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RESOLUTION 04-44
RESOLUTION OF THE BOARD OF DIRECTORS OF
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT AUTHORIZING APPROVAL OF STOCK
PURCHASE AGREEMENT, AUTHORIZING BOARD
PRESIDENT OR OFFICER TO EXECUTE ANY AND
ALL DOCUMENTS NECESSARY TO OPERATE
GUADALUPE LAND CO., AND AUTHORIZING
GENERAL MANAGER TO EXECUTE ANY AND ALL
OTHER DOCUMENTS NECESSARY OR
APPROPRIATE TO CLOSING OF THE
TRANSACTION (SIERRA AZUL OPEN SPACE
PRESERVE—GUADALUPE LAND CO.)
The Board of Directors of Midpeninsula Regional Open Space District does resolve as follows:
Section One. The Board of Directors of Midpeninsula Regional Open Space District does hereby
approve the Stock Purchase Agreement between Peninsula Open Space Trust, a California non-profit
corporation, and Midpeninsula Regional Open Space District, a copy of which is attached hereto marked
"Exhibit A,"and by reference made a part hereof, and authorizes the President or appropriate officers to
execute the Agreement on behalf of the District.
Section Two. The President of the Board of Directors or other appropriate officer is hereby authorized to
execute the Guadalupe Land Co. Action of Consent of Shareholders in Lieu of Meeting, a copy of which
is attached hereto, marked "Exhibit B," and by reference made a part hereof.
Section Three. The Board of Directors of the Midpeninsula Regional Open Space District does hereby
approve the Guadalupe Land Co. Action by Written Consent of Board of Directors in Lieu of a Meeting,
a copy of which is attached hereto, marked"Exhibit C," and by reference made a part hereof.
Section Four. The Board of Directors of Midpeninsula Regional Open Space District does hereby
approve the License and Management Agreement between Guadalupe Land Co. and Midpeninsula
Regional Open Space District, a copy of which is attached hereto, and marked "Exhibit D," and by
reference made a part hereof, and authorizes the President or appropriate officers to execute the License
on behalf of the District.
Section Five. The General Manager of the District shall cause to be given appropriate notice of
acceptance to the seller. The General Manager and General Counsel are further authorized to approve
any technical revisions to the attached Agreements and other transactional documents which do not
involve any material change to any term of the Agreement or other transactional documents which are
necessary or appropriate to the closing or implementation of this transaction.
Section Six. The General Manager of the District is authorized to expend up to $10,000 to cover the
necessary costs related to this transaction.
| Section Seven. It is intended, reasonably expected, and hereby authorized that the District's general b/od
will be reimbursed in the amount uy$3,4h0/)O0from the proceeds of the next District note
issue. This Section of this Resolution im adopted 6y the Board of Directors o[K1kiocoinmu|aRegional
� Open Space District solely for purposes of establishing compliance with the requirements of Section �
| l.|O9-|0of the Treasury Regulations. The reimbursement oF this payment expenditure im consistent with �
tile District's budgetary and financial circumustances. There are oo funds or sources of moneys of the
District that have been, or are reasonably expected to be, reserved or allocated on a long-term basis, or
� otherwise set aside to pay the costs of this open space land acquisition project which are to be paid or �
reimbursed out of proceeds of indebtedness\obe issued hy tile District. The Board mf Directors hereby
declares the District's official intent tu use proceeds mf indebtedness to reimburse itself for this open �
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space land acquisition project expenditure. |
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RESOLUTION No. 04-44
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on December 15, 2004, at a Special Meeting thereof, by the following vote:
AYES: J. Cyr, M. Davey, N. Hanko, L. Hassett, K. Nitz, P. Siemens
NOES: None
ABSTAIN: None
ABSENT: D. Little
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ATTEST: APPROVED:
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4Secret President
Board of Directors Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that
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the above is a true and correct copy of a resolution duly adopted by the Board of Directors of
the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly
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held and called on the above day.
�Distr' Clerk
it
EXHIBIT A
STOCK PURCHASE AGREEMENT
by and among
Peninsula Open Space Trust
("Seller")
and
Midpeninsula Regional Open Space District
("Buyer")
Dated as of December 15,2004
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EXECUTION COPY
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ................................................................................................................. I
1.1 Capitalized Terms......................................................................................................... I
ARTICLE 11 AUTHORIZATION AND SALE OF SHARES.............................................................3
2.1 Authorization................................................................................................................3
2.2 Purchase and Sale .........................................................................................................3
2.3 Closing..........................................................................................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER........................................3
3.1 Organization of Seller...................................................................................................4
3.2 Company Capital Structure...........................................................................................4
3.3 Subsidiaries...................................................................................................................5
3.4 Authority.......................................................................................................................5
3.5 No Conflict....................................................................................................................5
3.6 Consents........................................................................................................................5
3.7 No Undisclosed Liabilities............................................................................................6
3.8 No Changes...................................................................................................................6
3.9 Tax Matters...................................................................................................................7
3.10 Title to Properties; Absence of Liens and Encumbrances; Condition of
Equipment; Customer Information...............................................................................8
3.11 Agreements, Contracts and Commitments. ..................................................................8
3.12 Litigation.......................................................................................................................9
3.13 Environmental Matters..................................................................................................9
3.14 Compliance with Laws ............................................................................................... 10
3.15 Complete Copies of Materials .................................................................................... 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER....................................... 10
4.1 Authority..................................................................................................................... 10
ARTICLE V COVENANTS AND AGREEMENTS......................................................................... 10
5.1 Reasonable Efforts; Further Assurances; Cooperation............................................... 10
5.2 Real Property Tax Delinquencies............................................................................... 10
5.3 Real Property Matters................................................................................................. 11
ARTICLE VI SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION............................................................................................................. 11
6.1 Survival of Representations, Warranties, Covenants and Agreements....................... 11
6.2 Indemnification........................................................................................................... 12
6.3 Indemnification Procedures........................................................................................ 12
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TABLE OF CONTENTS
(Continued)
Page
6.4 Maximum Payments; Remedy.................................................................................... 12
ARTICLE VII GENERAL ... 13
7.1 No Third Party Beneficiaries...................................................................................... 13
7.2 Notices........................................................................................................................ 13
7.3 Binding Effect............................................................................................................. 14
7.4 Entire Agreement; Modification; Waiver................................................................... 14
7.5 Attorneys' Fees........................................................................................................... 14
7.6 Expenses ..................................................................................................................... 14
7.7 Governing Law; Rules of Construction...................................................................... 14
7.8 Assignment ................................................................................................................. 14
7.9 Relationship................................................................................................................ 15
7.10 Counterparts................................................................................................................ 15
7.11 Severability................................................................................................................. 15
7.12 Interpretation............................................................................................................... 15
7.13 Extension; Waiver....................................................................................................... 15
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT(this Agreement ) is made and entered into as
of December 15, 2004 by and among Midpeninsula Regional Open Space District, an independent,
non-enterprise California special district("Buyer"), and Peninsula Open Space Trust, a California
non-profit corporation ("Seller").
p rP ( Seller )
RECITALS
A. WHEREAS, Seller owns all of the issued and outstanding shares of capital stock of
Guadalupe Land Co. (the "Company"), the sole asset of which is that parcel of land described in
Exhibit A attached hereto;
B. WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all
of the shares of capital stock of the Company(the"Shares")upon the terms and conditions set forth
herein (the"Stock Purchase").
C. WHEREAS, Buyer and Seller desire to make certain representations, warranties,
covenants and other agreements in connection with the Stock Purchase.
NOW, THEREFORE, in consideration of the covenants,representations, warranties and
mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Capitalized Terms. The following capitalized terms shall have the meanings set forth
below:
(a) "Affiliate"shall mean, as to any specified Person, any other Person that controls,
is controlled by or is under common control with such specified Person,but only so long as such
control exists. For purposes of this definition, "control"shall mean, with respect to a Person that is
a corporation, direct or indirect ownership of more than fifty percent(50%) of the shares of such
Person entitled to vote in the election of directors (or, in the case of a Person that is not a
corporation, for the election of the corresponding managing authority).
(b) "Closing"shall have the meaning set forth in Section 2.3.
(c) "Closing Date" shall have the meaning set forth in Section 2.3.
(d) "Company Capital Stock"shall mean the Company Common Stock and all
other shares of capital stock if an of the Company, taken together.
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(e) "Company Common Stock" shall mean the shares of common stock of the
Company.
(f) "Conflict" shall have the meaning set forth in Section 3.5.
(g) Contract shall have the meaning set forth in Section 3.5.
(h) "Escrow Agent"shall mean Buyer.
(i) "Governmental Entity"means any court, administrative agency or commission
or other federal, state, county, local or foreign governmental authority, instrumentality, agency or
commission.
(j) "Lied'shall mean any mortgage, pledge, lien, security interest, claim, equity,
encumbrance, restriction on transfer, conditional sale or other title retention device or arrangement
(including, without limitation, a capital lease), transfer for the purpose of subjection to the payment
of any indebtedness, or restriction on the creation of any of the foregoing, whether relating to any
property or right or the income or profits therefrom.
(k) "Material Adverse Effect" shall mean any fact, change, event, development,
circumstance or effect(any such item, an "Effect"), individually or when taken together with all
other Effects that have occurred prior to the date of determination of the occurrence of the Material
Adverse Effect,that is or could reasonably be expected to be materially adverse to the business,
assets (including intangible assets), capitalization,condition (financial or otherwise) or results of
operations of a party;provided, however, that in no event shall any Effect resulting from general
economic conditions or conditions generally affecting the real estate sector constitute a Material
Adverse Effect, except in either case to the extent such party is materially disproportionately
affected thereby.
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(1) "Person' shall mean an individual, partnership, firm, corporation, association,
joint venture, trust, unincorporated organization or other entity, including any Governmental Entity
or any department, agency or political subdivision thereof.
(m)"Seller's Knowledge" shall mean the knowledge of each of the Company, Seller,
and employees of Seller.
(n) "Tax"or, collectively, "Taxes," shall mean (i) any and all federal, state, local
and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities,
including taxes based upon or measured by gross receipts, income, profits, sales,use and occupation,
and value added, ad valorem, transfer, franchise, withholding,payroll, recapture, employment,
excise and property taxes, as well as public imposts, fees, and social security charges (including but
not limited to health, unemployment and pension insurance), together with all interest,penalties and
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additions imposed with respect to such amounts; (ii) any liability for the payment of any amounts of
the type described in clause(i) as a result of being a member of an affiliated, consolidated, combined
or unitary group for any period; and(iii) any liability for the payment of any amounts of the type
described in clause(i) or(ii) as a result of any express or implied obligation to indemnify any other
person or as a result of any obligations under any agreements or arrangements with any other person
with respect to such amounts and including any liability for taxes of a predecessor entity.
ARTICLE 11
AUTHORIZATION AND SALE OF SHARES
2.1 Authorization. Seller has authorized the sale of the Shares, subject to the terms and
conditions of this Agreement.
2.2 Purchase and Sale. Subject to the terms and conditions of this Agreement, at the
Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, or cause to be sold, assigned,
transferred, conveyed and delivered to Buyer, free and clear of any and all Encumbrances, and Buyer
shall purchase from Seller, all of the Shares. The aggregate purchase price for the Shares shall be
$3,460,000.00 (the"Purchase Price"), payable in cash at the Closing(as defined below).
2.3 Closing?. Subject to the terms and conditions of this Agreement,the closing of the
Stock Purchase(the "Closing") shall take place immediately following the execution and delivery of
this Agreement at the offices of Wilson Sonsini Goodrich&Rosati, Professional Corporation, 650
Page Mill Road, Palo Alto, California or such other time and place as shall be designated by the
parties. The date on which the Closing shall occur is referred to herein as the"Closing Date." At
the Closing, after receipt of payment therefor, Seller shall deliver to Buyer a share certificate
registered in the name of Buyer, or in such nominee name(s) as designated by Buyer, representing
the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as specifically disclosed in the disclosure schedule supplied by Seller(the
"Disclosure Schedule") (referencing the appropriate section and paragraph numbers), Seller hereby
represents and warrants to Buyer, as of the date of this Agreement, as follows:
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3.1 Organization of Seller. The Company is a corporation duly organized, validly
existing and in good standing under the laws of California. The Company has all necessary
corporate power and authority to own its properties. The Company has not engaged in any business
operations since November 1, 1999 and, to Seller's Knowledge, did not engage in any business
operations on or prior to such date. Seller has delivered a true and correct copy of the Company's
articles of incorporation and bylaws, each as amended to date and in full force and effect on the date
hereof(collectively, the "Charter Documents"), to Buyer.
3.2 Company Capital Structure.
(a) Seller is hereby selling to Buyer three thousand one hundred(3,100) shares of
Common Stock of the Company, which shares constitute all of the issued and outstanding Company
Capital Stock. Except as set forth in the immediately preceding sentence, no shares of capital stock
or other equity securities of the Company are issued, reserved for issuance or outstanding. All
outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-
assessable and not subject to preemptive rights created by statute, the Charter Documents of the
Company, or any agreement to which the Company is a party or by which it is bound, and have been
issued in compliance with all applicable laws. All outstanding shares of Company Capital Stock
have been issued or repurchased in compliance with all applicable federal, state, foreign, or local
statutes, laws, rules, or regulations. To Seller's Knowledge, the Company has not suffered or
incurred any liability(contingent or otherwise) or claim, loss, liability, damage, deficiency, cost or
expense relating to or arising out of the issuance or repurchase of any Company Capital Stock or
options or warrants to purchase Company Capital Stock, or out of any agreements or arrangements
relating thereto (including any amendment of the terms of any such agreement or arrangement).
There are no declared or accrued but unpaid dividends with respect to any shares of Company
Capital Stock.
(b) To Seller's knowledge, the Company has never adopted, sponsored or maintained
any stock option plan or any other plan or agreement providing for equity compensation to any
person. To Seller's knowledge, there are no options, warrants, calls, rights, convertible securities,
commitments or agreements of any character, written or oral, to which the.Company is a party or by
which the Company is bound obligating the Company to issue, deliver, sell, repurchase or redeem,
or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Capital
Stock or obligating the Company to grant, extend, accelerate the vesting of, change the price of,
otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. To
Seller's knowledge, there are no (i)outstanding or authorized stock appreciation,phantom stock,
profit participation, or other similar rights with respect to the Company; (ii)voting trusts,proxies, or
other agreements or understandings with respect to the voting stock of the Company; or(iii)
agreements to which the Company is a party relating to the registration, sale or transfer(including
agreements relating to rights of first refusal, co-sale rights or"drag-along"rights) of any Company
Capital Stock. As a result of the Stock Purchase, Buyer will be the sole record and beneficial holder
of the Shares.
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3.3 Subsidiaries. The Company does not have and, to Seller's Knowledge, has never had
any subsidiaries or affiliated companies and does not otherwise own and, to Seller's Knowledge,has
never otherwise owned any shares of capital stock or any interest in, and does not control and, to
Seller's Knowledge, has never controlled, directly or indirectly, any other corporation, limited
liability company, partnership, association,joint venture or other business entity.
3.4 Authoritv. Seller has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Seller and no further action is required on
the part of Seller to authorize this Agreement and the transactions contemplated hereby. This
Agreement has been unanimously approved by the Board of Directors of Seller. This Agreement has
been duly executed and delivered by Seller and, assuming the due authorization, execution and
delivery by the other parties hereto, constitutes the valid and binding obligations of Seller
enforceable against it in accordance with its terms, except as such enforceability may be subject to
the laws of general application relating to bankruptcy, insolvency, and the relief of debtors and rules
of law governing specific performance, injunctive relief, or other equitable remedies.
3.5 No Conflict. The execution and delivery by Seller of this Agreement and the
consummation of the transactions contemplated hereby will not, to Seller's Knowledge, conflict with
or result in any violation of or default under(with or without notice or lapse of time, or both)or give
rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of
any benefit under(any such event, a"Conflict")(i) any provision of the Charter Documents of the
Company, (ii) any mortgage, indenture, lease, contract, covenant or other agreement, instrument or
commitment, permit, concession, franchise or license(each a"Contract" and collectively the
"Contracts")to which the Company or its properties or assets (whether tangible or intangible)is
subject, or(iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to
the Company or any of its properties (whether tangible or intangible) or assets. To Seller's
Knowledge,the Company is in compliance with and has not breached, violated or defaulted under,
or received notice that it has breached, violated or defaulted under, any of the terms or conditions of
any Contract, nor does Seller have Knowledge of any event that would constitute such a breach,
violation or default with the lapse of time, giving of notice or both. To Seller's Knowledge, each
Contract is in full force and effect, and the Company is not subject to any default thereunder, nor to
Seller's Knowledge is any party obligated to the Company pursuant to any such Contract subject to
any default thereunder.
3.6 Consents. To Seller's Knowledge, no consent, notice, waiver, approval, order or
authorization of, or registration, declaration or filing with any Governmental Entity or any third
party, including a party to any Contract with the Company(so as not to trigger any Conflict), is
required by, or with respect to, the Company in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except for such consents,
notices,waivers, approvals, orders, authorizations,registrations, declarations and filings as may be
required under applicable securities laws.
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3.7 No Undisclosed Liabilities. To Seller's Knowledge and except as otherwise provided
herein, the Company does not have any liability, indebtedness, obligation, expense, claim,
deficiency, guaranty or endorsement of any type, whether accrued, absolute, contingent,matured,
unmatured or other( required or not uired to be reflected in financial statements in accordance
which individually or in the aggregate i is in an amount in excess of 2 500.00 and
with GAAP c d $
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i has not been reflected in the unaudited consolidated balance sheet the "Current Balance Sheet1fas
of June 30, 2004 (the Balance Sheet Date )or(ii)has not arisen in the ordinary course of business
consistent with past practices since the Balance Sheet Date as of or prior to the date hereof.
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3.8 No Changes. To Seller's Knowledge, since the Balance Sheet Date, there has not
been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as
conducted on that date and consistent with past practice;
(b) payment, discharge or satisfaction, in any amount in excess of$2,500.00 in any
one case, or$5,000.00 in the aggregate, of any claim, liability or obligation (absolute, accrued,
asserted or unasserted, contingent or otherwise of Seller or any of its Subsidiaries), other than
payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or
reserved against in the Current Balance Sheet;
(c) destruction of, damage to, or loss of any material assets (whether tangible or
intangible and whether or not covered by insurance);
(d) except for sales, leases, licenses or dispositions in the ordinary course of business
consistent with past practice, any sale, lease, license or other disposition of any of the assets
(whether tangible or intangible) or properties of the Company or any creation of any security interest
in such assets or properties;
(e) commencement or settlement of any lawsuit by the Company, the
commencement, settlement, notice or threat of any lawsuit or proceeding or other investigation
against the Company or its affairs, or any reasonable basis for any of the foregoing;
(f) issuance or sale, or contract or agreement to issue or sell, by the Company of any
shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for,
shares of Company Capital Stock, or any securities,warrants, options or rights to purchase any of
the foregoing;
(g) event or condition of any character that has had or is reasonably likely to have a
Material Adverse Effect on the Company; or
(h) agreement by the Company, or any officer or employees on behalf of the
Company, to'do any of the things described in the preceding clauses (a) through (g)of this
Section 3.8 (other than negotiations with Buyer and its representatives regarding the transactions
contemplated by this Agreement).
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II
3.9 Tax Matters.
(a) As of the Closing Date or except as provided in Section 5.2 below, the
Company will have (i)prepared and timely filed all required federal, state, local and foreign returns,
estimates, information statements and reports ("Returns")relating to any and all Taxes concerning
or attributable to the Company or its operations and such Returns are or will be true and correct and
have been or will be completed in accordance with applicable law and(ii) timely paid all Taxes it is
required to pay.
(b) Except as provided below, the Company is not and,to the best of Seller's
Knowledge, has not been delinquent in the payment of any Tax, nor is there any Tax deficiency
outstanding, assessed or proposed against the Company,nor, to the best Knowledge of Seller,has
the Company executed any waiver of any statute of limitations on or extending the period for the
assessment or collection of any Tax. Seller represents that the Newhagen Property(as defined in
Section 5.3 below)was not reassessed upon Seller's acquisition of more than fifty percent(50%) of
the Company's capital stock and, therefore, supplemental taxes, interest and penalties on the
Newhagen Property were not reassessed at such time.
(c) No audit or other examination of any Return of the Company is presently in
progress, nor has the Company been notified of any request for such an audit or other examination.
(d) Other than liabilities that may accrue for supplemental taxes, interest and
penalties described in Section 3.9(b) above, the Company does not have any liabilities for unpaid
Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or
unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since
the date of the Current Balance Sheet other than in the ordinary course of business.
(e) Seller has made available to Buyer or its legal counsel, copies of all foreign,
federal, state and local income,payroll and unemployment Returns and all state and local property
and sales and use Returns for the Company filed for all periods from the 2000 tax year through the
date of this Agreement.
(f) There are (and immediately following the Closing there will be)no Liens on
the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due
and payable.
(g) Seller has no Knowledge of any basis for the assertion of any claim relating or
attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the
Company.
(h) To Seller's Knowledge, the Company has not(i) ever been a member of an
affiliated group filing a consolidated income Tax Return, (ii) ever been a party to any Tax sharing,
indemnification or allocation agreement, (iii) had any liability for the Taxes of any person (other
than the Company) as a transferee or successor,by contract or agreement, or otherwise and(iv)ever
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been a party to any joint venture,partnership or other arrangement that could be treated as a
partnership for Tax purposes.
(i) The Company's tax basis in its assets for purposes of determining its future
amortization, depreciation and other income Tax deductions is accurately reflected on its tax books
and records.
To Seller's Knowledge, no adjustment relating to any Return filed by the
Company has been proposed formally or informally by any tax authority to the Company or any
representative thereof.
3.10 Title to Properties; Absence of Liens and Encumbrances-, Condition of Equipment;
Customer Information.
(a) There are no parties in possession of any portion of the properties (including real
property) and assets set forth in Section 3.10(a)of the Disclosure Schedule (individually, the
"Owned Property"), whether as tenants, tenants at sufferance, trespassers or otherwise, except the
Company.
(b) To Seller's Knowledge, there are currently in existence no service, operating or
management agreements or arrangements with respect to any Owned Property.
(c) There is no pending or, to Seller's Knowledge, threatened condemnation or
similar proceeding affecting any Owned Property or any portion thereof, and Seller has no
Knowledge that any such action is currently contemplated. There are no legal actions, suits or other
legal or administrative proceedings pending or threatened against the Company, or, to Seller's
Knowledge, against third parties affecting any Owned Property, and the Company is not aware of
any facts which might result in any such action, suit or proceeding.
3.11 Agreements, Contracts and Commitments.To Seller's Knowledge and except as set
forth in Section 3.11 of the Disclosure Schedule, the Company is not bound by any agreement,
contract or commitment that involves $2,500.00 individually or$5,000.00 in the aggregate or more
and is not cancelable without penalty within thirty(30) days.
(b) To Seller's Knowledge, each Contract disclosed in the Disclosure Schedule or
required to be disclosed pursuant to this Section 3.11 (collectively, the"Material Contracts") is a
valid and binding agreement of the Company, as the case may be, and is in full force and effect with
respect to the Company and any other party thereto, and neither the Company nor any other party
thereto is in default or breach in any material respect under the terms of any Material Contract, and
no event or circumstance has occurred that, with notice or lapse of time or both, could reasonably be
expected to constitute any event of default thereunder. True and complete copies of each Material
Contract have been delivered to Buyer.
(c) To Seller's Knowledge, the Company has fulfilled all material obligations
required pursuant to each Material Contract to have been performed by the Company prior to the
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date hereof, and to the Knowledge of Seller, the Company will fulfill, when due, all of its obligations
under the Material Contracts that remain to be performed after the date hereof.
3.12 Litigation. To Seller's Knowledge, there is no action, suit, claim or proceeding of
any nature pending, or threatened against the Company, its properties (tangible or intangible) or any
of its officers or members of its Board of Directors, nor is there any reasonable basis therefor. To
Seller's Knowledge, there is no investigation or other proceeding pending or threatened, against the
Company, any of its properties (tangible or intangible) or any of its officers or members of its Board
of Directors by.or before any Governmental Entity, nor is there any reasonable basis therefor. To
Seller's Knowledge, no Governmental Entity has at any time challenged or questioned the legal right
of the Company to conduct its operations as presently or previously conducted or as presently
contemplated to be conducted.
3.13 Environmental Matters.
(a) Hazardous Material. To Seller's Knowledge, the Company has not transported,
stored, used, manufactured, disposed of, released or exposed any Person to any substance that has
been designated by any Governmental Entity or by applicable federal, state or local law to be
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or the environment,
including, without limitation, PCBs, asbestos, petroleum, and urea-formaldehyde and all substances
listed as hazardous substances pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to
the United States Resource Conservation and Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws (a"Hazardous Material"), but excluding office and janitorial
supplies properly and safely maintained in accordance with applicable laws, in violation of any law
or in a manner that would result in liability to the Company. To Seller's Knowledge, no Hazardous
Materials are present in, on or under any property, including the land and the improvements, ground
water and surface water thereof,that the Company has at any time owned, operated, occupied or
leased. The Company does not engage in any activity that would require any environmental
approvals,permits, licenses, clearances or consents for such activity.
(b) Environmental Liabilities. No action, proceeding, revocation proceeding,
amendment procedure, writ, injunction or claim is pending, or, to the best Knowledge of Seller,
threatened, concerning any Environmental Permit, Hazardous Material or any Hazardous Materials
Activity of the Company. Seller has no Knowledge of any fact or circumstance which could involve
the Company which could result in any environmental litigation or liability.
(c) Reports and Records. Seller has delivered to Buyer all records in Seller's
possession concerning the Hazardous Materials Activities of the Company and relating to its
business and all environmental audits and environmental assessments of any Owned Property
conducted at the request of, or otherwise in the possession of Seller or the Company. To Seller's
Knowledge, the Company has complied with all environmental disclosure obligations imposed by
applicable law with respect to this transaction.
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3.14 Compliance with Laws. To Seller's Knowledge,the Company has complied with, is
not in violation of, and has not received any notices of violation with respect to, any foreign, federal,
state or local statute, law or regulation.
3.15 Complete Copies of Materials. Seller has delivered or made available true and
complete copies of each document(or summaries of same)that has been requested by Buyer or its
counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller, as of the date of this Agreement and as of the
Closing Date, as follows:
4.1 Authority. Buyer has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby has been duly authorized
by all necessary action on the part of Buyer and no further action is required on the part of Buyer to
authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Buyer and, assuming the due authorization, execution and delivery by the
other parties hereto and thereto, constitutes the valid and binding obligations of Buyer enforceable
against it in accordance with its terms, except as such enforceability may be subject to the laws of
general application relating to bankruptcy, insolvency, and the relief of debtors and rules of law
governing specific performance, injunctive relief, or other equitable remedies.
ARTICLE V
COVENANTS AND AGREEMENTS
5.1 Reasonable Efforts; Further Assurances; Cooperation. Subject to the other provisions
of this Agreement, the parties hereto shall each use commercially reasonable efforts to perform their
obligations herein and to take, or cause to be taken or do, or cause to be done, all things necessary,
proper or advisable under applicable law to satisfy all conditions to the obligations of the parties
under this Agreement and to cause the transactions contemplated herein to be effected in accordance
with the terms hereof and shall cooperate fully with each other and their respective representatives in
connection with any steps required to be taken as a part of their respective obligations under this
Agreement. In addition, in the event that Buyer does not become the sole owner of all issued and
outstanding Company Capital Stock immediately following the Closing, Seller shall take, or cause to
be taken or do, or cause to be done, all things necessary,proper or advisable under applicable law to
transfer to Buyer, at Seller's sole cost and expense, any shares of Company Capital Stock that were
not otherwise transferred to Buyer pursuant to this Agreement.
5.2 Real Property Tax Delinquencies. Seller hereby covenants and agrees that, if any real
property taxes are due and payable and have not been paid prior to the date of this Agreement, Seller
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will, as promptly as possible,pay such supplemental taxes and related, penalties, interest, fees and
any other amounts relating to any real property taxes of the Company that are due pursuant to any
reassessment of the Newhagen Property made as a result of Seller's acquisition of more than fifty
percent(50%) of the capital stock of the Company or due and payable for any other reason. Seller
shall use its best efforts to remove, as promptly as possible, any liens attaching to the Newhagen
Property as a result of any delinquency in real property taxes assessed on the Newhagen Property.
5.3 Real Property Matters. Buyer hereby covenants and agrees as follows:
(a) Naming of"Newhagen Meadows". Buyer shall name the real property commonly
known as Santa Clara County Assessor's Parcel Numbers 575-11-004, 575-12-001 and 575-12-013
("Newhagen Property") the"Newhagen Meadows"area of Sierra Azul Open Space Preserve.
(b) Covenant Regarding Recognition of Significant Supporters. Buyer shall permit
Seller to reserve the right to specially recognize"Significant
ifcant Supporters"(as such term is defined in
and in compliance with the criteria set out in Buyer's "Policies for Site Naming and Gift Recognition
and Bench Site Selection Criteria"as are in effect as of the date of this Agreement and as such may
hereinafter be amended from time to time)by the naming in a manner desired by a Significant
Supporter(s) and acceptable to Seller of any specific locations, land formations, trails, natural and
features staging areas and other site improvements, or areas of significance within the
physical g $ P Sn
Newhagen Property. Except as provided in Section 5.3(a) above, in no event shall the entire
Newhagen Property be named after any individual or Significant Supporter(s). Seller may exercise
this reservation by stating in writing to Buyer its request for such recognition on or before five (5)
years following the Closing. Such recognition shall be unobtrusive and consistent with the purpose
for which Buyer is acquiring the Newhagen Property including the preservation of public open space
and natural habitat. Any and all costs associated with such recognition shall be borne by Seller.
This reservation shall automatically terminate five (5) years from the date of Closing. Buyer agrees
to describe such designations of the features or portions of the Newhagen Property s appropriate on
any and all maps and trail brochures of the Newhagen Property.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES: INDEMNIFICATION
i
6.1 Survival of Representations,Warranties, Covenants and Agreements. The
representations and warranties, of Seller contained in this Agreement, or in any document, certificate
or other instrument delivered pursuant to this Agreement, shall survive until 5:00 p.m. California
time on the eighteenth-month anniversary of the Closing Date (the"Expiration Date");provided,
however, that(a) the representations and warranties contained in Section 3.9 ("Tax Matters") shall
survive until the close of business on the 1201h day following the expiration of the applicable statute
of limitations with respect to the Tax liabilities in question (giving effect to any waiver, mitigation or
extension thereof) and(b) the representations and warranties contained in Section 3.2 ("Company
Capital Structure") and 3.13 ("Environmental Matters") shall survive until the expiration of all
applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof). The
representations and warranties of Buyer contained in this Agreement, or in any document, certificate
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or other instrument delivered pursuant to this Agreement, shall terminate at the Closing. The
covenants and agreements contained in this Agreement, or in any document, certificate or other
instrument delivered pursuant to this Agreement, that are to be performed following the Closing
Date shall survive the Closing and continue in full force and effect until such covenants and
agreements are performed in accordance with the terms of this Agreement or in any document,
certificate or other instrument delivered pursuant to this Agreement.
6.2 Indemnification. Seller agrees to indemnify and hold Buyer and its employees,
officers, directors and Affiliates (each, an"Indemnified Party" and, collectively, the"Indemnified
Parties"), harmless against all claims, losses, liabilities, damages, deficiencies, costs, interest,
awards,judgments,penalties and expenses, including reasonable attorneys' and consultants' fees and
expenses including any such expenses incurred in connection with investigating, defending against
or settling any of the foregoing(hereinafter individually a"Loss"and collectively"Losses")paid,
sustained, incurred or accrued by the Indemnified Parties, or any of them, directly or indirectly, as a
result of(a) any breach or inaccuracy of any representation or warranty of Seller contained in this
Agreement or any document, certificate, or other instrument delivered in connection with this
Agreement, or(b) any failure by Seller to perform or comply with any covenant contained in this
Agreement or any document, certificate, or other instrument delivered in connection with this
Agreement.
6.3 Indemnification Procedures. A party seeking indemnity pursuant to this Article 6
shall deliver to Seller a certificate signed by a duly authorized officer of Buyer stating(a) that an
Indemnified Party has paid, sustained, incurred, accrued or reasonably anticipates that it will have to
pay, sustain, incur or accrue Losses, and(b) specifying in reasonable detail the individual items of
Losses included in the amount so stated, the date each such item was paid, sustained, incurred or
accrued, or the basis for such anticipated liability, and the nature of the misrepresentation,breach of
warranty or covenant to which such item is related (an "Officer's Certificate"). Seller may object
to any claim set forth in such Officer's Certificate by providing written notice to such Indemnified
Party specifying the basis for Seller's objection, within ten (10) days following delivery of such
Officer's Certificate to Seller. If an objection to the amount of Losses specified in such Officer's
Certificate is provided by Seller, and Seller and the Indemnified Party are unable to resolve such
dispute after good faith discussions within ten(10) days following the delivery of such objection
notice, such dispute shall be resolved by a court of competent jurisdiction. If no such objection is
made, the Indemnifying Party shall promptly pay the claim.
6.4 Maximum Payments; Remedy.
I
(a) Nothing herein shall limit any remedy of an Indemnified Party for Losses
resulting from:
(i) fraud, intentional misrepresentation or willful misconduct;
(ii) any breach or inaccuracy of a representation or warranty contained in
Section 3.2 (Company Capital Structure); or
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(iii) any breach or inaccuracy of a representation or warranty contained in
Section 3.9 (Tax Matters);
provided, however, that the Indemnified Parties shall in no event be entitled to indemnification for
aggregate Losses in excess of the Purchase Price.
(b) Nothing herein shall limit the liability of the Seller for any breach or inaccuracy
of any representation,warranty or covenant contained in this Agreement if the Closing does not
Occur.
ARTICLE VII
GENERAL
7.1 No Third Party Beneficiaries. Except as set forth in or contemplated by the
provisions of Section 6.2 hereof, nothing contained in this Agreement shall be construed to confer
upon or give to any person or entity other than the parties hereto and their successors and assigns any
rights or remedies under or by reason of this Agreement.
7.2 Notices. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the date of service if
served personally or by commercial messenger or courier service on the party to whom notice is to
be given, or on the third day after mailing if mailed to the party to whom notice is to be given,by
first class mail registered or certified,postage prepaid, and properly addressed as follows:
If to Buyer: Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022-1404
Attention: Susan Schectman
Telephone: (650) 691-1200
Fax: (650) 691-0485
With a copy to: Wilson Sonsini Goodrich& Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attention: Bradford C. O'Brien
Telephone: (650)493-9300
Fax: (650)496-4367
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If to Seller: Peninsula Open Space Trust
3000 Sand Hill Road
Bldg. 1, Suite 155
Menlo Park, CA 94025
Attention: Walter Moore
Telephone: (650) 854-7696
Fax: (650) 854-7703
7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors, assigns, heirs, executors and personal representatives.
7.4 Entire Agreement; Modification, Waiver. This Agreement and the schedules and
exhibits attached to this Agreement set forth the entire agreement of the parties hereto with respect to
the matters contained herein and no prior or contemporaneous agreement or understanding
pertaining to any such matter shall be effective for any purpose. No supplement, modification or
amendment to this Agreement shall be binding unless executed in writing by both of the parties. No
waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, any waiver of
any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the waiver.
7.5 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any
of the terms and provisions of this Agreement, the prevailing party in such action shall be entitled, in
addition to damages, injunctive or other relief, to its reasonable costs and expenses, and reasonable
attorneys' fees.
7.6 Expenses. Whether or not the Stock Purchase is consummated, each of the parties
shall pay all costs and expenses incurred or to be incurred by it in negotiating and preparing this
Agreement and in closing and carrying out the transactions contemplated by this Agreement and the
exhibits hereto.
7.7 Governing Law; Rules of Construction. This Agreement shall be governed by and
construed in accordance with the laws of California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this Agreement and,
therefore, waive the application of any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against the party drafting such
agreement or document.
7.8 Assignment. This Agreement shall be binding upon and inure to the benefit of the
parties named herein and their respective successors and assigns. No party may assign this
Agreement or any of its rights, interests or obligations hereunder without the prior written consent of
the other party.
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t
j7.9 Relationship. The relationship of the parties to this Agreement is determined solely
by the provisions of this Agreement. This Agreement does not create any agency,partnership,joint
venture or trust.
7.10 Counterparts. This Agreement may be signed by the parties in counterparts and the
signature pages combined shall create a document binding on all parties.
7.11 Severabilitv. If any provision of the Agreement is held to be invalid or unenforceable
at law, that provision will be reformed as a valid provision to reflect as closely as possible the
original provision giving maximum effect to the intent of the parties, or if that cannot be done,will
be severed from the Agreement without affecting the validity or enforceability of the remaining
provisions.
includes" and includin when used herein
2 Interpretation. The words include?.1 )
� g
shall be deemed in each case to be followed by the words "without limitation."
7.13 Extension; Waiver. At any time prior to the Closing, Buyer or Seller may(a) extend
the time for the performance of any of the obligations or other acts of the other party hereto,
(b)waive any inaccuracies in the representations and warranties contained herein or in any document
delivered pursuant hereto, or(c) waive compliance with any of the agreements or conditions for the
benefit thereof contained herein. Any agreement on the part of a party hereto to any such extension
i n behalf of both of the
l valid only if set forth in an instrument in writing signed o
or waiver shall be g gn Y
parties hereto.
�I
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the
date first above written.
PENINSULA OPEN SPACE TRUST
By:
Name:
�I
Title:
MIDPENINSULA REGIONAL OPEN
SPACE DISTRICT
B :
y
i
Name:
Title:
[Signature Page to Stock Purchase Agreement]
I,
EXHIBIT B
GUADALUPE LAND CO.
ACTION BY WRITTEN CONSENT OF THE SHAREHOLDERS
IN LIEU OF A MEETING
a California corporation
92004
Pursuant to Section 603(a) of the General Corporation Law of the State of California, the
undersigned, being the sole stockholder of Guadalupe Land Co., a California corporation (the
"Company"), hereby takes the following actions and adopts the following resolutions by written
consent without a meeting, effective as of the date first written above:
1. Amended and Restated Articles of Incorporation
RESOLVED: That the Amended and Restated Articles of Incorporation of the Company in
substantially the form attached hereto as Exhibit A are hereby approved.
RESOLVED FURTHER: That the proper officers of the Company are hereby authorized to
execute and file the Amended and Restated Articles of Incorporation with the Secretary of
State of the State of California and to take any additional action and to execute any other
documents they deem necessary or advisable to carry out the purposes and intent of the above
resolutions.
2. Amended and Restated Bylaws
RESOLVED: That the Amended and Restated Bylaws in substantially the form attached
hereto as Exhibit B are hereby approved.
RESOLVED FURTHER: That the secretary of the Company is hereby instructed to include
a copy of the Amended and Restated Bylaws in the minute book of the Company.
3. Election of Directors
RESOLVED: That the following individuals are hereby elected and appointed to the Board
of Directors of the Company, each to serve until the next annual meeting of shareholders and
until his or her successor has been elected and qualified: L. Craig Britton, Sally Thielfoldt
and Mike Foster.
4. Omnibus Resolutions
RESOLVED: That the proper officers of the Company be, and each individually is, hereby
authorized and directed to do and perform any and all such acts, including the execution,
delivery and filing of any and all instruments, documents and certificates, as such officers
deem necessary or advisable, to carry out and perform the purposes and intent of the
foregoing resolutions.
RESOLVED FURTHER: That any actions taken by such officers prior to the date of the
foregoing resolutions adopted hereby that are within the authority conferred thereby are
hereby ratified, confirmed and approved as the acts and deeds of the Company.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned shareholder is giving written consent with
respect to all shares of the Company's capital stock held by such shareholder in favor of the above
resolutions. Any copy, facsimile or other reliable reproduction of this action may be substituted or
used in lieu of the original writing for any and all purposes for which the original writing could be
used, provided that such copy, facsimile or other reproduction be a complete reproduction of the
entire original writing.
MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT
By:
Name: Mary Davey
Title: President, Board of Directors
Dated: 12004
i
i
EXHIBIT A
Amended and Restated Articles of Incorporation
i
II'
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EXHIBT B
i
Amended and Restated Bylaws
EXHIBIT C
GUADALUPE LAND CO.
ACTION BY WRITTEN CONSENT OF THE
BOARD OF DIRECTORS IN LIEU OF A MEETING
a California corporation
,2004
Pursuant to Section 307(b) of the General Corporation Law of the State of California, the
undersigned members of the Board of Directors (the"Board') of Guadalupe Land Co., a California
corporation (the"Company"), hereby take the following actions and adopt the following resolutions
by written consent without a meeting, effective as of the date first written above:
1. Amended and Restated Articles of Incorporation
RESOLVED: That the Amended and Restated Articles of Incorporation of the Company in
substantially the form attached hereto as Exhibit A are hereby approved.
RESOLVED FURTHER: That each proper officer of the Company is hereby authorized to
execute and file the Amended and Restated Articles of Incorporation with the Secretary of
State of the State of California and to take any additional action and to execute any other
documents they deem necessary or advisable to carry out the purposes and intent of the above
resolutions.
2. Amended and Restated Bylaws
RESOLVED: That the Amended and Restated Bylaws in substantially the form attached
hereto as Exhibit B are hereby approved.
RESOLVED FURTHER: That the secretary of the Company is hereby instructed to include
a copy of the Amended and Restated Bylaws in the minute book of the Company.
3. Election of Officers
RESOLVED: That the following individuals are hereby elected and appointed to the office
set forth opposite such individual's respective name, each to serve until the next annual
meeting of the Board and until his successor has been elected and qualified:
L. Craig Britton President and Chairman of the Board
Sally Thielfoldt Secretary
Mike Foster Chief Financial Officer
4. Aaent for Service of Process
RESOLVED: That Sally Thielfoldt, whose address is 330 Distel Circle, Los Altos,
California 94022-1404, shall be designated as the Company's initial agent for service of
process.
5. Principal Office
RESOLVED: That the principal office of the Company is 330 Distel Circle, Los Altos,
California 94022-1404.
6. Appointment of Accountant
RESOLVED: That the Board herebyappoints Frank Rimmerman as the Company's
a
pP
accountant.
7. Authority of Officers for Financial Matters
RESOLVED: That in connection with establishing and conducting the financial affairs and
i
making commitments of the Company, any two officers of the Company, acting jointly, are
authorized to act, on behalf and in the name of the Company, in the manner and subject to the
limits specified below:
(a) to designate one or more banks or similar financial institutions as depositories of
the funds of the Company;
(b) to open, maintain and close general and special accounts with any such
depositories;
(c) to cause to be deposited, from time to time in such accounts with any such
depository, such funds of the Company as such authorized officers deem
necessary or advisable, and to make such deposits and to endorse checks, drafts
and other instruments for deposit;
(d) to sign or countersign checks, drafts, and other orders for the payment of money
issued in the name of the Company against any funds deposited in any of such
accounts;provided, however, that each such check, draft or other order for the
payment of money shall not exceed $10,000 or the amount authorized on the
relevant bank signature card, without the required countersignature;
(e) to authorize the use of checks, drafts or other orders for the payment of money,
and to enter into such agreements as banks and similar financial institutions
customarily require as a condition for permitting the use of facsimile signatures;
(f) to make such general and special rules and regulations with respect to such
accounts as such officers may deem necessary and advisable and to complete,
execute, and certify any customary printed blank signature card forms in order to
exercise conveniently the authority granted by this resolution;
(g) otherwise to conduct in the name of the Company all business relative to cash
management as necessary, including but not limited to all transactions involving
the transfer of funds on behalf of the Company and all transactions relative to
short term cash investments and safe deposit boxes, and such officers are and each
hereby is authorized to sign and deliver any agreement in the name of the
Company and to otherwise obligate the Company in any respect relating to
financial matters of the business of the Company, within budgets approved by the
Board of Directors of the Company.
RESOLVED FURTHER: That the standard form of corporate banking resolutions, as
required by any depository designated pursuant to the foregoing resolution,necessary to
accomplish the foregoing resolution, are hereby approved and adopted as the resolutions of
this Board, and the proper officers of the Company are authorized to attach copies thereof to
these resolutions.
RESOLVED FURTHER: That the Secretary of this Company be, and hereby is, authorized
in the name of the Company to certify the foregoing resolutions as having been duly adopted
b the Board and to deliver the resolutions as certified to third parties as such officers deem
Y
necessary or appropriate.
8. Insurance
RESOLVED: That the President and Chief Financial Officer of the Company, acting
jointly, are hereby authorized to obtain or purchase general liability and directors' and
officers' insurance and such other insurance as is customary and reasonable on behalf of the
Company in such amounts and with such coverage as is customary and reasonable.
9. Omnibus Resolutions
RESOLVED: That the proper officers of the Company be, and each individually is, hereby
authorized and directed to do and perform any and all such acts, including the execution,
delivery and filing of any and all instruments, documents and certificates, as such officers
deem necessary or advisable, to carry out and perform the purposes and intent of the
foregoing resolutions.
RESOLVED FURTHER: That any actions taken by such officers prior to the date of the
foregoing resolutions adopted hereby that are within the authority conferred thereby are
hereby ratified, confirmed and approved as the acts and deeds of the Company.
Signature page follows]
III
i
This action shall be filed with the minutes of the proceedings of this Board of Directors and
shall be effective as of the date first written above.
L. Craig Britton, Director
Sally Thielfoldt Director
Mike Foster Director
i
EXHIBIT A
Amended and Restated Articles of Incorporation
i
EXHIBT B
Amended and Restated Bylaws
EXHIBIT D
LICENSE AND MANAGEMENT AGREEMENT
THIS LICENSE AND MANAGEMENT AGREEMENT("License"), dated for reference
purposes only as of December_, 2004, is by and between the GUADALUPE LAND CO., a
California corporation ("GLC'), and MIDPENINSULA REGIONAL OPEN SPACE DISTRICT,
a Public District formed pursuant to Section 3 of Chapter 3 of Division 5 of the California Public
Resources Code ("District").
RECITALS
A. GLC is the owner of a certain parcel of real property ("Property"), located within the
unincorporated area of the County of Santa Clara, State of California and is more particularly
described in Exhibit "A", attached hereto and incorporated herein by this reference.
B. The Property is adjacent to District land. GLC desires that District manage the Property
for the benefit of GLC. In return for such services, District will receive the benefit of the ability
to use the Property for purposes consistent with its mission.
C. GLC is willing to license the Property to District, and District desires to license the
Property from GLC, upon the terms and conditions set forth below.
AGREEMENT
NOW,THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, GLC and District(collectively, the "Parties") hereby agree as
follows:
1. License. For and in consideration of the mutual covenants and agreements by the Parties
contained in this License, GLC does hereby license to District, and District does hereby license
from GLC, all of the Property.
2. License Term. District shall license the Property for a term of one year commencing on
the Effective Date hereof and ending one (1) year from the Effective Date (the "License Tenn").
As used herein, the term "Effective Date" shall be the date on which this License is executed by
the District.
3. Consideration. GLC shall pay District an annual management fee ("Fee") in an amount
of Four Thousand and Two Hundred Dollars ($4,200.00)per year. GLC and District agree that
this amount is fair and reasonable in view of District's performance of its covenants and
agreements contained herein(including, without limitation, those regarding indemnification,
maintenance and operation of the Property.)
4. GLC's Representations, Warranties and Covenants. GLC represents, warrants and
covenants as follows:
4.1. Organization. GLC is duly organized and validly existing under the laws of the
State of California.
4.2. Requisite Action. All requisite corporate action has been taken by GLC in
connection with GLC's execution of this License, and has been taken or will be taken in
connection with the agreements, instruments or other documents to be executed by GLC
pursuant to this License.
4.3. Title. To GLC's knowledge, GLC owns fee simple title to the Property.
5. Management. During the term of this License and any extension thereof, District agrees
to manage the Property for the purpose of open space preservation as part of the ecological,
recreational and scenic resources of the mid-peninsula area. District shall be solely responsible
for management of the Property during the License Tenn. District may install gates and
appropriate signing and fencing as District determines is necessary and appropriate, and may
undertake such other steps as District deems necessary or appropriate for the proper and safe
management of the Property.
6. Patrol. District will patrol and manage the Property in a manner consistent with adjacent
District holdings to ensure that the Property is kept in a safe and sanitary condition and that
deleterious or incompatible uses of the Property are discouraged. Should any trespass or other
unauthorized use or activity occur upon the Property, District may exercise its authority to
correct these matters including, where necessary, enforcing District regulations and ordinances
on the Property. The Property shall be deemed to be property under the control and management
of District for purposes of Public Resource Code Section 5558 and shall be deemed to be
"District Lands" as defined in District Ordinance No. 04-1.
7. Use. District shall have the right to use and operate the Property for open space and
recreational purposes including, but not limited to environmental education, occassionalspecial
events, docent-led hikes, and to plan, design and construct low intensity recreational trails for
limited public use.
8. Legal Responsibility and Indemnification.
8.1 District. During the License Term, District shall assume full legal responsibility
for the management, control and operation of the Property, the conditions thereof and for all
activities conducted by District thereon. Except as otherwise agreed herein, District shall
hold GLC harmless from, and defend GLC and its officers, directors, employees and agents
against, any and all claims or liabilities for injury or damage to any persons of property
howsoever occurring during the life of this License in, on, or about the Property arising out
of any condition of the Property or of any act, neglect, fault or omission by the District with
respect to District responsibilities as set out in this License.
8.2 GLC. GLC agrees to indemnify, defend and hold harmless District and its agents,
officers, officials, and employees against any and all claims or liabilities for injury or damage
to persons or property arising out of or resulting from the negligent acts or fault of GLC, or
its agents, employees, officers, or servants, in connection with the Property.
8.3 Joint Responsibility. In the event of concurrent negligence, each party will bear
responsibility for its acts in proportion to its fault under the doctrine of comparative
negligence.
2
8.4 Insurance. During the License Term, the District shall maintain in full force and
effect a comprehensive general liability insurance policy applicable to the Property and the
District's activities under this License with limits of liability of at least Two Million Dollars
($2,000,000) aggregate combined single limit for bodily injury and property damage liability;
and One Million Dollars ($1,000,000) combined single limit per occurrence. The District
may satisfy the obligations set out in this Section by participation in a government self-
insurance risk pool authorized under state law, including but not limited to the California
Joint Powers Insurance Authority("CJPIA").
9. C comply p liance with Laws. District shall 1Y any with and all federal state and local
laws, statutes, codes, ordinances, regulations, rules, orders, permits, licenses, approvals and
requirements applicable to the use and occupancy of the Property by District and District shall
not commit and shall not knowingly permit others to commit waste upon the Property.
10. Surrender of Property. Except as otherwise provided in this License, and subject to acts
of God,upon the expiration or earlier termination of the License Term, to the maximum extent
the same is reasonably within the control of District, District shall surrender the Property in
substantially the same condition as it was in upon the Effective Date, except for any changes to
such condition made or caused to be made by GLC or any of GLC's agents, lenders, contractors,
engineers, consultants, employees, subcontractors, licensees, invitees and representatives.
11. Maintenance and Utilities. During the License Term, District shall not use the Property
for any purpose except as expressly provided in this License. District shall be solely responsible
for the cost of providing any utilities or other services necessary for District's use and occupancy
of the Property and District shall promptly pay and/or discharge any liens that may be recorded
against the Property or District's License interest therein resulting from any work performed or
materials ordered by or on behalf of District. During the License Term, District shall maintain
and repair the Property in such manner as reasonably necessary to preserve its existing character;
provided, however, that District shall not be obligated to make any material capital
improvements to the Property.
12. Assignment. District may not assign this License to any other party without the prior
written consent of GLC, which consent shall not be unreasonably withheld or delayed with
respect to an assignment to a party that expressly assumes in writing all of District's obligations
and liabilities hereunder. In the event of an assignment, District shall remain liable for the
payment of all fees and the performance of all of District's obligations under this License, except
if and to the extent such obligations are released in writing by GLC.
13. Miscellaneous Provisions.
13.1 Invalidity. If any term or provision of this License or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
License, or the application of such term or provision to persons whose circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected.
13.2 Successors and Assigns. Subject to the limitations set forth above,the terms,
conditions and covenants of this License shall be binding upon and shall inure to the benefit
3
of each of the Parties, their heirs, personal representatives, successors or assigns, and shall
run with the land.
13.3 Writing. No waivers, amendments, alterations or modifications of this License, or
any agreements in connection with this License, shall be valid unless in writing and duly
executed by both GLC and District or their respective successors-in-interest.
13.4 Construction. The captions appearing in this License are inserted only as a matter
of convenience and in no way define, limit, construe or describe the scope or intent of such
paragraphs of this License or in any way affect this License. Any gender used shall be
deemed to refer to any other gender more grammatically applicable to the party to whom
such use of gender relates. The use of singular shall be deemed to include the plural and,
conversely, the plural shall be deemed to include the singular.
13.5 Notices. Any notice, demand, or request required hereunder shall be given in
writing at the addresses set forth below by any of the following means: (a)personal service;
(b)telephonic facsimile transmission; (c)nationally recognized overnight commercial mail
service; or(d)registered or certified, first class U.S. mail, return receipt requested.
If intended for District, addressed as follows:
Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, General Manager
TEL: (650) 691-1200
FAX: (650) 691-0485
If intended for GLC, addressed as follows::
Guadalupe Land Company
330 Distel Circle
Los Altos, CA 94022
Attn: L. Craig Britton, President
TEL: (650) 691-1200
FAX: (650) 691-0485
Such addresses may be changed by notice to the other party given in the same manner as
above provided. Any notice, demand or request sent pursuant to either clause (a) or(b),
above, shall be deemed received upon such personal service or upon dispatch by electronic
means (provided, however, that a dispatch by facsimile transmission that occurs on any day
other than a business day or after 5:00 p.m. Pacific time shall not be deemed received until
9:00 a.m. Pacific time on the next business day). Any notice, demand, or request sent
pursuant to clause(c), above, shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause(d), above,
shall be deemed received forty-eight(48)hours following deposit in the U.S. mail.
4
13.6 Authority to Sim. The parties executing this License on behalf of GLC and
District represent that they have authority and power to sign this License on behalf of GLC
and District, respectively.
13.7 Conflict of Laws. This License shall be governed by and construed pursuant to
the laws of the State of California.
13.8 Attorneys' Fees. If either party should bring suit or seek arbitration under this
License,because of the breach of any provision of this License, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein shall be paid by
the other party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action or arbitration and shall be
enforceable whether or not the action is prosecuted to judgment.
13.9 Waiver. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained nor shall any custom or
practice that may arise between the Parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect,the right of GLC or District to insist upon the
performance by District or GLC in accordance with said terms.
13.10 Time. Time is of the essence with respect to the performance of every provision
of this License in which time of performance is a factor.
13.11 Prior Agreements. This License contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this License, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
13.12 Applicable Law, Severability. As used herein the term" 'all Applicable Laws"
shall mean and refer to all state, federal and local ordinances, statutes and laws. Any
provision of this License that shall prove to be invalid, void or illegal in no way affects,
impairs or invalidates any other provisions hereof, and all other provisions shall remain in
full force and effect.
GLC AND DISTRICT, by their execution below, indicate their consent to the terms of
this License and Management Agreement.
For GLC: GUADALUPE LAND COMPANY, a California corporation
By:
L. Craig Britton, President
Date:
For DISTRICT: MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT, a Public District formed pursuant to
Section 3 of Chapter 3 of Division 5 of the
California Public Resources Code
APPROVED AS TO FORM:
By:
Susan M. Schectman, General Counsel
APPROVED AND ACCEPTED:
By:
Mary Davey, President, Board of Directors
Date:
ATTEST:
By:
Sally Theifoldt, District Clerk
Date:
6
EXHIBIT A
Description:
The land referred to herein is situated in the State of California, County of Santa Clara,
Unincorporated Area, and is described as follows:
PARCEL ONE:
BEGINNING AT A POINT IN THE CENTER OF THE ARROYO SECO NEAR THE ENRIQUITA MINE,
AND RUNNING THENCE SOUTH 1/40 WEST 33.00 CHAINS TO THE NORTHEAST CORNER OF
LAND OWNED NOW OR FORMERLY BY HAHN; THENCE ALONG THE NORTHERLY LINE OF SAID
HAHN'S LAND DUE WEST 20.00 CHAINS TO A POST FROM WHICH A BLACK OAK TREE 2 FEET IN
DIAMETER AND MARKED B. NO. 1, BEARS NORTH 22 3/40 EAST 1.50 CHAINS DISTANT, THENCE
NORTH 15 3/40 WEST 7.60 CHAINS TO A SYCAMORE TREE, MARKED WITH A CROSS; THENCE
NORTH 1/40 WEST 7.00 CHAINS TO A BUNCH OF BAYTREES;THENCE NORTH 3 1/2* EAST 10.30
CHAINS TO A PILE OF STONES ON TOP OF RIDGE;THENCE NORTH 73*EAST 11.00 CHAINS TO A
SMALL SPICE WOOD TREE MARKED 82 ON TOP OF A RIDGE; THENCE NORTH 481 EAST 12.10
CHAINS TO A SYCAMORE STUMP STANDING ON THE SOUTH BANK OF SAID ARROYO SECO;
THENCE ALONG THE CENTER OF SAID ARROYO SECO NORTH 84 1/20 EAST 8.55 CHAINS AND
SOUTH 43 1/40 EAST 7.90 CHAINS TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE NORTHEAST 10.10 ACRE THEREOF AS CONVEYED TO THE
SANTA CLARA VALLEY WATER CONSERVATION DISTRICT BY DEED DATED SEPTEMBER 10,
1936 AND RECORDED NOVEMBER 18, 1936 IN BOOK 799 OFFICIAL RECORDS, PAGE 79, SANTA
CLARA COUNTY RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTHWESTERLY LINE OF THE RANCHO DE LOS
CAPITANCILLOS AT THE COMMON CORNER TO THAT CERTAIN PIECE OR PARCEL OF LAND
HERETOFORE CONVEYED BY EDWARD ARCHIBALD TO ROBERT ARCHIBALD BY DEED DATED
MARCH 26, 1921, AND RECORDED IN VOLUME 529 OF DEEDS, PAGE 523, RECORDS OF SANTA
CLARA, CALIFORNIA AND THE HEREINAFTER MENTIONED LANDS OF CHARLOTTE E. HORRIGAN
AND RUNNING THENCE ALONG THE LINE DIVIDING SAID LANDS OF ARCHIBALD FROM SAID
LANDS OF HORRIGAN SOUTH 240 00'WEST 415.41 FEET; THENCE LEAVING LAST SAID LINE AND
RUNNING THE FOLLOWING COURSES AND DISTANCES, TO WIT: NORTH 57142'WEST 38.09
FEET, NORTH 540 50'WEST 212.34 FEET, NORTH 70 10'WEST 101.49 FEET, NORTH 19- 16' EAST
79.62 FEET, NORTH 120 1 VWEST 89.78 FEET, NORTH 400 48'WEST 185.98 FEET, NORTH 710 47-
WEST 104.77 FEET, SOUTH 68-35'WEST 113.57 FEET, SOUTH 80-30'WEST 93.71 FEET, NORTH
800 33'WEST 74.27 FEET, NORTH 420 43'WEST 150.44 FEET, NORTH 29-23,WEST 46.68 FEET
AND NORTH 330 28'WEST 29.31 FEET, TO THE LINE DIVIDING SAID LANDS OF HORRIGAN FROM
THAT CERTAIN PLACE OR PARCEL OF LAND HERETOFORE CONVEYED BY THE ESTATE OF
FRANK E.WYMAN TO A.B.WYMAN BY DEED DATED SEPTEMBER 19, 1931, AND RECORDED IN
VOLUME 588 OF OFFICIAL RECORDS, PAGE 23, RECORDS OF SANTA CLARA COUNTY,
CALIFORNIA;THENCE ALONG SAID DIVIDING LINE NORTH 300 1TEAST 364.59 FEET TO THE
SAID SOUTHWESTERLY LINE OF THE RANCHO DE LOS CAPITANCILLOS;THENCE ALONG LAST
SAID LINE, SAID LINE BEING THE LINE DIVIDING SAID LANDS OF HORRIGAN FROM THE LANDS
OF MARY LORD SEXTON,THE FOLLOWING COURSES AND DISTANCES: TO WIT: SOUTH 74015'
EAST 175.00 FEET, NORTH 700 30' EAST 125.40 FEET, SOUTH 620 59' EAST 303.41 FEET, SOUTH
370 OO' EAST 330.00 FEET AND SOUTH 160 OO' EAST 56.00 FEET TO THE POINT OF BEGINNING.
PARCEL ONE A:
AN EASEMENT FOR INGRESS AND EGRESS PURPOSES OVER THAT PORTION OF LAND
DESCRIBED IN THE JUDGEMENT, CASE NO. 248765 SUPERIOR COURT, COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA AND FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF
THE COUNTY OF SANTA CLARA ON JUNE 21, 1976 IN BOOK C 95 AT PAGE 8 OF OFFICIAL
RECORDS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Page 1 Exhibit A
SAID RIGHT-OF-WAY IS 40 r ACT IN WIDTH, 20 FEET ON EACH SIDE Cyr THE CENTER LINE AND
WHICH CENTER LINE IS DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 644.43 FT. N 190 25'20" E OF THE SOUTHEAST CORNER OF THE LAND
OF NORTH AS SHOWN ON RECORD OF SURVEY MAP FILED IN MAP BOOK 268, PAGE 55
RECORDED JUNE 5, 1970, IN THE OFFICIAL RECORDS OF THE COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, WHICH SAID POINT IS ON THE AGREED UPON COMMON BOUNDARY
LINE BETWEEN THE LAND OF JOHN R. NORTH AND MARTHA NORTH AND THE LANDS OF
HERMAN R. ANDERSON AND BEULAH B.ANDERSON, NEIL F. PARKS, AND FRANK M. MACHADO
AND MARIAN L. MACHADO AS DESCRIBED IN THAT CERTAIN BOUNDARY LINE AGREEMENT
BETWEEN THE PARTIES HERETO DATED AUGUST 15, 1973 AND RECORDED FEBRUARY 5, 1974
AS BOOK 0751, PAGE 743 OF THE OFFICIAL RECORDS OF THE COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA,AND THENCE OVER THE LANDS OF THE PARTIES HERETO ALONG THE
FOLLOWING COURSES AND DISTANCES:
N. 820 18' 19"W 7.54 FT.
N. 250 10'33"W. 37.31 FT.,
N. 540 24' 12" E 59.24 FT. TO A POINT ON THE COMMON BOUNDARY LINE WHICH IS 718.01 FT.
N. 190 25'20" FROM THE POINT OF BEGINNING THENCE;
N. 540 24' 12" E 29.48 FT.,
N. 860 20'37" E 117.80 FT.,
S 580 19'51" E 109.32 FT.,
N 070 46' 16"W 174.97 FT.,
N.400 22'30"W 71.16 FT.,
N. 690 10'39"W 89.42 FT.,TO A POINT ON THE COMMON BOUNDARY LINE WHICH IS 958.76 FT.,
N. 190 25'20"FROM THE POINT OF BEGINNING THENCE;
N 690 10'39"W 37.56 FT.,
N. 560 12'41" E 63.14 FT. TO A POINT ON THE COMMON BOUNDARY LINE WHICH IS 1010.25 FT.
N. 190 25'20" FROM THE POINT OF BEGINNING THENCE;
N. 560 12'41" E 3.95 FT.,
N. 730 48'43" E 71.31 FT.,
N.480 47' 30" E 156.64 FT.,
N 000 42'40" E 112.01 FT.,
N. 520 27' 30" E 181.09 FT.,
N. 020 21'W 88.44 FT.,
N. 300 05'W 125.00 FT. MORE OR LESS TO THE CENTERLINE OF HICKS ROAD AS BUILT.
THE SIDE LINES PARALLELING THE ABOVE DESCRIBED CENTERLINE SHALL BE EXTENDED OR
SHORTENED AS REQUIRED AT THE POINT OF BEGINNING OF THE ABOVE DESCRIBED
CENTERLINE AND AT EACH CHANGE IN COURSE OF THE SAID CENTERLINE OF ORDER THAT
EACH SIDE LINE SHALL INTERSECT ADJACENT PROPERTY BOUNDARIES AND SHALL FORM A
CONTINUOUS, UNBROKEN LINE.
EXCEPTING THEREFROM ALL THAT PORTION OF LAND LYING WITHIN THE BOUNDS OF PARCEL
ONE HEREIN ABOVE DESCRIBED.
ASSESSOR'S PARCEL NO.: 575-11-004
PARCEL TWO:
BEGINNING AT THE NORTHEAST CORNER OF THAT 209 ACRE TRACT OF LAND DESCRIBED IN
THE DEED TO D.H. HAHN DATED AND RECORDED AUGUST 23, 1867 BOOK"W"OF DEEDS, PAGE
404 SANTA CLARA COUNTY RECORDS; THENCE N.201 E. 127.38 FEET TO THE MOST
NORTHERLY CORNER OF THAT 31.78 ACRE TRACT OF LAND DESCRIBED SECONDLY IN THE
Page 2 - Exhibit A
I
DEED TO D.H HAHN, RECOK,ED MARCH 16, 1868 BOOK"W"OF DEED,.,, PAGE 635;THENCE
SOUTH ALONG THE EASTERLY LINE OF SAID 31.78 ACRE TRACT 2759.46 FEET TO THE
SOUTHEAST CORNER THEREOF;THENCE WEST ALONG THE SOUTHERLY LINE OF SAID 31.78
ACRE TRACT 1003.86 FEET TO THE SOUTHWEST CORNER THEREOF AT THE SOUTHEAST
CORNER OF SAID 209 ACRE TRACT, SAID POINT ALSO BEING THE NORTHEASTERLY CORNER
OF THAT 158.94 ACRE TRACT DESCRIBED FIRSTLY IN THE DEED TO D.H. HAHN, RECORDED
MARCH 16, 1868 IN BOOK W OF DEEDS, PAGE 635; THENCE NORTH 2639.76 FEET TO THE
NORTHERLY LINE OF SAID 209 ACRE TRACT,AND THENCE EAST ALONG SAID LINE 960.29 FEET
TO THE POINT OF BEGINNING AND BEING A PORTION OF PUEBLO TRACT NO. 3 SAN JOSE CITY
LANDS.
WE NOTE, BUT WILL NOT INSURE THE FOLLOWING:
PARCEL TWO A:
AN EXISTING ROADWAY IN USE ON AUGUST 16, 1967.
PARCEL TWO B:
ANY RIGHTS CREATED IN DOCUMENT EXECUTED BY JACOB ANDREW CRAMER, RECORDED
APRIL 18, 1966 IN BOOK 7349 OFFICIAL RECORDS, PAGE 450.
ASSESSOR'S PARCEL NO.: 575-12-001
PARCEL THREE:
ALL OF PARCEL B AS SHOWN UPON THAT CERTAIN LOT LINE ADJUSTMENT PARCEL MAP
RECORDED MAY 10, 1982 IN BOOK 500 OF MAPS, PAGES 9 AND 10.
ASSESSOR'S PARCEL NO.: 575-12-013
i
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Page 3 - Exhibit A
EXHIBIT E
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
GUADALUPE LAND CO.
The undersigned hereby certify that:
I They are the (a) President and Chairman of the Board and(b) Secretary, respectively,
of Guadalupe Land Co., a California corporation.
2. The Articles of Incorporation of this Corporation are amended and restated in full to
read as follows:
I
The name of this corporation is "Guadalupe Land Co."
II
The purpose of this corporation is to acquire, own, operate, manage, control, and lease,
license, convey, and dispose of real and personal property, or an interest in real property, for open
space, conservation, and recreation purposes and to do all things necessary and convenient for such
purposes, and 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.
III
The name and address in the state of California of this corporation's initial agent for service
of process is:
Sally Thielfoldt
330 Distel Circle
Los Altos, CA 94022-1404
IV
This corporation is authorized to issue only one class of shares of stock, which class shall be
common stock. The total number of shares of common stock which this corporation is authorized to
issue is five thousand(5,000),par value $100.00 per share.
V
(a) Limitation of Director's Liability. The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent permissible under California law.
(b) Indemnification of Corporate Agents. The corporation is authorized to indemnify the
directors and officers to the fullest extent permissible under California law.
(c) Repeal or Modification. Any amendment, repeal or modification of the foregoing
provision of this Article V shall not adversely affect any right of indemnification or limitation of
liability of an agent of this corporation relating to acts or omissions occurring prior to such
amendment, repeal or modification.
3. The foregoing amendment of the Articles of Incorporation has been duly approved by
the Board of Directors.
4. The foregoing amendment of the Articles of Incorporation has been duly approved by
the required vote of shareholders in accordance with Section 902 of the California General
Corporation Law. The total number of outstanding shares of the corporation is 3,100. The number
of shares voting in favor of the amendment equaled or exceeded the required vote. The percentage
vote required was more than 50%.
We 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 our own knowledge.
Date:
L. Craig Britton, President and
Chairman of the Board
Sally Thielfoldt, Secretary
-2-
EXHIBIT F
i
i
i
AMENDED AND RESTATED
BYLAWS OF
�i
GUADALUPE LAND CO.
i
I
AMENDED AND RESTATED
BYLAWS OF
GUADALUPE LAND CO.
TABLE OF CONTENTS
Page
ARTICLE1 CORPORATE OFFICES................................................................................................. 1
1.1 PRINCIPAL OFFICE................................................................................................... 1
1.2 OTHER OFFICES .............. 1
ARTICLE 2 MEETINGS OF SHAREHOLDERS............................................................................... 1
2.1 PLACE OF MEETINGS............................................................................................... 1
2.2 ANNUAL MEETING................................................................................................... 1
2.3 SPECIAL MEETING....................................................................................................2
2.4 NOTICE OF SHAREHOLDERS' MEETINGS...........................................................2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE....................................3
2.6 QUORUM.....................................................................................................................3
2.7 ADJOURNED MEETING; NOTICE...........................................................................3
2.8 VOTING.......................................................................................................................4
2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT.......................4
2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING..................................................................................................................... 5
2.11 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING; GIVING
CONSENTS..................................................................................................................6
2.12 INSPECTORS OF ELECTION....................................................................................6
ARTICLE3 DIRECTORS....................................................................................................................7
3.1 POWERS ...................................................................................................................... 7
3.2 NUMBER OF DIRECTORS........................................................................................ 7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS ........................................... 8
3.4 RESIGNATION, REMOVAL AND VACANCIES..................................................... 8
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.......................................... 8
3.6 REGULAR MEETINGS...............................................................................................9
3.7 SPECIAL MEETINGS;NOTICE.................................................................................9
3.8 QUORUM.....................................................................................................................9
3.9 WAIVER OF NOTICE............................................................................................... 10
3.10 ADJOURNMENT....................................................................................................... 10
3.11 NOTICE OF ADJOURNMENT................................................................................. 10
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING............... 10
3.13 FEES AND COMPENSATION OF DIRECTORS.................................................... 10
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TABLE OF CONTENTS
(continued)
Page
ARTICLE4 COMMITTEES.............................................................................................................. I I
4.1 COMMITTEES OF DIRECTORS ............................................................................. 11
4.2 MEETINGS AND ACTION OF COMMITTEES...................................................... 11
ARTICLE5 OFFICERS..................................................................................................................... 12
5.1 OFFICERS.................................................................................................................. 12
5.2 ELECTION OF OFFICERS........................................................................................ 12
5.3 SUBORDINATE OFFICERS..................................................................................... 12
5.4 REMOVAL AND RESIGNATION OF OFFICERS.................................................. 12
5.5 VACANCIES IN OFFICES........................................................................................ 12
5.6 CHAIRMAN OF THE BOARD................................................................................. 13
5.7 PRESIDENT............................................................................................................... 13
5.8 VICE PRESIDENTS................................................................................................... 13
5.9 SECRETARY............................................................................................................. 13
5.10 CHIEF FINANCIAL OFFICER.................................................................................. 14
ARTICLE 6 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
OTHERAGENTS .................................................................................................................. 14
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS....................................... 14
6.2 INDEMNIFICATION OF OTHERS .......................................................................... 15
6.3 PAYMENT OF EXPENSES IN ADVANCE............................................................. 15
6.4 INDEMNITY NOT EXCLUSIVE.............................................................................. 15
6.5 INSURANCE INDEMNIFICATION......................................................................... 15
6.6 CONFLICTS............................................................................................................... 16
ARTICLE 7 RECORDS AND REPORTS......................................................................................... 16
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER............................. 16
7.2 MAINTENANCE AND INSPECTION OF BYLAWS.............................................. 17
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE
RECORDS.................................................................................................................. 17
7.4 INSPECTION BY DIRECTORS................................................................................ 17
7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER........................................... 17
7.6 FINANCIAL STATEMENTS.................................................................................... 18
7.7 REPRESENTATION OF SHARES OF OTHER CORPORATIONS ....................... 18
ARTICLE 8 GENERAL MATTERS.................................................................................................. 19
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING....... 19
8.2 FISCAL YEAR........................................................................................................... 19
8.3 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS ...................................... 19
8.4 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED............ 19
8.5 CERTIFICATES FOR SHARES................................................................................20
8.6 LOST CERTIFICATES..............................................................................................20
8.7 CONSTRUCTION; DEFINITIONS...........................................................................20
RAPROJECTSTOST(Ncwhagcn Mcadows)Torporation Documents\Amended&Rcstated Bylaws.Final.DOC
TABLE OF CONTENTS
(continued)
Page
ARTICLE9 AMENDMENTS............................................................................................................20
9.1 AMENDMENT BY SHAREHOLDERS....................................................................20
RAPROJECTSTOST(Newhagen Meadows)\Corpomtion Documcnts\Amended&Restated Bylaws.Final.DOC
AMENDED AND RESTATED BYLAWS
OF
GUADALUPE LAND CO.
ARTICLE I
CORPORATE OFFICES
1.1 PRINCIPAL OFFICE
The board of directors shall fix the location of the principal executive office of the
corporation at any place within the State of California.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate offices at any place or
places where the corporation is qualified to do business.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
2.1 PLACE OF MEETINGS
Meetings of shareholders shall be held at any place within 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. Notwithstanding anything herein to the
contrary, meetings of shareholders shall be conducted in accordance with all laws applicable to
Midpeninsula Regional Open Space District as a government agency, including but not limited to
any applicable provisions of the Ralph M. Brown Act, Government Code Section 54950 et seq., so
long as Midpeninsula Regional Open Space District is a shareholder of the corporation. In the event
of any conflict between the requirements of these bylaws and the Ralph M. Brown Act or any other
such law applicable to Midpeninsula Regional Open Space District as a government agency, the
provisions of such laws shall control.
2.2 ANNUAL MEETING
The annual meeting of shareholders shall be held each year on a date and at a time designated
by the board of directors. At the meeting,directors shall be elected, and any other proper business
may be transacted.
RAPROJECTSTOST(Ncwhagen Mcadows)\Corporation Documents\Amcnded&Restated Bylaws.Fina].DOC
2.3 SPECIAL MEETING
A special meeting of the shareholders may be called at any time by the board of directors, or
by the chairman of the board, or by the president, or by one or more shareholders holding shares in
the aggregate entitled to cast not less than ten percent(10%) of the votes at that meeting.
If a special meeting is called by any person or persons other than the board of directors or the
president or the chairman of the board, then the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile transmission to the
chairman of the board, the president, any vice president or the secretary of the corporation. The
officer receiving the request shall cause notice to be promptly given to the shareholders entitled to
vote, in accordance with the provisions of Sections 2.4 and 2.5 of these bylaws, that a meeting will
be held at the time requested by the person or persons calling the meeting, so long as that time is not
less than thirty-five (35)nor more than sixty(60) days after the receipt of the request. If the notice is
not given within twenty(20) days after receipt of the request, then the person or persons requesting
the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be
construed as limiting, fixing or affecting the time when a meeting of shareholders called by action of
the board of directors may be held.
2.4 NOTICE OF SHAREHOLDERS' MEETINGS
All notices of meetings of shareholders shall be sent or otherwise given in accordance with
Section 2.5 of these bylaws not less than ten(10) (or, if sent by third-class mail pursuant to
Section 2.5 of these bylaws, thirty(30))nor more than sixty(60) days before the date of the meeting.
The notice shall specify the place, date, and hour of the meeting and(i) in the case of a special
meeting, the general nature of the business to be transacted(no business other than that specified in
the notice may be transacted) or(ii) in the case of the annual meeting, those matters which the board
of directors, at the time of giving the notice, intends to present for action by the shareholders (but
subject to the provisions of the next paragraph of this Section 2.4 any proper matter may be
presented at the meeting for such action). The notice of any meeting at which directors are to be
elected shall include the name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
If action is proposed to be taken at any meeting for approval of(i) an amendment of the
articles of incorporation, pursuant to Section 902 of the Code, (ii) a reorganization of the
corporation, pursuant to Section 1201 of the Code, (iii) a voluntary dissolution of the corporation,
pursuant to Section 1900 of the Code, or(iv) a distribution in dissolution other than in accordance
with the rights of outstanding preferred shares, pursuant to Section 2007 of the Code,then the notice
shall also state the general nature of that proposal.
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2.5 MANNER OF GIVING NOTICE•, AFFIDAVIT OF NOTICE
Written notice of any meeting of shareholders shall be given either(i)personally or(ii)by
first-class mail or(iii)by third-class mail but only if the corporation has outstanding shares held of
record by five hundred (500) or more persons (determined as provided in Section 605 of the Code)
on the record date for the shareholders' meeting, or(iv)by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid and shall be
addressed to the shareholder at the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of notice. If no such
address appears on the corporation's books or is given, notice shall be deemed to have been given if
sent to that shareholder by mail or telegraphic or other written communication to the corporation's
principal executive office, or if published at least once in a newspaper of general circulation in the
county where that office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other means of written
communication.
If any notice addressed to a shareholder at the address of that shareholder appearing on the
books of the corporation is returned to the corporation by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice to the shareholder at that
address,then all future notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available to the shareholder on written demand of the shareholder at the
principal executive office of the corporation for a period of one(1)year from the date of the giving
of the notice.
An affidavit of the mailing or other means of giving any notice of any shareholders' meeting,
executed by the secretary, assistant secretary or any transfer agent of the corporation giving the
notice, shall be prima facie evidence of the giving of such notice.
2.6 QUORUM
The presence in person of the holders of a majority of the shares entitled to vote thereat
constitutes a quorum for the transaction of business at all meetings of shareholders. The
shareholders present at a duly called or held meeting at which a quorum is present may continue to
do business until adjournment,notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
2.7 ADJOURNED MEETING; NOTICE
Any shareholders' meeting, annual or special, whether or not a quorum is present,may be
adjourned from time to time by the vote of the majority of the shares represented at that meeting. In
the absence of a quorum, no other business may be transacted at that meeting except as provided in
Section 2.6 of these bylaws.
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i
Except as otherwise required by these Bylaws (including Section 2.1 hereof), when any
meeting of shareholders, either annual or special, is adjourned to another time or place,notice need
not be given of the adjourned meeting if the time and place are announced at the meeting at which
the adjournment is taken; However, if a new record date for the adjourned meeting is fixed or if the
adjournment is for more than forty-five (45) days from the date set for the original meeting, then
notice of the adjourned meeting shall be given. Notice of any such adjourned meeting shall be given
n r with h f record entitled to vote at the adjourned meeting i accordance th the
to each shareholder0
J g
provisions of Sections 2.4 and 2.5 of these bylaws. At any adjourned meeting the corporation may
transact an business that might have been transacted at the original meeting.
Y g
2.8 VOTING
The shareholders entitled to vote at any meeting of shareholders shall be determined in
accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of l
Sections 702 through 704 of the Code (relating to voting shares held by a fiduciary, in the name of a
corporation or in joint ownership).
The shareholders' vote may be by voice vote or by ballot; provided, however,that any
election for directors must be by ballot if demanded by any shareholder at the meeting and before the j
voting has begun.
Except as provided in the last paragraph of this Section 2.8, or as may be 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 the shareholders. Any shareholder entitled to vote on any
matter may vote part of the shares in favor of the proposal and refrain from voting the remaining
shares or, except when the matter is the election of directors, may vote them against the proposal;
but, if the shareholder fails to specify the number of shares which the shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving vote is with respect
to all shares which the shareholder is entitled to vote.
If a quorum is present, the affirmative vote of the majority of the shares represented and
voting at a duly held meeting(which shares voting affirmatively also constitute at least a majority of
the required quorum) shall be the act of the shareholders,unless the vote of a greater number or a
vote by classes is required by the Code or by the articles of incorporation.
2.9 VALIDATION OF MEETINGS; WAIVER OF NOTICE,• CONSENT
The transactions of any meeting of shareholders, either annual or special, however called and
noticed, and wherever held, shall be as valid as though they had been taken at a meeting duly held
after regular call and notice, if a quorum be present, and if, either before or after the meeting, each
person entitled to vote, who was not present in person, 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
or approval need not specify either the business to be transacted or the purpose of any annual or
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i
special meeting of shareholders, except that if action is taken or proposed to be taken for approval of
any of those matters specified in the second paragraph of Section 2.4 of these bylaws, the waiver of
notice or consent or approval shall state the general nature of the proposal. All such waivers,
consents, and approvals shall be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of notice of and presence
at that meeting, except when the person objects at the beginning of the meeting to the transaction of
any business because the meeting is not lawfully called or convened. Attendance at a meeting is not
a waiver of any right to object to the consideration of matters required by the Code to be included in
the notice of the meeting but not so included, if that objection is expressly made at the meeting.
2.10 SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action which may be taken at any annual or special meeting of shareholders may be
taken without a meeting and without prior notice, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting at which all shares entitled
to vote on that action were present and voted.
In the case of election of directors, such consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of directors. However, a director
may be elected at any time to fill any vacancy on the board of directors,provided that it was not
created by removal of a director and that it has not been filled by the directors,by the written consent
of the holders of a majority of the outstanding shares entitled to vote for the election of directors.
All such consents shall be maintained in the corporate records. Any shareholder giving a
written consent, or a transferee of the shares, or a personal representative of the shareholder may
revoke the consent by a writing received by the secretary of the corporation before written consents
of the number of shares required to authorize the proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote have not been solicited in writing and if the
unanimous written consent of all such shareholders has not been received, then the secretary shall
give prompt notice of the corporate action approved by the shareholders without a meeting. Such
notice shall be given to those shareholders entitled to vote who have not consented in writing and
shall be given in the manner specified in Section 2.5 of these bylaws. In the case of approval of(i)
indemnification of a corporate"agent,"pursuant to Section 317 of the Code, (ii) a reorganization of
the corporation,pursuant to Section 1201 of the Code, and(iii) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of the
Code, the notice shall be given at least ten(10)days before the consummation of any action
authorized by that approval.
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2.11 RECORD DATE FOR SHAREHOLDER NOTICE; VOTING; GIVING CONSENTS
For purposes of determining the shareholders entitled to notice of any meeting or to vote
thereat or entitled to give consent to corporate action without a meeting, the board of directors may
fix, in advance, a record date, which shall not be more than sixty(60) days nor less than ten(10)days
before the date of any such meeting nor more than sixty(60)days before any such action without a
meeting, and in such event only shareholders of record on the date so fixed are entitled to notice and
to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date, except as otherwise provided in the Code.
If the board of directors does not so fix a record date:
(a) the record date for determining shareholders entitled to notice of or to vote at a
meeting of shareholders shall be at the close of business on the business day next preceding the day
on which notice is given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, (i)when no prior action by the board has been taken,
shall be the day on which the first written consent is given, or(ii) when prior action by the board has
been taken, shall be at the close of business on the day on which the board adopts the resolution
relating to that action, or the sixtieth(60th)day before the date of such other action,whichever is
later.
The record date for any other purpose shall be as provided in Article 8 of these bylaws.
2.12 INSPECTORS OF ELECTION
Before any meeting of shareholders,the board of directors may appoint an inspector or
inspectors of election to act at the meeting or its adjournment. If no inspector of election is so
appointed, then the chairman of the meeting may, and on the request of any shareholder shall,
appoint an inspector or inspectors of election to act at the meeting.- The number of inspectors shall
be either one (1) or three (3). If inspectors are appointed at a meeting pursuant to the request of one
(1) or more shareholders, then the holders of a majority of shares present at the meeting shall
determine whether one(1) or three(3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, then the chairman of the meeting may, and upon the
request of any shareholder, appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting,the existence of a quorum, and the authenticity,
validity;
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(b) receive votes,ballots or consents;
(c) hear and determine all challenges and questions in any way arising in
connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or vote with
fairness to all shareholders.
ARTICLE 3
DIRECTORS
3.1 POWERS
Subject to the provisions of the Code and any limitations in the articles of incorporation and
these bylaws relating to action required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The number of directors of the corporation shall be not less than one (1) nor more than three
(3). The exact number of directors shall be three (3)until changed, within the limits specified above,
by a bylaw amending this Section 3.2, duly adopted by the shareholders. The indefinite number of
directors may be changed, or a definite number may be fixed without provision for an indefinite
number, by a duly adopted amendment to the articles of incorporation or by an amendment to this
bylaw duly adopted by the vote or written consent of holders of a majority of the outstanding shares
entitled to vote; provided, however, that an amendment reducing the fixed number or the minimum
number of directors to a number less than three(3) cannot be adopted if the votes cast against its
adoption at a meeting, or the shares not consenting in the case of an action by written consent, are
equal to more than sixteen and two-thirds percent(16-2/3%) of the outstanding shares entitled to
vote thereon.
No reduction of the authorized number of directors shall have the effect of removing any
director before that director's term of office expires.
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3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Directors shall be elected at each annual meeting of shareholders to hold office until the next
annual meeting. Each director, including a director elected to fill a vacancy, shall hold office until
the expiration of the term for which elected and until a successor has been elected and qualified.
3.4 RESIGNATION, REMOVAL AND VACANCIES
Any director may resign effective on giving written notice to the chairman of the board,the
president, the secretary or the board of directors, unless the notice specifies a later time for that
resignation to become effective. If the resignation of a director is effective at a future time, the board
of directors may elect a successor to take office when the resignation becomes effective.
Any director may be removed by the remaining members of the board if such director has
been declared of unsound mind by an order of court or convicted of a felony. Furthermore, subject
to applicable law, any director may be removed without cause if the removal is approved by the
outstanding shares of the corporation.
Vacancies in the board of directors may be filled by a majority of the remaining directors,
even if less than a quorum, or by a sole remaining director; however, a vacancy created by the
removal of a director by the vote or written consent of the shareholders or by court order may be
filled only by the affirmative vote of a majority of the shares represented and voting at a duly held
meeting at which a quorum is present(which shares voting affirmatively also constitute a majority of
the required quorum), or by the unanimous written consent of all shares entitled to vote thereon.
Each director so elected shall hold office until the next annual meeting of the shareholders and until
a successor has been elected and qualified, unless such director is otherwise removed or resigns.
A vacancy or vacancies in the board of directors shall be deemed to exist(i) in the event of
the death, resignation or removal of any director, (ii) if the board of directors by resolution declares
vacant the office of a director who has been declared of unsound mind by an order of court or
convicted of a felony, (iii) if the authorized number of directors is increased, or(iv) if the
shareholders fail, at any meeting of shareholders at which any director or directors are elected, to
elect the number of directors to be elected at that meeting.
The shareholders may elect a director or directors at any time to fill any vacancy or vacancies
not filled by the directors, but any such election other than to fill a vacancy created by removal, if by
written consent, shall require the consent of the holders of a majority of the outstanding shares
entitled to vote thereon.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place within the State of
California that has been designated from time to time by resolution of the board. In the absence of
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such a designation, regular meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within the State of California that has been
designated in the notice of the meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the corporation.
3.6 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice if the times of such
meetings are fixed by the board of directors.
3.7 SPECIAL MEETINGS:NOTICE
Special meetings of the board of directors for any purpose or purposes may be called at any
time by the chairman of the board, the president, any vice president,the secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered personally or by telephone
to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at
that director's address as it is shown on the records of the corporation. If the notice is mailed, it shall
be deposited in the United States mail at least four(4) days before the time of the holding of the
meeting. If the notice is delivered personally or by telephone or telegram, it shall be delivered
personally or by telephone or to the telegraph company at least forty-eight(48) hours before the time
of the holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director who the person giving
the notice has reason to believe will promptly communicate it to the director. The notice need not
specify the purpose or the place of the meeting, if the meeting is to be held at the principal executive
office of the corporation.
3.8 QUORUM
A majority of the authorized number of directors shall constitute a quorum for the transaction
of business, except to adjourn as provided in Section 3.10 of these bylaws. Every actor decision
done or made by a majority of the directors present at a duly held meeting at which a quorum is
present shall be regarded as the act of the board of directors, subject to the provisions of Section 311
of the Code(as to appointment of committees), Section 317(e) of the Code (as to indemnification of
directors),the articles of incorporation, and other applicable law.
A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of
the required quorum for that meeting.
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3.9 WAIVER OF NOTICE
Notice of a meeting need not be given to any director(i)who signs a waiver of notice or a
consent to holding the meeting or an approval of the minutes thereof, whether before or after the
meeting, or(ii)who attends the meeting without protesting,prior thereto or at its commencement,
the lack of notice to such directors. All such waivers, consents, and approvals shall be filed with the
corporate records or made part of the minutes of the meeting. A waiver of notice need not specify
the purpose of any regular or special meeting of the board of directors.
3.10 ADJOURNMENT
A majority of the directors present, whether or not constituting a quorum, may adjourn any
meeting to another time and place.
3.11 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting need not be given unless the
meeting is adjourned for more than twenty-four(24)hours. If the meeting is adjourned for more
than twenty-four(24)hours, then notice of the time and place of the adjourned meeting shall be
given before the adjourned meeting takes place, in the manner specified in Section 3.7 of these
bylaws,to the directors who were not present at the time of the adjournment.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of directors may be'taken without a
meeting,provided that all members of the board individually or collectively consent in writing to that
action. Such action by written consent shall have the same force and effect as a unanimous vote of
the board of directors. Such written consent and any counterparts thereof shall be filed with the
minutes of the proceedings of the board.
3.13 FEES AND COMPENSATION OF DIRECTORS
Directors, officers, and members of committees shall not receive any compensation or
consideration of any kind for their services except for reimbursement of actual and necessary
expenses as may be fixed or determined by resolution of the board of directors. Directors and
officers shall not by financially interested in the corporation nor in any contract made by the
corporation or made by them or by any body of any board of which they are directors.
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ARTICLE 4
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
I
The board of directors may, by resolution adopted by a majority of the authorized number of
directors, designate one(1)or more committees, each consisting of two or more directors,to serve at
the pleasure of the board. The board may designate one(1)or more directors as alternate members
of any committee who may replace an absen
t member at an meeting of the committee. The
Y p Y Y g
appointment of members or alternate members of a committee requires the vote of a majority of the
authorized number of directors. Any committee,to the extent provided in the resolution of the
board, shall have all the authority of the board, except with respect to:
(a) the approval of any action which, under the Code, also requires shareholders'
approval or approval of the outstanding shares;
(b) the filling of vacancies on the board of directors or in any committee;
(c) the amendment or repeal of these bylaws or the adoption of new bylaws;
(d) the amendment or repeal of any resolution of the board of directors which by
its express terms is not so amendable or repealable;
(e) a distribution to the shareholders of the corporation, except at a rate or in a
periodic amount or within a price range determined by the board of directors; or
(f) the appointment of any other committees of the board of directors or the
members of such committees.
4.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of Article 3 of these bylaws, Section 3.5 (place of meetings), Section 3.6
(regular meetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum), Section 3.9
(waiver of notice), Section 3.10 (adjournment), Section 3.11 (notice of adjournment), and
Section 3.12 (action without meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors and its members;
provided, however, that the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee,that special meetings of
committees may also be called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall have the right to
attend all meetings of the committee. The board of directors may adopt rules for the government of
any committee not inconsistent with the provisions of these bylaws.
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I
ARTICLE 5
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president, a secretary, and a chief financial officer.
The corporation may also have, at the discretion of the board of directors, a chairman of the board,
one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and
such other officers as may be appointed in accordance with the provisions of Section 5.3 of these
bylaws. Any number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed in accordance with
the provisions of Section 5.3 or Section 5.5 of these bylaws, shall be chosen by the board.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the president to appoint, such other
officers as the business of the corporation may require, each of whom shall hold office for such
period, have such authority, and perform such duties as are provided in these bylaws or as the board
of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Any officer may be removed, either with or without cause,by the board of directors at any
regular or special meeting of the board or, except in case of an officer chosen by the board of
directors,by any officer upon whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving written notice to the corporation. Any
resignation shall take effect at the date of the receipt of that notice or at any later time specified in
that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal, disqualification or any other
cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office.
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5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if present,preside at meetings
of the board of directors and exercise and perform such other powers and duties as may from time to
time be assigned to him by the board of directors or as may be prescribed by these bylaws. If there is
no president, then the chairman of the board shall also be the chief executive officer of the
corporation and shall have the powers and duties prescribed in Section 5.7 of these bylaws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board of directors to the
chairman of the board, if there be such an officer, the president shall be the chief 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 the officers of the corporation. He or she shall preside at
all meetings of the shareholders and, in the absence or nonexistence of a chairman of the board, at all
meetings of the board of directors. He or she 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.
5.8 VICE PRESIDENTS
In the absence or disability of the president, the vice presidents, if any, in order of their rank
as fixed by the board of directors or, if not ranked, a vice president designated by the board of
directors or, in the event there is no vice president, the secretary, shall perform all the duties of the
president and when so acting shall have all the powers of, and be subject to all the restrictions upon,
the president. The vice presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them respectively by the board of directors, these bylaws,
the president or the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal executive office of the
corporation or such other place as the board of directors may direct, a book of minutes of all
meetings and actions of directors or, committees of directors and shareholders. The minutes shall
show the time and place of each meeting,whether regular or special (and, if special, how authorized
and the notice given),the names of those present at directors' meetings or committee meetings, the
number of shares present or represented at shareholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
corporation or at the office of the corporation's transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a duplicate share register, showing the names
of all shareholders and their addresses, the number and classes of shares held by each, the number
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and date of certificates evidencing such shares, and the number and date of cancellation of every
certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the shareholders and
of the board of directors required to be given by law or by these bylaws. He or she shall keep the
seal of the corporation, if one be adopted, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the board of directors or by these bylaws.
5.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable times be open to
inspection by any director.
The chief financial officer shall deposit all money 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 or
she 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
chief financial officer and of the financial condition of the corporation, and shall have such other
powers and perform such other duties as may be prescribed by the board of directors or these bylaws.
ARTICLE 6
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner permitted by the Code,
indemnify each of its directors and officers against expenses (as defined in Section 317(a) of the
Code),judgments, fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding(as defined in Section 317(a) of the Code), arising by reason of the
fact that such person is or was an agent of the corporation. For purposes of this Article 6, a
"director"or"officer"of the corporation includes any person(i)who is or was a director or officer of
the corporation, (ii)who is or was serving at the request of the corporation as a director or officer of
another corporation, partnership,joint venture, trust or other enterprise, or(iii)who was a director or
officer of a corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
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6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the manner permitted by the Code,
to indemnify, defend, and hold harmless each of its employees and agents (other than directors and
officers) against expenses(as defined in Section 317(a) of the Code),judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with any proceeding(as defined in
Section 317(a) of the Code), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Article 6, an"employee"or"agent" of the corporation(other than
j a director or officer) includes any person (i)who is or was an employee or agent of the corporation,
(ii)who is or was serving at the request of the corporation as an employee or agent of another
corporation, partnership,joint venture, trust or other enterprise, or(iii)who was an employee or
agent of a corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.3 PAYMENT OF EXPENSES IN ADVANCE
Expenses incurred in defending any civil or criminal action or proceeding for which
indemnification is required pursuant to Section 6.1 or for which indemnification is permitted
pursuant to Section 6.2 following authorization thereof by the board of directors shall be paid by the
corporation in advance of the final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be
determined that the indemnified party is not entitled to be indemnified as authorized in this Article 6.
6.4 INDEMNITY NOT EXCLUSIVE
The indemnification provided by this Article 6 shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise,both as to action in an official capacity and as to
action in another capacity while holding such office, to the extent that such additional rights to
indemnification are authorized in the Articles of Incorporation.
6.5 INSURANCE INDEMNIFICATION
The corporation shall have the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation against any liability
asserted against or incurred by such person in such capacity or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify him against such liability
under the provisions of this Article 6.
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6.6 CONFLICTS
No indemnification or advance shall be made under this Article 6, except where such
indemnification or advance is mandated by law or the order,judgment or decree of any court of
competent jurisdiction, in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles of Incorporation,
these bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of
the alleged cause of the action asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed by a court
in approving a settlement.
ARTICLE 7
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER
SPE C
The corporation shall keep either at its principal executive office or at the office of its transfer
agent or registrar(if either be appointed), as determined by resolution of the board of directors, a
record of its shareholders listing the names and addresses of all shareholders and the number and
class of shares held by each shareholder.
A shareholder or shareholders of the corporation who holds at least five percent(5%) in the
aggregate of the outstanding voting shares of the corporation or who holds at least one percent(1%)
of such voting shares and has filed a Schedule 14B with the Securities and Exchange Commission
relating to the election of directors, may(i) inspect and copy the records of shareholders' names,
addresses, and shareholdings during usual business hours on five(5) days' prior written demand on
the corporation, (ii) obtain from the transfer agent of the corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a list of the names and addresses of the
shareholders who are entitled to vote for the election of directors, and their shareholdings, as of the
most recent record date for which that list has been compiled or as of a date specified by the
shareholder after the date of demand. Such list shall be made available to any such shareholder by
the transfer agent on or before the later of five (5) days after the demand is received or five(5)days
after the date specified in the demand as the date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection on the written demand of any
shareholder or holder of a voting trust certificate, at any time during usual business hours, for a
purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust
certificate.
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Any inspection and copying under this Section 7.1 may be made in person or by an agent or
attorney of the shareholder or holder of a voting trust certificate making the demand.
7.2 MAINTENANCE AND INSPECTION OF BYLAWS
The corporation shall keep at its principal executive office the original or a copy of these
bylaws as amended to date, which bylaws shall be open to inspection by the shareholders at all
reasonable times during office hours.
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS
The accounting books and records and the minutes of proceedings of the shareholders, of the
board of directors, and of any committee or committees of the board of directors shall be kept at such
place or places as are designated by the board of directors or, in absence of such designation, at the
principal executive office of the corporation. The minutes shall be kept in written form, and the
accounting books and records shall be kept either in written form or in any other form capable of
being converted into written form.
The minutes and accounting books and records shall be open to inspection upon the written
demand of any shareholder or holder of a voting trust certificate, at any reasonable time during usual
business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the
holder of a voting trust certificate. The inspection may be made in person or by an agent or attorney
and shall include the right to copy and make extracts. Such rights of inspection shall extend to the
records of each subsidiary corporation of the corporation.
7.4 INSPECTION BY DIRECTORS
Every director shall have the absolute right at any reasonable time to inspect all books,
records, and documents of every kind as well as the physical properties of the corporation and each
of its subsidiary corporations. Such inspection by a director may be made in person or by an agent or
attorney. The right of inspection includes the right to copy and make extracts of documents.
7.5 ANNUAL REPORT TO SHAREHOLDERS; WAIVER
The board of directors shall cause an annual report to be sent to the shareholders not later
than one hundred twenty(120) days after the close of the fiscal year adopted by the corporation.
Such report shall be sent at least fifteen (15) days (or, if sent by third-class mail, thirty-five(35)
days)before the annual meeting of shareholders to be held during the next fiscal year and in the
manner specified in Section 2.5 of these bylaws for giving notice to shareholders of the corporation.
The annual report shall contain(i) a balance sheet as of the end of the fiscal year, (ii) an
income statement, (iii) a statement of changes in financial position for the fiscal year, and(iv) any
report of independent accountants or, if there is no such report, the certificate of an authorized officer
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of the corporation that the statements were prepared without audit from the books and records of the
corporation.
The foregoing requirement of an annual report shall be waived so long as the shares of the
corporation are held by fewer than one hundred(100)holders of record.
7.6 FINANCIAL STATEMENTS
If no annual report for the fiscal year has been sent to shareholders, then the corporation shall,
upon the written request of any shareholder made more than one hundred twenty(120) days after the
close of such fiscal year, deliver or mail to the person making the request, within thirty(30) days
thereafter, a copy of a balance sheet as of the end of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year.
If a shareholder or shareholders holding at least five.percent(5%) of the outstanding shares of
any class of stock of the corporation makes a written request to the corporation for an income
statement of the corporation for the three-month, six-month or nine-month period of the then current
fiscal year ended more than thirty(30)days before the date of the request, and for a balance sheet of
the corporation as of the end of that period,then the chief financial officer shall cause that statement
to be prepared, if not already prepared, and shall deliver personally or mail that statement or
statements to the person making the request within thirty(30) days after the receipt of the request. If
the corporation has not sent to the shareholders its annual report for the last fiscal year,the
statements referred to in the first paragraph of this Section 7.6 shall likewise be delivered or mailed
to the shareholder or shareholders within thirty(30) days after the request.
The quarterly income statements and balance sheets referred to in this section shall be
accompanied by the report, if any, of any independent accountants engaged by the corporation or by
the certificate of an authorized officer of the corporation that the financial statements were prepared
without audit from the books and records of the corporation.
7.7 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board,the president, any vice president, the chief financial officer, the
secretary or assistant secretary of this corporation, or any other person authorized by the board of
directors or the president or a 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 may be exercised either by
such person directly or by any other person authorized to do so by power of attorney duly executed
by such person having the authority.
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ARTICLE 8
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the shareholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the shareholders entitled to exercise any rights in
respect of any other lawful action (other than action by shareholders by written consent without a
meeting), the board of directors may fix, in advance, a record date, which shall not be more than
sixty(60) days before any such action. In that case, only shareholders of record at the close of
business on the date so fixed are entitled to receive the dividend, distribution or allotment of rights,
or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date so fixed, except as otherwise provided in the Code.
If the board of directors does not so fix a record date, then the record date for determining
shareholders for any such purpose shall be at the close of business on the day on which the board
adopts the applicable resolution or the sixtieth(60th) day before the date of that action,whichever is
later.
8.2 FISCAL YEAR
The fiscal year of the corporation shall commence on July I and end on June 30 of each year.
8.3 CHECKS• DRAFTS• EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of money,notes or other
evidences of indebtedness that are issued in the name of or payable to the corporation, and only the
persons so authorized shall sign or endorse those instruments.
8.4 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within the agency power of an
officer, no officer, agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for any purpose or for any
amount.
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8.5 CERTIFICATES FOR SHARES
A certificate or certificates for shares of the corporation shall be issued to each shareholder
when any of such shares are fully paid. The board of directors may authorize the issuance of
certificates for shares partly paid provided that these certificates shall state the total amount of the
consideration to be paid for them and the amount actually paid. All certificates shall be signed in the
name of the corporation by the chairman of the board or the vice chairman of the board or the
president or a vice president and by the chief financial officer or an assistant treasurer or the
secretary or an assistant secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on a certificate ceases to be that officer, transfer agent or registrar before that
certificate is issued, it may be issued by the corporation with the same effect as if that person were an
officer, transfer agent or registrar at the date of issue.
8.6 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the corporation and canceled
at the same time. The board of directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement certificates on such terms
and conditions as the board may require; the board may require indemnification of the corporation
secured by a bond or other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of the alleged loss,theft or
destruction of the certificate or the issuance of the replacement certificate.
8.7 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction, and
definitions in the Code shall govern the construction of these bylaws. Without limiting the
generality of this provision, the singular number includes the plural, the plural number includes the
singular, and the term "person"includes both a corporation and a natural person.
ARTICLE 9
AMENDMENTS
9.1 AMENDMENT BY SHAREHOLDERS
New bylaws may be adopted or these bylaws may be amended or repealed by the vote or
written consent of holders of a majority of the outstanding shares entitled to vote; provided,however,
that if the articles of incorporation of the corporation set forth the number of authorized directors of
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the corporation, then the authorized number of directors may be changed only by an amendment of
the articles of incorporation.
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CERTIFICATE OF ADOPTION OF
AMENDED AND RESTATED BYLAWS
OF
GUADALUPE LAND CO.
Certificate by Secretary of Bylaws
The undersigned hereby certifies that she is the duly elected, qualified and acting Secretary of
Guadalupe Land Co. and that the foregoing Bylaws, comprising twenty(20)pages, are the true and
correct Bylaws of the corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand and affixed the
corporate seal this day of , 2004.
Sally Thielfoldt
Secretary
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