or
special; if special, how it was called or authorized; the notice given or
waivers or consents obtained; the names of directors present at board or
committee meetings; the number of shares present or represented at shareholders'
meetings, and an accurate account of the proceedings.
(b) RECORD OF SHAREHOLDERS. The secretary shall keep or cause to be
kept, at the principal executive office or at the office of the transfer agent
or registrar, a record or duplicate record of shareholders. This record shall
show the names of all shareholders and their addresses, the number and classes
of shares held by each, the number and date of share certificates issued to each
shareholder, and the number and date of cancellation of any certificates
surrendered for cancellation.
(c) NOTICE OF MEETINGS. The secretary shall give notice, or cause
notice to be given, of all shareholders' meetings, board meetings, and committee
meetings for which notice is required by statute or by the bylaws. If the
secretary or other person authorized by the secretary to give notice fails to
act, notice of
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any meeting may be given by any other officer of the corporation. The secretary
shall maintain records of the mailing or other delivery of notices and documents
to shareholders or directors, as prescribed by the bylaws or by the board of
directors.
(d) OTHER DUTIES. The secretary shall keep the seal of the
corporation, if any, in safe custody. The secretary shall have such other powers
and perform such other duties as prescribed by the bylaws or by the board of
directors.
Section 5. CHIEF FINANCIAL OFFICER. The chief financial officer, who
may also be referred to as the treasurer, shall keep or cause to be kept
adequate and correct books and records of accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares. The books of account shall at all reasonable times be open to
inspection by any director.
The chief financial officer shall (1) deposit corporate funds and
other valuables in the corporation's name and to its credit with depositories
designated by the board; (2) disburse corporate funds as authorized by the
board; (3) whenever requested by the board or the chief executive officer,
render a statement of the corporation's financial condition and an account of
all transactions he or she has conducted as chief financial officer; and (4)
exercise such other powers and perform such other duties as prescribed by the
bylaws or by the board of directors.
The chief financial officer shall be deemed the treasurer for any
purpose requiring action by the corporation's treasurer.
Section 6. VICE PRESIDENTS. There may be one or more vice presidents,
as determined by the board. In the absence or disability of the chief executive
officer, the chief executive officer's duties and responsibilities shall be
carried out by the highest-ranking available vice president, or if there are two
or more unranked vice presidents, by a vice president designated by the board of
directors. When so acting, a vice president shall have all the powers of and be
subject to all the restrictions on the president. Vice presidents shall have
such other powers and perform such other duties as prescribed by the bylaws or
assigned from time to time by the board of directors or the chief executive
officer.
Section 7. SUBORDINATE OFFICERS. The board of directors may appoint,
and may empower the chief executive officer to appoint, subordinate officers as
required by the corporation's business, whose duties shall be as provided in the
bylaws or as determined from time to time by the board of directors or the chief
executive officer.
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Section 8. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by
the board of directors may be removed by the board at any time, with or without
cause or notice. Subordinate officers appointed by persons other than the board
may be removed at any time, with or without cause or notice, by the board or by
the person by whom appointed. A removed officer shall have no claim against the
corporation or individual officers or board members arising from such removal
(other than any rights he or she may have to monetary compensation or damages
under an employment contract).
Any officer may resign at any time by giving the corporation written
notice. Unless otherwise specified in the notice, resignations shall take effect
on the date the notice is received, and acceptance of the resignation is not
necessary to make it effective. An officer's resignation or its acceptance by
the corporation shall not prejudice any rights the corporation may have to
monetary damages under an employment contract.
Section 9. VACANCIES IN OFFICES. Vacancies in offices resulting from
an officer's death, resignation, removal, disqualification, or any other cause
shall be filled by the board or by the person, if any, authorized by the bylaws
or the board to make an appointment to that office.
Section 10. COMPENSATION. Salaries of officers and other shareholders
employed by the corporation shall be fixed from time to time by the board of
directors or established under employment agreements approved by the board of
directors. No officer shall be prevented from receiving this salary because he
or she is also a director of the corporation.
Section 11. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or
part of the compensation, including expenses, paid by the corporation to a
director, officer, employee, or agent is finally determined not to be allowable
to the corporation as a federal or state income tax deduction, the director,
officer, employee, or agent to whom the payment was made shall repay to the
corporation the amount disallowed. The board of directors shall enforce
repayment of each such amount disallowed by the taxing authorities.
ARTICLE VI: INDEMNIFICATION OF AGENTS
Section 1. INDEMNIFICATION OF AGENT.
(a) DEFINITIONS. For the purposes of this section, "agent" means any
person who is or was a director, officer, employee, or other agent of this
corporation or its predecessor, and any person who is or was serving as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise at the request of this corporation or its
predecessor; "proceeding" means any threatened,
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pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative; and "expenses" include but are not limited to
attorneys' fees and any expenses of establishing a right to indemnification
under this section.
(b) DIRECTOR LIABILITY. The liability of the directors of the
corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
(c) LAWSUITS OTHER THAN BY THE CORPORATION. This corporation shall
have the power to indemnify any person who was or is a party, or is threatened
to be made a party to any proceeding (other than an action by or in the right of
this corporation to procure a judgment in its favor) by reason of the fact that
such person is or was an agent of this corporation, against expenses, judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with such proceeding, if the agent acted in good faith and in a
manner the agent reasonably believed to be in the best interests of this
corporation. If there are criminal charges, the agent must have had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the agent did not act in good faith and in a manner that the
agent reasonably believed to be in the best interests of this corporation, or
that the agent had reasonable cause to believe that his or her conduct was
unlawful.
(d) LAWSUITS BY OR ON BEHALF OF THE CORPORATION. This corporation
shall have the power to indemnify any person who was, is, or is threatened to be
made a party by reason of the fact that that person is or was an agent of this
corporation, to any threatened, pending, or completed legal action by or in the
right of this corporation to procure a judgment in its favor, against expenses
actually and reasonably incurred by the agent in connection with the defense or
settlement of that action, if the agent acted in good faith, in a manner the
agent believed to be in the best interests of this corporation and its
shareholders. However, the corporation shall not indemnify:
(1) Any amount paid with respect to a claim, issue, or matter for
which the agent has been adjudged liable to this corporation in the performance
of his or her duty to the corporation and its shareholders except for any
expenses (exclusive of judgment or settlement amount) specifically authorized
by the court in which the proceeding is or was pending in accordance with
statutory requirements;
(2) Any amount paid in settling or otherwise disposing of a
pending lawsuit without court approval;
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(3) Any expenses incurred in defending a pending action that is
settled or otherwise disposed of without court approval.
(e) SUCCESSFUL DEFENSE BY AGENT. If the agent is successful on the
merits, the corporation shall indemnify the agent for expenses actually and
reasonably incurred.
(f) APPROVAL; WHEN REQUIRED. Unless indemnification is mandatory
because of the agent's successful defense on the merits, indemnification can be
made only as to a specific case upon a determination that indemnification is
proper in the circumstances because the agent has met the applicable standard of
conduct, and must be authorized by one of the following: (1) a majority vote of
the board with a quorum consisting of directors who are not parties to the
proceeding; (2) independent legal counsel in a written opinion if a quorum of
directors who are not parties to such a proceeding is not obtainable; (3) the
affirmative vote of a majority of the outstanding shares entitled to vote and
present or represented at a duly held meeting at which a quorum is present or by
the written consent of a majority of the outstanding shares entitled to vote
(without counting shares owned by the person seeking indemnification as either
outstanding or entitled to vote); or (4) the court in which the proceeding is or
was pending, upon application by the corporation, the agent, the agent's
attorney, or other person rendering services in connection with the defense,
regardless of whether the corporation opposes the application.
(g) ADVANCING EXPENSES. Expenses incurred or to be incurred in
defending any proceeding may be advanced by this corporation before the final
disposition of the proceeding, on receipt of an undertaking by or on behalf of
the agent to repay the amount of the advance, if it shall be determined
ultimately that the agent is not entitled to be indemnified as authorized in
this section.
(h) ADDITIONAL INDEMNIFICATION RIGHTS. This corporation shall, in
addition, be authorized to provide indemnification of agents for breach of duty
to the corporation and its shareholders through agreements with such agents in
excess of the indemnification otherwise permitted by Section 317 of the
California General Corporation Law, subject to the limits on such excess
indemnification as set forth in Section 204 of the California General
Corporation Law. In the absence of any agreement expressly providing such excess
indemnification for an agent of the corporation, the corporation shall, to the
fullest extent permitted by Section 317 of the California General Corporation
Law, indemnify each such agent against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that any such person is or was an agent
of the corporation. Nothing contained in this section shall affect any
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right to indemnification to which persons other than directors and officers of
this corporation or any subsidiary may be entitled by contract or otherwise.
(i) LIMITATIONS. No indemnification or advance shall be made under
this section (except where indemnification is required because of the agent's
successful defense on the merits) if it would be inconsistent with (i) a
provision of the Articles of Incorporation or bylaws, a resolution of the
directors or shareholders, or an agreement in effect at the time the alleged
cause of action accrued which prohibits or limits indemnification, or (ii) a
condition expressly imposed by a court in approving a settlement.
(j) INSURANCE. If the board of directors so decides, the corporation
may purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in that capacity
or arising out of the agent's status as such, whether or not the corporation
would have the power to indemnify the agent against that liability.
(k) FIDUCIARIES OF EMPLOYEE BENEFIT PLAN. The requirements and
limitations imposed by this section do not apply to any proceeding against any
trustee, investment manager, or other fiduciary of an employee benefit plan in
that person's capacity as such, even though that person may also be an agent of
the corporation. The corporation shall have the power to indemnify, and to
purchase and maintain insurance on behalf of, any such trustee, investment
manager, or other fiduciary of any benefit plan for any of the corporation's
directors, officers, or employees or those of any of its subsidiary or
affiliated corporations. Furthermore, this section shall not limit any right to
indemnification that such a trustee, investment manager, or other fiduciary may
have as a contract right enforceable by law.
ARTICLE VII: RECORDS AND REPORTS
Section 1. SHAREHOLDER LISTS; INSPECTION BY SHAREHOLDERS. The
corporation shall keep at its principal executive office or at the office of its
transfer agent or registrar, as the board shall determine, a record of the names
and addresses of all shareholders and the number and class of shares held by
each.
A shareholder or group of shareholders holding 5 percent or more of
the outstanding voting shares of the corporation may (a) inspect and copy the
record of shareholders' names and addresses and shareholdings during usual
business hours, on 5 days' prior written demand on the corporation; and/or (b)
obtain from the corporation's transfer agent, on written demand and tender of
the transfer agent's usual charges for this service, a list of the names and
addresses of shareholders entitled to vote for the
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election of directors and their shareholdings, as of the most recent date for
which a record has been compiled or as of a specified date which is later than
the date of demand. This list shall be made available within 5 days after demand
or within 5 days after the specified later date as of which the list is to be
compiled.
The record of shareholders shall also be open to inspection during
usual business hours, on the written demand of any shareholder or holder of a
voting trust certificate, for a purpose reasonably related to the holder's
interest in the corporation. Any inspection or copying under this section may be
made in person or by the holder's agent or attorney.
Section 2. MAINTENANCE OF BYLAWS. The corporation shall keep at its
principal executive office, or if its principal executive office is not in
California, at its principal business office in this state, the original or a
copy of the bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office of the corporation is outside of California and the corporation
has no principal business office in this state, the secretary shall, upon a
shareholder's written request, furnish to that shareholder a copy of the bylaws
as amended to date.
Section 3. MINUTES AND ACCOUNTING RECORDS. The minutes of proceedings
of the shareholders, board of directors, and committees of the board, and the
accounting books and records shall be kept at the principal executive office of
the corporation, or at such other place or places as designated by the board of
directors. The minutes shall be kept in written form, and the accounting books
and records shall be kept either in written form or in a form capable of being
converted into written form. The minutes and accounting books and records shall
be open to inspection during usual business hours on the written demand of any
shareholder or holder of a voting trust certificate, for a purpose reasonably
related to the holder's interests in the corporation. The inspection may be made
in person or by an agent or attorney, and includes the right to copy and make
extracts. These rights of inspection shall extend to the records of each
subsidiary of the corporation.
Section 4. INSPECTION BY DIRECTORS. Every director shall have the
absolute right at any reasonable time to inspect all books, records, and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. This inspection may be made by the director in
person or by an agent or attorney, and the right of inspection includes the
right to copy and make extracts of documents.
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Section 5. ANNUAL REPORT TO SHAREHOLDERS. Inasmuch as, and for as long
as, there are less than 100 shareholders, the requirement of an annual report to
shareholders referred to in Section 1501 of the California Corporations Code is
expressly waived. However, nothing in this provision shall be interpreted as
prohibiting the board of directors from issuing annual or other periodic reports
to the shareholders, as the board considers appropriate.
SECTION 6. FINANCIAL STATEMENTS. The corporation shall keep a copy of
any annual financial statement, quarterly or other periodic income statement,
and accompanying balance sheets on file in its principal executive office for 12
months; these documents shall be exhibited (or copies provided) to shareholders
at all reasonable times. If no annual report for the last fiscal year has been
sent to shareholders, on written request of any shareholder made more than 120
days after the close of the fiscal year, the corporation shall deliver or mail
to the shareholder, within 30 days after receipt of the request, a balance sheet
as of the end of that fiscal year and an income statement and statement of
changes in financial position for that fiscal year.
A shareholder or shareholders holding 5 percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request) of
the current fiscal year, and a balance sheet as of the end of that period. If
such documents are not already prepared, the chief financial officer shall cause
them to be prepared and shall deliver them personally or by mail to the
requesting shareholders within 30 days after the receipt of the request. A
balance sheet, income statement, and statement of changes in financial position
for the last fiscal year shall also be included, unless the corporation has sent
the shareholders an annual report for the last fiscal year.
Quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of independent accountants
engaged by the corporation, or a certificate by the authorized corporate officer
stating that the financial statements were prepared without audit from the
corporation's books and records.
Section 7. ANNUAL INFORMATION STATEMENT.
(a) Every year, during the calendar month in which the original
Articles of Incorporation were filed with the California Secretary of State or
during the preceding five calendar months, the corporation shall file a
statement with the Secretary of State on the prescribed form, setting forth the
authorized number of directors; the names and complete business or residence
addresses of the chief executive officer, the secretary, and the chief
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financial officer; the street address of the corporation's principal executive
office or principal business office in this state; a statement of the general
type of business constituting the principal business activity of the
corporation, and a designation of the corporation's agent for service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
(b) Notwithstanding the provisions of paragraph (a) of this section,
if there has been no change in the information contained in the corporation's
last annual statement on file in the Secretary of State's office, the
corporation may, in lieu of filing the annual statement, advise the Secretary of
State, on the appropriate form, that no changes in the required information have
occurred during the applicable period.
ARTICLE VIII: GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR DIVIDENDS AND DISTRIBUTIONS. For purposes
of determining the shareholders entitled to receive payment of dividends or
other distributions or allotment of rights, or entitled to exercise any rights
in respect of any other lawful action (other than voting at and receiving notice
of shareholders' meetings and giving written consent of the shareholders without
a meeting), the board of directors may fix, in advance, a record date not more
than 60 nor less than 10 days before the date of the dividend payment,
distribution, allotment, or other action. If a record date is so fixed, only
shareholders of record at the close of business on that date shall be entitled
to receive the dividend, distribution, or allotment of rights, or to exercise
the other rights, as the case may be, notwithstanding any transfer of any shares
on the corporate books after the record date, except as otherwise provided by
statute.
If the board of directors does not so fix a record date in advance,
the record date for these purposes shall be at the close of business on the
later of (a) the day on which the board of directors adopts the applicable
resolution or (b) the 60th day before the date of the dividend payment,
distribution, allotment of rights, or other action.
Section 2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, or
other orders for payment of money, notes, and other evidences of indebtedness
issued in the name of or payable to the corporation shall be signed or endorsed
in the manner and by the persons authorized, from time to time, by the board of
directors.
Section 3. EXECUTING CONTRACTS AND INSTRUMENTS. The board of
directors, except as otherwise provided in these bylaws, may authorize any of
its officers or agents to enter into any contract or execute any instrument in
the name of and on behalf of
22
the corporation. This authority may be general or it may be confined to one or
more specific matters. No officer, agent, employee, or other person purporting
to act on behalf of the corporation shall have any power or authority to bind
the corporation in any way, pledge its credit, or render it liable for any
purpose in any amount, unless that person was acting with authority duly granted
by the board of directors as provided in these bylaws, or unless an unauthorized
act was later ratified by the corporation.
Section 4. SHARE CERTIFICATES. One or more certificates for shares of
the capital stock of the corporation shall be issued to each shareholder when
any of the shareholder's shares are fully paid.
All certificates shall certify the number of shares and the class or
series of shares represented by the certificate. All certificates shall be
signed in the name of the corporation by (a) one of the following: the chairman
or vice chairman of the board of directors, the chief executive officer,
president or any vice president; and (b) one of the following: the chief
financial officer, any assistant treasurer, the secretary, or any assistant
secretary. Any of the signatures on the certificate may be facsimile. If a party
who has signed share certificates ceases to be an officer or other agent before
the certificate is issued, the corporation may issue the certificate with the
same effect as if that person were an officer, transfer agent, or registrar at
the date of issue.
The share certificates shall state, by way of appropriate legend, any
restrictions on share ownership or transfer, and any other statements required
by applicable federal or state securities regulations.
Section 5. LOST CERTIFICATES. Except as provided in this section, no
new certificates for shares shall be issued to replace old certificates unless
the old certificates are surrendered to the corporation for cancellation at the
same time. If share certificates or certificates for any other security have
been lost, stolen, or destroyed, the board of directors may authorize the
issuance of replacement certificates on terms and conditions as the board may
require, which may include a requirement that the owner give the corporation a
bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it (including any expenses or liability) on
account of the alleged loss, theft, or destruction of the old certificate or the
issuance of the replacement certificate.
Section 6. SHARES OF OTHER CORPORATIONS: HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by the
chief executive officer or a person designated by the chief executive officer.
If neither of
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them is able to act, the shares may be voted by a person designated by the board
of directors. The authority to vote shares includes the authority to execute a
proxy in the corporation's name for purposes of voting the shares.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
Sections 100 through 195 of the California Corporations code shall govern the
construction of these bylaws. Without limiting the generality of this provision,
the singular number includes the plural, the plural number includes the
singular, and the term "person" includes a corporation and a natural person.
ARTICLE IX: AMENDMENTS
Section 1. AMENDMENT OF ARTICLES OF INCORPORATION. Unless otherwise
provided under California Corporations Code Sections 900 through 911, amendments
to the Articles of Incorporation may be adopted if approved by the board and
approved by a majority of the outstanding shares entitled to vote, either before
or after approval by the board. An amendment to the Articles of Incorporation
shall be effective as of the date that the appropriate certificate of amendment
is filed with the Secretary of State.
Section 2. AMENDMENT OF BYLAWS. Except as otherwise required by law or
by the Articles of Incorporation, these bylaws may be amended or repealed, and
new bylaws may be adopted, by the board of directors or by a majority of the
outstanding shares entitled to vote.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) I am the duly elected and acting Secretary of PACIFIC CUSTOM MATERIALS,
INC.
(2) The foregoing Bylaws, comprising twenty-four (24) pages, constitute the
Bylaws of that corporation as duly adopted by Written Consent taken as of
January 22, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this day of
------
January, 1996.
/s/ Alfred Schimd
------------------------
ALFRED SCHIMD
Secretary
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