IMPERIAL CREDIT COMMERCIAL MORTGAGE SECURITIZATION CORP.
BYLAWS
ARTICLE I
OFFICES
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Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the Corporation shall be located initially at 11601 Wilshire Blvd., Suite 2080,
Los Angeles, California, or at such other place or places as the Board of
Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices
at such places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
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Section 1. PLACE. All meetings of shareholders shall be held at the
principal executive office of the Corporation or at such other place within the
United States as shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. The Corporation shall hold an annual meeting of
its shareholders to elect directors and transact any other business within its
powers, either at 10:00 a.m. on the lst day of April in each year if not a legal
holiday, or at such other time on such other day as shall be set by the Board of
Directors. Except as otherwise provided by the Corporation's Articles of
Incorporation or statute, any business may be, considered at an annual meeting
without the purpose of the meeting having been specified in the notice. Failure
to hold an annual meeting does not invalidate the Corporation's existence or
affect any otherwise valid corporate acts.
Section 3. SPECIAL MEETINGS. The chairman of the Board of Directors, the
president, the chief executive officer or the Board of Directors may call
special meetings of the shareholders. Special meetings of shareholders shall
also be called by the secretary of the Corporation upon the written request of
the holders of shares entitled to cast not less than ten percent of all the
votes entitled to be cast at such meeting. Such request shall state the purpose
of such meeting and the matters proposed to be acted on at such meeting. The
secretary shall inform such shareholders of the reasonably estimated cost of
preparing and mailing notice of the meeting and, upon payment to the Corporation
by such shareholders of such costs, the secretary shall give notice to each
shareholder entitled to notice of the meeting.
Section 4. NOTICE. Not less than ten nor more than 60 days before each
meeting of shareholders, the secretary shall give to each shareholder entitled
to vote at such meeting and to each shareholder not entitled to vote who is
entitled to notice of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as otherwise may
be required by any statute, the purpose for which the meeting is called, either
by mail or by presenting it to such shareholder personally or by leaving it at
his residence or usual place of business. If mailed, such notice shall be deemed
to be given when deposited in the United States mail addressed to the
shareholder at his post office address as it appears on the records of the
Corporation, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Corporation may be
transacted at an annual meeting of shareholders without being specifically
designated in the notice, except such business as is required by any statute to
be stated in such notice. No business shall be transacted at a special meeting
of shareholders except as specifically designated in the notice.
Section 6. ORGANIZATION. At every meeting of shareholders, the chairman of
the Board of Directors, if there be one, shall conduct the meeting or, in the
case of vacancy in office or absence of the chairman of the Board of Directors,
one of the following officers present shall conduct the meeting in the order
stated: the chief executive officer, if there be one, the president, the vice
presidents in their order of rank and seniority (and if there be two or more
vice presidents of the same rank and seniority, such vice presidents in the
order designated by the president), or a chairman chosen by the shareholders
entitled to cast a majority of the votes which all shareholders present in
person or by proxy are entitled to cast, shall act as chairman, and the
secretary, or, in his absence, an assistant secretary, or in the absence of both
the secretary and assistant secretaries, a person appointed by the chairman
shall act as secretary.
Section 7. QUORUM. Unless the Corporation's Articles of Incorporation
provide otherwise, at a meeting of shareholders the presence in person or by
proxy of shareholders entitled to cast a majority of all the votes entitled to
be cast at the meeting shall constitute a quorum. Whether or not a quorum is
present, at meeting of shareholders convened on the date for which it was called
may be adjourned from time to time without further notice by a majority vote of
the shareholders present in person or by proxy to a date not more than 120 days
after the original record date. Any business which might have been transacted at
the meeting as originally notified may be deferred and transacted at any such
adjourned meeting at which a quorum shall be present.
Section 8. VOTING; PROXIES. Unless the Corporation's Articles of
Incorporation provide otherwise, each outstanding share of stock, regardless of
class, is entitled to one vote on each matter submitted to a vote at a meeting
of shareholders and majority of all the votes cast at a meeting at which a
quorum is present is sufficient to approve any matter which properly comes
before the meeting, except that a plurality of all votes cast, at a meeting at
which a quorum is present is sufficient to elect a director. In all elections
for directors, each share of stock may be voted for as many individuals as there
are directors to be elected and for whose election the share is entitled to be
voted. A shareholder may vote the stock the shareholder owns of record either in
person or by proxy. A shareholder may sign a writing authorizing another person
to act as proxy. Signing may be accomplished by the shareholder or the
shareholder's authorized agent signing the writing or causing the shareholder's
signature to be affixed to the writing by any reasonable means, including
facsimile signature. A shareholder may authorize another person to act as proxy
by transmitting, or authorizing the transmission of, a telegram, cablegram,
datagram, or other means of electronic transmission to the person authorized to
act as proxy or to a proxy solicitation firm, proxy support service
organization, or other person authorized by the person who will act as proxy to
receive the transmission. Unless a proxy provides otherwise, it is not valid
more than 11 months after its date. A proxy is revocable by a shareholder at any
time without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for so long as it is coupled with an interest. The interest with
which a proxy may be coupled includes an interest in the stock to be voted under
the proxy or another general interest in the Corporation or its assets or
liabilities.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. The Board of Directors may
adopt by resolution a procedure by which a shareholder may certify in writing to
the Corporation that any shares of stock registered in the name of the
shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who may
make the certification, the purpose for which the certification may be made, the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the stock transfer
books, the time after the record date or closing of the stock transfer books
within which the certification must be received by the Corporation, and any
other provisions with respect to the procedure which the Board of Directors
considers necessary or desirable. On receipt of such certification, the person
specified in the certification shall be regarded as, for the purposes set forth
in the certification, the shareholder of record of the specified stock in place
of the shareholder who makes the certification.
Section 10. INSPECTORS. At any meeting of shareholders, the chairman of the
meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all items, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
Section 11. NOMINATIONS AND PROPOSALS BY SHAREHOLDERS.
(a) ANNUAL MEETINGS OF SHAREHOLDERS. (1) Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the shareholders may be made at an annual meeting of shareholders (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors or (iii) by any shareholder of the Corporation who was a
shareholder of record both at the time of giving of notice provided for in this
Section 11(a) and at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 11(a).
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a)(1) of
this Section 11, the shareholder must have given timely notice thereof in
writing to the secretary of the Corporation and such other business must
otherwise be a proper matter for action by shareholders. To be timely, a
shareholder's notice shall be delivered to the secretary at the principal
executive offices of the Corporation not later than the close of business on the
30th day nor earlier than the close of business on the 60th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by more than
30 days or delayed by more than 60 days from such anniversary date or if the
Corporation has not previously held an annual meeting, notice by the shareholder
to be timely must be so delivered not earlier than the close of business on the
60th day prior to such annual meeting and not later than the close of business
on the later of the 30th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of a
postponement or adjournment of an annual meeting to a later date or time
commence a new time period for the giving of a shareholder's notice as described
above. Such shareholder's notice shall set forth (i) as to each person whom the
shareholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x) the name
and address of such shareholder, as they appear on the Corporation's books, and
of such beneficial owner and (y) the number of shares of each class of stock of
the Corporation which are owned beneficially and of record by such shareholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of
this Section 11 to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 45 days prior
to the first anniversary of the preceding year's annual meeting, a shareholder's
notice required by this Section 11(a) shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be conducted
at a special meeting of shareholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any shareholder of the
Corporation who is a shareholder of record both at the time of giving of notice
provided for in this Section II(b) and at the time of the special meeting, who
is entitled to vote at the meeting and who complied with the notice procedures
set forth in this Section 11(b). In the event the Corporation calls a special
meeting of shareholders for the purpose of electing one or more directors to the
Board of Directors, any such shareholder may nominate a person or persons (as
the case may be) for election to such position as specified in the Corporation's
notice of meeting, if the shareholder's notice containing the information
required by paragraph (a)(2) of this Section 11 shall be delivered to the
secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 60th day prior to such special meeting and not
later than the close of business on the later of the 30th day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting. In no event shall the
public announcement of a postponement or adjournment of a special meeting to a
later date or time commence a new time period for the giving of a shareholder's
notice as described above.
(c) GENERAL. (1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 11 shall be eligible to serve as directors
and only such business shall be conducted at a meeting of shareholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 11. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 11 and, if any proposed nomination or
business is not in compliance with this Section 11, to declare that such
nomination or proposal shall be disregarded.
(2) For purposes of this Section 11, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the
Corporation with the Securities Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 11, a
shareholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 11. Nothing in this Section 11 shall be deemed
to affect any rights of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 promulgated under the
Exchange Act.
Section 12. VOTING BY BALLOT. Voting on any question or in any election may
be viva voce unless the presiding officer shall order or any shareholder shall
demand that voting be by ballot.
ARTICLE III
DIRECTORS
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Section 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors, which may
exercise all of the powers of the Corporation, except such as are by law or by
the Corporation's Articles of Incorporation or by these Bylaws conferred upon or
reserved to the shareholders.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At each annual meeting the
shareholders shall elect directors to hold office until the next annual meeting
and until their successors are elected and qualified. At any regular meeting or
at any special meeting called for that purpose, a majority of the entire Board
of Directors may establish, increase or decrease the number of directors,
provided that the number thereof shall never be less than the minimum number
required by the California Corporations Code (the "Code"), nor more than 7, and
further provided that the tenure of office of a director shall not be affected
by any decrease in the number of directors.
Section 3. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held not less frequently than once per calendar quarter, with one such
regular meeting of the Board of Directors being held immediately after and at
the same place as the annual meeting of shareholders, no notice other than this
Bylaw being necessary for that meeting. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
California, for the holding of regular meetings of the Board of Directors
without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the chairman of the Board of Directors,
president or by a majority of the directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of California, as the place for
holding any special meeting of the Board of Directors called by them.
Section 5. CHAIRMAN OF THE BOARD OF DIRECTORS. The chairman of the Board of
Directors shall preside, if present, at all meetings of the Board of Directors
(if the chairman of the Board of Directors is not present at a meeting, then the
chief executive officer of the Corporation shall preside at such meeting). The
chairman of the Board of Directors shall see that all orders and resolutions of
the Board of Directors are carried into effect and shall from time to time
report to the Board of Directors all matters within his or her knowledge which
the interests of the Corporation may require to be brought to their notice. The
chairman of the Board of Directors shall also perform such other duties and he
or she may exercise such other powers as from time to time may be delegated to
him or her by the Board of Directors.
Section 6. VICE CHAIRMAN OF THE BOARD OF DIRECTORS. The vice chairman of
the Board of Directors shall perform such duties and may exercise such powers as
from time to time may be delegated to him or her by the Board of Directors.
Section 7. NOTICE. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, including a voice messaging
system or other system or technology designed to record and communicate
messages, telegraph, facsimile, electronic mail, or other electronic means at
least forty-eight (48) hours prior to the meeting. Notice by mail shall be given
at least four (4) days prior to the meeting and shall be deemed to be given when
deposited in the United States mail properly addressed, with postage thereon
prepaid. Telephone notice shall be deemed to be given when the director is
personally given such notice in a telephone call to which he is a party.
Facsimile transmission notice shall be deemed to be given upon completion of the
transmission of the message to the number given to the Corporation by the
director and receipt of a completed answer-back indicating receipt. Neither the
business to be transacted at, nor the purpose of, any annual, regular or special
meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these Bylaws.
Section 8. QUORUM. A majority of the entire Board of Directors shall
constitute a quorum for the transaction of business. In the absence of a quorum,
the directors present by majority vote and without notice other than by
announcement may adjourn the meeting from time to time until a quorum shall
attend. At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 9. VOTING. Unless applicable law, the Corporation's Articles of
Incorporation or these Bylaws requires a greater proportion, the action of a
majority of the directors present at a meeting at which a quorum is present is
the action of the Board of Directors.
Section 10. TELEPHONE MEETINGS. Directors may participate in a meeting by
means of a conference telephone, electronic video screen communication or
similar communications equipment if: (i) each director participating in the
meeting can communicate with all of the other members concurrently, (ii) each
director is provided the means of participating in all matters before the Board
of Directors, including the capacity to propose, or to interpose an objection,
to a specific action to be taken by the Corporation, and (iii) the Corporation
adopts and implements some means of verifying both of the following: (y) a
person communicating by telephone, video screen communication or similar
communications equipment is a director entitled to participate in the meeting,
and (z) all statements, questions, actions or votes were made by that director
and not by another person not permitted to participate as a director.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 11. ACTION BY DIRECTORS WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of the Board of Directors may be taken
without a meeting, if a unanimous written consent which sets forth the action is
signed by each member of the Board and filed with the minutes of proceedings of
the Board of Directors.
Section 12. VACANCIES. If for any reason any or all the directors cease to
be directors, such event shall not terminate the Corporation or affect these
Bylaws or the powers of the remaining directors hereunder (even if fewer than
three directors remain). Subject to the rights of the holders of any class of
stock separately entitled to elect one or more directors, the shareholders may
elect a successor to fill a vacancy on the Board of Directors which results from
the removal of a director. A director elected by the shareholders to fill a
vacancy which results from the removal of a director serves for the balance of
the term of the removed director. Subject to the rights of the holders of any
class of stock separately entitled to elect one or more directors, a majority of
the remaining directors, whether or not sufficient to constitute quorum, may
fill a vacancy on the Board of Directors which results from any cause. A
director elected by the Board of Directors to fill a vacancy serves until the
next annual meeting of shareholders and until his or her successor is elected
and qualifies. No decrease in the number of directors constituting the Board of
Directors shall affect the tenure of office of any director.
Section 13. COMPENSATION. Directors shall not receive any stated salary for
their services as directors, provided that directors may be reimbursed for
expenses of attendance, if any, at each annual, regular or special meeting of
the Board of Directors or of any committee thereof and for their expenses, if
any, in connection with each property visit and any other service or activity
they performed or engaged in as directors. Nothing herein contained shall be
construed to preclude any directors from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 14. LOSS OF DEPOSITS. No director shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or stock have been
deposited.
Section 15. SURETY BONDS. Unless required by law, no director shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 16. RELIANCE. Each director, officer, employee and agent of the
Corporation shall, in the performance of his duties with respect to the
Corporation, be fully justified and protected with regard to any act or failure
to act in reliance in good faith upon the books of account or other records of
the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants,
appraisers or other experts or consultants selected by the Board of Directors or
officers of the Corporation, regardless of whether such counsel or export may
also be a director.
ARTICLE IV
COMMITTEES
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Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may
appoint from among its members an Executive Committee, an Audit Committee, a
Compensation Committee, and other committees composed of two or more directors
and delegate to these committees any of the powers of the Board of Directors,
except the power to authorize dividends on stock, fill vacancies on the Board of
Directors, amend or repeal these Bylaws or adopt new bylaws, amend or repeal any
resolution of the Board of Directors which by its express terms is not so
amendable or repealable, appoint other committees of the Board of Directors or
the members thereof, issue stock other than as provided in the next sentence or
approve any action which requires shareholder approval. If the Board of
Directors has given general authorization for the issuance of stock providing
for or establishing a method or procedure for determining the maximum number of
shares to be issued, a committee of the Board, in accordance with that general
authorization or any stock option or other plan or program adopted by the Board
of Directors, may authorize or fix the terms of stock subject to classification
or reclassification and the terms on which any stock may be issued, including
all terms and conditions required or permitted to be established or authorized
by the Board of Directors.
Section 2. MEETINGS. Notice of committee meetings shall be given in the
same manner as notice for special meetings of the Board of Directors. A majority
of the members of the committee shall constitute a quorum for the transaction of
business at any meeting of the committee. The act of a majority of the committee
members present at a meeting shall be the act of such committee. The Board of
Directors may designate a chairman of any committee, and such chairman or any
two members of any committee may fix the time and place of its meeting unless
the Board shall otherwise provide. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another director to act in the place of such
absent member. Each committee shall keep minutes of its proceedings.
Section 3. TELEPHONE MEETINGS. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone,
electronic video screen communication or similar communications equipment if:
(i) each member participating in the meeting can communicate with all of the
other members concurrently, (ii) each member is provided the means of
participating in all matters before the committee Board of Directors, including
the capacity to propose, or to interpose an objection, to a specific action to
be taken by the committee, and (iii) the Corporation adopts and implements some
means of verifying both of the following: (y) a person communicating by
telephone, video screen communication or similar communications equipment is a
member of the committee entitled to participate in the meeting, and (z) all
statements, questions, actions or votes were made by that member and not by
another person not permitted to participate as a member of the committee.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 4. INFORMAL ACTION BY COMMITTEES. Any action required or permitted
to be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a unanimous written consent which sets forth the action is
signed by each member of the committee and such written consent is filed with
the minutes of proceedings of such committee.
Section 5. VACANCIES. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate members to replace any
absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
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Section 1. GENERAL PROVISIONS. The officers of the Corporation shall
include a president, a secretary and a chief financial officer and may include a
chairman of the board, a vice chairman of the board, a chief executive officer,
one or more senior vice presidents or vice presidents, a chief operating
officer, a treasurer, one or more assistant secretaries and one or more
assistant treasurers. In addition, the Board of Directors may from time to time
appoint such other officers with such powers and duties as they shall deem
necessary or desirable. The officers of the Corporation shall be chosen by the
Board of Directors and serve at the pleasure of the Board of Directors, subject
to the rights, if any, of an officer under any contract of employment, except
that the chief executive officer or president may appoint one or more vice
presidents, assistant secretaries and assistant treasurers. Any two or more
offices may be held by the same person. In its discretion, the Board of
Directors may leave unfilled any office except that of president, chief
financial officer and secretary. Appointment of an officer or agent shall not of
itself create contract rights between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation
may be removed by the Board of Directors if in its judgment the best interests
of the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Any officer
of the Corporation may resign at any time by giving written notice of his
resignation to the Board of Directors, the chairman of the Board of Directors,
the president or the secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall become
effective is not specified therein, immediately upon its receipts. The
acceptance of a resignation shall not be necessary to make it effective unless
otherwise stated in the resignation. Such resignation shall be without prejudice
to the contract rights, if any, of the officer, agent or Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of
Directors.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a
chief executive officer. In the absence of such designation, the president shall
be the chief executive officer of the Corporation. The chief executive officer
shall have general responsibility for implementation of the policies of the
Corporation, as determined by the Board of Directors, and for the management of
the business and affairs of the Corporation. If the chairman of the Board of
Directors is not present at the meeting of the Board of Directors then the chief
executive officer of the Corporation shall act as the chairman of the Board of
Directors at such meeting and shall preside over such meeting.
Section 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a
chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The chief financial officer shall have
the custody of the funds and securities of the Corporation and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. In the absence of a designation of a treasurer by the
Board of Directors, the chief financial officer shall be the treasurer of the
Corporation.
The chief financial officer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and Board of Directors, at the
regular meetings of the Board of Directors or whenever it may so require, an
account of all his transactions as chief financial officer and of the financial
condition of the Corporation.
If required by the Board of Directors, the chief financial officer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 7. PRESIDENT. The president or chief executive officer, as the case
may be, shall in general supervise and control all of the business and affairs
of the Corporation. In the absence of a designation of a chief operating officer
by the Board of Directors, the president shall be the chief operating officer.
He may execute any deed, mortgage, bond, contract or other instrument, except in
cases where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed; and in general shall
perform all duties incident to the office of president and such other duties as
may be prescribed by the Board of Directors from time to time.
Section 8. VICE PRESIDENTS. In the absence of the president or in the event
of a vacancy in such office, the senior vice president (or in the event there be
more than one senior vice president, the senior vice presidents in the order
designated at the time of their appointment or election or, in the absence of
any designation, then in the order of their appointment or elections or, if
there be no senior vice presidents, the vice president or vice presidents in the
order designated at the time of their appointment or election or, in the absence
of any designation, in the order of their appointment or election) shall perform
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; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the Board of Directors. The Board of Directors may designate one or more vice
presidents as executive vice president or as vice president for particular area
of responsibility.
Section 9. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Corporation; (d) keep a register of the post office address of each
shareholder which shall be furnished to the secretary by such shareholder; (e)
have general charge of the share transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by
the chief executive officer, the president or by the Board of Directors.
Section 10. TREASURER. The Board of Directors may designate a treasurer.
The treasurer shall have the responsibilities and duties as set forth by the
Board of Directors or the chief executive officer.
Section 11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Board of Directors. The assistant treasurers shall, if required
by the Board of Directors, give bonds for the faithful performance of their
duties in such sums and with such surety or sureties as shall be satisfactory to
the Board of Directors.
Section 12. SALARIES. The salaries and other compensation 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 or other compensation by reason of the
fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
Section 1. CONTRACTS. The Board of Directors may authorize any officer or
agent to enter into any contract or to execute and deliver any instrument in the
name of and on behalf of the Corporation and such authority may be general or
confined to specific instances. Any agreement, deed, mortgage, lease or other
document executed by one or more of the directors or by an authorized person
shall be valid and binding upon the Board of Directors and upon the Corporation
when authorized or ratified by action of the Board of Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or agent of the Corporation in
such manner as shall from time to time be determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
designate.
ARTICLE VII
STOCK
-----
Section 1. CERTIFICATES. Each shareholder is entitled to certificates which
represent and certify the shares of stock he or she holds in the Corporation.
Each stock certificate shall include on its face the name of the Corporation,
the name of the shareholder or other person to whom it is issued, and the class
of stock and number of shares it represents. It shall also include on its face
or back (a) a statement of any restrictions on transferability and (b) a
statement which provides in substance that the Corporation will furnish to any
shareholder on request and without charge a full statement of the designations
and any preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation is authorized to
issue, of the difference in the relative rights and preferences between the
shares of each series of a preferred or special class in series which the
Corporation is authorized to issue, to the extent they have been set, and of the
authority of the Board of Directors to set the relative rights and preferences
of subsequent series of a preferred or special class of stock and any
restrictions on transferability. Such request may be made to the secretary or to
its transfer agent. It shall be in such form, not inconsistent with law or with
the Corporation's Articles of Incorporation, as shall be approved by the Board
of Directors or any officer or officers designated for such purpose by
resolution of the Board of Directors. Each stock certificate shall be signed by
the chairman of the board, the president, or a senior vice-president, and
countersigned by the secretary, an assistant secretary, the treasurer, or an
assistant treasurer. Each certificate may be sealed with the actual corporate
seal or a facsimile of it or in any other form and the signatures may be either
manual or facsimile signatures. A certificate is valid and may be issued whether
or not an officer who signed it is still an officer when it is issued. A
certificate may not be issued until the stock represented by it is fully paid.
Section 2. TRANSFERS. Upon surrender to the Corporation or the transfer
agent of the Corporation of a stock certificate duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the
Corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
California.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of
Directors may direct a new certificate to be issued in place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance
of a new certificate, an officer designated by the Board of Directors may, in
his discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or the owner's legal
representative to advertise the same in such manner as he shall require and/or
to give bond, with sufficient surety, to the Corporation to indemnify it against
any loss or claim which may arise as a result of the issuance of a new
certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of
Directors may set, in advance, a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
determining shareholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
shareholders for any other proper purpose. Such date, in any case, shall not be
prior to the close of business on the day the record date is fixed and shall be
not more than 60 days and, in the case of a meeting of shareholders, not less
than ten days, before the date on which the meeting or particular action
requiring such determination of shareholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that
the stock transfer books shall be closed for a stated period but not longer than
20 days. If the stock transfer books are closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for
the determination of shareholders, (a) the record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day on which the notice of meeting is mailed
or the 30th day before the meeting, whichever is the closer date to the meeting;
and (b) the record date for the determination of shareholders entitled to
receive payment of a dividend or an allotment of any other rights shall be the
close of business on the day on which the resolution of the directors, declaring
the dividend or allotment of rights, is adopted.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an
original or duplicate share ledger containing the name and address of each
shareholder and the number of shares of each class held by such shareholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may
issue fractional stock or provide for the issuance of scrip, all on such terms
and under such conditions as they may determine. Notwithstanding any other
provision of the Corporation's Articles of Incorporation or these Bylaws, the
Board of Directors may issue units consisting of different securities of the
Corporation. Any security issued in a unit shall have the same characteristics
as any identical securities issued by the Corporation, except that the Board of
Directors may provide that for a specified period securities of the Corporation
issued in such unit may be transferred on the books of the Corporation only in
such unit.
ARTICLE VIII
ACCOUNTING YEAR
---------------
The fiscal year of the Corporation shall end on December 31st of each year.
The Board of Directors shall have the power from time to time to change the
fiscal year.
ARTICLE IX
DISTRIBUTIONS
-------------
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock
of the Corporation may be authorized and declared by the Board of Directors and
may be paid in cash, property or stock of the Corporation, subject to the
provisions of law and the Corporation's Articles of Incorporation.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
available for dividends or other distributions such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
-----------------
The Board of Directors may from time to time adopt, amend, revise or
terminate any policy or policies with respect to investments by the Corporation
as it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
----
Section 1. SEAL. The Board of Directors may authorize the adoption of a
seal by the Corporation. The seal shall contain the name of the Corporation and
the year of its incorporation and the words "Incorporated in California." The
Board of Directors may authorize one or more duplicate seals and provide for the
custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required
to affix its seal to a document, it shall be sufficient to meet the requirements
of any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
---------------------------------------
The Corporation shall indemnify and hold harmless and, without requiring a
determination of the ultimate entitlement to indemnification, pay reasonable
expenses in advance of the final disposition of any proceeding to (A) its
present and former directors, officers or employees, whether serving the
Corporation or at its request any other entity, to the full extent required or
permitted by the Code, including the advance of expenses under the procedures
and to the full extent permitted by law and (B) other agent of the Corporation
to such extent as shall be authorized by the Board of Directors or the
Corporation's Articles of Incorporation and be permitted by law. The foregoing
rights of indemnification shall not be exclusive of any other rights to which
those seeking indemnification may be entitled. No indemnification shall be made
by the Corporation unless its agent in the matter at issue was acting in good
faith and in a manner such agent reasonably believed to be in the best interests
of the Corporation or such other entity.
Any indemnification, or payment of expenses in advance of the final
disposition of any proceeding, shall be made promptly, and in any event within
60 days after the Corporation receives a written request therefor from the
director, officer, employee or agent entitled to seek indemnification (the
"Indemnified Party"). The right to indemnification and advances hereunder shall
be enforceable by the Indemnified Party in any court of competent jurisdiction,
if (i) the Corporation denies such request, in whole or in part, or (ii) no
disposition thereof is made within 60 days. The Indemnified Party's costs and
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action shall also be
reimbursed by the Corporation. It shall be a defense to any action for advance
for expenses that (a) a determination has been made that the facts then known to
those making the determination would preclude indemnification or (b) the
Corporation has not received both (i) an undertaking as required by law to repay
such advances in the event it shall ultimately be determined that the standard
of conduct has not been met and (ii) a written affirmation by the Indemnified
Party of such Indemnified Party's good faith belief that the standard of conduct
necessary for indemnification by the Corporation has been met.
The indemnification and advance of expenses provided by the Corporation's
Articles of Incorporation and these Bylaws shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advance of expenses
may be entitled under any law (common or statutory), or any agreement, vote of
shareholders or disinterested directors or other provision that is consistent
with law, both as to action in his or her official capacity and as to action in
another capacity while holding office or while employed by or acting as agent
for the Corporation, shall continue in respect of all events occurring while a
person was a director or officer after such person has ceased to be a director
or officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. The Corporation shall not be liable for any
payment under this Bylaw in connection with a claim made by a director or
officer to the extent such director or officer has otherwise actually received
payment under insurance policy, agreement, vote or otherwise, of the amounts
otherwise indemnifiable hereunder. All rights to indemnification and advance of
expenses under the Corporation's Articles of Incorporation and hereunder shall
be deemed to be a contract between the Corporation and each director or officer
of the Corporation who serves or served in such capacity at any time while this
Bylaw is in effect. Nothing herein shall prevent the amendment of this Bylaw,
provided that no such amendment shall diminish the rights of any person
hereunder with respect to events occurring or claims made before its adoption or
as to claims made after its adoption in respect of events occurring before its
adoption. Any repeal or modification of this Bylaw shall not in any way diminish
any rights to indemnification or advance of expenses of such director or officer
or the obligations of the Corporation arising hereunder with respect to events
occurring, or claims made, while this Bylaw or any provision hereof is in force.
Neither the amendment nor repeal of this Article XII, nor the adoption or
amendment of any other provision of these Bylaws or the Corporation's Articles
of Incorporation inconsistent with this Article XII, shall apply to or affect in
any respect the applicability of the preceding paragraph with respect to any act
or failure to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
----------------
Whenever any notice is required to be given pursuant to the Corporation's
Articles of Incorporation or these Bylaws or pursuant to applicable law, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at nor the purpose of any meeting need be set forth in the waiver of notice,
unless specifically required by statute. The attendance of any person at any
meeting shall constitute a waiver of notice of such meeting, except where such
person attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting is not lawfully called or
convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
-------------------
These Bylaws may be repealed, altered, amended or rescinded by the
affirmative vote of not less than a majority of all of the votes ordinarily
entitled to be cast in the election of directors, voting together as a single
class at a meeting of the shareholders called for that purpose (provided that
notice of such proposed repeal, alteration, amendment or rescission is included
in the notice of such meeting). In addition, except as otherwise provided in the
Corporation's Articles of Incorporation and in these Bylaws, the Board of
Directors may repeal, alter, amend or rescind these Bylaws by vote of a majority
of the Board of Directors at a meeting held in accordance with the provisions of
these Bylaws.