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Exhibit 3 (ii)
By-laws, as amended
COMPOSITE COPY
BYLAWS
OF
WESTAMERICA BANCORPORATION
a California corporation
Last Amendment:
October 30, 2003
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TABLE OF CONTENTS
Page (s)
--------
ARTICLE I - OFFICES 1
Section 1.01. Principal Offices 1
Section 1.02. Other Offices 1
ARTICLE I - MEETINGS OF SHAREHOLDERS 1
Section 2.01. Place of Meetings 1
Section 2.02. Annual Meeting 1
Section 2.03. Special Meeting 2
Section 2.04. Notice of Shareholders' Meetings 2
Section 2.05. Manner of Giving Notice: Affidavit of Notice 2
Section 2.06. Quorum 2
Section 2.07. Adjourned Meeting: Notice 3
Section 2.08. Voting 3
Section 2.09. Waiver of Notice or Consent by Absent Shareholders 3
Section 2.10. Shareholder Action by Written Consent Without a
Meeting 4
Section 2.11. Record Date for Shareholder Notice, Voting and
Giving Consents 4
Section 2.12. Proxies 4
Section 2.13. Inspectors of Election 5
Section 2.14. Nominations for Director 5
ARTICLE III - DIRECTORS 5
Section 3.01. Powers 5
Section 3.02. Number and Qualification of Directors 6
Section 3.03. Election and Term of Office of Directors 6
Section 3.04. Vacancies 6
Section 3.05. Place of Meetings and Meetings by Telephone 7
Section 3.06. Annual Meeting 7
Section 3.07. Other Regular Meetings 7
Section 3.08. Special Meetings 7
Section 3.09. Quorum 7
Section 3.10. Waiver of Notice 7
Section 3.11. Adjournment 7
Section 3.12. Notice of Adjournment 7
Section 3.13. Action Without Meeting 8
Section 3.14. Fees and Compensation of Directors 8
Section 3.15. Committees of Directors 8
Section 3.16. Meetings and Action of Committees 8
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ARTICLE IV - OFFICERS 9
Section 4.01. Officers 9
Section 4.02. Election of Officers 9
Section 4.03. Subordinate Officers 9
Section 4.04. Removal and Resignation of Officers 9
Section 4.05. Vacancies in Offices 9
Section 4.06. Chairman of the Board 9
Section 4.07. President 9
Section 4.08. Vice Presidents 9
Section 4.09. Secretary 9
Section 4.10. Chief Financial Officer 10
ARTICLE V - MISCELLANEOUS 10
Section 5.01. Indemnification Provisions 10
Section 5.02. Maintenance and Inspection of Share Register 11
Section 5.03. Maintenance and Inspection of Bylaws 11
Section 5.04. Maintenance and Inspection of Other Corporate
Records 11
Section 5.05. Inspection of Books and Records by Directors 12
Section 5.06. Annual Report to Shareholders 12
Section 5.07. Financial Statements 12
Section 5.08. Record Date for Purposes Other than Notice and
Voting 12
Section 5.09. Checks, Drafts 13
Section 5.10. Corporate Contracts and Instruments; How Executed 13
Section 5.11. Certificates for Shares 13
Section 5.12. Lost Certificates 13
Section 5.13. Representation of Shares of Other Corporations 13
Section 5.14. Construction and Definitions 13
ARTICLE VI - AMENDMENTS 14
Section 6.01. Amendment by Shareholders 14
Section 6.02. Amendment by Directors 14
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BYLAWS OF WESTAMERICA BANCORPORATION
ARTICLE I
OFFICES
Section 1.01. Principal Offices. The principal executive office of the
corporation shall be located at 1108 Fifth Avenue, San Rafael, California, or
such other place within or outside the State of California as shall be fixed
by the board of directors. If the principal executive office is located
outside this state, and the corporation has one or more business offices in
this state, the board of directors shall fix and designate a principal
business office in the State of California.
Section 1.02. Other Offices. The board of directors may at any time
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.01. Place of Meetings. Meetings of shareholders shall be held
at any place within or outside the State of California designated by the board
of directors. In the absence of any such designation, shareholders' meetings
shall be held at the principal executive office of the corporation.
Section 2.02. Annual Meeting. The annual meeting of shareholders shall
be held each year on a date and at a time designated by the board of
directors. At each annual meeting directors shall be elected, and any other
proper business may be transacted which shall have been properly brought
before the meeting. To be properly brought before an annual meeting, business
must have been (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors, (b) otherwise
properly brought before the meeting by or at the direction of the board of
directors, or (c) otherwise properly brought before the meeting by a
shareholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the secretary of the
corporation. To be timely, a shareholder's notice must be received by the
secretary of the corporation at least 45 days before the anniversary of the
date on which the corporation first mailed its proxy materials for the prior
year's annual meeting of the shareholders; provided, however, that in the
event the date for the current year's annual meeting has changed more than 30
days from the date on which the prior year's annual meeting was held, then
notice must be received a reasonable time before the corporation mails its
proxy materials for the current year. A shareholder's notice to the secretary
of the corporation shall set forth as to each matter that the shareholder
proposes to bring before the annual meeting (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and residence
address of the shareholder proposing such business, (c) the number of shares
of capital stock of the corporation that are owned by the shareholder, and (d)
any material interest of the shareholder in such business.
Notwithstanding anything in the bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.02.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.02, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
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Section 2.03. 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 10% of the votes at that meeting.
If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be transacted,
and shall be delivered personally or sent by registered mail or by telegraphic
or other facsimile transmission to the chairman of the board, the president,
any vice president, or the secretary of the corporation. The officer receiving
the request shall cause notice to be promptly given to the shareholders
entitled to vote, in accordance with the provisions of Sections 2.04 and 2.05
hereof, that a meeting will be held at the time requested by the person or
persons calling the meeting, not less than thirty-five (35) nor more than
sixty (60) days after the receipt of the request. If the notice is not given
within twenty (20) days after receipt of the request, the person or persons
requesting the meeting may give the notice. Nothing contained in this
paragraph of this Section 2.03 shall be construed as limiting, fixing or
affecting the time when a meeting of shareholders called by action of the
board of directors may be held.
Section 2.04. Notice of Shareholders' Meetings. All notices of meetings
of shareholders shall be sent or otherwise given to shareholders entitled to
vote thereat in accordance with Section 2.05 not less than ten (10) (or if
sent by third-class mail, 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, and no other business 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. The notice of any meeting at which directors are to be
elected shall include the name of any nominee or nominees whom, at the time of
the notice, management intends to present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the articles of incorporation, pursuant to Section 902 of that
Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation, pursuant to
Section 1900 of that Code, or (v) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, pursuant to
Section 2007 of that Code, the notice shall also state the general nature of
that proposal.
Section 2.05. Manner of Giving Notice: Affidavit of Notice. Notice of
any meeting of shareholders shall be given to shareholders entitled to vote
thereat either personally or by first-class mail or, in the event this
corporation has outstanding shares held of record by 500 or more persons
(determined as provided in Section 605 of the California Corporations Code) on
the record date for the shareholders meeting, by third-class mail, or other
means of written communication, addressed to the shareholder at the address of
such shareholder appearing on the books of the corporation or given by the
shareholder to the corporation for the purpose of notice. If no such address
appears on the corporation's books or is given, notice shall be deemed to have
been given if sent to that shareholder by first-class mail or telegraphic or
other written communication to the corporation's principal executive office,
or if published at least once in a newspaper of general circulation in the
county where that office is located. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the
shareholder at that address, all future notices or reports shall be deemed to
have been duly given without further mailing if these shall be available to
the shareholder on written demand of the shareholder at the principal
executive office of the corporation for a period of one year from the date of
the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting may be executed by the secretary, assistant secretary,
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation.
Section 2.06. Quorum. The presence in person or by proxy of the holders
of one-third (1/3) of the shares entitled to vote at any meeting of the
shareholders shall constitute a quorum for the transaction of business. 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
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withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
Section 2.07. 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, either in person or by proxy, but in the absence of a quorum, no
other business may be transacted at that meeting, except as provided in
Section 2.06 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 a meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more than forty-five (45) days from the date set for
the original meeting, in which case the board of directors shall set a new
record date. Notice of any such adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting in accordance
with the provisions of Sections 2.04 and 2.05. At any adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting.
Section 2.08. Voting. The shareholders entitled to vote at any meeting
of shareholders shall be determined in accordance with the provisions of
Section 2.11 hereof, subject to the provisions of Sections 702 to 704,
inclusive, of the Corporations Code of California (relating to voting shares
held by a fiduciary, in the name of a corporation, or a 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
before the voting has begun. On any matter other than elections of directors,
any shareholder may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal,
but, if the shareholder fails to specify the number of shares which the
shareholder is voting affirmatively, it will be conclusively presumed that the
shareholder's approving vote is with respect to all shares that the
shareholder is entitled to vote. 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) shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by California General
Corporation Law or the articles.
At a shareholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any candidate
a number of votes greater than the number of votes which such shareholder
normally is entitled to cast) unless the candidates' names have been placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of the shareholder's intention to
cumulate votes. If any shareholder has given such a notice, then every
shareholder entitled to vote may cumulate votes for candidates in nomination
and give one candidate a number of votes equal to the number of directors to
be elected multiplied by the number of votes to which that shareholder's
shares are normally entitled, or distribute the shareholder's votes on the
same principle among any or all of the candidates, as the shareholder thinks
fit. The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
Section 2.09. Waiver of Notice or Consent by Absent Shareholders. The
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, who was not present in person or by proxy, signs a written
waiver of notice or a consent to a holding of the meeting, or an approval of
the minutes. The waiver of notice, consent or approval need not specify either
the business to be transacted or the purpose of any annual or special meeting
of shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of Section
2.04 hereof, the waiver of notice, consent or approval shall state the general
nature of the proposal. All such waivers, consents or approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened, and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by law
to be included in the notice of the meeting but not so included if that
objection is expressly made at the meeting.
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Section 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 a consent shall be effective only if signed by the
holders of all outstanding shares entitled to vote for the election of
directors; provided, however, that a director may be elected at any-time to
fill a vacancy on the board of directors that has not been filled by the
directors, by 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 filed with the secretary of the corporation and shall be
maintained in the corporate records. Any shareholder giving a written consent,
or the shareholder's proxy holders, or a transferee of the shares or a
personal representative of the shareholder or their respective proxy holders,
may revoke the consent by a writing received by the secretary of the
corporation before written consents of the number of shares required to
authorize the proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the secretary shall give prompt
notice of the corporate action approved by the shareholders without a meeting.
This notice shall be given in the manner specified in Section 2.05 hereof. In
the case of approval of (i) contracts or transactions in which a director has
a direct or indirect financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (iii) a reorganization of
the corporation, pursuant to Section 1201 of that Code, and (iv) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, pursuant to Section 2007 of that Code, the
notice shall be given at least ten (10) days before the consummation of any
action authorized by that approval.
Section 2.11. Record Date for Shareholder Notice, Voting and Giving
Consents. For purposes of determining the shareholders entitled to notice of
any meeting or to vote or entitled to give consent to corporate action without
a meeting, the board 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 this event only shareholders at the close of
business on the record date are entitled to notice and to vote or to give
consents, as the case may be, notwithstanding any transfer of any shares on
the books of the corporation after the record date, except as otherwise
provided in the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining the 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.
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the board has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the board has been
taken, shall be at the close of business on the day on which the board adopts
the resolution relating to that action, or the sixtieth (60th) day before the
date of such other action, whichever is later.
Section 2.12. Proxies. Every person entitled to vote for directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney-in-fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, before the vote pursuant to that proxy, by
a writing delivered to the corporation stating that the proxy is revoked, or
by a subsequent proxy executed by, or as to any meeting by attendance at such
meeting and voting in person by, the person executing the proxy; or (ii)
written notice of the death or incapacity of the maker of that proxy is
received by the corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the expiration of eleven
(11) months from the date of the proxy, unless otherwise provided in the
proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Sections 705(e) and 705(f)
of the Corporations Code of California.
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Section 2.13. Inspectors of Election. Before any meeting of
shareholders, the board of directors may appoint any persons other than
nominees for office to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the chairman of
the meeting may, and on the request of any shareholder or a shareholder's
proxy shall, appoint inspectors of election at the meeting. The number of
inspectors shall be either one (1) or three (3). If inspectors are appointed
at a meeting on the request of one or more shareholders or proxies, the
holders of a majority of shares or their proxies present at the meeting shall
determine whether one (1) or three (3) inspectors are to be appointed. If any
person appointed as inspector fails to appear or fails or refuses to act, the
chairman of the meeting may, and upon the request of any shareholder or a
shareholder's proxy shall, appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies;
(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.
Section 2.14. Nominations for Director. Nominations for election to the
board of directors may be made by the board of directors or by any shareholder
of any outstanding class of capital stock of the corporation entitled to vote
for the election of directors. Nominations, other than those made by or on
behalf of the board of directors of the corporation, shall be made in writing
and shall be received by the secretary of the corporation at least 45 days
before the anniversary of the date on which the corporation first mailed its
proxy materials for the prior year's annual meeting of shareholders; provided,
however, that in the event the date for the current year's annual meeting has
changed more than 30 days from the date on which the prior year's annual
meeting was held, then notice must be received a reasonable time before the
corporation mails its proxy materials for the current year. Any such written
nomination shall contain the following information to the extent known to the
nominating shareholder: (a) the name and address of each proposed nominee; (b)
the principal occupation of each proposed nominee; (c) the total number of
shares of capital stock of the corporation that the shareholder expects will
be voted for each proposed nominee; (d) the name and residence address of the
notifying shareholder; and (e) the number of shares of capital stock of the
corporation owned by the notifying shareholder. Nominations not made in
accordance herewith may be disregarded by the chairman of the applicable
meeting of shareholders called for the election of directors in his sole
discretion, and upon his instructions, the inspectors of election may
disregard all votes cast for each such nominee.
ARTICLE III
DIRECTORS
Section 3.01. Powers. Subject to the provisions of the California
General Corporation Law and any limitations in the articles of incorporation
and these bylaws relating to action required to be approved by the
shareholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
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corporation; prescribe any powers and duties for them that are consistent with
law, with the articles of incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service.
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or without the State of
California; and designate any place within or without the State of California
for the holding of any shareholders' meeting, or meetings, including annual
meetings.
(c) Adopt, make, and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates.
(d) Authorize the issuance of shares of stock of the corporation on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received.
(e) Borrow money and incur indebtedness on behalf of the corporation,
and cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecation, and other evidences of debt and securities.
Section 3.02. Number and Qualification of Directors. The number of
directors of the corporation shall be not less than eight (8) nor more than
fifteen (15). The exact number of directors shall be ten (10) until changed,
within the limits specified above, with the approval of the board of directors
or the shareholders. The indefinite number of directors may be changed, or a
definite number 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 five (5) cannot be adopted if the votes cast against its adoption at a
meeting of the shareholders, or the shares not consenting in the case of
action by written consent, are equal to more than 16-2/3% of the outstanding
shares entitled to vote. No amendment may change the stated maximum number of
authorized directors to a number greater than two times the stated minimum
number of directors minus one.
Section 3.03. Election and Term of Office of Directors. Directors shall
be elected at each annual meeting of the 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. No person shall be
eligible for election to the board of directors unless nominated in the manner
described by Section 2.14 of these bylaws.
Section 3.04. Vacancies. Vacancies in the board of directors may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, except that a vacancy created by the removal of
a director by the vote or written consent of the shareholders or by court
order may be filled only by the vote of a majority of the shares entitled to
vote represented at a duly held meeting at which a quorum is present, or by
the written consent of holders of a majority of the outstanding shares
entitled to vote. Each director so elected shall hold office until the next
annual meeting of the shareholders and until a successor has been elected and
qualified.
A vacancy or vacancies in the board of directors shall be deemed to
exist in the event of the death, resignation, or removal of any director, or
if the board of directors by resolution declares vacant the office of a
director who has been declared of unsound mind by an order of court or
convicted of a felony, or if the authorized number of directors is increased,
or if the shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors, but any such election by
written consent other than to fill a vacancy created by removal shall require
the consent of a majority of the outstanding shares entitled to vote.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary, or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
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time, the board of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
Section 3.05. Place of Meetings and Meetings by Telephone. Regular
meetings of the board of directors may be held at any place within or outside
the State of California that has been designated from time to time by
resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board shall be held at any place within or outside the
State of California that has been designated in the notice of the meeting or,
if not stated in the notice or there is no notice, at the principal executive
office of the corporation. Any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
Section 3.06. Annual Meeting. Immediately following each annual meeting
of shareholders, the board of directors shall hold a regular meeting for the
purpose of organization, any desired election of officers, and the transaction
of other business. Notice of this meeting shall not be required.
Section 3.07. Other Regular Meetings. Other regular meetings of the
board of directors shall be held without call at such time as shall from time
to time be fixed by the board of directors. Such regular meetings may be held
without notice.
Section 3.08. Special Meetings. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the
chairman of the board or the president or any vice president or the secretary
or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone 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. In case the notice
is mailed, it shall be deposited in the United States mail at least four (4)
days before the time of the holding of the meeting. In case the notice is
delivered personally, or by telephone 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 of the meeting nor the place if the meeting is to
be held at the principal executive office of the corporation.
Section 3.09. 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 3.11. Every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present
shall be regarded as the act of the board of directors, subject to the
provisions of Section 310 of the Corporations Code of California (as to
approval of contracts or transactions in which a director has a direct or
indirect material financial interest), Section 311 of that Code (as to
appointment of committees), and Section 317(e) of that Code (as to
indemnification of directors). A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for that meeting.
Section 3.10. Waiver of Notice. The transactions of any meeting of the
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes. The waiver of notice or consent
need not specify the purpose of the meeting. All such waivers, consents, and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Notice of a meeting shall also be deemed given to any
director who attends the meeting without protesting, before or at its
commencement, the lack of notice to that director.
Section 3.11. Adjournment. A majority of the directors present, whether
or not constituting a quorum, may adjourn any meeting to another time and
place.
Section 3.12. Notice of Adjournment. Notice of the time and place of
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holding an adjourned meeting need not be given, unless the meeting is
adjourned for more than twenty-four (24) hours, in which case notice of the
time and place shall be given before the time of the adjourned meeting, in the
manner specified in Section 3.08, to the directors who were not present at the
time of the adjournment.
Section 3.13. Action Without Meeting. Any action required or permitted
to be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. Such written consent or
consents shall be filed with the minutes of the proceedings of the board.
Section 3.14. Fees and Compensation of Directors. Directors and members
of committees may receive such compensation, if any, for their services, and
such reimbursement of expenses, as may be fixed or determined by resolution of
the board of directors. This Section 3.14 shall not be construed to preclude
any director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for those services.
Section 3.15. Committees of Directors. The board of directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of members or
alternate members of a committee requires the vote of a majority of the
authorized number of directors. Any 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 General Corporation Law
of California, also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies on the board of directors or in any
committee;
(c) The fixing of compensation of the directors for serving on the board
or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board of directors
which by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the board
of directors; or
(g) The appointment of any other committees of the board of directors or
the members of these committees.
Section 3.16. Meetings and Action of Committees. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
provisions of Sections 3.05 (place of meetings), 3.07 (regular meetings), 3.08
(special meetings and notice), 3.09 (quorum), 3.10 (waiver of notice), 3.11
(adjournment), 3.12 (notice of adjournment), and 3.13 (action without meeting)
of these bylaws, with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of
directors and its members, except that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee; special meetings of committees may also be
called by resolution of the board of directors; and notice of special meetings
of committees shall 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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ARTICLE IV
OFFICERS
Section 4.01. Officers. The officers of the corporation shall be a
chairman of the board, a president, a secretary, and a chief financial
officer. The corporation may also have, at the discretion of the board of
directors, one or more vice presidents, one or more assistant secretaries, one
or more treasurers or assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 4.03. Any number of
offices may be held by the same person.
Section 4.02. Election of Officers. The officers of the corporation,
except such officers as may be appointed in accordance with the provisions of
Sections 4.03 or 4.05 hereof, shall be chosen by the board of directors, and
each shall serve at the pleasure of the board, subject to the rights, if any,
of an officer under any contract of employment.
Section 4.03. Subordinate Officers. The board of directors may appoint,
and may empower the chairman of the board to appoint, such other officers as
the business of the corporation may require, each of whom shall hold office
for such period, have such authority and perform such duties as are provided
in the bylaws or as the board of directors may from time to time determine.
Section 4.04. Removal and Resignation of Officers. Subject to the
rights, if any, of an officer under any contract of employment, any officer
may be removed, either with or without cause, by the board of directors, at
any regular or special meeting of the board of directors, or, except in the
case of an officer chosen by the board of directors, by any other 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.
Section 4.05. Vacancies in Offices. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be
filled in the manner prescribed in these bylaws for regular appointments to
that office.
Section 4.06. Chairman of the Board. The board of directors shall
appoint one of its members to be chairman of the board to serve at the
pleasure of the board. Such person shall preside at all meetings of the board.
The chairman of the board shall have the powers conferred by these bylaws and
shall also have and may exercise such further powers and duties as from time
to time may be conferred or assigned by the board of directors.
Section 4.07. President. The president of the corporation shall, in the
absence of the chairman of the board, preside at all meetings of shareholders
and at all meetings of the board of directors. The president shall exercise
and perform such duties as may be assigned to him by the board of directors or
the chairman of the board or as prescribed by the bylaws.
Section 4.08. 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, shall perform all the duties of the president, and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the board of directors or the bylaws, and the president.
Section 4.09. Secretary. The secretary shall keep or cause to be kept,
at the principal executive office or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and shareholders, with the time and place
of holding, whether regular or special, and, if special, how authorized, the
notice given, the names of those present at directors' meetings or committee
meetings, the number of shares present or represented at shareholders'
meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the principal
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executive office or at the office of the corporation's transfer agent or
registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the board of directors required by the bylaws or by
law to be given, and he shall keep the seal of the corporation, if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or by the bylaws.
Section 4.10. 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 moneys and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated by the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may
be prescribed by the board of directors or these bylaws.
ARTICLE V
MISCELLANEOUS
Section 5.01. Indemnification Provisions. Except as prohibited by law,
every director of this corporation shall be entitled as a matter of right to
be indemnified by the corporation against reasonable expense and any liability
paid or incurred by such person in connection with any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative, investigative or other, whether brought by or in the name of
the corporation or otherwise, in which he or she may be involved, as a party
or otherwise, by reason of such person being or having been a director,
officer, employee or agent of the corporation or by reason of the fact that
such person is or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise or was a director,
officer, employee or agent of a corporation which was a predecessor
corporation of the corporation or of another enterprise at the request of such
predecessor corporation (such claim, action, suit or proceeding hereinafter
being referred to as an "Action"); provided, however, that no such right of
indemnification shall exist in favor of a director with respect to an Action
brought by such director against the corporation (other than a suit for
indemnification as provided below in this Section 5.01). Such indemnification
shall include the right to have expenses incurred by such person in connection
with an Action paid in advance by the corporation until the final disposition
of the Action, subject to such conditions as may be prescribed by law. As used
herein, "liability" shall include amounts of judgments, excise taxes, fines
and penalties, and amounts paid in settlement; and "expense" shall include
fees and expenses of counsel subject to the terms of the following paragraph.
If the corporation shall be obligated to pay the expenses of any Action
against a director, the corporation, if appropriate, shall be entitled to
assume the defense of such Action, with counsel approved by the director, upon
the delivery to the director of written notice of its election so to do. After
delivery of such notice, approval of such counsel by the director and the
retention of such counsel by the corporation, the corporation will not be
liable to the director under this Section 5.01 for any fees or expenses of
counsel subsequently incurred by the director with respect to the same Action,
provided that (i) the director shall have the right to employ his counsel in
any such Action at the director's expense; and (ii) the fees and expenses of
the director's counsel shall be at the expense of the corporation if (A) the
employment of counsel by the director has been previously authorized by the
corporation, (B) the director shall have reasonably concluded that there may
be a conflict of interest between the corporation and the director in the
conduct of any such defense or (C) the corporation shall not, in fact, have
employed counsel to assume the defense of such Action. Notwithstanding
anything contained herein to the contrary, the corporation shall have no
obligation under this Section 5.01 to indemnify any director for any amounts
paid in settlement of an Action unless the corporation consents to such
settlement, which consent shall not be unreasonably withheld.
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If a claim under the two preceding paragraphs is not paid in full by the
corporation within thirty (30) days after a written notice thereof has been
received by the corporation, the claimant may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any such
action that the conduct of the claimant was such that under California law the
corporation would be prohibited from indemnifying the claimant for the amount
claimed, but the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its board) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because the conduct of the
claimant was not such that indemnification would be prohibited by law, nor an
actual determination by the corporation (including the board of directors,
independent legal counsel or its shareholders) that the conduct of the
claimant was such that indemnification would be prohibited by law, shall be a
defense to the action or create a presumption that the conduct of the claimant
was such that indemnification would be prohibited by law.
The right of indemnification provided for herein (a) shall not be deemed
exclusive of any other rights, whether now existing or hereafter created, to
which those seeking indemnification hereunder may be entitled under any
agreement, bylaw or article provision, vote of shareholders or directors or
otherwise, (b) shall continue as to persons who have ceased to have the status
pursuant to which they were entitled or were denominated as entitled to
indemnification hereunder and shall inure to the benefit of the heirs and
legal representatives of persons entitled to indemnification hereunder, and
(c) shall be applicable to actions, suits or proceedings commenced after the
adoption hereof, whether arising from acts or omissions occurring before or
after the adoption hereof. The right of indemnification provided for herein
may not be amended, modified or repealed so as to limit in any way the
indemnification provided for herein with respect to any acts or omissions
occurring prior to the adoption of any such amendment or repeal.
The corporation has full power and authority to extend any of the
indemnification benefits provided for in this Section 5.01 to any officer or
agent of the corporation, but the corporation is under no obligation to extend
such benefits to any person who is not entitled thereto by law or pursuant to
the first paragraph of this Section 5.01.
Section 5.02. Maintenance and Inspection of Share Register. The
corporation shall keep at its principal executive office, or at the office of
its transfer agent or registrar, if either be appointed and as determined by
resolution of the board of directors, a record of its shareholders, giving the
names and addresses of all shareholders and the number and class of shares
held by each shareholder.
A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of shareholders' names and
addresses and shareholdings during usual business hours on five (5) days'
prior written demand on the corporation, and (ii) obtain from the transfer
agent of the corporation, on written demand and on the tender of such transfer
agent's usual charges for such list, a list of the shareholders' names and
addresses, who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of
demand. This list shall be made available to any such shareholder by the
transfer agent on or before the later of five (5) days after the demand is
received or the date specified in the demand as the date as of which the list
is to be compiled. The record of shareholders shall also be open to inspection
on the written demand of any shareholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose reasonably
related to the holder's interests as a shareholder or as the holder of a
voting trust certificate. Any inspection and copying under this Section 5.02
may be made in person or by an agent or attorney of the shareholder or holder
of a voting trust certificate making the demand.
Section 5.03. Maintenance and Inspection of Bylaws. The corporation
shall keep at its principal executive office, or if its principal executive
office is not in the State of California, at its principal business office in
this state, the original or a copy of the bylaws as amended to date, which
shall be open to inspection by the shareholders at all reasonable times during
office hours. If the principal executive office of the corporation is outside
the State of California and the corporation has no principal business office
in this state, the secretary shall, upon the written request of any
shareholder, furnish to that shareholder a copy of the bylaws as amended to
date.
Section 5.04. Maintenance and Inspection of Other Corporate Records. The
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accounting books and records and minutes of proceedings of the shareholders
and the board of directors and any committee or committees of the board of
directors shall be kept at such place or places designated by the board of
directors, or, in the absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept 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. These rights of
inspection shall extend to the records of each subsidiary corporation of the
corporation.
Section 5.05. Inspection of Books and Records by Directors. Every
director shall have the absolute right at any reasonable time to inspect all
books, records, and documents of every kind and the physical properties of the
corporation and each of its subsidiary corporations. This inspection by a
director may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
Section 5.06. Annual Report to Shareholders. 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. This report shall be sent at least fifteen (15) (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 2.05 of these bylaws for giving notice to shareholders of
the corporation. The annual report shall contain a balance sheet as of the end
of the fiscal year and an income statement and statement of changes in
financial position for the fiscal year, accompanied by any report of
independent accountants or, if there is no such report, the certificate of an
authorized officer of the corporation that the statements were prepared
without audit from the books and records of the corporation.
Section 5.07. Financial Statements. A copy of any annual financial
statement and any income statement of the corporation for each quarterly
period of each fiscal year, and any accompanying balance sheet of the
corporation as of the end of each such period, that has been prepared by the
corporation shall be kept on file in the principal executive office of the
corporation for twelve (12) months and each such statement shall be exhibited
at all reasonable times to any shareholder demanding an examination of any
such statement or a copy shall be mailed to any such shareholder.
If a shareholder or shareholders holding at 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 a balance sheet of the corporation as of the end of that period, the chief
financial officer shall cause the statements referred to above to be prepared,
if not already prepared, and shall deliver personally or mail that statement
or statements to the person making the request within thirty (30) days after
the receipt of the request. If the corporation has not sent to the
shareholders its annual report for the last fiscal year, this report shall
likewise be delivered or mailed to any shareholder or shareholders within
thirty (30) days after the request.
The corporation shall also, on the written request of any shareholder,
mail to the shareholder a copy of the last annual, semi-annual, or quarterly
income statement which it has prepared, and a balance sheet as of the end of
that period.
The quarterly income statements and balance sheets referred to in this
Section 5.07 shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 5.08. Record Date for Purposes Other than Notice and Voting. For
purposes of determining the shareholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action (other than action
by shareholders by written consent without a meeting), the board of directors
may fix, in advance, a record date, which shall not be more than sixty (60)
days before any such action, and in that case only shareholders at the close
of business on the record date are entitled to receive the dividend,
distribution, or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise provided in
the California General Corporation Law.
If the board of directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
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business on the day on which the board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
Section 5.09. Checks, Drafts. Evidences of Indebtedness. All checks,
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time
to time, shall be determined by resolution of the board of directors.
Section 5.10. Corporate Contracts and Instruments; How Executed. The
board of directors, except as otherwise provided in these bylaws, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
this authority may be general or confined to specific instances; and, unless
so authorized or ratified by the board of directors or within the agency power
of an officer, no officer, agent, or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or for any amount.
Section 5.11. Certificates for Shares. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of these shares are fully paid, and the board of
directors may authorize the issuance of certificates or shares as partly paid
provided that these certificates shall state the amount of the consideration
to be paid for them and the amount paid. All certificates shall be signed in
the name of the corporation by the chairman of the board or vice chairman of
the board or the president or vice president and by the chief financial
officer or the treasurer or an assistant treasurer or the secretary or any
assistant secretary, certifying the number of shares and the class or series
of shares owned by the shareholder. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be that officer, transfer agent, or registrar
before that certificate is issued, it may be issued by the corporation with
the same effect as if that person were an officer, transfer agent or registrar
at the date of issue.
Section 5.12. Lost Certificates. Except as provided in this Section
5.12, no new certificates for shares shall be issued to replace an old
certificate unless the latter is surrendered to the corporation and cancelled
at the same time. The board of directors may, in case any share certificate or
certificate for any other security is lost, stolen or destroyed, authorize the
issuance of a replacement certificate on such terms and conditions as the
board may require, including provision for indemnification of the corporation
secured by a bond or other adequate security sufficient to protect the
corporation against any claim that may be made against it, including any
expense or liability, on account of the alleged loss, theft, or destruction of
the certificate or the issuance of the replacement certificate.
Section 5.13. Representation of Shares of Other Corporations. The
chairman of the board, the president, or any vice president, or any other
person authorized by resolution of the board of directors or by any of the
foregoing designated officers, is authorized to vote on behalf of the
corporation any and all shares of any other corporation or corporations,
foreign or domestic, standing in the name of the corporation. The authority
granted to these officers to vote or represent on behalf of the corporation
any and all shares held by the corporation in any other corporation or
corporations may be exercised by any of these officers in person or by any
person authorized to do so by a proxy duly executed by these officers.
Section 5.14. Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction and definitions in
the California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and the term
"person" includes both a corporation and a natural person.
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ARTICLE VI
AMENDMENTS
Section 6.01. Amendment by Shareholders. New bylaws may be adopted or
these bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the articles of incorporation of the corporation set forth
the number of authorized directors of the corporation, the authorized number
of directors may be changed only by an amendment of the articles of
incorporation.
Section 6.02. Amendment by Directors. Subject to the rights of the
shareholders as provided in Section 6.01 hereof, to adopt, amend, or repeal
bylaws, bylaws may be adopted, amended, or repealed by the board of directors;
provided, however, that the board of directors may adopt a bylaw or amendment
of a bylaw changing the authorized number of directors only for the purpose of
fixing the exact number of directors within the limits specified in the
articles of incorporation or in Section 3.02 of these bylaws.
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