Exhibit 3.3
AMENDED AND RESTATED
BYLAWS FOR THE REGULATION OF
PACIFIC COMMUNITY BANKING GROUP
(a California corporation)
ARTICLE I
OFFICES
Section 1.1. PRINCIPAL EXECUTIVE OFFICE. The principal
executive office of the corporation is hereby fixed and located at 23332 Mill
Creek Drive, Suite 230, Laguna Hills, California 92653. The board of directors
is hereby granted full power and authority to change said principal executive
office from one location to another, subject to all regulatory approvals. Any
such change shall be noted on the Bylaws by the Secretary, opposite this
section, or this section may be amended to state the new location.
Section 1.2. OTHER OFFICE. Other business offices may at any
time be established by the board of directors at any place or places where the
corporation is qualified to do business, subject to all regulatory approvals.
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 within the State of California which may be
designated either by the board of directors or by the written consent of all
persons entitled to vote thereat and not present at the meeting, given either
before or after the meeting and filed with the Secretary of the corporation.
Section 2.2. ANNUAL MEETINGS. The annual meetings of
shareholders shall be held on the 3rd Wednesday of each May at 7:00 p.m., local
time, provided, however, that should said day fall upon a legal holiday, then
any such annual meeting of shareholders shall be held at the same time and place
on the next day thereafter ensuing which is a full business day; provided
further, that the board of directors may, by resolution adopted prior to the
date fixed herein for an annual meeting, change the time and date for any annual
meeting of the shareholders to any day which is not a legal holiday and is not
more than 15 months after the date of the preceding annual meeting of
shareholders. At such meetings, 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.
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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 his address appearing on the books of the corporation or given by him to the
corporation for the purpose of notice. 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 him if sent by mail or other means of written communication addressed
to the place where the principal executive office of the corporation is
situated, or if published at least once in some newspaper of general circulation
in the county in which said principal executive office is located.
All such 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:
(a) the place, the date, and the hour of such
meeting;
(b) those matters which the board, at the time of the
mailing of the notice, intends
to present for action by the shareholders;
(c) if directors are to be elected, the names of
nominees intended at the time of the notice to be presented by management for
election and a copy of Section 2.11 of these Bylaws;
(d) the general nature of a proposal, if any, to take
action with respect to approval of, (i) a contract or other transaction with an
interested director, (ii) amendment of the articles of incorporation, (iii) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the corporation, or (v) a
distribution in dissolution other than in accordance with the rights of
outstanding preferred shares, if any; and
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(e) such other matters, if any, as may be expressly
required by statute.
Any information contained in a proxy statement sent with such
notice or other soliciting material sent with the notice shall be deemed to be a
part of the notice.
Section 2.3. SPECIAL MEETINGS. Special meetings of the
shareholders, for the purpose of taking any action permitted by the shareholders
under the General Corporation Law and the articles of incorporation of this
corporation, may be called at any time by the chairman of the board or the
president, or by the board of directors, or by one or more shareholders holding
not less than ten percent (10%) of the votes at the meeting. Upon request in
writing that a special meeting of shareholders be called for any proper purpose,
directed to the chairman 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 such special
meetings shall be given in the same manner as for annual meetings of
shareholders. In addition to the matters required by items (a); (b) if
applicable, and (c) 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 except such business as properly
relates to the procedural conduct of such meeting and is within the powers of
the shareholders.
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 MEETING 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 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
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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 Article V of these Bylaws, then, subject
to the provisions of Sections 702 through 704 of the Corporations Code of
California (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 shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the General Corporation Law, the articles of
incorporation or the Banking Law. Subject to the requirements of the remaining
sentences of this section, and except as provided in the Articles of
Incorporation, by Statute, or these Bylaws, every shareholder entitled to vote
at any election for directors shall have the right to cumulate his votes and
give one candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which his shares are entitled, or
to distribute his votes on the same principal among as many candidates as he
shall think fit. No shareholder shall be entitled to cumulate votes unless the
name of the candidate or candidates for whom such 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 such shareholder's intention to
cumulate his votes.
The remaining provisions of this section shall become
effective only when the Corporation becomes a listed corporation within the
meaning of Section 310.5 of the Corporations Code, which provision refers to a
corporation whose shares are traded on the New York Stock Exchange, American
Stock Exchange, or National Market System-NASDAQ.
CLASSIFIED BOARD. The board of directors shall be classified
into two classes, the members of each class to serve for a term of two years.
Notwithstanding the foregoing, the director whose term shall expire at any
annual meeting shall continue to serve until such time as his successor shall
have been duly elected and shall have qualified unless his position on the board
of directors shall have been abolished by action taken to reduce the size of the
board of directors prior to said meeting.
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Should the number of directors of the Corporation be reduced,
the directorship(s) eliminated shall be allocated among classes as appropriate
so that the number of directors in each class is as nearly as equal as possible.
The Board of Directors shall designate, by the name of the incumbent(s), the
position(s) to be abolished. Notwithstanding the foregoing, no decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director. Should the number of directors of the Corporation be
increased, the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as nearly as equal
as possible.
CUMULATIVE VOTING. The election of directors by the
shareholders shall not be by cumulative voting. At each election of directors,
each shareholder entitled to vote may vote all the shares held by that
shareholder for each of several nominees for director up to the number of
directors to be elected. The shareholder may not cast more votes for any single
nominee than the number of shares held by that shareholder.
At the first annual meeting of shareholders held after the
corporation qualifies as a listed corporation within the meaning of Section
301.5 of the Corporations Code, one-half of the directors shall be elected for a
term of two years, and one-half of the directors shall be elected for a term of
one year. If the number of directors is not divisible by two, the first extra
director shall be elected for a term of two years and a second extra director,
if any, shall be elected for a term of one year.
At subsequent annual meetings of shareholders, a number of
directors shall be elected equal to the number of directors with terms expiring
at that annual meeting. Directors elected at each such annual meeting shall be
elected for a term expiring with the annual meeting of shareholders two years
thereafter.
The candidates receiving the highest number of votes of shares
entitled to be voted for them, up to the number of directors to be elected,
shall be elected.
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, 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, or who, though
present, has, at the beginning of the meeting, properly objected to the
transaction of any business because the meeting was not lawfully called or
convened, or to particular matters of business legally required to be included
in the notice, but not so included, signs a waiver of notice, or a consent to
the holding of such 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
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for approval of any of those matters specified in Section 2.2(d) of 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 2.8. ACTION WITHOUT MEETING. 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, 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.
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 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 the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Unless the consents
of all shareholders entitled to vote have been solicited in writing:
(a) Notice of any proposed shareholder approval of,
(i) a contract or other transaction with an interested director, (ii)
indemnification of an agent of the corporation as authorized by Section 3.15, of
Article III, of these Bylaws, (iii) a reorganization of the corporation as
defined in Section 181 of the General Corporation Law, or (iv) 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
(b) Prompt notice shall be given of the taking of any
other corporate action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote who have not
consented in writing. Such notices shall be given in the manner and shall be
deemed to have been given as provided in Section 2.2 of Article II of these
Bylaws.
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Unless, as provided in Section 5.1 of Article V of these
Bylaws, the board of directors 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 shall have
the right to do so either in person or by one or more agents authorized by a
written proxy executed by such person or his duly authorized agent and filed
with the Secretary of the corporation. 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 such proxy is to continue in force; provided further, that an
irrevocable proxy satisfying the requirements of Section 705(e) of the General
Corporations Law shall not be revoked except in accordance with its terms or if
it becomes revocable under the provisions of Section 705(e) and (f) of said
General Corporations Law.
Section 2.10. INSPECTORS OF ELECTION. In advance of any
meeting of shareholders, the board of directors may appoint any persons as
inspectors of election to act at such meeting or any adjournment thereof. If
inspectors of election be not so appointed, the chairman of any such meeting
may, and on the request of any shareholder or his proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one (1) or
three (3). 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 (1) or three (3) inspectors are to be appointed. In case
any person appointed as inspector fails to appear or fails or refuses to act,
the vacancy may, and on the request of any shareholder or a shareholder's proxy
shall, be filled by appointment by the board of directors in advance of the
meeting, or at the meeting by the chairman of the meeting.
The duties of such inspectors shall be as prescribed in
Section 707 of the General Corporation Law and shall include: determining the
number of shares
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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;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining when the polls shall close;
determining the result; and such acts as may be proper to conduct the election
or vote with fairness to all 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 of the proxies, regardless of the
postmark dates on the envelopes in which they are mailed. In making their
determinations, the inspectors may consider whether proxies were solicited in
accordance with applicable provisions of law.
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 of directors may be made by the board of
directors or by any shareholder of any outstanding class of capital stock of the
corporation entitled to vote for the election of directors. Notice of intention
to make any nominations (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 president of the corporation by the later of
the close of business 21 days prior to any meeting of shareholders called for
the election of directors or 10 days after the date of mailing of notice of the
meeting to shareholders. Such notification shall contain the following
information to the extent known to the notifying shareholder: (a) the name and
address of each proposed nominee; (b) the principal occupation of each proposed
nominee; (c) the number of shares of capital stock of the corporation owned by
each proposed nominee; (d) the name and residence address of the notifying
shareholder; (e) the number of shares of capital stock of the corporation owned
by the notifying shareholder; (f) 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 chairman of the meeting, and upon his
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.
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ARTICLE III
DIRECTORS
Section 3.1. POWERS. Subject to limitations of the articles of
incorporation and 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, 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 of directors. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the directors shall have the following powers, to wit:
First - To select and remove all the officers, agents and
employees of the corporation, prescribe such powers and duties for them as may
not be inconsistent with law, with the articles of incorporation or the Bylaws,
fix their compensation and require from them security for faithful service.
Second - To conduct, manage and control the affairs and
business of the corporation, and to make such rules and regulations therefor not
inconsistent with law, or with the articles of incorporation or the Bylaws, as
they may deem best.
Third - To change the principal executive office and principal
office for the transaction of the business of the corporation from one location
to another as provided in Article I, Section 1.1, hereof; to fix and locate from
time to time one or more subsidiary offices of the corporation within or without
the State of California, as provided in Article I, Section 1.2, hereof; to
designate anyplace within the State of California for the holding of any
shareholders' meeting or meetings; and to adopt, make and use a corporate seal,
and to prescribe the forms of certificates of stock, and to alter the form of
such seal and of such certificates from time to time, as in their judgment they
may deem best, provided such seal and such certificates shall at all times
comply with the provisions of law.
Fourth - To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms as may be lawful.
Fifth - To borrow money and incur indebtedness for the
purposes of the corporation, and to cause to be executed and delivered therefor,
in the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations or other evidences of debt and securities
therefor.
Sixth - By resolution adopted by a majority of the authorized
number of directors, to designate executive and other committees, each
consisting of two or more directors, to serve at the pleasure of the board, and
to prescribe the manner in which proceedings of such committees shall be
conducted. Unless the board of
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directors shall otherwise prescribe the manner of proceedings of any such
committees, meetings of such committees may be regularly scheduled in advance
and may be called at any time by the chairman or any two members thereof; unless
the board of directors otherwise prescribes, the other provisions of these
Bylaws with respect to notice and conduct of meetings of the board shall govern.
Any such committee, to the extent provided in a resolution of the board, shall
have all of the authority of the board, except with respect to:
(i) the approval of any action for which the General
Corporation Law or the articles of incorporation also require shareholder
approval;
(ii) the filling of vacancies on the board or in any
committee;
(iii) the fixing of compensation of the directors for
serving on the board or on any committee;
(iv) the adoption, amendment or repeal of the board;
(v) the amendment or repeal of any resolution of
Bylaws;
(vi) any distribution to the shareholders, except at
a rate or in a periodic amount or within a price range determined by the board;
(vii) the appointment of other committees of the
board or the members thereof; and
(viii) taking any action which requires approval of a
specified number or portion of the directors under any provision of law or
regulation applicable specifically to banks.
Section 3.2. NUMBER AND QUALIFICATION OF DIRECTORS. The
number of directors of the corporation shall not be less than five (5) nor
more than nine (9), except that effective immediately before the effective
time of the Company's initial public offering, the number of directors shall
not be less than eight (8) nor more than fifteen (15), until changed by
amendment of the articles of incorporation or by a bylaw amending this
Section 3.2 duly adopted by the vote of the holders of a majority of the
outstanding shares entitled to vote or written consent of the holders of a
majority of the outstanding shares entitled to vote, provided that a proposal
to reduce the authorized number or the 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 the articles of incorporation or in this
Section 3.2 (i) by resolution duly adopted by the board of directors; or (ii)
by a bylaw or amendment thereof duly adopted 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 a written consent of the holders of a majority of the
outstanding shares entitled to vote, or by the board of directors; or (iii)
by approval of the shareholders (as defined in Section 153 of the General
Corporation Law).
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Subject to the foregoing provisions, for changing the number
of directors, the number of directors of this corporation has been fixed at
five (5).
Section 3.3. ELECTION AND TERM OF OFFICE. Subject to the
Articles of Incorporation, Statute or these Bylaws, and subject to Section 2.6
regarding Classified Board, 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 Article II of these Bylaws. All directors shall
hold office until their respective successors are elected, subject to the
General Corporation Law and the provisions of these Bylaws with respect to
vacancies on the board.
Section 3.4. VACANCIES. A vacancy in the board of directors
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.
The number of directors of the Corporation shall be such
number, as shall be provided from time to time in the Bylaws; provided, however,
that no decrease in the number of directors shall have the effect of shortening
the term of any incumbent director, and provided further, that no action shall
be taken to decrease or increase the number of directors within the range stated
in the Bylaws unless at least two-thirds of the directors then in office shall
concur in said action. Vacancies in the board of directors of the Corporation,
however caused, and newly created directorships shall be filled by a vote of
two-thirds of the directors then in office, whether or not a quorum, and any
director so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of the class to which the director has been
chosen expires and when the director's successor is elected and qualified.
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 board of directors accepts the
resignation of a director tendered to take effect at a future time, the board or
the shareholders shall have power to elect a successor to take office when the
resignation is to become effective, as provided in the previous paragraph.
No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of his term of
office.
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Section 3.5. PLACE OF MEETING. Regular meetings of the board
of directors shall be held at any place within the State of California 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 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,
within or without the State of California, or at the principal executive office.
Section 3.6. ORGANIZATION MEETING. Immediately following each
annual meeting of shareholders, the board of directors shall hold a regular
meeting at the place of said annual meeting or at such other place as shall be
fixed by the board of directors, 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 3.7. OTHER REGULAR MEETINGS. Other regular meetings of
the board of directors shall be held without call on the 3rd Wednesday of
January, April, July and October of each year, at 9:00 a.m. (unless another date
and time is fixed by the board); provided, however, should said day fall upon a
legal holiday, then said meeting shall be held at the same time on the next day
thereafter ensuing which is a full business day. Notice of all such regular
meetings of the board of directors is hereby dispensed with.
Section 3.8. SPECIAL MEETINGS. Special meetings of the board
of directors for any purpose or purposes shall be called at any time by the
chairman of the board, the president, or by any two directors.
Written notice of the time and place of special meetings shall
be delivered personally to each director or communicated to each director
orally, by telephone, or by telegraph or mail, charges prepaid, addressed to him
at his 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. In case such notice is
mailed or telegraphed, it shall be deposited in the United States mail or
delivered to the telegraph company in the place in which the principal executive
office of the corporation is located at least forty-eight hours prior to the
time of the holding of the meeting. In case such notice is delivered personally
or by telephone, as above provided, it shall be so delivered at least
twenty-four hours prior to the time of the holding of the meeting. Such mailing,
telegraphing or delivery, personally, orally or by telephone, as above provided,
shall be due, legal and personal notice to such director.
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 other
business may be transacted at the meeting.
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Section 3.9. ACTION WITHOUT MEETING. Any action by the board
of directors may be taken without a meeting if all members of the board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
board and shall have the same force and effect as a unanimous vote of such
directors.
Section 3.10. ACTION AT A MEETING: QUORUM AND REQUIRED VOTE.
Presence of a majority of the authorized number directors at a meeting of the
board of directors constitutes a quorum for the transaction of business, except
as hereinafter provided., or as provided in the Articles of Incorporation or
Statute. 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 such
meeting. Except as provided in the Articles of Incorporation, Statute or Bylaws,
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 of directors, unless a greater number, or the same number after
disqualifying one or more directors from voting, is required by law, by the
articles of incorporation, or by these Bylaws. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of director, provided that any action taken is approved by at least a
majority of the required quorum for such meeting.
Section 3.11. VALIDATION OF DEFECTIVELY CALLED OR NOTICED
MEETINGS. 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 or who,
though present, has prior to the meeting or at its commencement, protested the
lack of proper notice to him, (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 objection. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, unless a director attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called, noticed, or convened; provided, however, if after stating
his objection, the objecting director continues to attend and by his attendance
participates in any matters other than those to which he objected, he shall be
deemed to have waived notice of such meeting and withdrawn his objections.
Section 3.12. ADJOURNMENT. A majority of the directors present
at any director's meeting, either regular or special, may adjourn from time to
time until the time fixed for the next regular meeting of the board.
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Section 3.13. NOTICE OF ADJOURNMENT. If the meeting is
adjourned for more than 24 hours, notice of any adjournment to another time or
place must 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 3.14. 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 3.15. INDEMNIFICATION OF AGENTS OF THE CORPORATION;
PURCHASE OF LIABILITY INSURANCE.
(a) The corporation shall, to the maximum extent and
in the manner permitted by the California Corporations Code (the "Code"),
indemnify each of its directors against expenses (as defined in Section 317(a)
of the Code), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding (as defined in Section
317(a) of the Code), arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 3.15 a "director" of the
corporation includes any person (i) who is or was serving at the request of the
corporation (ii) as a director of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director of a corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
(b) The corporation shall have the power, to the
extent and in the manner permitted by the Code, to indemnify each of its
officers, employees and agents against expenses (as defined in Section 317(a) of
the Code), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding (as defined in Section
317(a) of the Code), arising by reason of the fact that such person is or was an
officer, employee or agent of the corporation. For purposes of this Section
3.15, an "officer", "employee" or "agent" of the corporation includes any person
(i) who is or was an officers, employee, or agent of the corporation, (ii) who
is or was serving at the request of the corporation as an officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an officer, employee or agent of the corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
(c) Expenses incurred in defending any civil or
criminal action or proceeding for which indemnification is required pursuant to
Section 3.15 shall be paid by the corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking by or on
behalf of the indemnified party to repay such
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amount if it shall ultimately be determined that the indemnification party is
not entitled to be indemnified as authorized in this Section 3.15. Expenses
incurred in defending any civil or criminal action or proceeding for which
indemnification s permitted pursuant to Section 3.15 may be paid by the
corporation in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of the indemnified party to repay
such amount if it shall ultimately be determined that the indemnified party is
not entitled to be indemnified as authorized in this Section 3.15.
(d) The indemnification provided by this Section 3.15
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of shareholders
or disinterested directors or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office, to the
extent that such additional rights to indemnification are authorized in the
Articles of Incorporation.
(e) The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was an agent of the
corporation against any liability asserted against or incurred by such person in
such capacity or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Section 3.15.
(f) No indemnification or advance shall be made under
this Section 3.15, except where such indemnification or advance is mandated by
law or the order, judgment or decree of any court of competent jurisdiction, in
any circumstance where it appears:
(1) That it would be inconsistent with a
provision of the Articles of Incorporation, these Bylaws, a resolution of the
shareholders or an agreement in effect at the time of the accrual of the alleged
cause of the action asserted in the proceeding in which the expenses were
incurred or other amounts were paid, which prohibits or otherwise limits
indemnification; or
(2) That it would be inconsistent with any
condition expressly imposed by a court in approving a settlement.
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ARTICLE IV
OFFICERS
Section 4.1. OFFICERS. The officers of the corporation shall
be a chief executive officer, a vice-president, a secretary and a chief
financial officer. The corporation may also have, at the discretion of the board
of directors, a chairman of the board, one or more additional vice-presidents,
one or more assistant secretaries, and such other officers as may be appointed
in accordance with the provisions of Section 3 of this Article. One person may
hold two or more offices, except that the offices of president and Secretary
shall not be held by the same person.
Section 4.2. ELECTION. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section
4.3 or Section 4.5 of this Article, shall be chosen annually by the board of
directors, and each shall hold his office until he shall resign or shall be
removed or otherwise disqualified to serve, or his successor shall be elected
and qualified.
Section 4.3. SUBORDINATE OFFICERS, ETC. The board of directors
may appoint, and may empower the president to appoint, such other officers as
the business of the corporation may require, each of whom shall hold office, for
such period, have such authority and perform such duties as are provided in the
Bylaws or as the board of directors 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 of directors, at any regular
or special meeting thereof, 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 (subject, in each case, to the rights, if any, of an
officer under any contract of employment).
Any officer may resign at any time by giving written notice to
the board of directors or to the president, or to the Secretary of the
corporation, without prejudice however, to the rights, if any, of the
corporation under any contract to which such officer is a party. 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. CHAIRMAN OF THE BOARD. The chairman of the board,
if there shall be such a person, shall be an officer of the board only and not
of the corporation, and shall, if present, preside at all meetings of the board
of directors. He may 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, in which case he may be deemed to be an officer of the corporation.
Section 4.7. 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, 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. He shall be ex-officio a member of all the standing
committees (except the audit committee), including the executive committee, if
any, and shall have the general powers, and duties of management usually vested
in the office of president of a corporation, and shall have such other powers
and duties as may be prescribed by the board of directors or the Bylaws.
Section 4.8. VICE-PRESIDENT. In the absence or disability of
the president, the vice-presidents in order of their rank as fixed by the board
of directors or, if not ranked, the vice-president designated by the board of
directors, shall perform all the duties of the president, and when so acting
shall have all the powers of, and be subject to all the restrictions upon the
president. The vice-presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors or the Bylaws.
Section 4.9. 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 as the board of directors 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 director's
meetings, the number of shares present or represented at shareholder's meetings,
and the proceedings thereof.
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, 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
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be given, and he shall keep the seal of the corporation in safe custody, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or by the Bylaws.
Section 4.10. CASHIER. The cashier shall be the chief
financial officer of the corporation and shall keep and maintain, or cause to be
kept and maintained, adequate and correct accounts of the properties and
business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. The books of account shall at all reasonable times be open to inspection
by any director.
The cashier 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 of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as cashier and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or the Bylaws.
ARTICLE V
MISCELLANEOUS
Section 5.1. RECORD DATE. The board of directors may fix a
time in the future as a record date for the determination of the shareholders
entitled to notice of and to vote at any meeting of 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 nor less than
ten (10) days prior to the date of any meeting, nor more than sixty (60) days
prior to any meeting or any 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, except as otherwise provided in the articles of incorporation
or Bylaws.
Section 5.2. INSPECTION OF CORPORATE RECORDS. 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 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 interests as a shareholder or as the holder
of such voting trust certificate.
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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 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 5.4. ANNUAL AND OTHER REPORTS. The board of directors
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. The
requirement for such annual report is dispensed with so long as this corporation
has less than 100 shareholders of record. Such 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.
A shareholder or shareholders holding at least five percent of
the outstanding shares of any class of the corporation may make 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 current fiscal year ended
more than 30 days prior to the date of the request and a balance sheet of the
corporation as of the end of such period and, in addition, if no annual report
for the last fiscal year has been sent to shareholders, the annual report for
the last fiscal year. The corporation shall use its best efforts to deliver the
statement to the person making the request within 30 days thereafter. A copy of
any such statements shall be kept on file in the principal executive office of
the corporation for 12 months and they shall be exhibited at all reasonable
times to any shareholder demanding an examination of them or a copy shall be
mailed to such shareholder.
The corporation shall, upon the written request of any
shareholder, mail to the shareholder a copy of the last annual income statement
which it has prepared and a balance sheet as of the end of the period. The
quarterly income statements and balance sheets referred to in this section shall
be accompanied by the report thereon, if any, of any independent accountants
engaged by the corporation or the certificate of an authorized officer of the
corporation that such financial statements were prepared without audit from the
books and records of the corporation.
Section 5.5. CONTRACTS, ETC., HOW EXECUTED. The board of
directors, 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
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and on behalf of the corporation, and such authority may be general or confined
to specific instances; and, unless so authorized by the board of directors, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or to any amount.
Section 5.6. CERTIFICATE FOR SHARES. Every holder of shares in
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the chairman or vice-chairman of the board or the president
or a vice-president and by the chief financial officer 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.
Any such certificate shall also contain such legend or other
statement as may be required by Section 418 of the General Corporation Law, the
Corporate Securities Law of 1968, the federal securities laws, and any agreement
between the corporation and the issuee thereof.
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;
provided, however, that a new certificate will be issued without the surrender
and cancellation of the old certificate if (1) the old certificate is lost,
apparently destroyed or wrongfully taken; (2) the request for the issuance of
the new certificate is made within a reasonable time after the owner of the old
certificate has notice of its loss, destruction, or theft; (3) the request for
the issuance of a new certificate is made prior to the receipt of notice by the
corporation that the old certificate has been acquired by a bona fide purchaser;
(4) the owner of the old certificate files a sufficient indemnity bond with or
provides other adequate security to the corporation; and (5) the owner satisfies
any other reasonable requirements imposed by the corporation. In the event of
the issuance of a new certificate, the rights and liabilities of the
corporation, and of the holders of the old and new certificates, shall be
governed by the provisions of Section 8104 and 8405 of the California Commercial
Code.
Section 5.7. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The president or vice-president and the Secretary or any Assistant Secretary of
this corporation are authorized to vote, represent and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such
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officers in person or by any other person authorized so to do by proxy or power
of attorney duly executed by said officers.
Section 5.8. INSPECTION OF BYLAWS. The corporation shall keep
in its principal executive office in California, 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.
Section 5.9. 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. Except as provided in the
Articles of incorporation, Statute, or thee bylaws, 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 the written assent of
shareholders entitled to vote such shares, except as otherwise provided by law
or by the articles of incorporation.
Section 6.2. POWER OF DIRECTORS. Subject to the right of
shareholders as provided in Section 6.1 of this Article VI to adopt, amend or
repeal Bylaws, 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 thereof 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 3.2 of Article III of these Bylaws.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am duly elected, qualified, and acting Secretary of
the PACIFIC COMMUNITY BANKING GROUP, a California corporation; and
2. That the forgoing Bylaws, comprising 21 pages, constitute
the Bylaws of the said Corporation as duly adopted by action of the Board of
Directors of the Corporation duly taken on February 23, 1999.
IN WITNESS HEREOF, I have hereunto subscribed my name and
affix the seal of said Corporation this 25 day of February, 1999.
/s/ Alfred Jannard
------------------------------------
Alfred Jannard, Secretary
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