EXHIBIT 3(B) - BYLAWS, AS AMENDED
BYLAWS
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OF
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FIRST FINANCIAL BANCORP
A CALIFORNIA CORPORATION
(as amended through February 20, 1998)
Article I. Offices
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SECTION 1.01. PRINCIPAL OFFICE. The Board of Directors shall fix the location
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of the principal executive office of the Corporation at any place within or
without the State of California. If the principal executive office is located
outside this State, and the Corporation has one or more business offices in this
State, the Board of Directors shall fix and designate a principal business
office in the State of California.
SECTION 1.02. OTHER OFFICES. The Board of Directors may at any time establish
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branch or subordinate offices at any place or places where the Corporation is
qualified to do business.
ARTICLE II. MEETINGS OF THE SHAREHOLDERS
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SECTION 2.01. PLACE OF MEETINGS. Meetings of shareholders shall be held at any
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place within or without the State of California designated by the Board of
Directors. In the absence of any such designation, shareholders' meetings shall
be held at the principal office of the Corporation.
SECTION 2.02. ANNUAL MEETINGS. Annual meetings of shareholders of the
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Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and places as the Board of Directors shall determine by resolution.
SECTION 2.03. SPECIAL MEETINGS. Special meetings of the shareholders may be
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called at any time, for any purpose or purposes whatsoever, by the President, by
the Chairman of the Board, by the Secretary, by the Board of Directors or by one
or more shareholders holding not less than ten percent (10%) of the voting
shares of the Corporation.
SECTION 2.04. NOTICE OF MEETINGS.
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(A) Written notice of all meetings of the shareholders shall be given to
each shareholder entitled to vote by the Secretary or by any Assistant-
Secretary, or by any other person whom the Board of Directors may charge with
that duty. Such notice shall be given, either personally or by mail or other
means of written communication, addressed to the shareholder at the address of
such shareholder appearing on the books of the Corporation or given by the
shareholder to the Corporation for the purpose of notice; or if no such address
appears or is given, at the place where the principal executive office of the
Corporation is located or by publication at least once in a newspaper of general
circulation in the county in which the principal executive office is located.
The notice or report shall be deemed to have been given when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any notice or report in accordance
with these Bylaws executed by the Secretary, Assistant-Secretary or any transfer
agent shall be prima facie evidence of the giving of the notice or report. If
any notice or 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 notice or report to the
shareholder at such address, then all future notices shall be deemed to have
been duly given without further mailing if the same shall be available
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for the shareholder upon written demand at the principal executive office of the
Corporation for a period of one year from the date of giving of the notice or
report to the other shareholders.
(B) All notices shall be given not fewer than ten (10) nor more than
sixty (60) days before the date of the meeting to each shareholder entitled to
vote thereat. Such notice shall state the place, the date, and hour of the
meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (ii) in
the case of the annual meeting, those matters that the Board, at the time of the
mailing of the notice, intends to present for action by the shareholders,
provided, however, that any shareholder approval at an annual meeting, other
than unanimous approval by those entitled to vote on any matter specified in
Section 310, 902, 1201, 1900 or 2007 of the California General Corporation Law,
shall be valid only if the general nature of the proposal so approved was stated
in the notice of meeting or in any written waiver of notice; and provided
further, that any unanimous shareholder approval at an annual meeting by those
entitled to vote on any matter specified in Section 310, 902, 1201, 1900 or
2007 of the California General Corporation Law shall be valid even though the
general nature of the proposal so approved was not stated in the notice of
meeting or in any written waiver of notice. A 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.
SECTION 2.05. NOMINATIONS FOR DIRECTORS. Nominations for election to
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the Board of Directors may be made by the Board of Directors or by any
shareholder entitled to vote for the election of directors, Nominations, other
than those made by the Board of Directors, shall be made in writing and shall be
delivered or mailed, with first-class United States mail postage prepaid, to the
Secretary not less than 20 days nor more than 50 days prior to any meeting of
shareholders called for the election of directors; provided, however, that if
less than 25 days notice of the meeting is given to the shareholders, such
nomination shall be mailed or delivered to the Secretary not later than the
close of business on the seventh day following the day on which the notice of
the meeting was mailed. Shareholder nominations shall contain the following
information: (a) the name, age, business address and, if known, residence
address of each proposed nominee; (b) the principal occupation or employment of
each proposed nominee; (c) the total number of shares of capital stock of the
Corporation that are beneficially owned by each proposed nominee and by the
nominating shareholder; (d) the name and residence address of the notifying
shareholder; and (e) any other information the Corporation must disclose
regarding director nominees in the Corporation's proxy solicitation.
Nominations not made in accordance with this Section may be disregarded by the
Chairman of the meeting, and if the Chairman so instructs, the inspectors of
election may disregard all votes cast for each such nominee.
SECTION 2.06. QUORUM. The presence in person or by proxy of the persons
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entitled to vote a majority of the voting shares of the Corporation 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 a least a majority of the shares
required to constitute a quorum.
SECTION 2.07. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholder's meeting,
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annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of a majority of the shares represented either in
person or by proxy, but in the absence of a quorum no other business may be
transacted at such meeting, except as provided in Section 2.06 of these Bylaws.
It shall not be necessary to give any notice of the time and place of the
adjourned meeting or of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken except that, when
any meeting is adjourned 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 thereat. At the adjourned meeting the Corporation may transact any
business which could have been transacted at the original meeting.
SECTION 2.08. VOTING AT MEETINGS.
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(A) The shareholders entitled to notice of any meeting or to vote at any
such meeting shall be the persons in whose name shares stand on the stock
records of the Corporation on the record date determined in accordance with
Section 2.09 of these Bylaws.
(B) Voting shall in all cases be subject to the provisions of Chapter 7
of the California General Corporation Law and to the following provisions:
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(1) subject to clause (8), 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 the shares into the holder's name;
(2) subject to clause (8), 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 so held without a transfer of them into the trustee's
name.
(3) 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's name if authority
to do so is contained in the order of the court by which such receiver was
appointed;
(4) subject to the provisions of Section 705 of the California
General Corporation Law and of Section 2.10 of these Bylaws, 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;
(5) 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 has been given to the
Corporation;
(6) shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder as the bylaws of
such other corporation may prescribe or, in the absence of such provision, as
the Board of Directors of such other corporation may determine or, in the
absence of such determination, by the chairman of the board, president or any
vice-president of such other corporation, or by any other person authorized to
do so by the chairman 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;
(7) shares of the Corporation owned by any subsidiary of the
Corporation shall not be entitled to vote on any matter;
(8) shares held by the Corporation in a fiduciary capacity, and
shares of the Corporation held in a fiduciary capacity, and shares of the
Corporation held in a fiduciary capacity by any subsidiary of the Corporation,
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;
(9) 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 to vote under a shareholder voting agreement
or otherwise, or if two 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 votes, such act binds all;
(b) if more than one vote, the act of the majority so voting binds
all;
(c) if more than one vote, 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 the above shall be a majority or even split in interest.
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(C) Subject to the following sentence and to the provisions of Section
708 of the California General Corporation Law, every shareholder entitled to
vote at any election of directors may cumulate his votes and give one candidate
a number of votes equal to the number of directors to be elected multiplied by
the number of votes to which his shares are entitled (except for this Section
2.08(C) as to cumulative voting), or distribute his votes on the same principle
among as many candidates as he may see fit. No shareholder shall be entitled to
cumulate votes for any candidate or candidates pursuant to the preceding
sentence unless such candidate or candidates' name(s) have been placed in
nomination before the voting and the shareholder has given notice, at the
meeting and before the voting, of his intention to cumulate his votes. If any
one shareholder has given such notice, then all shareholders may cumulate their
votes for candidates in nomination.
(D) Elections shall be by written ballot.
(E) 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 by such shares are elected.
SECTION 2.09. RECORD DATE.
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(A) 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, and to vote at,
any meeting of the shareholders or entitled to receive any dividend or
distribution, or any allotment of rights, or to exercise rights in respect to
any change, conversion or exchange of shares. The record date so fixed shall not
be more than sixty (60) nor fewer than ten (10) days before the date of the
meeting, nor more than sixty (60) days before any other action. When a record
date is so fixed, only shareholders of record on that date shall be entitled to
notice of, and to vote at, the meeting, or to receive the dividend, distribution
or allotment of rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of shares on the books of the Corporation after the
record date. A determination of shareholders of record entitled to notice of, or
to vote at, a meeting of the shareholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date or the meeting is
adjourned for more than forty-five (45) days from the date set for the original
meeting.
(B) If the Board of Directors does not fix a record date, then the record
date for determining which shareholders are entitled to notice of, or to vote
at, a meeting of the shareholders shall be at the close of business on the
business day next preceding the day on which notice is given or, of notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held. The record date for determining shareholders for any
purpose other than those set forth in this Section and Section 2.13 of these
Bylaws shall be at the close of business on the day on which the Board of
Directors adopts the resolutions relating thereto, or on the sixtieth (60) day
before the date of such other action, whichever is later.
SECTION 2.10. PROXIES.
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(A) Every person entitled to vote or to execute consents shall have the
right to do so either in person or by one or more agents authorized by a written
proxy executed by such a person or his duly authorized agent and filed with the
Secretary of the Corporation. 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 before the vote pursuant thereto, except as otherwise provided in
this Section 2.10 or by law. 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 the meeting and voting in person by, the maker.
The dates contained on the forms of proxy presumptively determine the order of
execution, regardless of the postmarked date on the envelopes in which they are
mailed. A proxy is not revoked by the death or incapacity of the maker unless,
before the vote is counted, written notice of the death or incapacity is
received by the Corporation.
(B) Except when other provision shall have been made by written agreement
between the parties, the record-holder of shares held by a pledgee or otherwise
as security or belonging to another shall issue to the pledgor or to the owner
of such shares, upon demand therefor and payment of necessary expenses thereof,
a proxy to vote or take other action.
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(C) A proxy stating that it is irrevocable is irrevocable for the period
specified therein when it is held by any of the following or a nominee of any of
the following:
(1) a pledgee;
(2) a person who has bought or agreed to buy or holds an option to
buy the shares of a person who has sold a portion of such person's shares in the
Corporation to the maker of the proxy;
(3) 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;
(4) 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.
(D) Notwithstanding the period of irrevocability specified, the proxy
becomes revocable when the pledge is redeemed, the option or the agreement to
buy is terminated or the seller no longer owns any shares of the Corporation or
dies, the debt of the Corporation or the shareholder is paid, or the period of
employment provided for in the contract of employment has terminated.
(E) A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a buyer of shares without knowledge of the existence of the
provision unless the existence of the proxy and its irrevocability appear on the
certificate representing such shares.
SECTION 2.11. INSPECTORS OF ELECTION.
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(A) In advance of any meeting of the shareholders, the Board of Directors
may appoint inspectors of election to act at such meeting and any adjournment
thereof. If the Board of Directors does not appoint inspectors of election, then
the Chairman of any such meeting may, and on the request of any shareholder or
his proxy shall, make such appointment at the meeting. The number of inspectors
shall be either one or three. If appointed at a meeting on the request of one or
more shareholders or proxies, the majority of shares present shall determine
whether one or three inspectors are to be appointed. In case any person
appointed as inspector fails to appear or fails or refuses to act, the vacancy
may be filled by appointment by the Board of Directors before the meeting, or at
the meeting by the Chairman.
(B) The inspectors of election, impartially, in good faith, to the best
of their ability, and as expeditiously as is practical, shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, shall receive votes, ballots or consents, hear
and determine all challenges and questions in any way arising in connection with
the right to vote, shall count and tabulate all votes or consents, determine the
result, and do such acts as may be proper to conduct the election or vote with
fairness to all shareholders. If there are three inspectors of election, the
decision, act or certificate of a majority of them shall be effective in all
respects as the decision, act or certificate of all. On request of the Chairman
of the meeting or of any shareholder or his proxy, the inspectors shall make a
report in writing of any challenge or question or matter determined by them and
shall execute a certificate of any fact found by them. Any report or certificate
made by them shall be prima facie evidence of the facts stated therein.
SECTION 2.12. SHAREHOLDERS' RIGHT TO INSPECT CORPORATE RECORDS.
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(A) 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 14-B with
the securities and Exchange Commission relating to the election of directors of
the Corporation shall have an absolute right to do either or both of the
following: (i) inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours upon five business days' advance
written demand upon the Corporation or, (ii) obtain from the transfer agent for
the Corporation, upon five business days' advance written notice and upon the
tender of its
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usual charges for such a list (the amount of which charges shall be stated to
the shareholders by the transfer agent upon request), a list of the
shareholders' names and addresses, who are entitled to vote for the election of
directors, and their shareholdings, as of the most recent record date for which
it has been compiled or as of a date specified by the shareholders after the
date of demand.
(B) The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate at any time
during usual business hours upon written demand on the Corporation, for a
purpose reasonably related to such holder's interests as a shareholder or holder
of a voting trust certificate.
(C) The accounting books and records and minutes of proceedings of the
shareholders, Board and committees of the Board 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 reasonable time during usual
business hours, for a purpose reasonably related to such holder's interest as a
shareholder or as a 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.
(D) Any inspection and copying under this Section 2.12 may be made in
person or by an agent or attorney.
SECTION 2.13. INSPECTION OF BYLAWS. The Corporation shall keep in its
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principal office for the transaction of business the original or a copy of the
Bylaws, as amended or otherwise altered to date, certified by the Secretary,
which shall be open to inspection by the shareholders at all reasonable times
during office hours.
ARTICLE III. DIRECTORS
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Section 3.01. Powers. Subject to the limitation of the Articles of
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Incorporation, of these Bylaws, and of the California General Corporation Law
relating to action required to be approved by the shareholders or the
outstanding shares, the business and affairs of the Corporation shall be
managed, and all corporate powers shall be exercised, by or under the direction
of the Board of Directors. The Board of Directors may delegate the management
of the day-to-day operation of the business of the Corporation to a management
company or other person, provided that the business and affairs of the
Corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors.
SECTION 3.02. NUMBER OF DIRECTORS. The Corporation shall have not less than
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eight (8) nor more than fifteen (15) directors, the exact number to be
determined from time to time by resolution adopted by the Board of Directors,
and such exact number shall be thirteen (13) until otherwise determined by
resolution of the Board of Directors, provided, however, that before the
issuance of any shares or so long as the Corporation has only one shareholder
the number may be one or two, and so long as the Corporation has two
shareholders the number may be two. A bylaw specifying or changing a fixed
number of directors to a variable board or vice versa may only be adopted by the
vote of the holders of not less than two-thirds (2/3) the total voting power of
all outstanding shares of voting stock of the Corporation, provided, however,
that a bylaw reducing the fixed number or the minimum number of directors to a
number smaller than five (5) shall not be adopted if the votes cast against its
adoption at a meeting of shareholders are equal to more than sixteen and two-
thirds percent (16-2/3%) of the outstanding shares entitled to vote. No
reduction of the authorized number of directors shall have the effect of
removing any director before the expiration of his term of office.
SECTION 3.03. EXECUTIVE COMMITTEE.
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(A) The Board of directors may, by resolution adopted by a majority of
the authorized number of directors, appoint one or more committees, each
consisting of two or more directors, and delegate to such committees any of the
authority of the Board of Directors except with respect to:
(1) the approval of any action for which the California General
Corporation Law requires shareholders' approval or approval of the outstanding
shares;
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(2) the filling of vacancies on the Board of Directors or on any
committee;
(3) the fixing of compensation of the directors for serving on the
Board of Directors or on any committee;
(4) the amendment or repeal of Bylaws or the adoption of new Bylaws;
(5) the amendment or repeal of any resolution of the Board of
Directors which by its express terms is not so amendable or repealable;
(6) a distribution to the shareholders of the Corporation except at
a rate or in a periodic amount or within a price range determined by the Board
of Directors;
(7) the appointment of other committees of the Board of Directors or
the members thereof.
(B) The Board of Directors shall have the power to prescribe the manner
in which proceedings of any such committee shall be conducted. In the absence of
any such prescription, such committee shall have the power to prescribe the
manner in which its proceedings shall be conducted. Unless the Board of
Directors or such committee shall otherwise provide, the regular and special
meetings and other actions of any such committee shall be governed by the
provisions of this Article applicable to meetings and actions of the Board of
Directors. Minutes shall be kept of each meeting of each committee.
SECTION 3.04. ELECTION AND TERM OF OFFICE. The directors shall be elected at
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each annual meeting of shareholders, but if any such annual meeting is not held
or the directors are not elected thereat, then the directors may be elected at
any special meeting of shareholders held for that purpose. Each director shall
hold office until the next annual meeting and until a successor has been elected
and qualified.
SECTION 3.05. VACANCIES.
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(A) A vacancy or vacancies in the Board of Directors shall be deemed to
exist in case of death, resignation or removal of any director, or if the
authorized number of directors is increased, or if the shareholders fail, at any
annual or special meeting of shareholders at which any director or directors are
elected, to elect the full authorized number of directors to be voted for at
that meeting.
(B) The Board of Directors may declare vacant the office of a director
who has been declared of unsound mind by an order of court, convicted of a
felony, or if within sixty (60) days after notice of his election, he does not
accept the office either in writing or by attending a meeting of the Board of
Directors. Vacancies in the Board of Directors may be filled by a majority of
the remaining directors, though less than a quorum, or by a sole remaining
director, and each director so elected shall hold office until his successor is
elected at an annual or a special meeting of the shareholders. If, after the
filling of any vacancy by the directors, the directors then in office who have
been elected by the shareholders constitute less than a majority of the
directors then in office, then any holder or holders of an aggregate of five
percent (5%) or more of the total number of shares at the time outstanding
having the right to vote for such directors may call a special meeting of
shareholders to elect the entire Board of Directors. The term of office of any
director not elected by the shareholders shall terminate upon such election of a
successor.
(C) Any director may resign effective upon giving written notice to the
Chairman 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 future time, then a
successor may be elected to take office when the resignation becomes effective.
SECTION 3.06. REMOVAL.
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(A) Any or all of the directors may be removed without cause if such
removal is approved by the outstanding shares of the Corporation, subject to the
following: (i) no director may be removed (unless the entire Board is
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removed) when the votes cast against removal would be sufficient to elect such
director if voted cumulatively at an election at which the same total number of
votes were cast and the entire number of directors authorized at the time of the
director's most recent election were then being elected; and (ii) when by the
provisions of the Articles of Incorporation the holders of the shares of any
class or series, voting as a class or series, are entitled to elect one or more
directors, any director so elected may be removed only by the applicable vote of
the holders of the shares of that class or series.
SECTION 3.07. PLACE OF MEETING. Regular meetings of the Board of Directors
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shall be held at any place within or without the State which has been designated
from time to time by resolution of the Board of Directors or by written consent
of all members of the Board given either before or after the meeting and filed
with the Secretary of the Corporation. In the absence of such designation
regular meetings shall be held at the principal office of the Corporation.
Special meetings of the Board of Directors may be held either at a place so
designated or at the principal office.
SECTION 3.08. REGULAR MEETINGS OF THE BOARD OF DIRECTORS. Regular meetings of
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the Board of Directors shall be held immediately following each annual meeting
of shareholders as provided in Section 2.02 of the Bylaws and at such other
times as the Board of Directors may by resolution determine. Notice of all such
regular meetings of the Board of Directors is hereby waived.
SECTION 3.09 SPECIAL MEETINGS.
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(A) Special meetings of the Board of Directors for any purpose or
purposes may be called at any time by the Chairman of the Board or the President
or, if the President is absent or unable or refuses to act, by any Vice-
President or by any two directors.
(B) Special meetings of the Board of Directors shall be held upon four
(4) days' written notice or forty-eight (48) hours' notice given personally or
by telephone, telegraph, telex or other similar means of communication. Any such
notice shall be addressed or delivered to each director at his address as it is
shown upon the records of the Corporation or as may have been given to the
Corporation by the director for purposes of notice or, if such address is not
shown on such records or is not readily ascertainable, then at the place where
the meetings of the directors are regularly held.
(C) Notice by mail shall be deemed to have been given at the time written
notice is deposited in the United States Mail, postage pre-paid. Any other
written notice shall be deemed to have been given at the time when personally
delivered to the recipient or delivered to a common carrier for transmission, or
actually transmitted by the person giving the notice by electronic means, to the
recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
SECTION 3.10. WAIVER OF NOTICE. The transactions of any meeting of the Board
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of Directors, however called and noticed and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice or a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approval shall be filed with the corporate records or made a part of the minutes
of the meeting.
SECTION 3.11. NOTICE OF ADJOURNMENT. A majority of the directors present,
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whether or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than twenty-four (24) hours, notice
of any adjournment to another time or place shall be given before the adjourned
meeting to the directors who are not present at the time of the adjournment.
SECTION 3.12. QUORUM. A majority of the authorized number of directors
- ---------------------
constitutes a quorum of the Board of Directors for the transaction of business,
except to adjourn as hereinafter provided. Except as otherwise provided in the
Articles of Incorporation or Bylaws or in the General Corporation Law, every act
or decision done or made by the majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the quorum required for such
meeting.
8
SECTION 3.13. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of
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the Board of Directors may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such a meeting can hear one another.
SECTION 3.14. ACTION WITHOUT MEETING. Any action under any provision of the
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California General Corporation Law required or permitted to be taken by the
Board of Directors, may be taken without a meeting if all members of the Board
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. Such action by written consent shall have the same force and effect as a
unanimous vote of the Board of Directors.
SECTION 3.15. FEES AND COMPENSATION. Directors and members of committees may
- ------------------------------------
receive such compensation for their services, and such reimbursement for
expenses, as may be fixed or determined by resolution of the Board of Directors.
SECTION 3.16. DIRECTORS' RIGHT TO INSPECT CORPORATE RECORDS. Every director
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shall have the absolute right at any time to inspect and copy all books,
records, documents of every kind, and to inspect the physical properties of the
Corporation and also of its subsidiary corporations, if any. 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.
ARTICLE IV. OFFICERS
---------------------
SECTION 4.01. OFFICERS. The officers of the Corporation shall consist of a
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president, a vice-president, a secretary, a chief financial officer, and such
additional officers as may be elected or appointed in accordance with Section
4.03 of these Bylaws. One person may hold two or more offices, including the
offices of president and secretary.
SECTION 4.02. ELECTIONS. All officers of the Corporation, except such officers
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as may be appointed in accordance with Section 4.03, shall be chosen annually by
the Board of Directors, and each shall hold office until he resigns or is
removed or otherwise disqualified to serve, or until his successor is chosen and
qualified.
SECTION 4.03. OTHER OFFICERS. The Board of Directors, at their discretion, may
- -----------------------------
choose a chairman of the board, and may appoint, or empower the president to
appoint, one or more additional vice-presidents, one or more assistant
secretaries, one or more assistant financial officers, or 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 the Board of
Directors may from time to time determine.
SECTION 4.04. REMOVAL AND RESIGNATION.
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(A) Any officer may be removed, either with or without cause, by the
Board of Directors, at any regular or special meeting thereof, or, except in the
case of an officer chosen by the Board of Directors, by any officer upon whom
such power of removal may be conferred by the Board of Directors. Any such
removal shall be without prejudice to the rights, if any, of the officer under
his contract of employment, if any.
(B) Any officer may resign at any time by giving written notice to the
Board of Directors, the president, or the secretary of the Corporation. Any such
resignation shall be without prejudice to the rights, if any, of the Corporation
under any contract to which the officer is a party, and shall take effect upon
receipt of such notice or at any later time specified therein. Unless otherwise
specified therein, acceptance of such resignation shall not be necessary to make
it effective.
SECTION 4.05. 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 Bylaws for regular appointments to such office.
SECTION 4.06. CHAIRMAN OF THE BOARD. The chairman of the board, if there is
- ------------------------------------
such an officer, shall, if present, preside at all meetings of the Board of
Directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by the
Bylaws.
9
SECTION 4.07. PRESIDENT. Subject to such supervisory powers, if any, as may be
- ------------------------
given by the Board of Directors to the chairman of the board, if there is such
an officer, the president shall be the chief executive officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
Corporation. He shall preside at all meetings of the shareholders and, in the
absence of the chairman of the board, or if there is no such officer, at all
meetings of the Board of Directors. He shall be ex officio a member of all the
-- -------
standing committees, including the executive committee, if any, and shall have
the general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board of Directors or the Bylaws.
SECTION 4.08. VICE-PRESIDENT. In the absence or disability of the president,
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the vice-presidents in order of their rank as fixed by the Board of Directors
or, if not ranked, the vice-president designated by the Board of Directors,
shall perform all the duties of the President, and when so acting shall have all
the powers of, and be subject to all the restrictions upon, the president. The
vice-presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them by the president, the Board of
Directors or the Bylaws.
SECTION 4.09. SECRETARY.
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(A) The secretary shall keep or cause to be kept, at the principal
office or such other place as the Board of Directors may order, a book of
minutes of all meetings of shareholders, the Board of Directors, and its
committees with the time and place of holding, whether regular or special, and
if special, how authorized, the notice thereof given, the names of those present
at directors' meetings, the number of shares present or represented at the
shareholders' meetings, and the proceedings thereof.
(B) The secretary shall keep, or cause to be kept, at the principal
office or at the office of the Corporation's transfer agent, a share register,
or a duplicate share register, showing the names of the shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for shares, and the number and date of cancellation of every
certificate surrendered for cancellation.
(C) The corporate minutes shall be kept in written form. The other
information that the secretary shall keep or cause to be kept shall be kept
either in written form or in a form capable of being converted into written
form.
(D) The secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board of Directors and of any committees
thereof required by the Bylaws or by law to be given, and shall have such other
powers and perform such other duties as may be prescribed by the Board of
Directors or by the Bylaws.
SECTION 4.10. CHIEF FINANCIAL OFFICER.
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(A) The chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all
reasonable times be open to inspection by any director.
(B) The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the president and directors, whenever they request it, an account of
all his transactions as chief financial officer and of the financial condition
of the Corporation, and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or the Bylaws.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
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SECTION 5.01. AGENTS, PROCEEDINGS, AND EXPENSES. For the purposes of this
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Article, "agent" means any person who is or was a director, officer, employee,
or other agent of the Corporation or its predecessor, and any person who is or
was serving as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise at the
10
request of the Corporation or its predecessor; "proceeding" means any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative; and "expenses" include but are not limited to
attorneys' fees and any expenses of establishing a right to indemnification
under this Article.
SECTION 5.02. LAWSUITS OTHER THAN BY THE CORPORATION. The Corporation shall
- -----------------------------------------------------
have the power to indemnify any person who was or is a party, or is threatened
to be made a party to any proceeding (other than an action by or in the right of
the Corporation to procure a judgment in its favor) by reason of the fact that
such person is or was an agent of the Corporation, against expenses, judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with such proceeding, if the agent acted in good faith and in a
manner the agent reasonably believed to be in the best interests of the
Corporation. If there are criminal charges, the agent must have had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the agent did not act in good faith and in a manner that the
agent reasonably believed to be in the best interests of the Corporation, or
that the agent had reasonable cause to believe that his or her conduct was
unlawful.
SECTION 5.03. LAWSUITS BY OR ON BEHALF OF THE CORPORATION. The Corporation
- ----------------------------------------------------------
shall have the power to indemnify any person who was, is, or is threatened to be
made a party by reason of the fact that such person is or was an agent of the
Corporation, to any threatened, pending, or completed legal action by or in the
right of the Corporation to procure a judgment in its favor, against expenses
actually and reasonably incurred by the agent in connection with the defense or
settlement of that action, if the agent acted in good faith, in a manner the
agent believed to be in the best interests of the Corporation. However, the
Corporation shall not indemnify any amount paid with respect to a claim, issue,
or matter for which the agent has been adjudged liable to the Corporation in the
performance of his or her duty, except for any expenses (exclusive of judgment
or settlement amount) specifically authorized by the court in which the
proceeding is or was pending, in accordance with statutory requirements.
SECTION 5.04. APPROVAL; WHEN REQUIRED. Unless indemnification is mandatory
- --------------------------------------
because of the agent's successful defense on the merits as set forth in Section
5.05 of this Article, indemnification can be made only as to a specific case,
upon a determination that indemnification is proper in the circumstances because
the agent has met the applicable standard of conduct as set forth in Sections
5.02 or 5.03 of this Article, and must be authorized by one of the following:
(1) a majority vote of the Board with a quorum consisting of directors who are
not parties to the proceeding; (2) the affirmative vote of a majority of the
outstanding shares entitled to vote and present or represented at a duly held
meeting at which a quorum is present or by the written consent of a majority of
the outstanding shares entitled to vote (without counting shares owned by the
person seeking indemnification as either outstanding or entitled to vote); or
(3) the court in which the proceeding is or was pending, upon application by
the Corporation, the agent, the agent's attorney, or other person rendering
services in connection with the defense, regardless of whether the Corporation
opposes the application. Any amount paid in settling or otherwise disposing of
a threatened or pending lawsuit, and any expenses incurred in defending a
threatened or pending action that is settled or otherwise disposed of, must be
authorized by the court in which the proceeding is or was pending, upon
application by the Corporation, the agent, the agent's attorney, or other person
rendering services in connection with the defense, regardless of whether the
Corporation opposes the application.
SECTION 5.05, INDEMNIFICATION AGAINST EXPENSES. To the extent that an agent of
- -----------------------------------------------
the Corporation has been successful on the merits in defense of any proceeding
referred to in Section 5.02 or 5.03 of this Article or in defense of any claim,
issue or matter therein, he shall be indemnified against his expenses actually
and reasonably incurred in connection therewith.
SECTION 5.06. ADVANCE OF EXPENSES. Expenses incurred in defending any
- ----------------------------------
proceeding may be advanced by the Corporation before the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in this Article.
SECTION 5.07. OTHER INDEMNIFICATION. No provision made by the Corporation to
- ------------------------------------
indemnify the directors or officers of the Corporation, or a subsidiary of the
Corporation for the defense of any proceeding, whether contained in the Articles
of Incorporation, Bylaws, a resolution of the shareholders or directors, an
agreement or otherwise, shall be valid unless consistent with Section 317 of the
California General Corporation Law. Nothing contained in this Article shall
affect any right to indemnification to which persons other than such directors
and officers may be entitled by contract or otherwise.
11
SECTION 5.08. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification or
- -----------------------------------------------------
advance shall be made under this Article, except as provided in Section 5.04 or
Section 5.05 of these Bylaws in any circumstance where it appears:
(A) that it would be inconsistent with a provision of the Articles of
Incorporation, Bylaws, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
(B) that it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
SECTION 5.09. INSURANCE. The Corporation shall have the power to buy and
- ------------------------
maintain insurance on behalf of any agent of the Corporation of the Corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the Corporation
would have the power to indemnify the agent against such liability under the
provisions of this Article.
SECTION 5.10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS. This
- ------------------------------------------------------------------------
Article does not apply to any proceeding against any trustee, investment manager
or other fiduciary of an employee benefit plan in his capacity as such, even
though he may also be an agent of the Corporation as defined in Section 5.01 of
these Bylaws. Nothing contained in this Article shall limit any right to
indemnification to which such a trustee, investment manager or other fiduciary
may be entitled by contract or otherwise which shall be enforceable to the
extent permitted by applicable law other than Section 317 of the California
General Corporation Law.
ARTICLE VI. MISCELLANEOUS
--------------------------
SECTION 6.01. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders
- --------------------------------------------
referred to in Section 1501 of the California General Corporation Law is
expressly waived, but nothing herein shall be interpreted as prohibiting the
Board of Directors from issuing annual or other periodic reports to
shareholders.
SECTION 6.02. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
- ----------------------------------
payment of money, notes or other evidences of indebtedness, issued in the name
of the Corporation, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
Board of Directors.
SECTION 6.03. AUTHORITY TO EXECUTE CONTRACTS. Subject to the provisions of
- ---------------------------------------------
applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, conveyance or other instrument in writing , and any assignment or
endorsements thereof, executed or entered into between the Corporation and any
other person, when signed by the chairman of the board , if there is such an
officer, the president or any vice-president, and the secretary, any assistant
secretary, the chief financial officer or any assistant financial officer of the
Corporation shall be valid and binding on the Corporation unless the other
person knew that the signing officers had no authority to execute the same. Any
such instruments may be signed by any other person or persons and in such manner
as from time to time shall be determined by the Board of Directors and, unless
so authorized by the Board of Directors, no officer, agent or employee shall
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or
amount.
SECTION 6.04. CERTIFICATES.
- ---------------------------
(A) Every holder of shares of the Corporation shall be entitled to have a
certificate signed in the name of the Corporation by the chairman of the board,
if there is such an officer, the president or a vice-president and by the chief
financial officer or an assistant financial officer or the secretary or an
assistant secretary, certifying the number of shares and the class or series of
shares owned by the shareholder. Any or all of the signatures on the certificate
may be facsimiles. If 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 an officer, transfer agent or registrar at the date of issue.
12
(B) Certificates for shares may be issued before full payment under such
restrictions and for such purposes as the Board of Directors may provide;
provided, however, that on any certificate issued to represent any partly paid
shares, the total amount of the consideration to be paid therefor and the amount
paid thereon shall be stated.
(C) If the shares of the Corporation are ever classified, or if any
class of shares has two or more series, there shall appear on the certificate
one of the following:
(1) a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares
authorized to be issued upon the holders thereof;
(2) a summary of such rights, preferences, privileges and
restrictions with references to the provisions of the Articles of Incorporation
and any certificates of determination establishing the same; or
(3) a statement setting forth the office or agency of the Corpora-
tion from which shareholders may obtain, upon request and without charge, a copy
of the statement referred to in sub-division (1).
(D) There shall also appear on the certificate (unless stated or
summarized pursuant to sub-division (1) or (2) above or Section 417 of the
California General Corporation Law) the statements required by all of the
following clauses to the extent applicable:
(1) the fact that the shares are subject to restrictions on
transfer;
(2) if the shares are assessable or are not fully paid, a statement
that they are assessable or the statements required by sub-division (d) of
Section 409 of the California General Corporation Law if they are not fully
paid;
(3) the fact that the shares are subject to a voting agreement
under sub-division (a) of Section 706 of the California General Corporation Law
or an irrevocable proxy under sub-division (e) of Section 705 of the California
General Corporation Law or restrictions upon voting rights contractually imposed
by the Corporation;
(4) the fact that shares are redeemable; and
(5) the fact that the shares are convertible and the period of
conversion.
Unless stated on the certificate as required by this paragraph, no restriction
upon transfer, liability for assessment or for the unpaid portion of the
subscription price, right of redemption, voting agreement under sub-division (a)
of Section 706 of the California General Corporation Law, irrevocable proxy
under sub-division (e) of Section 705 of the California General Corporation Law
or voting restriction imposed by the Corporation shall be enforceable against a
transferee of the shares without actual knowledge of such restriction,
liability, right, agreement or proxy.
SECTION 6.05. TRANSFER OF CERTIFICATES. When a certificate for shares is
- ---------------------------------------
presented to the Corporation or its transfer clerk or transfer agent with a
request to register the transfer, the Corporation shall register the transfer,
cancel the certificate presented, and issue a new certificate if: (a) the
security is endorsed by the appropriate person or persons; (b) reasonable
assurance is given that those endorsements are genuine and effective; (c) the
Corporation has no notice of adverse claims or has discharged any duty to
inquire into such adverse claims; (d) any applicable law relating to the
collection of taxes has been complied with; and (e) the transfer is not in
violation of any federal or state securities law. Where a certificate has been
lost, destroyed or wrongfully taken, the Corporation shall issue a new
certificate in place of the original if the owner: (a) so requests before the
Corporation has notice that the certificate has been acquired by a bona fide
purchaser; (b) files with the Corporation a sufficient indemnity bond; and (c)
satisfies any other reasonable requirements as may be imposed by the Board of
Directors. Except as provided above, no new certificate for shares shall be
issued in lieu of an old certificate unless the Corporation is ordered to do so
by a court in the judgement in an action brought under Section 419(b) of the
California General Corporation Law.
13
SECTION 6.06. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The president
- -------------------------------------------------------------
or any vice-president and the secretary or assistant secretary of the
Corporation are authorized to vote, represent and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the Corporation. The authority herein
granted to said officers to vote or represent on behalf of the Corporation any
and all shares held by the Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
SECTION 6.07. EMPLOYEE STOCK PURCHASE PLANS.
- --------------------------------------------
(A) The Corporation may adopt and carry out a stock purchase plan or
agreement or stock option plan or agreement, providing for the issuance and
sale, for such consideration as may be fixed, of its unissued shares, or of
issued shares re-acquired or to be re-acquired, to one or more of the employees
or directors of the Corporation or of a subsidiary or to a trustee on their
behalf and for the payment for such shares in installments or at one time, and
may provide for aiding any such persons in paying for such shares by
compensation for services rendered, promissory notes, or other rights.
(B) Any such stock purchase plan or agreement or stock option plan or
agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, the reservation of title until full payment
therefor, the effect of the termination of employment, an option or obligation
on the part of the Corporation to repurchase the shares upon termination of
employment, subject to provisions of Chapter 5 of the California General
Corporation Law, restrictions upon transfer of the shares and the time limits of
and termination of the plan, and any other matters, not in violation of
applicable law, as may be included in the plan as approved or authorized by the
Board of Directors or any committee of the Board.
SECTION 6.08. 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 Bylaws. 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.
SECTION 6.09. AMENDMENTS. Except as otherwise provided in the Articles of
- -------------------------
Incorporation or in Section 3.02 of these Bylaws, these Bylaws, or any of them,
may be altered, amended or repealed, and the new Bylaws may be made, (I) by the
Board of Directors, or (ii) by the affirmative vote of the holders of a majority
of the outstanding shares of voting stock of the Corporation. Any Bylaws made
or altered by the shareholders may be altered or repealed by the Board of
Directors or may be altered or repealed by the shareholders.
14