Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
TEMECULA VALLEY BANCORP INC.
(a California corporation)
(as amended by the Board of Directors on June 27, 2007)
ARTICLE I
OFFICES
SECTION 1.1. PRINCIPAL OFFICE. The principal executive office of the
corporation is hereby located at such place as the board of directors (the
"board") shall determine. The board is hereby granted full power and authority
to change said principal executive office from one location to another.
SECTION 1.2. OTHER OFFICES. Other business offices may, at any time, be
established by the board at such other places as it deems appropriate.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1. PLACE OF MEETINGS. Meetings of shareholders may be held at
such place within or outside the state of California designated by the board. In
the absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the corporation.
SECTION 2.2. ANNUAL MEETING. The annual meeting of shareholders shall be
held for the election of directors on a date and at a time designated by the
board. The date so designated shall be within fifteen (15) months after the last
annual meeting. At such meeting, directors shall be elected, and any other
proper business within the power of the shareholders may be transacted.
SECTION 2.3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by the board, the chairperson of the board, the president, or
by the holders of shares entitled to cast not less than ten percent (10%) of the
votes at such meeting. If a special meeting is called by any person or persons
other than the board, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be transacted,
and shall be delivered personally or by registered mail to the chairperson of
the board, the president, any vice president or the secretary of the
corporation. The officer receiving the request shall cause notice to be promptly
given to the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after receipt of the request. If the notice is not given
within 20 days after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing in this paragraph shall be construed as
limiting, fixing or affecting the time when a meeting of shareholders called by
action of the board may be held.
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SECTION 2.4. NOTICE OF MEETINGS. Written notice, in accordance with Section
2.5 of this Article II, of each annual or special meeting of shareholders shall
be given not less than 10 (but, if given by third class mail, not less than 30)
nor more than 60 days before the date of the meeting to each shareholder
entitled to vote thereat. Such notice shall state the place, date and hour of
the meeting and (a) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (b) in
the case of the annual meeting, those matters which the board, at the time of
the mailing of the notice, intends to present for action by the shareholders,
but, subject to the provisions of applicable law, any proper matter may be
presented at the meeting for such action. The notice of any meeting at which
directors are to be elected shall include the names of nominees intended at the
time of the notice to be presented by the board for election.
If action is proposed to be taken at any meeting for approval of (a) a
contract or transaction in which a director has a direct or indirect financial
interest, pursuant to Section 310 of the California Corporations Code, as
amended (the "Code"), (b) an amendment of the articles of incorporation,
pursuant to Section 902 of the Code, (c) a reorganization of the corporation,
pursuant to Section 1201 of the Code, (d) a voluntary dissolution of the
corporation, pursuant to Section 1900 of the Code, or (e) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of the Code, the notice shall also state the
general nature of that proposal.
SECTION 2.5. MANNER OF GIVING NOTICE. Notice of a shareholders' meeting
shall be given either (i) personally, (ii) by first-class mail, (iii) in the
case of a corporation with outstanding shares held of record by 100 or more
persons (determined as provided in Section 605 of the Code) on the record date
for the shareholders' meeting, by third class mail, (iv) by any other means of
written communication, or (v) by electronic transmission in accordance with
applicable law. Charges shall be prepaid and such notices shall be addressed to
the shareholder at the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by
first-class mail or telegraphic or other written communication to the
corporation's principal executive office or if published at least once in a
newspaper of general circulation in the county in which the principal executive
office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other means
of written communication. An affidavit of mailing or other means of giving any
notice in accordance with the above provisions, executed by the secretary,
assistant secretary or any transfer agent, shall be prima facie evidence of the
giving of the notice.
If any notice addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at such address, all future notices shall be deemed to have been duly given
without further mailing if the same shall be available for the shareholder upon
written demand of the shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of the notice
to all other shareholders.
SECTION 2.6. QUORUM. A majority of the shares entitled to vote, represented
in person or by proxy, shall constitute a quorum at any meeting of shareholders
but in no event, shall a quorum consist of less than one-third of the shares
entitled to vote at the meeting. The shareholders present at a duly called or
held meeting at which a quorum is present may continue to transact business
until adjournment notwithstanding the withdrawal of enough shareholders to leave
less than a quorum, if any action taken (other than adjournment) is approved by
at least a majority of the shares required to constitute a quorum.
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SECTION 2.7. ADJOURNED MEETING AND NOTICE THEREOF. Any shareholders'
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares represented either in person or by proxy
at the meeting, but in the absence of a quorum (except as provided in Section
2.6 of this Article II) no other business may be transacted at such meeting.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at the meeting at which the adjournment is taken.
However, when any shareholders' meeting is adjourned for more than 45 days from
the date set for the original meeting, or, if after adjournment a new record
date is fixed for the adjourned meeting, notice of the adjourned meeting shall
be given to each shareholder of record entitled to vote at the meeting. At any
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
SECTION 2.8. VOTING. The shareholders entitled to notice of any meeting or
to vote at any such meeting shall be only persons in whose name shares stand on
the stock records of the corporation on the record date determined in accordance
with Section 2.9 of this Article II.
Voting of shares of the corporation shall in all cases be subject to the
provisions of Sections 700 through 711, inclusive, of the Code.
The shareholders' vote may be by voice or ballot; provided, however, that
any election for directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than election of directors, any
shareholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal (other than
the election of directors), but, if the shareholder fails to specify the number
of shares which the shareholder is voting affirmatively, it will be conclusively
presumed that the shareholder's approving vote is with respect to all shares
that the shareholder is entitled to vote. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting and
entitled to vote on any matter (other than the election of directors) shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the Code or by the articles of incorporation.
Subject to the following sentence and the provisions of Section 708 of the
Code, every shareholder entitled to vote at any election of directors may
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 the shareholder's shares are entitled, or distribute the shareholder's
votes on the same principle among as many candidates as the shareholder thinks
fit. No shareholder shall be entitled to cumulate votes for any candidate or
candidates pursuant to the preceding sentence unless such candidate's or
candidates' names have been placed in nomination prior to the voting and the
shareholder has given notice at the meeting and prior to the voting of the
shareholder's intention to cumulate the shareholder's votes. If any one
shareholder has given such notice, all shareholders may cumulate their votes for
candidates in nomination.
No shareholder shall be entitled to cumulative votes if the provisions of
Section 301.5 of the Code allow the corporation to dispense with cumulative
voting.
In any election of directors, the candidates receiving the highest number
of affirmative votes of the shares entitled to be voted for them, up to the
number of directors to be elected, shall be elected. Votes against the director
and votes withheld shall have no legal effect.
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SECTION 2.9. RECORD DATE. The board may fix, in advance, a record date for
the determination of the shareholders entitled to notice of any meeting or to
vote or to receive payment of any dividend or other distribution, or allotment
of any rights, or to exercise any rights in respect of any other lawful action.
The record date so fixed shall be not more than 60 days nor less than 10 days
prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only shareholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise rights, as the case may be,
notwithstanding any transfer of shares on the books of the corporation after the
record date. A record date for a meeting of shareholders shall apply to any
adjournment of the meeting unless the board fixes a new record date for the
adjourned meeting. The board shall fix a new record date if the meeting is
adjourned for more than 45 days.
If no record date is fixed by the board, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the business day next preceding the day on which
notice of the meeting is given or, if notice is waived, the close of business on
the business day next preceding the day on which the meeting is held. The record
date for determining shareholders for any purpose other than as set forth in
this Section 2.9 or Section 2.11 of this Article II shall be at the close of
business on the day on which the board adopts the resolution relating thereto,
or the sixtieth day prior to the date of such other action, whichever is later.
SECTION 2.10. CONSENT OF ABSENTEES. The transactions of any meeting of
shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, who was not present in person or
by proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except when the person
objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by the Code to be included in the notice but
not so included, if such objection is expressly made at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of shareholders need be specified in any written waiver of notice, consent to
the holding of the meeting or approval of the minutes of the meeting, except
that if action is taken or proposed to be taken for approval of any of those
matters specified in the second paragraph of Section 2.4 of this Article II, the
waiver of notice, consent or approval shall state the general nature of the
proposal.
SECTION 2.11. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Subject to
Section 603 of the Code, any action which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and without prior notice
if a consent in writing, setting forth the action so taken, is signed by the
holders of the outstanding shares, or their proxies, 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. All such consents shall be filed with the secretary of the corporation
and shall be maintained in the corporate records; provided, however, that (1)
unless the consents of all shareholders entitled to vote have been solicited in
writing, notice of any shareholder approval without a meeting by less than
unanimous consent shall be given, as provided by Section 603(b) of the Code, and
(2) in the case of election of directors, such a consent shall be effective only
if signed by the holders of all outstanding shares entitled to vote for the
election of directors; provided, however, that subject to applicable law, a
director may be elected at any time to fill a vacancy on the board that has not
been filled by the directors, by the written consent of the holders of a
majority of the outstanding shares entitled to vote for the election of
directors. Any written consent may be revoked by a writing received by the
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secretary of the corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary.
Unless a record date for voting purposes be fixed as provided in Section
2.9 of this Article II, the record date for determining shareholders entitled to
give consent pursuant to this Section 2.11, when no prior action by the board
has been taken, shall be the day on which the first written consent is given.
SECTION 2.12. PROXIES. Every person entitled to vote shares or execute
written consents has the right to do so either in person or by one or more
persons authorized by a written proxy executed and dated by such shareholder and
filed with the secretary of the corporation prior to the convening of any
meeting of the shareholders at which any such proxy is to be used or prior to
the use of such written consent. A validly executed proxy which does not state
that it is irrevocable continues in full force and effect unless: (1) revoked by
the person executing it prior to the vote pursuant thereto, by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by the person executing the prior proxy and presented
to the meeting, or as to any meeting of shareholders, by attendance at such
meeting and voting in person by the person executing the proxy; or (2) written
notice of the death or incapacity of the maker of the proxy is received by the
corporation before the vote pursuant thereto is counted; provided, however, that
no proxy shall be valid after the expiration of 11 months from the date of its
execution unless otherwise provided in the proxy.
SECTION 2.13. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the board may appoint any persons as inspectors of election to act
at such meeting and any adjournment thereof. If no inspectors of election are so
appointed, or if any persons so appointed fail to appear or refuse to act, the
chairperson of any such meeting may, and on the request of any shareholder or
shareholder's proxy shall, appoint inspectors of election at the meeting. The
number of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting on the request of one or more shareholders or proxies,
the holders of a majority of shares or their proxies present shall determine
whether one (1) or three (3) inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Section 707(b) of
the Code and shall include: determining the number of shares outstanding and the
voting power of each; determining the shares represented at the meeting;
determining the existence of a quorum; determining the authenticity, validity
and the 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 doing such acts as may
be proper to conduct the election or vote with fairness to all shareholders. 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.
SECTION 2.14. CONDUCT OF MEETINGS. The president shall preside at all
meetings of the shareholders and shall conduct each such meeting in a
businesslike and fair manner, but shall not be obligated to follow any
technical, formal or parliamentary rules or principles of procedure. The
presiding officer's rulings on procedural matters shall be conclusive and
binding on all shareholders, unless at the time of ruling a request for a vote
is made to the shareholders entitled to vote and represented in person or by
proxy at the meeting, in which case the decision of a majority of such shares
shall be conclusive and binding on all shareholders. Without limiting the
generality of the foregoing, the presiding officer shall have all the powers
usually vested in the presiding officer of a meeting of shareholders.
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ARTICLE III
DIRECTORS
SECTION 3.1. POWERS. Subject to the provisions of the Code and any
limitations in the articles of incorporation and these bylaws relating to
actions required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the board. The
board may delegate the management of the day-to-day operations of the business
of the corporation to a management company or other person provided that the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised under the ultimate direction of the board. Without
prejudice to such general powers, but subject to the same limitations, it is
hereby expressly declared that the board shall have the following powers in
addition to the other powers enumerated in these bylaws:
(a) to select and remove all the other officers, agents and employees of
the corporation, prescribe any qualifications, powers and duties for
them that are consistent with law, the articles of incorporation or
these bylaws, fix their compensation, and require from them security
for faithful service;
(b) to conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not
inconsistent with law, the articles of incorporation or these bylaws,
as they may deem best;
(c) to adopt, make and use a corporate seal, 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;
(d) to authorize the issuance of shares of stock of the corporation from
time to time, upon such terms and for such consideration as may be
lawful;
(e) 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 and capital notes, bonds, debentures,
deeds of trust, mortgages, pledges, hypothecations or other evidences
of debt and securities therefor and any agreements pertaining thereto;
(f) to prescribe the manner in which and the person or persons by whom any
or all of the checks, drafts, notes, contracts and other corporate
instruments shall be executed;
(g) to appoint and designate, by resolution adopted by a majority of the
authorized number of directors, one or more committees, each
consisting of two or more directors, including the appointment of
alternate members of any committee who may replace any absent member
at any meeting of the committee; and
(h) generally, to do and perform every act or thing whatever that may
pertain to or be authorized by the board of directors of a corporation
incorporated under the laws of this state.
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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 five (5) nor more than
nine (9) until changed by an amendment of the articles of incorporation or 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. The exact
number of directors shall be fixed from time to time, within the range specified
in the articles of incorporation or 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 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 a majority of the outstanding shares entitled to vote; or (iii) by approval
of the shareholders (as defined in Section 153 of the Code).
SECTION 3.3. NOMINATIONS OF DIRECTORS. Nominations of persons for election
to the board and the proposal of business to be considered by the shareholders
may be made at any meeting of shareholders only (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of the board or (c)
by any shareholder of the corporation who was a shareholder of record at the
time of giving of notice provided for in these bylaws, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 3.3; provided that shareholder nominations of persons for election to
the board at a special meeting may only be made if the board has determined that
directors are to be elected at the special meeting.
For nominations or other business to be properly brought before a
shareholders' meeting by a shareholder pursuant to clause (c) of the preceding
sentence, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation and such other business must otherwise be a
proper matter for shareholder action. To be timely, a shareholder's notice must
be delivered to the Secretary at the principal executive offices of the
corporation not later than: (A) in the case of the 2006 annual meeting, the
close of business on April 30, 2006; (B) in the case of an annual meeting other
than the 2006 annual meeting, the close of business on the 45th day before the
first anniversary of the date on which the corporation first mailed its proxy
materials for the prior year's annual meeting of shareholders; provided,
however, that if the date of the meeting has changed more than 30 days from the
date of the prior year's meeting, then in order for the shareholder's notice to
be timely it must be delivered to the Secretary at the principal executive
offices of the corporation a reasonable time before the corporation mails its
proxy materials for the current year's meeting; provided further, that for
purposes of the preceding sentence, a "reasonable time" shall conclusively be
deemed to coincide with any adjusted deadline publicly announced by the
corporation pursuant to Rule 14a-5(f) or otherwise; and (C) in the case of a
special meeting, the close of business on the seventh day following the day on
which public announcement is first made of the date of the special meeting. In
no event shall the public announcement of an adjournment of a shareholders'
meeting commence a new time period for the giving of a shareholder's notice as
described above. Such shareholder's notice shall set forth (a) as to each person
whom the shareholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934 (or any successor thereto, "Exchange Act")
and Rule 14a-11 thereunder (or any successor thereto) (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made, the text of the proposal or business (including the text of any
resolutions proposed for consideration); and (c) as to the shareholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, as they appear on
the corporation's books, and of such beneficial owner, (ii) the class and number
of shares of the corporation which are owned beneficially and of record by such
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shareholder and such beneficial owner, (iii) a representation that the
shareholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, and (iv) a representation whether the
shareholder or the beneficial owner, if any, intends or is part of a group that
intends (X) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation's outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (Y) otherwise to
solicit proxies from shareholders in support of such proposal or nomination. The
corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the corporation. Notwithstanding any provision
herein to the contrary, no business shall be conducted at a shareholders'
meeting except in accordance with the procedures set forth in this Section 3.3.
For purposes of this Section 3.3, "public announcement" shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press, Reuters, Business Wire or comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.3, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Section 3.3. Nothing in this Section 3.3 shall be deemed to affect any rights
(1) of shareholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act, if applicable to the
corporation, or (2) of the holders of any series of preferred stock to elect
directors pursuant to any applicable provisions of the corporation's Articles of
Incorporation.
Except as otherwise provided by law, the chairman of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 3.3 and, if any
proposed nomination or business was not made or proposed in compliance with this
Section 3.3, to declare that such nomination shall be disregarded or that such
proposed business shall not be transacted.
SECTION 3.4. ELECTION AND TERM OF OFFICE. The directors shall be elected at
each annual meeting of shareholders, but if any 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. Each director shall hold
office until the next annual meeting and until a successor has been elected and
qualified.
SECTION 3.5. VACANCIES. Vacancies on 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 the next annual meeting and
until such director's successor has been elected and qualified. A vacancy on 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 other than to fill a vacancy created by removal requires the consent of
a majority of the outstanding shares entitled to vote.
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Any director may resign effective upon giving notice in writing or by
electronic transmission to the chairperson of the board, the president,
secretary, or the board, 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 power to elect a successor to take office when the resignation is to
become effective.
A vacancy or vacancies on the board shall be deemed to exist in case of the
death, resignation or removal of any director, or if the authorized number of
directors is increased, or 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 board may declare vacant the office of a director who has been declared
of unsound mind by an order of court or convicted of a felony.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of office.
SECTION 3.6. PLACE OF MEETINGS. Regular or special meetings of the board
shall be held at any place within or outside the state of California which has
been designated in the notice of meeting or if there is no notice, at the
principal executive office of the corporation, or at a place designated by
resolution of the board or by the written consent of the board. Any regular or
special meeting is valid wherever held if held upon written consent of all
members of the board given either before or after the meeting and filed with the
secretary of the corporation.
SECTION 3.7. REGULAR MEETINGS. Immediately following each annual meeting of
shareholders, the board shall hold a regular meeting for the purpose of
organization, any desired election of officers and the transaction of other
business. Notice of this meeting shall not be required.
Other regular meetings of the board 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 at either a
place so designated, within the State of California, or at the principal
executive office. Call and notice of all regular meetings of the board are
hereby dispensed with.
SECTION 3.8. SPECIAL MEETINGS. Special meetings of the board for any
purpose or purposes may be called at any time by the chairperson of the board,
the president, any vice president, the secretary or by any two directors.
Special meetings of the board shall be held upon four days' written notice
by mail or 48 hours' notice delivered personally or by telephone, overnight
courier, telegraph, electronic communication (or other system or technology
designed to record and communicate messages, including fax, electronic mail or
other similar means of communication). Any such notice shall be addressed or
delivered to each director at the director's address as shown upon the records
of the corporation or as given to the corporation by the director for purposes
of notice or, if such address is not shown on such records or is not readily
ascertainable, at the place in which the meetings of the directors are regularly
held. Such notice may, but need not, specify the purpose of the meeting, or the
place if the meeting is to be held at the principal executive office of the
corporation.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
9
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means or
by facsimile transmission, to the recipient. Oral notice shall be deemed to have
been given at the time it is communicated, in person or by telephone or
wireless, to the recipient or to a person at the office of the recipient whom
the person giving the notice has reason to believe will promptly communicate it
to the recipient.
SECTION 3.9. QUORUM. A majority of the authorized number of directors
constitutes a quorum of the board for the transaction of business, except to
adjourn as hereinafter provided. 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 be
required by the articles of incorporation and subject to the provisions of
Section 310 of the Code (as to approval of contracts or transactions in which a
director has a direct or indirect material financial interest) and Section
317(e) of the Code (as to indemnification of directors). A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
SECTION 3.10. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of
the board may participate in a meeting through use of a conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Participation in a meeting pursuant to this
Section 3.10 constitutes presence in person at such meeting.
SECTION 3.11. WAIVER OF NOTICE. Notice of a meeting need not be given to
any director who signs a waiver of notice or a consent to holding the meeting or
an approval of the minutes of the meeting, whether before or after the meeting,
or who attends the meeting without protesting, before the meeting or at its
commencement, the lack of notice to such director. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
SECTION 3.12. ADJOURNMENT. A majority of the directors present, whether or
not a quorum is present, may adjourn any directors' meeting to another time and
place. Notice of the time and place of holding an adjourned meeting need not be
given, unless the meeting is adjourned for more than twenty-four hours, in which
case notice of the time and place shall be given before the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
SECTION 3.13. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the board 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 or electronic transmissions shall be filed with the
minutes of the proceedings of the board. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form. Such action by written consent or
electronic transmission shall have the same effect as a unanimous vote of the
board.
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 the board. This
Section 3.14 shall not be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee or otherwise,
and receiving compensation for those services.
SECTION 3.15. RIGHTS OF INSPECTION. Every director of the corporation shall
have the absolute right at any reasonable time to inspect and copy all books,
records and documents of every kind and to inspect the physical properties of
the corporation and also of its subsidiary corporations, domestic or foreign.
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Such inspection by a director may be made in person or by agent or attorney, and
the right of inspection includes the right to copy and make extracts.
SECTION 3.16. REMOVAL OF DIRECTOR WITHOUT CAUSE. Any or all of the
directors of the corporation may be removed without cause if the removal is
approved by the outstanding shares, subject to the following:
(a) Except if the corporation has a classified board, no director may be
removed (unless the entire board is removed) when the votes cast
against removal, or not consenting in writing to the removal, would be
sufficient to elect the director if voted cumulatively at an election
at which the same total number of votes were cast (or, if the 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.
(b) When by the provisions of the articles the holders of the shares of
any class or series, voting as a class or series, are entitled to
elect one or more directors, any director so elected may be removed
only by the applicable vote of the holders of the shares of that class
or series.
(c) When the corporation has a classified board, a director may not be
removed if the votes cast against removal of the director, or not
consenting in writing to the removal, would be sufficient to elect the
director if voted cumulatively (without regard to whether shares may
otherwise be voted cumulatively) at an election at which the same
total number of votes were cast (or, if the action is taken by written
consent, all shares entitled to vote were voted) and either the number
of directors elected at the most recent annual meeting of
shareholders, or if greater, the number of directors for whom removal
is being sought, were then being elected.
SECTION 3.17. REMOVAL OF DIRECTORS BY SHAREHOLDER'S SUIT. The superior
court of the proper county may, at the suit of the shareholders holding at least
10 percent of the number of outstanding shares of any class, remove from office
any director in case of fraudulent or dishonest acts or gross abuse of authority
or discretion with reference to the corporation and may bar from reelection any
director so removed for a period prescribed by the court. The corporation shall
be made a party to such action.
ARTICLE IV
OFFICERS
SECTION 4.1. OFFICERS. The officers of the corporation shall be a
president, a secretary and a chief financial officer. The corporation may also
have, at the discretion of the board, a chairperson of the board, a vice
chairperson of the board, one or more vice presidents, one or more assistant
secretaries, one or more assistant financial officers and such other officers as
may be elected or appointed in accordance with the provisions of Section 4.3 of
this Article IV. One person may hold two or more offices, except those of
president and secretary.
SECTION 4.2. APPOINTMENT. 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 IV, shall be chosen by, and shall serve at the
pleasure of, the board, and shall hold their respective offices until their
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resignation, removal or other disqualification from service, or until their
respective successors shall be appointed, subject to the rights, if any, of an
officer under any contract of employment.
SECTION 4.3. SUBORDINATE OFFICERS. The board may appoint, or may empower
the president to appoint, such other officers as the business of the corporation
may require, each to hold office for such period, have such authority and
perform such duties as are provided in these bylaws or as the board may from
time to time determine.
SECTION 4.4. REMOVAL AND RESIGNATION. Subject to the rights, if any, of an
officer under any contract of employment, any officer may be removed, either
with or without cause, by the board at any time, or, except in the case of an
officer chosen by the board, by any officer upon whom such power of removal may
be conferred by the board.
Any officer may resign at any time by giving notice to the corporation in
writing or by electronic transmission without prejudice to the rights, if any,
of the corporation under any contract to which the 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 these bylaws for regular appointment to such office.
SECTION 4.6. CHAIRPERSON. The chairperson of the board, if there shall be
such an officer, shall, if present, preside at all meetings of the board and
exercise and perform such other powers and duties as may be assigned from time
to time by the board.
SECTION 4.7. VICE CHAIRPERSON. The vice chairperson of the board, if there
shall be such an officer, shall, in the absence of the chairperson of the board,
preside at all meetings of the board and exercise and perform such other powers
and duties as may be assigned from time to time by the board.
SECTION 4.8. PRESIDENT. Subject to such powers, if any, as may be given by
the board to the chairperson of the board, if there shall be such an officer,
the president is the general manager and chief executive officer of the
corporation and has, subject to the control of the board, general supervision,
direction and control of the business and affairs of the corporation. The
president shall preside at all meetings of the shareholders and in the absence
of both the chairperson of the board and the vice chairperson, or if there be
none, at all meetings of the board. The president has the general powers and
duties of management usually vested in the office of president and chief
executive officer of a corporation and such other powers and duties as may be
prescribed by the board.
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 bylaws, the board, the president or the
chairperson of the board.
SECTION 4.10. SECRETARY. The secretary shall keep or cause to be kept, at
the principal executive office or such other place as the board may order, a
book of minutes of all meetings of shareholders, the board and its committees,
with the time and place of holding, whether regular or special, and, if special,
12
how authorized, the notice or waivers of notice thereof given, the names of
those present at the board and committee meetings, the number of shares present
or represented at shareholders' meetings, and the proceedings thereof.
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 Code. The secretary shall keep, or cause to be kept, at
the principal executive office or at the office of the corporation's transfer
agent or registrar, if one is appointed, a record of its shareholders, or a
duplicate record of its shareholders, giving the names and addresses of all
shareholders and the number and class of shares held by each and, to the extent
certificated, the number and date of the 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, of the board and of any committees thereof required by
these bylaws or by law to be given, 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.
SECTION 4.11. ASSISTANT SECRETARY. The assistant secretary or the assistant
secretaries, in the order of their seniority, shall, in the absence or
disability of the secretary, or in the event of such officer's refusal to act,
perform the duties and exercise the powers of the secretary and shall have such
additional powers and discharge such duties as may be assigned from time to time
by the president or by the board.
SECTION 4.12. CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of the properties and financial and business transactions of
the corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares, and shall
send or cause to be sent to the shareholders of the corporation such financial
statements and reports that by law or these bylaws are required to be sent to
them. The books of account shall at all times be open to inspection by any
director of the corporation.
The chief financial officer shall deposit all monies and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the board. The chief financial officer shall disburse the funds of
the corporation as may be ordered by the board, shall render to the president
and directors, whenever they request it, an account of all transactions engaged
in 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.
SECTION 4.13. ASSISTANT FINANCIAL OFFICER. The assistant financial officer
or the assistant financial officers, in the order of their seniority, shall, in
the absence or disability of the chief financial officer, or in the event of
such officer's refusal to act, perform the duties and exercise the powers of the
chief financial officer, and shall have such additional powers and discharge
such duties as may be assigned from time to time by the president or by the
board.
SECTION 4.14. SALARIES. The salaries of the officers shall be fixed from
time to time by the board and no officer shall be prevented from receiving such
salary by reason of the fact that such officer is also a director of the
corporation.
SECTION 4.15. OFFICERS HOLDING MORE THAN ONE OFFICE. Any two or more
offices, except those of president and secretary, may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity.
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SECTION 4.16. INABILITY TO ACT. In the case of absence or inability to act
of any officer of the corporation and of any person herein authorized to act in
his or her place, the board may from time to time delegate the powers or duties
of such officer to any other officer, or any director or other person whom it
may select.
ARTICLE V
INDEMNIFICATION
SECTION 5.1. DEFINITIONS. For use in this Article V, certain terms are
defined as follows:
(a) "Agent": A director, officer, employee or agent of the corporation or
a person who is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise
(including service with respect to employee benefit plans and service
on creditors' committees with respect to any proceeding under the
Bankruptcy Code, assignment for the benefit of creditors or other
liquidation of assets of a debtor of the corporation), or a person who
was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation or
of another enterprise at the request of the predecessor corporation.
(b) "Loss": All expenses, liabilities, and losses including attorneys'
fees, judgments, fines, ERISA excise taxes and penalties, amounts paid
or to be paid in settlement, any interest, assessments, or other
charges imposed thereon, and any federal, state, local, or foreign
taxes imposed on any Agent as a result of the actual or deemed receipt
of any payments under this Article.
(c) "Proceeding": Any threatened, pending or completed action, suit or
proceeding including any and all appeals, whether civil, criminal,
administrative or investigative.
SECTION 5.2. RIGHT TO INDEMNIFICATION. Each person who was or is a party or
is threatened to be made a party to or is involved (as a party, witness or
otherwise) in any Proceeding, by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was an Agent, is entitled
to indemnification. Agent shall be indemnified and held harmless by the
corporation to the fullest extent authorized by law. The right to
indemnification conferred in this Article V shall be a contract right. It is the
corporation's intention that these bylaws provide indemnification in excess of
that expressly permitted by Section 317 of the Code, as authorized by the
corporation's articles of incorporation.
SECTION 5.3. AUTHORITY TO ADVANCE EXPENSES. The right to indemnification
provided in Section 5.2 of these bylaws shall include the right to be paid, in
advance of a Proceeding's final disposition, expenses incurred in defending that
Proceeding, provided, however, that if required by the California General
Corporation Law, as amended, the payment of expenses in advance of the final
disposition of the Proceeding shall be made only upon delivery to the
corporation of an undertaking by or on behalf of the Agent to repay such amount
if it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation as authorized under this Article V or otherwise.
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The Agent's obligation to reimburse the corporation for advances shall be
unsecured and no interest shall be charged thereon.
SECTION 5.4. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 5.2
or 5.3 of these bylaws is not paid in full by the corporation within thirty (30)
days after a written claim has been received by the corporation, the claimant
may at any time there-after bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expenses (including attorneys' fees) of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition) that the claimant has not met
the standards of conduct that make it permissible under the California General
Corporation Law for the corporation to indemnify the claimant for the amount
claimed. The burden of proving such a defense shall be on the corporation.
Neither the failure of the corporation (including its board of directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that the indemnification of the
claimant is proper under the circumstances because he or she has met the
applicable standard of conduct set forth in the California General Corporation
Law, nor an actual determination by the corporation (including its board of
directors, independent legal counsel, or its shareholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not already met the applicable standard
of conduct.
SECTION 5.5. PROVISIONS NONEXCLUSIVE. The rights conferred on any person by
this Article V shall not be exclusive of any other rights that such person may
have or hereafter acquire under any statute, provision of the articles of
incorporation, 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 any provision of the
articles of incorporation, agreement, or vote of the shareholders or
disinterested directors is inconsistent with these bylaws, the provision,
agreement, or vote shall take precedence.
SECTION 5.6. AUTHORITY TO INSURE. The corporation may purchase and maintain
insurance to protect itself and any Agent against any Loss asserted against or
incurred by such person, whether or not the corporation would have the power to
indemnify the Agent against such Loss under applicable law or the provisions of
this Article V. If the corporation owns all or a portion of the shares of the
company issuing the insurance policy, the company and/or the policy must meet
one of the two sets of conditions set forth in Section 317 of the Code.
SECTION 5.7. SURVIVAL OF RIGHTS. The rights provided by this Article V
shall continue as to a person who has ceased to be an Agent and shall inure to
the benefit of the heirs, executors, and administrators of such person.
SECTION 5.8. SETTLEMENT OF CLAIMS. The corporation shall not be liable to
indemnify any Agent under this Article V: (a) for any amounts paid in settlement
of any action or claim effected without the corporation's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award, if
the corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
SECTION 5.9. EFFECT OF AMENDMENT. Any amendment, repeal or modification of
this Article V shall not adversely affect any right or protection of any Agent
existing at the time of such amendment, repeal or modification.
SECTION 5.10. SUBROGATION. Upon payment under this Article V, the
corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and shall
15
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation effectively to
bring suit to enforce such rights.
SECTION 5.11. NO DUPLICATION OF PAYMENTS. The corporation shall not be
liable under this Article V to make any payment in connection with any claim
made against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote or otherwise) of the
amounts otherwise indemnifiable hereunder.
ARTICLE VI
OTHER PROVISIONS
SECTION 6.1. INSPECTION OF CORPORATE RECORDS.
(a) A shareholder or shareholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation or who hold at least one percent (1%) of the outstanding
voting shares and have filed a Schedule 14B with the United States
Securities and Exchange Commission relating to the election of
directors of the corporation shall have an absolute right to do either
or both of the following:
(i) inspect and copy the record of shareholders' names and addresses
and shareholdings during usual business hours upon five business
days' prior written demand upon the corporation; or
(ii) obtain from the transfer agent, if any, for the corporation, upon
written demand and upon the tender of its usual charges for such
a list (the amount of which charges shall be stated to the
shareholder by the transfer agent upon request), a list of the
shareholders' names and addresses who are entitled to vote for
the election of directors and their shareholdings, as of the most
recent record date for which it has been compiled, or as of a
date specified by the shareholder subsequent to the date of
demand. The corporation shall have a responsibility to cause the
transfer agent to comply with this Section 6.1;
(b) The record of shareholders shall also be open to inspection and
copying by any shareholder or holder of a voting trust certificate at
any time during usual business hours upon written demand on the
corporation, for a purpose reasonably related to such holder's
interest as a shareholder or holder of a voting trust certificate. A
written demand for such inspection shall be accompanied by a statement
in reasonable detail of the purpose of the inspection.
(c) The accounting books and records and minutes of proceedings of the
shareholders and the board and committees of the board shall be open
to inspection upon written demand on the corporation by 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 a shareholder or as a holder of such voting
trust certificate. The right of inspection created by this Section
6.1(c) shall extend to the records of each subsidiary of the
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corporation. A written demand for such inspection shall be accompanied
by a statement in reasonable detail of the purpose of the inspection.
(d) Any inspection and copying under this Section 6.1 may be made in
person or by agent or attorney.
SECTION 6.2. INSPECTION OF BYLAWS. The corporation shall keep at its
principal executive office in California the original or a copy of these bylaws
as amended to date, which shall be open to inspection by shareholders at all
reasonable times during office hours.
SECTION 6.3. EXECUTION OF DOCUMENTS, CONTRACTS. Subject to the provisions
of applicable law, any note, mortgage, evidence of indebtedness, contract, share
certificate, initial transaction statement or written statement, conveyance or
other instrument in writing and any assignment or endorsement thereof executed
or entered into between the corporation and any other person, when signed by the
chairperson of the board, the president or any vice president and the secretary,
any assistant secretary, the chief financial officer or any assistant financial
officer of the corporation, or when stamped with a facsimile signature of such
appropriate officers in the case of share certificates, shall be valid and
binding upon the corporation in the absence of actual knowledge on the part of
the other person that the signing officers did not have authority to execute the
same. Any such instruments may be signed by any other person or persons and in
such manner as from time to time shall be determined by the board, and unless so
authorized by the board, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or amount.
SECTION 6.4. CERTIFICATES FOR SHARES; DIRECT REGISTRATION SYSTEM. Shares of
the corporation's stock may be certificated or uncertificated, as provided under
California law. Any certificates that are issued shall be signed in the name of
the corporation by the chairman of the board, the president or vice president
and by the chief financial officer, an assistant treasurer, the secretary or any
assistant secretary, certifying the number of shares and the class or series of
shares owned by the shareholder. Any or all of the signatures on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed on a certificate shall have
ceased to be that officer, transfer agent or registrar before that certificate
is issued, it may be issued by the corporation with the same effect as if that
person were an officer, transfer agent or registrar at the date of issue. Shares
of the corporation's capital stock may also be evidenced by registration in the
holder's name in uncertificated, book-entry form on the books of the corporation
in accordance with a direct registration system approved by the Securities and
Exchange Commission and by the Nasdaq Global Market or any securities exchange
on which the stock of the corporation may from time to time be traded.
Transfers of shares of stock of the corporation shall be made by the
transfer agent and registrar on the books of the corporation after receipt of a
request with proper evidence of succession, assignment or authority to transfer
by the record holder of such stock, or by an attorney lawfully constituted in
writing, and in the case of stock represented by a certificate, upon surrender
of the certificate. Subject to the foregoing, the board of directors shall have
power and authority to make such rules and regulations as it shall deem
necessary or appropriate concerning the issue, transfer and registration of
shares of stock of the corporation, and to appoint and remove transfer agents
and registrars of transfers.
Any person claiming a certificate of stock to be lost, stolen, mislaid or
destroyed shall make an affidavit or affirmation of that fact and verify the
same in such manner as the board of directors may require, and shall, if the
board of directors so requires, give the corporation, its transfer agents,
17
registrar and/or other agents a bond of indemnity in form approved by counsel,
and in amount and with such sureties as may be satisfactory to the corporate
secretary of the corporation, before a new certificate (or uncertificated shares
in lieu of a new certificate) may be issued of the same tenor and for the same
number of shares as the one alleged to have been lost, stolen, mislaid or
destroyed.
SECTION 6.5. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The president
or any other officer or officers authorized by the board or the president are
each authorized to vote, represent and exercise on behalf of the corporation all
rights incident to any and all shares or other securities of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in person
or by any other person authorized to do so by proxy or power of attorney duly
executed by said officer.
SECTION 6.6. SEAL. If the corporation desires to obtain a corporate seal,
such corporate seal of the corporation shall consist of two concentric circles,
between which shall be the name of the corporation, and in the center shall be
inscribed the word "Incorporated" and the date of its incorporation.
SECTION 6.7. FISCAL YEAR. The fiscal year of the corporation shall begin on
the first day of January and end on the 31st day of December of each year.
SECTION 6.8. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the Code and the California General Corporation Law shall govern
the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
SECTION 6.9. BYLAW PROVISIONS CONTRARY TO OR INCONSISTENT WITH PROVISIONS
OF LAW. Any article, section, subsection, subdivision, sentence, clause or
phrase of these bylaws which, upon being construed in the manner provided in
this Section 6.9, shall be contrary to or inconsistent with any applicable
provision of the Code or other applicable laws of the state of California or of
the United States shall not apply so long as said provisions of law shall remain
in effect, but such result shall not affect the validity or applicability of any
other portions of these bylaws, it being hereby declared that these bylaws would
have been adopted and each article, section, subsection, subdivision, sentence,
clause or phrase thereof, irrespective of the fact that any one or more
articles, sections, subsections, subdivisions, sentences, clauses or phrases is
or are illegal.
SECTION 6.10. NOTICE; WAIVER OF NOTICE. Except as otherwise specifically
provided herein or required by law, all notices required to be given pursuant to
these bylaws shall be in writing and may in every instance be effectively given
by hand delivery (including use of a courier service), by depositing such notice
in the mail, postage prepaid, or by sending such notice by electronic
transmission or facsimile. Any such notice shall be addressed to the person to
whom notice is to be given at such person's address as it appears on the records
of the corporation. The notice shall be deemed given (i) in the case of hand
delivery, when received by the person to whom notice is to be given or by any
person accepting such notice on behalf of such person, (ii) in the case of
delivery by mail, when deposited in the mail, and (iii) in the case of delivery
via electronic delivery or facsimile, when dispatched. Any written waiver of
notice, signed by the person entitled to notice or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
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ARTICLE VII
AMENDMENTS
SECTION 7.1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these
bylaws may be amended or repealed by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however, that if
the articles of incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of directors may
be changed only by an amendment of the articles of incorporation and provided
also that a bylaw reducing the fixed number or the minimum number of directors
to a number less than five cannot be adopted if the votes cast against adoption
at a meeting, or the shares not consenting in the case of action by written
consent, are equal to more than 16 2/3 percent of the outstanding shares
entitled to vote.
SECTION 7.2. AMENDMENT BY DIRECTORS. Subject to the rights of the
shareholders as provided in Section 7.1 of this Article VII, bylaws, other than
a bylaw specifying or changing a fixed number of directors or the maximum or
minimum number or changing from a fixed to a variable board or vice versa, may
be adopted, amended or repealed by the board.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting secretary of Temecula Valley
Bancorp Inc., a California corporation; and
2. That the foregoing Bylaws, comprising 19 pages, constitute the Bylaws of
Temecula Valley Bancorp Inc. as duly adopted by action of the board of directors
of Temecula Valley Bancorp Inc. duly taken on June 27, 2007.
/s/ Donald A. Pitcher
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Donald A. Pitcher
Secretary
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