<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-B
REGISTRATION OF SECURITIES OF CERTIAN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
________________________________________________________
(Exact name of registrant as specified in its charter)
California 95-2594729
- --------------------------------------- ----------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or orginization) Identification No.)
7800 Woodley Avenue, Van Nuys, California 91406
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- --------------------------------------- ---------------------------------
Common Stock, $0.50 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
<PAGE> 2
Item 1. General Information
(a) Superior Industries International, Inc. (the "Company" or
"Registrant") was incorporated pursuant to the laws of the state of California
on May 5, 1994, and is currently a wholly-owned subsidiary of Superior
Industries International, Inc., a Delaware corporation (Superior Delaware). On
May 20, 1994, the stockholders of Superior Delaware approved the merger of
Superior Delaware with, and into, the Company in order to change the state of
incorporation. It is anticipated that this merger will become effective June
30, 1994. Upon the effectiveness of the merger, each outstanding share of
Superior Delaware will automatically be converted into one share of Common
Stock of the Company.
(b) Registrant's fiscal year ends on the last Sunday of the calendar year.
Item 2. Transaction of Succession
(a) Superior Delaware has its common stock, $0.50 par value, registered
pursuant to Section 12(b) of the Securities Exchange Act of 1934 and listed on
the New York Stock Exchange. The Company has filed a listing application with
the New York Stock Exchange to list its shares of Common Stock on that
exchange.
(b) There is incorporated herein by reference the information contained in
Exhibit A, the "Agreement of Merger", to the 1994 Proxy Statement of Superior
Delaware.
Item 3. Securities to be Registered
The Common Stock of the Company, $0.50 par value.
Item 4. Description of Registrant's Securities to be Registered
The authorized capital stock of the Company consists of 100,000,000
shares of Common Stock, $0.50 par value per share, and 1,000,000 shares of
Preferred Stock, $25.00 par value per share. The Company has not issued any of
its Preferred Stock.
Each share of the Company's Common Stock has equal dividend,
liquidation and voting rights. Holders of the Common Stock are entitled to one
vote per share on all matters that may be brought before them. In the election
of directors, shareholders are not entitled to cumulate their votes. Holders
of the Common Stock are entitled to receive dividends when and as declared by
the Board of Directors from funds legally availabile therefor. The shares of
Common Stock are not redeemable, have no converstion rights and carry no
preemptive or other rights to subscribe to additional shares. The issued and
outstanding shares are fully paid and non-assessable.
Item 5. Financial Statements and Exhibits
(a) As provided in Instruction (a) of Instructions as to Financial
Statements for Form 8-B, no financial statements are being filed with this
Registration Statement since the capital structure and balance sheet of the
Registrant immediately after the merger will be identical to those of Superior
Delaware immediately prior to the merger.
(b) Exhibits.
1. The 1994 Proxy Statement of Superior Delaware, including Exhibit A
thereto, filed with the Commission on March 30, 1994, is incorporated herein by
reference.
3.1 Articles of Incorporation of the Company.
3.2 Certificate of Amendment of Articles of Incorporation of the Company.
3.3 By-Laws of the Company.
3.4 Restated By-Laws of the Company.
3.5 Restated Articles of Incorporation of the Company.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
(Registrant)
Date: June 14, 1994 By: /s/ Charles E. Barrantes
------------------------------------
Charles E. Barrantes
Corporate Controller
and Secretary
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EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
CALIFORNIA SUPERIOR INDUSTRIES INTERNATIONAL, INC.
ONE: The name of this corporation is CALIFORNIA SUPERIOR
INDUSTRIES INTERNATIONAL, INC.
TWO: The purpose of this corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of California other than the banking business, the
trust company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THREE: The name of this corporation's initial agent for
service of process is C T Corporation System.
FOUR: This corporation is authorized to issue one class of
shares of stock; the total number of said shares is one thousand (1,000).
FIVE: The liability of the directors of this corporation
for monetary damages shall be eliminated to the fullest extent permissible
under California law.
SIX: This corporation is authorized to indemnify the
directors and officers of this corporation to the fullest extent permissible
under California law.
Dated: May ___, 1994.
________________________________
Stephanie Roberts, Incorporator
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EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
CALIFORNIA SUPERIOR INDUSTRIES INTERNATIONAL, INC.
Stephanie Roberts certifies that:
1. I am the sole incorporator of CALIFORNIA SUPERIOR INDUSTRIES
INTERNATIONAL, INC., a California corporation.
2. I hereby adopt the following amendment of the Articles of
Incorporation of this corporation:
Article FOUR is amended to read as follows:
FOUR: This corporation is authorized to issue two classes
of shares designated, respectively, "Common Stock" and "Preferred
Stock." The number of shares of Common Stock authorized to be issued
is one hundred million (100,000,000) and the number of shares of
Preferred Stock authorized to be issued is one million (1,000,000).
The Preferred Stock may be divided into such
number of series as the Board of Directors may determine. The Board
of Directors is authorized to determine and alter the rights,
preferences, privileges and restrictions granted to and imposed upon
the Preferred Stock or any series thereof with respect to any wholly
unissued class or series of Preferred Stock, and to fix the number of
shares of any series of Preferred Stock and the designation of any
such series of Preferred Stock. The Board of Directors, within the
limits and restrictions stated in any resolution of the Board of
Directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares
of such series then outstanding) the number of shares of any series
subsequent to the issue of shares of that series.
3. No directors were named in the original Articles of Incorporation and
none have been elected.
4. No shares have been issued.
I further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of my own knowledge.
Dated: June 6, 1994.
________________________________
Stephanie Roberts, Incorporator
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EXHIBIT 3.3
BYLAWS
for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of
CALIFORNIA SUPERIOR INDUSTRIES INTERNATIONAL, INC.
a California corporation
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TABLE OF CONTENTS
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ARTICLE I. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Principal Executive Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. SHARES AND SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.01 Meetings of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(d) Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(e) Adjourned Meeting and Notice Thereof . . . . . . . . . . . . . . . . . . . . . . . . 2
(f) Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(g) Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02 Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.03 Voting of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Cumulative Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Election by Ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.04 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.05 Inspectors of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.06 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.07 Share Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
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(b) Two or More Classes or Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(c) Special Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.08 Transfer of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.09 Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.01 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.02 Committees of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.03 Election and Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.04 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.05 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.06 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.07 Meetings of the Board of Directors
Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Organization Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Notices; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(e) Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(f) Place of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(g) Presence by Conference Telephone Call . . . . . . . . . . . . . . . . . . . . . . . . 11
(h) Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.08 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.09 Committee Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.01 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.02 Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.03 Other Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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4.04 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.05 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.06 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.07 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.08 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.09 Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.10 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11 Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.12 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.01 Records and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Books of Account and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Shareholders' Requests for Financial Reports . . . . . . . . . . . . . . . . . . . . 14
5.02 Rights of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) By Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(1) Record of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(2) Corporate Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(3) Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) By Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.03 Checks, Drafts, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.04 Representation of Shares of Other Corporations . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.05 Indemnification and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Right to Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Right of Claimant to Bring Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Non-Exclusivity of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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(d) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(e) Indemnification of Employees and Agents of the Corporation . . . . . . . . . . . . . 18
5.06 Employee Stock Purchase Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.07 Construction and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.01 Power of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.02 Power of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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BYLAWS
for the regulation, except as otherwise provided
by statute or the Articles of Incorporation,
of
CALIFORNIA SUPERIOR INDUSTRIES INTERNATIONAL, INC.
a California corporation
ARTICLE I. GENERAL PROVISIONS
Section 1.01 Principal Executive Office. The principal executive office of
the corporation shall be located at 7800 Woodley Avenue, Van Nuys, California.
The Board of Directors shall have the power to change the principal office to
another location and may fix and locate one or more subsidiary offices within
or without the State of California.
Section 1.02 Number of Directors. The number of directors of the corporation
shall be three until changed by a bylaw amending this Section 1.02 duly adopted
by the vote or written consent of a majority of the outstanding shares entitled
to vote; provided, however, that if any time the minimum number of directors is
five or more, a bylaw reducing the minimum number of directors to a number less
than five cannot be adopted if the votes cast against its adoption at a meeting
or the shares not consenting in the case of action by written consent are equal
to more than 16-2/3 percent of the outstanding shares entitled to vote.
ARTICLE II. SHARES AND SHAREHOLDERS
Section 2.01 Meetings of Shareholders.
a. Place of Meetings. Meetings of shareholders shall be held at
any place within or without 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.
b. Annual Meetings. An annual meeting of the shareholders of the
corporation shall be held on the second Tuesday of May of of each year at 10:30
a.m. or at such other date and time as may be designated by the Board of
Directors. Should said day fall upon a legal holiday, the annual meeting of
shareholders shall be held at the same time on the next day thereafter ensuing
which is a full business day. At each annual meeting directors shall be
elected, and any other proper business may be transacted.
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c. Special Meetings. Special meetings of the shareholders may be
called by the Board of Directors, the chairman of the board, the president, or
by the holders of shares entitled to cast not less than ten percent of the
votes at the meeting. Upon request in writing to the chairman of the board,
the president, any vice president or the secretary by any person (other than
the board) entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to the shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than 35 nor more than 60 days after the receipt
of the request. If the notice is not given within 20 days after receipt of the
request, the persons entitled to call the meeting may give the notice.
d. Notice of Meetings. Notice of any shareholders' meeting shall
be given not less than 10 nor more than 60 days before the date of the meeting
to each shareholder entitled to vote thereat. Such notice shall state the
place, date and hour of the meeting and (i) in the case of a special meeting,
the general nature of the business to be transacted, and no other business may
be transacted, or (ii) in the case of the annual meeting, those matters which
the Board, at the time of the giving of the notice, intends to present for
action by the shareholders. The notice of any meeting at which directors are
to be elected shall include the names of nominees intended at the time of the
notice to be presented by the board for election.
If action is proposed to be taken at any meeting, which action
is within Sections 310, 902, 1201, 1900 or 2007 of the General Corporation Law
of the State of California, the notice shall also state the general nature of
that proposal.
Notice of a shareholders' meeting shall be given either
personally or by first-class mail, or other means of written communication,
charges prepaid, addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice; or if no such address
appears or is given, at the place where the principal executive office of the
corporation is located or by publication at least once in a newspaper of
general circulation in the county in which the principal executive office is
located. The notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any notice executed by the
secretary, assistant secretary or any transfer agent, shall be prima facie
evidence of the giving of the notice.
e. Adjourned Meeting and Notice Thereof. Any meeting of
shareholders may be adjourned from time to time by the vote of a majority of
the shares represented either in person or by
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proxy whether or not a quorum is present. When a shareholders' meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business which might have been transacted at the original meeting.
However, if the adjournment is for more than 45 days or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at the meeting.
f. Waiver of Notice. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify either the business to be transacted or the purpose of any
annual or special meeting of shareholders, except that if action is taken or
proposed to be taken for approval of any of those matters specified in the
second paragraph of subparagraph (d) of Section 2.01 of this Article II, the
waiver of notice or consent 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.
g. Quorum. The presence in person or by proxy of the persons
entitled to vote a majority of the shares entitled to vote at any meeting shall
constitute a quorum for the transaction of business. If a quorum is present,
the affirmative vote of the majority of the shares represented and voting at
the meeting (which shares voting affirmatively also constitute at least a
majority of the required quorum) shall be the act of the shareholders, unless
the vote of a greater number or voting by classes is required by law or the
Articles of Incorporation of the corporation.
The shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, provided that any action taken (other than adjournment) must be
approved by at least a majority of the shares required to constitute a quorum.
Section 2.02 Action Without a Meeting. Any action which may be taken at any
annual or special meeting of shareholders may be taken without a meeting and
without prior notice, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding shares having not less
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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. Notwithstanding the foregoing, directors may not be elected
by written consent except by unanimous written consent of all shares entitled
to vote for the election of directors, except as provided by Section 3.04
hereof.
Where the approval of shareholders is given without a meeting by less
than unanimous written consent, unless the consents of all shareholders
entitled to vote have been solicited in writing, the secretary shall give
prompt notice of the corporate action approved by the shareholders without a
meeting. In the case of approval of transactions pursuant to Section 310, 317,
1201 or 2007 of the General Corporation Law of the State of California, the
notice shall be given at least ten days before the consummation of any action
authorized by that approval. Such notice shall be given in the same manner as
notice of shareholders' meeting.
Section 2.03 Voting of Shares.
(a) In General. Except as otherwise provided in the Articles of
Incorporation and subject to subparagraph (b) hereof, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to
a vote of shareholders.
(b) Cumulative Voting. At any election of directors, every
shareholder complying with this paragraph (b) and entitled to vote may cumulate
his or her votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which the
shareholder's shares are entitled, or distribute the shareholder's votes on the
same principle among as many candidates as the shareholder thinks fit. No
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the number of votes which such
shareholder normally is entitled to cast) unless such candidate or candidates'
names have been placed in nomination prior to the voting and the shareholder
has given notice at the meeting prior to the voting of the shareholder's
intention to cumulate the shareholder's votes. If any one shareholder has
given such notice, all shareholders may cumulate their votes for candidates in
nomination. In any election of directors, the candidates receiving the highest
number of affirmative votes up to the number of directors to be elected by such
shares are elected; votes against a director and votes withheld shall have no
legal effect.
(c) Election by Ballot. Elections for directors need not be by
ballot unless a shareholder demands election by ballot at the meeting and
before the voting begins.
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Section 2.04 Proxies. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. No
proxy shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy continues in full force
and effect until revoked by the person executing it prior to the vote pursuant
thereto, except as otherwise herein provided. Such revocation may be effected
by a writing delivered to the corporation stating that the proxy is revoked or
by a subsequent proxy executed by the person executing the prior proxy and
presented to the meeting, or as to any meeting by attendance at such meeting
and voting in person by the person executing the proxy. The dates contained on
the forms of proxy presumptively determine the order of execution, regardless
of the postmark dates on the envelopes in which they are mailed. A proxy is
not revoked by the death or incapacity of the maker unless, before the vote is
counted, written notice of such death or incapacity is received by the
corporation. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f)
of the California General Corporation Law.
Section 2.05 Inspectors of Election.
(a) Appointment. In advance of any meeting of shareholders the
Board may appoint inspectors of election to act at the meeting and any
adjournment thereof. If inspectors of election are not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to
replace those who so fail or refuse) at the meeting. The number of inspectors
shall be either one or three. If appointed at a meeting on the request of one
or more shareholders or proxies, the majority of shares represented in person
or by proxy shall determine whether one or three inspectors are to be
appointed.
(b) Duties. The inspectors of election shall determine the number
of shares outstanding and the voting power of each, the shares represented at
the meeting, the existence of a quorum and the authenticity, validity and
effect of proxies, receive votes, ballots or consents, hear and determine all
challenges and questions in any way arising in connection with the right to
vote, count and tabulate all votes or consents, determine when the polls shall
close, determine the result and do such acts as may be proper to conduct the
election or vote with fairness to all shareholders. The inspectors of election
shall perform their duties impartially, in good faith, to the best of their
ability and as expeditiously as is practical. If there are three inspectors of
election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. Any report or cer-
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tificate made by the inspectors of election is prima facie evidence of the
facts stated therein.
Section 2.06 Record Date. In order that the corporation may determine the
shareholders entitled to notice of any meeting or to vote or entitled to
receive payment of any dividend or other distribution or allotment of any
rights or entitled to exercise any rights in respect of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days prior to the date of such meeting nor more than
60 days prior to any other action. If no record date is fixed:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(2) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting, when no prior
action by the Board has been taken, shall be the day on which the first written
consent is given.
(3) The record date for determining shareholders for any
other purpose shall be at the close of business on the day on which the board
adopts the resolution relating thereto, or the 60th day prior to the date of
such other action, whichever is later.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless
the board fixes a new record date for the adjourned meeting, but the board
shall fix a new record date if the meeting is adjourned for more than 45 days
from the date set for the original meeting.
Shareholders at the close of business on the record date are entitled
to notice and to vote or to receive the dividend, distribution or allotment of
rights or to exercise the rights, 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 Articles of Incorporation or by agreement
or in the California General Corporation Law.
Section 2.07 Share Certificates.
(a) In General. The corporation shall issue a certificate or
certificates representing shares of its capital stock. Each certificate so
issued shall be signed in the name of the corporation by the chairman or vice
chairman of the board or the president or a vice president and by the chief
financial
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officer or an assistant treasurer or the secretary or any assistant secretary,
shall state the name of the record owner thereof and shall certify the number
of shares and the class or series of shares represented thereby. 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 upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
(b) Two or More Classes or Series. If the shares of the
corporation are classified or if any class of shares has two or more series,
there shall appear on the certificate one of the following:
(1) A statement of the rights, preferences, privileges,
and restrictions granted to or imposed upon the respective classes or series of
shares authorized to be issued and upon the holders thereof; or
(2) A summary of such rights, preferences, privileges and
restrictions with reference to the provisions of the Articles of Incorporation
and any certificates of determination establishing the same; or
(3) A statement setting forth the office or agency of the
corporation from which shareholders may obtain upon request and without charge,
a copy of the statement referred to in subparagraph (1).
(c) Special Restrictions. There shall also appear on the
certificate (unless stated or summarized under subparagraph (1) or (2) of
subparagraph (b) above) the statements required by all of the following clauses
to the extent applicable:
(1) The fact that the shares are subject to restrictions
upon transfer.
(2) If the shares are assessable, a statement that they
are assessable.
(3) If the shares are not fully paid, a statement of the
total consideration to be paid therefor and the amount paid thereon.
(4) The fact that the shares are subject to a voting
agreement or an irrevocable proxy or restrictions upon voting rights
contractually imposed by the corporation.
(5) The fact that the shares are redeemable.
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(6) The fact that the shares are convertible and the
period for conversion.
Section 2.08 Transfer of Certificates. Where a certificate for shares is
presented to the corporation or its transfer clerk or transfer agent with a
request to register a transfer of shares, the corporation shall register the
transfer, cancel the certificate presented, and issue a new certificate if:
(a) the security is endorsed by the appropriate person or persons; (b)
reasonable assurance is given that those endorsements are genuine and
effective; (c) the corporation has no notice of adverse claims or has
discharged any duty to inquire into such adverse claims; (d) any applicable law
relating to the collection of taxes has been complied with; (e) the transfer is
not in violation of any federal or state securities law; and (f) the transfer
is in compliance with any applicable agreement governing the transfer of the
shares.
Section 2.09 Lost Certificates. Where a certificate has been lost, destroyed
or wrongfully taken, the corporation shall issue a new certificate in place of
the original if the owner: (a) so requests before the corporation has notice
that the certificate has been acquired by a bona fide purchaser; (b) files with
the corporation a sufficient indemnity bond, if so requested by the Board of
Directors; and (c) satisfies any other reasonable requirements as may be
imposed by the Board. Except as above provided, no new certificate for shares
shall be issued in lieu of an old certificate unless the corporation is ordered
to do so by a court in the judgment in an action brought under Section 419(b)
of the California General Corporation Law.
ARTICLE III. DIRECTORS
Section 3.01 Powers. Subject to the provisions of the California General
Corporation Law and the Articles of Incorporation, the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. The Board may delegate the
management of the day-to-day operations of the business of the corporation to a
management company or other person provided that the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board.
Section 3.02 Committees of the Board. The Board may, by resolution adopted by
a majority of the authorized number of directors, designate one or more
committees, each consisting of two or more directors, to serve at the pleasure
of the Board. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
such
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committee, to the extent provided in the resolution of the Board, shall have
all the authority of the Board, except with respect to:
(1) The approval of any action which also requires, under
the California General Corporation Law, shareholders' approval or approval of
the outstanding shares;
(2) The filling of vacancies on the Board or in any
committee.
(3) The fixing of compensation of the directors for
serving on the Board or on any committee.
(4) The amendment or repeal of bylaws or the adoption of
new bylaws.
(5) The amendment or repeal of any resolution of the
Board which by its express terms is not so amendable or repealable.
(6) A distribution (within the meaning of the California
General Corporation Law) to the shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the Board.
(7) The appointment of other committees of the Board or
the members thereof.
Section 3.03 Election and Term of Office. The directors shall be elected at
each annual meeting of shareholders but, if any such annual meeting is not held
or the directors are not elected thereat, the directors may be elected at any
special meeting of shareholders held for that purpose. Each director,
including a director elected to fill a vacancy, shall hold office until the
expiration of the term for which elected and until a successor has been elected
and qualified.
Section 3.04 Vacancies. Except for a vacancy created by the removal of a
director, vacancies on the Board may be filled by approval of the Board or, if
the number of directors then in office is less than a quorum, by (a) the
unanimous written consent of the directors then in office, (b) the affirmative
vote of a majority of the directors then in office at a meeting held pursuant
to notice or waivers of notice under the California General Corporation Law, or
(c) a sole remaining director. The shareholders may elect a director or
directors at any time to fill any vacancy or vacancies not filled by the
directors, but any such election by written consent requires the consent of a
majority of the outstanding shares entitled to vote.
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The Board of Directors shall have the power to declare vacant the
office of a director who has been declared of unsound mind by an order of
court, or convicted of a felony.
Section 3.05 Removal. Any or all of the directors may be removed without
cause if such removal is approved by the vote of a majority of the outstanding
shares entitled to vote, except that no director may be removed (unless the
entire board is removed) when the votes cast against removal, or not consenting
in writing to such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were cast
(or, if such action is taken by written consent, all shares entitled to vote
were voted) and the entire number of directors authorized at the time of the
director's most recent election were then being elected.
Section 3.06 Resignation. Any director may resign effective upon giving
written notice to the chairman of the board, the president, the secretary or
the Board of Directors of the corporation, unless the notice specifies a later
time for the effectiveness of such resignation. If the resignation is
effective at a future time, a successor may be elected to take office when the
resignation becomes effective.
Section 3.07 Meetings of the Board of Directors and Committees.
(a) Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place within or without the State
as may be designated from time to time by resolution of the Board or by written
consent of all members of the Board or in these bylaws.
(b) Organization Meeting. Immediately following each annual
meeting of shareholders the Board of Directors shall hold a regular meeting for
the purpose of organization, election of officers, and the transaction of other
business. Notice of such meetings is hereby dispensed with.
(c) Special Meetings. Special meetings of the Board of Directors
for any purpose or purposes may be called at any time by the chairman of the
board or the president or, by any vice president or the secretary or any two
directors.
(d) Notices; Waivers. Special meetings shall be held upon four
days' notice by mail or 48 hours' notice delivered personally or by telephone
or telegraph. Notice of a meeting need not be given to any director 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 who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the
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corporate records or made a part of the minutes of the meeting.
(e) Adjournment. A majority of the directors present, whether or
not a quorum is present, may adjourn any meeting to another time and place. If
the meeting is adjourned for more than 24 hours, notice of such adjournment to
another time and place shall be given prior to the time of the adjourned
meeting to the directors who were not present at the time of adjournment.
(f) Place of Meeting. Meetings of the Board may be held at any
place within or without the state which has been designated in the notice of
the meeting or, if not stated in the notice or there is no notice, then such
meeting shall be held at the principal executive office of the corporation, or
such other place designated by resolution of the Board.
(g) Presence by Conference Telephone Call. Members of the Board
may participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear one another. Such participation constitutes presence in person at
such meeting.
(h) Quorum. A majority of the authorized number of directors
constitutes a quorum of the Board for the transaction of business. Every act
or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present is the act of the Board of Directors,
unless a greater number be required by law or by the Articles of Incorporation.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for such meeting.
Section 3.08 Action Without Meeting. Any action required or permitted to be
taken by the Board of Directors, may be taken without a meeting if all members
of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of
the proceedings of the Board. Such action by written consent shall have the
same force and effect as a unanimous vote of such directors.
Section 3.09 Committee Meetings. The provisions of Sections 3.07 and 3.08 of
these bylaws apply also to committees of the Board and action by such
committees, mutatis mutandis.
ARTICLE IV. OFFICERS
Section 4.01 Officers. The officers of the corporation shall consist of a
chairman of the board or a president, or both, a
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secretary, a chief financial officer, and such additional officers as may be
elected or appointed in accordance with Section 4.03 of these bylaws and as may
be necessary to enable the corporation to sign instruments and share
certificates. Any number of offices may be held by the same person.
Section 4.02 Elections. All officers of the corporation, except such officers
as may be otherwise appointed in accordance with Section 4.03, shall be chosen
by the Board of Directors, and shall serve at the pleasure of the Board of
Directors, subject to the rights, if any, of an officer under any contract of
employment.
Section 4.03 Other Officers. The Board of Directors, the chairman of the
board, or the president at their or his discretion, may appoint one or more
vice presidents, one or more assistant secretaries, a treasurer, one or more
assistant treasurers, or 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 the Board of Directors, the chairman of
the board, or the president, as the case may be, may from time to time
determine.
Section 4.04 Removal. Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with or without
cause, by the Board of Directors, 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, without prejudice to the rights, if any,
of the corporation under any contract to which the officer is a party.
Section 4.05 Resignation. 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 without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed in these bylaws for regular appointments to such office.
Section 4.07 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. If there is no
president, the chairman of the board shall in addition
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be the chief executive officer of the corporation and shall have the powers and
duties prescribed in Section 4.08 below.
Section 4.08 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 general manager and chief executive officer
of the corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and affairs 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 a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or these bylaws.
Section 4.09 Vice President. In the absence of the president or in the event
of the president's inability or refusal to act, the vice president, or in the
event there be more than one vice president, the vice president designated by
the Board of Directors, or if no such designation is made, in order of their
election, shall perform the duties of president and when so acting, shall have
all the powers of and be subject to all the restrictions upon the president.
Any vice president shall perform such other duties as from time to time may be
assigned to such vice president by the president or the Board of Directors.
Section 4.10 Secretary. The secretary shall keep or cause to be kept the
minutes of proceedings and record of shareholders, as provided for and in
accordance with Section 5.01(a) of these bylaws.
The secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the Board of Directors required by these bylaws or
by law to be given, and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors.
Section 4.11 Chief Financial Officer. The chief financial officer shall have
general supervision, direction and control of the financial affairs of the
corporation and shall have such other powers and duties as may be prescribed by
the Board of Directors or these bylaws. In the absence of a named treasurer,
the chief financial officer shall also have the powers and duties of the
treasurer as hereinafter set forth and shall be authorized and empowered to
sign as treasurer in any case where such officer's signature is required.
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Section 4.12 Treasurer. The treasurer shall keep or cause to be kept the
books and records of account as provided for and in accordance with Section
5.01(a) of these bylaws. 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 Directors or these bylaws. In the absence of a
named chief financial officer, the treasurer shall be deemed to be the chief
financial officer and shall have the powers and duties of such office as
hereinabove set forth.
ARTICLE V. MISCELLANEOUS
Section 5.01 Records and Reports.
(a) Books of Account and Proceedings. The corporation shall keep
adequate and correct books and records of account and shall keep minutes of the
proceedings of its shareholders, Board and committees of the board and shall
keep at its principal executive office, or at the office of its transfer agent
or registrar, a record of its shareholders, giving the names and addresses of
all shareholders and the number and class of shares held by each. Such minutes
shall be kept in written form. Such other books and records shall be kept
either in written form or in any other form capable of being converted into
written form.
(b) Annual Report. An annual report to shareholders referred to
in Section 1501 of the California General Corporation Law is expressly
dispensed with, but nothing herein shall be interpreted as prohibiting the
Board of Directors from issuing annual or other periodic reports to the
shareholders of the corporation as they consider appropriate.
(c) Shareholders' Requests for Financial Reports. If no annual
report for the last fiscal year has been sent to shareholders, the corporation
shall, upon the written request of any shareholder made more than 120 days
after the close of that fiscal year, deliver or mail to the person making the
request within 30 days thereafter the financial statements for that year
required by Section 1501(a) of the California General Corporation Law. Any
shareholder or shareholders holding at least five percent of the outstanding
shares of any class of this corporation may make a written request to the
corporation for an income statement of the corporation for the
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three-month, six-month or nine-month period of the current fiscal year ended
more than 30 days prior to the date of the request and a balance sheet of the
corporation as of the end of such period, and the corporation shall deliver or
mail the statements to the person making the request within 30 days thereafter.
A copy of the statements shall be kept on file in the principal office of the
corporation for 12 months and they shall be exhibited at all reasonable times
to any shareholder demanding an examination of them or a copy shall be mailed
to such shareholder upon demand.
Section 5.02 Rights of Inspection.
(a) By Shareholders.
(1) Record of Shareholders. Any shareholder or
shareholders holding at least five percent in the aggregate of the outstanding
voting shares of the corporation or who hold at least one percent of such
voting shares and have filed a Schedule 14B with the United States Securities
and Exchange Commission relating to the election of directors of the
corporation shall have an absolute right to do either or both of the following:
(i) inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five business days' prior
written demand upon the corporation, or (ii) obtain from the transfer agent for
the corporation, upon written demand and upon the tender of its usual charges
for such a list (the amount of which charges shall be stated to the shareholder
by the transfer agent upon request), a list of the shareholders' names and
addresses, who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which it has been compiled
or as of a date specified by the shareholder subsequent to the date of demand.
The list shall be made available on or before the later of five business days
after demand is received or the date specified therein as the date as of which
the list is to be compiled.
The record of shareholders shall also be open to
inspection and copying by any shareholder or holder of a voting trust
certificate at any time during usual business hours upon written demand on the
corporation, for a purpose reasonably related to such holder's interests as a
shareholder or holder of a voting trust certificate.
(2) Corporate Records. The accounting books and records
and minutes of proceedings of the shareholders and the Board and committees of
the board shall be open to inspection upon the written demand on the
corporation of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose reasonably related
to such holder's interests as a shareholder or as the holder of such voting
trust certificate. This right of inspection
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shall also extend to the records of any subsidiary of the corporation.
(3) Bylaws. The corporation shall keep at its principal
executive office in this state, the original or a copy of its bylaws as amended
to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
(b) By Directors. Every director shall have the absolute right at
any reasonable time to inspect and copy all books, records and documents of
every kind and to inspect the physical properties of the corporation of which
such person is a director and also of its subsidiary corporations, domestic or
foreign. Such inspection by a director may be made in person or by agent or
attorney and the right of inspection includes the right to copy and make
extracts.
Section 5.03 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, from time to time, shall be determined by
resolution of the Board of Directors.
Section 5.04 Representation of Shares of Other Corporations. The chairman of
the board, if any, president or any vice president of this corporation, or any
other person authorized to do so by the chairman of the board, president or any
vice president, is authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or
corporations may be exercised either by such officers in person or by any other
person authorized so to do by proxy or power of attorney duly executed by said
officers.
Section 5.05 Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party to or is threatened to be made a party to or is involuntarily involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the corporation or is or was serving (during such
person's tenure as director or officer) at the request of the corporation, any
other corporation, partnership, joint venture, trust or other enterprise in any
capacity, whether the basis of a Proceeding is an alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer,
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shall be indemnified and held harmless by the corporation to the fullest extent
authorized by California General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending a Proceeding in advance of its final
disposition; provided, however, that, if California General Corporation Law
requires, the payment of such expenses in advance of the final disposition of
a Proceeding shall be made only upon receipt by the corporation of an
undertaking by or on behalf of such director or officer to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Section or otherwise. No amendment
to or repeal of this Section 5.05 shall apply to or have any effect on any
right to indemnification provided hereunder with respect to any acts or
omissions occurring prior to such amendment or repeal.
(b) Right of Claimant to Bring Suit. If a claim for indemnity
under paragraph (a) of this Section is not paid in full by the corporation
within 90 days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall also be entitled to be paid the expense of prosecuting such
claim including reasonable attorneys' fees incurred in connection therewith.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending a Proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the standards
of conduct which make it permissible under California General Corporation Law
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 or she has met the applicable standard of conduct
set forth in California General Corporation Law, 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,
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<PAGE> 23
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The rights conferred in this
Section shall not be exclusive of any other rights which any director, officer,
employee or agent may have or hereafter acquire under any statute, provision of
the Articles of Incorporation, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, to the extent the additional rights to
indemnification are authorized in the Articles of Incorporation of the
corporation.
(d) Insurance. In furtherance and not in limitation of the powers
conferred by statute:
(1) the corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or
not the corporation would have the power to indemnify the person against that
expense, liability or loss under the California General Corporation Law.
(2) the corporation may create a trust fund, grant a
security interest and/or use other means (including, without limitation,
letters of credit, surety bonds and/or other similar arrangements), as well as
enter into contracts providing indemnification to the full extent authorized or
permitted by law and including as part thereof provisions with respect to any
or all of the foregoing to ensure the payment of such amounts as may become
necessary to effect indemnification as provided therein, or elsewhere.
(e) Indemnification of Employees and Agents of the Corporation.
The corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the corporation the expenses incurred in defending a Proceeding in advance of
its final disposition, to any employee or agent of the corporation to the
fullest extent of the provisions of this Section or otherwise with respect to
the indemnification and advancement of expenses of directors and officers of
the corporation.
Section 5.06 Employee Stock Purchase Plans. The corporation may adopt and
carry out a stock purchase plan or agreement or stock option plan or agreement
providing for the issue and sale for such consideration as may be fixed of its
unissued shares, or of issued shares acquired or to be acquired, to one or more
of the employees or directors of the corporation or of a subsidiary or to a
trustee on their behalf and for the payment for such shares in installments or
at one time, and may provide for aiding any such persons in paying for such
shares
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<PAGE> 24
by compensation for services rendered, promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment, an option or obligation on the part of
the corporation to repurchase the shares upon termination of employment,
subject to the provisions of the California General Corporation Law,
restrictions upon transfer of the shares and the time limits of and termination
of the plan.
Section 5.07 Construction and Definitions. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the California General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the
term "person" includes a corporation as well as a natural person.
ARTICLE VI. AMENDMENTS
Section 6.01 Power of Shareholders. New bylaws may be adopted or these bylaws
may be amended or repealed by the vote of shareholders entitled to exercise a
majority of the voting power of the corporation or by the written assent of
such shareholders, except as otherwise provided by law or by the Articles of
Incorporation.
Section 6.02 Power of Directors. Subject to the right of shareholders as
provided in Section 6.01 to adopt, amend or repeal bylaws, any bylaw may be
adopted, amended or repealed by the Board of Directors other than a bylaw or
amendment thereof changing the authorized number of directors, if such number
is fixed, or the maximum-minimum limits thereof, if an indefinite number.
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<PAGE> 25
THIS IS TO CERTIFY:
That I am the duly elected, qualified and acting Secretary of
CALIFORNIA SUPERIOR INDUSTRIES INTERNATIONAL, INC., a California corporation,
and that the foregoing bylaws were adopted as the bylaws of said corporation by
the Unanimous Written Consent of the Board of Directors of said corporation on
June ___, 1994.
Dated: June ___, 1994.
______________________________
_____________, Secretary
<PAGE> 1
EXHIBIT 3.4
RESTATED
BYLAWS
for the regulation, except as
otherwise provided by statute or
the Articles of Incorporation, of
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
a California corporation
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE I. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01 Principal Executive Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. SHARES AND SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.01 Meetings of Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
a. Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
b. Annual Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
c. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
d. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
e. Adjourned Meeting and Notice Thereof. . . . . . . . . . . . . . . . . . . 2
f. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
g. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.02 No Action Without Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03 Voting of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Cumulative Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Election by Ballot. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.04 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.05 Inspectors of Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.06 Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.07 Share Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
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(b) Two or More Classes or Series. . . . . . . . . . . . . . . . . . . . . . . 5
(c) Special Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.08 Transfer of Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.09 Lost Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.10 Nominations by Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.01 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.02 Committees of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.03 Election and Term of Office. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.04 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.05 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.06 Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.07 Meetings of the Board of Directors and Committees. . . . . . . . . . . . . . . . 9
(a) Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Organization Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Notices; Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(e) Adjournment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(f) Place of Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(g) Presence by Conference Telephone Call. . . . . . . . . . . . . . . . . . . 10
(h) Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.08 Action Without Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.09 Committee Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.01 Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
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Section 4.02 Elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.03 Other Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.04 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.05 Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.06 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.07 Chairman of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.08 President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.09 Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.10 Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.11 Chief Financial Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.12 Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.01 Records and Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Books of Account and Proceedings. . . . . . . . . . . . . . . . . . . . . 13
(b) Annual Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Shareholders' Requests for Financial Reports. . . . . . . . . . . . . . . 14
Section 5.02 Rights of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) By Shareholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(1) Record of Shareholders. . . . . . . . . . . . . . . . . . . . . . 14
(2) Corporate Records. . . . . . . . . . . . . . . . . . . . . . . . . 15
(3) Bylaws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) By Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.03 Checks, Drafts, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.04 Representation of Shares of Other Corporations. . . . . . . . . . . . . . . . . . 16
Section 5.05 Indemnification and Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
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(a) Right to Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 16
(b) Right of Claimant to Bring Suit. . . . . . . . . . . . . . . . . . . . . . 17
(c) Non-Exclusivity of Rights. . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(e) Indemnification of Employees and Agents of the
Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.06 Employee Stock Purchase Plans. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.07 Construction and Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.01 Power of Shareholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.02 Power of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<PAGE> 6
RESTATED BYLAWS
for the regulation, except as otherwise provided
by statute or the Restated Articles of Incorporation,
of
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
a California corporation
ARTICLE I. GENERAL PROVISIONS
Section 1.01 Principal Executive Office. The principal executive office of
the corporation shall be located at 7800 Woodley Avenue, Van Nuys, California.
The Board of Directors shall have the power to change the principal office to
another location and may fix and locate one or more subsidiary offices within
or without the State of California.
Section 1.02 Number of Directors. The number of directors of the corporation
shall be not less than nine nor more than fifteen with the initial number being
nine. The number of directors may be changed within the above parameters by a
bylaw amending this Section 1.02 duly adopted by the vote or written consent of
a majority of the outstanding shares entitled to vote or by a resolution
adopted by a majority of the total number of authorized directors.
ARTICLE II. SHARES AND SHAREHOLDERS
Section 2.01 Meetings of Shareholders.
a. Place of Meetings. Meetings of shareholders shall be
held at any place within or without 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.
b. Annual Meetings. An annual meeting of the shareholders
of the corporation shall be held on the second Tuesday of May of each year at
10:30 a.m. or at such other date and time as may be designated by the Board of
Directors. Should said day fall upon a legal holiday, the annual meeting of
shareholders shall be held at the same time on the next day thereafter ensuing
which is a full business day. At each annual meeting directors shall be
elected, and any other proper business may be transacted.
c. Special Meetings. Special meetings of the shareholders
may be called by the Board of Directors, the chairman of the board, the
president, or by the holders of shares entitled to cast not less than ten
percent of the votes at the meeting. Upon request in writing to the chairman
of the
<PAGE> 7
board, the president, any vice president or the secretary by any person (other
than the board) entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to the shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than 35 nor more than 60 days after the receipt
of the request. If the notice is not given within 20 days after receipt of the
request, the persons entitled to call the meeting may give the notice.
d. Notice of Meetings. Notice of any shareholders'
meeting shall be given in accordance with Sections 601(a) and 601(b) of the
General Corporation Law of the State of California.
If action is proposed to be taken at any meeting of
shareholders, which action is within Sections 310, 902, 1201, 1900 or 2007 of
the General Corporation Law of the State of California, the notice shall also
state the general nature of that proposal.
e. Adjourned Meeting and Notice Thereof. Any meeting of
shareholders may be adjourned from time to time by the vote of a majority of
the shares represented either in person or by proxy whether or not a quorum is
present. When a shareholders' meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. However, if the adjournment is for
more than 45 days or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
f. Waiver of Notice. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify either the business to be transacted or the purpose of any
annual or special meeting of shareholders, except that if action is taken or
proposed to be taken for approval of any of those matters specified in the
second paragraph of subparagraph (d) of Section 2.01 of this Article II, the
waiver of notice or consent 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.
-2-
<PAGE> 8
g. Quorum. The presence in person or by proxy of the
persons entitled to vote a majority of the shares entitled to vote at any
meeting shall constitute a quorum for the transaction of business. If a quorum
is present, the affirmative vote of the majority of the shares represented and
voting at the meeting (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by law or
the Articles of Incorporation of the corporation.
The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, provided that any action taken (other than adjournment) must be
approved by at least a majority of the shares required to constitute a quorum.
Section 2.02 No Action Without Meeting. Any action required or permitted to
be taken by the shareholders of this corporation must be effected at a duly
called annual or special meeting of shareholders of this corporation and may
not be effected by any consent in writing by such shareholders.
Section 2.03 Voting of Shares.
(a) In General. Except as otherwise provided in the
Articles of Incorporation, each outstanding share, regardless of class, shall
be entitled to one vote on each matter submitted to a vote of shareholders.
(b) Cumulative Voting. Shareholders shall not be entitled
to cumulate their votes (i.e., cast for any one or more candidates a number of
votes greater than the number of votes which such shareholder normally is
entitled to cast) in the election of directors.
(c) Election by Ballot. Elections for directors need not
be by ballot unless a shareholder demands election by ballot at the meeting and
before the voting begins.
Section 2.04 Proxies. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. No
proxy shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy continues in full force
and effect until revoked by the person executing it prior to the vote pursuant
thereto, except as otherwise herein provided. Such revocation may be effected
by a writing delivered to the corporation stating that the proxy is revoked or
by a subsequent proxy executed by the person executing the prior proxy and
presented to the meeting, or as to any meeting by attendance at such meeting
and voting in person by the person
-3-
<PAGE> 9
executing the proxy. The dates contained on the forms of proxy presumptively
determine the order of execution, regardless of the postmark dates on the
envelopes in which they are mailed. A proxy is not revoked by the death or
incapacity of the maker unless, before the vote is counted, written notice of
such death or incapacity is received by the corporation. The revocability of a
proxy that states on its face that it is irrevocable shall be governed by the
provisions of Sections 705(e) and 705(f) of the California General Corporation
Law.
Section 2.05 Inspectors of Election.
(a) Appointment. In advance of any meeting of shareholders
the Board may appoint inspectors of election to act at the meeting and any
adjournment thereof. If inspectors of election are not so appointed, or if any
persons so appointed fail to appear or refuse to act, the chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to
replace those who so fail or refuse) at the meeting. The number of inspectors
shall be either one or three. If appointed at a meeting on the request of one
or more shareholders or proxies, the majority of shares represented in person
or by proxy shall determine whether one or three inspectors are to be
appointed.
(b) Duties. The inspectors of election shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum and the authenticity,
validity and effect of proxies, receive votes, ballots or consents, hear and
determine all challenges and questions in any way arising in connection with
the right to vote, count and tabulate all votes or consents, determine when the
polls shall close, determine the result and do such acts as may be proper to
conduct the election or vote with fairness to all shareholders. The inspectors
of election shall perform their duties impartially, in good faith, to the best
of their ability and as expeditiously as is practical. If there are three
inspectors of election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of all. Any
report or certificate made by the inspectors of election is prima facie
evidence of the facts stated therein.
Section 2.06 Record Date. In order that the corporation may determine the
shareholders entitled to notice of any meeting or to vote or entitled to
receive payment of any dividend or other distribution or allotment of any
rights or entitled to exercise any rights in respect of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days prior to the date of such meeting nor more than
60 days prior to any other action. If no record date is fixed:
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<PAGE> 10
(1) The record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held.
(2) The record date for determining
shareholders for any other purpose shall be at the close of business on the day
on which the board adopts the resolution relating thereto, or the 60th day
prior to the date of such other action, whichever is later.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless
the board fixes a new record date for the adjourned meeting, but the board
shall fix a new record date if the meeting is adjourned for more than 45 days
from the date set for the original meeting.
Shareholders at the close of business on the record date are
entitled to notice and to vote or to receive the dividend, distribution or
allotment of rights or to exercise the rights, 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 Articles of
Incorporation or by agreement or in the California General Corporation Law.
Section 2.07 Share Certificates.
(a) In General. The corporation shall issue a certificate
or certificates representing shares of its capital stock. Each certificate so
issued shall be signed in the name of the corporation by the chairman or 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 any assistant
secretary, shall state the name of the record owner thereof and shall certify
the number of shares and the class or series of shares represented thereby.
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 upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if such person were an officer,
transfer agent or registrar at the date of issue.
(b) Two or More Classes or Series. If the shares of the
corporation are classified or if any class of shares has two or more series,
there shall appear on the certificate one of the following:
(1) A statement of the rights, preferences,
privileges, and restrictions granted to or imposed upon the respec-
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tive classes or series of shares authorized to be issued and upon the holders
thereof; or
(2) A summary of such rights, preferences,
privileges and restrictions with reference to the provisions of the Articles of
Incorporation and any certificates of determination establishing the same; or
(3) A statement setting forth the office or
agency of the corporation from which shareholders may obtain upon request and
without charge, a copy of the statement referred to in subparagraph (1).
(c) Special Restrictions. There shall also appear on the
certificate (unless stated or summarized under subparagraph (1) or (2) of
subparagraph (b) above) the statements required by all of the following clauses
to the extent applicable:
(1) The fact that the shares are subject to
restrictions upon transfer.
(2) If the shares are assessable, a statement
that they are assessable.
(3) If the shares are not fully paid, a
statement of the total consideration to be paid therefor and the amount paid
thereon.
(4) The fact that the shares are subject to a
voting agreement or an irrevocable proxy or restrictions upon voting rights
contractually imposed by the corporation.
(5) The fact that the shares are redeemable.
(6) The fact that the shares are convertible
and the period for conversion.
Section 2.08 Transfer of Certificates. Where a certificate for shares is
presented to the corporation or its transfer clerk or transfer agent with a
request to register a transfer of shares, the corporation shall register the
transfer, cancel the certificate presented, and issue a new certificate if:
(a) the security is endorsed by the appropriate person or persons; (b)
reasonable assurance is given that those endorsements are genuine and
effective; (c) the corporation has no notice of adverse claims or has
discharged any duty to inquire into such adverse claims; (d) any applicable law
relating to the collection of taxes has been complied with; (e) the transfer is
not in violation of any federal or state securities law; and (f) the transfer
is in compliance with any applicable agreement governing the transfer of the
shares.
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Section 2.09 Lost Certificates. Where a certificate has been lost, destroyed
or wrongfully taken, the corporation shall issue a new certificate in place of
the original if the owner: (a) so requests before the corporation has notice
that the certificate has been acquired by a bona fide purchaser; (b) files with
the corporation a sufficient indemnity bond, if so requested by the Board of
Directors; and (c) satisfies any other reasonable requirements as may be
imposed by the Board. Except as above provided, no new certificate for shares
shall be issued in lieu of an old certificate unless the corporation is ordered
to do so by a court in the judgment in an action brought under Section 419(b)
of the California General Corporation Law.
Section 2.10 Nominations by Shareholders. Any shareholder entitled to vote in
the election of directors generally may nominate one or more persons for
election as director at a meeting only if written notice of such shareholder's
intent to make such nomination or nominations has been given, either by
personal delivery or by United States mail, postage prepaid, to the secretary
of the corporation not later than (i) with respect to an election to be held at
an annual meeting of shareholders, 120 days in advance of such meeting, and
(ii) with respect to an election to be held at a special meeting of
shareholders for the election of directors, the close of business on the
seventh day following the date on which notice of such meeting is first given
to shareholders. Each such notice shall set forth: (a) the name and address
of the shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is a holder
of record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice; (c) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the board of directors; and (e) the consent of each nominee
to serve as a director of the corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedures, which nomination shall be void.
Nothing in this section shall be deemed to limit any voting rights arising upon
the occurrence of any dividend arrearages or otherwise provided to holders of
any series of preferred stock then outstanding.
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ARTICLE III. DIRECTORS
Section 3.01 Powers. Subject to the provisions of the California General
Corporation Law and the Articles of Incorporation, the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. The Board may delegate the
management of the day-to-day operations of the business of the corporation to a
management company or other person provided that the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board.
Section 3.02 Committees of the Board. The Board may, by resolution adopted by
a majority of the authorized number of directors, designate one or more
committees, each consisting of two or more directors, to serve at the pleasure
of the Board. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
such committee, to the extent provided in the resolution of the Board, shall
have all the authority of the Board, except with respect to:
(1) The approval of any action which also
requires, under the California General Corporation Law, shareholders' approval
or approval of the outstanding shares;
(2) The filling of vacancies on the Board or in
any committee;
(3) The fixing of compensation of the directors
for serving on the Board or on any committee;
(4) The amendment or repeal of bylaws or the
adoption of new bylaws;
(5) The amendment or repeal of any resolution
of the Board which by its express terms is not so amendable or repealable;
(6) A distribution (within the meaning of the
California General Corporation Law) to the shareholders of the corporation,
except at a rate or in a periodic amount or within a price range set forth in
the Articles of Incorporation or determined by the Board; and
(7) The appointment of other committees of
the Board or the members thereof.
Section 3.03 Election and Term of Office. The directors shall be elected at
each annual meeting of shareholders but,
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if any such annual meeting is not held or the directors are not elected
thereat, the directors may be elected at any special meeting of shareholders
held for that purpose. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
Section 3.04 Vacancies. Except for a vacancy created by the removal of a
director, vacancies on the Board may be filled by approval of the Board or, if
the number of directors then in office is less than a quorum, by (a) the
unanimous written consent of the directors then in office, (b) the affirmative
vote of a majority of the directors then in office at a meeting held pursuant
to notice or waivers of notice under the California General Corporation Law, or
(c) a sole remaining director. The shareholders may elect a director or
directors at any time to fill any vacancy or vacancies not filled by the
directors.
The Board of Directors shall have the power to declare vacant
the office of a director who has been declared of unsound mind by an order of
court, or convicted of a felony.
Section 3.05 Removal. Any or all of the directors may be removed without
cause if such removal is approved by the vote of a majority of the outstanding
shares entitled to vote, except that no director may be removed if the votes
cast against removal of the director would be sufficient to elect such director
if voted cumulatively (without regard to whether shares may otherwise be voted
cumulatively) at an election at which the same total number of votes were cast,
and either the number of directors elected at the most recent annual meeting of
shareholders, or if greater, the number of directors for whom removal in being
sought, were then being elected.
Section 3.06 Resignation. Any director may resign effective upon giving
written notice to the chairman of the board, the president, the secretary or
the Board of Directors of the corporation, unless the notice specifies a later
time for the effectiveness of such resignation. If the resignation is
effective at a future time, a successor may be elected to take office when the
resignation becomes effective.
Section 3.07 Meetings of the Board of Directors and Committees.
(a) Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place within or without
the State as may be designated from time to time by resolution of the Board or
by written consent of all members of the Board or in these bylaws.
(b) Organization Meeting. Immediately following each
annual meeting of shareholders the Board of Directors shall
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hold a regular meeting for the purpose of organization, election of officers,
and the transaction of other business. Notice of such meetings is hereby
dispensed with.
(c) Special Meetings. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by the chairman
of the board or the president or, by any vice president or the secretary or any
two directors.
(d) Notices; Waivers. Special meetings shall be held upon
four days' notice by mail or 48 hours' notice delivered personally or by
telephone or telegraph. Notice of a meeting need not be given to any director
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 who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
(e) Adjournment. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, notice of such
adjournment to another time and place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of
adjournment.
(f) Place of Meeting. Meetings of the Board may be held at
any place within or without the state which has been designated in the notice
of the meeting or, if not stated in the notice or there is no notice, then such
meeting shall be held at the principal executive office of the corporation, or
such other place designated by resolution of the Board.
(g) Presence by Conference Telephone Call. Members of the
Board may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Such participation constitutes presence in
person at such meeting.
(h) Quorum. A majority of the authorized number of
directors constitutes a quorum of the Board for the transaction of business.
Every act or decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present is the act of the Board of
Directors, unless a greater number be required by law, by the Articles of
Incorporation or by these bylaws. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for such meeting.
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Section 3.08 Action Without Meeting. Any action required or permitted to be
taken by the Board of Directors, may be taken without a meeting if all members
of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of
the proceedings of the Board. Such action by written consent shall have the
same force and effect as a unanimous vote of such directors.
Section 3.09 Committee Meetings. The provisions of Sections 3.07 and 3.08 of
these bylaws apply also to committees of the Board and action by such
committees, mutatis mutandis.
ARTICLE IV. OFFICERS
Section 4.01 Officers. The officers of the corporation shall consist of a
chairman of the board or a president, or both, a secretary, a chief financial
officer, and such additional officers as may be elected or appointed in
accordance with Section 4.03 of these bylaws and as may be necessary to enable
the corporation to sign instruments and share certificates. Any number of
offices may be held by the same person.
Section 4.02 Elections. All officers of the corporation, except such officers
as may be otherwise appointed in accordance with Section 4.03, shall be chosen
by the Board of Directors, and shall serve at the pleasure of the Board of
Directors, subject to the rights, if any, of an officer under any contract of
employment.
Section 4.03 Other Officers. The Board of Directors, the chairman of the
board, or the president at their or his discretion, may appoint one or more
vice presidents, one or more assistant secretaries, a treasurer, one or more
assistant treasurers, or 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 the Board of Directors, the chairman of
the board, or the president, as the case may be, may from time to time
determine.
Section 4.04 Removal. Any officer may be removed, either with or without
cause, by the Board of Directors, 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, subject to the rights, if any, of an
officer under any contract of employment, and without prejudice to the rights,
if any, of the corporation under any contract to which the officer is a party.
Section 4.05 Resignation. 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 without prejudice to the rights, if any, of the
corporation under any
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contract to which the officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed in these bylaws for regular appointments to such office.
Section 4.07 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. If there is no
president, the chairman of the board shall in addition be the chief executive
officer of the corporation and shall have the powers and duties prescribed in
Section 4.08 below.
Section 4.08 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 general manager and chief executive officer
of the corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and affairs 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 a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or these bylaws.
Section 4.09 Vice President. In the absence of the president or in the event
of the president's inability or refusal to act, the vice president, or in the
event there be more than one vice president, the vice president designated by
the Board of Directors, or if no such designation is made, in order of their
election, shall perform the duties of president and when so acting, shall have
all the powers of and be subject to all the restrictions upon the president.
Any vice president shall perform such other duties as from time to time may be
assigned to such vice president by the president or the Board of Directors.
Section 4.10 Secretary. The secretary shall keep or cause to be kept the
minutes of proceedings and record of shareholders, as provided for and in
accordance with Section 5.01(a) of these bylaws.
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The secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board of Directors required by these
bylaws or by law to be given, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors.
Section 4.11 Chief Financial Officer. The chief financial officer shall have
general supervision, direction and control of the financial affairs of the
corporation and shall have such other powers and duties as may be prescribed by
the Board of Directors or these bylaws. In the absence of a named treasurer,
the chief financial officer shall also have the powers and duties of the
treasurer as hereinafter set forth and shall be authorized and empowered to
sign as treasurer in any case where such officer's signature is required.
Section 4.12 Treasurer. The treasurer shall keep or cause to be kept the
books and records of account as provided for and in accordance with Section
5.01(a) of these bylaws. 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 Directors or these bylaws. In the absence of a
named chief financial officer, the treasurer shall be deemed to be the chief
financial officer and shall have the powers and duties of such office as
hereinabove set forth.
Section 3.10 Loans to Officer. This corporation may make any loan of money or
property to, or guarantee the obligation of, any officer of this corporation
upon the approval of the Board of Directors alone if the Board determines that
such a loan or guaranty may reasonably be expected to benefit this corporation,
provided that such approval is by a vote sufficient without counting the vote
of any interested director or directors.
ARTICLE V. MISCELLANEOUS
Section 5.01 Records and Reports.
(a) Books of Account and Proceedings. The corporation
shall keep adequate and correct books and records of account and shall keep
minutes of the proceedings of its shareholders, Board and committees of the
board and shall keep at its principal executive office, or at the office of its
transfer agent
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or registrar, a record of its shareholders, giving the names and addresses of
all shareholders and the number and class of shares held by each. Such minutes
shall be kept in written form. Such other books and records shall be kept
either in written form or in any other form capable of being converted into
written form.
(b) Annual Report. An annual report shall be sent to the
shareholders of the corporation not later than 120 days after the close of the
fiscal year and at least 15 (or, if sent by third-class mail, 35) days prior to
the annual meeting of shareholders to be held during the next fiscal year.
Such report shall contain a balance sheet as of the end of that fiscal year and
an income statement and statement of changes in financial position for such
fiscal year, accompanied by a report of independent accountants thereon, or if
there is no such report, the certificate of an authorized officer of the
corporation that such statements were prepared without audit from the books and
records of the corporation. Such report shall also include such further
statements required by law applicable to the corporation from time to time.
(c) Shareholders' Requests for Financial Reports. If no
annual report for the last fiscal year has been sent to shareholders, the
corporation shall, upon the written request of any shareholder made more than
120 days after the close of that fiscal year, deliver or mail to the person
making the request within 30 days thereafter the financial statements for that
year required by Section 1501(a) of the California General Corporation Law.
Any shareholder or shareholders holding at least five percent of the
outstanding shares of any class of this corporation may make 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 current fiscal year ended
more than 30 days prior to the date of the request and a balance sheet of the
corporation as of the end of such period, and the corporation shall deliver or
mail the statements to the person making the request within 30 days thereafter.
A copy of the statements shall be kept on file in the principal office of the
corporation for 12 months and they shall be exhibited at all reasonable times
to any shareholder demanding an examination of them or a copy shall be mailed
to such shareholder upon demand.
Section 5.02 Rights of Inspection.
(a) By Shareholders.
(1) Record of Shareholders. Any shareholder or
shareholders holding at least five percent in the aggregate of the outstanding
voting shares of the corporation or who hold at least one percent of such
voting shares and have filed a Schedule 14B with the United States Securities
and Exchange Commission relating to the election of directors of the
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corporation shall have an absolute right to do either or both of the following:
(i) inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five business days' prior
written demand upon the corporation, or (ii) obtain from the transfer agent for
the corporation, upon written demand and upon the tender of its usual charges
for such a list (the amount of which charges shall be stated to the shareholder
by the transfer agent upon request), a list of the shareholders' names and
addresses, who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which it has been compiled
or as of a date specified by the shareholder subsequent to the date of demand.
The list shall be made available on or before the later of five business days
after demand is received or the date specified therein as the date as of which
the list is to be compiled.
The record of shareholders shall also be
open to inspection and copying by any shareholder or holder of a voting trust
certificate at any time during usual business hours upon written demand on the
corporation, for a purpose reasonably related to such holder's interests as a
shareholder or holder of a voting trust certificate.
(2) Corporate Records. The accounting books
and records and minutes of proceedings of the shareholders and the Board and
committees of the board shall be open to inspection upon the written demand on
the corporation of any shareholder or holder of a voting trust certificate at
any reasonable time during usual business hours, for a purpose reasonably
related to such holder's interests as a shareholder or as the holder of such
voting trust certificate. This right of inspection shall also extend to the
records of any subsidiary of the corporation.
(3) Bylaws. The corporation shall keep at its
principal executive office in this state, the original or a copy of its bylaws
as amended to date, which shall be open to inspection by the shareholders at
all reasonable times during office hours.
(b) By Directors. Every director shall have the absolute
right at any reasonable time to inspect and copy all books, records and
documents of every kind and to inspect the physical properties of the
corporation of which such person is a director and also of its subsidiary
corporations, domestic or foreign. Such inspection by a director may be made
in person or by agent or attorney and the right of inspection includes the
right to copy and make extracts.
Section 5.03 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 corpora-
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tion, shall be signed or endorsed by such person or persons and in such manner
as, from time to time, shall be determined by resolution of the Board of
Directors.
Section 5.04 Representation of Shares of Other Corporations. The chairman of
the board, if any, president or any vice president of this corporation, or any
other person authorized to do so by the chairman of the board, president or any
vice president, is authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or
corporations may be exercised either by such officers in person or by any other
person authorized so to do by proxy or power of attorney duly executed by said
officers.
Section 5.05 Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is
made a party to or is threatened to be made a party to or is involuntarily
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "Proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the corporation or is or was serving (during
such person's tenure as director or officer) at the request of the corporation,
any other corporation, partnership, joint venture, trust or other enterprise in
any capacity, whether the basis of a Proceeding is an alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by California General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the corporation
to provide broader indemnification rights than said law permitted the
corporation to provide prior to such amendment), against all expenses,
liability and loss (including attorneys' fees, judgments, fines, or penalties
and amounts to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith. The right to indemnification conferred in this
Section shall be a contract right and shall include the right to be paid by the
corporation the expenses incurred in defending a Proceeding in advance of its
final disposition; provided, however, that, if California General Corporation
Law requires, the payment of such expenses in advance of the final disposition
of a Proceeding shall be made only upon receipt by the corporation of an
undertaking by or on behalf of such director or officer to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Section or other-
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wise. No amendment to or repeal of this Section 5.05 shall apply to or have
any effect on any right to indemnification provided hereunder with respect to
any acts or omissions occurring prior to such amendment or repeal.
(b) Right of Claimant to Bring Suit. If a claim for
indemnity under paragraph (a) of this Section is not paid in full by the
corporation within 90 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expense of
prosecuting such claim including reasonable attorneys' fees incurred in
connection therewith. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under California
General Corporation Law 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 or she has met the
applicable standard of conduct set forth in California General Corporation Law,
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 the claimant has not met the applicable
standard of conduct.
(c) Non-Exclusivity of Rights. The rights conferred in
this Section shall not be exclusive of any other rights which any director,
officer, employee or agent may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, to the extent the
additional rights to indemnification are authorized in the Articles of
Incorporation of the corporation.
(d) Insurance. In furtherance and not in limitation of
the powers conferred by statute:
(1) the corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or
loss, whether or not the corporation would have the
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power to indemnify the person against that expense, liability or loss under the
California General Corporation Law.
(2) the corporation may create a trust fund,
grant a security interest and/or use other means (including, without
limitation, letters of credit, surety bonds and/or other similar arrangements),
as well as enter into contracts providing indemnification to the full extent
authorized or permitted by law and including as part thereof provisions with
respect to any or all of the foregoing to ensure the payment of such amounts as
may become necessary to effect indemnification as provided therein, or
elsewhere.
(e) Indemnification of Employees and Agents of the
Corporation. The corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, including the right
to be paid by the corporation the expenses incurred in defending a Proceeding
in advance of its final disposition, to any employee or agent of the
corporation to the fullest extent of the provisions of this Section or
otherwise with respect to the indemnification and advancement of expenses of
directors and officers of the corporation.
Section 5.06 Employee Stock Purchase Plans. The corporation may adopt and
carry out a stock purchase plan or agreement or stock option plan or agreement
providing for the issue and sale for such consideration as may be fixed of its
unissued shares, or of issued shares acquired or to be acquired, to one or more
of the employees or directors of the corporation or of a subsidiary or to a
trustee on their behalf and for the payment for such shares in installments or
at one time, and may provide for aiding any such persons in paying for such
shares by compensation for services rendered, promissory notes or otherwise.
A stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment, an option or obligation
on the part of the corporation to repurchase the shares upon termination of
employment, subject to the provisions of the California General Corporation
Law, restrictions upon transfer of the shares and the time limits of and
termination of the plan.
Section 5.07 Construction and Definitions. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the California General Corporation Law shall govern the
construction of these bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
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number includes the plural and the plural number includes the singular, and the
term "person" includes a corporation as well as a natural person.
ARTICLE VI. AMENDMENTS
Section 6.01 Power of Shareholders. New bylaws may be adopted or these bylaws
may be amended or repealed by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all of the then outstanding shares
of the capital stock of this corporation entitled to vote generally in the
election of directors, voting together as a single class.
Section 6.02 Power of Directors. Subject to the right of shareholders as
provided in Section 6.01 to adopt, amend or repeal bylaws, any bylaw may be
adopted, amended or repealed by the Board of Directors.
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EXHIBIT 3.5
RESTATED
ARTICLES OF INCORPORATION
OF
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
ONE: The name of this corporation is SUPERIOR INDUSTRIES
INTERNATIONAL, INC.
TWO: The purpose of this corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
General Corporation Law of California other than the banking business, the
trust company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
THREE: This corporation is authorized to issue two classes of shares
designated, respectively, "Common Stock" and "Preferred Stock." The number of
shares of Common Stock authorized to be issued is one hundred million
(100,000,000) and the number of shares of Preferred Stock authorized to be
issued is one million (1,000,000).
The Preferred Stock may be divided into such number
of series as the Board of Directors may determine. The Board of Directors is
authorized to determine and alter the rights, preferences, privileges and
restrictions granted to and imposed upon the Preferred Stock or any series
thereof with respect to any wholly unissued class or series of Preferred Stock,
and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution of the Board of
Directors originally fixing the number of shares constituting any series, may
increase or decrease (but not below the number of shares of such series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series.
FOUR: The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
FIVE: This corporation is authorized to indemnify the directors and
officers of this corporation to the fullest extent permissible under California
law.
SIX: Any action required or permitted to be taken by the
shareholders of this corporation must be effected at a duly called annual or
special meeting of shareholders of this corporation and may not be effected by
any consent in writing by such shareholders.
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SEVEN: The bylaws shall set forth the number of directors
constituting the Board of Directors. The directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the 1995 annual meeting of shareholders,
the term of office of the second class to expire at the 1996 annual meeting of
shareholders and the term of office of the third class to expire at the 1997
annual meeting of shareholders. At each annual meeting of shareholders
following such initial classification and election, directors elected to
succeed those directors whose terms expire shall be elected for a term of
office to expire at the third succeeding annual meeting of shareholders after
their election.
Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a
majority vote of the directors then in office though less than a quorum, and
directors so chosen shall hold office for a term expiring at the annual meeting
of shareholders at which the term of office of the class to which they have
been elected expires. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
This provision shall become effective only when this
corporation becomes a "listed" corporation within the meaning of Section 301.5
of the General Corporation Law of California.
EIGHT: Upon this corporation becoming a "listed" corporation within
the meaning of Section 301.5 of the General Corporation Law of California,
shareholders shall not have cumulative voting rights in the election of
directors.
NINE: Bylaws of this corporation shall be adopted, amended or
repealed only by the Board of Directors or the affirmative vote of the holders
of at least eighty percent (80%) of the voting power of all of the then
outstanding shares of the capital stock of this corporation entitled to vote
generally in the election of directors, voting together as a single class.
TEN: This corporation reserves the right to amend or
repeal any provision contained in these Articles of Incorporation in the manner
prescribed by the laws of the State of California and all rights conferred upon
shareholders are granted subject to this reservation; provided, however, that,
notwithstanding any other provision of these Articles of Incorporation or any
provision of law which might otherwise permit a lesser vote or no vote, and in
addition to any vote
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<PAGE> 3
of the holders of any class or series of the stock of this Corporation required
by law or by these Articles of Incorporation,
(1) the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all of the then outstanding shares
of the capital stock of this corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required to
amend or repeal this Article TEN, Article SIX, Article SEVEN, Article EIGHT,
Article NINE or Article ELEVEN; and
(2) in addition to the vote specified in paragraph (1) of
this Article TEN, the affirmative vote of the holders of at least a majority of
the voting power of all of the then outstanding shares of the capital stock of
this corporation entitled to vote generally in the election of directors, other
than such capital stock of which an Interested Shareholder (as defined in
Article ELEVEN) is the beneficial owner, voting together as a single class,
shall be required in order to amend or repeal Article ELEVEN or Article TWELVE.
ELEVEN: The shareholder vote required to approve Business Combinations
(as hereinafter defined) shall be as set forth in this Article.
A. (1) Except as otherwise expressly provided in Section B of
this Article:
(i) Any merger or consolidation of this
corporation or any Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other corporation (whether or
not itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an Interested
Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets of this corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of ten percent (10%) of
the total value of the assets of this corporation and its consolidated
subsidiaries as reflected in the most recent balance sheet of this corporation;
or
(iii) the issuance or transfer by this corporation
or any Subsidiary (in one transaction or a series of transactions) of any
securities of this corporation or any Subsidiary to any Interested Shareholder
or any Affiliate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair Market
Value of $15,000,000 or more; or
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<PAGE> 4
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of this corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of this corporation, or any
merger or consolidation of this corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving any
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class of
equity or convertible securities of this corporation or any Subsidiary that is
directly or indirectly owned by any Interested Shareholder or any Affiliate of
any Interested Shareholder;
shall require (a) the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then outstanding shares of the
capital stock of this corporation entitled to vote generally in the election of
directors (hereinafter in this Article referred to as the "Voting Stock"),
voting together as a single class (it being understood that, for purposes of
this Article, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article THREE of these Articles of Incorporation or
any designation of the rights, powers and preferences of any class or series of
preferred stock made pursuant to said Article THREE (a "Preferred Stock
Designation")) and (b) the affirmative vote of the holders of at least a
majority of the voting power of all of the then outstanding shares of Voting
Stock other than the Voting Stock of which an Interested Shareholder or an
Affiliate of any Interested Shareholder is the beneficial owner, voting
together as a single class. Such affirmative votes shall be required
notwithstanding any other provisions of these Articles of Incorporation or any
provision of law or of any agreement with any national securities exchange
which might otherwise permit a lesser vote or no vote, but such affirmative
votes shall be required in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, these
Articles of Incorporation or any Preferred Stock Designation.
(2) The term "Business Combination" as used in this
Article shall mean any transaction which is referred to in any one or more of
subparagraphs (i) through (v) of paragraph (1) of this Section A.
B. The provisions of Section A of this Article shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law, any
other provision of these Articles of Incorporation, any Preferred Stock
Designation or any agreement with any national securities exchange, if, in
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<PAGE> 5
the case of a Business Combination that does not involve any cash or other
consideration being received by the shareholders of this corporation, solely in
their respective capacities as shareholders of this corporation, the condition
specified in the following paragraph (1) is met, or, in the case of any other
Business Combination, the conditions specified in either of the following
paragraphs (1) and (2) are met:
(1) The Business Combination shall have been approved by
a majority of the Continuing Directors (as hereinafter defined), it being
understood that this condition shall not be capable of satisfaction unless
there is at least one Continuing Director.
(2) All of the following conditions shall have been met:
(i) The consideration to be received by holders
of shares of a particular class of outstanding Voting Stock shall be in cash or
in the same form as the Interested Shareholder has paid for shares of such
class of Voting Stock within the two-year period ending on and including the
date on which the Interested Shareholder became an Interested Shareholder (the
"Determination Date"). If, within such two-year period, the Interested
Shareholder has paid for shares of any class of Voting Stock with varying forms
of consideration, the form of consideration to be received per share by holders
of shares of such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock acquired
by the Interested Shareholder within such two-year period.
(ii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other than cash
to be received per share by holders of Common Stock in such Business
Combination, shall be at least equal to the higher of the following (it being
intended that the requirements of this paragraph (2)(ii) shall be required to
be met with respect to all shares of Common Stock outstanding regardless of
whether the Interested Shareholder has previously acquired any shares of Common
Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder for any
shares of Common Stock acquired by it within the two-year period
immediately prior to the date of the first public announcement of the
proposal of the Business Combination (the "Announcement Date") or in
the transaction in which it became an Interested Shareholder,
whichever is higher, plus interest compounded annually from the
Determination Date
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<PAGE> 6
through the Consummation Date at the prime rate of interest of Bankers
Trust Company (or such other major bank as may be selected by the
Continuing Directors) from time to time in effect in the City of Los
Angeles, less the aggregate amount of any cash dividends paid, and the
Fair Market Value of any dividends paid in other than cash, on each
share of Common Stock from the Determination Date through the
Consummation Date in an amount up to but not exceeding the amount of
interest so payable per share of Common Stock; or
(b) the Fair Market Value per share of
Common Stock on the Announcement Date.
(iii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the Consummation Date, of the consideration other
than cash to be received per share by holders of shares of any class, other
than Common Stock, of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of this
paragraph (2)(iii) shall be required to be met with respect to every such class
of outstanding Voting Stock, regardless of whether the Interested Shareholder
has previously acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder for any
shares of such class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date or in the
transaction in which it became an Interested Shareholder, whichever is
higher, plus interest compounded annually from the Determination Date
through the Consummation Date at the prime rate of interest of Bankers
Trust Company (or such other major bank as may be selected by the
Continuing Directors) from time to time in effect in the City of Los
Angeles, less the aggregate amount of any cash dividends paid, and the
Fair Market Value of any dividends paid in other than cash, on each
share of such class of Voting Stock from the Determination Date
through the Consummation Date in an amount up to but not exceeding the
amount of interest so payable per share of such class of Voting Stock;
or
(b) the Fair Market Value per share of
such class of Voting Stock on the Announcement Date; or
(c) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of this corporation.
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(iv) After such Interested Shareholder has become
an Interested Shareholder and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on any
outstanding Preferred Stock; (b) there shall have been (I) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a majority
of the Continuing Directors, and (II) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved by a
majority of the Continuing Directors; and (c) such Interested Shareholder shall
not have become the beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such Interested Shareholder
becoming an Interested Shareholder.
(v) After such Interested Shareholder has become
an Interested Shareholder, such Interested Shareholder shall not have received
the benefit, directly or indirectly (except proportionately, solely in such
Interested Shareholder's capacity as a shareholder of this corporation), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by this corporation, whether in
anticipation of or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing
the proposed Business Combination, complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules or regulations) and setting
forth, as an exhibit thereto, the opinion of an investment banking firm
selected by a majority of the Continuing Directors, or, if there are no
Continuing Directors, an opinion of the investment banking firm most recently
retained by this corporation before the Interested Shareholder became an
Interested Shareholder, or any successor in interest to such investment banker,
that the proposed Business Combination is fair from a financial point of view
to the shareholders of this corporation other than the Interested Shareholder,
shall be mailed to all shareholders of this corporation at least 30 days prior
to the consummation of such Business Combination (regardless of whether such
proxy or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
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C. For the purposes of this Article:
(1) A "person" shall mean any individual, firm,
corporation or other entity.
(2) "Interested Shareholder" shall mean any person (other
than this corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or
indirectly, of more than twenty percent (20%) of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of this corporation and at
any time within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of twenty percent (20%) or
more of the voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Shareholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or indirectly;
or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is
an Interested Shareholder pursuant to paragraph (2) of this Section C, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of paragraph (3) of this Section C but shall
not include any other shares of Voting Stock which may be issuable
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<PAGE> 9
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on April
24, 1987.
(6) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
this corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (2) of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by this corporation.
(7) "Continuing Director" means any member of the Board
of Directors of this corporation (the "Board") who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director who is unaffiliated with the Interested Shareholder and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
(8) "Fair Market Value" means: (i) in the case of stock,
the highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc., Automated Quotations System or any
system then in use, or if no such quotations are available, the fair market
value of such property on the date in question as determined by the Board in
good faith.
(9) In the event of any Business Combination in which
this corporation survives, the phrase "consideration other than cash to be
received" as used in paragraphs (2)(ii) and (2)(iii) of Section B of this
Article shall include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such shares.
D. A majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized
directorships at the time any such determination as is hereinafter specified in
this Section D is
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to be made by the Board) shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article, including, without
limitation, (1) whether a person is an Interested Shareholder, (2) the number
of shares of Voting Stock beneficially owned by any person, (3) whether a
person is an Affiliate or Associate of another, (4) whether the applicable
conditions set forth in paragraph (2) of Section B have been met with respect
to any Business Combination, (5) whether the assets which are the subject of
any Business Combination referred to in paragraph (1) (ii) of Section A have an
aggregate Fair Market Value of 10% of the assets of this corporation and its
consolidated subsidiaries as reflected in the most recent balance sheet of this
corporation, and (6) whether the consideration to be received for the issuance
or transfer of securities by this corporation or any Subsidiary in any Business
Combination referred to in paragraph (1) (iii) of Section A has an aggregate
Fair Market Value of $15,000,000 or more.
E. Nothing contained in this Article shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
TWELVE: The directors of this corporation, when evaluating any offer
of another party (a) to make a tender or exchange offer for any Voting Stock of
this corporation (as defined in Article ELEVEN) or (b) to effect a Business
Combination (as defined in Article ELEVEN) shall, in connection with the
exercise of its judgment in determining what is in the best interests of this
corporation as a whole, be authorized to give due consideration to such factors
as they determine to be relevant, including, without limitation:
(i) the interests of this corporation's
shareholders;
(ii) whether the proposed transaction might
violate federal or state laws;
(iii) not only the consideration being offered in
the proposed transaction, in relation to the then current market price for the
outstanding capital stock of this corporation, but also the market price for
the capital stock of this corporation over a period of years, the estimated
price that might be achieved in a negotiated sale of this corporation as a
whole or in part or through orderly liquidation, the premiums over market price
for the securities of other corporations in similar transactions, current
political, economic and other factors bearing on securities prices and this
corporation's financial condition and future prospects; and
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(iv) the social, legal and economic effects upon
employees, suppliers, customers and others having similar relationships with
this corporation, and the communities in which this corporation conducts its
business.
In connection with any such evaluation, the directors are authorized to conduct
such investigations and to engage in such legal proceedings as they may
determine.
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