EXHIBIT 3.II
RESTATED
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BY-LAWS
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OF
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NAPA NATIONAL BANCORP
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A CALIFORNIA CORPORATION
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ARTICLE 1
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Meetings of Shareholders
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Section 1.1 Place of Meetings. All meetings of
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shareholders shall be held at the principal administrative
office of the corporation or at any other place within the
State of California which may be designated either by the board
of directors or by the shareholders in accordance with these
by-laws.
Section 1.2 Annual Meetings. The Annual Meeting of
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Shareholders shall be held on the second Tuesday in May in each
year or on such other date as the board of directors by
resolution may designate, at which time the shareholders shall
elect a board of directors and transact such other business as
may properly be brought before the meeting.
Section 1.3 Special Meetings. Special meetings of the
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shareholders, for the purpose of taking any action which is
within the powers of the shareholders, may be called at any
time by the chairperson of the board, the chief executive
officer, the president, the board of directors or the holders
of shares entitled to cast not less than ten percent (10%) of
the votes at the meeting.
Section 1.4 Notice of Meetings of Shareholders.
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(a) Written notice of each meeting of shareholders,
whether annual or special, shall be given to each shareholder
entitled to vote thereat, either personally or by mail or other
means of written communication, charges prepaid, addressed to
such shareholder at the address of such shareholder appearing
on the books of the corporation or given by such shareholder to
the corporation for the purpose of 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 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 administrative office of the corporation for a period
of one (1) year from the date of the giving of the notice to
all other shareholders. If no address appears on the books of
the corporation or is given by the shareholder to the
corporation for the purpose of notice, notice shall be deemed
to have been given to such shareholder if sent by mail or other
means of written communication addressed to the place where the
principal administrative office of the corporation is located,
or if published at least once in a newspaper of general
circulation in the county in which the principal administrative
office is located.
(b) All such notices shall be given not less than
tell (10) days nor more than sixty (60) days before the meeting
to each shareholder entitled to vote thereat. Any such notice
shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such
notice in accordance with the foregoing provisions, executed by
the secretary, assistant secretary or any transfer agent of the
corporation, shall be prima facie evidence of the giving of the
notice.
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(c) All such notices shall state the place, date and
hour of such meeting. In the case of a special meeting such
notice shall also state the general nature of the business to
be transacted at such meeting, and no other business may be
transacted thereat. In the case of an annual meeting, such
notice shall also state those matters which the board of
directors at the time of the mailing of the notice intends to
present for action by the shareholders.
(d) 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 management for
election.
(e) Upon request in writing that a special meeting of
shareholders be called for any proper purpose, directed to the
chairperson of the board, chief executive officer, president,
vice president or secretary by any person (other than the
board) entitled to call a special meeting of shareholders, the
officer forthwith shall cause notice to be given to the
shareholders entitled to vote that a meeting will be held at a
time requested by the person or persons calling the meeting,
not less than thirty-five (35) nor more than sixty (60) days
after receipt of the request.
Section 1.5 Quorum. The presence in person or by
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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 1.6 Adjourned Meetings and Notice Thereof.
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(a) Any shareholders' meeting, annual or special,
whether or not a quorum is present, may be adjourned from time
to time by vote of a majority of the shares, the holders of
which are either present in person or by proxy thereat, but in
the absence of a quorum, no other business may be transacted at
any such meeting, except as provided in Section 1.5 herein.
(b) When a shareholders' meeting is adjourned to
another time or place, except as provided in this subsection
(b), notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the
corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for
more than forty-five (45) days or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 1.7 Nomination of Directors. Nominations for
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election of members of the board of directors may be made by
the board of directors or by any shareholder of any outstanding
class of capital stock of the corporation entitled to vote for
the election of directors. Notice of intention to make any
nominations (other than for persons named in the notice of the
meeting at which such nomination is to be made) shall be made
in writing and shall be delivered or mailed to the president of
the corporation by the later of the close of business twenty-
one (21) days prior to any meeting of shareholders called for
the election of directors or ten (10) days after the date of
mailing of notice of the meeting to shareholders. Such
notification shall contain the following information to the
extent known to the notifying shareholder: (a) the name and
address of each proposed nominee; (b) the number of shares of
capital stock of the corporation owned by each proposed
nominee; (c) the name and residence address of the notifying
shareholder; (d) the number of shares of capital stock of the
corporation owned by the notifying shareholder; (e) with the
written consent of the proposed nominee, a copy of which shall
be furnished with the notification, whether the proposed
nominee has ever
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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. The notice shall be signed by the nominating
shareholder and by the nominee. Nominations not made in accordance
herewith shall be disregarded by the chairperson of the meeting, and
upon his or her instructions, the inspectors of election shall disregard
all votes cast for each such nominee. The restrictions set forth in this
paragraph shall not apply to nomination of a person to replace a
proposed nominee who has died or otherwise become incapacitated to serve
as a director between the last day for giving notice hereunder 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. A copy of this paragraph shall be set forth in a notice to
shareholders of any meeting at which directors are to be elected.
Section 1.8 Voting and Record Dates.
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(a) Voting Rights of Shares and Shareholders.
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(i) Except as provided in section 708 of the
California General Corporation Law (election of directors) and
except as may be otherwise provided in the articles of
incorporation of this corporation, each outstanding share,
regardless of class, shall be entitled to one vote on each
matter submitted to a vote of shareholders.
(ii) Any holder of shares entitled to vote on any
matter may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against
the proposal, other than elections to office; but, if the
shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect
to all shares such shareholder is entitled to vote.
(b) Record Date Requirements.
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(i) In order that the corporation may determine the
shareholders entitled to notice of any meeting or to vote or
entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise
any rights in respect of any other lawful action, the board may
fix, in advance, a record date, which shall not be more than
sixty (60) nor less than ten (10) days prior to the date of
such meeting nor more than sixty (60) days prior to any other
action.
(ii) If no record date is fixed:
(A) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day preceding the day on which
notice is given or, if notice is waived, at the close of business on
the business day next preceding the day on which the meeting is
held.
(B) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when
no prior action by the board has been taken, shall be the day on
which the first written consent is given.
(C) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the
board adopts the resolution relating thereto, or the sixtieth (60th)
day prior to the date of such other action, whichever is later.
(iii) A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting unless the board fixes a new record date for the
adjourned meeting, but the board shall fix a new record date if the meeting
is adjourned for more than forty-five (45) days from the date set for the
original meeting.
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(iv) Shareholders as of the record date are entitled
to notice and to vote or to receive the dividend, distribution
or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books
of the corporation after the record date, except as otherwise
provided in the articles of incorporation of this corporation
or by agreement or in the California General Corporation Law.
(c) Voting of Shares by Fiduciaries, Receivers,
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Pledgeholders and Minors.
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(i) Subject to subsection 1.8(d)(iii), shares held by
an administrator, executor, guardian, conservator or custodian
may be voted by such holder either in person or by proxy,
without a transfer of such shares into the holder's name; and
shares standing in the name of a trustee may be voted by the
trustee, either in person or by proxy, but no trustee shall be
entitled to vote shares held by such trustee without a transfer
of such shares into the trustee's name.
(ii) Shares standing in the name of a receiver may be
voted by such receiver; and shares held by or under the control
of a receiver may be voted by such receiver without the
transfer thereof into the receiver 5 name if authority to do so
is contained in the order of the court by which such receiver
was appointed.
(iii) Subject to the provisions of Section 1.11
herein and except where otherwise agreed in writing between the
parties, a shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred.
(iv) Shares standing in the name of a minor may be
voted and the corporation may treat all rights incident thereto
as exercisable by the minor, in person or by proxy, whether or
not the corporation has notice, actual or constructive, of the
nonage, unless a guardian of the minor's property has been
appointed and written notice of such appointment given to the
corporation.
(d) Voting of Shares by Other Corporations.
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(i) Shares of this corporation standing in the name
of another corporation, domestic or foreign, may be voted by
such officer, agent or proxyholder as the by-laws of such other
corporation may prescribe or, in the absence of such provision,
as the board of such other corporation may determine or, in the
absence of such determination, by the chairperson of the board,
president or any vice president of such other corporation, or
by any other person authorized to do so by the chairperson of
the board, president or any vice president of such other
corporation. Shares which are purported to be voted or any
proxy purported to be executed in the name of a corporation
(whether or not any title of the person signing is indicated)
shall be presumed to be voted or the proxy executed in
accordance with the provisions of this subdivision, unless the
contrary is shown.
(ii) Shares of this corporation owned by a subsidiary shall
not be entitled to vote on any matter.
(iii) Shares of this corporation held by this
corporation in a fiduciary capacity, and any of its shares held
in a fiduciary capacity by its subsidiary, shall not be
entitled to vote on any matter, except to the extent that the
settlor or beneficial owner possesses and exercises a right to
vote or to give the corporation binding instructions as to how
to vote such shares.
(e) Voting of Shares Owned of Record by Two (2) or
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More Persons.
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(i) If shares stand of record in the names of two (2)
or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, husband and wife as community
property, tenants by the entirety, voting trustees, persons
entitled
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to vote under a shareholder voting agreement or otherwise, or if two
(2) or more persons (including proxyholders) have the same
fiduciary relationship respecting the same shares, unless the
secretary of the corporation is given written notice to the
contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it
is so provided, their acts with respect to voting shall have
the following effect:
(A) If only one (1) votes, such act binds all;
(B) If more than one (1) votes, the act of the majority so
voting binds all;
(C) If more than one (1) votes, but the vote is evenly split
on any particular matter, each faction may vote the securities in
question proportionately.
If the instrument so filed or the registration of the shares shows that
any such tenancy is held in unequal interests, a majority or even split
for the purpose of this section shall be a majority or even split in
interest.
(f) Election of Directors; Cumulative Voting.
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(i) Every shareholder complying with subsection
1.8(f)(ii) and entitled to vote at any election of directors
may cumulate such shareholder's votes. In such event, each
shareholder shall be entitled to a number of votes equal to the
number of directors to be elected at the election multiplied by
the number of votes to which the shareholder's shares are
entitled.
(ii) No shareholder shall be entitled to cumulate
votes (i.e., cast for any one (1) or more candidates a number
of votes greater than the number of the shareholder's shares)
unless such candidate's or candidates' names have been placed
in nomination prior to the voting and the shareholder has given
notice at the meeting prior to the voting of the shareholder's
intention to cumulate the shareholder's votes. If any one (1)
shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination.
(iii) 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,
are elected.
(iv) Elections for directors need not be by ballot
unless a shareholder demands election by ballot at the meeting
and before the voting begins.
Section 1.9 Waiver of Notice and Consent of Absentees.
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The transactions of any meeting of shareholders, either annual or
special, however called and noticed and wherever held, are as valid as
though transacted at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy, and if, either
before or after the meeting, each of the persons entitled to vote, not
present in person or by proxy, signs a written waiver of notice or a
consent to the holding of the meeting, or an approval of the minutes
thereof. All such waivers, consents and approvals shall be filed with
the corporate records or made part of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a waiver of notice
of 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 law or these by-laws to be included in the notice but which
was not so included, if such objection is expressly made at the meeting;
provided, however, that any person making such objection at the
beginning of the meeting or to the consideration of matters required to
be but not included in the notice may orally withdraw such objection at
the meeting or thereafter waive such objection by signing a written
waiver thereof or a consent to the holding of
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the meeting or the consideration of the matter or an approval of
the minutes of the meeting. Neither the business to be transacted
at, nor the purpose of, any annual or special meeting of
shareholders needs to be specified in any written waiver of
notice, except that the general nature of a proposal to amend
the articles of incorporation of the corporation and the
proposals specified in subparagraphs (A) through (E) of
subsection 1.10(c)(i) shall be so stated.
Section 1.10 Action Without A Meeting.
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(a) Directors may be elected without a meeting by a
consent in writing, setting forth the action so taken) signed
by all of the persons who would be entitled to vote for the
election of directors; provided that a director may be elected
at any time to fill a vacancy not filled by the directors by
the written consent of persons holding a majority of the
outstanding shares entitled to vote for the election of
directors.
(b) Any other action which, under any provision of
the California General Corporation Law may be taken at any
annual or special meeting of the shareholders, may be taken
without a meeting, and without prior notice except as
hereinafter set forth, if a consent in writing, setting forth
the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting to which all shares entitled to vote thereon were
present and voted.
(c) Unless the consents of all shareholders entitled
to vote have been solicited in writing:
(i) Notice of any shareholder approval without a
meeting, by less than unanimous written consent, of (A) a
contract or other transaction between the corporation and one
or more of its directors or any corporation, firm or
association in which one or more of its directors has a
material financial interest or is also a director, (B)
indemnification of an agent of the corporation as authorized by
the articles of incorporation of the corporation, (C) a
reorganization of the corporation as defined in section 181 of
the California General Corporation Law, (D) an election to wind
up and dissolve the corporation, or (E) the distribution of
shares, obligations or securities of any other corporation or
assets other than money which is not in accordance with the
liquidation rights of preferred shares if the corporation is in
the process of winding up, shall be given at least ten (10)
days before the consummation of the action authorized by such
approval; and
(ii) Prompt notice shall be given of the taking of
any other corporate action, including the filling of a vacancy
on the board of directors, approved by shareholders without a
meeting, by less than unanimous written consent, to those
shareholders entitled to vote who have not consented in
writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 1.4 herein.
(d) Any shareholder giving a written consent, or the
shareholder's proxyholders, or a transferee of the shares or a
personal representative of the shareholder or their respective
proxyholders, may revoke the consent by a writing received by
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 of the corporation, but may not
do so thereafter. Such revocation is effective upon its receipt
by the secretary of the corporation.
Section 1.11 Proxies.
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(a) Every person entitled to vote shares or execute
consents may authorize another person or persons to act by
proxy with respect to such vote or consent. Any proxy
purporting to be executed in accordance with the provisions of
this Section 1.11 shall be presumptively valid.
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(b) No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy continues in full force and
effect until revoked by the person executing it prior to the
vote pursuant thereto, except as otherwise provided in this
Section 1.11. Such revocation may be effected by a writing
delivered to the corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or by attendance at a
meeting and voting in person by, the person executing the
proxy. The dates contained on the forms of proxy presumptively
determine the order of execution, regardless of the postmark
dates on the envelopes in which they are mailed.
(c) A proxy is not revoked by the death or incapacity
of the maker unless, before the vote is counted, written notice
of such death or incapacity is received by the corporation.
(d) Except when other provision shall have been made
by written agreement between the parties, the recordholder of
shares that such person holds as pledgee or otherwise as
security or which belong to another shall issue to the pledgor
or the owner of such shares, upon demand therefor and payment
of necessary expenses thereof, a proxy to vote or take other
action thereon.
(e) A proxy which states that it is irrevocable is
irrevocable for the period specified therein (notwithstanding
Section 1.11(b)) when it is held by any of the following or a
nominee of any of the following:
(i) A pledgee;
(ii) A person who has purchased or agreed to purchase
or holds an option to purchase the shares of a person who has
sold a portion of such person's shares in the corporation to
the maker of the proxy;
(iii) A creditor or creditors of the corporation or
the shareholder who extended or continued credit to the
corporation or the shareholder in consideration of the proxy if
the proxy states that it was given in consideration of such
extension or continuation of credit and the name of the person
extending or continuing credit;
(iv) A person who has contracted to perform services
as an employee of the corporation, if a proxy is required by
the contract of employment and if the proxy states that it was
given in consideration of such contract of employment, the name
of the employee and the period of employment contracted for; or
(v) A person designated by or under an agreement
under section 706 of the California General Corporation Law.
Notwithstanding the period of irrevocability
specified, the proxy becomes revocable when the pledge is
redeemed, the option or agreement to purchase is terminated,
the seller no longer owns any shares of the corporation or
dies, the debt of the corporation or the shareholder is paid,
the period of employment provided for in the contract of
employment has terminated or the agreement under section 706 of
the California General Corporation Law has terminated. In
addition to the foregoing subdivisions (i) through (v), a proxy
may be made irrevocable (notwithstanding Section 1.11(b) above)
if it is given to secure the performance of a duty or to
protect a title, either legal or equitable, until the happening
of events which, by its terms, discharge the obligations
secured by it.
(f) A proxy may be revoked, notwithstanding a
provision making it irrevocable, by a purchaser of shares
without knowledge of the existence of the provision, unless the
existence of the proxy and its irrevocability appears on the
certificate representing such shares.
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Section 1.12 Inspectors of Election.
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(a) In advance of any meeting of shareholders, the
board of directors may appoint any persons as inspectors of
election to act at such meeting or any adjournment thereof. If
inspectors of election are not so appointed, or if any person
so appointed fails to appear or refuses to act, the chairperson
of any such meeting may, and on the request of any shareholder
or his or her proxy shall, make such appointment at the.
meeting. The number of inspectors shall be either one (1) or
three (3). If appointed at a meeting on the request of one (1)
or more shareholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one
(1) or three (3) inspectors are to be appointed.
(b) The inspectors of election shall determine the
number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum
and the authenticity, validity and effect of proxies, receive
votes, ballots or consents, hear and determine all challenges
and questions in any way arising in connection with the right
to vote, count and tabulate all votes and consents, determine
when the polls shall close, determine the result and do such
acts as may be proper to conduct the election or vote with
fairness to all shareholders.
(c) The inspectors of election shall perform their
duties impartially, in good faith, to the best of their ability
and as expeditiously as is practical. If there are three (3)
inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the
inspectors of election is prima facie evidence of the facts
stated therein.
ARTICLE 2
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Directors
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Section 2.1 Powers. Subject to the California General
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Corporation Law and any limitations in the articles of
incorporation of this corporation relating to action requiring
shareholder authorization or approval, 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.
Section 2.2 Number and Qualification of Directors.
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The number of directors of the corporation shall not be less
than eight (8) nor more than fifteen (15) until changed by a
by-law amending this Section 2.2 duly adopted by the vote or
written consent of holders of a majority of the outstanding
shares entitled to vote. The exact number of directors shall be
fixed from time to time, within the limits specified in this
Section 2.2, by a by-law or amendment thereof or by a
resolution duly adopted by a vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a
quorum is present, by the written consent of the holders of a
majority of the outstanding shares entitled to vote, or by
resolution of the board of directors.
Section 2.3 Election and Term of Office. The
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directors shall be elected at each annual meeting of
shareholders, but if any such annual meeting is not held or the
directors are not elected at any annual meeting, the directors
may be elected at any special meeting of shareholders held for
that purpose or by written consent in accordance with Section
1.10. Each director, including a director elected to fill a
vacancy, shall hold office until the expiration of the term for
which elected and until his or her successor has been elected
and qualified, subject to the California General Corporation
Law and the provisions of these by-laws with respect to
vacancies on the board.
Section 2.4 Resignation and Removal of Directors. Any
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director may resign effective upon giving written notice to the
chairperson of the board, the president, the secretary, or the
board of directors of the corporation, unless the notice
specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a
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future time, a successor may be elected to take office when the
resignation becomes effective. 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. Any or all of the directors may
be removed without cause if such removal is approved by the affirmative
vote of a majority of the outstanding shares entitled to vote; provided
that no director may be removed (unless the entire board is removed)
when the votes cast against removal (or, if such action is taken by
written consent, the shares held by persons not consenting in writing to
such removal) would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were
cast (or, if such action is taken by written consent, all shares
entitled to vote were voted) and the entire number of directors
authorized at the time of the director's most recent election were then
being elected. No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration of his
or her term of office.
Section 2.5 Vacancies. A vacancy or vacancies on the
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board of directors shall exist on the death, resignation or
removal of any director, or if the board declares vacant the
office of a director if he or she is declared of unsound mind
by an order of court or is convicted of a felony, or if the
authorized number of directors is increased, or if the
shareholders fail to elect the full authorized number of
directors to be voted for at any shareholders' meeting at which
an election of directors is held. Vacancies on the board of
directors (except vacancies created by the removal of a
director) may be filled by a majority of the directors then in
office, whether or not less than a quorum, or by a sole
remaining director. The shareholders may elect a director at
any time to fill any vacancy not filled by the directors or
which occurs by reason of the removal of a director. Any such
election by written consent of shareholders shall require the
consent of a majority of the outstanding shares entitled to
vote. If the resignation of a director states that it is to be
effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
Section 2.6 Place of Meetings. Regular and special
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meetings of the board of directors may be he[d at any place
within the State of California which has been designated in the
notice of the meeting, or, if not stated in the notice or there
is no notice, designated by resolution or by written consent of
all of the members of the board 3f directors. If the place of a
regular or special meeting is not designated in the notice or
fixed by a resolution of the board or consented to in writing
by all members of the board of directors, it shall be held at
the corporation's principal administrative office.
Section 2.7 Organizational and Regular Meetings.
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Immediately following each annual shareholders' meeting, the
board of directors shall hold an organizational meeting to
elect officers and transact other business. Such meeting shall
be held at the same place as the annual meeting or such other
place as shall be fixed by the board of directors. The regular
meetings of the board of directors shall be held at such times
and places as are fixed by the board. Call and notice of
regular meetings of the board of directors shall not be
required and is hereby dispensed with.
Section 2.8 Special Meetings. Special meetings of the
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board of directors for any purpose or purposes may be called at
any time by the chairperson of the board, the chief executive
officer, the president, any vice president, the secretary or
any two directors. Notice of the time and place of special
meetings shall be delivered personally to each director or by
telephone or telegraph or sent to the director by mail. In case
notice is given by mail or telegram, it shall be sent, charges
prepaid, addressed to the director at his or her address
appearing on the corporate records or if it is not on these
records or is not readily ascertainable, at the place where the
meetings of the directors are regularly held. If notice is
delivered personally or given by telephone or telegraph, it
shall be given or delivered to the telegraph office at least
twenty-four (24) hours before the meeting. If notice is mailed
it shall be deposited in the United States mail at least four
(4) days before the meeting. Such mailing, telegraphing or
delivery, personally or by telephone, as provided in this
Section 2.9, shall be due, legal and personal notice to such
director. A notice or waiver of notice need not specify the
purpose of any regular or special meeting of the board of
directors.
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Section 2.9 Quorum. A majority of the authorized
------
number of directors shall constitute a quorum of the board of
directors for the transaction of business. Every act or
decision done or made by a majority of the directors present at
a meeting duly held at which a quorum is present is the act of
the board of directors, subject to the provisions of section
310 and subdivision (e) of section 317 of the California
General Corporation Law. A meeting at which a quorum is
initially present may continue to transact business
notwithstanding the withdrawal of directors, provided that any
action taken is approved by at least a majority of the required
quorum for such meeting.
Section 2.10 Waiver of Notice or Consent. The
---------------------------
transactions of any meeting of the board of directors, however
called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and
notice, if a quorum is present and if, either before or after
the meeting, each of the directors not present or who though
present has prior to the meeting or at its commencement
protested the lack of proper notice to him or her, signs a
written waiver of notice, or a consent to holding the meeting,
or an approval of the minutes of the meeting. All such waivers,
consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. A notice
or waiver of notice need not specify the purpose of any regular
or special meeting of the board of directors. Notice of a
meeting need not be given to any director who signs a waiver of
notice, whether before or after the meeting, or who attends the
meeting without protesting, prior to or at its commencement,
the lack of notice to such director.
Section 2.11 Adjournment. A majority of the directors
-----------
present, whether or not a quorum is present, may adjourn any
meeting to another time and place. If the meeting is not
adjourned for more than 24 hours, notice of the adjournment to
another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the
time of the adjournment.
Section 2.12 Meeting by Conference Telephone. Members
-------------------------------
of the board of directors may participate in a meeting through
use of conference telephone or similar communications
equipment, as long as all members participating in such meeting
can hear one another. Participation by directors in a meeting
in the manner provided in this Section 2.13 constitutes
presence in person at such meeting.
Section 2.13 Action Without a 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 written consent or consents shall be filed
with the minutes of the proceedings of the board of directors.
Such action by written consent shall have the same force and
effect as a unanimous vote of such directors.
Section 2.14 Fees and Compensation. Directors and
---------------------
members of the committees may receive such compensation, if
any, for their services, and such reimbursement for expenses,
as may be fixed or determined by resolution of the board of
directors.
Section 2.15 Committees. The board of directors may,
----------
by resolution adopted by a majority of the authorized number of
directors, designate one (1) or more committees, each
consisting of two (2) or more directors, to serve at the
pleasure of the board of directors. The board of directors may
designate one (1) or more directors as alternate members of any
committee, who may replace any absent member at any meeting of
the committee. The board of directors may delegate to any such
committee, to the extent provided in such resolution, any of
the board of directors' powers and authority in the management
of the corporation's business and affairs, except such powers
and authority that conflict with the California General
Corporation Law or the corporation's articles of incorporation.
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The board of directors may prescribe appropriate
rules, not inconsistent with these by-laws, by which
proceedings of any such committee shall be conducted. The
provisions of these by-laws relating to the calling of meetings
of the board of directors, notice of meetings of the board of
directors and waiver of such notice, adjournments of meetings
of the board of directors, written consents to the board of
directors meetings and approval of minutes, action by the board
of directors by consent in writing without a meeting, the place
of holding such meetings, meetings by conference telephone or
similar communications equipment, the quorum for such meetings,
the vote required at such meetings and the withdrawal of
directors after commencement of a meeting shall apply to
committees of the board of directors and action by such
committees. In addition, any member of the committee designated
by the board of directors as the chairperson or as secretary of
the committee or any two members of a committee may call
meetings of the committee. Regular meetings of any committee
may be held without notice if the time and place of such
meetings are fixed by the board of directors or the committee.
Section 2.16 Indemnification of Agents. The board of directors
-------------------------
may authorize the Corporation to indemnify an agent, as defined in
section 317 of the California Corporations Code, to the fullest extent
permitted by law, including, but not limited to, the California General
Corporation Law.
(a) Indemnification of Directors and Officers. Each person
-----------------------------------------
who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or
proceeding, formal or informal, whether brought in the name of the
corporation or otherwise and whether of a civil, criminal, administrative
or investigative nature (hereinafter a 'proceeding'), by reason of the
fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is an
alleged action or inaction in an official capacity or in any other
capacity while serving as a director or officer, shall, subject to the
terms of any agreement between the corporation and such person, be
indemnified and held harmless by the corporation to the fullest extent
permissible under California law and the corporation's Articles of
Incorporation, against all costs, charges, expenses, liabilities and
losses (including attorneys' fees, judgments, fines, ERISA excise tax or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that (a) the corporation
shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the board of directors of
the corporation, and (b) the corporation shall indemnify such person
seeking indemnification in connection with a proceeding (or part thereof)
other than a proceeding by or in the name of the corporation to procure a
judgment in its favor only if any settlement of such a proceeding is
approved in writing by the corporation, and (c) no such person shall be
indemnified (i) except to the extent that the aggregate of losses to be
indemnified exceeds the amount of such losses for which the director or
officer is paid pursuant to any directors' and officers' liability
insurance policy maintained by the corporation; (ii) on the account of
any suit in which judgment is rendered against such person for an
accounting of profits made from the purchase or sale by such person of
securities of the corporation pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law; (iii) if a court
of competent jurisdiction finally determines that any indemnification
hereunder is unlawful; (iv) for any acts or omissions or transactions
from which a director may not be relieved of liability as set forth in
the exception to paragraph 10 of Section 204(a) of the General
Corporation Law of the State of California ('GCL'); and (v) as to
circumstances in which indemnity is expressly prohibited by Section 317
of the GCL. The right to indemnification conferred in this Section 2.16
shall be a contract right and shall include the right to be paid by the
corporation expenses incurred in defending any proceeding in advance of
its final disposition; provided, however, that if
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the GCL requires the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition
of a proceeding, such advances shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts to the corporation if it shall be
ultimately determined that such person is not entitled to be indemnified.
(b) Indemnification of Employees and Agents. A person
---------------------------------------
who was or is a party or is threatened to be made a party to or
is involved in any proceedings by reason of the fact that he or
she is or was an employee or agent of the corporation or is or
was serving at the request of the corporation as an employee or
agent of another enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is
an alleged action or inaction in an official capacity or in any
other capacity while serving as an employee or agent, may,
subject to the terms of any agreement between the corporation
and such person, be indemnified and held harmless by the
corporation to the fullest extent permitted by California law
and the corporation's Articles of Incorporation, against all
costs, charges, expenses, liabilities and losses (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement),
reasonably incurred or suffered by such person in connection
therewith. The immediately preceding sentence is not intended
to be and shall not be considered to confer a contract right on
any employee or agent (other than directors and officers) of
the corporation.
(c) Action to Enforce Rights Under this Section. If a
-------------------------------------------
claim under this Section 2.16 is not paid in full by the
corporation within 30 days after a written claim has been
received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall also be entitled to be paid the
expense of prosecuting such claim. Neither the failure of the
corporation (including its board of directors, independent
legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is permissible in the
circumstances because he or she has met the applicable standard
of conduct, if any, nor an actual determination by the
corporation (including it board of directors, independent..
legal counsel, or its shareholders) that the claimant has not
met the applicable standard of conduct, shall be a defense to
the action or create a presumption for the purpose of an action
that the claimant has not met the applicable standard of
conduct.
(d) Entitlement to Expenses. Notwithstanding any
-----------------------
other provision of this Section 2.16, to the extent that a
director, officer or agent has been successful on the merits or
otherwise (including the dismissal of an action without
prejudice or the settlement of a proceeding or action without
admission of liability) in defense of any proceeding referred
to in this Section 2.16 or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred in
connection therewith.
(e) Non-Exclusivity. The right to indemnification
---------------
provided by this Section 2.16 shall not be exclusive of nor
limit any other right which any person may have or hereafter
acquire under any statute, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
(f) Insurance. The corporation may maintain
---------
insurance, to the extent reasonably available, at its expense,
to protect itself and any director, officer, employee or agent
of the corporation or another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit
plans, against any expense, liability or loss, whether or not
the corporation would have the power to indemnify such person
against such expense, liability or loss under the law. The
corporation may create a trust fund, grant a security interest
or use other means (including, without limitation, a letter of
credit) to ensure the payment of such sums as may become
necessary to effect indemnification as provided herein.
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(g) Expenses as a Witness. To the extent that any
---------------------
director, officer, employee or agent of the corporation is by
reason of such position, or a position with another entity at
the request of the corporation, a witness in any action, suit
or proceeding, he or she shall be indemnified against all costs
and expenses actually and reasonably incurred by him or her on
his or her behalf in connection therewith.
(h) Indemnity Agreements. The corporation may,
--------------------
without shareholder approval, enter into agreements with any
director, officer, employee or agent of the corporation or any
person who serves at the request of the corporation as a
director, officer, trustee, partner, employee or agent of
another corporation or a partnership, joint venture, trust or
other enterprise, including employee benefit plans, providing
for indemnification to the fullest extent permissible under the
law and the corporation's Articles of Incorporation.
(i) Severability. Each and every paragraph, sentence,
------------
term and provision of this Section 2.16 is separate and
distinct so that if any paragraph, sentence, term or provision
hereof shall be held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not affect
the validity or unenforceability of any other paragraph,
sentence, term or provision hereof. To the extent required, any
paragraph, sentence, term or provision of this Section 2.16 may
be modified by a court of competent jurisdiction to preserve
its validity and to provide the claimant with, subject to the
limitations set forth in this Section 2.16 and any agreement
between the corporation and claimant, the broadest possible
indemnification permitted under applicable law.
(j) Entities Merged with this Corporation. No
-------------------------------------
provision of this Section 2.16 shall be applicable and unless
otherwise required by California law indemnification shall not
be permitted in respect of any acts, omissions or transactions
of any person while serving as a director, officer, employee or
agent of any corporation which shall have been or shall
hereafter be merged into or otherwise combined with this
corporation, or of another enterprise in respect of which such
person was serving as a director, officer, employee or agent at
the request of any such other corporation, or of any enterprise
controlling, controlled by or under common control with any
such other corporation, unless specifically approved by a
majority vote of the board of directors of this corporation.
(k) Repeals. Any repeal or modification of this
-------
Section 2.16 (however effected) shall not adversely affect any
right of indemnification of a director, officer, employee or
agent existing at the time of such repeal or modification with
respect to any act, omission or transaction occurring prior to
such repeal or modification.
ARTICLE 3
---------
Officers
--------
Section 3.1 Officers. The officers of the corporation
--------
shall be a chairperson of the board or a president, or both, a
chief executive officer, a secretary and a chief financial
officer. The corporation may also have, at the discretion of
the board of directors, one or more vice-secretaries, a
cashier, one or more assistant cashiers and such other officers
as may be appointed in accordance with the provisions of
Section 3.3. Any two (2) or more offices may be held by the
same person; provided that in the execution of written
instruments and in the performance of any executive or
administrative duties on behalf of the corporation, such
officer may only act in one (1) capacity when joint execution
or action by two (2) officers is required.
Section 3.2 Elections. The officers of the
---------
corporation, except such officers as may be appointed in
accordance with the provisions of Section 3.3 or Section 3.5,
shall be chosen by the board of directors, and each shall hold
his or her office
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until he or she shall resign or be removed or is otherwise
disqualified to serve, or until his or her successor is chosen
and qualified.
Section 3.3 Other Officers. The board of directors
--------------
may appoint, and may empower the chairperson of the board or
the chief executive officer or both of them to appoint, such
other officers as the business of the corporation may require,
each of whom shall hold office for such period, have such
authority and perform such duties as are provided in the by-
laws or as the board of directors may from time to time
determine.
Section 3.4 Removal and Resignation. Any officer may
-----------------------
be removed with or without cause either by the board of
directors or, except for an officer chosen by the board, by any
officer upon whom the power of removal may be conferred by the
board (subject, in each case, to the rights, if any, of an
officer under any contract of employment). Any officer may
resign at any time upon written notice to the corporation
(without prejudice, however, to the rights, if any, of the
corporation under any contract to which the officer is a
party). Any such resignation shall take effect upon receipt of
such notice or at any later time specified therein. If the
resignation is effective at a future time, a successor may be
elected to take office when the resignation becomes effective.
Unless a resignation specifies otherwise, its acceptance by the
corporation shall not be necessary to make it effective.
Section 3.5 Vacancies. A vacancy in any office
---------
because of death, resignation, removal, disqualification or any
other cause shall be filled in the manner prescribed in the by-
laws for regular appointments to such office.
Section 3.6 Chairperson of the Board. The board of
------------------------
directors may, in its discretion, elect a chairperson of the
board who, unless otherwise determined by the board of
directors, shall preside at all meetings of the board of
directors at which he or she is present and shall exercise and
perform any other powers and duties assigned to him or her by
the board of directors or prescribed by the by-laws. The
chairperson of the board shall preside as chairperson at all
meetings of the shareholders unless otherwise determined by the
board of directors.
Section 3.7 Vice Chairperson of the Board. The board
-----------------------------
of directors may, in its discretion, elect one vice chairperson
of the board or more than one vice chairpersons of the board.
Unless otherwise determined by the board of directors, the vice
chairperson of the board shall preside as chairperson, or if
there are vice chairpersons of the board, the vice chairpersons
of the board shall jointly preside as co-chairpersons, at all
meetings of the board of directors or meetings of the
shareholders from which the chairperson of the board is absent.
The vice chairperson or vice chairpersons of the board shall
exercise and perform any other powers and duties assigned to
the vice chairperson of the board by the board of directors or
prescribed by the by-laws. If the office of chairperson of the
board is vacant, the vice chairperson of the board shall
exercise, or if there are vice chairpersons, the vice
chairpersons of the board shall jointly exercise, the duties of
the chairperson of the board, and when so acting, shall have
all the powers of, and be subject to the restrictions on, the
chairperson of the board.
Section 3.8 Chief Executive Officer. Subject to any
-----------------------
supervisory powers, if any, that the board of directors or the
by-laws have given to the president, if there be such an
officer, the chief executive officer shall be the corporation's
general manager. Subject to the control of the board of
directors, the chief executive officer shall direct the total
operation of the corporation and shall have responsibility for
the attainment of goals, plans and directives established by
the board of directors. The chief executive officer shall be a
member of the board of directors. Unless otherwise determined
by the board of directors, and in the absence of the
chairperson of the board and the vice chairperson, or -vice
chairpersons, of the board, or if there be none, the chief
executive officer shall preside as chairperson at all meetings
of the board of directors and of the shareholders. The chief
executive officer shall have the general powers and duties of
management usually vested in the office of chief executive
officer and shall have any other powers and duties prescribed
by the board of directors or the by-laws.
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Section 3.9 President. Subject to the supervisory
---------
powers, if any, that the by-laws or the board of directors have
given to the chief executive officer, the president shall be
the corporation's chief operating officer and shall have
general supervision, direction and control of the business,
affairs and officers of the corporation. Unless otherwise
determined by the board of directors, and in the absence of the
chairperson of the board, the vice chairperson, or vice
chairpersons, of the board and the chief executive officer, or
if there be none, the president shall preside as chairperson at
all meetings of the board of directors and of the shareholders.
The president shall have the general powers and duties of
management usually vested in the office of president; shall
have any other powers and duties prescribed by the by-laws or
the board of directors; and shall be primarily responsible for
carrying out all orders and resolutions of the board of
directors.
Section 3.10 Vice Presidents. In the absence or
---------------
disability of the chief executive officer and 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, or if there has been no such
designation, the vice president designated by the chief
executive officer, shall perform all duties of the president,
and when so acting, shall have all the powers of, and be
subject to all the restrictions on, the president. Each vice
president shall have any of the powers and perform any other
duties that from time to time the board of directors, the by-
laws or the chief executive officer may prescribe for him or
her.
Section 3.11 Secretary. The secretary shall keep or
---------
cause to be kept a book of minutes of all meetings and actions
by written consent of all directors, shareholders and
committees of the board of directors. The minutes of each
meeting shall state the time and place that it was held and
such other information as shall be necessary to determine
whether the meeting was held in accordance with the law and
these by-laws and the actions taken thereat. The secretary
shall keep or cause to be kept at the corporation's principal
executive office, or at the office of its transfer agent or
registrar, a record of the shareholders of the corporation,
giving the names and addresses of all shareholders and the
number and class of shares held by each. The secretary shall
give, or cause to be given, notice of all meetings of
shareholders, directors and committees required to be given
under these by-laws or by law, shall keep or cause the keeping
of the corporate seal in safe custody and shall have any other
powers and perform any other duties that are prescribed by the
board of directors or the by-laws or the chief executive
officer. If the secretary refuses or fails to give notice of
any meeting lawfully called, any other officer of the
corporation may give notice of such meeting. The assistant
secretary, or if there be more than one, any assistant
secretary, may perform any or all of the duties and exercise
any or all of the powers of the secretary unless prohibited
from doing so by the board of directors, the chief executive
officer or the secretary, and shall have such other powers and
perform any other duties as are prescribed for him or her by
the board of directors or the chief executive officer.
Section 3.12 Chief Financial Officer. The chief
-----------------------
financial officer, who shall also be deemed to be the treasurer
when a treasurer may be required, shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and
records of account. The chief financial officer shall cause all
money and other valuables in the name and to the credit of the
corporation to be deposited at the depositories designated by
the board of directors or any person authorized by the board of
directors to designate such depositories. He or she shall
render to the chief executive officer and board of directors
when requested by either of them, an account of all his or her
transactions as chief financial officer and of the financial
condition of the corporation, and shall have any other powers
and perform any other duties prescribed by the board of
directors, the bylaws or the chief executive officer.
Section 3.13 Cashier. The cashier may also be the
-------
chief financial officer and may also be an assistant secretary.
In the absence or disability of the chief financial officer,
the cashier shall perform all the duties of the chief financial
officer, and when so acting, shall have all the powers of, and
be subject to all the restrictions on, the chief
-15-
financial officer. He or she shall have the general
powers and duties of management usually vested in the
office of cashier, when there also is an office of chief
financial officer, and shall have any other powers and duties
prescribed by the by-laws or the board of directors. The
assistant cashier, or if there be more than one, any assistant
cashier, may perform any or all of the duties and exercise any
or all of the powers of the cashier unless prohibited from
doing so by the board of directors, the chief executive officer
or the cashier, and shall have such other powers and perform
any other duties as are prescribed for him or her by the board
of directors, the chief executive officer or the cashier.
ARTICLE 4
---------
Miscellaneous
-------------
Section 4.1 Record Date. The board of directors may
-----------
fix a time in the future as a record date for the determination
of the shareholders entitled to notice of any meeting of
shareholders or to vote or entitled to receive payment of any
dividend or distribution or allotment of any rights or entitled
to exercise any rights in respect of any other lawful action.
The record date so fixed shall be not more than sixty (60) days
nor less than ten (10) days prior to the date of such meeting,
nor more than sixty (60) days prior to any other action for the
purpose of which it is fixed. When a record date is so fixed,
only shareholders of record on that date are entitled to notice
of and to vote at any such meeting, to receive a dividend,
distribution or allotment of rights, or to exercise the rights,
as the case may be, notwithstanding any transfer of any shares
on the hooks of the corporation after the record date, except
as otherwise provided in the articles of incorporation or by-
laws of this corporation.
Section 4.2 Inspection of Corporate Records. The
-------------------------------
accounting books and records and record of shareholders, and
minutes of proceedings of the shareholders and the board and
committees of the board of directors of the corporation shall
be open to inspection upon the written demand on the
corporation of any shareholder or holder of a voting trust
certificate at any time during usual business hours, for a
purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate.
Such inspection by a shareholder or holder of a voting trust
certificate may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make
extracts.
A shareholder or shareholders holding at least five
percent (5%) in the aggregate of the outstanding voting shares
of the corporation or who hold at least one percent (1%) of
such voting shares and have filed a Schedule 14B with the
Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent
or attorney) the absolute right to inspect and copy the record
of shareholders' names and addresses and shareholdings during
usual business hours upon five (5) business days' prior written
demand upon the corporation or to obtain from the transfer
agent for the corporation, upon written demand and upon the
tender of its usual charges, a list of the shareholders' names
and addresses, who are entitled to vote for the election of
directors, and their shareholdings, as of the date specified by
the shareholder subsequent to the date of demand. The list
shall be made available on or before the later of five (5)
business days after the demand is received or the date
specified therein as the date as of which the list is to be
compiled.
Every director shall have the absolute right at any
reasonable time to inspect and copy all books, records and
documents of every kind and to inspect the physical properties
of this corporation and any subsidiary of this corporation.
Such inspection by a director may be made in person or by agent
or attorney and the right of inspection includes the right to
copy and make extracts.
Section 4.3 Checks, Drafts, Etc. All checks, drafts
-------------------
or other orders for payment of money, notes or other evidences
of indebtedness, issued in the name of or
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payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time,
shall be determined by resolution of the board of directors.
The board of directors may authorize one or more officers of
the corporation to designate the person or persons authorized
to sign such documents and the manner in which such documents
shall be signed.
Section 4.4 Annual and Other Reports.
------------------------
(a) The Board shall cause an annual report to be sent to the
shareholders not later than 120 days after the close of the fiscal year
or at least 15 (or, if sent by third-class mail, 35) days prior to the
annual meeting of shareholders to be held during the next fiscal year,
whichever is first; however, this requirement shall not limit the
requirement for holding an annual meeting.
(b) If no annual report for the last fiscal year has been sent
to shareholders, the corporation shall, upon the written request of any
shareholder made more than one hundred twenty (120) days after the close
of such fiscal year, deliver or mail to the person making the request
within thirty (30) days thereafter the financial statements required by
subdivision (a) of section 1501 of the California General Corporation Law
for such year. A shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of the corporation
may make a written request. to the corporation for an income statement of
the corporation for the three-month, six-month or nine-month period of
the current fiscal year ended more than thirty (30) days prior to the
date of the request and a balance sheet of the corporation as of the end
of such period and, in addition, if no annual report for the last fiscal
year has been sent to shareholders, the statements referred to in
subdivision (a) of section 1501 of the California General Corporation Law
for the last fiscal year. The statements shall be delivered or mailed to
the person making the request within thirty (30) days thereafter. A copy
of such statements shall be kept on file in the principal administrative
office of the corporation for twelve (12) months and they shall be
exhibited at all reasonable times to any shareholder demanding an
examination of them or a copy shall be mailed to such shareholder.
(c) The corporation shall, upon the written request
of any shareholder, mail to the shareholder a copy of the last
annual, semiannual or quarterly income statement which it has
prepared and a balance sheet as of the end of the period.
(d) The quarterly income statements and balance sheets referred
to in this Section 4.4 shall be accompanied by the report thereon, if
any, of any independent accountants engaged by the corporation or the
certificate of an authorized officer of the corporation that such
financial statements were prepared without audit from the books and
records of the corporation.
(e) Unless otherwise determined by the board of
directors, president or the chief executive officer, the chief
financial officer and the cashier are each authorized officers
of the corporation to execute the certificate that the annual
report and quarterly income statements and balance sheets
referred to in this section were prepared without audit from
the books and records of the corporation.
Any report sent to the shareholders shall be given
personally or by mail or other means of written communication,
charges prepaid, addressed to such shareholder at the address
of such shareholder appearing on the books of the corporation
or given by such shareholder to the corporation for the purpose
of notice or set forth in the written request of the
shareholder as provided in this section. If any report
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 report to the shareholder at such address, all
future 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 administrative office of the corporation for a period
of one (1) year from the date of the giving of the report to
all other shareholders. If no address
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appears on the books of the corporation or is given by the shareholder to
the corporation for the purpose of notice or is set forth in the
written request of the shareholder as provided in this section, such
report shall be deemed to have been given to such shareholder if sent
by mail or other means or written communication addressed to the place
where the principal administrative office of the corporation is
located, or if published at least once in a newspaper of general
circulation in the county in which the principal administrative office
is located. Any such report shall be deemed to have been given at the
time when delivered personally or deposited in the mail or sent by
other means of written communication. An affidavit of mailing of any
such report in accordance with the foregoing provisions, executed by
the secretary, assistant secretary or any transfer agent of the
corporation, shall be prima facie evidence of the giving of the report.
Section 4.5 Contracts, Etc.: How Executed. The board of
-----------------------------
directors, except as the by-laws or articles of incorporation otherwise
provide, may authorize any officer or officers and/or agent or agents to
enter into any contract or execute any instrument in the name of and/or
on behalf of the corporation, and such authority may be general or
confined to specific instances.
Section 4.6 Certificate for Shares.
----------------------
(a) Every holder of shares in the corporation shall
be entitled. to have a certificate signed in the name of the
corporation by the chairperson or vice chairperson of the board
or the president or a vice president and by the chief financial
office or an assistant treasurer or the secretary or any
assistant secretary, certifying the number of shares and the
class or series of shares owned by the shareholder. Any or all
of the signatures on the certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed 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
such officer, transfer agent or registrar at the date of issue.
(b) Any such certificate shall also contain such
legend or other statement as may be required by section 418 of
the California General Corporation Law, the Corporate
Securities Law of 1968, and any agreement between the
corporation and the issuee thereof, and may contain such legend
or other statement as may be required by any other applicable
law or regulation or agreement.
(c) No new certificate for shares shall be issued in
place of any certificate theretofore issued unless the latter
is surrendered and cancelled at the same time; provided,
however, that a new certificate may be issued without the
surrender and cancellation of the old certificate if the
certificate theretofore issued is alleged to have been lost,
stolen or destroyed. In case of any such allegedly lost, stolen
or destroyed certificate, the corporation may require the owner
thereof or the legal representative of such owner to give the
corporation 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.
Section 4.7 Representation of Shares of Other
---------------------------------
Corporations. Unless the board of directors shall otherwise
------------
determine, the chairperson of the board, the chief executive
officer, the president, any vice president, and the secretary
of this corporation are each authorized to vote, represent and
exercise on behalf of this corporation all rights incident to
any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority herein
granted to such officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any
other corporation or corporations may be exercised either by
such officers in person or by any person authorized so to do by
proxy or power of attorney or other document duly executed by
any such officer.
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Section 4.8 Inspection of By-Laws. The corporation
-----------------------
shall keep in its principal administrative office in
California, or I its principal administrative office is not in
California, at its principal business office in California, the
original or a copy of the by-laws as amended to date, which
shall be open to inspection by the shareholders at all
reasonable times during office hours. If the corporation has no
office in California, it shall upon the written request of any
shareholder furnish to him or her a copy of the bylaws as
amended to date.
Section 4.9 Seal. The corporation may have a common
----
seal.
Section 4.10 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 the foregoing, the
masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the
singular, and the term "person" includes a corporation as well
as a natural person.
ARTICLE 5
---------
Amendments
----------
Section 5.1 Power of Shareholders. New by-laws may be
---------------------
adopted or these by-laws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares
entitled to vote or by the written assent of shareholders
entitled to vote such shares, except as otherwise provided by
law or by the articles of incorporation of this corporation.
Section 5.2 Power of Directors. Subject to the right
------------------
of shareholders as provided in Section 5.1 of this Article 5 to
adopt, amend or repeal by-laws, by-laws other than a by-law or
amendment thereof changing the range of the authorized number
of directors may be adopted, amended or repealed by the board
of directors, including an amendment to change the number of
authorized directors within the range fixed by the
shareholders.
ARTICLE 6
---------
Offices
-------
Section 6.1 Principal Administrative Office. The
-------------------------------
principal administrative office of the corporation shall be
located at such place in the State of California as the board
of directors shall from time to time determine.
Section 6.2 Other Offices. Other offices may at any
-------------
time be established by the board of directors at any place or
places where the corporation is qualified to do business,
subject to all regulatory approvals.
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CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
James L. Wright and C. Richard Lemon certify that:
1. They are the Executive Vice President and Secretary,
respectively, of Napa National Bancorp, a California corporation.
2. The Articles of Incorporation of this corporation are amended by
adding a new Article FIFTH to such Articles of Incorporation, to read as
follows:
FIFTH
-----
(a) The liability of directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law.
(b) The corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the California Corporations Code)
through bylaw provisions, agreements with agents, vote of shareholders
or disinterested directors, or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to the applicable limits set forth in
Section 204 of the California Corporations Code with respect to the
actions for breach of duty to the corporation and its shareholders.
(c) Any repeal or modification of the foregoing provisions of
Article FIFTH by the shareholders of the corporation shall not
adversely affect any right or protection existing at the time of such
repeal or modification.
3. The foregoing amendment of the Articles of Incorporation of
this corporation has been duly approved by the board of directors of this
corporation.
4. The foregoing amendment of the Articles of Incorporation of
this corporation has been duly approved by the required vote of shareholders
in accordance with Section 902 of the Corporations Code. The total number of
outstanding shares of the corporation is 500,000. The number of shares
voting in favor of the amendment equaled or exceeded the vote required for
approval. The percentage vote required for approval was more than 50%.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this Certificate are true
and correct and to our own knowledge.
Dated: August 16, 1988.
/s/ James L. Wright
__________________________
James L. Wright
Executive Vice President
/s/ C. Richard Lemon
__________________________
C. Richard Lemon
Secretary