EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
CONSUMER PORTFOLIO SERVICES, INC.
(a California corporation)
ARTICLE I
OFFICES
Section 1. Principal Offices. The board of directors shall fix the location
-----------------------------
of the principal executive office of the corporation at any place within or
outside the State of California. If the principal executive office is located
outside this state, and the corporation has one or more business offices in this
state, the board of directors shall fix and designate a principal business
office in the State of California.
Section 2. Other Offices. The board of directors may establish other
-------------------------
business offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. Meetings of shareholders shall be held at any
-----------------------------
place within or outside the State of California designated by the board of
directors. In the absence of any such designation, shareholders' meetings shall
be held at the principal executive office of the corporation.
Section 2. Annual Meeting. The annual meetings of shareholders shall be
--------------------------
held each year on the third Tuesday of May unless another date shall be
designated by the board of directors. At each annual meeting directors shall be
elected, and any other proper business may be transacted.
Section 3. Special Meeting. A special meeting of the shareholders may be
---------------------------
called at any time by the board of directors, or by the chairman of the board,
or by the president, or by one or more shareholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at the meeting.
If a special meeting is called by any person or persons other than the board
of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president, any
vice president, or the secretary of the corporation. The officer receiving the
request shall cause notice to be promptly given to the shareholders entitled to
vote, in accordance with the provisions of Section 4 and 5 of this Article II,
that a meeting will be held at the time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after receipt of the request, the person or persons requesting the
meeting may give the notice. Nothing construed as limiting, fixing or affecting
the time when a meeting of shareholders is called by action of the board of
directors may be held.
Section 4. Notice of Shareholders' Meeting. All notices of meetings of
-------------------------------------------
shareholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall specify the place, date and hour of the
meeting. The notice shall specify the place, date and hour of the meeting and
(i) in the case of a special meeting, the general nature of the business to be
transacted, or (ii) in the case of an annual meeting, those matters which the
board of directors, at the time of giving the notice, intends to present for
action by the shareholders. The notice of any meeting at which directors are to
be elected shall include the name of any nominee or nominees whom, at the time
of the notice, management intends to present for election.
If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (ii)
an amendment of the articles of incorporation, pursuant to Section 902 of that
Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Code, (iv) a voluntary dissolution
of the corporation, pursuant to Section 1900 of that Code, with the rights of
outstanding preferred shares, pursuant to Section 2007 of that Code, the notice
shall also state the general nature of that proposal.
Section 5. Manner of Giving Notice; Affidavit of Notice. Notice of any
--------------------------------------------------------
meeting of shareholders shall be given either personally or by first-class mail
or telegraphic or other written communication, charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by first-
class mail or telegraphic or other written communication to the corporation's
principal executive office, or if published at least once in a newspaper of
general circulation in the county where that office is located. Notice shall be
deemed to have given at the time when delivered personally or deposited in the
mail or sent by telegram or the means of written communication.
If any notice addressed to a shareholder at the address of that 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 that address, all
future notices or reports shall be deemed to have been duly given without
further mailing if these shall be available to the shareholder on written demand
of the shareholder at the principal executive office of the corporation for a
period of one year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting shall be executed by the secretary, assistant secretary,
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation.
Section 6. Quorum. The presence in person or by proxy of the holders of a
------------------
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders 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.
Section 7. Adjourned Meeting; Notice. Any shareholders' meeting, annual or
-------------------------------------
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other business may be
transacted at that meeting, except as provided in Section 6 of this Article II.
When any meeting of the shareholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the board of directors shall set a new record
date. Notice of any such adjourned meeting shall be given to each shareholder
of record entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the
corporation may transact any business which might have been transacted at the
original meeting.
Section 8. Voting. The shareholders entitled to vote at any meeting of
------------------
shareholders shall be determined in accordance with the provisions of Section 11
of this Article II, subject to the provisions of Section 702 to 704, inclusive,
of the Corporations Code of California (relating to voting shares held by a
fiduciary, in the name of a corporation, or in joint ownership). The
shareholders' vote may be by voice vote or by ballot; provided, however, that
any election for directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than elections of directors,
any shareholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, but, if the
shareholder fails to specify the number of shares which the shareholder is
voting affirmatively, it will be conclusively presumed that the shareholder's
approving vote is with respect to all shares that the shareholder is entitled to
vote. If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on any
2
matter (other than the election of directors) shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by California General Corporation Law or by the Articles of
Incorporation.
Section 9. Waiver of Notice or Consent by Absent Shareholders. The
--------------------------------------------------------------
transactions of any meeting of shareholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or entitled to vote, who was 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. The waiver of notice of consent need not specify
either the business to be transacted or the purpose of any annual or special
meeting of shareholders, except that if action is taken or proposed to be taken
for approval of any of those matters specified in the second paragraph of
Section 4 of this Article II, the waiver of notice or consent shall state the
general nature of the proposal. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of notice
of that 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 not included in the notice
of the meeting if that objection is expressly made at the meeting.
Section 10. Shareholder Action By Written Consent Without a 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, signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all shares entitled to vote
on that action were present and voted. In the case of election of directors,
such a consent shall be effective only if signed by the holders of all
outstanding shares entitled to vote for the election of directors; provided,
however, that a director may be elected at any time to fill a vacancy on the
board of directors that has not been filled by the directors, by the written
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors. All such consents shall be filed with the
secretary of the corporation and shall be maintained in the corporate records.
Any shareholder giving a 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 secretary of the corporation before written consents of the number of shares
required to authorize the proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote have not been solicited
in writing, and if the unanimous written consent of all such shareholders shall
not have been received, the secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting. This notice shall be
given in the manner specified in Section 5 of this Article II. In the case of
approval of (i) contracts or transactions in which a director has a direct or
indirect financial interest, pursuant to Section 310 of the Corporations Code of
California, (ii) Section 317 of that Code, (iii) a reorganization of the
corporation, pursuant to Section 1201 of that Code, and (iv) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of that Code, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
Section 11. Record Date for Shareholder Notice, Voting, and Giving Consents.
-----------------------------------------------------------------------------
For purposes of determining the shareholders entitled to notice of any meeting
or to vote or entitled to give consent to corporate action without a meeting,
the board of directors may fix, in advance, a record date, which shall not be
more than sixty (60) days nor less than ten (10) days before the date of any
such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only shareholders of record on the date so fixed are
entitled to notice and to vote or give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as otherwise provided in the California General
Corporation Law.
If the board of directors does not so fix a record date: (a) the record date
for determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day 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 was
held; (b) the record date for determining shareholders entitled to give consent
to corporate action in writing without a meeting, (i) when no prior action by
the board has been taken, shall
3
be the day on which the first written consent is given, or (ii) when prior
action of the board has been taken, shall be at the close of business on the day
on which the board adopts the resolution relating to that action, or the
sixtieth (60th) day before the date of such other action, whichever is later.
Section 12. Proxies. Every person entitled to vote for directors or any
--------------------
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or
shareholder's attorney in fact. A validly executed proxy which does not state
that unless (i) revoked by the person executing it, before the vote pursuant to
that proxy, by a writing delivered to the corporation stating that the proxy is
revoked, or by a subsequent proxy executed by, or attendance at the meeting and
voting in person by, the person executing the proxy; or (ii) written notice of
the death or incapacity of the make of the proxy is received by the corporation
before the vote pursuant to that proxy is counted; provided, however, that no
proxy shall be valid after the expiration of eleven (11) months from the date of
the proxy, unless otherwise provided in the proxy. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 705(e) and 705(f) of the Corporations Code of California.
Section 13. Inspectors of Election. Before any meeting of shareholders, the
-----------------------------------
Board of Directors may appoint any persons other than nominees for office to act
as inspectors of election at the meeting or its adjournment. If no inspectors
of election are so appointed, the chairman of the meeting may, and on the
request of any shareholder or shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one (1) or three (3)
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder or a shareholder's proxy shall, appoint a person to
fill that vacancy.
These inspectors shall (a) 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; (b) receive
votes, ballots, or consents; (c) hear and determine all challenges and questions
in any way arising in connection with the right to vote; (d) count and tabulate
all votes or consents; (e) determine when the polls shall close; and (f) do any
other acts that may be proper to conduct the election or vote with fairness to
all shareholders.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to any provision of the California General
------------------
Corporation Law and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the shareholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
Section 2. Number and Qualification of Directors. The authorized number of
-------------------------------------------------
directors of this corporation shall be not less than five nor more than nine.
The exact number of authorized Directors shall be six until changed, within the
limits specified above, by a bylaw amending this Section 2, duly adopted by the
Board of Directors or by the Shareholders.
Section 3. 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 4. Vacancies. Vacancies in the board of directors may be filled by
---------------------
a majority of the remaining directors, though less than a quorum, or by a sole
remaining director, 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 the vote of a majority of the shares entitled to vote represented
at a duly held meeting at which a quorum is present, or by the
4
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 of directors shall be deemed to exist in
event of the death, resignation or removal of any director, or if the board of
directors 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, or if
the authorized number of directors is increased, or if 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 upon giving written notice to the chairman
of the board, the president, the secretary or the board of directors of the
corporation, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors shall have the effect or
removing any director prior to the expiration of his term of office.
Section 5. Place of Meetings and Meetings by Telephone. Regular meetings of
-------------------------------------------------------
the board of directors may be held at any place within or outside the State of
California that has been designated from time to time by resolution of the
board. In the absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special meetings of the
board may be held at any place within or outside the State of California that
has been designated in the notice of meeting, or, if not stated in the notice or
there is no notice, at the principal executive office of the corporation. Any
meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating in the meeting
can hear one another, and all such directors shall be deemed to be present in
person at the meeting.
Section 6. Annual Meeting. Immediately following each annual meeting of
--------------------------
shareholders, the board of directors shall hold a regular meeting for the
purpose of organization, any desired election of officers, and the transaction
of other business. Notice of this meeting shall not be required.
Section 7. Other Regular Meetings. Other regular meetings of the board of
----------------------------------
directors shall be held without call at such time as shall from time to time be
fixed by the board of directors. Such regular meetings may be held without
notice.
Section 8. Special Meetings. Special Meetings of the board of directors for
----------------------------
any purpose of purposes shall be called at any time by the chairman of the board
or the president or any vice president or the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. In case the notice is mailed,
it shall be deposited in the United States mail at least four (4) days before
the time of the holding of the meeting. In case the notice is delivered
personally, or be telephone or telegram, it shall be personally or by telephone
to the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose of the meeting nor
the place if the meeting is to be held at the principal executive office of the
corporation.
Section 9. Quorum. A majority of the authorized number of directors shall
------------------
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 11 of this Article III. Every act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present shall be regarded as
5
the act of the board of directors, subject to the provisions of Section 310 of
the Corporations Code of California (as to approval of contracts or transactions
in which a director has a direct or indirect material financial interest), and
Section 317(e) of that Code (as to indemnification of directors). A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the required quorum for that meeting.
Section 10. Waiver of Notice. The transactions of any meeting of the board
-----------------------------
of directors, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding the meeting or an
approval of the minutes. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents, and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any director who attends the
meeting without protesting before or at its commencement, the lack of notice to
that director.
Section 11. Adjournment. A majority of the directors present, whether or
------------------------
not constituting a quorum, may adjourn any meeting to another time and place.
Section 12. Notice of Adjournment. Notice of the time and place of holding
----------------------------------
an adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four hours, in which case notice of the time and place meeting is
adjourned for more than twenty-four house, in which case notice of the time and
place shall be given before the time of the adjourned meeting, in the manner
specified in Section 8 of this Article III, to the directors who were not
present at the time of the adjournment.
Section 13. Action Without Meeting. Any action required or permitted to be
-----------------------------------
taken by board of directors may be taken without a meeting, if all members of
the board shall individually or collectively consent in writing to that action.
Such action by written consent shall have the same force and effect as a
unanimous vote of the board of directors. Such written consent or consents
shall be filled with the minutes of the proceedings of the board.
Section 14. Fees and Compensation of Directors. Directors and members of
-----------------------------------------------
committees may receive such compensation, if any, for their services, and such
reimbursement of expenses, as may be fixed or determined by resolution of the
board. This Section 14 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
COMMITTEES
Section 1. Committees of Directors. The board of directors may, by
-----------------------------------
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the board. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. Any committee, to the extent provided
in the resolution of the board, shall have all the authority of the board,
except with respect to:
(a) the approval of any action which, under the General Corporation Law
of California, also requires shareholders' approval of the outstanding shares;
(b) the filling of vacancies on the board of directors for serving on the
board or on any committee;
(c) the fixing of compensation of the directors for serving on the board
or on any committee;
(d) the amendment or repeal of bylaws or the adoption of new bylaws;
(e) the amendment or repeal of any resolution of the board of directors
which by its express terms is not so amendable or repealable;
6
(f) a distribution to the shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the board of
directors; or
(g) the appointment of any other committees of the board of directors or
the members of these committees.
Section 2. Meetings and Action of Committees. Meetings and action of
---------------------------------------------
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these Bylaws, Section 5 (Place of Meeting), 7
(Regular Meetings), 8 (Special Meetings and Notice), 9 (Quorum), 10 (Waiver of
Notice), 11 (Adjournment), 12 (Notice of Adjournment), and 13 (Action Without
Meeting), with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the board of directors and its
members, except that the time of regular meetings of committees may be
determined either by resolution of the board of directors or by resolution of
the committee; special meetings of committees may also be called by resolution
of the board of directors; and notice of all special meetings of committees
shall also be given to all alternate members, who shall have the right to attend
all meetings of the committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the corporation shall be a president
--------------------
and secretary, and a treasurer and chief financial officer. The corporation may
also have, at the discretion of the board of directors, a chairman 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. Any number of offices may be
held by the same person.
Section 2. Election of Officers. 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 V, shall be chosen by the board of directors, and
each shall serve at the pleasure of the board.
Section 3. Subordinate Officers. The board of directors may appoint, and
--------------------------------
may empower the president to appoint, such other officers as the business of
corporation may require, each of whom shall hold office, such period, have such
authority and perform such duties as provided in the bylaws or as the board of
directors 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 without cause, by the board of directors, at any or special meeting of
the board, or, except in case of an officer chosen by the board of directors, by
any officer upon whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving written notice to the
corporation. Any such 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 is without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of death,
--------------------------------
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these bylaws 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 of
directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the board of directors or prescribed by the
bylaws. 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 V.
7
Section 7. President. Subject to such supervisory powers, if any, as may be
---------------------
given by the board of directors to the chairman of the board, if there be such
an officer, and in the absence of any other specifically named chief executive
officer of the corporation, the president shall be the chief executive officer
of the corporation and shall, subject to the control of the board of directors,
have general supervision, direction and control of the business and officers of
the corporation. He shall preside at all meetings of the shareholders and, in
the absence of the chairman of the board, or if there be none, at all meetings
of the board of directors. Subject to the authority granted to any specifically
designated chief executive officer, the president shall have the general powers
and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by
the board of directors or the bylaws.
Section 8. Vice President. In the absence or disability of the president,
--------------------------
the vice presidents, if any, in order of their rank as fixed by the board of
directors or, if not ranked, a vice president designated by the board of
directors shall perform all the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors or the bylaws, and the president, or the chairman of the
board. A vice president may, if the board of directors so elects, be designated
as the chief executive officer of the corporation.
Section 9. Secretary. The secretary shall keep or cause to be kept, at the
---------------------
principal executive office or such other place as the board of directors,
committees or directors may elect, a book of minutes of all meetings and actions
of directors, committees of directors, and shareholders, with the time and place
of holding, whether regular or special, and, if special, how authorized, the
notice given, the names of those present at directors' meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, a
share register, or a duplicate share register, showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for 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 of directors required by the bylaws or by law
to be given, and he shall keep the seal of the corporation if one be adopted, in
safe custody, and shall have such other and perform such other duties as may be
prescribed by the board of directors or by the bylaws.
Section 10. Chief Financial Officer. The chief financial officer shall keep
------------------------------------
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all monies and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, on account of all of his
transactions as chief financial officer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or the bylaws.
Section 11. Disallowance of Compensation and Expense Deductions. Any
----------------------------------------------------------------
payments made to an officer of the corporation, such as salary, commission,
bonus, interest, rent, travel or entertainment expense incurred by such officer,
which shall be disallowed in whole or in part as a deductible expense by the
Internal Revenue Service or the California Franchise Tax Board, shall be
reimbursed by such officer to the corporation to the full extent of such
disallowance. It shall be the duty of the directors, as a board, to enforce
payment of such amount disallowed. In lieu of payment by the officer, subject
to the determination of the directors, proportionate amounts may be withheld
from his future compensation payments until the amount owed to the corporation
has been recovered.
ARTICLE VI
8
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 this corporation, or is or was serving at the request of this
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 this 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. This 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 this corporation)
by reason of the fact that such person is or was an agent of this corporation,
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if that person acted in
good faith and in a manner that person reasonably believed to be in the best
interests of this corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of that person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
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 this corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 3. Actions by the Corporation. This 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 this corporation
to procure a judgment in its favor by reason of the fact that person is or was
an agent of this corporation, against expenses actually and reasonably incurred
by that person in connection with the defense or settlement of that action if
that person acted in good faith, in a manner that person believed to be in the
best interests of this corporation and with such case, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under
similar circumstances. No indemnification shall be made under this Section 3:
(a) In respect of any claim, issue or matter as to which that person
shall have been adjudged to be liable to this corporation in the performance of
that person's duty to this corporation, unless and only to the extent that the
court in which that action was brought shall determine upon application that, in
view of all the circumstances of the case, that person is fairly and reasonably
entitled to indemnity for the expenses which the court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened or
action, with or without court or pending approval;
(c) Of expenses incurred in defending a threatened or 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 this
---------------------------------------
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 reasonable 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 this
corporation only if authorized in the specific case on a determination the
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in Section 2 or 3 of this
Article, by:
(a) A majority vote of a quorum consisting of directors who are not
parties to the proceeding;
9
(b) Approval by the affirmative vote of a majority of the shares of this
corporation entitled to vote represented at a duly held meeting at which a
quorum is present or by the written consent of holders of a majority of the
outstanding shares entitled to vote. For this purpose, the shares owned by the
person to be indemnified shall not be considered outstanding or entitled to vote
thereon; or
(c) The court in which the proceeding is or was pending, on application
made by this 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 this corporation.
Section 6. Advance of Expenses. Expenses incurred in defending any
-------------------------------
proceeding may be advanced by this corporation before the final disposition of
the proceeding 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 Contractual Rights. Nothing contained in this Article
------------------------------------
shall affect any right to indemnification to which persons other than directors
and officers of this 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, 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 this corporation to purchase such insurance, this 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 this 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 any employee benefit plan in that person's capacity as such,
even though that person 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.
ARTICLE VII
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Share Register. The corporation
--------------------------------------------------------
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, if either be appointed and as determined by resolution of
the board of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each
shareholder.
Shareholder or shareholders of the corporation holding at least five percent
(5%) in the aggregate of the outstanding voting shares of the corporation may
(i) inspect and copy the records of shareholders' names and addresses and
shareholdings during usual business hours on five (5) days' prior written demand
on the corporation, and (ii) obtain from the transfer agent of the corporation,
on written demand and on the tender of such transfer agent's usual charges for
such list, a list of the shareholders' names and addresses who are entitled to
vote for the election of directors, and their shareholdings, as of the most
recent record date for which that list has been compiled
10
or as of a date specified by the shareholder after the date of demand. This list
shall be made available to any such shareholder by the transfer agent on or
before the later of five (5) days after the demand is received or the date
specified in the demand as the date as of which the list is to be compiled. The
record of shareholders shall also be open to inspection on the written demand of
any shareholder or holder of a voting trust certificate, at any time during
usual business hours, for a purpose reasonably related to the holder's interests
as a shareholder of a voting trust certificate. Any inspection and copying under
this Section 1 may be made in person or by an agent or attorney of the
shareholder or holder of a voting trust certificate making the demand.
Section 2. Maintenance and Inspection of Bylaws. The corporation shall keep
------------------------------------------------
at its principal executive office, or if its principal executive office is not
in the State of California, at its principal business office in this state, the
original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is outside the State of
California and the corporation has no principal business office in this state,
the secretary shall, upon the written request of any shareholder, furnish to
that shareholder a copy of the bylaws as amended to date.
Section 3. Maintenance and Inspection of Other Corporate Records. The
-----------------------------------------------------------------
accounting books and records and minutes of proceedings of the shareholders and
the board of directors and any committee or committees of the board of directors
shall be kept at such place or places designated by the board of directors, or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. The minutes and accounting books and records
shall be open to inspection upon the written demand of any shareholder or holder
of a voting trust certificate, at any reasonable time during usual business
hours, for a purpose reasonably related to the holder's interests as a
shareholder or as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. These rights of inspection shall extend to the records
of each subsidiary corporation of the corporation.
Section 4. Inspection by Directors. Every director shall have the absolute
-----------------------------------
right at any reasonable time to inspect and copy all books, records and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. This inspection by a director may be made in
person or by agent or attorney and the right of inspection includes the right to
copy and make extracts of documents.
Section 5. Annual Report to Shareholders. The board of directors shall
-----------------------------------------
cause an annual report to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal year adopted by the corporation.
This report shall be sent at least fifteen (15) days before the annual meeting
of shareholders to be held during the next fiscal year and in the manner
specified in this Section 5 of Article II of the bylaws for giving notice to
shareholders of the corporation. The annual report shall contain a balance
sheet as of the end of the fiscal year and an income statement and statement of
changes in financial position for the fiscal year, accompanied by any report of
independent accounts or, if there is no such report, the certificate of an
authorized officer of the corporation that the statements were prepared without
audit from the books and records of the corporation.
Section 6. Financial Statements. A copy of any annual financial statement
--------------------------------
and any income statement of the corporation for each quarterly period of each
fiscal year, and any accompanying balance sheet of the corporation as of the end
of each such period, that has been prepared by the corporation shall be kept on
file in the principal executive office of the corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any such statement or a copy shall be
mailed to any such shareholder.
If a shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of stock of the corporation makes a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the then current fiscal year
ended more than thirty (30) days before the date of the request, and a balance
sheet of the corporation as of the end of that period, the chief financial
officer shall cause that statement to be prepared, if not already prepared, and
shall deliver personally or mail that statement or statements to the person
making the request within thirty (30) days after the receipt of the old request.
If the corporation has not sent to the shareholders its annual report for the
last fiscal year, this report shall likewise be delivered or mailed to the
shareholder or shareholders within thirty (30) days after the request.
11
The corporation shall also, on the written request of any shareholder, mail
to the shareholder a copy of the last annual, semi-annual, or quarterly income
statement which it has prepared, and a balance sheet as of the end of that
period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that the financial statements were prepared without
audit from the books and records of the corporation.
Section 7. Annual Statement of General Information. The corporation shall,
---------------------------------------------------
during the period commencing on March 1 ending on August 31 of each year, file
with the Secretary of State of the State of California, on the prescribed form,
a statement setting forth the authorized number of directors, the names and
complete business address or residence address of all incumbent directors, the
names and complete business or residence addresses of the chief executive
officer, secretary, and chief financial officer, the street address of its
principal executive office and principal business office in the state, and the
general type of business constituting the principal business activity of the
corporation, together with a designation of the agent of the corporation for the
purpose of service of process, all in compliance with Section 1502 of the
Corporations Code of California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice and Voting. For
-----------------------------------------------------------------
purposes of determining the shareholders entitled to receive payment of any
dividend or other dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any other lawful action (other
than action by shareholders by written consent without a meeting), which shall
not be more than sixty (60) days before any such action, and in that case only
shareholders of record on the date so fixed are entitled 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 so fixed, except as otherwise provided in the
California General Corporation Law.
If the board of directors does not so fix a record date, the record date for
determining shareholders for any such purpose shall be at the close of business
on the day on which the board adopts the applicable resolution or the sixtieth
(60th) day before the date of that action, whichever is later.
Section 2. Checks, Drafts, Evidences of Indebtedness. 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, from time to time, shall be
determined by resolution of the board of directors.
Section 3. Corporate Contracts and Instruments; How Executed. The board of
-------------------------------------------------------------
directors, except as otherwise provided in these bylaws, 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, and this authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
Section 4. Certificate for Shares. A certificate or certificates for shares
----------------------------------
of the capital stock of the corporation shall be issued to each shareholder when
any of these shares are fully paid, and the board of directors may authorize the
issuance of certificates of shares as party paid provided that these
certificates shall state the amount of the consideration to be paid for them and
the amount paid. 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 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
on a certificate shall have ceased to be that officer, transfer agent, or
registrar before that certificate is issued, it may be
12
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 5. Lost Certificates. Except as provided in this Section 5, no new
-----------------------------
certificates for shares shall be issued to replace an old certificate unless the
latter is surrendered to the corporation and canceled at the same time. The
board of directors may, in case any share certificate or certificate for any
other security is lost, stolen, or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
the alleged loss, theft, or destruction of the certificate or the issuance of
the replacement certificate.
Section 6. Representation of Shares of Other Corporation. The chairman of
---------------------------------------------------------
the board, the president, or any vice president, or any other person authorized
by resolution of the board of directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority granted to these officers to vote or
represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised either by
such officers in person or by any other person authorized to do so by proxy duly
executed by these officers.
Section 7. Construction and Definitions. Unless the context requires
----------------------------------------
otherwise, the general provisions, rules of construction, and definitions in the
California General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular, and
the term "person" includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
Section 1. Amendment by Shareholders. New bylaws may be adopted or these
-------------------------------------
bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the articles of incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of directors may
be changed only by an amendment of the articles of incorporation.
Section 2. Amendment by Directors. Subject to the right of shareholders as
----------------------------------
provided in Section 1 of this Article IX, to adopt, amend, or repeal by laws,
bylaws may be adopted, amended, or repealed by the board of directors, provided,
however, that the board of directors may adopt a bylaw or amendment of a bylaw
changing the authorized number of directors only for the purpose of fixing the
exact number of directors within the limits specified in the articles of
incorporation or in Section 2 of Article III of these bylaws.
13