AMENDED AND RESTATED
BY-LAWS
OF
SC BANCORP
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The Board of Directors shall fix the
location of the principal executive office of the corporation at any place
within or outside the State of California. If the principal executive office is
located outside the State of California, and the corporation has one or more
business offices in such state, the Board of Directors shall fix and designate a
principal business office in the State of California.
SECTION 2. OTHER OFFICES. Branch or other subordinate offices may at
any time be established by the Board of Directors at such other places as it
deems appropriate.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. 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. ANNUAL MEETING. The annual meeting of shareholders shall
be held on the third Tuesday in May of each year at 1:30 p.m., or such other
date or such other time as may be fixed by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders
may be called at any time by the Board of Directors, the Chairman of the Board,
the President, or by the holders of shares entitled to cast not less than ten
percent (10%) of the votes at such 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 by registered
mail 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 that a meeting
will be held at a time requested by the person or persons calling the meeting,
not less than 35 nor more than 60 days after receipt of the request. If the
notice is not given within 20 days after receipt of the request, the person or
persons requesting the meeting may give the notice. Nothing in this paragraph
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 4. NOTICE OF MEETINGS. Written notice, in accordance with
Section 5 of this Article II, of each annual or special meeting of shareholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each shareholder entitled to vote thereat. Such notice shall state
the place, date, and hour of the meeting and (a) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (b) in the case of the annual meeting, those
matters which the Board of Directors, at the time of the mailing of the notice,
intends to present for action by the shareholders, but, subject to the
provisions of applicable law, 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 names of nominees intended at the time of the notice to be
presented by the Board of Directors for election.
If action is proposed to be taken at any meeting for approval of (a) a
contract or transaction in which a Director has a direct or indirect financial
interest, pursuant to Section 310 of the California General Corporation Law,
(b) an amendment of the Articles of Incorporation, pursuant to Section 902 of
that Law, (c) a reorganization of the corporation, pursuant to Section 1201 of
that Law, (d) a voluntary dissolution of the corporation, pursuant to
Section 1900 of that Law, or (e) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, pursuant to
Section 2007 of that Law, the notice shall also state the general nature of that
proposal.
SECTION 5. MANNER OF GIVING NOTICE. Notice of a shareholders'
meeting may be given either personally or by first-class mail, or by third-class
mail if the corporation has outstanding shares held of record by 500 or more
persons (determined as provided in Section 605 of the California General
Corporation Law) on the record date for the shareholders' meeting, or by
telegraphic or other written communication, charges prepaid, 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
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been given if sent to that shareholder by mail or telegraphic or other written
communication to the corporation's principal office or if published at least
once in a newspaper of general circulation in the county in which 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. An affidavit of mailing or other means of giving any
notice in accordance with the above provisions, executed by the Secretary,
Assistant Secretary or other transfer agent shall be prima facie evidence of the
giving of the notice.
If any notice addressed to the shareholder at the address of such
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 such address, all future notices or reports shall be deemed to have been duly
given without further mailing if the same shall be available for the shareholder
upon 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
to all other shareholders.
SECTION 6. QUORUM. The presence in person or by proxy of the holders
of a majority of the shares entitled to vote at any meeting 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 transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 7. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either present
in person or represented by proxy thereat, but in the absence of a quorum
(except as provided in Section 6 of this Article) no other business may be
transacted at such meeting.
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, when any shareholders' meeting is adjourned for
more than 45 days from the date set for the original adjourned meeting, or, if
after adjournment a new record date is fixed for the adjourned meeting, notice
of the adjourned meeting shall be given as in the case of an original meeting.
At any adjourned meeting the corporation may transact any business which may
have been transacted at the original meeting.
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SECTION 8. VOTING. The shareholders entitled to notice of any
meeting or to vote at any such meeting shall be only persons in whose name
shares stand on the stock records of the corporation on the record date
determined in accordance with Section 9 of this Article.
Voting shall in all cases be subject to the provisions of Sections 702
through 704, inclusive, of the California General Corporation Law (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 or 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. If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on any matter (other than
the election of Directors) shall be the act of the shareholders, unless the vote
of a greater number or voting by classes is required by the California General
Corporation Law or by the Articles of Incorporation.
Pursuant to Section 301.5 of the California General Corporation Law,
this corporation shall not have cumulative voting as provided under Section 708
of such Law, provided that this corporation shall then be a listed corporation
as defined in Section 301.5 of such Law.
In any election of Directors, the candidates receiving the highest
number of votes of the shares entitled to be voted for them up to the number of
Directors to be elected, shall be elected.
SECTION 9. RECORD DATE. The Board of Directors may fix, in advance,
a record date for the determination of the shareholders entitled to notice of
any meeting or to vote or entitled to receive payment of any dividend or other
distribution, or any allotment of rights, or to exercise rights in respect of
any other lawful action. The record date so fixed shall be not more than 60
days nor less than 10 days prior to the date of the meeting nor more than 60
days prior to any other action. When a record date is so fixed, only
shareholders of record at the close of business on that date are entitled to
notice of and to vote at the meeting or to receive the dividend, distribution,
or allotment of rights, or to exercise of the rights, as the case may be,
notwithstanding any transfer of shares on the books of the corporation after the
record date. A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any
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adjournment of the meeting unless the Board of Directors fixes a new record date
for the adjourned meeting. The Board of Directors shall fix a new record date
if the meeting is adjourned for more than 45 days from the date set for the
original meeting.
If no record date is fixed by the Board, 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. The record date for determining shareholders for any purpose other than
set forth in this Section 9 or Section 11 of this Article shall be at the close
of business on the day on which the Board of Directors adopts the resolution
relating thereto, or the sixtieth (60th) day prior to the date of such other
action, whichever is later.
SECTION 10. CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a waiver of notice, or a consent to the holding of the meeting or
an approval of the minutes thereof. All such waivers, consents, and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Attendance of a person at a meeting shall constitute a waiver of
notice of and presence at such 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
Section 4 to be included in the notice but not so included, if such objection is
expressly made at the meeting. Neither the business to be transacted at nor the
purpose of any regular or special meeting of shareholders need be specified in
any written waiver of notice, except that if action is taken or proposed to be
taken for approval of any of those matters specified in the second paragraph of
Section 4 of this Article II, the waiver of notice or consent shall state the
general nature of the proposal.
SECTION 11. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Subject to
Section 603 of the California General Corporation Law, 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 the outstanding shares having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted, or their proxies. All such consents shall be filed with the
Secretary of the corporation and shall be maintained in the corporate records;
provided, however, that
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(1) unless the consents of all shareholders entitled to vote have been solicited
in writing, notice of any shareholder approval without a meeting by less than
unanimous written consent shall be given, as provided by Sections 603(b)(1) and
(2) of the California General Corporation Law, and (2) 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 subject to applicable law, a Director may be elected by the
shareholders at any time to fill a vacancy on the Board of Directors that has
not been filled by the Directors within five (5) business days of the creation
of the vacancy. Any such election by written consent other than to fill a
vacancy created by removal requires the consent of the holders of a majority of
the outstanding shares entitled to vote for the election of Directors. Any
written consent may be revoked by a writing received by the Secretary of the
corporation prior to the time that written consents of the number of shares
required to authorize the proposed action have been filed with the Secretary.
Unless a record date for voting purposes be fixed as provided in
Section 9 of this Article, in order that the Corporation may determine the
shareholders entitled to consent to corporate action in writing without a
meeting pursuant to this Section 11, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. Any shareholder of
record seeking to have the shareholders authorize or take corporate action by
written consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date (unless the record date has
previously been fixed by the Board of Directors pursuant to the first sentence
of this second paragraph of Section 11). If no record date has been fixed by
the Board of Directors pursuant to the first sentence of this second paragraph
of Section 11 or otherwise within ten (10) days of the date on which such a
request is received, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Secretary in accordance with this Section 11.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the record date
for determining shareholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
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In the event of the delivery, in the manner provided by this Section 11, to
the corporation of the requisite written consent or consents to take corporate
action and/or any related revocation or revocations, the corporation shall
engage independent inspectors of elections for the purpose of performing
promptly a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the corporation that the consents delivered to
the corporation in accordance with this Section 11 represent at least the
minimum number of votes that would be necessary to take the corporate action.
Nothing contained in this Section 11 shall in any way be construed to suggest or
imply that the Board of Directors or any shareholder shall not be entitled to
contest the validity of any consent or revocation thereof, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution, or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
Every written consent shall bear the date of signature of each shareholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the
earliest dated written consent received in accordance with Section 11, a written
consent or consents signed by a sufficient number of holders to take such action
are delivered to the corporation in the manner prescribed in this Section 11.
SECTION 12. PROXIES. Every person entitled to vote shares or execute
written consents has the right to do so either in person or by one or more
persons authorized by a written proxy executed and dated by such shareholder and
filed with the Secretary of the corporation prior to the convening of any
meeting of the shareholders at which any such proxy is to be used or prior to
the use of such written consent. A validly executed proxy which does not state
that it is irrevocable continues in full force and effect unless (1) revoked by
the person executing it, before the vote pursuant thereto, by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or by attendance at the meeting and voting in
person by, the person executing the proxy; or (2) written notice of the death or
incapacity of the maker of the proxy is received by the corporation before the
vote pursuant thereto is counted; provided, however, that no proxy shall be
valid after the expiration of 11 months from the date of its execution unless
otherwise provided in the proxy.
SECTION 13. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting and any adjournment
thereof. If no inspectors of election are so appointed, or if any persons so
appointed fail to appear or fail or refuse to act, the Chairman of any such
meeting
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may, and on the request of any shareholder or 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 shall determine whether one (1) or three (3) inspectors
are to be appointed.
The duties of such inspectors shall be as prescribed by Section 707(b)
of the California General Corporation Law and shall include: determining (1)
the number of shares outstanding and the voting power of each, (2) the shares
represented at the meeting, (3) the existence of a quorum, (4) the authenticity,
validity and the effect of proxies; receiving votes, ballots or consents;
hearing and determining all challenges and questions in any way arising in
connection with the right to vote; counting and tabulating all votes or
consents; determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all shareholders. If there are three inspectors of election, the decision,
act, or certificate of a majority is effective in all respects as the decision,
act or certificate of all.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. Subject to the provisions of the California
General Corporation Law and any limitations in the Articles of Incorporation and
these By-Laws 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. The Board of Directors may delegate the management of
the day-to-day operation of the business of the corporation to a management
company or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the Board of Directors shall have the following powers in addition
to the other powers enumerated in these By-Laws:
(a) To select and remove all the other officers, agents, and
employees of the corporation, prescribe any powers and duties for them that are
consistent with law, or with the Articles or these By-Laws, fix their
compensation, and require from them security for faithful service.
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(b) To conduct, manage, and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law, or with the Articles or these By-Laws, as they may deem best.
(c) To adopt, make, and use a corporate seal, and to prescribe the
forms of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as in their judgment they may deem best.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory and capital notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and securities
therefor and any agreements pertaining thereto.
(f) To prescribe the manner in which and the person or persons by
whom any or all of the checks, drafts, notes, contracts and other corporate
instruments shall be executed.
(g) To appoint and designate, by resolution adopted by a majority of
the authorized number of Directors, one or more committees, each consisting of
two or more Directors, including the appointment of alternate members of any
committee who may replace any absent member at any meeting of the committee; and
(h) Generally, to do and perform every act or thing whatever that may
pertain to or be authorized by the Board of Directors of a commercial bank under
the laws of this state.
SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS.
(a) The number of Directors shall be nine (9). Commencing with the
1993 annual meeting of shareholders, the Board of Directors shall be divided
into three classes, Class I, Class II and Class III, each having three
Directors. At the 1993 annual meeting of shareholders, Directors of the first
class (Class I) shall be elected to hold office for a term expiring at the 1994
annual meeting of shareholders; Directors of the second class (Class II) shall
be elected to hold office for a term expiring at the 1995 annual meeting of
shareholders; and Directors of the third class (Class III) shall be elected to
hold office for a term expiring at the 1996 annual meeting of shareholders. At
each annual meeting of shareholders after 1993, the successors to the class of
Directors whose terms then shall expire shall be identified as being of the same
class as the Directors they succeed and
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elected to hold office for a term expiring at the third succeeding annual
meeting of shareholders. Notwithstanding the foregoing, whenever the holders of
the preferred stock or preference stock issued by the corporation shall have the
right, voting separately by class, to elect Directors at an annual or special
meeting of shareholders, the election, term of office and filling of vacancies
of such Directors shall be governed by the terms of the Articles of
Incorporation applicable thereto, and such Directors so elected shall not be
divided into classes pursuant to this paragraph. Directors elected by a vote of
the holders of preferred stock or preference stock as provided in the Articles
of Incorporation shall hold office only so long as is required by the Articles
of Incorporation.
If at any meeting for the election of Directors, more than one
class of stock, voting separately as classes, shall be entitled to elect one or
more Directors and there shall be a quorum of only one such class of stock, that
class of stock shall be entitled to elect its quota of Directors notwithstanding
the absence of a quorum of the other class or classes of stock.
(b) No person shall be eligible for or shall be elected to the
Board of Directors of the corporation unless he or she (1) shall be a citizen of
the United States of America, (2) has resided within 150 miles of the principal
executive offices of the Company or any branch office of its principal
subsidiary existing at the time of such election for at least 1 year immediately
preceding such election, (3) owns in his or her own right at least 1,000 shares
of the common stock of the corporation, and (4) has never been convicted of a
felony crime in any jurisdiction within the United States, or of any crime
punishable by more than 6 months imprisonment in any jurisdiction.
(c) Nominations for election of members of the Board of
Directors may be made by the Board of Directors, by a nominating committee or
person appointed by the Board of Directors or by any holder of any outstanding
class of capital stock of the corporation entitled to vote for the election of
Directors. Notice of intention to make any nominations (other than those made
by or at the direction of the Board of Directors) shall be made pursuant to a
timely notice in writing to the Secretary of the corporation, with a copy
thereof to the Chairman of the Board. To be timely, a shareholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the corporation by the latter of: (i) the close of business 21 days prior to
the meeting of shareholders called for the election of Directors or (ii) 10 days
after the date of mailing of notice of the meeting to shareholders. Such
shareholder's notice to the Secretary shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or reelection as a Director,
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class and number
of shares of capital stock of the corporation which are beneficially owned by
the person, (iv) the number of shares of any bank,
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bank holding company, savings and loan association or other depositary
institution owned beneficially by the person and the identities and locations of
any such institutions, (v) whether the person has ever been convicted of or
pleaded nolo contendere to any criminal offense involving dishonesty or breach
of trust, filed a petition in bankruptcy or been adjudged bankrupt, and (vi) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to Schedule 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
shareholder giving the notice (i) the name and record address of the
shareholder, (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the shareholder, and (iii) the
number of shares of capital stock of any bank, bank holding company, savings and
loan association or other depositary institution owned beneficially by the
shareholder and the identities and locations of any such institutions. The
notice shall be signed by the nominating shareholder and by each nominee, and
shall be accompanied by a written consent to be named as a nominee for election
as a Director from each proposed nominee. The corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the corporation to determine the eligibility of any such proposed nominee to
serve as a Director of the corporation. No person shall be eligible for
election as a Director of the corporation unless nominated in accordance with
the procedures set forth herein. Nominations not made in accordance with these
procedures shall be disregarded by the chairman of the meeting, and upon his
instructions, the inspectors of elections shall disregard all votes cast for
each such nominee. The foregoing requirements do not apply to the nomination of
a person to replace a proposed nominee who has become unable to serve as a
Director between the last day for giving notice in accordance with this
paragraph and the date of election of Directors if the procedure called for in
this paragraph was followed with respect to the nomination of the proposed
nominee.
SECTION 3. ELECTION AND TERM OF OFFICE. If any annual meeting is not
held or the Directors to then be elected are not elected thereat, the Directors
to then be elected may be elected at any special meeting of shareholders held
for that purpose. Each Director shall hold office until expiration of the term
for which such Director was elected and until a successor has been elected and
qualified pursuant to Section 2(a) of this Article III.
SECTION 4. VACANCIES. Any Director may resign effective upon giving
written notice to the Chairman of the Board, the President, Secretary, or the
Board of Directors, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Except for a vacancy created by the removal of a Director, vacancies
on the Board of Directors may be filled by approval of a majority of the
remaining
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Directors, or, if the number of Directors then in office is less than a quorum,
by (1) the unanimous written consent of the Directors then in office, (2) the
affirmative vote of a majority of the Directors then in office at a meeting held
pursuant to notice or waivers of notice complying with Section 307 of the
California General Corporation Law or (3) a sole remaining Director, and each
Director so elected shall hold office until such expiration of the term for
which such Director was elected and until such Director's successor has been
elected and qualified pursuant to Section 2(a) of this Article III. A vacancy
on the Board of Directors existing as the result of a removal of a Director may
be filled only by approval of the shareholders, unless the Articles of
Incorporation or a by-law adopted by the shareholders so provides.
A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of death, resignation, or removal of any Director, or if the
authorized number of Directors be increased, or if the shareholders fail, at any
annual or special meeting of shareholders at which any Director or Directors are
elected, to elect the full authorized number of Directors to be voted for at
that meeting.
The Board of Directors may declare vacant the office of a Director who
has been declared of unsound mind by an order of court or convicted of a felony.
The shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors within five (5) business
days of the creation of the vacancy. Any such election by written consent other
than to fill a vacancy created by removal requires the consent of a majority of
the outstanding shares entitled to vote. Any such election by written consent
to fill a vacancy created by removal requires the unanimous consent of the
outstanding shares entitled to vote. If the Board of Directors accepts the
resignation of a Director tendered to take effect at a future time, the Board of
Directors or the shareholders shall have power to elect a successor to take
office when the resignation is to become effective.
No reduction of the authorized number of Directors or amendment
reducing the number of classes of Directors shall have the effect of removing
any Director prior to the expiration of the Director's term of office.
SECTION 5. PLACE OF MEETING. Regular meetings of the Board of
Directors shall be held at any place within or without the State of California
which has been designated in the notice of meeting or if there is no notice, at
the principal office of the corporation, or at a place designated by resolution
of the Board of Directors or by the written consent of the Board of Directors.
Any regular or special meeting is valid wherever held if held upon written
consent of all
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members of the Board of Directors given either before or after the meeting and
filed with the Secretary of the corporation.
SECTION 6. REGULAR MEETINGS. Immediately following each annual
meeting of shareholders and at the same place, 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.
Other regular meetings of the Board of Directors shall be held without
notice either on the third Tuesday of each month at the hour of 4:00 p.m. or at
such different date and time as the Board of Directors may from time to time fix
by resolution; provided, however, should said day fall upon a legal holiday
observed by the corporation at its principal office, then said meeting shall be
held at the same time and place on the next succeeding full business day. Call
and notice of all regular meetings of the Board of Directors are hereby
dispensed with.
SECTION 7. 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, the President, or the Secretary or by any two Directors.
Special meetings of the Board of Directors shall be held upon no less
than four days' written notice by mail or 48 hours' notice delivered personally
or by telephone or telegraph. Any such written or telegraphic notice shall be
addressed or delivered to each Director at such Director's address as it is
shown upon the records of the corporation or as may have been given to the
corporation by the Director for purposes of notice or, if such address is not
shown on such records or is not readily ascertainable, at the place in which the
meetings of the Directors are regularly held. Such notice may, but need not,
specify the purpose of the meeting, nor the place if the meeting is to be held
at the principal office of the corporation. Notice of any meeting of the Board
of Directors need not be given to any Director who signs a waiver of notice or a
consent to holding the meeting, or who attends the meeting without protesting,
either prior thereto or at its commencement, the lack of notice to such
Director.
Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
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SECTION 8. QUORUM. A majority of the authorized number of Directors
constitutes a quorum of the Board of Directors for the transaction of business,
except to adjourn as hereinafter provided. 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, unless a
greater number be required by the Articles and subject to the provisions of
Section 310 of the California General Corporation Law (as to approval of
contracts or transactions in which a Director has a direct or indirect material
financial interest), Section 311 (as to appointment of committees), and
Section 317 (e) (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 such meeting.
SECTION 9. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors may participate in a meeting through use of a
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. Participation in a meeting
pursuant to this Section 9 constitutes "presence" in person at such meeting.
SECTION 10. WAIVER OF NOTICE. The transactions of any meeting of the
Board of Directors, however called and noticed or wherever held, are 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 such meeting or
an approval of the minutes thereof. All such waivers, consents, or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
SECTION 11. ADJOURNMENT. A majority of the Directors present,
whether or not a quorum is present, may adjourn any Directors' meeting to
another time and place. Notice of the time and place of holding an adjourned
meeting need not be given, unless the meeting is adjourned for more than twenty-
four hours, 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 7 of this
Article III, to the Directors who were not present at the time of the
adjournment.
SECTION 12. 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 of Directors shall individually or collectively consent in
writing to such action. Such action by written consent shall have the same
effect as a unanimous vote of the Board of Directors. Such consent or consents
shall be filed with the minutes of the proceedings of the Board of Directors.
SECTION 13. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
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reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors. This Section 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 14. RIGHTS OF INSPECTION. Every Director of the corporation
shall have the absolute right at any reasonable time to inspect and copy all
books, records, and documents of every kind and to inspect the physical
properties of the corporation and also of its subsidiary corporations, domestic
or foreign. Such inspection by a Director may be made in person or by agent or
attorney and includes the right to copy and obtain extracts.
SECTION 15. COMMITTEES OF THE BOARD. The Board of Directors may
designate, by resolution adopted by a majority of the authorized number of
Directors, one or more committees, consisting of two or more Directors, to serve
at the pleasure of the Board of Directors. The Board of Directors may designate
one or more Directors as alternate members of any committee, and such alternate
members may replace any absent member at any meeting of the committee. The
appointment of members or alternate members of a committee requires the vote of
a majority of the authorized number of Directors. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have all the
authority of the Board except as otherwise provided by law.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a
President, one or more Vice Presidents, 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, a Vice Chairman of the Board, one or more
Assistant Vice Presidents, one or more Assistant Financial Officers, one or more
Assistant Secretaries and such other officers as may be elected or appointed in
accordance with provisions of Section 3 of this Article. One person may hold
two or more offices, except those of President and Chief Financial Officer.
SECTION 2. ELECTION. The officers of the corporation, except such
officers as may be elected or appointed in accordance with the provisions of
Section 3 or Section 5 of this Article, shall be chosen by, and shall serve at
the pleasure of, the Board of Directors, and shall hold their respective offices
until their resignation, removal, or other disqualification from service, or
until their respective successors shall be elected, subject to the rights, if
any, of an officer under any contract of employment.
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SECTION 3. SUBORDINATE OFFICERS. The Board of Directors may elect,
and 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 By-Laws or
as the Board of Directors may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION. 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 time, or, except
in the 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, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these By-Laws for regular election or appointment to such
office.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
there shall be such an officer, shall, if present, preside at all meetings of
the Board of Directors and of the shareholders, and exercise and perform such
other powers and duties as may be from time to time assigned by the Board of
Directors.
SECTION 7. VICE CHAIRMAN. The Vice Chairman of the Board, if there
shall be such an officer, shall in the absence of the Chairman of the Board,
preside at all meetings of the Board of Directors and of the shareholders, and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board of Directors.
SECTION 8. PRESIDENT. Subject to such 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 is the General Manager and Chief Executive Officer of
the corporation and has, subject to the control of the Board of Directors,
general supervision, direction, and control of the business and officers of the
corporation. In the absence of both the Chairman of the Board and the Vice
Chairman, or if there be none, the President shall preside at all meetings of
the shareholders and at all meetings of the Board of Directors. The President
has the general powers and duties of management usually vested in the office of
President and General
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Manager of a corporation and such other powers and duties as may be prescribed
by the Board of Directors.
SECTION 9. VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the By-Laws, and the President, or the Chairman of the
Board.
SECTION 10. SECRETARY. The Secretary shall keep or cause to be kept,
at the principal office and such other place as the Board of Directors may
order, a book of minutes of all meetings of shareholders, the Board of
Directors, and its committees, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice thereof given,
the names of those present or represented at shareholders' meetings, and the
proceedings thereof.
The Secretary shall keep, or cause to be kept, a copy of the By-Laws
of the corporation at the principal office or business office in accordance with
Section 213 of the California General Corporation Law. The Secretary shall
keep, or cause to be kept, at the principal office or at the office of the
corporation's transfer agent or registrar, if one be appointed, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders, of the Board of Directors and of any committees
thereof required by these By-Laws or by law to be given, shall keep the seal of
the corporation in safe custody, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors.
SECTION 11. ASSISTANT SECRETARY. The Assistant Secretary or the
Assistant Secretaries, in the order of their seniority, shall, in the absence or
disability of the Secretary, or in the event of such officer's refusal to act,
perform the duties and exercise the powers and discharge such duties as may be
assigned from time to time by the President or by the Board of Directors.
SECTION 12. 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 the properties and business transactions of the
corporation,
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including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings and shares, and shall send or cause to be
sent to the shareholders of the corporation such financial statements and
reports as are by law or these By-Laws required to be sent to them. The books
of account shall at all times be open to inspection by any Director of the
corporation.
The Chief Financial Officer shall deposit all monies 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. The Chief
Financial Officer 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 transactions as Treasurer and of the
financial condition of the corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors.
SECTION 13. ASSISTANT FINANCIAL OFFICER. The Assistant Financial
Officer or the Assistant Financial Officers, in the order of their seniority,
shall, in the absence or disability of the Chief Financial Officer, or in the
event of such officer's refusal to act, perform the duties and exercise the
powers of the Chief Financial Officer, and shall have such additional powers and
discharge such duties as may be assigned from time to time by the President or
by the Board of Directors.
SECTION 14. SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such officer is also a
Director of the corporation.
SECTION 15. OFFICERS HOLDING MORE THAN ONE OFFICE. Any two or more
offices, except those of President and Chief Financial Officer, may be held by
the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
SECTION 16. INABILITY TO ACT. In the case of absence or inability to
act of any officer of the corporation and of any person herein authorized to act
in his place, the Board of Directors may from time to time delegate the powers
or duties of such officer to any other officer, or any Director or other person
whom it may select.
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ARTICLE V
OTHER PROVISIONS
SECTION 1. INSPECTION OF CORPORATE RECORDS. The corporation shall
keep at its principal executive office 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:
(a) Inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours upon five business days' prior
written demand upon the corporation; or
(b) Obtain from the transfer agent, if any, for the corporation, upon
written demand and upon the tender of its usual charges for such a list (the
amount of which charges shall be stated to the shareholder by the transfer agent
upon request), a list of the shareholders' names and addresses who are entitled
to vote for the election of Directors and their shareholdings, as of the most
recent record date for which it has been compiled, or as of a date specified by
the shareholder subsequent to the date of demand. The list shall be made
available on or before the later of five business days after the demand is
received or the date specified therein as the date as of which the list is to be
compiled.
SECTION 2. INSPECTION OF BY-LAWS. The corporation shall keep in its
principal executive office the original or a copy of these By-Laws as amended to
date, which shall be open to inspection by shareholders at all reasonable times
during office hours.
SECTION 3. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share certificate, initial transaction statement or written statement,
conveyance, or other instrument in writing, and any assignment or endorsement
thereof executed or entered into between this corporation and any other person,
when signed by (i) the Chairman of the Board, the President or any Vice
President and (ii) the Secretary, any Assistant Secretary, the Chief Financial
Officer or any Assistant Treasurer of this corporation shall be valid and
binding upon this corporation in the absence of actual knowledge on the part of
the other person that the signing officers had not the authority to execute the
same. Any such instruments may be signed by any other persons or persons and in
such manner as from time to time shall be determined by the Board of Directors,
and unless so authorized by the Board of Directors, no officer, agent, or
employee shall have any
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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 amount.
SECTION 4. CERTIFICATES OF STOCK. Every holder of shares of the
corporation shall be entitled to have a certificate signed in the name of the
corporation by the President or a Vice President and by the Chief Financial
Officer or Assistant Financial Officer or by the Secretary or Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Signatures on the certificates may be facsimile. If
any officer, transfer agent or registrar who has signed a certificate or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
The Board of Directors may, in case any certificate for shares is
alleged to have been lost, stolen, or destroyed, authorize the issuance of a new
certificate in lieu thereof, and the corporation may require that the
corporation be given a bond or other adequate security sufficient to indemnify
it against any claim that may be made against it (including any expense or
liability) on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of such new certificate.
Prior to the due presentment for registration of transfer in the stock
transfer book of the corporation, the registered owner shall be treated as the
person exclusively entitled to vote, to receive notifications and otherwise to
exercise all the rights and powers of an owner, except as expressly provided
otherwise by the laws of the State of California.
SECTION 5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or any other officer or officers authorized by the Board of Directors
or the President are each authorized to vote, represent, and exercise on behalf
of the corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised by any such officer in person or by
any other person authorized to do so by proxy or power of attorney duly executed
by said officer.
SECTION 6. ANNUAL REPORT TO SHAREHOLDERS. Not later than 120 days
after the close of the fiscal year, the Board of Directors shall cause an annual
report to be sent to shareholders of the corporation, complying with
Section 1501 of the California General Corporation Law.
SECTION 7. SEAL. The corporate seal of the corporation shall consist
of two concentric circles, between which shall be the name of the corporation,
and in
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the center shall be inscribed the word "Incorporated" and the date of its
incorporation.
SECTION 8. FISCAL YEAR. The fiscal year of this corporation shall
begin on the first day of January and end on the 31st day of December of each
year.
SECTION 9. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction, and
definitions contained in the California General Corporation Law shall govern the
construction of these By-Laws. 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.
SECTION 10. BY-LAW PROVISIONS CONTRARY TO OR INCONSISTENT WITH
PROVISIONS OF LAW. Any article, section, subsection, subdivision, sentence,
clause or phrase of these By-Laws which, upon being construed in the manner
provided in Section 9 of this Article, shall be contrary to or inconsistent with
any applicable provision of the Accountancy Corporation Board of the State of
California or other applicable law of the State of California or of the United
States shall not apply so long as said provisions of law shall remain in effect,
but such result shall not affect the validity or applicability of any other
portions of these By-Laws, it being hereby declared that these By-Laws would
have been adopted and each article, section, subsection, subdivision, sentence,
clause or phrase thereof, irrespective of the fact that any one or more
articles, sections, subsections, subdivisions, sentences, clauses or phrases is
or are illegal.
ARTICLE VI
INDEMNIFICATION
SECTION 1. DEFINITIONS. For the purposes of this Article, "agent",
includes any person who is or was a Director, officer, employee, or other agent
of the corporation, or is or was serving at the request of the corporation as a
Director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise, or was a
Director, officer, employee, or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" includes any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorneys' fees and expenses of establishing a right to indemnification pursuant
to law.
SECTION 2. EXTENT OF INDEMNIFICATION.
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(a) The corporation shall, to the maximum extent permitted by the
California General Corporation Law, indemnify any person who was or is a party
or is threatened to be made a party to any proceeding (other than an action by
or in the right of the corporation to procure a judgment in its favor) by reason
of the fact that the person is or was an agent of the corporation, against
expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the proceeding.
(b) The corporation shall, to the maximum extent permitted by the
California General Corporation Law, indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that the person is or was an agent of the corporation,
against expenses actually and reasonably incurred by that person in connection
with the defense or settlement of the action.
(c) The corporation shall, to the maximum extent permitted by the
California General Corporation Law, advance the expenses incurred by any agent
of the corporation in defending any proceeding prior to the final disposition of
the proceeding.
SECTION 3. INSURANCE. The corporation shall have power to purchase
and maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in that capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against that liability under the provisions of this
Article.
ARTICLE VII
AMENDMENTS
New By-Laws may be adopted or these By-Laws may be amended or repealed
by the approval of the outstanding shares or by the approval of the Board of
Directors; provided, however, that a by-law specifying or changing a fixed
number of Directors or the maximum or minimum number or changing from a fixed to
a variable Board of Directors or vice versa may only be adopted by approval of
the outstanding shares, complying, if applicable, with Section 212 of the
California General Corporation Law. If the Articles of Incorporation of the
corporation set forth the authorized number of Directors of the corporation, the
authorized number of Directors may be changed only by an amendment of the
Articles of Incorporation.
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(as amended through January 30, 1997)
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