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 Chief
Executive Officer, or it there be no Chief Executive Officer, 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 Chief Executive Officer, or there be no Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, any Senior
Vice 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.
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 proxy holder 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.
(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 proxy holders) 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 or
less than ten days prior to the date of the meeting or 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.
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.
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.
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.
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 or 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 Chief Executive Officer,
or if there be no Chief Executive Officer, 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.
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
Chief Executive Officer, or if there be no Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, any Senior
Vice 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.
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.
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.
Section
16. CHAIRMAN OF THE BOARD. The Board of Directors shall
appoint a director to serve as Chairman of the Board of this Corporation that
satisfies the independence requirements of the New York Stock
Exchange. The Chairman of the Board of this Corporation
shall have the duties set forth in Article II, Sections 2, 13, 14 and 15 and
Article III, Sections 4 and 7 and such other duties as may be from time to time
be assigned by the Board. The Board of Directors may also have, at
the discretion of the Board, a Vice Chairman of the Board. The Vice
Chairman of the Board, if there shall be such a position, shall have such duties
as may be from time to time assigned by the Board.
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 Chief Executive Officer who
shall have the powers and duties vested in the office of president under
California law, a Chief Operating Officer, one or more Executive Vice
Presidents, Senior Vice Presidents or 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 Chief Executive Officer, if there be no Chief Executive Officer, 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.
Section
6. PRESIDENT AND CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer or the President, if there be no Chief Executive Officer,
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. In the absence of the Chairman of the
Board, or if there be none, the Chief Executive Officer (or, if there shall be
no Chief Executive Officer, 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
7. VICE PRESIDENTS AND CHIEF OPERATING OFFICER. The Chief Operating
Officer, the Executive Vice Presidents and Senior Vice Presidents, 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 or, if there be no Chief Executive Officer, the
President. In the absence or disability of the Chief Executive
Officer, if other than the President, or the President, if
there
shall be no Chief Executive Officer, the Chief Operating Officer, if any, and
the Vice Presidents, in the following order, shall perform all the duties of the
Chief Executive Officer or President, as the case may be, and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer or President, as the case may be: the Chief
Operating Officer, if any, the Executive Vice Presidents, if any, in the order
of their rank as fixed by the Board, or if not ranked, the Executive Vice
President designated by the Board, the Senior Vice Presidents, if any, in the
order of their rank as fixed by the Board, or if not ranked, the Senior Vice
President designated by the Board 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 Chief Operating Officer, the Executive Vice President,
Senior Vice President or Vice President so designated 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
8. 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
9. 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.
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 Chief
Executive Officer, or if there be no Chief Executive Officer, 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.
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 Chief Executive Officer,
the President, the Chief Operating Officer or any Executive Vice President,
Senior Vice President or 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 FOR SHARES.
(a) Shares
of the capital stock of the corporation may be certificated or uncertificated,
as provided under the General Corporation Law of California. Each
shareholder, upon written request to the transfer agent or registrar of the
corporation, shall be entitled to have a certificate in the name of
the
corporation
by the Chief Executive Officer, or if there be no Chief Executive Officer, the
President, the Chief Operating Officer, an Executive Vice President, a Senior
Vice President or a Vice President and by the Chief Financial Officer, the
Treasurer or an Assistant Treasurer or the Secretary or 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. Shares issued prior to the date on which the shares have
become eligible for issuance in uncertificated form shall be certificated shares
until a certificate for such shares is surrendered to this
corporation.
(b) 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, or, for uncertificated shares, on
the initial transaction statement for such partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated.
(c) Subject
to any restrictions on transfer and unless otherwise provided by the Board of
Directors, shares of stock may be transferred only on the books of the
corporation, if such shares are certificated, and by the surrender to the
corporation or its transfer agent of the certificate therefore properly endorsed
or accompanied by a written assignment or power of attorney properly executed,
or upon proper instructions from the holder of uncertificated shares, in each
case, with such proof of the authenticity of signature as the corporation or its
transfer agent may reasonably require.
(d) Except
as provided in this Section or the General Corporation Law of California, no
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 share certificate or new certificate is alleged to have been
lost, stolen or destroyed, authorized 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.
(e) When
the articles of incorporation are amended in any way affecting the statements
contained in the certificates for outstanding shares, or it becomes desirable
for any reason, in the discretion of the Board, to cancel any outstanding
certificates for shares and issue new certificates therefor conforming to the
rights of the holder, the Board may order any holders of outstanding
certificates to surrender and exchange them for new certificates within a
reasonable period of time. When the articles of incorporation are
amended in any way affecting the statements contained in the initial transaction
statements or other written statements for outstanding uncertificated
securities, or it becomes desirable for any reason in the discretion of the
board, to amend, revise, or supersede any outstanding initial transaction
statements or written statements, the board may order the issuance and delivery
to holders of record of amended, revised, or superseding initial transaction
statements or written statements.
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.
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.
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.
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.
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.
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.
19