EXHIBIT 3.2(b)
AMENDED BY-LAWS
OF
IMPERIAL BUSINESS CREDIT, INC.
a California corporation
ARTICLE I
OFFICES
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Section 1. PRINCIPAL OFFICE. The principal office for the transaction of
business of the corporation is hereby fixed and located at 16935 West Bernardo
Drive, Suite 150, San Diego, California 92127.
BY-LAWS
OF
FCAC NEWCO CORPORATION
a California corporation
ARTICLE I
OFFICES
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Section 1. PRINCIPAL OFFICE. The principal office for the transaction
of business of the corporation is hereby fixed and located at 21371 Irvine
Avenue, Suite 104, Santa Ana Heights, California 92707.
The location may be changed by approval of a majority of the authorized
Directors, and additional offices may be established and maintained at such
other place or places, either within or outside California, as the Board of
Directors may from time to time designate.
Section 2. OTHER OFFICES. Branch or subordinate 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.
ARTICLE II
DIRECTORS - MANAGEMENT
----------------------
Section 1. RESPONSIBILITY OF BOARD OF DIRECTORS. Subject to the
provisions of the General Corporation Law and to any limitations in the Articles
of Incorporation of the corporation relating to action required to be approved
by the Shareholders, as that term is defined in Section 153 of the California
Corporations Code (hereafter "Code"), or by the outstanding shares, as that term
is defined in Section 152 of the Code, 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 (hereafter "Board"). The Board 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.
Section 2. STANDARD OF CARE. Each Director shall perform the duties of
a Director, including the duties as a member of any committee of the Board upon
which the Director may serve, in good faith, in a manner such Director believes
to be in the best interest of the corporation, and with such care, including
reasonable inquiry, as an ordinary prudent person in a like position would use
under similar circumstances.
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Section 3. NUMBER AND QUALIFICATION OF DIRECTORS.
The authorized number of Directors shall be no less than three (3) or
more than five (5) provided, however, that (1) before shares are issued, the
number may be one, (2) before shares are issued, the number may be two, (3) so
long as the corporation has only one shareholder, the number may be one, (4) so
long as the corporation has only one shareholder, the number may be two, and
(5) so long as the corporation has only two shareholders, the number may be
two. The indefinite number of directors may be changed, or a definite number
fixed without provision for an indefinite number, by an amendment to this by-
law duly adopted by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that an amendment
reducing the number or the minimum number of directors to a number less than
five (5) cannot be adopted if the votes cast against its adoption at a meeting
of the shareholders, or the shares not consenting in the case of action by
written consent, are equal to more than 16 2/3% of the outstanding shares
entitled to vote. No amendment may change the stated maximum number of
authorized directors to a number greater than two times the stated minimum
number of authorized directors to a number greater than two times the stated
minimum number of directors minus one. Directors need not be shareholders.
Section 4. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall
be elected at each annual meeting of the Shareholders to hold office until the
next annual meeting. Each Director, including a Director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
Section 5. VACANCIES. Vacancies in the Board may be filled at a
meeting by a majority of the remaining Directors, though less than a quorum, by
the unanimous written consent of the directors then in office or by a sole
remaining Director, except that a vacancy created by the removal of a director
by the vote or written consent of the shareholders or by court order may be
filled only by (i) the vote of a majority of the shares entitled to vote
represented at a duly held meeting at which a quorum is present or (ii) the
written consent of holders of a majority of the outstanding shares entitled to
vote. Each Director so elected shall hold office until the next annual meeting
of the Shareholders and until a successor has been elected and qualified.
A vacancy or vacancies in the Board shall exist (i) in the event of
the death, resignation, or removal of any Director; (ii) if the Board by
resolution declares vacant the office of a Director who has been declared of
unsound mind by an order of court or convicted of a felony; (iii) if the
authorized number of Directors is increased; or (iv) if the shareholders fail,
at any meeting of shareholders at which any Director or Directors are elected,
to elect the number of Directors to be voted for at that meeting.
The Shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors, but any such election by
written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any Director may resign effective on giving written notice to the
Chairman of the Board, the President, the Secretary, or the Board, unless the
notice specifies a later time for that resignation to become effective. If the
resignation of a Director is effective at a future time, the Board may elect a
successor to take office when the resignation becomes effective.
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No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
Section 6. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual Director may be removed from office as provided by Sections 303 and
304 of the Code. Any such vacancy or vacancies thereby created shall be filled
by a majority vote of the Directors, provided, however, if there are no
Directors remaining in office, then by a majority vote of the shares entitled to
vote represented at a special meeting at which a quorum is present, or, by the
written consent of holders of a majority of the outstanding shares entitled to
vote.
Section 7. NOTICE, PLACE AND MANNER OF MEETINGS. Meetings of the Board
of Directors may be called by the Chairman of the Board, or the President, or
any Vice-President, or the Secretary, or any two (2) Directors and shall be
held at the principal office of the corporation, unless some other place is
designated in the notice of the meeting. Members of the Board may participate in
a meeting through use of a conference telephone or similar communications
equipment so long as all members participating in such a meeting can hear one
another. Accurate minutes of any meeting of the Board or any committee thereof,
shall be maintained by the Secretary or other Officer designated for that
purpose.
Section 8. ANNUAL MEETINGS. The annual meeting of the Board shall be
held immediately following the adjournment of the annual meeting of the
Shareholders.
Section 9. SPECIAL MEETINGS - NOTICES - WAIVERS. Special meetings
of the Board may be called at any time by the President or, if he or she is
absent, unable, or refuses to act, by any Vice President or the Secretary or by
any two (2) Directors, or by one (1) Director if only one is provided.
At least forty-eight (48) hours notice of the time and place of special
meetings shall be delivered personally to the Directors or personally
communicated to them by a corporate Officer by telephone or telegraph. If the
notice is sent to a Director by letter, it shall be addressed to him or her at
his or her address as it is shown upon the records of the corporation, or if it
is not so shown on such records or is not readily ascertainable, at the place in
which the meetings of the Directors are regularly held. In case such notice is
mailed, it shall be deposited in the United States mail, postage prepaid, in the
place in which the principal office of the corporation is located at least four
(4) days prior to the time of the holding of the meeting. Such mailing,
telegraphing, telephoning or delivery as above provided shall be due, legal and
personal notice to such Director.
If (i) all or a majority of the Directors are present at any Directors'
meeting and said meeting is not properly called or noticed as set forth in these
By-Laws and all directors, including those not present, sign a waiver of notice
of such meeting or a consent to holding the meeting or an approval of the
minutes thereof, whether prior to or after the holding of such meeting, which
said waiver, consent or approval shall be filed with the Secretary of the
corporation, or, (ii) a Director attends a meeting without notice but without
protesting, prior thereto or at its commencement, the lack of notice, then the
transactions thereof are as valid as if had at a meeting regularly called and
noticed.
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Section 10. ACTION WITHOUT A MEETING BY WRITTEN CONSENT.
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 individually or
collectively consent in writing to that action. Any action by written consent
shall have the same effect as a unanimous vote of the board of directors. All
such written consents shall be filed with the minutes of the proceedings of the
board of directors.
Section 11. QUORUM. A majority of the number of Directors as fixed by
these By-Laws shall be necessary to constitute a quorum for the transaction of
business, and the action of a majority of the Directors present at any meeting
at which there is a quorum, when duly assembled, is valid as a corporate act;
provided that a minority of the Directors, in the absence of a quorum, may
adjourn from time to time, but may not transact any business. 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 a majority of
the required quorum for such meeting.
Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given to absent Directors if the time
and place be fixed at the meeting adjourned and held within twenty-four (24)
hours, but if adjourned more than twenty-four (24) hours, notice shall be given
to all Directors not present at the time of the adjournment.
Section 13. COMPENSATION OF DIRECTORS. Directors, as such, shall not
receive any stated salary for their services, but by resolution of the Board a
fixed sum and expense of attendance, if any, may be allowed for attendance at
each regular and special meeting of the Board; provided that nothing herein
contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 14. COMMITTEES. Committees of the Board may be appointed by
resolution passed by a majority of the whole Board. Committees shall be composed
of two (2) or more members of the Board, and shall have such powers of the Board
as may be expressly delegated to it by resolution of the Board, except those
powers expressly made non-delegable by Section 311 of the Code.
Section 15. ADVISORY DIRECTORS. The Board may, from time to time, elect
up to three persons to be Advisory Directors who shall not by such appointment
be members of the Board or have voting power. Advisory Directors shall be
available from time to time to perform special assignments specified by the
Board, to attend meetings of the Board upon invitation and to furnish
consultation to the Board. The period during which the title shall be held may
be prescribed by the Board. If no period is prescribed, the title shall be held
at the pleasure of the Board. Such Advisory members may receive such
compensation as the Board may determine.
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ARTICLE III
OFFICERS
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Section 1. OFFICERS. The Officers of the corporation shall be a
Chairman of the Board or a President or both; a Secretary, and a Chief Financial
Officer. The corporation may also have, at the discretion of the Board, one or
more Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other Officers as may be appointed in accordance with the
provisions of Section 3 of this Article III. Any number of offices may be held
by the same person.
Section 2. ELECTION. The Officers of the corporation, except such
Officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article, shall be elected annually by the Board, and each
shall hold office until he or she shall resign or shall be removed or otherwise
disqualified to serve, or a successor shall be elected and qualified.
Section 3. SUBORDINATE OFFICERS, ETC. The Board may appoint such other
Officers as the business of the corporation may require, each of whom shall hold
office for such period, have such authority and perform such duties as are
provided in these By-Laws or as the Board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights,
if any, of an Officer under any contract of employment, any Officer may be
removed, either with or without cause, by the Board, at any regular or special
meeting of the Board, or, except in case of an Officer chosen by the Board, by
any Officer upon whom such power of removal may be conferred by the Board.
Any Officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the Officer is a
party.
Section 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 that office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board or prescribed by these By-Laws. If there is no President,
the Chairman of the Board shall in addition be the Chief Executive Officer of
the corporation and shall have the powers and duties prescribed in Section 7 of
this Article III.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman of the Board, if there be such an
officer, the President shall be the Chief Executive Officer of the corporation
unless otherwise provided by the Board. The President shall, subject to the
control of the Board, have general supervision, direction and control of the
business and Officers of the corporation. He or she shall preside at all
meetings
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of the Shareholders and in the absence of the Chairman of the Board, or if there
be none, at all meetings of the Board. The President 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 or these By-Laws.
Section 8. VICE PRESIDENTS. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board, or if not ranked, the Vice President designated by the Board, shall
perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to, all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board or these By-
Laws.
Section 9. SECRETARY. The Secretary shall keep, or cause to be kept, a
book of minutes at the principal office or such other place as the Board may
order, of all meetings of Directors and Shareholders, 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 Shareholders' meetings and the proceedings
thereof.
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
duplicate share register, showing the names of the Shareholders and their
addresses; the number and classes of shares held by each; the number and date of
certificates issued for the same; and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the Shareholders and of the Board required by these By-Laws or by
law to be given. He or she shall keep, or cause to be kept, the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board or by these By-Laws.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained in accordance with
generally accepted accounting principles, adequate and correct accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
earnings (or surplus) and shares. The books of account shall at all reasonable
times be open to inspection by any Director.
This Officer or his designee 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. He or she shall disburse the
funds of the corporation as may be ordered by the Board, shall render to the
President and Directors, whenever they request it, an account of all of his or
her transactions 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 or these By-Laws.
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ARTICLE IV
SHAREHOLDERS' MEETINGS
----------------------
Section 1. PLACE OF MEETINGS. All meetings of the Shareholders shall be
held at the principal office of the corporation unless some other appropriate
and convenient location be designated for that purpose from time to time by the
Board.
Section 2. ANNUAL MEETINGS. The annual meeting of the Shareholders
shall be held, each year, on such date and at such time as is determined by the
Board of Directors.
At the annual meeting, the Shareholders shall elect a Board of
Directors, consider reports of the affairs of the corporation and transact such
other business as may be properly brought before said meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the Shareholders may
be called at any time by the Board of Directors, the Chairman of the Board, the
President, a Vice President, the Secretary, or by one or more Shareholders
holding not less than one-tenth (1/10) of the voting power of the corporation.
Except as provided hereafter, notice shall be given as for the annual meeting.
Upon receipt of a written request addressed to the Chairman, President,
Vice President, or Secretary, mailed or delivered personally to such Officer by
any person (other than the Board) entitled to call a special meeting of
Shareholders, such Officer 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 such request. If such notice is not given
within twenty (20) days after receipt of such request, the persons calling the
meeting may give notice thereof in the manner provided by these By-Laws or apply
to the Superior Court as provided in Section 305(c) of the Code.
Section 4. NOTICE OF MEETINGS - REPORTS. Notice of meetings, annual or
special, shall be given in writing not less than ten (10) nor more than sixty
(60) days before the date of the meeting to Shareholders entitled to vote
thereat. Such notice shall be given by the Secretary or the Assistant Secretary,
or if there be no such Officer, or in the case of his or her neglect or refusal,
by any Director or Shareholder.
Such notices or any reports shall be given personally or by mail or
other means of written communication as provided in Section 601 of the Code and
shall be sent to the Shareholder's address appearing on the books of the
corporation, or supplied by him or her to the corporation for the purpose of
notice, and in the absence thereof, as provided in said Section 601.
Notice of any meeting of Shareholders shall specify the place, the day
and the hour of meeting, and (i) in 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 an annual meeting, those matters which the Board at date
of mailing, intends to present for action by the Shareholders. At any meetings
where Directors are to be elected, notice shall include the names of the
nominees, if any, intended at date of notice to be presented by management for
election.
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If a Shareholder supplied no address, notice shall be deemed to have
been given if mailed to the place where the principal office of the corporation,
in California, is situated, or published at least once in some newspaper of
general circulation in the County of said principal office.
Notice shall be deemed given at the time it is delivered personally or
deposited in the mail or sent by other means of written communication. The
Officer giving such notice or report shall prepare and file an affidavit or
declaration thereof.
When a meeting is adjourned for forty-five (45) days or more, notice of
the adjourned meeting shall be given as in the case of an original meeting,
provided, however, it shall not be necessary to give any notice of adjournment
or of the business to be transacted at an adjourned meeting other than by
announcement at the meeting at which such adjournment is taken.
Section 5. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDER. The
transactions of any meeting of Shareholders, however called and noticed, shall
be as valid as though said transactions occurred at a meeting duly held after
regular call and notice, if a quorum be present either in person or by proxy,
and if, either before or after the meeting, each of the Shareholders entitled to
vote, not present in person or by proxy, sign 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 approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Attendance shall
constitute a waiver of notice, unless objection shall be made as provided in
Section 601(e) of the Code.
Section 6. SHAREHOLDERS ACTING WITHOUT A MEETING - ELECTION OF
DIRECTORS. Any action which may be taken at a meeting of the Shareholders, may
be taken without a meeting or notice of meeting if authorized by a writing
signed by all of the Shareholders entitled to vote at a meeting for such
purpose, and filed with the Secretary of the corporation, provided, further,
that while ordinarily Directors can only be elected by unanimous written consent
under Section 603(d) of the Code, if the Directors fail to fill a vacancy, then
a Director to fill that vacancy may be elected by the written consent of persons
holding a majority of shares entitled to vote for the election of Directors.
Section 7. OTHER ACTIONS WITHOUT A MEETING. Unless otherwise provided
in the Code, any action which may be taken at any annual or special meeting of
Shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, signed by the holders of
the outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted.
Unless the consents of all Shareholders entitled to vote have been
solicited in writing,
(l) Notice of any Shareholder approval pursuant to Sections 310,
317, 1201 or 2007 of the Code without a meeting by less than unanimous
written consent shall be given at least ten (10) days before the
consummation of the action authorized by such approval, and
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(2) Prompt notice shall be given of the taking of any other
corporate action approved by Shareholders without a meeting by less than
unanimous written consent, to each of those Shareholders entitled to vote
who have not consented in writing.
Any Shareholder giving a written consent, or the Shareholder's
proxyholders, or a transferee of the shares of 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 8. QUORUM. The holders of a majority of the shares entitled to
vote thereat, present in person, or represented by proxy, shall constitute
a quorum at all meetings of the Shareholders for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation of the
corporation, or by these By-Laws. If, however, such majority shall not be
present or represented at any meeting of the Shareholders, the Shareholders
entitled to vote thereat, present in person, or by proxy, shall have the power
to adjourn the meeting from time to time, until the requisite amount of voting
shares shall be present. At such adjourned meeting at which the requisite amount
of voting shares shall be represented, any business may be transacted which
might have been transacted at a meeting as originally noticed.
If a quorum be initially present, the Shareholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum, if any action taken is approved by a
majority of the Shareholders required to initially constitute a quorum.
Section 9. VOTING. Only persons in whose names shares entitled to vote
stand on the stock records of the corporation on the day of any meeting of
Shareholders, unless some other day be fixed by the Board for the determination
of Shareholders of record, and then on such other day, shall be entitled to vote
at such meeting.
Provided that prior to the voting at a meeting, a candidate's name has
been placed in nomination and one or more Shareholders has given notice at the
meeting of the Shareholder's intent to cumulate the Shareholder's votes, every
Shareholder entitled to vote at any election for Directors of any corporation
for profit may cumulate their 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 or her shares are entitled, or distribute his or her votes on the
same principle among as many candidates as he or she thinks fit. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination.
The candidates receiving the highest number of votes up to the number
of Directors to be elected are elected.
The Board of Directors may fix a time in the future not exceeding
thirty (30) days nor less than ten (10) preceding the date of any meeting of
Shareholders or the date fixed for the payment of any dividend or distribution,
or for the allotment of rights, or when any change or conversion or exchange of
shares shall go into effect, as a record date for the determination of
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the Shareholders entitled to notice of and to vote at any such meeting, or
entitled to receive any such dividend or distribution, or any allotment of
rights, or to exercise the rights in respect to any such change, conversion or
exchange of shares. In such case only Shareholders of record on the date so
fixed shall be entitled to notice of and to vote at such meeting, or to receive
such dividends, distribution or allotment of rights, or to exercise such rights,
as the case may be notwithstanding any transfer of any share on the books of the
corporation after any record date fixed as aforesaid. The Board of Directors may
close the books of the corporation against transfers of shares during the whole
or any part of such period.
Section 10. PROXIES. Every Shareholder entitled to vote, or to execute
consents, may do so, either in person or by written proxy, executed in
accordance with the provisions of Sections 604 and 705 of the Code and filed
with the Secretary of the corporation.
Section 11. ORGANIZATION. The President, or in the absence of the
President, any Vice President, shall call the meeting of the Shareholders to
order, and shall act as chairman of the meeting. In the absence of the President
and all of the Vice Presidents, Shareholders shall appoint a chairman for such
meeting. The Secretary of the corporation shall act as Secretary of all meetings
of the Shareholders, but in the absence of the Secretary at any meeting of the
Shareholders, the presiding Officer may appoint any person to act as Secretary
of the meeting.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting of
Shareholders the Board of Directors may, if they so elect, appoint inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election be not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any such meeting may, and on the request of any
Shareholder or his or her proxy shall, make such appointment at the meeting in
which case the number of inspectors shall be either one (1) or three (3) as
determined by a majority of the Shareholders represented at the meeting.
ARTICLE V
CERTIFICATES AND TRANSFER OF SHARES
-----------------------------------
Section 1. CERTIFICATES FOR SHARES. Certificates for shares shall be of
such form and device as the Board may designate and shall state the name of the
record holder of the shares represented thereby; its number; date of issuance;
the number of shares for which it is issued; a statement of the rights,
privileges, preferences and restrictions, if any; a statement as to the
redemption or conversion, if any; a statement of liens or restrictions upon
transfer or voting, if any; if the shares be assessable or, if assessments are
collectible by personal action, a plain statement of such facts.
All certificates shall be signed in the name of the corporation by the
Chairman of the Board or Vice Chairman of the Board or the President or Vice
President and by the Chief Financial Officer or 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
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on a certificate shall have ceased to be that Officer, transfer agent, or
registrar before that certificate is issued, it may be issued by the corporation
with the same effect as if that person were an Officer, transfer agent, or
registrar at the date of issue.
Section 2. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. LOST OR DESTROYED CERTIFICATES. Any person claiming a
certificate of stock to be lost or destroyed shall make an affidavit or
affirmation of that fact and shall, if the Directors so require, give the
corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the Board, in at least double the value of the stock represented
by said certificate, whereupon a new certificate may be issued in the same tenor
and for the same number of shares as the one alleged to be lost or destroyed.
Section 4. TRANSFER AGENTS AND REGISTRARS. The Board may appoint one or
more transfer agents or transfer clerks, and one or more registrars, which shall
be an incorporated bank or trust company, either domestic or foreign, who shall
be appointed at such times and places as the requirements of the corporation may
necessitate and the Board may designate.
Section 5. CLOSING STOCK TRANSFER BOOKS - RECORD DATE. 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.
If no record date is fixed, the record date for determining
Shareholders entitled to notice of or to vote at a meeting of Shareholders shall
be at the close of business on the business day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held. The record
date for determining Shareholders entitled to give consent to corporate action
in writing without a meeting, when no prior action by the Board is necessary,
shall be the day on which the first written consent is given.
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.
Section 6. LEGEND CONDITION. In the event any shares of the corporation
are issued pursuant to a permit or exemption therefrom requiring the imposition
of a legend condition, the person or persons issuing or transferring said shares
shall make said legend appear on the certificate and on the stub relating
thereto in the stock record book and shall not be
11
required to transfer any shares free of such legend unless an amendment to such
permit or a new permit be first issued so authorizing such a deletion.
ARTICLE VI
RECORDS - REPORTS - INSPECTION
------------------------------
Section 1. RECORDS. The corporation shall maintain, in accordance with
generally accepted accounting principles, adequate and correct accounts, books
and records of its business and properties. All of such books, records and
accounts shall be kept at its principal office in the State of California, as
fixed by the Board from time to time.
Section 2. INSPECTION OF BOOKS AND RECORDS. All books and records
provided for in Section 1500 of the Code shall be open to inspection by the
Directors and Shareholders from time to time and in the manner provided in
Section 1600 through 1602, inclusive, of the Code.
Section 3. CERTIFICATION AND INSPECTION OF BY-LAWS. The original or a
copy of these By-Laws, as amended from time to time, certified by the Secretary,
shall be kept at the corporation's principal office and shall be open to
inspection by the Shareholders of the corporation at all reasonable times during
office hours.
Section 4. 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 payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board.
Section 5. CONTRACTS, ETC. -- HOW EXECUTED. The Board, except as
otherwise provided by these By-Laws, may authorize any Officer or Officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation. Such authority may be general or
confined to specific instances. Unless so authorized by the Board, no Officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or agreement, or to pledge its credit, or to render it liable for
any purpose or to any amount, except as provided in Section 313 of the Code.
ARTICLE VII
ANNUAL REPORTS
--------------
Section 1. WAIVER OF ANNUAL REPORTS TO SHAREHOLDER. The annual report
to Shareholders referred to in Section 1501 of the Code is expressly waived so
long as the corporation shall have less than one hundred (100) Shareholders.
However, nothing herein shall be interpreted as prohibiting the Board from
issuing annual or other periodic reports to the Shareholders of the corporation
as they consider appropriate.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
---------------------
Section 1. AMENDMENTS. After initial By-Laws of the corporation shall
have been adopted by the incorporator or incorporators of the corporation, the
By-Laws may be
12
amended or repealed or new By-Laws may be adopted by the shareholders entitled
to exercise a majority of the voting power or by the Board of Directors;
provided, however, that the Board of Directors shall have no control over any
By-Law which changes the authorized number of directors of the corporation;
provided, further, than any control over the By-Laws herein vested in the Board
of Directors shall be subject to the authority of the aforesaid shareholders to
amend or repeal the By-Laws or to adopt new By-Laws; and provided further than
any By-Law amendment or new By-law which changes the minimum number of
directors to fewer than five shall require authorization by the greater
proportion of voting power of the shareholders as hereinbefore set forth.
Section 2. RECORD OF AMENDMENTS. Whenever an amendment or new By-Law is
adopted, it shall be copied in the book of By-Laws with the original By-Laws, in
the appropriate place. If any By-Law is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written assent was filed
shall be stated in said book.
ARTICLE IX
CORPORATE SEAL
--------------
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the corporation, the date of its incorporation, and the
word "California".
ARTICLE X
CORPORATE LOANS
---------------
Section 1. LIMITATION ON CORPORATE LOANS AND GUARANTEES. Except as
provided in Section 2 of this Article X, the corporation shall not make any
loan of money or property to, or guaranty the obligation of, any director or
officer of the corporation or its parent or subsidiary, unless the transaction,
or an employee benefit plan authorizing such loans or guarantees, after
disclosure of the right under such a plan to include officers or directors,
(a) is approved by the vote of a majority of the shares, with the
shares owned by the director or officer, or by the director or
officer then eligible to participate in such plan not being
entitled to vote thereon, or
(b) is approved by the unanimous vote of the shareholders.
Section 2. PERMISSIBLE CORPORATE LOANS AND GUARANTEES. Notwithstanding
the provisions of Section 1 of this Article X:
(a) the Board alone is authorized to and may approve a loan of money or
property to, or guaranty the obligation of, any officer, whether or
not a director, or an employee benefit plan authorizing such a loan
or guaranty to an officer, by a vote sufficient without counting
the vote of any interested director or directors: if (i) the
corporation has outstanding shares held of record by 100 or more
persons (determined as provided in Section 605 of the Code) on the
date of approval by the Board; and
13
(ii) the Board determines that such a loan or guaranty or plan may
reasonably be expected to benefit the corporation;
(b) the corporation may make any loan of money or property to, or
guaranty the obligation of, any person upon the security of shares
of the corporation, if the loan or guaranty is: (i) otherwise
adequately secured; (ii) made pursuant to an employee benefit plan
permitted by Section 408 of the Code; (iii) approved by the
shareholders with the shares owned by the borrower not entitled to
vote; or (iv) approved by the unanimous vote of the shareholders;
(c) the corporation may advance money to a director or officer of the
corporation or of its parent or any subsidiary for any expenses
reasonably anticipated to be incurred in the performance of the
duties of such director or officer, provided that in the absence of
such advance such director or officer would be entitled to be
reimbursed for such expenses by the corporation, its parent or any
subsidiary; and
(d) the corporation may make any payment of premiums, in whole or in
part, on a life insurance policy on the life of any director or
officer so long as repayment to the corporation of the amount paid
by it is secured by the proceeds of the policy and its cash
surrender value.
ARTICLE XI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
---------------------------------------
EMPLOYEES AND OTHER AGENTS
---------------------------
Section 1. AGENTS, PROCEEDINGS, AND EXPENSES. For the purposes of this
Article, "agent" means any person who is or was a director, officer, employee,
or other agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise, or
was a director, officer, employee, or agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation; "proceeding" means any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative, or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under Section 4 or Section 5(c) of this Article.
Section 2. ACTIONS OTHER THAN BY THE CORPORATION. The corporation
shall 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 such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction, or
14
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the persons' conduct was
unlawful.
Section 3. ACTIONS BY THE CORPORATION. The corporation shall indemnify
any person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was
an agent of the corporation, against expenses actually and reasonably incurred
by such person in connection with the defense or settlement of such action if
such person acted in good faith, in a manner such person believed to be in the
best interests of the corporation. No indemnification shall be made under this
Section 3 for any of the following:
(a) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation and its
shareholders, unless and only to the extent that the court in which such
proceeding is or was pending shall determine upon application that, in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for the expenses which the court shall determine; or
(b) Of amounts paid in settling or otherwise disposing of a pending
action without court approval; or
(c) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
Section 4. SUCCESSFUL DEFENSE BY AGENT. To the extent that an agent
of the corporation has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 of this Article, or in defense of any
claim, issue, or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED APPROVAL. Except as provided in Section 4 of this
Article, any indemnification under this Article shall be made by the corporation
only if authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Sections 2 or 3 of this
Article; by any of the following:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding; or
(b) If such a quorum of directors is not obtainable, by independent
legal counsel in a written opinion; or
(c) Approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote thereon. For the
purposes of this subsection, "approval of the shareholders" means approved
or ratified by the affirmative vote of a
15
majority of the shares of the corporation represented and voting at a duly
held meeting at which a quorum is present (which shares voting
affirmatively shall also constitute at least a majority of the required
quorum) or by the written consent signed by the holders of a majority of
the outstanding shares entitled to vote, which written consent shall be
procedurally procured in the manner provided by law; or
(d) The court in which the proceeding is or was pending upon
application made by the corporation or the agent of the attorney or other
person rendering services in connection with the defense, whether or not
such application by the agent, attorney, or other person is opposed by the
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the corporation before the final disposition of
the proceedings on receipt of an undertaking by or on behalf of the agent to
repay the amount of the advance unless it shall be determined ultimately that
the agent is entitled to be indemnified as authorized in this Article.
Section 7. OTHER RIGHTS AUTHORIZED. The indemnification provided by
this Article shall not be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
shareholders, or vote of disinterested directors or otherwise, both as to action
in an official capacity and as to action in another capacity while holding such
office, to the extent such additional rights to indemnification are authorized
in the Articles of Incorporation of the corporation. Nothing contained in this
Section shall affect any right to indemnification to which persons other than
directors and officers of the corporation or any subsidiary hereof may be
entitled by contract or otherwise.
Section 8. LIMITATIONS. No indemnification or advance shall be made
under this Article, except as provided in Section 4 or Section 5(c), in any
circumstance where it appears:
(a) That it would be inconsistent with a provision of the articles,
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 9. INSURANCE. Upon and in the event of a determination by the
board of directors of the corporation to purchase such insurance, the
corporation shall purchase and maintain insurance on behalf of any agent 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 that liability
under the provisions of this Section.
Section 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN. This
Article does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in that person's
capacity as such, even though that person
16
may also be an agent of the corporation as defined in Section 1 of this Article.
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 this Article.
Section 11. RIGHT TO INDEMNITY CONTINUES. The rights to indemnity
provided for in this Article shall continue as to a person who has ceased to be
a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person.
ARTICLE XII
MISCELLANEOUS
-------------
Section 1. REPRESENTATION OF SHARES IN OTHER CORPORATIONS. Shares of
other corporations standing in the name of the corporation may be voted or
represented and all incidents thereto may be exercised on behalf of the
corporation by the Chairman of the Board, the President or any Vice President
and the Secretary or an Assistant Secretary.
Section 2. SUBSIDIARY CORPORATIONS. Shares of the corporation owned by
a subsidiary shall not be entitled to vote on any matter. A subsidiary for these
purposes is defined as a corporation, the shares of which possessing more than
25% of the total combined voting power of all classes of shares entitled to
vote, are owned directly or indirectly through one or more subsidiaries.
Section 3. ACCOUNTING YEAR. The accounting year of the corporation
shall be a calendar year unless otherwise fixed by resolution of the Board.
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CERTIFICATE BY SECRETARY OF ADOPTION BY DIRECTORS' VOTE
- -------------------------------------------------------
I, the undersigned, do hereby certify:
That I am the duly elected and acting Secretary of IMPERIAL BUSINESS
CREDIT, INC., a California corporation, that the foregoing Amended By-Laws,
comprising eighteen (18) pages, constitute the By-Laws of said corporation as
duly adopted by action of the Board of Directors of the corporation on July 1,
1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said corporation on this 3rd day of July 1996.
---
By: /s/ ANTHONY E. MANISCALCO II
----------------------------
Anthony E. Maniscalco II
Secretary