EXHIBIT 3.2
BYLAWS
OF
SILICON VALLEY BANCSHARES
AMENDMENT AND RESTATEMENT EFFECTIVE AS OF
AUGUST 21, 1997
ARTICLE I
Offices
Section 1.1. PRINCIPAL EXECUTIVE OFFICE. The principal
executive office of this corporation (the "Corporation") is hereby fixed and
located at 3003 Tasman Drive, Santa Clara, California. The Board of
Directors (the "Board") is hereby granted full power and authority to change
the principal executive office from one location to another. Any such change
shall be noted in the Bylaws by the Secretary, opposite this Section, or this
Section may be amended to state the new location.
Section 1.2. OTHER OFFICES. Other branch offices or places of
business may at any time be established by the Board at any place or places
deemed appropriate.
ARTICLE II
Meetings of Shareholders
Section 2.1. PLACE OF MEETINGS. All annual or other meetings of
shareholders shall be held at the principal executive office of the
Corporation, or at any other place which may be designated either by the
Board or by the written consent of all persons entitled to vote thereat given
either before or after the meeting and filed with the Secretary of the
Corporation.
Section 2.2. ANNUAL MEETINGS.
(a) TIME. The Annual Meeting of shareholders shall be held each
year on a date and at a time designated by the Board. The date so designated
shall be within fifteen months after the last Annual Meeting.
(b) BUSINESS TO BE TRANSACTED. At each Annual Meeting, directors
shall be elected, reports of the affairs of the Corporation shall be
considered and any other business may be transacted which is within the
powers of the shareholders.
(c) NOTICE. Written notice of each Annual Meeting shall be given to
each shareholder entitled to vote, either personally or by first class mail
or other means of written communication, charges prepaid, addressed to such
shareholder at such shareholder's address appearing on the books of the
Corporation, or given by the shareholder to the Corporation for the purpose
of notice, or if no such address appears or is given, at the place where the
principal executive office of the Corporation is located or by publication at
least once in a newspaper of general circulation in the county in which
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the principal executive office is located. If any notice or report addressed
to the shareholder at the address of such shareholder appearing on the books
of the Corporation is returned to the Corporation by the United States Postal
Service marked to indicate that the United States Postal Service is unable to
deliver the notice or report to the shareholder at such address, all future
notices or reports shall be deemed to have been duly given without further
mailing if the same shall be available for the shareholder upon written
demand of the shareholder at the principal executive office of the
Corporation for a period of one year from the date of the giving of the
notice or report to all other shareholders. If a shareholder gives no
address, notice shall be deemed to have been given to the shareholder if sent
by mail or other means of written communication addressed to the place where
the principal executive office of the Corporation is located, or if published
at least once in some newspaper of general circulation in the county in which
the principal executive office is located.
All notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each Annual
Meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such notice in
accordance with the foregoing provisions, executed by the Secretary,
Assistant Secretary or any transfer agent of the Corporation shall be prima
facie evidence of the giving of the notice. Such notices shall specify:
(i) the place, the date and the hour of each meeting;
(ii) those matters which the Board, at the time of the mailing
of the notice, intends to present for action by the shareholders;
(iii) if directors are to be elected, the names of nominees
intended at the time of the notice to be presented by the Board for election;
(iv) the general nature of a proposal, if any, to take action
with respect to approval of: (a) a contract or other transaction with an
interested director, (b) a reorganization of the Corporation as defined in
Section 181 of the California General Corporation Law, (c) a voluntary
dissolution of the Corporation, or (d) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, if any;
and
(v) such other matters, if any, as may be required by law.
Section 2.3. SPECIAL MEETINGS. Special meetings of the
shareholders, for the purpose of taking any action permitted by the
shareholders under the California General Corporation Law, may be called at
any time by the Chair of the Board or the President, or by the Board, or by
one or more shareholders holding not less than ten percent (10%) of the votes
entitled to be cast at the meeting. Upon request in writing that a special
meeting of shareholders be called for any purpose, directed to the Chair of
the Board, President, Vice President or Secretary by any person (other than
the Board) entitled to call a special meeting of shareholders, the officer
forthwith shall cause notice to be given to shareholders entitled to vote
that a meeting will be held at a time requested by the person or persons
calling the meeting, not less than thirty-five (35) nor more than sixty (60)
days after receipt of the request. Except in special cases where other
express provision is made by statute, notice of special meetings shall be
given in the same manner as for annual meetings of shareholders. In addition
to the matters required by items
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(i), and if applicable, (ii) and (iii) of the preceding Section, notice of
any special meeting shall specify the general nature of the business to be
transacted, and no other business may be transacted at such meeting.
Section 2.4. QUORUM. The presence in person or by proxy of the
persons entitled to vote a majority of the voting shares at any meeting shall
constitute a quorum for the transaction of business. The shareholders
present at a duly called or held meeting at which a quorum is present may
continue to 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 2.5. ADJOURNED MEETINGS AND NOTICE THEREOF. 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,
the holders of which are either present in person or represented by proxy
thereat, but in the absence of a quorum no other business may be transacted
at such meeting, except as provided in Section 2.4 above.
When any shareholders' meeting, either annual or special, is
adjourned for forty-five (45) days or more, or if after adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given as in the case of an original meeting. Except as
provided above, it shall not be necessary to give any notice of the time and
place of the adjourned meeting or of the business to be transacted thereat,
other than by announcement of the time and place thereof at the meeting at
which such adjournment is taken.
Section 2.6. VOTING. Unless a record date for voting purposes be
fixed as provided in Section 5.1 of these Bylaws, then, subject to the
provisions of Sections 702 through 704 of the California Corporations Code
(relating to voting of shares held by a fiduciary, in the name of a
corporation or in joint ownership), only persons in whose names shares
entitled to vote stand on the stock records of the Corporation at the close
of business on the business day next preceding the day on which notice of the
meeting is given or if such notice is waived, at the close of business on the
business day next preceding the day on which the meeting of shareholders is
held, shall be entitled to vote at such meeting, and such day shall be the
record date for such meeting. Such vote may be oral or by ballot; provided,
however, that all elections for directors must be by ballot upon demand made
by a shareholder at any election and before the voting begins. If a quorum
is present, except with respect to election of directors, the affirmative
vote of the majority of the shares represented at the meeting and entitled to
vote on any matter (which shares voting affirmatively also constitute at
least a majority of the required quorum) shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by the California General Corporation Law. Subject to the
requirements of the next sentence, every shareholder entitled to vote at any
election for directors shall have the right to cumulate such shareholder's
votes and give one candidate a number of votes equal to the number of
directors to be elected, multiplied by the number of votes to which such
shareholder's shares are entitled, or to distribute his or her votes on the
same principal among as many candidates as the shareholder shall think fit.
No shareholder shall be entitled to cumulate votes unless the name of the
candidate or candidates for whom the votes would be cast has been placed in
nomination prior to the voting and at least one shareholder has given notice
at the meeting, prior to the voting, of the shareholder's intention to
cumulate his or her votes. The candidates receiving the highest number of
affirmative votes of shares entitled to be voted for them, up to the number
of directors to
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be elected, shall be elected. Votes against the directors and votes withheld
shall have no legal effect.
Section 2.7. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
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 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 waiver of notice or a consent to the holding of the meeting, or
an approval of the minutes thereof. The waiver of notice or 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 Section
2.2(c)(iv) of these Bylaws, 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 2.8. ACTION WITHOUT MEETING.
(a) ELECTION OF DIRECTORS. Directors may be elected without a
meeting by a consent in writing, setting forth the action so taken, signed by
all of the persons who would be entitled to vote for the election of
directors, provided that, without notice, except as hereinafter set forth, a
director may be elected at any time to fill a vacancy (other than one created
by removal) not filled by the directors, by the written consent of persons
holding a majority of the outstanding shares entitled to vote for the
election of directors.
(b) OTHER ACTION. Any other action which, under any provision of
the California General Corporation Law, may be taken at a meeting of the
shareholders, may be taken without a meeting, and without prior notice except
as hereinafter set forth, if a consent in writing, setting forth the action
so taken, is signed by the holders of outstanding shares having not less than
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Unless the consents of all shareholders entitled to vote have
been solicited in writing:
(i) Notice of any proposed shareholder approval of (a) a
contract or other transaction with an interested director, (b)
indemnification of an agent of the Corporation as authorized by Section 3.17
of these Bylaws, (c) a reorganization of the Corporation as defined in
Section 181 of the California General Corporation Law, or (d) a distribution
in dissolution other than in accordance with the rights of outstanding
preferred shares, if any, without a meeting by less than unanimous written
consent, shall be given at least ten (10) days before the consummation of the
action authorized by such approval; and
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(ii) Prompt notice shall be given at the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote who have
not consented in writing. Such notices shall be given as provided in Section
2.2(c) of these Bylaws.
Unless, as provided in Section 5.1 of these Bylaws, the Board has
fixed a record date for the determination of shareholders entitled to notice
of and to give such written consent, the record date for such determination
shall be the day on which the first written consent is given. All such
written consents shall be filed with the Secretary of the Corporation.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares, or a personal representative of
the shareholder, or their respective proxyholders, may revoke the consent by
a writing received by the Corporation prior to the time that written consents
by the number of shares required to authorize the proposed action have been
filed with the Secretary of the Corporation, but may not do so thereafter.
Such revocation is effective upon its receipt by the Secretary of the
Corporation.
Section 2.9. PROXIES. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one or more
agents authorized by a written proxy. A proxy may be in the form of a written
authorization signed or an electronic transmission authorized by a
shareholder or the shareholder's agent. A proxy may be transmitted by an
oral telephonic transmission if it is submitted with information from which
it may be determined that the proxy was authorized by the shareholder or the
shareholder's agent. Any proxy duly executed is not revoked and continues in
full force and effect until (i) an instrument revoking it or a duly executed
proxy bearing a later date is filed with the Secretary of the Corporation
prior to the vote pursuant thereto, (ii) the person executing the proxy
attends the meeting and votes in person, or (iii) written notice of the death
or incapacity of the maker of such proxy is received by the Corporation
before the vote pursuant thereto is counted; provided, that no such proxy
shall be valid after the expiration of eleven (11) months from the date of
its execution, unless the person executing it specifies therein the length of
time for which said proxy is to continue in force.
Section 2.10. 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 Chair 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.
The duties of the inspectors shall be as prescribed in Section 707 of
the California General Corporation Law and shall include: (i) determining
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies; (ii) receiving votes, ballots or consents;
(iii) hearing and determining all challenges and questions in any way arising
in connection with the right to vote; (iv) counting and tabulating all votes
or consents; (v) determining when the polls shall close; (vi) determining the
result; and (vii) such other acts as may be proper to conduct the election or
vote with fairness to all
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shareholders. In the determination of the validity and effect of proxies,
the dates contained on the forms of proxy shall presumptively determine the
order of execution on the proxies, regardless of postmark dates on the
envelopes in which they are mailed.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is
practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
Section 2.11. NOMINATION OF DIRECTORS. Nominations for election of
members of the Board may be made by the Board or by any shareholder of any
outstanding class of capital stock of the Corporation entitled to vote for
the election of directors. Notice of intention to make any nominations
(other than for persons named in the notice of the meeting at which such
nomination is to be made) shall be made in writing and shall be delivered or
mailed to the Secretary of the Corporation by the later of: the close of
business twenty-one (21) days prior to any meeting of shareholders called for
election of directors, or ten (10) days after the date of mailing notice of
the meeting to shareholders. Such notification shall contain the following
information to the extent known to the notifying shareholder: (i) the name
and address of each proposed nominee; (ii) the principal occupation of each
proposed nominee; (iii) the number of shares of capital stock of the
Corporation owned by each proposed nominee; (iv) the name and residence
address of the notifying shareholder; (v) the number of shares of capital
stock of the Corporation owned by the notifying shareholder; and (vi) with
the written consent of the proposed nominee, a copy of which shall be
furnished with the notification, whether the proposed nominee has ever been
convicted of or pleaded nolo contendere to any criminal offense involving
dishonesty or breach of trust, filed a petition in bankruptcy or been
adjudged bankrupt. The notice shall be signed by the nominating shareholder
and by the nominee. Nominations not made in accordance herewith shall be
disregarded by the Chair of the meeting, and upon the Chair's instructions,
the inspectors of election shall disregard all votes cast for each such
nominee. The restrictions set forth in this paragraph shall not apply to
nomination of a person to replace a proposed nominee who has died or
otherwise become incapacitated to serve as a director between the last day
for giving notice hereunder and the date of election of directors if the
procedure called for in this paragraph was followed with respect to the
nomination of the proposed nominee.
A copy of the preceding paragraph shall be set forth in the notice to
shareholders of any meeting at which directors are to be elected.
ARTICLE III
Directors
Section 3.1. POWERS. Subject to limitations of the California
General Corporation Law as to action to be authorized or approved by the
shareholders, and subject to the duties of directors as prescribed by the
Bylaws, and subject to the rules and regulations as may be promulgated from
time to time by applicable regulatory authorities, all corporate powers shall
be exercised by or under the authority of, and the business and affairs of
the Corporation shall be controlled by, the Board.
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Section 3.2 - Number and Qualification of Directors. The authorized
number of directors of the Corporation shall not be less than eight (8) nor
more than fifteen (15) until changed by a bylaw amending this Section 3.2
duly adopted by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote, provided that a proposal to reduce the
authorized minimum number of directors below five cannot be adopted. The
exact number of directors shall be fixed from time to time, within the limits
specified in this Section 3.2: (i) by a resolution duly adopted by the
Board; (ii) by a Bylaw or amendment thereof duly adopted by the vote of a
majority of the outstanding shares entitled to vote; or (iii) by approval of
the shareholders (as defined in Section 153 of the California General
Corporation Law). No amendment may change the stated maximum number of
authorized directors to a number greater than two times the stated minimum
number of directors minus one.
Subject to the foregoing provisions for changing the number of
directors, the number of directors of this Corporation has been fixed at nine
(9).
Section 3.3. ELECTION AND TERM OF OFFICE. The directors shall be
elected at each annual meeting of shareholders, but if any such annual
meeting is not held or the directors are not elected thereat, the directors
may be elected at any special meeting of shareholders held for that purpose
or by written consent in accordance with Section 2.8 of these Bylaws. All
directors shall hold office until their respective successors are elected,
subject to the California General Corporation Law and the provisions of these
Bylaws with respect to vacancies on the Board.
Section 3.4 [Reserved].
Section 3.5. REMOVAL OF DIRECTORS. The entire Board or any
individual director may be removed from office by a vote of shareholders
holding a majority of the outstanding shares entitled to vote at an election
of directors. Any individual who no longer serves on the Board shall cease
automatically to be a member of any Board committee, effective as of the date
such individual ceases to be a member of the Board. The Board shall consider
the removal of:
(a) Any member whom the Board determines has materially breached his or
her obligations as a Bancshares director, absent a waiver or
exception of the breach having been granted by the Board;
(b) Any member who fails to attend a minimum of seventy-five percent
(75%) of all general and special meetings of the Board and the Board
committees, such determination to be made on an annual basis at the
end of each fiscal year of the Bank, at which time the full Board of
Directors must vote as to whether or not to retain the Director who
has not met the attendance requirement;
(c) Any member who has attained the age of seventy (70) years. A member
shall not stand for election or re-election to the Board if such
individual will have attained the age of 70 years on or before the
date of the Shareholders' meeting where the individual would have
been standing for election (or re-election).
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(d) Any member who has been convicted of a felony or who has engaged in
any fraudulent activity, as determined by a court of competent
jurisdiction;
(e) Any member who has grossly abused his or her authority as on officer,
committee member and/or Board member of Bancshares, as determined by
the Board; or
(f) Any member for whom the court has appointed a legal guardian or
conservator.
However, unless the entire Board is removed, no individual director may be
removed when the votes cast against removal, or not consenting in writing to
such removal, would be sufficient to elect such director if voted
cumulatively at an election at which the same total number of votes were cast
(or, if such action is taken by written consent, all shares entitled to vote
were voted) and the entire number of directors authorized at the time of the
director's most recent election were then being elected.
Section 3.6. VACANCIES. A vacancy in the Board shall be deemed to
exist (i) in case of the death, resignation or removal of any director, (ii)
if a director has been declared of unsound mind by order of court or
convicted of a felony, (iii) if the authorized number of directors be
increased, or (iv) if the shareholders fail, at any annual or special meeting
of shareholders at which any director or directors are elected, to elect the
full authorized number of directors to be voted for at that meeting.
Vacancies in the Board, except for a vacancy created by the removal
of a director, may be filled by a majority of the remaining directors, though
less than a quorum or by a sole remaining director, and each director so
elected shall hold office until his or her successor is elected at an annual
or a special meting of the shareholders. A vacancy in the Board created by
the removal of a director may only be filled 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 written consent of the holders of all of the
outstanding shares.
The shareholders may elect a director or directors at any time to
fill any vacancy or vacancies not filled by the directors. Any such election
by written consent (except to fill a vacancy created by removal) shall
require the consent of holders of a majority of the outstanding shares
entitled to vote.
Any director may resign effective upon giving written notice to the
Chair of the Board, the President, the Secretary or the Board of the
Corporation, unless the notice specifies a later time for the effectiveness
of such resignation. If the Board accepts the resignation of a director
tendered to take effect at a future time, the Board or the shareholders shall
have the power to elect a successor to take office when the resignation is to
become effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his or her term of
office.
Section 3.7. FREQUENCY AND PLACE OF MEETING. The Board shall hold
a meeting at least once each calendar quarter. Regular meetings of the Board
shall be held at any place and time which has been designated from time to
time by resolution of the Board or by written consent of all members of the
Board. In the absence of such
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designation, regular meetings shall be held at the principal executive office
of the Corporation. Special meetings of the Board may be held either at a
place so designated or at the principal executive office.
Section 3.8. ORGANIZATIONAL MEETING. Immediately following each
annual meeting of shareholders, the Board shall hold a regular meeting at the
place of the annual meeting or at such other place as shall be fixed by the
Board, for the purpose of organization, election of officers and the
transaction of other business. Call and notice of such meetings are hereby
dispensed with.
Section 3.9. OTHER REGULAR MEETINGS. Other regular meetings of the
Board shall be held at any place and time which has been designated from time
to time by resolution of the Board or by written consent of all members of
the Board. Notice of all such regular meetings of the Board is hereby
dispensed with.
Section 3.10. SPECIAL MEETINGS. Special meetings of the Board for
any purpose or purposes may be called at any time by the Chair of the Board,
the President or by any two directors.
Special meetings shall be held upon four days' notice by mail or
other form of written communication, or 24 hours notice received personally,
by telephone or by facsimile or comparable means of communication. Written
notice of the time and place of special meetings shall be addressed to the
director at the director's address as it is shown upon the records of the
Corporation or, if it is not so shown on such records or is not readily
ascertainable, at the place at which the meetings of the directors are
regularly held.
Any notice shall state the date, place and hour of the meeting and
may state the general nature of the business to be transacted and that other
business may be transacted at the meeting.
Section 3.11. ACTION WITHOUT MEETING. Any action by the Board may
be taken without a meeting if all members of the Board shall individually or
collectively consent in writing to the action. The written consent or
consents shall be filed with the minutes of the proceedings of the Board and
shall have the same force and effect as a unanimous vote of the directors.
Section 3.12. ACTION AT A MEETING, QUORUM AND REQUIRED VOTE.
Presence of a majority of the authorized number of directors at a meeting of
the Board constitutes a quorum for the transaction of business, except as
hereinafter provided. 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 meeting can hear one another.
(Participation in a meeting as permitted in the preceding sentence
constitutes presence in person at the meeting.) 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 the act of the Board, unless a
greater number, or the same number after disqualifying one or more directors
from voting, is required by law or by these Bylaws. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of a director or directors, provided that any action taken is
approved by at least a majority of the required quorum for the meeting.
Section 3.13. VALIDATION OF DEFECTIVELY CALLED OR NOTICED MEETINGS.
The transactions of any meeting of the Board, however called and noticed or
wherever held,
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shall be as valid as though had at a meeting duly held after regular call and
notice, if a quorum is present and if, either before or after the meeting,
each of the directors not present or who, though present, has prior to the
meeting or at its commencement, protested the lack of proper notice: (i)
signs a written waiver of notice or a consent to holding such meeting or an
approval of the minutes thereof; or (ii) waives notice and withdraws his or
her objection. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 3.14. ADJOURNMENT. A majority of the directors present at
any directors' meeting, either regular or special, may adjourn to another
time and place.
Section 3.15. NOTICE OF ADJOURNMENT. If the meeting is adjourned
for more than 24 hours, notice of any adjournment to another time or place
shall be given prior to the time of the adjourned meeting to the directors
who were not present at the time of adjournment. Otherwise notice of the
time and place of holding an adjourned meeting need not be given to absent
directors if the time and place be fixed at the meeting adjourned.
Section 3.16. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and
such reimbursement for expenses, as may be fixed or determined by resolution
of the Board.
Section 3.17. INDEMNIFICATION OF AGENTS OF THE CORPORATION; PURCHASE
OF LIABILITY INSURANCE.
(a) For the purposes of this Section: "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 subdivision (d) or subdivision (e)(4) of this Section.
(b) 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 the proceeding if the person acted in good faith
and in a manner the 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 the 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.
(c) 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
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in the right of this Corporation to procure a judgment in its favor by reason
of the fact that the person is or was an agent of this Corporation, against
expenses actually and reasonably incurred by the person in connection with
the defense or settlement of the action if the person acted in good faith, in
a manner the person believed to be in the best interests of this Corporation
and its shareholders. No indemnification shall be made under this
subdivision (c):
(1) In respect to any claim, issue or matter as to which the
person shall have been adjudged to be liable to this Corporation and its
shareholders, in the performance of the person's duty to this Corporation,
unless and only to the extent that the court in which the proceeding is or
was pending shall determine upon application that, in view of all the
circumstances of this case, the person is fairly and reasonably entitled to
indemnity for the expenses which the court shall determine.
(2) Of amounts paid in settling or otherwise disposing of a
pending action, without court approval.
(3) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
(d) To the extent that an agent of this Corporation has been
successful on the merits in defense of any proceedings referred to in
subdivision (b) or (c) or in defense of any claim, issue or matter therein,
the agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this Section shall be made by this Corporation only if authorized in the
specific case, upon a determination that indemnification of that agent is
proper in the circumstances because the agent has met the applicable standard
of conduct set forth in subdivision (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of directors who are
not parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by
independent legal counsel in a written opinion.
(3) Approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote thereon.
(4) The court in which the proceeding is or was pending upon
application made by the Corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not the
application by the agent, attorney or other person is opposed by the
Corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
this Corporation prior to the final disposition of the proceeding upon
receipt of a written undertaking by or on behalf of the agent to repay such
amount if it shall be determined ultimately that the agent is not entitled to
be indemnified as authorized in this Section.
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(g) Nothing in this Section shall affect any right to
indemnification to which persons other than the directors and officers may be
entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this Section,
except as provided in subdivision (d) or subdivision (e)(4) of this Section,
in any circumstance where it appears:
(1) That it would be inconsistent with a provision of the
Bylaws, a resolution of the shareholders or an agreement in effect at the
time of the accrual of the alleged cause of action asserted in the proceeding
in which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification.
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) Upon a determination by the Board, this Corporation may 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 such liability under the
provisions of this Section.
(j) This Section does not apply to any proceeding against any
trustee, investment manager or other fiduciary of an employee benefit plan in
that person's capacity as such, even though the person may also be an agent,
as defined in subdivision (a) of this Section, of the Corporation. The
Corporation shall have power to indemnify such a trustee, investment manager
or other fiduciary to the extent permitted by subdivision (f) of Section 207
of the California General Corporation Law.
Section 3.18. COMMITTEES. The Board may, by resolution or committee
charter adopted by a majority of the authorized number of directors,
designate one or more committees, each committee consisting of two or more
directors, to serve at the pleasure of the Board. These committees may
include, without limitation, an Executive Committee, an Audit Committee and
any such other committees as the Board may deem appropriate. Any such
committee, to the extent provided in the resolution of the Board or committee
charter, may exercise those powers and responsibilities so designated, except
that no committee shall be authorized to take action with respect to:
(i) The approval of any action for which shareholder approval
or approval of the outstanding shares is required.
(ii) The filling of vacancies on the Board or in any committee.
(iii) The amendment or repeal of Bylaws or the adoption of new
Bylaws.
(iv) The amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable.
(v) The appointment of other committees of the Board or the
members thereof.
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(vi) A distribution, except at a rate, in a periodic amount or
within a price range determined by the Board.
ARTICLE IV
Officers
Section 4.1. OFFICERS. The Officers of the Corporation shall be
a Chief Executive Officer, President, Secretary, Chief Financial Officer and,
at the discretion of the Board, such other officers as may be deemed
necessary ("Officers"). Any two or more Officer positions, except those of
the President and Secretary, may be held by the same person. In appropriate
circumstances, an Officer of the Corporation may be excluded by resolution of
the Board or by a provision of the Bylaws from participation, other than in
the capacity of a director if applicable, in major policymaking functions of
the Corporation.
Section 4.2. ELECTION. Except as otherwise provided in these
Bylaws, the Officers of the Corporation shall be chosen by the Board, and
each Officer shall be employed at will, unless employed for a determinate
period of time pursuant to a written employment agreement approved by the
Board, and shall have such authority and perform such duties as are provided
in the Bylaws or as the Board may, from time to time, determine.
Section 4.3. SUBORDINATE OFFICERS. The Corporation may have such
subordinate officers as the business of the Corporation may require
("Subordinate Officers"), including one or more Vice Presidents, a Cashier,
one or more Assistant Cashiers, Operations Officers and Managers. Subordinate
Officers may be chosen by the Board, the Chief Executive Officer or the
President, and such Officers and Subordinate Officers upon whom authority is
conferred by the Board, the Chief Executive Officer or the President
("Authorized Officers"). Subordinate Officers shall be employed at will,
unless employed for a determinate period of time pursuant to a written
employment agreement approved by the Board, and shall have such authority and
perform such duties as are provided in the Bylaws or as the Board, Chief
Executive Officers, President or Authorized Officers may, from time to time,
determine.
Section 4.4. REMOVAL AND RESIGNATION. Any Officer may be removed,
either with or without cause, by the Board, subject, in each case, to the
rights, if any, of an Officer under any contract or employment. Any
Subordinate Officer may be removed, with or without cause, by the Board,
Chief Executive Officer, President or Authorized Officer, subject to such
rights, if any, of a Subordinate Officer under a written employment
agreement.
Any Officer or Subordinate Officer may resign at any time by giving
written notice to the Board or to the President, or to the Secretary of the
Corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in
the manner prescribed in the Bylaws for regular appointments to such office.
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Section 4.6. CHAIR OF THE BOARD; VICE-CHAIR. The Executive
Committee of the Board shall nominate the Chair of the Board, subject to
approval by the Board. The Chair of the Board shall also serve as Chair of
the Executive Committee and shall serve in such capacities subject to annual
re-election to the Board. There shall be no limit as to the number of terms
served. The Chair shall be an officer of the Board and shall, if present,
preside at all meetings of the Board. The Chair may exercise and perform
such other powers and duties as may be from time to time be assigned by the
Board or prescribed by the Bylaws. The Chair shall not, however, be deemed
an Officer of the Corporation.
The Executive Committee of the Board shall nominate a Vice-Chair of
the Board, subject to approval by the Board. Any Vice-Chair so approved may
serve subject to annual re-election to the Board. There shall be no limit as
to the number of terms served. The Vice-Chair shall have such powers and
perform such duties as may be from time to time be assigned by the Board or
the Chair of the Board and shall preside at any meeting of the Board at which
the Chair is absent or otherwise unable to serve. The Vice-Chair shall not
be deemed an Officer of the Corporation.
Section 4.7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall, subject to the control of the Board, have general supervision,
direction and control of the business and officers of the Corporation. The
Chief Executive Officer shall exercise and perform such other powers and
duties as may be from time to time assigned by the Board or prescribed by the
Bylaws.
Section 4.8. PRESIDENT. Subject to such supervisory powers, if
any, as may be given by the Board to the Chair of the Board, the President
shall preside at all meetings of the shareholders and at all meetings of the
Board when the Chair of the Board and the Vice-Chair of the Board are absent
or otherwise unable to serve. The President shall have the general powers
and duties of management usually vested in the office of the President of a
bank and shall have such other powers and duties as may be prescribed by law,
the Board or the Bylaws.
Section 4.9. VICE PRESIDENT. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board
or, if not ranked, the Vice President designated by the Board, shall perform
all the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions upon the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board or the
Bylaws. No Vice President shall preside over meetings of the shareholders or
at meetings of the Board in the absence or disability of the President and
Chair of the Board unless the Vice President so serving is also a Director.
Section 4.10. SECRETARY. The Secretary shall record or cause to be
recorded, and shall keep or cause to be kept, at the principal executive
office and such other place or places as the Board may order, a book of
minutes of actions taken at all meetings of directors and shareholders, with
the time and place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those present at
directors' meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof. In the event of any
meeting in Executive Session or otherwise if the Secretary is not present, an
Acting Secretary shall be designated by the Chair of the meeting for the
purpose of recording the minutes of actions taken at the meeting or Executive
Session thereof.
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The Secretary shall keep, or cause to be kept, a copy of the Bylaws
of the Corporation at the principal executive office or business office in
accordance with Section 213 of the California General Corporation Law.
The Secretary shall keep, or cause to be kept, at the principal
executive office, or at the office of the Corporation's transfer agent, a
share register, or a duplicate share register, showing the names of the
shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates issued for the same, or the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders and of the Board required by the Bylaws or by
law to be given and shall have such other powers and perform such other
duties as may be prescribed by the Board or by the Bylaws.
Section 4.11. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
of the Corporation shall keep and maintain, or cause to be kept and
maintained, adequate and correct accounts of the properties and business
transactions of the Corporation, and shall send or cause to be sent to the
shareholders of the Corporation such financial statements and reports as are
required to be sent to them by law or these Bylaws.
The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board. The Chief Financial Officer
shall disburse, or cause to be disbursed, the funds of the Corporation as may
be ordered by the Board, shall render to the President and directors,
whenever they request it, an account of all 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 or the Bylaws.
ARTICLE V
Miscellaneous
Section 5.1. RECORD DATE. The Board may fix a time in the future
as a record date for the determination of the shareholders entitled to notice
of and to vote at any meetings of shareholders or entitled to give consent to
corporate action in writing without a meeting, to receive any report, to
receive any dividend or distribution, or any allotment of rights or to
exercise rights in respect to any change, conversion or exchange of shares.
The record date so fixed shall be not more than sixty (60) days or less than
ten (10) days prior to the date of any meeting or other event for the purpose
of which it is fixed. When a record date is so fixed, only shareholders of
record on that date are entitled to notice of and to vote at any such
meeting, to give consent without a meeting, to receive any report, to receive
a dividend, distribution or allotment of rights or to exercise the rights, as
the case may be, notwithstanding any transfer of any shares on the books of
the Corporation after the record date.
Section 5.2. INSPECTION OF CORPORATE RECORDS. Except as restricted
or limited by applicable law, including Sections 1600 through 1605 of the
California General Corporation Law, the accounting books and records, the
record of shareholders and minutes of proceedings of the shareholders and the
Board and committees of the Board of
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this Corporation and any subsidiary of this Corporation shall be open to
inspection upon the written demand on the Corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interest as
shareholder or as the holder of such voting trust certificate. Such
inspection by a shareholder or holder of a voting trust certificate may be
made in person or by agent or attorney, and the right of inspection includes
the right to copy and make extracts.
Section 5.3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, 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.
Section 5.4. ANNUAL AND OTHER REPORTS. The Board of the
Corporation shall cause an annual report to be sent to the shareholders not
later than 120 days after the close of the fiscal or calendar year.
Notwithstanding the foregoing sentence, however, the requirement for such
annual report is dispensed with so long as this Corporation has less than 100
shareholders of record. If required to be sent to shareholders, the annual
report shall contain a balance sheet as of the end of such fiscal year and an
income statement and statement of changes in financial position for such
fiscal year, accompanied by any report thereon of independent accountants or,
if there is no such report, the certificate of an authorized officer of the
Corporation that such statements were prepared without audit from the books
and records of the Corporation.
Section 5.5. CONTRACTS, ETC., HOW EXECUTED. The Board, except as
in the Bylaws otherwise provided, 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 such authority may be general
or confined to specific instances.
Section 5.6. CERTIFICATE OF SHARES. Every holder of shares in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation by the Chair or Vice Chair of the Board or the President or a
Vice President and by the Chief Financial Officer or an assistant treasurer
or the Secretary or any assistant secretary, certifying the number of shares
and the class or series of shares owned by the shareholder. Any of the
signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
No new certificate for shares shall be issued in lieu of an old
certificate unless the latter is surrendered and cancelled at the same time.
The Board may, however, in case any certificate for shares is lost, stolen,
mutilated or destroyed, authorize the issuance of a new certificate in lieu
thereof, upon such terms and conditions, including reasonable indemnification
of the Corporation, as the Board shall determine.
Section 5.7. INSPECTION OF BYLAWS. The Corporation shall keep in
its principal executive office the original or a copy of the Bylaws as
amended or otherwise altered to date, certified by the Secretary, which shall
be open to inspection by the shareholders at all reasonable times during
office hours.
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Section 5.8. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction and
definitions contained in the California General Corporation Law shall govern
the construction of these Bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the
singular, number includes the plural and the plural number includes the
singular, and the term "person" includes a Corporation as well as a natural
person.
ARTICLE VI
Amendments
Section 6.1. POWER OF SHAREHOLDERS. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the affirmative vote of a majority
of the outstanding shares entitled to vote, or by written assent of
shareholders entitled to vote such shares, except as otherwise provided by
law.
Section 6.2. POWER OF DIRECTORS. Subject to the right of
shareholders as provided in Section 6.1 to adopt, amend or repeal Bylaws,
Bylaws may be adopted, amended or repealed by the Board provided, however,
that the Board may adopt a bylaw or amendment thereof changing the authorized
number of directors only for the purpose of fixing the exact number of
directors within the limits specified in Section 3.2 of these Bylaws.
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TABLE OF CONTENTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page
ARTICLE I Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Principal Executive Office . . . . . . . . . . . . . . . . . 1
Section 1.1. Other Offices. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II Meetings of Shareholders. . . . . . . . . . . . . . . . . . . . 1
Section 2.1 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1 Section 2.1 Annual Meetings . . . . . . . . . . . . . . . . . 1
Section 2.3.Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.4 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.5 Adjourned Meetings and Notice Thereof . . . . . . . . . . . . 3
Section 2.6 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.7 Validation of Defectively Called or Noticed Meetings. . . . . 4
Section 2.8 Action Without Meeting. . . . . . . . . . . . . . . . . . . . 4
Section 2.9 Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.10 Inspectors of Election . . . . . . . . . . . . . . . . . . . 6
Section 2.11 Nomination of Directors. . . . . . . . . . . . . . . . . . . 6
ARTICLE III Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2. Number and Qualification of Directors. . . . . . . . . . . . 7
Section 3.3. Election and Term of Office. . . . . . . . . . . . . . . . . 8
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Section 3.4 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.5. Removal of Directors . . . . . . . . . . . . . . . . . . . . 8
Section 3.6. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.7. Frequency and Place of Meeting . . . . . . . . . . . . . . . 9
Section 3.8. Organizational Meeting . . . . . . . . . . . . . . . . . . . 9
Section 3.9. Other Regular Meetings . . . . . . . . . . . . . . . . . . . 9
Section 3.10. Special Meetings. . . . . . . . . . . . . . . . . . . . . . 9
Section 3.11. Action Without Meeting. . . . . . . . . . . . . . . . . . . 10
Section 3.12. Action at a Meeting, Quorum and Required Vote . . . . . . . 10
Section 3.13. Validation of Defectively Called or Noticed Meetings. . . . 10
Section 3.14. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.15. Notice of Adjournment . . . . . . . . . . . . . . . . . . . 10
Section 3.16. Fees and Compensation . . . . . . . . . . . . . . . . . . . 11
Section 3.17. Indemnification of Agents of the Corporation; Purchase of
Liability Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.18. Committees. . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.2. Election . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . 14
Section 4.4. Removal and Resignation. . . . . . . . . . . . . . . . . . . 14
Section 4.5. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . 15
19
Section 4.6. Chair of the Board; Vice-Chair . . . . . . . . . . . . . . . 15
Section 4.7. Chief Executive Officer. . . . . . . . . . . . . . . . . . . 15
Section 4.8. President. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.9.Vice President. . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.10. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.11. Chief Financial Officer . . . . . . . . . . . . . . . . . . 16
ARTICLE V Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.1. Record Date. . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.2. Inspection of Corporate Records. . . . . . . . . . . . . . . 17
Section 5.3. Checks, Drafts, Etc. . . . . . . . . . . . . . . . . . . . . 17
Section 5.4. Annual and Other Reports . . . . . . . . . . . . . . . . . . 17
Section 5.5. Contracts, Etc., How Executed. . . . . . . . . . . . . . . . 18
Section 5.6. Certificate of Shares. . . . . . . . . . . . . . . . . . . . 18
Section 5.7.Inspection of Bylaws. . . . . . . . . . . . . . . . . . . . . 18
Section 5.8. Construction and Definitions . . . . . . . . . . . . . . . . 18
ARTICLE VI Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.1. Power of Shareholders. . . . . . . . . . . . . . . . . . . . 19
Section 6.2. Power of Directors . . . . . . . . . . . . . . . . . . . . . 19
20
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