AMENDED BY-LAWS
Of
PRIME COMPANIES, INC.
A Delaware corporation
ARTICLE I
SHAREHOLDERS' MEETING
Section 1. Place of Meetings.
-------------------
All meetings of the shareholders shall be held at the office of the
corporation, in the State of California, as may be designated for that purpose
from time to time by the Board of Directors.
Section 2. Annual Meetings.
----------------
The annual meeting of the shareholders shall be held, each year at the time
and on the day following:
Time of Meeting: 10:00 a.m.
Date of Meeting First Monday in March
If this day shall be a legal holiday, then the meeting shall be held on the next
succeeding business day, at the same hour. At the annual meeting, the
shareholders shall elect a Board of Directors, consider reports of the affairs
of the corporation and transact such other business as may properly be brought
before the meeting.
Section 3. Special Meetings:
-----------------
Special meetings of the shareholders for any purpose or purposes may be
called at any time by the president, a vice-president, the secretary, an
assistant secretary, or by the Board of Directors, or by one or more
shareholders holding not less than one-fifth (1/5) of the voting power of the
corporation. Upon request in writing by registered mail to the president, a
vice-president, the secretary or an assistant secretary, directed to such
officers at the principal office of the corporation, in California, or delivered
to such officer in person by any person entitled to call a meeting of
shareholders, it shall be the duty of such officer forthwith to cause notice to
be given to the shareholders entitled to vote of a meeting to be held at such
time as such officer may fix not less than ten nor more than sixty days after
the receipt of such request. If such notice shall not be given within seven days
after the date of mailing or date of delivery of such request, the person or
persons calling the meeting may fix the time of meeting and give notice thereof
in the manner provided by these By-laws.
Section 4. Notice of Meetings.
-------------------
Notices of meetings, annual or special, shall be given in writing to
shareholders entitled to vote by the secretary or the assistant secretary, or if
there be no such officer, or in the case of his neglect or refusal, by any
director or shareholder.
Such notices shall be sent to the shareholder's address appearing on the
books of the corporation, or supplied by him to the corporation for the purpose
of notice, but not less than seven days before such meetings.
Notice of any meeting of shareholders shall specify the place, the day and
the hour of meeting, and in case of special meeting, as provided by the
Corporations Code of California, the general nature of the business to be
transacted.
If a shareholder supplies no address, notice shall be deemed to have been
given to him if mailed to the place where the principal office of the company,
in California, is situated, or published at least once in some newspaper of
general circulation in the County of said principal office. Such notice shall
specify the place, the day and hour of the meeting, and in the case of special
meetings, the general nature of the business to be transacted.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in case of an original meeting. Save, as
aforesaid, it shall not be necessary to give any notice of the adjournment or of
the business to be transacted at an adjourned meeting other than by announcement
at the meeting at which such adjournment is taken
Section 5. Consent to Shareholders' Meetings
The transactions of any meeting of shareholders, however called and
noticed, shall be 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 of the shareholders entitled to vote, not
present in person or by proxy, sign a written waiver of notice, or a consent to
the holding of such meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Section 6. Shareholders Acting Without a Meeting.
--------------------------------------
Any action which may be taken at a meeting of the shareholders, may be
taken without a meeting if authorized by a writing signed by all of the
shareholders entitled to vote at a meeting for such purpose, and filed with the
secretary of the corporation.
Section 7. Quorum.
-------
The holders of a majority of the shares entitled to vote thereat, present
in person, or represented by proxy, shall be requisite and shall constitute a
quorum at all meetings of the shareholders for the transaction of business
except as otherwise provided By law, by the Articles of Incorporation, or by
these By-laws. If, however, such majority shall not be present or represented at
any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person, or by proxy, shall have the power to adjourn the meeting from
time to time, until the requisite amount of voting shares shall be present. At
such adjourned meeting at which the requisite amount of voting shares shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 8. Voting Rights. Non-Cumulative Voting.
--------------------------------------
Only persons in whose names shares entitled to vote stand on the stock
records of the corporation on the day of any meeting of shareholders, unless
some other day be fixed by the Board of Directors for the determination of
shareholders of record, and then on such other day, shall be entitled to vote at
such meeting
Every shareholder entitled to vote at any election for directors of the
Company shall be entitled to one vote per share and shall give each one
candidate a number of votes equal to no more than the number of votes to which
his/her shares are entitled. Shareholders may not cumulate their votes.
The candidates receiving the highest number of votes up to the number of
directors to be elected are elected.
The Board of Directors may fix a time in the future not exceeding thirty
days preceding the date of any meeting of shareholders or the date fixed for the
payment of any dividend or distribution, or for the allotment of rights, or when
any change or conversion or exchange of shares shall go into effect, as a record
date for the determination of the shareholders entitled to notice of and to vote
at any such meeting, or entitled to receive any such dividend or distribution,
or any allotment of rights, or to exercise the rights in respect to any such
change, conversion or exchange of shares. In such case shareholders of record on
the date to fixed shall be entitled to notice of and to vote at such meeting, or
to receive such dividends, distribution or allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any share on
the books of the company after any record date fixed as aforesaid. The Board of
Directors may close the books of the company against transfers of shares during
the whole or any part of such period.
Section 9. Proxies.
--------
Every shareholder entitled to vote, or to execute consents, may do so,
either in person or by written proxy, executed in accordance with the provisions
of Section 2225 of the Corporations Code of California and filed with the
secretary of the corporation.
Section 10. Organization.
-------------
The Chairman, or in the absence of the Chairman, the President shall call
the meeting of the shareholders to order, and shall act as chairman of the
meeting. In the absence of the president and all of the vice-presidents,
shareholders shall appoint a chairman for such meeting. The secretary of the
company shall act as secretary of all meetings of the shareholders, but in the
absence of the secretary at any meeting of the shareholders, the presiding
officer may appoint any person to act as secretary of the meeting.
Section 11. Inspectors of Election.
-----------------------
In advance of any meeting of shareholders the Board of Directors may, if
they so elect, appoint inspectors of election to act at such meeting or any
adjournments thereof. If inspectors of election be not so appointed, the
chairman of any such meeting may, and on the request of any shareholder or his
proxy shall, make such appointment at the meeting. The number of inspectors
shall be either one or three.
ARTICLE II
DIRECTORS: MANAGEMENT
---------------------
Section 1. Powers.
-------
Subject to the limitation of the Articles of Incorporation, of the By-laws,
and the laws of the State of Delaware as to action to be authorized or approved
by the shareholders, all corporate powers shall be exercised by or under
authority of, and the business and affairs of this corporation shall be
controlled by, a Board of Directors
Section 2. Number and Qualification
------------------------
The authorized number of directors of the corporation shall be as follows:
Seven. (Amended December 13, 2000).
This number may be changed by amendment to the Articles of Incorporation or
by an amendment to this Section 2., ARTICLE II, of these By-laws, adopted by the
voter or written assent of the shareholders entitled to exercise majority voting
power.
Section 3. Election and Tenure of Office
-----------------------------
The directors shall be elected by ballot at the annual meeting of the
shareholders, to serve for one year or until their successors are elected and
have qualified. Their term of office shall begin immediately after election.
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,
and each director so elected shall hold office until his successor is elected at
an annual meeting of shareholders or at a special meeting called for that
purpose.
The shareholders may at any time elect a director to fill any vacancy not
filled by the directors, and may elect the additional directors at the meeting
at which an amendment of the By-laws is voted authorizing an increase in the
number of directors.
A vacancy or vacancies shall be deemed to exist in case of the death,
resignation or removal of any director, or if the shareholders shall increase
the authorized number of directors but shall fail at the meeting at which such
increase is authorized, or at an adjournment thereof, to elect the additional
director so provided for, or in case the shareholders fail at any time to elect
the full number of authorized directors.
If the Board of Directors accept the resignation of a Director tendered to
take effect at a future time, the Board, or the shareholders, shall have power
to elect a successor to take office when the resignation shall become affective.
No reduction of the number of directors shall have the effect of removing
any director prior to the expiration of his term of office.
Section 5. Removal of Directors.
---------------------
The entire Board of Directors or any individual director may be removed
from office as provided by Section 141 of the Corporations Code of the State of
Delaware.
Section 6. Place of Meetings.
------------------
Meetings of the Board of Directors shall be held at the office of the
corporation in the State of California, as designated for that purpose, from
time to time, by resolution of the Board of Directors or written consent of all
of the members of the Board. Any meeting shall be valid, wherever held, if held
by the written consent of all members of the Board of Directors, given either
before or after the meeting and filed with the Secretary of the corporation.
Section 7. Organization Meetings.
----------------------
The organization meetings of the Board of Directors shall be held
immediately following the adjournment of the annual meetings of the
shareholders.
Section 8. Other Regular Meetings.
-----------------------
Regular meetings of the Board of Directors shall be held at the corporate
offices, so such other place as may be designated by the Board of Directors, as
follows:
Time of Regular Meetings: 11:00 a.m.
Date of Regular Meeting: First Monday of March, June
September and December
If said day shall fall upon a holiday, such meetings shall be held of the next
succeeding business day thereafter. No notice need be given of such regular
meetings.
Section 9. Special Meetings-Notices.
-------------------------
Special meetings of the Board of Directors of an purpose or purposes shall
be called at any time by the president or if he is absent or unable or refuses
to act, by any vice-president or by any two directors.
Written notice of the time and place of special meetings shall be delivered
personally to the directors or sent to each director by letter or by telegram,
charges prepaid addressed to him at his address as it is shown upon the records
of the corporation, or if it is not so shown on such records, or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. In case such notice is mailed or telegraphed, it shall be deposited in the
United States mail or delivered to the telegraph company in the place in which
he principal office of the corporation is located at least forty-eight (48)
hours prior to the time of the holding of the meeting. In case such notice is
delivered as above provided, it shall be so delivered at least twenty-four (24)
hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery as above provided shall be due, legal and personal
notice to such director.
Section 10. Waiver of Notice
----------------
When all of the directors are present at any director's meeting, however
called or noticed. And sign a written consent thereto on the records of such
meeting, or, if a majority of the directors are present, and if those not
present sign in writing a waiver of notice of such meeting, whether prior to or
after the holding of such meeting, which said waiver shall be filed with the
Secretary of the corporation, the transaction thereof are as valid as if had at
a meeting regularly called and noticed.
Section 11. Directors Acting Without a Meeting by Unanimous Written Consent.
----------------------------------------------------------------
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting and with the same force and effect as if taken by a
unanimous vote of directors, if authorized by a writing signed by all members of
the board. Such consent shall be filed with the regular minutes of the board.
Section 12. Notice of Adjournment
---------------------
Notice of the time and place of holding an adjourned meeting need not be
given to absent directors if the time and place be fixed at the meeting
adjourned.
Section 13. Quorum
------
A majority of the number of directors as fixed by the Articles of
Incorporation or By-laws shall be necessary to constitute a quorum for the
transaction of business, and the action of a majority of the directors present
at any meeting at which there is a quorum, when duly assembled, is valid as a
corporate act; provided that a minority of the directors, in the absence of a
quorum, may adjourn from time to time, but may not transact any business.
Section 14. Compensation of Directors
-------------------------
Directors, as such, shall not receive any stated salary for their services,
but by resolution of the Board a fixed sum and expense of attendance, if any,
may be allowed for attendance at each regular and special meeting of the Board;
provided that nothing here-in contained shall be construed to preclude any
director from serving the company in any other capacity and receiving
compensation therefor.
Section 15. Executive Committee
-------------------
An executive committee may be appointed by resolution passed by a majority
of the whole Board. The executive committee shall be composed of members of the
Board, and shall have such powers as may be expressly delegated to it by
resolution of the Board of Directors. It shall act only in the intervals between
meetings of the Board and shall be subject at all times to the control of the
Board of Directors.
ARTICLE III
OFFICERS
--------
Section 1. Officers.
---------
The officers of the corporation shall be a president, a secretary and a
treasurer. The corporation may also have, at the discretion of the Board of
Directors, a chairman of the board, one or more additional vice-presidents, one
or more assistant secretaries, one or more assistant treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 3 of
this Article. One person may hold two or more offices, except those of president
and secretary.
Section 2. Election.
---------
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
shall be chosen annually by the Board of Directors, and each shall hold his
office until he shall resign or shall be removed or otherwise disqualified to
serve, or his successor shall be elected and qualified.
Section 3. Subordinate Officers, Etc.
--------------------------
The Board of Directors may 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 By-laws or as
the Board of Directors may from time to time determine.
Section 4 Removal and Resignation
-----------------------
Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, 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 to 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.
Section 5. Vacancies
---------
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
the By-laws for regular appointments to such office.
Section 6. Chairman of the Board
---------------------
The Chairman of the Board, if there shall be such an officer shall, if
present, preside at all 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 By-laws.
Section 7. President
---------
Subject to such supervisory powers, if any, as may be given by the Board of
Directors to the Chairman of the Board, if there be such an officer, the
President shall be the Chief 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 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 be ex officio a member of all the standing committees, including the
executive committee, if any, and shall have the general powers and duties of
management usually vested in the office of president of the corporation, and
shall have such other powers and duties as may be prescribed by the Board of
Directors or the By-laws.
Section 8. Vice-President
--------------
In the absence or disability of the president, the vice-presidents, in
order of their rank as fixed by the Board of Directors, or if not ranked, the
vice president designated by the Board of Directors, shall perform all the
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 By-laws.
Section 9. Secretary.
----------
The secretary shall keep, or cause to be kept, a book of minutes at the
principal office or such other place as The Board of Directors may order, of all
meetings of Directors and Shareholders, with the time and place of holding,
whether regular or special, and if special, how authorized, the notice thereof
given, the names of those present at directors' meetings, the number of shares
present or represented at shareholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal office or
at the office of the corporation's transfer agent, a share register, or
duplicate share register, showing the names of the shareholders and their
addresses; the number and classes of shares held by each, the number and date of
certificates issued for the same; and the number and date of cancellation of
every certificate surrendered for cancellation
The secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and the Board of Directors required by the By-laws or by law
to be given, and he shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the Board of directors or by the By-laws
Section 10. Treasurer.
----------
The treasurer shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses capital, surplus and shares. Any surplus, including
earned surplus, paid-in surplus and surplus arising from a reduction of stated
capital, shall be classified according to source and shown in a separate
account. The books of account shall at all reasonable times be open to
inspection by any director.
The treasurer shall deposit all moneys 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 request it, an account of all of his transactions as treasurer and
of the financial condition of the corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board of Director or
the By-laws.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 1. Limitation of Liability.
-----------------------
Officers and directors shall not be liable to the Corporation or its
shareholders for monetary damages for any action taken or any failure to take
any action taken or any failure to take any action, as a director, except
liability for:
a) the amount of a financial benefit received by such individual to which
he/she is not entitled;
b) an intention infliction of harm on the Corporation or its
shareholders;
c) any violation of the California Corporations Code not permitted to be
waived or indemnified;
d) an intentional violation of criminal law.
Section 2. Indemnification.
----------------
Unless otherwise provided in the Articles of Incorporation, the Corporation
may indemnify any individual made a party to a proceeding because the individual
is or was a director or officer of the Corporation, against liability incurred
in the proceeding. Provided, however, the indemnification is in accordance with
the laws of the State of Delaware. No indemnification will be provided if it is
determined that the Officer or Director:
1) acted in bad faith with respect to the corporation or its
shareholders;
2) the individual did not act in the Corporation's best interest;
3) the individual is adjudged liable to the Corporation for any reason;
or
4) in the case of a derivative action in which it is found the individual
is liable for deriving a personal benefit.
Section 3. Insurance.
----------
The Corporation may purchase and maintain liability insurance on behalf of
persons who are Officers and/or Directors of the Corporation to cover liability
asserted against or incurred by any such person acting in that capacity or
arising from the individual's status as an Officer or Director of the
Corporation. Insurance may be procured from any insurance company designated by
the Board of Directors.
<PAGE>
ARTICLE IV
CORPORATE RECORDS AND REPORTS - INSPECTION
------------------------------------------
Section 1. Records.
-------
The Corporation shall maintain adequate and correct accounts, books and
records of its business and properties. All of such books, records and accounts
shall be kept at its principal place of business in the State of California, as
fixed by the Board of Directors from time to time
Section 2. Inspection of Books and Records.
-------------------------------
All books and records provided for in Section 220 of the Corporations Code
of Delaware shall be open to inspection of the directors and shareholders from
time to time and in the manner provided in said Section 220.
Section 3. Certification and Inspection of By-laws.
---------------------------------------
The original or a copy of these By-laws, as amended or otherwise altered to
date, certified by the Secretary, shall be open to inspection by the
shareholders of the company, as provided in Section 220 of the Corporations Code
of Delaware.
Section 4. Checks, Drafts, Etc.
-------------------
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
shall be determined from time to time by resolution of the Board of Directors.
Section 5. Contracts Etc. - How Executed.
-----------------------------
The Board of Directors, except as in the By-laws otherwise provided, 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. Such
authority may be general or confined to specific instances. Unless so authorized
by the Board of Directors, no officer, agent or employee shall have any power of
authority to bind the corporation by any contract or engagement, or to pledge
its credit, or to render it liable for any purpose or to any amount.
Section 6. Annual Report.
-------------
The Board of Directors shall cause an annual report or statement to be sent
to the shareholders of this corporation not later than 120 days after the close
of the fiscal or calendar year.
ARTICLE VI
CERTIFICATES AND TRANSFERS OF SHARES
------------------------------------
Section 1. Certificates for Shares.
------------------------
Certificates for shares shall be of such form and device as the Board of
Directors may designate and shall state the name of the record holder of the
shares represented thereby; its number, date of issuance, the number of shares
for which it is issued, the par value, if any, or a statement that such shares
are without par value; a statement of the rights, privileges, preferences and
restrictions, if any; a statement as to the redemption or conversion, if any; a
statement of liens or restrictions upon transfer or voting, if any; if the
shares be assessable or, if assessments are collectible by personal action, a
plain statement of such facts.
Every certificate for shares must be signed by the President or a
Vice-President and the Secretary or an Assistant Secretary or must be
authenticated by facsimiles of the signatures of the President and Secretary or
by a facsimile of the signature of its President and the written signature of
its Secretary or an Assistant Secretary. Before it becomes effective every
certificate for shares authenticated by a facsimile of a signature must be
countersigned by a transfer agent or transfer clerk and must be registered by an
incorporated bank or trust company, either domestic or foreign, as registrar of
transfers.
Section 2. Transfer on the Books.
---------------------
Upon surrender to the Secretary or transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 3. Lost or Destroyed Certificates.
------------------------------
Any person claiming a certificate of stock to be lost or destroyed shall
make an affidavit or affirmation of that fact and advertise the same in such
manner as the Board of Directors may require, and shall if the directors so
require give the corporation a bond of indemnity, in form and with one or more
sureties satisfactory to the Board, is at least double the value of the stock
represented by said certificate, whereupon a new certificate may be issued in
the same tenor and for the same number of shares as the one alleged to be lost
or destroyed.
Section 4. Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, which shall be an incorporated bank or trust
company - either domestic or foreign, who shall be appointed at such times and
places as the requirements of the corporation may necessitate and the Board of
Directors may designate.
Section 5. Closing Stock Transfer Books.
----------------------------
The Board of Directors may close the transfer books in their discretion for
a period not exceeding thirty days preceding any meeting, annual or special, of
the shareholders or the day appointed for the payment of a dividend.
Section 6. Legend Condition.
----------------
In the event any shares of this corporation are issued pursuant to a permit
or exemption therefrom requiring the imposition of a legend condition the person
or persons issuing or transferring said shares shall make sure said legend
appears on the certificate and on the stub relating thereto in the stock record
book and shall not be required to transfer any shares free of such legend unless
an amendment to such permit or a new permit be first issued so authorizing such
a deletion.
ARTICLE VII
CORPORATE SEAL
--------------
The corporate seal, if any, shall be circular in form, and shall have
inscribed thereon the name of the corporation, the date of its incorporation,
and the word Delaware.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
---------------------
Section 1. By Shareholders.
---------------
New By-laws may be adopted or these By-laws may be repealed or amended at
their annual meeting, or at any other meeting of the shareholders called for
that purpose, by a vote of shareholders entitled to exercise a majority of the
voting power of the corporation, or by written assent of such shareholders.
Section 2. Powers of Directors.
-------------------
Subject to the right of the shareholders to adopt, amend or repeal By-laws,
as provided in Section 1 of this Article VII, the Board of Directors may adopt,
amend or repeal any of these By-laws other than a By-law or amendment thereof
changing the authorized number of directors.
Section 3. Record of Amendments.
--------------------
Wherever an amendment or new By-law is adopted, it shall be copied in the
book of By-laws with the original By-laws, in the appropriate place. If any
By-law is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or written assent was filed shall be stated in said book.
/s/
Secretary
September 19, 2000
Article II, Section 2 Amended December 13, 2000
