Exhibit 3.16(b)
BYLAWS
OF
KOLL INVESTMENT
MANAGEMENT, INC.
BYLAWS
OF
KOLL REALTY ADVISORS
INDEX
-----
Article Page
------- ----
I OFFICES 5
-------
Section 1. Principal Offices .................................................................. 5
Section 2. Other Offices ...................................................................... 5
II MEETINGS OF SHAREHOLDERS 5
------------------------
Section 1. Place Of Meetings .................................................................. 5
Section 2. Annual Meeting ..................................................................... 5
Section 3. Special Meetings ................................................................... 5
Section 4. Notice Of Shareholders' Meetings ................................................... 6
Section 5. Manner Of Giving Notice; Affidavit Of Notice ....................................... 6
Section 6. Quorum ............................................................................. 7
Section 7. Adjourned Meeting; Notice .......................................................... 7
Section 8. Voting ............................................................................. 7
Section 9. Waiver Of Notice Or Consent By Absent Shareholders ................................. 8
Section 10. Shareholders Action By Written Consent Without A Meeting ........................... 8
Section 11. Record Date For Shareholder Notice, Voting, And Giving Consents .................... 9
Section 12. Proxies ............................................................................ 9
Section 13. Inspectors Of Election ............................................................. 10
III DIRECTORS 10
---------
Section 1. Powers ............................................................................. 10
Section 2. Number And Qualification Of Directors .............................................. 10
Section 3. Election And Term Of Office Of Directors ........................................... 11
Section 4. Vacancies .......................................................................... 11
Section 5. Place Of Meetings .................................................................. 11
Section 6. Meetings By Telephone .............................................................. 11
Section 7. Annual Meetings .................................................................... 11
Section 8. Special Meetings ................................................................... 12
Section 9. Quorum ............................................................................. 12
Section 10. Waiver Of Notice ................................................................... 12
Section 11. Adjournment ........................................................................ 12
- i -
Article Page
------- ----
Section 12. Notice Of Adjournment .............................................................. 13
Section 13. Action Without Meeting ............................................................. 13
Section 14. Fees And Compensation Of Directors ................................................. 13
IV COMMITTEES 13
----------
Section 1. Committees Of Directors ............................................................ 13
Section 2. Meetings And Action Of Committees .................................................. 14
V OFFICERS 14
--------
Section 1. Officers ........................................................................... 14
Section 2. Election Of Officers ............................................................... 14
Section 3. Subordinate Officers ............................................................... 14
Section 4. Removal And Resignation Of Officers ................................................ 14
Section 5. Vacancies In Offices ............................................................... 15
Section 6. Chairman Of The Board .............................................................. 15
Section 7. President .......................................................................... 15
Section 8. Vice Presidents .................................................................... 15
Section 9. Secretary .......................................................................... 15
Section 10. Chief Financial Officer ............................................................ 16
VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS 16
------------------------------------------------------------------
VII RECORDS AND REPORTS 16
-------------------
Section 1. Maintenance And Inspection Of Share Register ....................................... 16
Section 2. Maintenance And Inspection Of Bylaws ............................................... 17
Section 3. Maintenance And Inspection Of Other Corporate Records .............................. 17
Section 4. Inspection By Directors ............................................................ 17
Section 5. Annual Report To Shareholders ...................................................... 17
Section 6. Financial Statements ............................................................... 17
Section 7. Annual Statement Of General Information ............................................ 18
VIII GENERAL CORPORATE MATTERS 18
-------------------------
Section 1. Record Date For Purposes Other Than Notice And Voting .............................. 18
Section 2. Checks, Drafts, Evidences Of Indebtedness .......................................... 19
Section 3. Corporate Contracts And Instruments; How Executed .................................. 19
Section 4. Certificates For Shares ............................................................ 19
Section 5. Lost Certificates .................................................................. 19
Section 6. Representation Of Shares Of Other Corporations ..................................... 20
Section 7. Construction And Definitions ....................................................... 20
- ii -
Article Page
------- ----
IX AMENDMENTS 20
----------
Section 1. Amendment By Shareholders .......................................................... 20
Section 2. Amendment By Directors ............................................................. 20
- iii -
CERTIFICATE OF SECRETARY
I HEREBY CERTIFY that I am a duly elected, qualified and acting
Secretary of KOLL REALTY ADVISORS, and that the above and foregoing Bylaws were
adopted as the Bylaws of said corporation on the 21st day of July, 1989, by the
unanimous written consent of the directors of the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of July,
1989.
/s/ Lawrence W. Kellner
-----------------------------------
Lawrence W. Kellner, Secretary
BYLAWS
OF
KOLL REALTY ADVISORS
ARTICLE I
OFFICES
-------
Section 1. PRINCIPAL OFFICES. The Board of Directors shall fix the
---------
location of the principal executive office of the corporation at any place
within or outside the State of California. If the principal executive office is
located outside this State, and the corporation has one or more business offices
in this State, the Board of Directors shall fix and designate a principal
business office in the State of California.
Section 2. OTHER OFFICES. The Board of Directors may at any time
---------
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
------------------------
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be
---------
held either at the principal executive office of the corporation or at any other
place within or without the State of California which may be designated either
by the Board of Directors or by the written consent of all persons entitled to
vote thereat given either before or after the meeting and filed with the
Secretary.
Section 2. ANNUAL MEETING. The annual meeting of shareholders
---------
shall be held each year on a date and at a time designated by the Board of
Directors. At each annual meeting directors shall be elected, and any other
proper business may be transacted.
Section 3. SPECIAL MEETINGS. A special meeting of the shareholders
---------
may be called at any time by the Board of Directors, or by the Chairman of the
Board, or by the President, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at that
meeting.
If a special meeting is called by any person or persons other
than the Board of Directors, the request shall be in writing, specifying the
time of such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the Chairman of the Board, the
President, any Vice President, or the Secretary of the corporation. The officer
receiving the request shall cause notice to be promptly given to the
shareholders entitled to vote, in accordance with the provisions of Sections 4
and 5 of this Article II, that a meeting will be held at the time
- 5 -
requested by the person or persons calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the request.
If the notice is not given within twenty (20) days after receipt of the request,
the person or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 3 shall be construed as limiting,
fixing or affecting the time when a meeting of shareholders called by action of
the Board of Directors may be held.
Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meeting
---------
of shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall specify the place, date and hour of the
meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted, or (ii) in the case of the annual meeting, those
matters which the Board of Directors, at the time of giving the notice, intends
to present for action by the shareholders, but, subject to the provisions of
applicable law, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the name of any nominee or nominees whom, at the time of the notice,
management intends to present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the California General Corporation Law,
(ii) an amendment of the Articles of Incorporation, pursuant to Section 902 of
that Law, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Law, (iv) a voluntary dissolution of the corporation, pursuant to Section
1900 of that Law, or (v) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of
that Law, the notice shall also state the general nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of
---------
any meeting of shareholders shall be given either personally or by first class
mail or telegraphic or other written communication, charges prepaid, addressed
to the shareholder at the address of that shareholder appearing on the books of
the corporation or given by the shareholder to the corporation for the purpose
of notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by first
class mail or telegraphic or other written communication to the corporation's
principal executive office, or if published at least once in a newspaper of
general circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally to the recipient
or deposited in the mail or sent by telegram or other means of written
communication.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices or reports shall be deemed to have been duly
given without further mailing if these shall be available to the shareholder on
written demand of the shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of the notice.
- 6 -
An affidavit of the mailing or other means of giving any notice of any
shareholder's meeting shall be executed by any officer or any transfer agent of
the corporation giving the notice, and shall be filed and maintained in the
minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the
---------
holders of a majority of the shares entitled to vote shall constitute a quorum
at any meeting of shareholders. The shareholders present at a duly called or
held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders meeting,
---------
whether or not a quorum is present, may be adjourned from time to time by vote
of the majority of the shares represented at that meeting, either in person or
by proxy, but in the absence of a quorum, no other business may be transacted at
that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than forty-five (45) days from the
date set for the original meeting, in which case the Board of Directors shall
set a new record date. Notice of any such adjourned meeting shall be given to
each shareholder of record entitled to vote at the adjourned meeting in
accordance with the provisions of Sections 4 and 5 of this Article II. At any
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting
---------
of shareholders shall be determined in accordance with the provisions of Section
11 of this Article II, subject to the provisions of Sections 702 to 704,
inclusive, of the California General Corporation Law (relating to voting shares
held by a fiduciary, in the name of a corporation, or in joint ownership). The
shareholders' vote may be by voice or by ballot; provided, however, that any
election for directors must be by ballot if demanded by any shareholder before
the voting has begun. On any matter other than elections of directors, any
shareholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, but, if the
shareholder fails to specify the number of shares which the shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares that the shareholder is entitled to
vote. If a quorum is present, the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote on any matter (other than the
election of Directors) shall be the act of the shareholders, unless the vote of
a greater number or voting by classes is required by the California General
Corporation Law or by the Articles of Incorporation.
At a shareholders' meeting at which Directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the shareholder's shares) unless the
candidates' names have been placed in nomination prior to commencement of the
voting and a shareholder has given notice prior to
- 7 -
commencement of the voting of the shareholder's intention to cumulate votes. If
any shareholder has given such a notice, then every shareholder entitled to vote
may cumulate votes for candidates in nomination and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which that shareholder's shares are entitled, or distribute the
shareholder's votes on the same principle among any or all of the candidates, as
the shareholder thinks fit. The candidates receiving the highest number of
votes, up to the number of directors to be elected, shall be elected.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The
---------
transactions of any meeting of shareholders, however called and noticed, and
wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy,
and if, either before or after the meeting, each person entitled to vote, who
was not present in person or by proxy, signs a written waiver of notice or a
consent to holding of the meeting, or an approval of the minutes thereof. The
waiver of notice or consent need not specify either the business to be
transacted or the purpose of any annual or special meeting of shareholders,
except that if action is taken or proposed to be taken for approval of any of
those matters specified in the second paragraph of Section 4 of this Article II,
the waiver of notice or consent shall state the general nature of the proposal.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if that objection is expressly made at the meeting.
Section 10. SHAREHOLDERS ACTION BY WRITTEN CONSENT WITHOUT A
----------
MEETING. Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares not having less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting at which all
shares entitled to vote on that action were present and voted. In the case of
election of Directors, such consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of
Directors; provided, however, that a Director may be elected at any time to fill
a vacancy on the Board of Directors that has not been filled by the Directors,
by written consent of the holders of a majority of the outstanding shares
entitled to vote for the election of Directors. All such consents shall be filed
with the Secretary of the corporation and shall be maintained in the corporate
records. Any shareholder giving a written consent, or the shareholder's proxy
holders, or a transferee of the shares or a personal representative of the
shareholder or their respective proxy holders, may revoke the consent by a
writing received by the Secretary of the corporation before written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of the corporate action approved by the
- 8 -
shareholders without a meeting. This notice shall be given in the manner
specified in Section 5 of this Article II. In the case of approval of (i)
contracts or transactions in which a Director has a direct or indirect financial
interest, pursuant to Section 310 of the California General Corporate Law, (ii)
indemnification of agents of the corporation, pursuant to Section 317 of that
law, (iii) a reorganization of the corporation, pursuant to Section 1201 of that
Law, and (iv) a distribution in dissolution other than in accordance with the
rights of outstanding preferred shares, pursuant to Section 2007 of that Law,
the notice shall be given at least ten (10) days before the consummation of any
action authorized by that approval.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING
----------
CONSENTS. For purposes of determining the shareholders entitled to notice of any
meeting or to vote or entitled to give consent to corporate action without a
meeting, the Board or Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only shareholders of record on the date so fixed are
entitled to notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided in the California General
Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business of
the business day next preceding the day on which the meeting is held.
(b) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, (i)
when no prior action by the Board has been taken, shall be the day on
which the first written consent is given, or (ii) when prior action of
the Board has been taken, shall be at the close of business on the day
on which the Board adopts the resolution relating to that action, or
the sixtieth (60th) day before the date of such other action,
whichever is later.
Section 12. PROXIES. Every person entitled to vote shares has the
----------
right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the Secretary of the corporation. A
proxy shall be deemed signed if the shareholder's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission, or
otherwise) by the shareholder or the shareholder's attorney-in-fact. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless (i) revoked by the person executing it, before the
vote pursuant to that proxy, by a writing delivered to the corporation stating
that the proxy is revoked, or by a subsequent proxy executed by, or attendance
at the meeting and voting in person by, the person executing the proxy; or (ii)
written notice of the death or incapacity of the maker of that proxy is received
by the corporation before the vote pursuant to that proxy is counted; provided,
however that no proxy shall be valid after the expiration of eleven (11) months
from the date of the proxy, unless otherwise provided in the proxy. The
revocability of a proxy that states on its face that it is
- 9 -
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of
the California General Corporation Law.
Section 13. INSPECTORS OF ELECTION. Before any meeting of
----------
shareholders, the Board of Directors may appoint any persons other than nominees
for office to act as inspectors of election at the meeting or any adjournment
thereof. If no inspectors of election are so appointed, the Chairman of the
meeting may, and on the request of any shareholder or a shareholder's proxy
shall, appoint inspectors of election at the meeting. The number of inspectors
shall be either one (1) or three (3). If inspectors are appointed at a meeting
on the request of one or more shareholders or proxies, the holders of a majority
of shares or their proxies present at the meeting shall determine whether one
(1) or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the Chairman of the
meeting may, and upon the request of any shareholder or a shareholder's proxy
shall, appoint a person to fill that vacancy.
The duties of the inspectors shall be as prescribed by Section 707(b)
of the California General Corporation Law and shall include: determining the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity, and effect of proxies; receiving votes, ballots, or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes or consents;
determining when the polls shall close; determining the result; and doing any
other acts that may be proper to conduct the election or vote with fairness to
all shareholders.
If there are three (3) inspectors of election, the decision, act, or
certificate of a majority is effective in all respects as the decision, act, or
certificate of all.
ARTICLE III
DIRECTORS
---------
Section 1. POWERS. Subject to the provisions of the California
---------
General Corporation Law and any limitations in the Articles of Incorporation and
these Bylaws relating to action required to be approved by the shareholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized
---------
number of directors shall be three (3) until changed by a duly adopted amendment
to this Bylaw duly adopted by the vote or written consent of holders of the
majority of the outstanding shares entitled to vote; provided, however, that an
amendment reducing the number of directors to a number less than five (5) cannot
be adopted if the votes cast against its adoption at a meeting, or the shares
not consenting in the case of an action by written consent, are equal to more
than sixteen and two-thirds percent (16 2/3%) of the outstanding shares entitled
to vote thereon.
- 10 -
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors
---------
shall be elected at each annual meeting of shareholders to hold office until the
next annual meeting. Each Director, including a Director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
Section 4. VACANCIES. Vacancies in the Board of Directors may be
---------
filled by a majority of the remaining Directors, though less than a quorum, or
by a sole remaining Director, except that a vacancy created by the removal of a
Director by the vote or written consent of the shareholders or by court order
may be filled only by the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present, or by the
written consent of holders of a majority of the outstanding shares entitled to
vote. Each Director so elected shall hold office until the annual meeting of the
shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in the event of the death, resignation, or removal of any Director, or if
the Board of Directors by resolution declares vacant the office of a Director
who has been declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of Directors is increased, or if the
shareholders fail, at any meeting of shareholders at which any Director or
Directors are elected, to elect the number of Directors to be voted for at that
meeting.
The shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any Director may resign effective on giving written notice to the
Chairman of the Board, the President, the Secretary, or the Board of Directors,
unless the notice specifies a later time for such resignation to become
effective. If the resignation of a Director is effective at a future time, the
Board of Directors may elect a successor to take office when the resignation
becomes effective.
No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
Section 5. PLACE OF MEETINGS. Regular or special meetings of the
---------
Board of Directors shall be held at any place within or without the State of
California which has been designated from time to time by resolution of the
Board. In the absence of such a designation, regular or special meetings shall
be held at the principal executive office of the corporation.
Section 6. MEETINGS BY TELEPHONE. Any meeting, regular or special,
---------
may be held by conference telephone or similar communication equipment, so long
as all Directors participating in the meeting can hear one another, and all such
Directors shall be deemed present in person at the meeting.
Section 7. ANNUAL MEETINGS. Immediately following each annual
---------
meeting of shareholders, the Board of Directors shall hold an annual meeting for
the purpose of organization, any desired election of officers, and the
transaction of other business. Other regular
- 11 -
meetings of the Board of Directors may be held at such time as shall from time
to time be fixed by the Board of Directors. Call and notice of all regular
meetings shall not be required.
Section 8. SPECIAL MEETINGS. Special meetings of the Board of
---------
Directors for any purpose or purposes may be called at any time by the Chairman
of the Board or the President or any Vice President or the Secretary or any two
Directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone, telegram, telex, or other similar means of
communication to each Director or sent by first class mail, addressed to each
director at the Director's address as it is shown on the records of the
corporation. In case the notice is mailed, it shall be deposited in the United
States mail at least four (4) days before the time of the holding of the
meeting. In case the notice is delivered personally, or by telephone, telegram,
telex, or other similar means of communication, it shall be given at least
forty-eight (48) hours before the time of the holding of the meeting. Notice by
mail shall be deemed to have been given at the time written notice is deposited
in the United States mail, postage prepaid. Any other written notice shall be
deemed to have been given at the time it is personally delivered to the
recipient or is delivered to a common carrier for transmission, or actually
transmitted by the person giving notice by electronic means, to the recipient.
Any oral notice given personally or by telephone may be communicated either to
the Director or to a person at the office of the Director who the person giving
the notice has reason to believe will promptly communicate it to the Director.
The notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the corporation.
Section 9. QUORUM. A majority of the authorized number of directors
---------
shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article III. Every act or decision done or made
by a majority of the Directors present at a meeting duly held at which a quorum
is present shall be regarded as the act of the Board of Directors, subject to
the provisions of Section 310 of the California General Corporation Law (as to
approval of contracts or transactions in which a Director has a direct or
indirect material financial interest), Section 311 of that Law (as to
appointment of committees), and Section 371(e) of that Law (as to
indemnification of Directors). A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of Directors,
if any action taken is approved by at least a majority of the required quorum of
the meeting.
Section 10. WAIVER OF NOTICE. The transactions of any meeting of the
----------
Board of Directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
Directors not present signs a written waiver of notice, a consent to holding the
meeting, or an approval of the minutes thereof. The waiver of notice or consent
need not specify the purpose of the meeting. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Notice of a meeting shall also be deemed given to any
Director who attends the meeting without protesting, before or at its
commencement, the lack of notice to that Director.
Section 11. ADJOURNMENT. A majority of the Directors present,
----------
whether or not constituting a quorum, may adjourn any meeting to another time
and place.
- 12 -
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of
----------
holding an adjourned meeting need not be given, unless the meeting is adjourned
for more than twenty-four (24) hours, in which case notice of the time and place
shall be given before the time of the adjourned meeting, in the manner specified
in Section 8 of this Article III, to the Directors who were not present at the
time of adjournment.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted
----------
to be taken by the Board of Directors may be taken without a meeting, if all
members of the Board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and effect
as an unanimous vote of the Board of Directors. Such written consent or consents
shall be filed with the minutes of the proceedings of the Board.
Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and
----------
members of committees may receive such compensation, if any, for their services,
and such reimbursements of expenses, as may be fixed or determined by resolution
of the Board of Directors. This Section 14 shall not be construed to preclude
any Director from serving the corporation in any other capacity as an officer,
agent, employee or otherwise, or from receiving compensation for those services.
ARTICLE IV
COMMITTEES
----------
Section 1. COMMITTEES OF DIRECTORS. The Board of Directors may, by
---------
resolution adopted by a majority of the authorized number of Directors,
designate one or more committees, each consisting of two (2) or more Directors,
to serve at the pleasure of the Board. The Board may designate one (1) or more
Directors as alternate members of the committee, who may replace any absent
member at any meeting of the committee. Any committee, to the extent provided in
the resolution of the Board, shall have all the authority to the Board, except
with respect to:
(a) The approval of any action which, under the California
General Corporation Law, also requires shareholders' approval or
approval of the outstanding shares;
(b) The filling of vacancies on the Board of Directors or in
any committee;
(c) The fixing of compensation of the directors for serving
on the Board or on any committee;
(d) The amendment or repeal of Bylaws or the adoption of new
Bylaws;
(e) The amendment or repeal of any resolution of the Board
of Directors which by its express terms is not so amendable or
repealable;
(f) A distribution to the shareholders of the corporation,
except at a rate or in a periodic amount or within a price range
determined by the Board of Directors; or
- 13 -
(g) The appointment of any other committees of the Board of
Directors or the members of these committees.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action
---------
of committees shall be governed by, and held and taken in accordance with, the
provisions of Article II of these Bylaws, Sections 1 (place of meetings), 2
(regular meetings), 3 (special meetings), 4 (notice), 6 (quorum), 7 (notice of
adjournment), 9 (waiver of notice), 10 (action without meeting), and 11
(adjournment), with such changes in the context of those Bylaws as are necessary
to substitute the committee and its members for the Board of Directors and its
members, except that the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee; special meetings of committees may also be called by resolution
of the Board of Directors; and notice of special meetings of committees shall
have the right to attend all meetings of the committee. The Board of Directors
may adopt rules for the government of any committee which rules are not to be
inconsistent with the provisions of these Bylaws.
ARTICLE V
OFFICERS
--------
Section 1. OFFICERS. The Officers of the corporation shall be a
---------
President, a Secretary, and a Chief Financial officer. The corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Financial Officers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article V. Any number of
offices may be held by the same person.
Section 2. ELECTION OF OFFICERS. The officers of the corporation,
---------
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article V, shall be chosen by the Board of
Directors, and each shall serve at the pleasure of the Board, subject to the
rights, if any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The Board of Directors may
---------
appoint, and may empower the President to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in the
Bylaws or as the Board of Directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the
---------
rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by the Board of Directors, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the
- 14 -
resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the corporation under any contract
to which the officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office because of
---------
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointments to that
office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
---------
such an officer be elected, shall, if present, preside at meetings of the Board
of Directors and exercise and perform such other powers and duties as may be
from time to time assigned to him by the Board of Directors or prescribed by the
Bylaws. Unless otherwise specified by the Board of Directors, the Chairman of
the Board shall in addition be the Chief Executive Officer of the corporation
and shall have the powers and duties prescribed in Section 7 of this Article V.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, a
---------
s 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 Operating Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and the officers of
the corporation. He shall preside at all meetings of the shareholders and, in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors. He shall have the general powers and duties as from
time to time may be prescribed by the Board of Directors or the Bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of the P
---------
resident, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors, or, if not ranked, a Vice President designated by the Board
of Directors, shall perform all duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the Bylaws and the President, or the Chairman of the
Board.
Section 9. SECRETARY. The Secretary shall keep, or cause to be
---------
kept, at the principal executive office or such other place as the Board of
Directors may direct, a book of minutes of all meetings and actions of
Directors, committees of Directors, and shareholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the notice
given, the names of those present at Directors' meetings or committee meetings,
the number of shares present or represented at shareholders' meetings, and the
proceedings.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, as determined by resolution of the Board of Directors, a share
register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the Board of Directors required by the Bylaws or by
law to be given, and he shall keep the seal of the corporation, if one be
adopted, in safe custody, and shall have such
- 15 -
other powers and perform such other duties as may be prescribed by the Board of
Directors or by the Bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
----------
shall keep and maintain, or cause to be kept and maintained, adequate and
correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings, and shares.
The books of account shall at all reasonable times be open to inspection by any
Director.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the corporation as may be ordered by the Board of Directors, shall
render to the President and Directors, whenever they may request it, an account
of all of his transactions as Chief Financial Officer and of the financial
condition of the corporation, and shall have other powers and perform such other
duties as may be prescribed by the Board of Directors or the Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS
--------------------------------------
EMPLOYEES AND OTHER AGENTS
--------------------------
The corporation shall have the power, to the maximum extent permitted
by the California General Corporation Law, to indemnify each of its agents
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact any such person is or was an agent of the corporation. For purposes of this
Section, an "agent" of the corporation includes any person who is or was a
Director, officer, employee, or other agent of the corporation, or who is or was
serving at the request of the corporation as a Director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, or was a Director, officer, employee, or agent of a corporation
which was a predecessor corporation of the corporation or of another enterprise,
at the request of such predecessor corporation.
Section 1.
---------
RECORDS AND REPORTS MAINTENANCE AND INSPECTION OF SHARE REGISTER. The
corporation shall keep at its principal executive office, or at the office of
its transfer agent or registrar, if either be appointed and as determined by
resolution of the Board of Directors, a record of its shareholders, giving the
names and addresses of all shareholders and the number and class of shares held
by each shareholder.
A shareholder or shareholders of the corporation holding at lease five
per cent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days prior
written demand on the corporation, and (ii) obtain from the transfer agent of
the corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of Directors, and their shareholdings,
as of the most recent record date for which that
- 16 -
list has been compiled or as of a date specified by the shareholder after the
date of demand. This list shall be made available to any such shareholder by the
transfer agent on or before the later of five (5) days after the demand is
received or the date specified in the demand as the date as of which is to be
compiled. The record of shareholders shall also be open to inspection on the
written demand of any shareholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as the holder of a voting trust
certificate. Any inspection and copying under this Section I may be made in
person or by an agent or attorney of the shareholder or holder of a voting trust
certificate making the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation
---------
shall keep at its principal executive office, or if its principal executive
office is not in the State of California, at its principal business office in
this state, the original or a copy of the Bylaws as amended to date, which shall
be open to inspection by the shareholders at all reasonable times during office
hours. If the principal executive office of the corporation is outside the State
of California and the corporation has no principal business office in this
state, the Secretary shall, upon the written request of any shareholder, furnish
to that shareholder a copy of the Bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS.
---------
The accounting books and records and minutes of proceedings of the shareholders
and the Board of Directors and any committee or committees of the Board of
Directors shall be kept at such place or places designated by the Board of
Directors, or, in the absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept either in written form or
in any other form capable of being converted into written form. The minutes and
accounting books and records shall be open to inspection upon the written demand
of any shareholder or holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to the
holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney,
and shall include the right to copy and make extracts. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
Section 4. INSPECTION BY DIRECTORS. Every director shall have the
---------
absolute right at any reasonable time to inspect all books, records, and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. This inspection by a Director may be made in
person or by an agent or attorney, and the right of inspection includes the
right to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to
---------
shareholders referred to in Section 1501 of the California General Corporation
Law is expressly dispensed with, but nothing herein shall be interpreted as
prohibiting the Board of Directors from issuing annual or other periodic reports
to the shareholders of the corporation as they consider appropriate.
Section 6. FINANCIAL STATEMENTS. A copy of any annual financial
---------
statement and any income statement of the corporation for each quarterly period
of each fiscal year, and any accompanying balance sheet of the corporation as of
the end of each such period,
- 17 -
that has been prepared by the corporation shall be kept on file in the principal
executive office of the corporation for twelve (12) months and each such
statement shall be exhibited at all reasonable times to any shareholder
demanding an examination of any such statement, or a copy shall be mailed to any
such shareholder.
If a shareholder or shareholders holding at lease five percent (5%) of
the outstanding shares of any class of stock of the corporation makes a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and a balance
sheet of the corporation as of the end of that period, the Chief Financial
Officer shall cause that statement to be prepared, if not already prepared, and
shall deliver personally or mail that statement or statements to the person
making the request within thirty (30) days after the receipt of the request. If
the corporation has not sent to the shareholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to the
shareholder or shareholders within thirty (30) days after the request.
The corporation shall also, on the written request of any shareholder,
mail to the shareholder a copy of the last annual, semi-annual, or quarterly
income statement which it has prepared, and a balance sheet as of the end of
that period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation
---------
shall, during the applicable filing period, as defined in Section 1502(c) of the
California General Corporation Law, file with the Secretary of State of the
State of California, on the prescribed form, a statement setting forth the
authorized number of Directors, the names and complete business or residence
addresses of all incumbent Directors, the names and complete business or
residence addresses of the Chief Executive Officer, Secretary, and Chief
Financial Officer, the street address of its principal executive office or
principal business office in this state, and the general type of business
constituting the principal business activity of the corporation, together with a
designation of the agent of the corporation for the purpose of service of
process, all in compliance with Section 1502 of the California General
Corporation Law.
ARTICLE VII
GENERAL CORPORATE MATTERS
-------------------------
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
---------
For purposes of determining the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
before any such action, and in that case only shareholders of record on the date
so fixed are entitled to receive the dividend, distribution, or allotment of
rights or to exercise the
- 18 -
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date so fixed, except as otherwise
provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date, the record
date for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
---------
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the Board of Directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The
---------
Board of Directors, except as otherwise provided in these Bylaws, may authorize
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and this
authority may be general or confined to specific instances; and, unless so
authorized or ratified by the Board of Directors or within the agency power of
an officer, no officer, agent, or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates
---------
for shares of the capital stock of the corporation shall be issued to each
shareholder when any of these shares are fully paid, and the Board of Directors
may authorize the issuance of certificates or shares as partly paid, provided
that these certificates shall state the amount of the consideration to be paid
for them and the amount paid. All certificates shall be signed in the name of
the corporation by the Chairman of the Board or Vice Chairman of the Board or
the President or Vice President and by the Chief Financial Officer or an
Assistant Treasurer or the Secretary or any Assistant Secretary, certifying the
number of shares and the class or series of shares owned by the shareholder. Any
or all of the signatures on the certificate may be facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on a certificate shall have ceased to be that officer,
transfer agent or registrar before that certificate is issued, it may be issued
by the corporation with the same effect as if that person were an officer,
transfer agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as provided in this Section 5,
---------
no new certificates for shares shall be issued to replace an old certificate
unless the latter is surrendered to the corporation and cancelled at the same
time. The Board of Directors may, in case any share certificate or certificate
for any other security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
- 19 -
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
---------
Chairman of the Board, the President, or any Vice President, or any other person
authorized by resolution of the Board of Directors or by any of the foregoing
designated officers, is authorized to vote on behalf of the corporation any and
all shares of any other corporation or corporations, foreign or domestic,
standing in the name of the corporation. The authority granted to these officers
to vote or represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by any of
these officers in person or by any person authorized to do so by a proxy duly
executed by these officers.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context
---------
requires otherwise, the general provisions, rules of construction, and
definitions in the California General Corporation Law shall govern the
construction of these Bylaws. Without limiting the generality of this provision,
the singular number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a natural
person.
ARTICLE VIII
AMENDMENTS
----------
Section 1. AMENDMENT BY SHAREHOLDERS. New Bylaws may be adopted or
---------
these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the Articles of Incorporation of the corporation set forth the
number of authorized Directors of the corporation, the authorized number of
Directors may be changed only by an amendment of the Articles of Incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the
---------
shareholders as provided in Section 1 of this Article IX, Bylaws, other than a
Bylaw or an amendment of a Bylaw changing the authorized number of directors,
may be adopted, amended, or repealed by the Board of Directors.
- 20 -