EXHIBIT 3.18
BYLAWS
OF
MERITAGE HOMES OF NORTHERN CALIFORNIA, INC.
a California corporation
TABLE OF CONTENTS
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ARTICLE I CORPORATE OFFICES..........................................................................1
Section 1. Principal Office........................................................................1
Section 2. Other Offices...........................................................................1
ARTICLE II MEETINGS OF SHAREHOLDERS...................................................................1
Section 1. Place of Meetings.......................................................................1
Section 2. Annual Meeting..........................................................................1
Section 3. Special Meeting.........................................................................1
Section 4. Notice of Shareholders; Meetings........................................................2
Section 5. Manner of Giving Notice; Affidavit of Notice............................................2
Section 6. Organization............................................................................2
Section 7. Quorum..................................................................................2
Section 8. Adjourned Meeting; Notice...............................................................2
Section 9. Voting; Proxies.........................................................................3
Section 10. Validation of Meetings; Waiver of Notice; Consent.......................................3
Section 11. Shareholder Action by Written Consent Without a Meeting.................................4
Section 12. Record Date for Shareholder Notice; Voting; Giving Consents.............................4
Section 13. Inspectors of Election..................................................................4
ARTICLE III DIRECTORS..................................................................................5
Section 1. Powers..................................................................................5
Section 2. Number of Directors.....................................................................5
Section 3. Election and Term of Office of Directors................................................5
Section 4. Resignations and Vacancies..............................................................5
Section 5. Place of Meetings; Meetings by Telephone................................................6
Section 6. Organization............................................................................6
Section 7. Regular Meetings........................................................................6
Section 8. Special Meetings; Notice................................................................6
Section 9. Quorum..................................................................................7
Section 10. Waiver of Notice........................................................................7
Section 11. Adjournment.............................................................................7
Section 12. Notice of Adjournment...................................................................7
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TABLE OF CONTENTS
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Section 13. Board Action by Written Consent Without A Meeting.......................................7
Section 14. Fees and Compensation of Directors......................................................7
ARTICLE IV COMMITTEES.................................................................................8
Section 1. Committees of Directors.................................................................8
Section 2. Meetings and Actions of Committees......................................................8
ARTICLE V OFFICERS...................................................................................9
Section 1. Officers................................................................................9
Section 2. Election of Officers....................................................................9
Section 3. Subordinate Officers....................................................................9
Section 4. Removal and Resignation of Officers.....................................................9
Section 5. Vacancies in Office.....................................................................9
Section 6. Chairman of the Board...................................................................9
Section 7. President..............................................................................10
Section 8. Vice Presidents........................................................................10
Section 9. Secretary..............................................................................10
Section 10. Chief Financial Officer................................................................10
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, ETC...............................................11
Section 1. Indemnification of Directors and Officers..............................................11
Section 2. Indemnification of Others..............................................................11
Section 3. Payment of Expenses in Advance.........................................................12
Section 4. Procedure for Effecting Indemnification................................................12
Section 5. Indemnity Not Exclusive................................................................12
Section 6. Insurance Indemnification..............................................................12
Section 7. Conflicts..............................................................................13
ARTICLE VII RECORDS AND REPORTS.......................................................................13
Section 1. Inspection of Share Register...........................................................13
Section 2. Maintenance and Inspection of Bylaws...................................................13
Section 3. Maintenance and Inspection of Other Corporate Records..................................13
Section 4. Inspection by Directors................................................................14
Section 5. Annual Report to Shareholders; Waiver..................................................14
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TABLE OF CONTENTS
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Section 6. Financial Statements...................................................................14
Section 7. Representation of Shares of Other Corporations.........................................15
ARTICLE VIII GENERAL MATTERS...........................................................................15
Section 1. Record Date for Purposes Other Than Notice and Voting..................................15
Section 2. Checks; Drafts; Evidences of Indebtedness..............................................15
Section 3. Corporate Contracts and Instruments; How Executed......................................15
Section 4. Certificates for Shares................................................................16
Section 5. Lost Certificates......................................................................16
Section 6. Construction; Definitions..............................................................16
ARTICLE IX AMENDMENTS................................................................................16
Section 1. Amendment By Shareholders..............................................................16
Section 2. Amendment By Directors.................................................................16
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BYLAWS
OF
MERITAGE HOMES OF NORTHERN CALIFORNIA, INC.
ARTICLE I CORPORATE OFFICES
Section 1. Principal Office. The corporation may have its principal
executive office at such place within or outside of the State of California as
the Board of Directors may from time to time fix or the business of the
corporation may require. If the principal executive office is located outside of
such state and the corporation has one or more business offices in such state,
then 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, or may designate an officer of the corporation to 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 the shareholders shall be
held at any place within or outside of the State of California designated by the
Board of Directors. In the absence of any such designation, shareholders'
meetings shall be held at the principal executive office of the corporation.
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
the annual meeting, the stockholders then entitled to vote shall elect the
directors of the corporation and transact such other business as may properly be
brought before the meeting.
Section 3. Special Meeting. A special meeting of the shareholders of
the corporation for any purpose or purposes for which meetings may lawfully be
called, may be called at any time for any purpose or purposes by the Board of
Directors or by any person or committee expressly so authorized by the Board of
Directors, or by the Chairman of the Board or the President, or by the holders
of shares entitled to cast not less than ten percent of the votes at the meeting
and by no other person or persons.
At any time, upon written request of any person or persons who have
duly called a special meeting, which written request shall state the purpose or
purposes of the meeting, it shall be the duty of the Secretary to fix the date
of the meeting to be held at such date and time as the Secretary may fix, not
less than ten nor more than sixty days after the receipt of the request, and to
give due notice thereof. If the Secretary shall neglect or refuse to fix the
time and date of such meeting and give notice thereof, the person or persons
calling the meeting may do so.
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Section 4. Notice of Shareholders' Meetings. Written notice of the
place, date and hour of every meeting of the stockholders, whether annual or
special, shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder of record entitled to vote at the
meeting. Every notice of a special meeting shall state the purpose or purposes
thereof.
Section 5. Manner of Giving Notice; Affidavit of Notice. Written notice
of any meeting of shareholders shall be given either (i) personally or (ii) by
first-class mail or (iii) by third-class mail but only if the corporation has
outstanding shares held of record by 500 or more persons (determined as provided
in Section 605 of the General Corporation Law of the State of California) on the
record date for the shareholders' meeting, or (iv) by telegraphic or other
written communication. Notices not personally delivered shall be sent charges
prepaid and shall be 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 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 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, then all future notices or reports shall be deemed to have been
duly given without further mailing if the same 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.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting, executed by the Secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
Section 6. Organization. At every meeting of the stockholders, the
Chairman of the Board, or in the case of vacancy in office or absence of the
Chairman of the Board, such person as may be designated by the Board of
Directors, shall act as Chairman of such meeting, and the Secretary, or, in his
absence, an assistant secretary, or in the absence of both the Secretary and the
assistant secretaries, a person appointed by the Chairman of the Meeting shall
act as Secretary.
Section 7. Quorum. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote thereat constitutes a quorum for the
transaction of business at all meetings 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 8. Adjourned Meeting; Notice. Any shareholders' meeting, annual
or special, whether or not a quorum is present, may be adjourned from time to
time by the vote of the majority
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of the shares represented at that meeting, either in person or by proxy. In the
absence of a quorum, no other business may be transacted at that meeting except
as provided in Section 7 of this Article II of these Bylaws.
When any meeting or shareholders, 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 the meeting at which the adjournment is taken.
However, if a new record date for the adjourned meeting is fixed or if the
adjournment is for more than forty-five days from the date set for the original
meeting, then notice of the adjourned meeting shall be given. 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 of these Bylaws. At any adjourned meeting the corporation may
transact any business which might have been transacted at the original meeting.
Section 9. Voting; Proxies. The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with the provisions of
Section 12 of this Article II of these Bylaws, subject to the provisions of
Sections 702 through 704 of the General Corporation Law of the State of
California (relating to voting shares held by a fiduciary, in the name of a
corporation or in joint ownership).
Each shareholder shall at every meeting of the shareholders be entitled
to one vote in person or by proxy for each share of common stock and the number
of votes per share as designated in the designation of rights adopted with
respect to each share of preferred stock registered in his name on the books of
the corporation on the record date for such meeting. The vote upon any other
matter need not be by ballot. No proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Every proxy shall be
executed in writing by the shareholder or by his duly authorized
attorney-in-fact and filed with the Secretary of the corporation. A proxy,
unless coupled with an interest, shall be revocable at will, notwithstanding any
other agreement or any provisions in the proxy to the contrary, but the
revocation of a proxy shall not be effective until notice thereof has been given
to the Secretary of the corporation. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the corporation generally.
A proxy shall not be revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised, written notice of such
death or incapacity is given to the Secretary of the corporation.
If a quorum is present, the affirmative vote of the majority of the
shares represented and voting at a duly held 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 a vote by
classes is required by the General Corporation Law of the State of California or
by the Articles of Incorporation of the corporation, as then in effect.
Section 10. Validation of Meetings; Waiver of Notice; Consent. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though they had been
taken 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
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person entitled to vote, who was not present in person or by proxy, signs a
written waiver of notice or consent to the holding of the meeting or an approval
of the minutes thereof. The waiver of notice or consent or approval 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 of these Bylaws, the waiver of notice or consent
or approval shall state the general nature of the proposal. All such waivers,
consents and 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 and presence at 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. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by the General
Corporation Law of the State of California to be included in the notice of the
meeting, but only if that objection is expressly made at the meeting.
Section 11. Shareholder Action by Written Consent Without a Meeting.
Unless otherwise provided in the Articles of Incorporation, any action which may
be taken at any annual or special meeting of such shareholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock 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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those shareholders who have not consented in writing.
Section 12. Record Date for Shareholder Notice; Voting; Giving
Consents. For purposes of determining the shareholders entitled to notice of any
meeting or to vote thereat or entitled to give consent to corporate action with
a meeting, the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty days nor less than ten days before the date of any
such meeting nor more than sixty days before any such action without a meeting,
and in such 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 General Corporation Law of the State
of California.
Section 13. Inspectors of Election. Before any meeting of shareholders,
the Board of Directors may appoint an inspector or inspectors of election to act
at the meeting or its adjournment. If no inspector of election is so appointed,
then the chairman of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint an inspector or inspectors of election to act
at the meeting. The number of inspectors shall be either one or three. If
inspectors are appointed at a meeting pursuant to the request of one or more
shareholders or proxies, then the holders of a majority of shares or their
proxies present at the meeting shall determine whether one or three inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, then 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.
Such inspector(s) shall: (i) determine the number of shares outstanding
and the voting power
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of each, the number of shares represented at the meeting, the existence of a
quorum, and the authenticity, validity and effect of proxies; (ii) receive
votes, ballots or consents; (iii) hear and determine all challenges and
questions in any way arising in connection with the right to vote; (iv) count
and tabulate all votes or consents; (v) determine when the polls shall close;
(vi) determine the result; and (vii) do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
ARTICLE III DIRECTORS
Section 1. Powers. The business and affairs of the corporation shall be
managed by and under the direction of the Board of Directors; and all powers of
the corporation, except those specifically reserved or granted to the
shareholders by statute, the Articles of Incorporation or these Bylaws, are
hereby granted to and vested in the Board of Directors
Section 2. Number of Directors. The Board of Directors shall consist of
such number of directors, not less than one (1) or more than five (5), as may be
determined from time to time by the Board of Directors subject to the provisions
of the Articles of Incorporation. The exact number of directors shall be three
(3) until changed by the Board of Directors pursuant to and in accordance with
the provisions of this Section 2 of this Article III of these Bylaws. 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 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. The term of each director shall be for one year from the date of
his election; however, each director shall serve until his successor shall have
been duly elected and qualified, unless he shall resign, become disqualified,
disabled or shall otherwise be removed. At each annual election, the directors
chosen to succeed those whose terms then expire shall be for the same term as
the directors they succeed.
Section 4. Resignations and Vacancies. 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 that 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.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until his successor
shall have been duly elected and qualified unless he shall resign, become
disqualified, disabled or shall otherwise be removed. If there are no directors
in office, then an election of directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board of Directors (as constituted immediately prior to any such
increase), the shareholder or shareholders holding a majority of the shares at
the time outstanding having the right to vote for such directors may summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
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A vacancy or vacancies in the Board of Directors shall be deemed to
exist (i) in the event of the death, resignation or removal or any director,
(ii) 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, (iii) if the authorized number of directors is increased, or (iv)
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 elected 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
other than to fill a vacancy created by removal, if by written consent, shall
require the consent of the holders of a majority of the outstanding shares
entitled to vote thereon.
Section 5. Place of Meetings; Meetings by Telephone. Regular meetings
of the Board of Directors may be held at any place within or outside of the
State of California that have been designated from time to time by resolution of
the Board. In the absence of such a designation, regular meetings shall he held
at the principal executive office of the corporation. Special meetings of the
Board may be held at any place within or outside of the State of California that
has been designated in the notice of the meeting or, if not stated in the notice
or there is no notice, at the principal executive office of the corporation. 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 to be present in
person at the meeting.
Section 6. Organization. At every meeting of the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following officers
present in the order stated: the President; a Vice President; or a Chairman
chosen by a majority of the directors present, shall preside, and the Secretary,
or, in his or her absence, an Assistant Secretary, or in the absence of the
Secretary and the Assistant Secretaries, any person appointed by the Chairman of
the meeting, shall act as Secretary of the meeting.
Section 7. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice if the times of such meetings are fixed by the Board
of Directors.
Section 8. Special Meetings; Notice. Special meetings of the Board if
Directors for any purpose or purposes may be called at any time by the Chairman
of the Board, the President, any Vice President, the Secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four days before the time
of the holding of the meeting. If the notice is delivered personally or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight hours before the time of the holding
of the meeting. 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
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reason to believe will promptly communicate it to the director. The notice need
not specify the purpose or the place of the meeting, if the meeting is to be
held at the principal executive office of the corporation.
Section 9. Quorum. At all meetings of the Board of Directors, a
majority of the total number of directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Articles of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. 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
that meeting.
Section 10. Waiver of Notice. Notice of a meeting need not be given to
any director (i) who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after the
meeting or (ii) who attends the meeting without protesting, prior thereto, or at
its commencement, the lack of notice to such directors. All such waivers,
consents and approvals shall be filed with the corporate records or made part of
the minutes of the meeting. A waiver of notice need not specify the purpose of
any regular or special meeting of the Board of Directors.
Section 11. Adjournment. A majority of the directors present, whether
or not constituting a quorum, may adjourn any meeting to another time and place.
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 hours. If the meeting is adjourned for more than
twenty-four hours, then notice of the time and place of the adjourned meeting
shall be given before the adjourned meeting takes place, in the manner specified
in Section 8 of this Article III of these Bylaws, to the directors who were not
present at the time of the adjournment.
Section 13. Board Action by Written Consent Without A Meeting. Unless
otherwise restricted by the Articles of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be. Such action by written consent
shall have the same force and effect as a unanimous vote of the Board of
Directors.
Section 14. Fees and Compensation of Directors. Directors and members
of committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Board of Directors. This Section 14 of this Article III of these Bylaws shall
not be construed to preclude any director from serving the corporation in any
other capacity as an officer, agent, employee or otherwise and receiving
compensation for those services.
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ARTICLE IV COMMITTEES
Section 1. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the shareholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
shareholders a dissolution of the corporation or a revocation of dissolution,
removing or indemnifying directors or amending these Bylaws; and unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Unless
the Board of Directors otherwise provides, each committee may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board of Directors or a provision in the rules of such committee to the
contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, the vote of
a majority of the members present at a meeting at the time of such vote if a
quorum is present shall be the act of such committee, and in other respects each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business.
Section 2. Meetings and Actions of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
bylaw provisions applicable to meetings and actions of the Board of Directors as
provided in Article III of these Bylaws, 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; provided, however, 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 and that special meetings
of committees may also be called by resolution of the Board of Directors. The
Board of Directors may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
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ARTICLE V OFFICERS
Section 1. Officers. The officers of the corporation shall be chosen by
the Board of Directors and shall be a President, a Chief Financial Officer, and
a Secretary. The corporation may also have, at the discretion of the Board of
Directors, one or more vice presidents, one or more assistant secretaries, one
or more assistant treasurers and such other officers as may be elected in
accordance with the provisions of Section 3 of this Article V. One person may
hold more than one office. Officers may be, but need not be, directors or
shareholders of the corporation.
Section 2. Election of Officers. The officers of the corporation,
except those elected by delegated authority pursuant to Section 3 of this
Article V, shall be chosen by the Board of Directors, and each such officer
shall hold his office until his successor shall have been elected and qualified,
or until his earlier resignation or removal, subject to the rights, if any, of
an officer under any contractor of employment.
Section 3. Subordinate Officers. The Board of Directors may from time
to time appoint such other officers, employees or other agents as it deems
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as are provided in these Bylaws, or as the Board
of Directors may from time to time determine. The Board of Directors may
delegate to any officer or committee the power to elect subordinate officers and
to retain or appoint employees or other agents, or committees thereof, and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 4. Removal and Resignation of Officers. Subject to the rights,
if any, of an officer under any contract of employment, any officer or agent 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 Board of Directors, or to the President or the
Secretary of the corporation. 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. 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 Office. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause, shall be
filled by the Board of Directors or by the officer or committee to which the
power to fill such officer has been delegated pursuant to Section 3 of this
Article V, as the case may be, and if the office is one for which these Bylaws
prescribe a term, shall be filled for the unexpired portion of the term.
Section 6. Chairman of the Board. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the
shareholders and of the Board of Directors, and shall exercise and perform such
other powers and duties as may from time to time be assigned to him by the Board
of Directors or as may be prescribed by these Bylaws. If there is no President,
then the Chairman of the Board shall have powers and authority identical to
those of the President.
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Section 7. President. The President, if such an officer be elected,
shall, subject to the control of the Board of Directors, have general and active
supervision of the affairs, business, officers and employees of the corporation.
He shall have authority to sign, execute, and acknowledge, in the name of the
corporation deeds, mortgages, bonds, contracts or other instruments, authorized
by the Board of Directors, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors, or these Bylaws,
to some other officer or agent of the corporation. He shall, from time to time,
in his discretion or at the order of the Board of Directors, submit to the Board
of Directors reports of the operations and affairs of the corporation. He shall
also perform such other duties and have such other powers as may be assigned to
him from time to time by the Board of Directors. If there is no Chairman of the
Board, the President shall preside at all meetings of the shareholders and of
the Board of Directors.
Section 8. Vice Presidents. The corporation may have one or more Vice
Presidents, having such duties as from time to time may be determined by the
Board of Directors, the President, these Bylaws or the Chairman of the Board. In
the absence or disability of the President, 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 the duties of
the President and when so acting shall have all of the powers of, and be subject
to all the restrictions upon, the President.
Section 9. Secretary. The Secretary shall keep or cause to be kept full
minutes of all meetings of the shareholders and of the Board of Directors; shall
be ex officio Secretary of the Board of Directors; shall attend all meetings of
the shareholders and of the Board of Directors; and shall record all the votes
of the shareholders and of the directors and the minutes of the meetings of the
shareholders and of the Board of Directors and of committees of the Board in a
book or books to be kept for that purpose. The minutes shall show the time and
place of each meeting, whether regular or special (and, if special, how
authorized and 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 thereof. The Secretary shall also
keep, or cause to be kept, 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 certificates evidencing
such shares, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notices of all meetings
of the shareholders of the corporation and of the Board of Directors; shall be
the custodian of the seal of the corporation and see that it is affixed to all
documents to be executed on behalf of the company under its seal; shall have
responsibility for the custody and safekeeping of all permanent records and
other documents of the corporation; and, in general, shall perform all duties
incident to the office of Secretary and such other duties as may be prescribed
by the Board of Directors or by the President, under whose supervision he or she
shall be. The Board of Directors may elect one or more assistant secretaries to
perform such duties as shall from time to time be assigned to them by the Board
of Directors or the President.
Section 10. Chief Financial Officer. The Chief Financial Officer shall
have or provide for the custody of all funds, securities and other property of
the corporation; shall collect and receive or provide for the collection or
receipt of money earned by or in any manner due to or received by
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the corporation; shall deposit or cause to be deposited all said moneys in such
banks or other depositories as the Board of Directors may from time to time
designate; shall make disbursements of corporate funds upon appropriate
vouchers; shall keep full and accurate accounts of transactions of his office in
books belonging to the corporation; shall, whenever so required by the Board of
Directors, render an accounting showing his transactions as Chief Financial
Officer, and the financial condition of the corporation; and, in general, shall
discharge any other duties as may from time to time be assigned to him by the
Board of Directors. The Board of Directors may elect one or more assistant
treasurers to perform the duties of the Chief Financial Officer as shall from
time to time be assigned to them by the Board of Directors or the Chief
Financial Officer.
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, ETC.
Section 1. Indemnification of Directors and Officers. The corporation
shall, to the maximum extent and in the manner permitted by the General
Corporation Law of the State of California, indemnify each of its directors and
officers of the corporation against expenses, judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of
the corporation if he or she acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner that he reasonably believed
to be in, or not opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. For purposes of this Article VI, a "director" or
"officer" of the corporation includes any person (i) who is or was a director or
officer of the corporation, (ii) who is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
Section 2. Indemnification of Others. The corporation shall have the
power to the extent and in the manner permitted by the General Corporation Law
of the State of California to indemnify each of its employees and agents (other
than directors and officers) against expenses, judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was an agent of
the corporation if he or she acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner that he reasonably believed
to be in, or not opposed to, the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. For purposes of this Article VI, an "employee" or
"agent" of the corporation (other than a director or officer) includes any
person (i) who is or was an employee or agent of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or agent of another
corporation,
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partnership, joint venture, trust or other enterprise, or (iii) who was an
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 3. Payment of Expenses in Advance. Expenses (including
attorneys' fees) incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of an authorized representative to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as required in this Article VI or authorized by law.
Section 4. Procedure for Effecting Indemnification. Indemnification
under Sections 1 or 2 of this Article VI shall be made when ordered by a court
and shall be made in a specific case upon a determination that indemnification
of the authorized representative is required or proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1
and 2 of this Article VI. Such determination shall be made: (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable a majority vote of a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the shareholders.
If a claim under this Article VI is not paid in full by the corporation
within ninety 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 shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any action, suit or
proceeding in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the claimant has not met the
standards of conduct that make it permissible for the corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he had
met the applicable standard of conduct, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct
shall be a defense to the action or create a presumption that claimant had not
met the applicable standard of conduct.
Section 5. Indemnity Not Exclusive. The indemnification provided by
this Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, to the extent that such additional rights to indemnification are
authorized in the Articles of Incorporation of the corporation.
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Section 6. Insurance Indemnification. The corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against or incurred by such person in such capacity or arising out of
such person's status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
Article VI.
Section 7. Conflicts. No indemnification or advance shall be made under
this Article VI, except where such indemnification or advance is mandated by law
or the order, judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears: (i) that it would be inconsistent with a
provision of the Articles of Incorporation of the corporation, these Bylaws, a
resolution of the shareholders or an agreement in effect at the time of the
accrual of the alleged cause of the action asserted in the proceeding in which
the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or (ii) that it would be inconsistent with any
condition expressly imposed by a court in approving a settlement.
ARTICLE VII RECORDS AND REPORTS
Section 1. Inspection of Share Register. A shareholder or shareholders
of the corporation who holds at least five percent in the aggregate of the
outstanding voting shares of the corporation or who holds at least one percent
of such voting shares and has filed a Schedule 14B with the Securities and
Exchange Commission relating to the election of directors, may (i) inspect and
copy the records of shareholders' names, addresses, and share holdings during
usual business hours on at least five days written demand on the corporation,
(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
names and addresses of the shareholders who are entitled to vote for the
election of directors, and their share holdings, as of the most recent record
date for which that list has been compiled or as of a date specified by the
shareholder after the date of demand. Such list shall be made available to any
such shareholder by the transfer agent on or before the later of five days after
the demand is received or five days after the date specified in the demand as
the date as of which the list 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 1 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 California,
the original or a copy of these Bylaws as amended to date, which Bylaws 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 such
state, then the secretary shall, upon the written request of any shareholder,
furnish to that shareholder a copy of these Bylaws as amended to date.
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Section 3. Maintenance and Inspection of Other Corporate Records. The
accounting books and records and the minutes of proceedings of the shareholders,
of the Board of Directors, and of any committee or committees of the Board of
Directors shall be kept at such place or places as are 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 in written form, and the
accounting books and records 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. Such
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 as well as the physical properties of the corporation
and each of its subsidiary corporations. Such inspection by a director may be
made in person or by an agent or attorney. The right of inspection includes the
right to copy and make extracts of documents.
Section 5. Annual Report to Shareholders; Waiver. The Board of
Directors shall cause an annual report to be sent to the shareholders not later
than 120 days after the close of the fiscal year adopted by the corporation.
Such report shall be sent at least fifteen days (or, if sent by third-class
mail, thirty-five days) before the annual meeting of shareholders to be held
during the next fiscal year and in the manner specified in Section 5 of Article
II of these Bylaws for giving notice to shareholders of the corporation.
The annual report shall contain (i) a balance sheet as of the end of
the fiscal year, (ii) an income statement, (iii) a statement of changes in
financial position for the fiscal year, and (iv) any report of independent
accountants or, if there is no such report, the certificate of an authorized
officer of the corporation that the statements were prepared without audit from
the books and records of the corporation.
The foregoing requirement of an annual report shall be waived so long
as the shares of the corporation are held by fewer than 100 holders of record.
Section 6. Financial Statements. If no annual report for the fiscal
year has been sent to shareholders, then the corporation shall, upon the written
request of any shareholder made more than 120 days after the close of such
fiscal year, deliver or mail to the person making the request, within thirty
days thereafter, a copy of a balance sheet as of the end of such fiscal year and
an income statement and statement of changes in financial position for such
fiscal year.
If a shareholder or shareholders holding at least five percent 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
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ended more than thirty days before the date of the request, and for a balance
sheet of the corporation as of the end of that period, then 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 days after the receipt of the request. If the
corporation has not sent to the shareholders its annual report for the last
fiscal year, the statements referred to in the first paragraph of this Section 6
shall likewise be delivered or mailed to the shareholder or shareholders within
thirty days after the request.
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 by 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. Representation of Shares of Other Corporations. The Chairman
of the Board, the President or any vice president, the Chief Financial Officer,
the Secretary or an assistant secretary of the corporation, or any person
authorized by the Board of Directors or the President, is 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 such
person director or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE VIII GENERAL 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 the shareholders
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
days before any such action. In that case, only shareholders of record at the
close of business on the date so fixed are entitled to receive the dividend,
distribution or allotment of rights, or to exercise such 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 General
Corporation Law of the State of California.
If the Board of Directors does not so fix a record date, then 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 day before the date of that action, whichever is later.
Section 2. Checks; Drafts; Evidences of Indebtedness. From time to
time, the Board of Directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other evidences of indebtedness that are issued in the name of
or payable to the corporation, and only the persons so authorized shall sign or
endorse those instruments.
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, or
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agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation; such authority may be general or
confined to specific instances. 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 corporation shall be issued to each shareholder when any of such
shares are fully paid. The Board of Directors may authorize the issuance of
certificates for shares partly paid provided that these certificates shall state
the total amount of the consideration to be paid for them and the amount
actually paid. All certificates shall be signed in the name of the corporation
by the Chairman of the Board or the Vice Chairman of the Board or the President
or a vice president and by the Chief Financial Officer or an assistant treasurer
or the Secretary or an assistant secretary, certifying the number of shares and
the class or series of shares owned by the shareholder. Any or all of the
signatures on the certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate ceases 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 a previously issued
certificate unless the latter is surrendered to the corporation and canceled 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 replacement certificates on such terms and conditions as the Board
may require; the Board may require 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.
Section 6. Construction; Definitions. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the
General Corporation Law of the State of California 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 IX 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, then the authorized number of
directors may be changed only by an amendment of the Articles of Incorporation.
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Section 2. Amendment By Directors. Subject to the rights of
shareholders as provided in Section 1 of this Article IX of these Bylaws,
bylaws, other than bylaws or an amendment of a bylaw changing the authorized
number of directors (except to fix the authorized number of directors pursuant
to a bylaw providing for a variable number of directors), may be adopted,
amended or repealed by the Board of Directors.
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