Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
NORTH BAY BANCORP
A California Corporation
INCLUDING AMENDMENTS THROUGH MAY 23, 2005
TABLE OF CONTENTS
ARTICLE I. Offices............................................................1
Section 1. Principal Office........................................1
Section 2. Other Offices...........................................1
ARTICLE II. Meetings of Shareholders..........................................1
Section 3. Place of Meetings.......................................1
Section 4. Annual Meetings.........................................1
Section 5. Special Meetings........................................2
Section 6. Notice of Shareholders' Meetings........................2
Section 7. Quorum..................................................2
Section 8. Adjourned Meeting.......................................3
Section 9. Waiver or Consent by Shareholders.......................3
Section 10. Action Without Meeting..................................3
Section 11. Voting Rights...........................................4
Section 12. Proxies.................................................4
Section 13. Voting by Joint Holders or Proxies......................4
Section 14. Inspectors of Election..................................4
ARTICLE III. Directors; Management............................................5
Section 15. Powers..................................................5
Section 16. Number and Qualification of Directors...................5
Section 17. Vacancies...............................................7
Section 18. Place of Meetings.......................................7
Section 19. Organizational Meetings.................................7
Section 20. Other Regular Meetings..................................7
Section 21. Special Meetings........................................7
Section 22. Quorum..................................................8
Section 23. Contents of Notice and Waiver of Notice.................8
Section 24. Adjournment.............................................8
Section 25. Notice of Adjournment...................................8
Section 26. Telephone Participation.................................8
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Section 27. Action Without Meeting..................................8
Section 28. Fees and Compensation...................................9
ARTICLE IV. Officers..........................................................9
Section 29. Officers................................................9
Section 30. Election................................................9
Section 31. Subordinate Officers....................................9
Section 32. Removal and Resignation.................................9
Section 33. Vacancies..............................................10
Section 34. Chairman of the Board..................................10
Section 35. President..............................................10
Section 36. Vice Presidents........................................10
Section 37. Secretary..............................................10
Section 38. Chief Financial Officer................................11
ARTICLE V. General Corporate Matters.........................................11
Section 39. Record Date and Closing of Stock Books.................11
Section 40. Corporate Records and Inspection by Shareholders.......12
Section 41. Checks, Drafts, Evidences of Indebtedness..............12
Section 42. Corporate Contracts and Instruments; How Executed......12
Section 43. Stock Certificates.....................................12
Section 44. Lost Certificates......................................13
Section 45. Reports to Shareholders................................13
Section 46. Indemnity of Officers, Directors, etc..................13
Section 47. Fiscal Year............................................13
Section 48. Construction and Definitions...........................13
ARTICLE VI. Amendments.......................................................13
Section 49. Amendments by Shareholders.............................13
Section 50. Amendment by Directors.................................14
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BYLAWS
OF
NORTH BAY BANCORP
(A California Corporation)
ARTICLE I.
Offices
-------
Section 1. Principal Office. The principal executive office in the State of
California for the transaction of the business of the corporation (called the
principal office) is fixed and located at 1190 Airport Road, Suite 101, Napa,
California, 94558.
The Board of Directors shall have the authority from time to time to change
the principal office from one location to another within or without the State by
amending this Section 1 of the Bylaws.
Section 2. Other Offices. One or more branches or other subordinate offices
may at any time be fixed and located by the Board of Directors at such place or
places within or without the State of California as it deems appropriate.
ARTICLE II.
Meetings of Shareholders
------------------------
Section 3. Place of Meetings. Meetings of the shareholders shall be held at
any place within the State of California that may be designated either by the
Board of Directors in accordance with these Bylaws. If no such designation is
made, the meetings shall be held at the principal office of the corporation.
Section 4. Annual Meetings. The annual meeting of the shareholders shall be
held on the 2nd Thursday of May of each year. The exact date and time of such
annual meeting shall be fixed by resolution of the Board of Directors; provided,
however, that should such day fall on a legal holiday, then the meeting shall be
held on the next succeeding business day, at which time the shareholders shall
elect a Board of Directors, consider reports of the affairs of the corporation,
and transact such other business as may properly be brought before the meeting.
If the annual meeting of shareholders shall not be held during the time
above specified, the Board of Directors shall cause such a meeting to be held as
soon thereafter as convenient and any business transacted or election held at
such meeting shall be as valid as if transacted or held at an annual meeting
during the time above specified.
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Section 5. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes whatsoever, may be called at any time by a majority of the
Board of Directors, the Chairman of the Board of Directors, the President, or by
holders of shares entitled to cast not less than 10 percent (10%) of the votes
at the meeting.
Section 6. Notice of Shareholders' Meetings. Whenever shareholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given not less than 10 (or, if sent by third class mail, 30)
nor more than 60 days before the date of the meeting to each shareholder
entitled to vote thereat. Such notice shall state the place, date and hour of
the meeting and (1) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (2) in
the case of the annual meeting, those matters which the Board of Directors, at
the time of the mailing of the notice, intends to present for action by the
shareholders, but, subject to the provisions of Section 601(f) of the California
Corporations Code, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which directors are to be elected shall
include the names of nominees intended at the time of the notice to be presented
by management for election.
Notice of a shareholders' meeting shall be given either personally or by
first class mail, or, if the corporation has outstanding shares held of record
by 500 or more persons (determined as provided in Section 605 of the California
Corporations Code) on the record date for the shareholders' meeting, notice may
be sent by third class 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 office of the corporation is located. The notice shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication.
If any notice addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at such address, all future notices shall be deemed to have been duly given
without further mailing if the same shall be available for the shareholder upon
written demand of the shareholder to the principal office of the corporation for
a period of one year from the date of the giving of the notice to all other
shareholders.
Upon request in writing to the Chairman of the Board of Directors, the
President, or the Secretary by any person entitled to call a special meeting of
shareholders, the officer forthwith shall cause notice to be given to the
shareholders entitled to vote that a meeting will be held at a time requested by
the person or persons calling the meeting, not less than 35 nor more than 60
days after the receipt of the request.
Section 7. Quorum. The presence at any meeting, in person or by proxy, of
persons entitled to vote a majority of the voting shares of the corporation
shall constitute a quorum for the transaction of business. Shareholders present
at a valid meeting at which a quorum is initially present may continue to do
business until adjournment notwithstanding the withdrawal of enough shareholders
to leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
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Section 8. Adjourned Meeting. Any annual or special shareholders' meeting
may be adjourned from time to time, even though a quorum is not present, by vote
of the holders of a majority of the voting shares present at the meeting either
in person or by proxy, provided that in the absence of a quorum, no other
business may be transacted at the meeting except as provided in Section 7 of
these Bylaws.
Notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than 45 days
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 9. Waiver or Consent by Shareholders. The transactions of any
meeting of shareholders, however called and noticed, and wherever held, are as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy, and if, either before or after
the meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except when the person
objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by Section 6 of these Bylaws or Section 601(f)
of the California Corporations Code to be included in the notice but not so
included, if such objection is expressly made at the meeting. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of shareholders need be specified in any written waiver of notice, consent to
the holding of the meeting or approval of the minutes thereof, except as
provided in Section 601(f) of the California Corporations Code.
Section 10. Action Without Meeting. 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, shall be signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted, except that unanimous written consent shall be required for election
of directors to non-vacant positions.
Unless the consents of all shareholders entitled to vote have been
solicited or received in writing, notice shall be given to non-consenting
shareholders to the extent required by Section 603(b) of the California
Corporations Code.
Any shareholder giving written consent, or the shareholder's proxy holders,
or a transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received by
the corporation prior to the time that written consents of the number of shares
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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 11. Voting Rights. Only persons in whose names shares entitled to
vote stand on the stock records of the Company at the close of business on the
record date fixed by the Board of Directors as provided in Section 41 of these
Bylaws for the determination of shareholders of record are entitled to notice of
and to vote at a meeting of shareholders.
Except as may be provided in the Articles of Incorporation or in these
Bylaws, each shareholder entitled to vote is entitled to one vote for each share
held on each matter submitted to a vote of shareholders.
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.
Voting may be by voice or ballot, provided that any election of directors
must be by ballot upon the demand of any shareholder made at the meeting and
before the voting begins.
Cumulative voting to elect directors shall not be permitted.
Section 12. Proxies. Every person entitled to vote shares may authorize
another person or persons to act by proxy with respect to such shares. All
proxies must be in writing and must be signed by the shareholder confirming the
proxy or his or her attorney-in-fact. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided in the
proxy. Every proxy continues in full force and effect until revoked by the
person executing it prior to the vote pursuant thereto, except as otherwise
provided in Section 705 of the California Corporations Code. Such revocation may
be effected by a writing delivered to the corporation stating that the proxy is
revoked or by a subsequent proxy executed by the person executing the prior
proxy and presented to the meeting, or as to any meeting, by attendance at such
meeting and voting in person by the person executing the proxy. The dates
contained on the forms of proxy presumptively determine the order of execution,
regardless of the postmark dates on the envelopes in which they are mailed.
Section 13. Voting by Joint Holders or Proxies. Shares or proxies standing
in the names of two or more persons shall be voted or represented in accordance
with the provisions of Section 704 of the California Corporations Code, so that,
if only one of such persons is present in person or by proxy, that person shall
have the right to vote all such shares, and all of the shares standing in the
names of such persons shall be deemed to be represented for the purpose of
determining a quorum.
Section 14. Inspectors of Election. In advance of any meeting of
shareholders the Board may appoint inspectors of election to act at the meeting
and any adjournment thereof. If inspectors of election are not so appointed, or
if any persons so appointed fail to appear or refuse to act, the Chairman of any
meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to replace
those who so fail or refuse) 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 represented in person or by
proxy shall determine whether one or three inspectors are to be appointed. If
there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all.
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The inspectors of election shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of proxies;
receive votes, ballots or consents; hear and determine all challenges and
questions in any way arising in connection with the right to vote; count and
tabulate all votes or consents; determine when the polls shall close; determine
the result and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
ARTICLE III.
Directors; Management
---------------------
Section 15. Powers. Subject to any provisions of the Articles of
Incorporation, of the Bylaws and of law limiting the powers of the Board of
Directors or reserving powers to the shareholders, the Board of Directors shall,
directly or by delegation, manage the business and affairs of the corporation
and exercise all corporate powers permitted by law.
Section 16. Number and Qualification of Directors The authorized number of
directors shall be not less than nine (9) nor more than seventeen (17), until
changed by amendment of the Articles of Incorporation or, if not prohibited by
the Articles, by an amendment of this bylaw adopted by the shareholders. The
exact number of directors within said range is fixed at ten (10) and may be
reduced or increased within said range by a resolution duly adopted by the Board
of Directors. Directors need not be shareholders of the corporation. No
reduction of the authorized number of directors shall have the effect of
removing any director before his or her term of office expires.
Nomination for election of members of the Board of Directors may be made by
the Board of Directors or by any shareholder of any outstanding class of capital
stock of the corporation entitled to vote for the election of directors. Notice
of intention to make any nominations shall be made in writing and shall be
delivered or mailed to the President of the corporation not less than 21 days
nor more than 60 days prior to any meeting of shareholders called for the
election of directors; provided however, that if less than 21 days' notice of
the meeting is given to shareholders, such notice of intention to nominate shall
be mailed or delivered to the President of the corporation not later than the
close of business on the tenth day following the day on which the notice of
meeting was mailed; provided further, that if notice of such meeting is sent by
third class mail as permitted by Section 6 of these Bylaws, no notice of
intention to make nominations shall be required. Such notification shall contain
the following information to the extent known to the notifying shareholder: (a)
the name and address of each proposed nominee; (b) the principal occupation of
each proposed nominee; (c) the number of shares of capital stock of the
corporation owned by each proposed nominee; (d) the name and residence address
of the notifying shareholder; and (e) the number of shares of capital stock of
the corporation owned by the notifying shareholder. Nominations not made in
accordance herewith may, in the discretion of the Chairman of the meeting, be
disregarded and upon the Chairman's instructions, the inspectors of election can
disregard all votes cast for each such nominee. A copy of this paragraph shall
be set forth in a notice to shareholders of any meeting at which directors are
to be elected.
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Section 17. Election and Term of Office. The Board of Directors is
classified into three (3) classes, the members of each class to serve for a term
of three (3) years. At the 2004 annual meeting of shareholders, nominees elected
as directors will be classified according to the recommendations of the Board of
Directors. The directors will be divided, with respect to the time for which
each will hold office, into three classes, as nearly equal in number of
directors as practicable. The term of office of the first class ("Class A") will
expire at the 2005 annual meeting of shareholders, the term of the second class
("Class B") will expire at the 2006 annual meeting of shareholders, and the term
of office of the third class ("Class C") will expire at the 2007 annual meeting
of shareholders.
At subsequent annual meetings of shareholders, the number of directors to
be elected will equal the number of directors with terms expiring at that annual
meeting, subject to the power of the Board of Directors, in its discretion, to
increase or decrease the number of directors. At each subsequent annual meeting
the directors elected will be elected for a term of three (3) years.
The Board of Directors shall increase or decrease the number of directors
in one or more classes as may be appropriate whenever it increases or decreases
the number of directors to constitute the full Board of Directors in order to
ensure that the three classes shall be as nearly equal in number of directors as
practicable.
A director will hold office until the annual meeting for the year in which
his or her term expires and until his or her successor is be elected and
qualified, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of Directors,
no matter how created, may be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy shall hold office for a term that will
coincide with the term of the class to which that director will have been
elected.
Section 18. Removal of Directors. A director may be removed from office by
the Board of Directors if he or she is declared of unsound mind by an order of
court or convicted of a felony. Any or all of the directors may be removed from
office without cause by a vote of shareholders holding a majority of the
outstanding shares entitled to vote at an election of directors; however, unless
the entire Board of Directors is removed, an individual director shall not be
removed if the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director at an election at which the
same total number of votes were cast, or, if such action is taken by written
consent, all shares entitled to vote were voted, and the entire number of
directors authorized at the time of the director's most recent election were
then being elected. A director may also be removed from office by the Superior
Court of the county in which the principal office is located, at the suit of
shareholders holding at least ten percent (10%) of the number of outstanding
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shares of any class, in case of fraudulent or dishonest acts or gross abuse of
authority or discretion with reference to the corporation, in the manner
provided by law.
Section 17. Vacancies. A vacancy or vacancies on the Board of Directors
shall exist on the death, resignation, or removal of any director, or if the
authorized number of directors is increased or the shareholders fail to elect
the full authorized number of directors.
Except for a vacancy created by the removal of a director, vacancies on the
Board of Directors may be filled by a majority of the remaining directors
although less than a quorum, or by a sole remaining director, and each director
elected in this manner shall hold office until his or her successor is elected
at an annual or special shareholders' meeting.
The shareholders may elect a director at any time to fill any vacancy not
filled by the directors. Any such election by written consent other than to fill
a vacancy created by removal requires the consent of a majority of the
outstanding shares entitled to vote.
Any director may resign effective upon giving written notice to the
Chairman of the Board of Directors, 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, a successor may be elected to take office when the resignation becomes
effective.
Section 18. Place of Meetings. Regular and special meetings of the Board of
Directors shall be held at any place within the State of California that is
designated by resolution of the Board or, either before or after the meeting,
consented to in writing by all the Board members. If the place of a regular or
special meeting is not fixed by resolution or written consents of the Board, it
shall be held at the corporation's principal office.
Section 19. Organizational Meetings. Immediately following each annual
shareholders' meeting, the Board of Directors shall hold a regular meeting to
organize, elect officers, and transact other business. Notice of this meeting
shall not be required.
Section 20. Other Regular Meetings. Other regular meetings of the Board of
Directors shall be held at least once each calendar month at such time and place
as the Board of Directors by resolution shall determine. Notice of these regular
meetings shall not be required.
Section 21. Special Meetings. Special meetings of the Board of Directors
for any purpose may be called at any time by the Chairman of the Board of
Directors, or the President, or any Vice President, or the Secretary, or any two
directors.
Special meetings of the Board shall be held upon four days' notice by mail
or 48 hours' notice delivered personally or by telephone, including a voice
messaging system or other technology designed to record and communicate
messages, telegraph, facsimile, electronic mail or other electronic means.
Notice by mail shall be deemed to have been given at the time a written notice
is deposited in the United States Mails, postage prepaid. Any other written
notice, including facsimile, telegram or electronic mail message, shall be
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deemed to have been given at the time it is personally delivered to the
recipient or is delivered to a common carrier for transmission, or actually
transmitted by the person giving the notice by electronic means, to the
recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone, including a voice messaging system or
other system or technology designed to record or communicate messages, or
wireless, to the recipient, including the recipient's designated voice mailbox
or address on such system, or to a person at the office of the recipient who the
person giving the notice has reason to believe will promptly communicate it to
the recipient.
Section 22. Quorum. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn a meeting
under Section 26 of these Bylaws. Every act done or decision made by a majority
of the directors present at a meeting at which a quorum is present shall be
regarded as the act of the Board of Directors, unless the vote of a greater
number is required by law, the Articles of Incorporation, or these Bylaws, and
subject to the provisions of Section 310 and Section 317(e) of the California
Corporations Code. 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 23. Contents of Notice and Waiver of Notice. Neither the business
to be transacted at, nor the purpose of, any regular or special Board meeting
need be specified in the notice or waiver of notice of the meeting. Notice of a
meeting need not be given to any director who signs a waiver of notice or a
consent to holding the meeting or an approval of the minutes thereof, either
before or after the meeting, or who attends the meeting without protesting,
prior thereto or at its commencement, the lack of notice to said director. All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting.
Section 24. Adjournment. A majority of the directors present, whether or
not a quorum is present, may adjourn any meeting to another time and place.
Section 25. 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
are fixed at the meeting being adjourned, except that if the meeting is
adjourned for more than 24 hours such notice shall be given prior to the
adjourned meeting to the directors who were not present at the time of the
adjournment.
Section 26. Telephone Participation. Members of the Board may participate
in a meeting through use of conference telephone or similar communications
equipment, so long as all members participating in such meetings can hear one
another. Such participation constitutes presence in person at such meeting.
Section 27. Action Without Meeting. The Board of Directors may take any
action without a meeting that may be required or permitted to be taken by the
Board at a meeting, if all members of the Board individually or collectively
consent in writing to the action. The written consent or consents shall be filed
in the minutes of the proceedings of the Board of Directors. Such action by
written consent shall have the same effect as a unanimous vote of directors.
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Section 28. Fees and Compensation. Directors and members of committees
shall receive neither compensation for their services nor reimbursement for
their expenses unless these payments are fixed by resolution of the Board. This
Section shall not be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee or otherwise,
and receiving compensation for those services.
ARTICLE IV.
Officers
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Section 29. Officers. The officers of the corporation shall be a President,
a Chief Financial Officer and a Secretary. The corporation may also have, at the
discretion of the Board of Directors, a Chairman of the Board and a Vice
Chairman of the Board (each of whom shall be chosen from the Board of
Directors), one or more Vice Presidents, one or more Cashiers, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Cashiers and/or Financial Officers, and any other officers who may be
appointed under Section 33 of these Bylaws. Any two or more offices may be held
by the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity unless authorized to do so generally or in
the specific instance by the Board of Directors.
Any officer of the corporation may be excluded by resolution of the Board
of Directors or by a provision of these Bylaws from participation, other than in
the capacity of a director, in major policy making functions of the corporation.
Upon direction by the Board of Directors, any officer or employee of the
corporation so designated shall give bond of suitable amount with security to be
approved by the Board of Directors, conditioned on the honest and faithful
discharge of his or her duties as such officer or employee. At the discretion of
the Board, such bonds may be schedule or blanket form and the premiums shall be
paid by the corporation. The amount of such bonds, the form of coverage, and the
name of the company providing the surety therefore shall be reviewed annually by
the Board of Directors. Action shall be taken by the Board at that time
approving the amount of the bond to be provided by each officer and employee of
the corporation for the ensuing year.
Section 30. Election. The officers of the corporation, except those
appointed under Section 33 of these Bylaws, shall be chosen annually by the
Board of Directors, and each shall hold his or her office until he or she
resigns or is removed or otherwise disqualified to serve, or his or her
successor is elected and qualified.
Section 31. Subordinate Officers. The Board of Directors may elect or
appoint, and may authorize the President or the Chief Executive Officer to
appoint, any other officers that the business of the corporation may require,
each of whom shall hold office for the period, have the authority, and perform
the duties specified in the Bylaws or by the Board of Directors.
Section 32. Removal and Resignation. Subject to the rights, if any, of an
officer under any contract of employment, any officer may be removed with or
without cause either by the Board of Directors at any time or, except for an
officer chosen by the Board, by any officer on whom the power of removal may be
conferred by the Board.
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Any officer may resign at any time by giving written notice to the Board of
Directors, the President or the Secretary of the corporation, but such notice
shall not prejudice the rights, if any, of the corporation under any contract of
employment to which the officer is a party. An officer's resignation shall take
effect when it is received or at any later time specified in the resignation.
Unless the resignation specifies otherwise, its acceptance by the corporation
shall not be necessary to make it effective.
Section 33. 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 election or appointment to the
office.
Section 34. Chairman of the Board. The Board of Directors may appoint one
of its members to be the Chairman to serve at the pleasure of the Board of
Directors. If appointed, the Chairman shall preside at all meetings of the Board
of Directors and of the shareholders of the corporation and shall supervise the
carrying out of the policies adopted or approved by the Board of Directors;
shall have general executive powers, as well as the specific powers conferred by
these Bylaws; and, shall also have and may exercise such further powers and
duties as from time to time may be conferred upon, or assigned by the Board of
Directors.
Section 35. President. The President shall be the corporation's chief
executive officer and shall, subject to the control of the Board of Directors,
have general supervision, direction, and control over the corporation's business
and officers. In the absence of the Chairman, the President shall preside at any
meeting of the Board of Directors or the shareholders of the corporation. The
President shall have general executive powers, shall be ex officio a member of
all the standing committees except the Audit Committee, and shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the Office of President, or imposed by these Bylaws. The President
shall also have and may exercise such further powers and duties as from time to
time may be conferred, or assigned by the Board of Directors.
Section 36. Vice Presidents. If the President is absent or is unable or
refuses to act, 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 on, the
President. Each Vice President shall have any other duties that are prescribed
for said Vice President by the Board of Directors or the Bylaws.
Section 37. Secretary. The Secretary shall keep or cause to be kept and
shall make available at the principal office and any other place that the Board
of Directors specifies, a book of minutes of all directors' and shareholders'
meetings. The minutes of each meeting shall state the time and place that it was
held; whether it was regular or special; if a special meeting, how it was
authorized; the notice given; the names of those present or represented at
shareholders' meetings; and the proceedings of the meetings. A similar minute
book shall be kept for each committee of the Board.
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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 shareholders' names and addresses, the
number and classes of shares held by each, the number and date of each
certificate issued for these shares, and the number and date of cancellation of
each certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all directors'
and shareholders' meetings required to be given under these Bylaws or by law,
shall keep the corporate seal in safe custody, and shall have any other powers
and perform any other duties that are prescribed by the Board of Directors or
these Bylaws.
The Secretary shall be deemed not to be an executive officer of the
corporation and the Secretary shall be excluded from participation, other than
in the capacity of director if the Secretary is also a director, in major policy
making functions of the corporation.
Section 38. Chief Financial Officer. The Chief Financial Officer shall be
the corporation's chief financial officer and shall keep and maintain, or cause
to be kept and maintained, adequate and correct accounts of the corporation's
properties and business transactions, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares and shall file or cause to be filed all regulatory reports required
pursuant to law or regulation. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all money and other valuables in
the name and to the credit of the corporation with the depositories designated
by the Board of Directors. The Chief Financial Officer shall disburse the
corporation's funds as 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 corporation's financial
condition; and shall have any other powers and perform any other duties that are
prescribed by the Board of Directors or Bylaws.
If required by the Board of Directors, the Chief Financial Officer shall
give the corporation a bond in the amount and with the surety or sureties
specified by the Board for faithful performance of the duties of that person's
office and for restoration to the corporation of all its books, papers,
vouchers, money, and other property of every kind in that person's possession or
under that person's control on that person's death, resignation, retirement, or
removal from office.
ARTICLE V.
General Corporate Matters
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Section 39. Record Date and Closing of Stock Books. The Board of Directors
may fix a time in the future as a record date for determining shareholders
entitled to notice of and to vote at any shareholders' meeting; to receive any
dividend, distribution, or allotment of rights; or to exercise rights in respect
of any other lawful action, including change, conversion, or exchange of shares.
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The record date shall not, however, be more than 60 nor less than 10 days prior
to the date of such meeting nor more than 60 days prior to any other action. If
a record date is fixed for a particular meeting or event, only shareholders of
record on that date are entitled to notice and to vote and to receive the
dividend, distribution, or allotment of rights or to exercise the rights, as the
case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than 45
days.
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 has been taken, shall be the day on
which the first written consent is given; and 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 60th day prior
to the date of such other action, whichever is later.
Section 40. Corporate Records and Inspection by Shareholders. Books and
records of account and minutes of the proceedings of the shareholders, Board,
and committees of the Board shall be kept available at the principal office for
inspection by the shareholders to the extent required by Section 1601 of the
California Corporations Code.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation and its subsidiary corporations,
domestic or foreign. Such inspection by a director may be made in person or by
agent or attorney and includes the right to copy and make extracts.
Section 41. Checks, Drafts, Evidences of Indebtedness. All checks, drafts,
or other orders for payment of money, notes, and all mortgages, or other
evidences of indebtedness, issued in the name of or payable to the corporation,
and all assignments and endorsements of the foregoing, shall be signed or
endorsed by the person or persons and in the manner specified by the Board of
Directors.
Section 42. Corporate Contracts and Instruments; How Executed. Except as
otherwise provided in the Bylaws, officers, agents, or employees must be
authorized by the Board of Directors to enter into any contract or execute any
instrument in the corporation's name and on its behalf. This authority may be
general or confined to specific instances.
Section 43. Stock Certificates. One or more certificates for shares for the
corporation's capital stock shall be issued to each shareholder for any of such
shareholder's shares that are fully paid. The corporate seal or its facsimile
may be fixed on certificates. All certificates shall be signed by the Chairman
of the Board, President, Chief Financial Officer and Secretary, or Assistant
Secretary. Any or all of the signatures on the certificate may be facsimile
signatures.
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Section 44. Lost Certificates. No new share certificate that replaces an
old one shall be issued unless the old one is surrendered and canceled at the
same time; provided, however, that if any share certificate is lost, stolen,
mutilated or destroyed, the Board of Directors may authorize issuance of a new
certificate replacing the old one on any terms and conditions, including
reasonable arrangement for indemnification of the corporation, that the Board
may specify.
Prior to the due presentment for registration of transfer in the stock
transfer book of the corporation, the registered owner shall be treated as the
person exclusively entitled to vote, to receive notifications and otherwise to
exercise all the rights and powers of an owner, except as expressly provided
otherwise by the laws of the State of California.
Section 45. Reports to Shareholders. The requirement for the annual report
to shareholders referred to in Section 1501(a) of the California Corporations
Code is hereby expressly waived so long as there are less than 100 holders of
record of the corporation's shares. The Board of Directors shall cause to be
sent to the shareholders such annual or other periodic reports as the Board
considers appropriate or as otherwise required by law.
If no annual report for the last fiscal year has been sent to shareholders,
the corporation shall, upon the written request of any shareholder made more
than 120 days after the close of such fiscal year, deliver or mail to the person
making the request within 30 days thereafter the financial statements referred
to in Section 1501(a) for such year.
Section 46. Indemnity of Officers, Directors, etc. The corporation shall
indemnify its "agents", as defined in Section 317 of the California Corporations
Code, to the full extent permitted by said Section, as amended from time to
time, or as permitted by any successor statute to said Section.
Section 47. Fiscal Year. The fiscal year of this corporation shall begin on
the first day of January and end on the 31st day of December of each year.
Section 48. Construction and Definitions. Unless the context otherwise
requires, the general provisions, rules of construction and definitions in the
California Corporations Code shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular includes the
plural, the plural includes the singular and the term "person" includes both a
corporation and a natural person.
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ARTICLE VI.
Amendments
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Section 49. Amendments by Shareholders. New Bylaws may be adopted or these
Bylaws may be amended or repealed by the affirmative vote or written consent of
a majority of the outstanding shares entitled to vote.
Section 50. Amendment by Directors. Subject to the right of shareholders
under the preceding Section 49, new bylaws may be adopted, or these Bylaws may
be amended, or repealed by the Board of Directors, except that only the
shareholders can adopt a by-law or amendment thereto which specifies or changes
the number of directors on a fixed-number Board of Directors or the minimum or
maximum number of directors on a variable-number Board of Directors, or which
changes from a fixed-number Board of Directors to a variable-number Board of
Directors or vice versa.
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CERTIFICATE OF SECRETARY
I, the undersigned, certify that:
1. I am the duly elected and acting Secretary of North Bay Bancorp, a
California corporation; and
2. The foregoing Amended and Restated Bylaws, consisting of fourteen (14)
pages, are the Bylaws of this corporation as duly adopted by Resolutions of the
Board of Directors of the Company dated March 29, 2004. The amendments to
Sections 11, 17, and 18 were approved at the 2003 Annual Meeting of Shareholders
on May 8, 2003. The amendment to Section 16 was approved at the 2004 Annual
Meeting of Shareholders on May 6, 2004. The amendment to Section 4 was approved
by Resolutions of the Board of Directors of the Company dated May 23, 2005.
IN WITNESS WHEREOF, I have subscribed my name and affixed the seal of this
corporation on May 23, 2005.
-----------------------------
Wyman G. Smith
Corporate Secretary
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