[ UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported):
March 10, 2009
TriCo Bancshares
(Exact name of registrant as specified in its charter)
California 0-10661 94-2792841
------------------------ --------------- --------------------
(State or other jurisdiction of (Commission File No.) (I.R.S. Employer
incorporation or organization Identification No.)
63 Constitution Drive, Chico, California 95973
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(530) 898-0300
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal
Year.
On March 10, 2009, in connection with the appointment of Virginia Walker as a
director, the board of directors of TriCo Bancshares amended section 15 of its
Bylaws to increase the current number of directors to 12. The authorized number
of directors is a range of not fewer than eight and not more than 15.
See also the discussion under Item 8.01.
Item 8.01 Other Events.
On March 10, 2009, TriCo Bancshares submitted Restated Articles of Incorporation
for filing with the Secretary of State of the State of California. The Restated
Articles of Incorporation incorporate an amendment to TriCo's Articles of
Incorporation increasing the number of authorized shares of common stock to 50
million shares, which was previously disclosed in a proxy statement filed by the
Company and approved by TriCo's shareholders on May 4, 2004, and filed with the
Secretary of State of the State of California on May 11, 2004. The Restated
Articles of Incorporation make no other changes.
Item 9.01 Financial Statements and Exhibits.
Reference is made to the exhibits listed in the Exhibit Index included with this
Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 16, 2009 TRICO BANCSHARES
(Registrant)
By: /s/Thomas J. Reddish
-------------------------
Thomas J. Reddish
Executive Vice President
Chief Financial Officer
Exhibit Index
Exhibit Description
Number -----------
------
3.1 Restated Articles of Incorporation of TriCo Bancshares, as
submitted for filing with the Secretary of State of the State of
California on March 10, 2009.
3.2 Amendment to Section 15 of Bylaws; complete Bylaws as amended
Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION
OF
TRICO BANCSHARES
Richard P. Smith and Thomas Reddish do hereby certify that:
1. They are the President and Chief Financial Officer, respectively,
of TriCo Bancshares, a California Corporation (the
"Corporation").
2. The Articles of Incorporation of the Corporation as amended to
the date of this Certificate are and restated in full to read as
set forth in the attached Exhibit, which is incorporated herein
by reference, as if in full.
3. The foregoing Restated Articles of Incorporation have been duly
approved by the board of directors.
4. The foregoing Restated Articles of Incorporation do not alter or
amend in any respect the Articles of Incorporation of this
corporation and, pursuant to Section 910 of the California
Corporations Code, may be approved by the Board of Directors
along and do not required the approval of the outstanding shares.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate are true and correct
of our own knowledge.
Date: March 9, 2009 /s/ Richard P. Smith
--------------------------------------
Richard P. Smith, President
/s/ Thomas Reddish
--------------------------------------
Thomas Reddish, Chief Financial Officer
EXHIBIT TO RESTATED ARTICLES
OF INCORPORATION OF TRICO BANCSHARES
RESTATED ARTICLES OF INCORPORATION
OF
TRICO BANCSHARES
FIRST
The name of this Corporation is TriCo Bancshares.
SECOND
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
THIRD
3.1 The Corporation is authorized to issue two classes of shares
designated "Preferred Stock" and "Common Stock," respectively. The number
of shares of Preferred Stock authorized to be issued is one million
(1,000,000), and the number of shares of Common Stock authorized to be
issued is fifty million (50,000,000).
3.2 The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. The Board of Directors is authorized
to determine and alter the rights, preferences, privileges and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock,
and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The Board of Directors,
within the limits and restrictions stated in any resolution or resolutions
of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number
of shares of such series then outstanding) the number of shares of any
series subsequent to the issue of shares of that series.
3.3 Series A Preferred Stock.
-------------------------
The rights, preferences and privileges of the Series A Preferred
Stock of the Corporation are as set forth in this Section 3.3.
3.3.1 Designation and Amount.
----------------------
Thirty Thousand Six Hundred (30,600) of the shares of the
Preferred Stock of the Corporation are designated Series A Preferred
Stock (hereinafter referred to as "Series A Stock").
3.3.2 Dividends.
---------
(a) The holders of shares of Series A Stock shall be entitled to
receive cash dividends, when and as declared by the Board of Directors
out of funds legally available for the purpose, from the date of issue
of such shares to and including August 31, 1985, and for each Dividend
Period commencing on the first day of each month in each year after
August 31, 1985 and ending on and including the day next preceding the
first day of the next month (such period ending August 31, 1985 and
each of such other periods herein referred to in this Section 3.3 as a
"Dividend Period"), at an annual rate of $11.00 per share. The amount
of dividend per share payable for the portion of the Dividend Period
from the date of original issue of a share of Series A Stock to and
including August 31, 1985 and for any other Dividend Period more or
less than a full Dividend Period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days
elapsed in the period for which payable. The amount of dividend per
share payable for each full Dividend Period commencing after August
31, 1985 shall be computed by dividing the annual dividend rate for
each Dividend Period by twelve. Dividends shall be payable when and as
declared by the Board of Directors, out of funds legally available
therefor, to holders of record on such respective dates not exceeding
15 days preceding the payment date thereof as may be determined by the
Board of Directors in advance of such payment date. Dividends on
account of arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend payment
date, to holders of record on such date not exceeding 15 days
preceding the payment date thereof as may be fixed by the Board of
Directors. No dividends shall be declared on any other series or class
or classes of Preferred Stock ranking on a parity (as that term is
defined in Section 3.3.5(d)) with the Series A Stock as to dividends
in respect of any Dividend Period unless there shall likewise be or
have keen declared on all shares of Series A Stock at the time
outstanding like dividends for all Dividend Periods coinciding with or
ending before such Dividend Period, ratably in proportion to the
respective dividend rates fixed for all such other series or class or
classes of Preferred Stock and the Series A Stock. Dividends shall be
cumulative and will accrue on each share of Series A Stock from the
date of original issuance thereof. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment
or payments which may be in arrears.
(b) If dividends at the rate per share set out in Section
3.3.2(a) for any Dividend Period shall not have been declared and paid
or set apart for payment on all outstanding shares of Series A Stock
for such Dividend Period and all preceding Dividend Periods from and
after the date of issue thereof, then, until the aggregate deficiency
shall be declared and fully paid or set apart for payment, the
Corporation shall not (i) declare or pay or set apart for payment any
dividends or make any other distribution on the Common Stock of the
Corporation or any other capital stock of the Corporation ranking
junior to the Series A Stock with respect to the payment of dividends
or distribution of assets on liquidation, dissolution or winding up of
the Corporation (which for all purposes shall mean any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary) (the Common Stock and such other stock being herein
referred to in this Section 3.3 as "Junior Stock"), other than
dividends or distributions paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Junior Stock, or (ii)
make any payment on account of the purchase, redemption or other
retirement of any Junior Stock.
3.3.3 Liquidation Preference.
-----------------------
Upon the voluntary or involuntary liquidation, winding up or
dissolution of the Corporation, out of the assets available for
distribution to shareholders the holders of Series A Stock shall be
entitled to receive, in preference to any payment on the Junior Stock,
an amount equal to $100.00 per share plus cumulative dividends as
provided in Section 3.3.2 above accrued and unpaid to the date payment
is made available to the Series A Stock and no more. Subject to the
rights of the holders of shares of any series or class or classes of
stock ranking on a parity with or prior to the Series A Stock upon
liquidation, dissolution or winding up, after the full preferential
liquidation amount has been paid to, or determined and set apart for,
the Series A Stock, the remaining assets shall be paid to the Junior
Stock. If upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of the Series A Stock
shall be insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity with the Series A
Stock, then such assets, or the proceeds thereof, shall be distributed
among the shareholders of Series A Stock and any such other Preferred
Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series A Stock and any such other Preferred
Stock if all amounts payable thereon were paid in full. A
reorganization shall not be considered to be a liquidation, winding up
or dissolution within the meaning of this Section 3.3.3 and in such
event the Series A Stock shall be entitled only to the rights provided
in the plan of reorganization and Chapters 12 and 13 of the California
General Corporation Law and elsewhere in the Corporation's Articles of
Incorporation.
3.3.4 Redemption.
----------
(a) The Series A Stock is subject to redemption, out of funds
legally available therefor, in whole, or from time to time in part, at
the option of the board of directors of the Corporation at or any time
after July 1, 1988 or prior thereto upon the approval of at least a
majority of the outstanding shares of Series A Stock. If only a part
of the Series A Stock is to be redeemed, the redemption shall be
carried out pro rata (as nearly as may be). The redemption price shall
be $100.00 per share plus cumulative dividends as provided in Section
3.3.2 above accrued and unpaid to the date fixed for redemption
(herein called the "redemption price"). In the case of a redemption of
less than all of the Series A Stock at anytime outstanding, no such
shares may be redeemed until all dividends accrued and unpaid on all
Series A Stock then outstanding, other than the shares to be redeemed,
shall have been paid or declared and the full amount thereof set apart
for payment.
(b) The Corporation shall mail a notice of redemption to each
holder of record of shares to be redeemed addressed to the holder at
the address of such holder appearing on the books of the Corporation
or given by the holder to the Corporation for the purpose of notice,
or if no such address appears or is given at the place where the
principal executive office of the Corporation is located, not earlier
than 60 nor later than 20 days before the date fixed for redemption.
The notice of redemption shall include (i) the class of shares or the
part of a class of shares to be redeemed, (ii) the date fixed for
redemption, (iii) the redemption price and (iv) the place at which the
shareholders may obtain payment of the redemption price upon surrender
of their share certificates. If funds are available on the date fixed
for the redemption, then whether or not the share certificates are
surrendered for payment of the redemption price, the shares shall no
longer be outstanding and the holders thereof shall cease to be
shareholders of the Corporation with respect to the shares redeemed on
and after the date fixed for redemption and shall be entitled only to
receive the redemption price without interest upon surrender of the
share certificate. If less than all the shares represented by one
share certificate are to be redeemed, the Corporation shall issue a
new share certificate for the shares not redeemed.
(c) The Corporation shall also cause a copy of the notice of
redemption to be published in a newspaper of general circulation in
the county in which the principal executive office of the Corporation
is located at least once a week for two successive weeks, in each
instance on any day of the week, commencing not earlier than 60 nor
later than 20 days before the date fixed for redemption. If the
Corporation publishes the notice of redemption as provided in this
paragraph (c), the failure of the Corporation to comply with the
provision for mailing of notice of redemption in paragraph (b) shall
not invalidate the redemption of the shares.
(d) If, on or prior to any date fixed for redemption, the
Corporation deposits with any bank or trust company in this state
(which may be an affiliate of the Corporation) as a trust fund a sum
sufficient to redeem, on the date fixed for redemption thereof, the
shares called for redemption, with irrevocable instructions and
authority to the bank or trust company to publish the notice of
redemption thereof (or to complete such publication if theretofore
commenced) and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon surrender of their share certificates, then from and
after the date of the deposit (although prior to the date fixed for
redemption) the shares so called shall be redeemed and dividends on
those shares shall cease to accrue after the date fixed for
redemption. The deposit shall constitute full payment of the shares to
their holders and from and after the date of the deposit the shares
shall no longer be outstanding and the holders thereof shall cease to
be shareholders with respect to such shares and shall have no rights
with respect thereto except the right to receive from the bank or
trust company payment of the redemption price of the shares without
interest, upon surrender of their certificates therefor. Any interest
accrued on such funds shall be paid to the Corporation from time to
time. If less than all the shares represented by one share certificate
are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed. After two years, the bank or
trust company shall return to the Corporation funds deposited and not
claimed and thereafter the holder of a share certificate for shares
redeemed shall look to the Corporation for payment.
3.3.5 Voting Rights.
-------------
(a) Except as hereinafter in this Section 3.3.5 expressly
provided for and as otherwise required by the laws of the State of
California, the Series A Stock shall have no voting rights. If there
is a default in whole or in part in the payment of 24 or more
cumulative monthly dividends, whether or not consecutive, on the
Series A Stock as provided for in Section 3.3.2 above, the holders of
the outstanding Series A Stock shall have the right, voting separately
as a class with holders of shares of any one or more other series of
Preferred Stock ranking on a parity with the Series A Stock either as
to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been
conferred and are exercisable, to elect two of the authorized number
of members of the Board of Directors of the Corporation at the
Corporation's next annual meeting of shareholders. At elections for
such directors, each holder of Series A Stock shall be entitled to one
vote for each share held (the holders of shares of any other series of
Preferred Stock ranking on such a parity and having like voting rights
being entitled to such number of votes, if any, for each share of such
stock held as may be granted to them). The right of the holders of
Series A Stock, voting separately as a class, to elect (either alone
or together with the holders of shares of any one or more other series
of Preferred Stock ranking on such a parity and having like voting
rights) members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accumulated
on the Series A Stock shall have been fully paid or set apart for
payment, at which time such right shall terminate, except as herein or
by law expressly provided, subject to revesting in the event of each
and every subsequent default of the character above mentioned. Upon
any termination of the right of the holders of the Series A Stock as a
class to vote for directors as herein provided, the term of office of
all directors then in office elected by the Series A Stock shall
terminate immediately. Any director who shall have been so elected
pursuant to this paragraph may be removed at any time, either with or
without cause, and any vacancy thereby created may be filled, only by
the affirmative vote of the holders of Series A Stock voting
separately as a class (either alone or together with the holders of
shares of any one or more other series of Preferred Stock ranking on
such a parity and having like voting rights). If the office of any
director elected by the holders of Series A Stock voting as a class
becomes vacant for any reason other than removal from office as
aforesaid, the remaining director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy
occurred.
(b) So long as any shares of Series A Stock remain outstanding,
the consent of the holders of at least a majority of the shares of
Series A Stock outstanding at the time (voting separately as a class
together with all other series of Preferred Stock ranking on a parity
with the Series A Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which like
voting rights have been conferred and are exercisable) shall be
necessary to permit, effect or validate any one or more of the
following:
(i) the authorization, creation or issuance of a new class
or series of shares having rights, preferences or privileges
prior (as that term is defined in Section 3.3.5(d)) to the shares
of the Series A Stock, or any increase in the number of
authorized shares of any class or series having rights,
preferences or privileges prior to the shares of Series A Stock;
or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Articles of Incorporation of the Corporation which would
materially and adversely affect any right, preference, privilege
or voting power of the Series A Stock or of the holders thereof,
provided, however that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock, in
each case ranking on a parity with or junior to the Series A
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Series A Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
(d) Any class or classes of stock of the Corporation shall be
deemed to rank:
(i) prior to the Series A Stock as to dividends or as to
distribution of assets upon liquidation, dissolution or winding
up if the holders of such class shall be entitled to the receipt
of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of Series A Stock; and
(ii) on a parity with the Series A Stock as to dividends or
as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof are
different from those of the Series A Stock if the holders of such
class of stock and of the Series A Stock shall be entitled to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority one over the other.
3.4 Series B Preferred Stock.
------------------------
The rights, preferences and privileges of the Series B Preferred Stock
of the Corporation are as set forth in this Section 3.4.
3.4.1 Designation and Amount.
------------------------
Eight Thousand (8,000) of the shares of the Preferred Stock of the
Corporation are designated Series B Preferred Stock (hereinafter
referred to as "Series B Stock").
3.4.2 Dividends.
---------
(a) The holders of shares of Series B Stock shall be entitled to
receive cash dividends, when and as declared by the Board of Directors
out of funds legally available for the purpose, from the date of issue
of such shares to and including November 30, 1988, and for each
Dividend Period commencing on the first day of each month in each year
after November 30, 1988 and ending on and including the day next
preceding the first day of the next month (such period ending November
30, 1988 and each of such other periods herein referred to in this
Section 3.4 as a "Dividend Period"), at an annual rate of $52.50 per
share. The amount of dividend per share payable for the portion of the
Dividend Period from the date of original issue of a share of Series B
Stock to and including November 30, 1988 and for any other Dividend
Period more or less than a full Dividend Period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in the period for which payable. The amount of
dividend per share payable for each full Dividend Period commencing
after November 30, 1988 shall be computed by dividing the annual
dividend rate for each Dividend Period by twelve. Dividends shall be
payable when and as declared by the Board of Directors, out of funds
legally available therefor, to holders of record on such respective
dates not exceeding 15 days preceding the payment date thereof as may
be determined by the Board of Directors in advance of such payment
date. Dividends on account of arrears for any past Dividend Periods
may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date not exceeding
15 days preceding the payment date thereof as may be fixed by the
Board of Directors. No dividends shall be declared on any other series
or class or classes of Preferred Stock ranking on a parity (as that
term is defined in Section 3.4.5(d)) with the Series B Stock as to
dividends in respect of any Dividend Period unless there shall
likewise be or have been declared on all shares of Series B Stock at
the time outstanding like dividends for all Dividend Periods
coinciding with or ending before such Dividend Period, ratably in
proportion to the respective dividend rates fixed for all such other
series or class or classes of Preferred Stock and the Series B Stock.
Dividends shall be cumulative and will accrue on each share of Series
B Stock from the date of original issuance thereof. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments which may be in arrears.
(b) If dividends at the rate per share set out in Section
3.4.2(a) for any Dividend Period shall not have been declared and paid
or set apart for payment on all outstanding shares of Series B Stock
for such Dividend Period and all preceding Dividend Periods from and
after the date of issue thereof, then, until the aggregate deficiency
shall be declared and fully paid or set apart for payment, the
Corporation shall not (i) declare or pay or set apart for payment any
dividends or make any other distribution on the Common Stock of the
Corporation or any other capital stock of the Corporation ranking
junior to the Series B Stock with respect to the payment of dividends
or distribution of assets on liquidation, dissolution or winding up of
the Corporation (which for all purposes shall mean any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary) (the Common Stock and such other stock being herein
referred to in this Section 3.4 as "Junior Stock"), other than
dividend or distributions paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Junior Stock, or (ii)
make any payment on account of the purchase, redemption or other
retirement of any Junior Stock.
3.4.3 Liquidation Preference.
----------------------
Upon the voluntary or involuntary liquidation, winding up or
dissolution of the Corporation, out of the assets available for
distribution to shareholders the holders of Series B Stock shall be
entitled to receive, in preference to any payment on the Junior Stock,
an amount equal to $500.00 per share plus cumulative dividends as
provided in Section 3.4.2 above accrued and unpaid to the date payment
is made available to the Series B Stock and no more. Subject to the
rights of the holders of shares of any series or class or classes of
stock ranking on a parity with or prior to the Series B Stock upon
liquidation, dissolution or winding up, after the full preferential
liquidation amount has been paid to, or determined and set apart for,
the Series B Stock, the remaining assets shall be paid to the Junior
Stock. If upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of the Series B Stock
shall be insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity with the Series B
Stock, then such assets, or the proceeds thereof, shall be distributed
among the shareholders of Series B Stock and any such other Preferred
Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series B Stock and any such other Preferred
Stock if all amounts payable thereon were paid in full. A
reorganization shall not be considered to be a liquidation, winding up
or dissolution within the meaning of this Section 3.4.3 and in such
event the Series B Stock shall be entitled only to the rights provided
in the plan of reorganization and Chapters 12 and 13 of the California
General Corporation Law and elsewhere in the Corporation's Articles of
Incorporation.
3.4.4 Redemption.
-----------
(a) The Series B Stock is subject to redemption, out of funds
legally available therefor, in whole, or from time to time in part, at
the option of the board of directors of the Corporation at or any time
after August 1, 1995 or prior thereto upon the approval of at least a
majority of the outstanding shares of Series B Stock. If only a part
of the Series B Stock is to be redeemed, the redemption shall be
carried out pro rata (as nearly as may be). The redemption price shall
be $500.00 per share plus cumulative dividends as provided in Section
3.4.2 above accrued and unpaid to the date fixed for redemption
(herein called the "redemption price"). In the case of a redemption of
less than all of the Series B Stock at anytime outstanding, no such
shares may be redeemed until all dividends accrued and unpaid on all
Series B Stock then outstanding, other than the shares to be redeemed,
shall have been paid or declared and the full amount thereof set apart
for payment.
(b) The Corporation shall mail a notice of redemption to each
holder of record of shares to be redeemed addressed to the holder at
the address of such holder appearing on the books of the Corporation
or given by the holder to the Corporation for the purpose of notice,
or if no such address appears or is given at the place where the
principal executive office of the Corporation is located, not earlier
than 60 nor later than 20 days before the date fixed for redemption.
The notice of redemption shall include (i) the class of shares or the
part of a class of shares to be redeemed, (ii) the date fixed for
redemption, (iii) the redemption price and (iv) the place at which the
shareholders may obtain payment of the redemption price upon surrender
of their share certificates. If funds are available on the date fixed
for the redemption, then whether or not the share certificates are
surrendered for payment of the redemption price, the shares shall no
longer be outstanding and the holders thereof shall cease to be
shareholders of the Corporation with respect to the shares redeemed on
and after the date fixed for redemption and shall be entitled only to
receive the redemption price without interest upon surrender of the
share certificate. If less than all the shares represented by one
share certificate are to be redeemed, the Corporation shall issue a
new share certificate for the shares not redeemed.
(c) The Corporation shall also cause a copy of the notice of
redemption to be published in a newspaper of general circulation in
the county in which the principal executive office of the Corporation
is located at least once a week for two successive weeks, in each
instance on any day of the week, commencing not earlier than 60 nor
later than 20 days before the date fixed for redemption. If the
Corporation publishes the notice of redemption as provided in this
paragraph (c), the failure of the Corporation to comply with the
provision for mailing of notice of redemption in paragraph (b) shall
not invalidate the redemption of the shares.
(d) If, on or prior to any date fixed for redemption, the
Corporation deposits with any bank or trust company in this state
(which may be an affiliate of the Corporation) as a trust fund a sum
sufficient to redeem, on the date fixed for redemption thereof, the
shares called for redemption, with irrevocable instructions and
authority to the bank or trust company to publish the notice of
redemption thereof (or to complete such publication if theretofore
commenced) and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon surrender of their share certificates, then from and
after the date of the deposit (although prior to the date fixed for
redemption) the shares so called shall be redeemed and dividends on
those shares shall cease to accrue after the date fixed for
redemption. The deposit shall constitute full payment of the shares to
their holders and from and after the date of the deposit the shares
shall no longer be outstanding and the holders thereof shall cease to
be shareholders with respect to such shares and shall have no rights
with respect thereto except the right to receive from the bank or
trust company payment of the redemption price of the shares without
interest, upon surrender of their certificates therefor. Any interest
accrued on such funds shall be paid to the Corporation from time to
time. If less than all the shares represented by one share certificate
are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed. After two years, the bank or
trust company shall return to the Corporation funds deposited and not
claimed and thereafter the holder of a share certificate for shares
redeemed shall look to the Corporation for payment.
3.4.5 Voting Rights.
--------------
(a) Except as hereinafter in this Section 3.4.5 expressly
provided for and as otherwise required by the laws of the State of
California, the Series B Stock shall have no voting rights. If there
is a default in whole or in part in the payment of 24 or more
cumulative monthly dividends, whether or not consecutive, on the
Series B Stock as provided for in Section 3.4.2 above, the holders of
the outstanding Series B Stock shall have the right, voting separately
as a class with holders of shares of any one or more other series of
Preferred Stock ranking on a parity with the Series B Stock either as
to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been
conferred and are exercisable, to elect two of the authorized number
of members of the Board of Directors of the Corporation at the
Corporation's next annual meeting of shareholders. At elections for
such directors, each holder of Series B Stock shall be entitled to one
vote for each share held (the holders of shares of any other series of
Preferred Stock ranking on such a parity and having like voting rights
being entitled to such number of votes, if any, for each share of such
stock held as may be granted to them). The right of the holders of
Series B Stock, voting separately as a class, to elect (either alone
or together with the holders of shares of any one or more other series
of Preferred Stock ranking on such a parity and having like voting
rights) members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accumulated
on the Series B Stock shall have been fully paid or set apart for
payment, at which time such right shall terminate, except as herein or
by law expressly provided, subject to revesting in the event of each
and every subsequent default of the character above mentioned. Upon
any termination of the right of the holders of the Series B Stock as a
class to vote for directors as herein provided, the term of office of
all directors then in office elected by the Series B Stock shall
terminate immediately. Any director who shall have been so elected
pursuant to this paragraph may be removed at any time, either with or
without cause, and any vacancy thereby created may be filled, only by
the affirmative vote of the holders of Series B Stock voting
separately as a class (either alone or together with the holders of
shares of any one or more other series of Preferred Stock ranking on
such a parity and having like voting rights). If the office of any
director elected by the holders of Series B Stock voting as a class
becomes vacant for any reason other than removal from office as
aforesaid, the remaining director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy
occurred.
(b) So long as any shares of Series B Stock remain outstanding,
the consent of the holders of at least a majority of the shares of
Series B Stock outstanding at the time (voting separately as a class
together with all other series of Preferred Stock ranking on a parity
with the Series B Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which like
voting rights have been conferred and are exercisable) shall be
necessary to permit, effect or validate any one or more of the
following:
(i) the authorization, creation or issuance of a new class
or series of shares having rights, preferences or privileges
prior (as that term is defined in Section 3.4.5(d)) to the shares
of the Series B Stock, or any increase in the number of
authorized shares of any class or series having rights,
preferences or privileges prior to the shares of Series B Stock;
or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Articles of Incorporation of the Corporation which would
materially and adversely affect any right, preference, privilege
or voting power of the Series B Stock or of the holders thereof,
provided, however that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock, in
each case ranking on a parity with or junior to the Series B
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Series B Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
(d) Any class or classes of stock of the Corporation shall be
deemed to rank:
(i) prior to the Series B Stock as to dividends or as to
distribution of assets upon liquidation, dissolution or winding
up if the holders of such class shall be entitled to the receipt
of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of Series B Stock; and
(ii) on a parity with the Series B Stock as to dividends or
as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof are
different from those of the Series B Stock, if the holders of
such class of stock and of the Series B Stock shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority one over the other.
3.4.6 Series A Preferred Stock.
------------------------
For purposes of the foregoing provisions, the Series A Preferred
Stock of the Corporation shall be deemed to rank on a parity with the
Series B Stock for purposes of Sections 3.4.2, 3.4.3 and 3.4.5 hereof.
3.5 Series C Preferred Stock.
------------------------
The rights, preferences and privileges of the Series C Preferred Stock of
the Corporation are as set forth in this Section 3.5.
3.5.1 Designation and Amount.
-----------------------
Seventeen Thousand (17,000) of the shares of the Preferred Stock
of the Corporation are designated Series C Preferred Stock
(hereinafter referred to as "Series C Stock").
3.5.2 Dividends.
----------
(a) The holders of shares of Series C Stock shall be entitled to
receive cash dividends, when and as declared by the Board of Directors
out of funds legally available for the purpose, from the date of issue
of such shares to and including the last day of the month following
the month in which such issuance occurred (the "Initial Dividend
Period"), and for each whole month thereafter (such Initial Dividend
Period and each whole, month thereafter shall be herein referred to in
this Section 3.5 as a "Dividend Period"), at an annual rate of $13.50
per share. The amount of dividend per share payable for the Initial
Dividend Period and for any other Dividend Period more or less than a
full month shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in the period for
which payable. The amount of dividend per share payable for each full
Dividend Period commencing after the Initial Dividend Period, shall be
computed by dividing the annual dividend rate for each Dividend Period
by twelve. Dividends shall be payable when and as declared by the
Board of Directors, out of funds legally available therefor, to
holders of record on such respective dates not exceeding 15 days
preceding the payment date thereof as may be determined by the Board
of Directors in advance of such payment date. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at any
time, without reference to any regular dividend payment date, to
holders of record on such date not exceeding 15 days preceding the
payment date thereof as may be fixed by the Board of Directors. No
dividends shall be declared on any other series or class or classes of
Preferred Stock on a parity (as that term is defined in Section
3.5.5(d)) with the Series C Stock as to dividends in respect of any
Dividend Period unless there shall likewise be or have been declared
on all shares of Series C Stock at the time outstanding like dividends
for all Dividend Periods coinciding with or ending before such
Dividend Period, ratably in proportion to the respective dividend
rates fixed for all such other series or class or classes of Preferred
Stock and the Series C Stock. Dividends shall be cumulative and will
accrue on each share of Series C Stock from the date of original
issuance thereof. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments which
may be in arrears.
(b) If dividends at the rate per share set out in Section
3.5.2(a) for any Dividend Period shall not have been declared and paid
or set apart for payment on all outstanding shares of Series C Stock
for such Dividend Period and all preceding Dividend Periods from and
after the date of issue thereof, then, until the aggregate deficiency
shall be declared and fully paid or set apart for payment, the
Corporation shall not (i) declare or pay or set apart for payment any
dividends or make any other distribution on the Common Stock of the
Corporation or any other capital stock of the Corporation ranking
junior to the series C Stock with respect to the payment of dividends
or distribution of assets on liquidation, dissolution or winding up of
the Corporation (which for all purposes shall mean any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary) (the Common Stock and such other stock being herein
referred to in this Section 3.5 as "Junior Stock"), other than
dividends or distributions paid in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Junior Stock, or (ii)
make any payment on account of the purchase, redemption or other
retirement of any Junior Stock.
3.5.3 Liquidation Preference.
----------------------
Upon the voluntary or involuntary liquidation, winding up or
dissolution of the Corporation, out of the assets available for
distribution to shareholders the holders of Series C Stock shall be
entitled to receive, in preference to any payment on the Junior Stock,
an amount equal to $135.00 per share plus cumulative dividends as
provided in Section 3.5.2 above accrued and unpaid to the date payment
is made available to the Series C Stock and no more. Subject to the
rights of the holders of shares of any series or class or classes of
stock ranking on a parity with or prior to the Series C Stock upon
liquidation, dissolution or winding up, after the full preferential
liquidation amount has been paid to, or determined and set apart for,
the Series C Stock, the remaining assets shall be paid to the Junior
Stock. If upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of the Series C Stock
shall be insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity with the Series C
Stock, then such assets, or the proceeds thereof, shall be distributed
among the shareholders of Series C Stock and any such other Preferred
Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series C Stock and any such other Preferred
Stock if all amounts payable thereon were paid in full. A
reorganization shall not be considered to be a liquidation, winding up
or dissolution within the meaning of this Section 3.5.3 and in such
event the Series C Stock shall be entitled only to the rights provided
in the plan of reorganization and Chapters 12 and 13 of the California
General Corporation Law and elsewhere in the Corporation's Articles of
Incorporation.
3.5.4 Redemption.
-----------
(a) The Series C Stock is subject to redemption, out of funds
legally available therefor, in whole, or from time to time in part, at
the option of the board of directors of the Corporation at or any time
after four years from the date such Series C Stock is issued, or prior
thereto upon the approval of at least a majority of the outstanding
shares of Series C Stock. If only a part of the Series C Stock is to
be redeemed, the redemption shall be carried out pro rata (as nearly
as may be). The redemption price shall be $135.00 per share plus
cumulative dividends as provided in Section 3.5.2 above accrued and
unpaid to the date fixed for redemption (herein called the "redemption
price"). In the case of a redemption of less than all of the Series C
Stock at anytime outstanding, no such shares may be redeemed until all
dividends accrued and unpaid on all Series C Stock then outstanding,
other than the shares to be redeemed, shall have been paid or declared
and the full amount thereof set apart for payment.
(b) The Corporation shall mail a notice of redemption to each
holder of record of shares to be redeemed addressed to the holder at
the address of such holder appearing on the books of the Corporation
or given by the holder to the Corporation for the purpose of notice,
or if no such address appears or is given at the place when the
principal executive office of the Corporation is located, not earlier
than 60 nor later than 20 days before the date fixed for redemption.
The notice of redemption shall include (i) the class of shares or the
part of a class of shares to be redeemed, (ii) the date fixed for
redemption, (iii) the redemption price and (iv) the place at which the
shareholders may obtain payment of the redemption price upon surrender
of their share certificates. If funds are available on the date fixed
for the redemption, then whether or not the share certificates are
surrendered for payment of the redemption price, the shares shall no
longer be outstanding and the holders thereof shall cease to be
shareholders of the Corporation with respect to the shares redeemed on
and after the date fixed for redemption and shall be entitled only to
receive the redemption price without interest upon surrender of the
share certificates. If less than all the shares represented by one
share certificate are to be redeemed, the Corporation shall issue a
new share certificate for the shares not redeemed.
(c) The Corporation shall also cause a copy of the notice of
redemption to be published in a newspaper of general circulation in
the county in which the principal executive office of the Corporation
is located at least once a week for two successive weeks, in each
instance on any day of the week, commencing not earlier than 60 nor
later than 20 days before the date fixed for redemption. If the
Corporation publishes the notice of redemption as provided in this
paragraph (c), the failure of the Corporation to comply with the
provision for mailing of notice of redemption in paragraph (b) shall
not invalidate the redemption of the shares.
(d) If, on or prior to any date fixed for redemption, the
Corporation deposits with any bank or trust company in this state
(which may be an affiliate of the Corporation) as a trust fund a sum
sufficient to redeem, on the date fixed for redemption thereof, the
shares called for redemption, with irrevocable instructions and
authority to the bank or trust company to publish the notice of
redemption thereof (or to complete such publication if theretofore
commenced) and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon surrender of their share certificates, then from and
after the date of the deposit (although prior to the date fixed for
redemption) the shares so called shall be redeemed and dividends on
those shares shall cease to accrue after the date fixed for
redemption. The deposit shall constitute full payment of the shares to
their holders and from and after the date of the deposit the shares
shall no longer be outstanding and the holders thereof shall cease to
be shareholders with respect to such shares and shall have no rights
with respect thereto except the right to receive from the bank or
trust company payment of the redemption price of the shares without
interest, upon surrender of their certificates therefor. Any interest
accrued on such funds shall be paid to the Corporation from time to
time. If less than all the shares represented by one share certificate
are to be redeemed, the Corporation shall issue a new share
certificate for the shares not redeemed. After two years, the bank or
trust company shall return to the Corporation funds deposited and not
claimed and thereafter the holder of a share certificate for shares
redeemed shall look to the Corporation for payment.
3.5.5 Voting Rights.
--------------
(a) Except as hereinafter in this Section 3.5.5 expressly
provided for and as otherwise required by the laws of the State of
California, the Series C Stock shall have no voting rights. If there
is a default in whole or in part in the payment of 24 or more
cumulative monthly dividends, whether or not consecutive, on the
Series C Stock as provided for in Section 3.5.2 above, the holders of
the outstanding Series C Stock shall have the right, voting separately
as a class with holders of shares of any one or more other series of
Preferred Stock ranking on a parity with the Series C Stock either as
to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been,
conferred and are exercisable, to elect a majority of the Board of
Directors of the Corporation at the Corporation's next annual meeting
of shareholders. At elections for such directors, each holder of
Series C Stock shall be entitled to one vote for each share held (the
holders of shares of any other series of Preferred Stock ranking on
such a parity and having like voting rights being entitled to such
number of votes, if any, for each share of such stock held as may be
granted to them). The right of the holders of Series C Stock, voting
separately as a class, to elect (either alone or together with the
holders of shares of any one or more other series of Preferred Stock
ranking on such a parity and having like voting rights) members of the
Board of Directors of the Corporation as aforesaid shall continue
until such time as all dividends accumulated on the Series C Stock
shall have been fully paid or set apart for payment, at which time
such right shall terminate, except as herein or by law expressly
provided, subject to reverting in the event of each and every
subsequent default of the character above mentioned. Upon any
termination of the right of the holders of the Series C Stock as a
class to vote for directors as herein provided, the term of office of
all directors then in office elected by the Series C Stock shall
terminate immediately. Any director who shall have been so elected
pursuant to this paragraph may be removed at any time, either with or
without cause, and any vacancy thereby created may be filled, only by
the affirmative vote of the holders of Series C Stock voting
separately as a class (either alone or together with the holders of
shares of any one or more other series of Preferred Stock ranking on
such a parity and having like voting rights). If the office of any
director elected by the holders of Series C Stock voting as a class
becomes vacant for any reason other than removal from office as
aforesaid, the remaining director may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy
occurred.
(b) So long as any shares of Series C Stock remain outstanding,
the consent of the holders of at least a majority of the shares of
Series C Stock outstanding at the time (voting separately as a class
together with all other series of Preferred Stock ranking on a parity
with the Series C Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which like
voting rights have been conferred and are exercisable) shall be
necessary to permit, effect or validate any one or more of the
following:
(i) the authorization, creation or issuance of a new class
or series of shares having rights, preferences or privileges
prior (as that term is defined in Section 3.5.5(d)) to the shares
of the Series C Stock, or any increase in the number of
authorized shares of any class or series having rights,
preferences or privileges prior to the shares of Series C Stock;
or
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the
Articles of Incorporation of the Corporation which would
materially and adversely affect any right, preference, privilege
or voting power of the Series C Stock or of the holders thereof,
provided, however that any increase in the amount of authorized
Common Stock or authorized Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred Stock, in
each case ranking on a parity with or junior to the Series C
Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(c) The foregoing voting provisions shall not apply if, at or
prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Series C Stock shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
(d) Any class or classes of stock of the Corporation shall be
deemed to rank:
(i) prior to the Series C Stock as to dividends or as to
distribution of assets upon liquidation, dissolution or winding
up if the holders of such class shall be entitled to the receipt
of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of Series C Stock; and
(ii) on a parity with the Series C Stock as to dividends or
as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof are
different from those of the Series C Stock, if the holders of
such class of stock and of the Series C Stock shall be entitled
to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or liquidation
prices, without preference or priority one over the other.
3.5.6 Series A Preferred Stock and Series B Preferred Stock
-----------------------------------------------------
For purposes of the foregoing provisions, the Series A Preferred Stock
and the Series B Preferred Stock of the Corporation shall be deemed to
rank on a parity with the Series C Stock for purposes of Sections
3.5.2, 3.5.3 and 3.5.5 hereof.
3.6 Series AA Preferred Stock.
-------------------------
The rights, preferences and privileges of the Series AA Preferred
Stock of the Corporation are as set forth in this Section 3.6.
3.6.1 Designation and Amount.
----------------------
One Hundred Fifty Thousand (150,000) of the shares of the Preferred
Stock of the Corporation are designated as Series AA Junior
Participating Preferred Stock (the "Series AA Preferred Stock"). Such
number of shares may be increased or decreased by resolution of the
Board of Directors; provided that no decrease shall reduce the number
of shares of Series AA Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series AA Preferred Stock.
3.6.2 Dividends and Distributions.
----------------------------
(a) Subject to the rights of the holders of any shares of any
series of Series AA Preferred stock (or any similar stock) ranking
prior and superior to the Series AA Preferred Stock with respect to
dividends, the holders of shares of Series AA Preferred Stock, in
preference to the holders of shares of Common Stock, and of any other
junior stock, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on any regular quarterly
dividend payment date as shall be established by the Board of
Directors (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series AA Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series AA
Preferred Stock. In the event the Corporation shall at any time after
July 10, 2001 (the "Rights Declaration Date"), declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series AA Preferred
Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on
the Series AA Preferred Stock as provided in Section 3.6.2(d)
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Series AA
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series AA Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series AA Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares
of Series AA Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such shares
at the time outstanding. The Board of Directors may, in accordance
with applicable law, fix a record date for the determination of
holders of shares of Series AA Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable law.
3.6.3 Voting Rights.
--------------
The holders of shares of Series AA Preferred Stock shall have the
following voting rights:
(a) Each share of Series AA Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation.
(b) Except as otherwise provided in the Corporation's Articles of
Incorporation, or by law, the holders of shares of Series AA Preferred
Stock, the holders of shares of Common Stock, and the holders of
shares of any other capital stock of the Corporation having general
voting rights, shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(c) Except as set forth in the Corporation's Articles of
Incorporation, and except as otherwise provided by law, holders of
Series AA Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
3.6.4 Certain Restrictions.
---------------------
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series AA Preferred Stock as provided in
Section 3.6.2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares
of Series AA Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series AA Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series AA Preferred Stock, except dividends paid ratably
on the Series AA Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series AA Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series AA
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series AA Preferred Stock, or any
shares of stock ranking on a parity with the Series AA Preferred
Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
Section 3.6.4(a), purchase or otherwise acquire such shares at such
time and in such manner.
3.6.5 Reacquired Shares.
------------------
Any shares of Series AA Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall become
authorized but unissued shares of Series AA Preferred Stock and may be
reissued as part of a new series of Series AA Preferred Stock subject
to the conditions and restrictions on issuance set forth in the
Corporation's Articles of Incorporation, and by any subsequent
amendments, or as otherwise required by law.
3.6.6 Liquidation, Dissolution or Winding Up.
--------------------------------------
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series AA Preferred Stock unless,
prior thereto, the holders of shares of Series AA Preferred Stock
shall have received $100.00 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of
shares of Series AA Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to
the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series AA Preferred Stock, except distributions made ratably on the
Series AA Preferred Stock and all such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled
upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of shares of
Series AA Preferred Stock were entitled immediately prior to such
event under the provision in clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
3.6.7 Consolidation, Merger, Etc.
--------------------------
In case the Corporation shall enter into any consolidation, merger,
statutory share exchange, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case each share of Series AA Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series AA Preferred
Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that are outstanding immediately
prior to such event.
3.6.8 No Redemption.
--------------
The shares of Series AA Preferred Stock shall not be redeemable.
3.6.9 Rank.
-----
The Series AA Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of
any other class of the Corporation's Preferred Stock.
3.6.10 Amendment.
---------
The Articles of Incorporation of the Corporation shall not be amended
in any manner which would materially alter or change the powers,
preferences or special rights of the Series AA Preferred Stock so as
to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series AA
Preferred Stock, voting together as a single class.
3.6.11 Fractional Shares.
------------------
Series AA Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders
of Series AA Preferred Stock.
FOURTH
The number of directors of this Corporation shall be set forth in the
Bylaws of the Corporation as adopted and amended from time to time in the manner
authorized by law.
FIFTH
The liability of the directors of this Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law. No
amendment or repeal of this Article FIFTH by the shareholders of this
Corporation shall adversely affect any right or protection of a director of this
Corporation existing at the time of such amendment or repeal.
SIXTH
This Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with such agents, votes of shareholders or disinterested
directors or otherwise, or any combination of the foregoing, in excess of the
indemnification otherwise permitted by Section 317 of the Corporation Code,
subject only to the limits set forth in Section 204 of the Corporations Code
with respect to actions for breach of duty to the Corporation and its
shareholders. No amendment or repeal of this Article SIXTH by the Shareholders
of this Corporation shall adversely affect any Corporation existing at the time
of such amendment or repeal.
SEVENTH
7.1 The Board of Directors, when evaluating any offer of another party
to (a) make a tender or exchange offer for the equity securities of the
Corporation or any subsidiary, (b) merge or consolidate the Corporation or
any subsidiary with another corporation, or (c) purchase or otherwise
acquire all or substantially all of the properties or assets of the
Corporation, or of any subsidiary, shall, in connection with the exercise
of its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all relevant
factors, including by way of illustration, but not limitation, any or all
of the following:
7.1.1 Whether the offer is acceptable based on historical
operating results and the financial condition of the Corporation and
its subsidiaries, and its future prospects;
7.1.2 Whether a more favorable offer could be obtained for the
Corporation's or its subsidiaries, securities or assets in the
foreseeable future;
7.1.3 The social, economic or any other material impact which an
acquisition of the equity securities of the Corporation or
substantially all of its assets would have upon the employees and
customers of the Corporation and its subsidiaries and the community
which they serve;
7.1.4 The reputation and business practices of the offeror and
its management and affiliates as they would affect the employees and
customers of the Corporation and its subsidiaries and the future value
of the Corporation's stock;
7.1.5 The value of the securities, if any, which the offeror is
offering in exchange for the Corporation's or its subsidiaries'
securities or assets based on an analysis of the worth of the
Corporation or of its subsidiaries as compared to the offeror
corporation or other entity whose securities are being offered; and
7.1.6 Any antitrust or other legal or regulatory issues raised by
the offer.
7.2 If the Board of Directors determines an offer should be rejected,
it may take any lawful action to accomplish its purpose including, but not
limited to, any or all of the following:
7.2.1 Advising shareholders not to accept the offer;
7.2.2 Litigation against the offeror;
7.2.3 Filing complaints with any governmental and regulatory
authorities;
7.2.4 Acquiring the Corporation's securities;
7.2.5 Selling or otherwise issuing authorized but unissued
securities or treasury stock or granting options with respect thereto;
7.2.6 Acquiring a company to create an antitrust or other
regulatory problem for the offeror;
7.2.7 Obtaining a more favorable offer from another individual or
entity.
7.3 Notwithstanding the fact that by law or by agreement with a
national securities exchange or otherwise, no vote, or lesser vote, of
shareholders may be specified or permitted, the affirmative vote of the
holders of two-thirds of the outstanding shares of Common Stock of the
Corporation shall be required to approve any offer described in Section
7.1.
The provisions of Sections 7.1, 7.2 and 7.3 of these Articles of
Incorporation may be amended only by the affirmative vote of two-thirds of the
outstanding shares of Common Stock of the Corporation, and by the affirmative
vote of two-thirds of the outstanding shares of Preferred Stock of the
Corporation, if any.
Exhibit 3.2
Text of Amendment to Section 15 of Bylaws
The first paragraph of Section 15 of the Bylaws is amended to read as follows:
Section 15. Number and Qualification of Directors.
-------------------------------------
The authorized number of directors shall be not less than eight (8)
nor more than fifteen (15) unless and until changed by an amendment to
this Section 15 adopted by the shareholders pursuant to Section 48 of
these Bylaws. The exact number of directors within said range shall be
fixed by an amendment to this Section 15 adopted by the Board of
Directors; and unless and until so amended, the exact number of
directors is hereby fixed at twelve (12). A reduction in the
authorized number of directors shall not remove any director prior to
the expiration of such director's term of office
================================================================================
BY-LAWS
OF
TRICO BANCSHARES
================================================================================
Last Amended
March 10, 2009
TABLE OF CONTENTS
ARTICLE I - Offices Page
Section 1. Principal Office..................................1
Section 2. Other Offices.....................................1
ARTICLE II - Meeting of Shareholders
Section 3. Place of Meetings.................................1
Section 4. Annual Meetings...................................1
Section 5. Special Meetings..................................2
Section 6. Notice of Shareholders' Meetings..................2
Section 7. Quorum............................................3
Section 8. Adjourned Meeting.................................3
Section 9. Waiver or Consent by Shareholders.................4
Section 10. Action Without Meeting............................5
Section 11. Voting Rights; Cumulative Voting..................5
Section 12. Proxies...........................................6
Section 13. Inspectors of Election............................7
ARTICLE III - Directors, Management
Section 14. Powers............................................7
Section 15. Number and Qualification of Directors.............8
Section 15A. Directors Emeritus................................9
Section 16. Election and Term of Office.......................9
Section 17. Removal of Directors..............................9
Section 18. Vacancies........................................10
Section 19. Place of Meetings................................10
Section 20. Organizational Meetings..........................11
Section 21. Other Regular Meetings ..........................11
Section 22. Special Meetings.................................11
Section 23. Quorum...........................................11
Section 24. Contents of Notice and Waiver of Notice..........12
Section 25. Adjournment......................................12
Section 26. Notice of Adjournment............................12
Section 27. Telephone Participation..........................12
Section 28. Action Without Meeting...........................12
Section 29. Fees and Compensation............................12
ARTICLE IV - OFFICERS
Section 30. Officers.........................................13
Section 31. Election.........................................13
Section 32. Subordinate Officers.............................13
Section 33. Removal and Resignation..........................13
Section 34. Vacancies........................................13
Section 35. Chairman of the Board............................14
Section 36. President........................................14
Section 37. Vice Presidents..................................14
Section 38. Secretary........................................14
Section 39. Treasurer........................................15
ARTICLE V - General Corporate Matters
Section 40. Record Date and Closing of Stockbooks............16
Section 41. Corporate Records and Inspection by
Shareholders and Directors.......................16
Section 42. Checks, Drafts, Evidences of Indebtedness........17
Section 43. Corporate Contracts and Instruments;
How Executed.....................................17
Section 43A. Representation of Shares.........................17
Section 44. Stock Certificates...............................18
Section 45. Lost Certificates................................18
Section 46. Reports to Shareholders..........................18
Section 47. Indemnity of Officers, Directors, etc. ..........19
ARTICLE VI - Amendments
Section 48. Amendments by Shareholders.......................24
Section 49. Amendments by Directors..........................24
ARTICLE VII - Committees of the Board
Section 50. Committees of the Board of Directors.............24
Section 51. Loans or Guaranties to Officers..................25
BY-LAWS
OF
TRICO BANCSHARES
(A California Banking Corporation)
ARTICLE I
Offices
-------
Section 1. Principal Office.
----------------
The principal executive office in the State of California for the
transaction of the business of the corporation (called the principal office) is
fixed and located at:
63 Constitution Drive
Chico, California
The Board of Directors shall have the authority from time to time to change
the principal office from one location to another within the State by amending
this Section 1.
Section 2. Other Offices.
-------------
One or more branches or other subordinate offices may at any time be fixed
and located by the Board of Directors at such place or places within or without
the State of California as it deems appropriate.
ARTICLE II
Meetings of Shareholders
------------------------
Section 3. Place of Meetings.
-----------------
Meetings of the shareholders shall be held at any place within or outside
the State of California that may be designated either by the Board of Directors
in accordance with these By-Laws, or by the written consent of all persons
entitled to vote at the meeting, given either before or after the meeting and
filed with the Secretary of the corporation. If no such designation is made, the
meetings shall be held at the principal office of the corporation designated in
Section 1 of these By-laws.
Section 4. Annual Meetings.
---------------
The annual meeting of the shareholders shall be held on the third Tuesday
of May of each year, if not a legal holiday, and if a legal holiday, then on the
next succeeding business day, at the hour of 5:00 p.m., at which time the
shareholders shall elect a Board of Directors, consider reports of the affairs
of the corporation, and transact such other business as may properly be brought
before the meeting.
If the annual meeting of shareholders shall not be held on the date above
specified, the Board of Directors shall cause such a meeting to be held as soon
thereafter as convenient, and any business transacted or election held at such
meeting shall be as valid as if transacted or held at an annual meeting on the
date above specified.
1
Section 5. Special Meetings.
----------------
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by the Board of Directors, Chairman of the
Board of Directors, the President, or by holders of shares entitled to cast not
less than 10 percent (10%) of the votes at the meeting.
Section 6. Notice of Shareholders' Meetings.
--------------------------------
Whenever shareholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given not less than 10 nor
more than 60 days before the date of the meeting to each shareholder entitled to
vote thereat. Such notice shall state the place, date and hour of the meeting
and (1) in the case of a special meeting, the general nature of the business to
be transacted, and no other business may be transacted, or (2) in the case of
the annual meeting, those matters which the Board of Directors, at the time of
the mailing of the notice, intends to present for action by the shareholders,
but subject to the provisions of Section 601(f) of the Corporations Code, any
proper matter may be presented at the meeting for such action. The notice of any
meeting at which directors are to be elected shall include the names of nominees
intended at the time of the notice to be presented by management for election.
Notice of a shareholders' meeting shall be given either personally or by
first-class mail, or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or if no such address appears or is given, at the place where the
principal office of the corporation is located. The notice shall be deemed to
have been given at the time when delivered personally or deposited in the mail
or sent by other means of written communication.
Notwithstanding the foregoing, whenever the corporation has outstanding
shares held of record by 500 or more persons, notice may be given by third class
mail as provided in Sections 601(a) and 601(b) of the Corporations Code.
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 office of the corporation for
a period of one year from the date of the giving of the notice to all other
shareholders.
Upon request in writing to the Chairman of the Board of Directors,
President, Vice President or Secretary by any person entitled to call a special
meeting of shareholders, the officer forthwith shall cause notice to be given to
the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after the receipt of the request.
2
Section 7. Quorum.
------
The presence at any meeting, in person or by proxy, of the persons entitled
to vote a majority of the voting shares of the corporation shall constitute a
quorum for the transaction of business. Shareholders present at a valid meeting
at which a quorum is initially present may continue to do business until
adjournment notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by
persons voting more than 25 percent of the voting shares.
Section 8. Adjourned
---------
Meeting. Any annual or special shareholders' meeting may be adjourned from
time to time, even though a quorum if not present, by vote of the holders of a
majority of the voting shares present at the meeting either in person or by
proxy, provided that in the absence of a quorum, no other business may be
transacted at the meeting except as provided in Section 7.
Notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than 45 days
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
3
Section 9. Waiver or Consent by Shareholders.
---------------------------------
The transactions of any meeting of shareholders, however called and
noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy, signs a written waiver of notice or
a consent to the holding of the meeting or an approval of the minutes thereof.
All such waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Attendance of a person at
a meeting shall constitute a waiver of notice of and presence at such meeting,
except when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by Section of these By-Laws or
Section 601(f) of the Corporations Code to be included in the notice but not so
included, if such objection is expressly made at the meeting. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of shareholders need be specified in any written waiver of notice, consent to
the holding of the meeting or approval of the minutes thereof, except as
provided in Section 601(f) of the California Corporations Code.
4
Section 10. Action Without Meeting.
----------------------
Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted, except that
unanimous written consent shall be required for election of directors to
non-vacant positions.
Unless the consents of all shareholders entitled to vote have been
solicited or received in writing, notice shall be given to non-consenting
shareholders to the extent required by Section 603(b) of the California
Corporations code.
Any shareholder giving 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 of
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 11. Voting Rights; Cumulative Voting.
--------------------------------
Only persons in whose names shares entitled to vote stand on the stock
records of the corporation at the close of business on the record date fixed by
the Board of Directors as provided in Section 40 for the determination of
shareholders of record shall be entitled to notice of and to vote at such
meeting of shareholders. If no record date is fixed, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held; the record date for determining shareholders entitled to give consent to
corporate action in writing without a meeting, when no prior action by the Board
has been taken, shall be the day on which the first written consent is given;
and the record date for determining shareholders for any other purpose shall be
at the close of business on the day on which the Board adopts the resolution
relating thereto, or the 60th day prior to the date of such other action,
whichever is later.
Except as provided in the next following sentence and except as may be
otherwise provided in the Articles of Incorporation, each shareholder entitled
to vote shall be entitled to one vote for each share held on each matter
submitted to a vote of shareholders. In the election of directors, each such
shareholder complying with the following paragraph 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 normally 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 in favor of any
candidate or candidates 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 prior to the voting of the shareholder's intention to cumulate the
shareholder's votes. If any one shareholder has given such notice, such fact
shall be announced to all shareholders and proxies present, who may then
cumulate their votes for candidates in nomination.
In any election of directors, the candidates receiving the highest number
of votes of the shares entitled to be voted for them, up to the number of
directors to be elected by such shares, are elected.
Voting may be by voice or ballot, provided that any election of directors
must be by ballot upon the demand of any shareholder made at the meeting and
before the voting begins.
5
Section 12. Proxies.
-------
Every person entitled to vote shares may authorize another person or
persons to act by proxy with respect to such shares. All proxies must be in
writing and must be signed by the shareholder confirming the proxy or his
attorney-in-fact. No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy continues
in full force and effect until revoked by the person executing it prior to the
vote pursuant thereto, except as otherwise provided in Section 705 of the
Corporations Code. Such revocation may be effected by a writing delivered to the
corporation stating that the proxy is revoked or by a subsequent proxy executed
by the person executing the prior proxy and presented to the meeting, or as to
any meeting, by attendance at such meeting and voting in person, by the person
executing the proxy. The dates contained on the forms of proxy presumptively
determine the order of execution, regardless of the postmark dates on the
envelopes in which they are mailed.
6
Section 13. Inspectors of Election.
----------------------
In advance of any meeting of shareholders the Board may appoint inspectors
of election to act at the meeting and any adjournment thereof. If inspectors of
election are not so appointed, or if any persons so appointed fail to appear or
refuse to act, the chairman of any meeting of shareholders may, and on the
request of any shareholder or a shareholder's proxy shall, appoint inspectors of
election (or persons to reflect those who so fail or refuse) at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting on
the request of one or more shareholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one or three
inspectors are to be appointed. If there are three inspections of election, the
decision, act or certificate of a majority is effective in all respects as the
decision, act or certificate of all.
The inspectors of election shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum and the authenticity, validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close, determine
the result and do such acts as may be proper to conduct the election or vote
with fairness to all shareholders.
ARTICLE III
Directors; Management
---------------------
Section 14. Powers.
------
Subject to any provisions of the Articles of Incorporation, of the By-Laws
and of law limiting the powers of the Board of Directors or reserving powers to
the shareholders, the Board of Directors shall, directly or by delegation,
manage the business and affairs of the corporation and exercise all corporate
powers permitted by law.
7
Section 15. Number and Qualification of Directors.
-------------------------------------
The authorized number of directors shall be not less than eight (8) nor
more than fifteen (15) unless and until changed by an amendment to this Section
15 adopted by the shareholders pursuant to Section 48 of these Bylaws. The exact
number of directors within said range shall be fixed by an amendment to this
Section 15 adopted by the Board of Directors; and unless and until so amended,
the exact number of directors is hereby fixed at twelve (12). A reduction in the
authorized number of directors shall not remove any director prior to the
expiration of such director's term of office.
Directors need not be shareholders of the corporation; however, no person
may serve as a director of this corporation who is seventy-five (75) years of
age or older at the time of election.
Nomination for election of members to the Board of Directors may be made by
the Board of Directors or by any shareholder of any outstanding class of capital
stock of the corporation entitled to vote for the election of directors.
Notice of intention to make any nominations shall be made in writing and
shall be delivered or mailed to the President of the corporation not less than
twenty-one (21) days nor more than sixty (60) days prior to any meeting of
shareholders called for the election of directors; provided, however, that if
less than twenty-one (21) days' notice of the meeting is given to shareholders,
such notice of intention to nominate shall be mailed or delivered to the
President of the corporation not later than the close of business on the tenth
(10th) day following the day on which the notice of meeting was mailed; provided
further, that if notice of such meeting is sent by third-class mail as permitted
by Section 6 of these Bylaws, no notice of intention to make nominations shall
be required. Such notification shall contain the following information to the
extent known to the notifying shareholder: (a) the name and address of each
proposed nominee; (b) a statement or evidence showing that each proposed nominee
is qualified to serve as director; (c) the principal occupation of each proposed
nominee; (d) the number of shares of capital stock of the corporation owned by
each proposed nominee; (e) the name and residence address of the notifying
shareholder; and (f) the number of shares of capital stock of the corporation
owned by the notifying shareholder. Nominations not made in accordance herewith
may, in the discretion of the Chairman of the meeting, be disregarded and, upon
the Chairman's instructions, the inspectors of election can disregard all votes
cast for each such nominee. A copy of this paragraph shall be set forth in a
notice to shareholders of any meeting at which directors are to be elected.
8
Section 15A. Directors Emeritus.
------------------
Any Director who has retired from the Board of Directors due to such person
attaining the age of 75, and therefore not being eligible to stand for
reelection, or because such person determined at an earlier age not to stand for
reelection, may be appointed Director Emeritus by a resolution approved by a
majority of the Board of Directors of the Corporation. Director Emeritus shall
be merely an honorary position. A Director Emeritus may attend meetings of the
Board of Directors but shall not be an active Director with any rights,
responsibilities, or powers of a Director.
Section 16. Election and Term of Office.
---------------------------
The directors shall be elected annually by the shareholders at the annual
meeting of the shareholders; provided, that if for any reason, said annual
meeting or an adjournment thereof is not held or the directors are not elected
thereat, then the directors may be elected at any special meeting of the
shareholders called and held for that purpose. The term of office of the
directors shall, except as provided in Section 17, begin immediately after their
election and shall continue until their respective successors are elected and
qualified.
Section 17. Removal of Directors.
--------------------
A director may be removed from office by the Board of Directors if he is
declared of unsound mind by the order of court or convicted of a felony. Any or
all of the directors may be removed from office without cause by a vote of
shareholders holding a majority of the outstanding shares entitled to vote at an
election of directors; however, unless the entire Board of Directors is removed,
an individual director shall not be removed if the votes cast against removal,
or not consenting in writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which the same total number of
votes were cast, or, if such action is taken by written consent, all shares
entitled to vote were voted, and the entire number of directors authorized at
the time of the director's most recent election were then being elected. A
director may also be removed from office by the Superior Court of the county in
which the principal office is located, at the suit of shareholders holding at
least ten percent (10%) of the number of outstanding shares of any class, in
case of fraudulent or dishonest acts or gross abuse of authority or discretion
with reference to the corporation, in the manner provided by law.
No reduction of the authorized number of directors shall have the effect of
removing any director before his term of office expires.
9
Section 18. Vacancies.
---------
Vacancy or vacancies on the Board of Directors shall exist on the death,
resignation, or removal of any director, or if the authorized number of
directors is increased or the shareholders fail to elect the full authorized
number of directors.
Except for a vacancy created by the removal of a director, vacancies on the
Board of Directors may be filled by a majority of the remaining directors
although less than a quorum, or by a sole remaining director, and each director
elected in this manner shall hold office until his successor is elected at an
annual or special shareholders' meeting.
The shareholders may elect a director at any time to fill any vacancy not
filled by the directors. Any such election by written consent other than to fill
a vacancy created by removal requires the consent of a majority of the
outstanding shares entitled to vote.
Any director may resign effective upon giving written notice to the
Chairman of the Board of Directors, the President, the Secretary or the Board of
Directors of the corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Section 19. Place of Meetings.
-----------------
Regular and special meetings of the Board of Directors shall be held at any
place within or outside the State of California that is designated by resolution
of the Board or, either before or after the meeting, consented to in writing by
all the Board members. If the place of a regular or special meeting is not fixed
by resolution or written consents of the Board, it shall be held at the
corporation's principal office.
10
Section 20. Organizational Meetings.
-----------------------
Immediately following each annual shareholders' meeting, the Board of
Directors shall hold an organizational meeting to organize, elect officers, and
transact other business. Notice of this meeting shall not be required.
Section 21. Other Regular Meetings.
-----------------------
The Board of Directors, shall by resolution adopted by a majority of the
authorized number of directors, fix the date and time for other regular meetings
of the Board of Directors. Notice of these regular meetings shall not be
required.
Section 22. Special Meetings.
-----------------
Special meetings of the Board of Directors for any purpose may be called at
any time by the Chairman of the Board of Directors, or the President, or any
Vice President, or the Secretary, or any two directors.
Special meetings of the Board shall be held upon four days' notice by mail
or 48 hours' notice delivered personally or by telephone or telegraph. If notice
is by telephone, it shall be complete when the person calling the meeting
believes in good faith that the notified person has heard and acknowledged the
notice. If the notice is by mail or telegraph, it shall be complete when
deposited in the United States mail or delivered to the telegraph office at the
place where the corporation's principal office is located, charges prepaid and
addressed to the notified person at such person's address appearing on the
corporate records or, if it is not on these records or is not readily
ascertainable, at the place where the regular Board meeting is held.
Section 23. Quorum.
------
A majority of the authorized number of directors, but in no event less than
two (unless the authorized number of directors is one), shall constitute a
quorum for the transaction of business, except to adjourn a meeting under
Section 25. Every act done or decision made by a majority of the directors
present at a meeting at which a quorum is present shall be regarded as the act
of the Board of Directors, unless the vote of a greater number is required by
law, the Articles of Incorporation, or these By-Laws. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by a majority of
the required quorum for such meeting.
11
Section 24. Contents of Notice and Waiver of Notice.
---------------------------------------
Neither the business to be transacted at, nor the purpose of, any regular
or special Board meeting need be specified in the notice or waiver of notice of
the meeting. Notice of a meeting need not be given to any director who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, either before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
said director. All such waivers, consents, and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 25. Adjournment.
-----------
A majority of the directors present, whether or not a quorum is present,
may adjourn any meeting to another time and place.
Section 26. Notice of Adjournment.
---------------------
Notice of the time and place of holding an adjourned meeting need not be
given to absent directors if the time and place are fixed at the meeting being
adjourned, except that if the meeting is adjourned for more than 24 hours such
notice shall be given prior to the adjourned meeting to the directors who were
not present at the time of the adjournment.
ection 27. Telephone Participation.
-----------------------
Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another. Such participation
constitutes presence in person at such meeting.
Section 28. Action without Meeting.
----------------------
The Board of Directors may take any action without a meeting that may be
required or permitted to be taken by the Board at a meeting, if all members of
the Board individually or collectively consent in writing to the action. The
written consent or consents shall be filed in the minutes of the proceedings of
the Board. Such action by written consent shall have the same effect as an
unanimous vote of directors.
Section 29. Fees and Compensation.
---------------------
Directors and members of committees shall receive neither compensation for
their services nor reimbursement for their expenses unless these payments are
fixed by resolution of the Board.
12
ARTICLE IV
Officers
--------
Section 30. Officers.
---------
The officers of the corporation shall be a President, a Secretary, and a
Treasurer. The corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board, one or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and any other officers
who may be appointed under Section 32 of these By-Laws. Any two or more offices
may be held by the same person.
Section 31. Election.
--------
The officers of the corporation, except those appointed under Section 32 of
these By-Laws, shall be chosen annually by the Board of Directors, and each
shall hold his office until he resigns or is removed or otherwise disqualified
to serve, or his successor is elected and qualified.
Section 32. Subordinate Officers.
--------------------
The Board of Directors may appoint, and may authorize the President to
appoint, any other officers that the business of the corporation may require,
each of whom shall hold office for the period, have the authority, and perform
the duties specified in the By-Laws or by the Board of Directors.
Section 33. Removal and Resignation.
-----------------------
Any officer may be removed with or without cause either by the Board of
Directors at any regular or special directors meeting or, except for an officer
chosen by the Board, by any officer on whom the power of removal may be
conferred by the Board.
Any officer may resign at any time by giving written notice to the Board of
Directors, the President or the Secretary of the corporation. An officer's
resignation shall take effect when it is received or at any later time specified
in the resignation. Unless the resignation specifies otherwise, its acceptance
by the corporation shall not be necessary to make it effective.
Section 34. 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 By-Laws for regular appointments to the office.
13
Section 35. Chairman of the Board.
----------------------
The Board of Directors may in its discretion elect a Chairman of the Board,
who shall preside at all meetings of the directors and shareholders at which he
is present and shall exercise and perform any other powers and duties assigned
to him by the Board or prescribed by the By-Laws.
Section 36. President. Subject to any supervisory powers that may be given by
the Board of Directors or the By-Laws to the Chairman of the Board, the
President shall be the corporation's chief executive officer and shall, subject
to the control of the Board of Directors, have general supervision, direction,
and control over the corporation's business and officers. The President shall
preside as chairman at all meetings of the shareholders and directors not
presided over by the Chairman of the Board. He shall be ex officio a member of
all the standing committees, shall have the general powers and duties of
management usually vested in a corporation's president; shall have any other
powers and duties that are prescribed by the Board of Directors or the By-Laws;
and shall be primarily responsible for carrying out all orders and resolutions
of the Board of Directors.
Section 37. Vice Presidents.
----------------
If the President is absent or is unable or refuses to act, the Vice
Presidents in order of their rank as fixed by the Board of Directors or, if not
ranked, the Vice President designated by the Board of Directors, shall perform
all the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions on, the President. Each Vice
President shall have any other powers and perform any other duties that are
prescribed for him by the Board of Directors or the By-Laws.
Section 38. Secretary.
----------
The Secretary shall keep or cause to be kept, and be available at the
principal office and any other place that the Board of Directors specifies, a
book of minutes of all directors' and shareholders' meeting. The minutes of each
meeting shall state the time and place that it was held; whether it was regular
or special; if a special meeting, how it was authorized; the notice given; the
names of those present or represented at shareholders' meeting; and the
proceedings of the meetings. A similar minute book shall be kept for any
committees, if required by the Board.
The Secretary shall keep, or cause to be kept, at the principal office or
at the office of the corporation's transfer agent, a share register, or
duplicate share register, showing the shareholders' names and addresses, the
number and classes of shares held by each, the number and date of each
certificate issued for these shares, and the number and date of cancellation of
each certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all directors'
and shareholders' meetings required to be given under these By-Laws or by law,
shall keep the corporate seal in safe custody, and shall have any other powers
and perform any other duties that are prescribed by the Board of Directors or
these By-Laws.
14
Section 39. Treasurer.
---------
Treasurer shall be the corporation's chief financial officer and shall keep
and maintain, or cause to be kept and maintained, adequate and correct accounts
of the corporation's properties and business transactions, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Treasurer shall deposit all money and other valuables in the name and
to the credit of the corporation with the depositories designated by the Board
of Directors. He shall disburse the corporation's funds as ordered by the Board
of Directors; shall render to the President and directors, whenever they request
it, an account of all his transactions as Treasurer and of the corporation's
financial condition; and shall have any other powers and perform any other
duties that are prescribed by the Board of Directors or By-Laws.
If required by the Board of Directors, the Treasurer shall give the
corporation a bond in the amount and with the surety or sureties specified by
the Board for faithful performance of the duties of his office and for
restoration to the corporation of all its books, papers, vouchers, money, and
other property of every kind in his possession or under his control on his
death, resignation, retirement, or removal from office.
15
ARTICLE V
General Corporate Matters
Section 40. Record Date and Closing of Stockbooks.
-------------------------------------
The Board of Directors may fix a time in the future as a record date for
determining shareholders entitled to notice of and to vote at any shareholders'
meeting; to receive any dividend, distribution, or allotment of rights; or to
exercise rights in respect of any other lawful action, including change,
conversion, or exchange of shares. The record date shall not, however, be more
than sixty (60) nor less than ten (10) days prior to the date of such meeting
nor more than 60 days prior to any other action. If a record date is fixed for a
particular meeting or event, only shareholders of record on that date are
entitled to notice and to vote and to receive the dividend, distribution, or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than 45
days.
Section 41. Corporate Records and Inspection by Shareholders and Directors.
---------------------------------------------------------------
Books and records of account and minutes of the proceedings of the shareholders,
Board, and committees of the Board shall be kept available for inspection at the
principal office. A record of the shareholders, giving the names and addresses
of all shareholders and the number and class of shares held by each, shall be
kept available for inspection at the principal office or at the office of the
corporation's transfer agent or registrar.
A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the corporation shall have an
absolute right to do either or both of the following: (1) 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 (2) obtain from the transfer agent for the corporation, upon
five business days' prior 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 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 interests as a shareholder or holder of a
voting trust certificate. Inspection and copying may be made in person or by
agent or attorney.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation and its subsidiary corporations,
domestic or foreign. Such inspection by a director may be made in person or by
agent or attorney and includes the right to copy and make extracts.
16
Section 42. Checks, Drafts, Evidences of Indebtedness.
-------------------------------------------
All checks, drafts, or other orders for payment of money, notes and all
mortgages, or other evidences of indebtedness, issued in the name of or payable
to the corporation, and all assignments and endorsements of the foregoing, shall
be signed or endorsed by the person or persons and in the manner specified by
the Board of Directors.
Section 43. Corporate Contracts and Instruments; How Executed.
-----------------------------------------------------
Except as otherwise provided in the By-Laws, officers, agents, or employees
must be authorized by the Board of Directors to enter into any contract or
execute any instrument in the corporation's name and on its behalf. This
authority may be general or confined to specific instances.
Section 43A Representation of Shares of Other Corporation.
---------------------------------------------
The chairman of the board, the president, or any other person authorized by
resolution of the board of directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all shares
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority granted to these officers to vote or
represent on behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be exercised by any of
these officers in person or by any person authorized to do so by a proxy duly
executed by these officers.
17
Section 44. Stock Certificates.
-------------------
One or more certificates for shares of the corporation's capital stock
shall be issued to each shareholder for any of his shares that are fully paid
up. The corporate seal or its facsimile may be fixed on certificates. All
certificates shall be signed by the Chairman of the Board, President, or a Vice
President and the Secretary, Treasurer, or an Assistant Secretary. Any or all of
the signatures on the certificate may be facsimile signatures.
Section 45. Lost Certificates.
------------------
No new share certificate that replaces an old one shall be issued unless
the old one is surrendered and canceled at the same time; provided, however,
that if any share certificate is lost, stolen, mutilated, or destroyed, the
Board of Directors may authorize issuance of a new certificate replacing the old
one on any terms and conditions, including a reasonable arrangement for
indemnification of the corporation, that the Board may specify.
Section 46. Reports to Shareholders.
------------------------
The requirement for the annual report to shareholders referred to in
Section 1501(a) of the California Corporations Code is hereby expressly waived
so long as there are less than 100 holders of record of the corporation's
shares. The Board of Directors shall cause to be sent to the shareholders such
annual or other periodic reports as they consider appropriate or as otherwise
required by law. In the event the corporation has 100 or more holders of its
shares, an annual report complying with Section 1501(a) and, when applicable,
Section 1501(b) of the Corporations Code shall be sent to the shareholders not
later than 120 days after the close of the fiscal year and at least fifteen (15)
days prior to the annual meeting of shareholders to be held during the next
fiscal year.
If no annual report for the last fiscal year has been sent to shareholders,
the corporation shall, upon the written request of any shareholder made more
than 120 days after the close of such fiscal year, deliver or mail to the person
making the request within 30 days thereafter the financial statements referred
to in Section 1501(a) for such year.
A shareholder or shareholders holding at least five percent (5%) of the
outstanding shares of any class of a 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 statements referred to in Section
1501(a) of the Corporations Code for the last fiscal year. The statement shall
be delivered or mailed to the person making the request within 30 days
thereafter. A copy of the statements shall be kept on file in the principal
office of the corporation for twelve (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 income statements and balance
sheets referred to 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.
18
Section 47. Indemnity of Officers, Directors, Officers, Employees, and Other
Agents.
--------------------------------------------------------------------
(a) Agents, Proceedings, and Expenses.
-------------------------------------
For the purposes of this Section 47, "agent" means any person who
is or was a director, officer, employee or other agent of the
corporation or 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, or
was a director, officer, employee, or agent of a foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or
was a director, officer, employee, or agent of a foreign or domestic
corporation which was a predecessor corporation of the corporation or
was serving at the request of such predecessor corporation as a
director, officer, employee or agent of another enterprise;
"proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative, or investigative;
and "expenses" includes, without limitation, attorneys' fees and any
expenses of establishing a right to indemnification under paragraph
(c) or the last sentence of paragraph (d) of this Section 47.
(b) Right to Indemnification.
-------------------------
The corporation shall indemnify each of its directors and
officers of vice president level or above and each director or officer
of vice president level or above of Tri Counties Bank (the "Bank"), a
wholly-owned subsidiary of the corporation, who was or is made a party
or is threatened to be made a party to or is otherwise involved in any
proceeding against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any such
proceeding arising by reason of the fact any such person is or was an
agent of the corporation (hereinafter an "indemnitee"); provided,
however, that except as provided in paragraph (c) hereof with respect
to proceedings to enforce rights to indemnification, the corporation
shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors of the
corporation. The right to indemnification conferred in this paragraph
(b) shall be a contract right and shall include the right to be paid
by the corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided however, that an advancement of
expenses incurred by an indemnitee in his or her capacity as an agent
of the corporation (and not in any capacity in which service was or is
rendered by such indemnitee to an employee benefit plan) shall be made
only upon delivery to the corporation of an undertaking, by or on
behalf of such person, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there
is no further right to appeal that such indemnitee is not entitled to
further right to be indemnified for such expenses under this paragraph
(b) or otherwise (hereinafter an "undertaking"). Notwithstanding the
foregoing, no indemnification shall be made to any indemnitee who was
or is a party, or is threatened to be made a party, to any threatened,
pending or completed action by or in the right of the corporation or
the Bank to procure a judgment in its favor for any of the following:
(i) In respect of any claim, issue or matter as to which the
indemnitee shall have been adjudged to be liable to the
corporation (or the Bank, as the case may be) in the performance
of that person's duty to the corporation (or the Bank) and its
shareholders, unless and only to the extent that the court in
which that proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
that person is fairly and reasonably entitled to indemnity for
the expenses which the court shall determine;
(ii) Of amounts paid in settling or otherwise disposing of a
pending action without court approval; or (iii) Of expenses
incurred in defending a pending action which is settled or
otherwise disposed of without court approval.
(c) Right of Indemnitee to Bring Suit.
----------------------------------
Except as may otherwise be provided by an agreement between the
corporation and an indemnitee: If a claim under paragraph (b) of this
Section 47 is not paid in full by the corporation within sixty days
after a written claim has been received by the corporation, except in
the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit or in a suit brought by the corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of procuring or
defending such suit. In any suit brought by the indemnitee to enforce
a right hereunder, or by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified or to
such advancement of expenses under this paragraph or otherwise shall
be on the corporation.
(d) Indemnification of Other Agents of the Corporation.
---------------------------------------------------
The corporation may, to the extend authorized from time to time
by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any other agent of the corporation
generally or as to any specific legal action and/or instance, by a
duly adopted resolution of the Board of Directors, agreement or
otherwise, up to the fullest extent of the provisions of this Section
47 with respect to the indemnification and advancement of expenses for
directors and certain officers of the corporation. Notwithstanding the
foregoing, to the extent that an agent of the corporation has been
successful on the merits in the defense of any proceeding arising by
reason of the fact such person is or was an agent of the corporation,
or in the defense of any claim, issue, or matter therein, the agent
shall be indemnified against expenses actually and reasonably incurred
by the agent in connection therewith.
(e) Other Contractual Rights.
------------------------
The indemnification provided by this Section 47 shall not be
deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any other bylaw provision,
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 such
additional rights to indemnification are authorized in the Articles of
Incorporation of the corporation. The corporation is expressly
permitted to enter into agreements with its agents providing for
indemnification beyond the indemnification rights granted in this
Section 47 to the extent such additional rights to indemnification are
authorized in the Articles of Incorporation of the corporation. The
rights to indemnity hereunder shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of that person.
Nothing contained in this Section 47 shall affect any right to
indemnification to which persons other than directors and officers of
vice president level or above of the corporation or the Bank may be
entitled by contract or otherwise.
(f) Limitations.
-----------
No indemnification or advance shall be made under this Section
47, except as provided in the last sentence of paragraph (d) above or
by a court in which any proceeding is or was pending upon application
made by the corporation or the indemnitee or the attorney or other
person rendering services in connection with such defense, in any
circumstance which exceeds the limits set forth in Section 204 of
California General Corporation Law or where it appears:
(i) That it would be inconsistent with a provision of the
Articles of Incorporation or By-Laws of the corporation, a
resolution of the shareholders of the corporation or an agreement
in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding in which the expenses were
incurred or other amounts were paid, which prohibits or otherwise
limits indemnification; or
(ii) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement. Any other
provision herein to the contrary notwithstanding, the corporation
shall not be obligated to indemnify an indemnitee for any
expenses and/or the payment of profits arising from the purchase
and sale by indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute.
(g) Insurance.
---------
Upon and in the event of a determination by the Board of Directors of
the corporation to purchase such insurance, the corporation shall purchase
and maintain insurance on behalf of any agent of the corporation against
any liability asserted against or incurred by the agent in such capacity or
arising out of the agent's status as such whether or not the corporation
would have the power to indemnify the agent against that liability under
the provision of this Section 47.
(h) Fiduciaries of Corporate Employee Benefit Plan.
-----------------------------------------------
This Section 47 does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though that person may also be an agent of
the corporation as defined in paragraph (a) of this Section 47. The
corporation shall have power to indemnify such a trustee, investment
manager or other fiduciary to the extent permitted by Section 207(f) of the
California General Corporation Law.
(i) Amendment to Provisions of Section 47. No amendment of
any provision of this Section 47 shall reduce the rights to
indemnification of any director or officer of vice president
level or above of the corporation or the Bank from the rights to
indemnification which were set forth in this Section 47 at the
time of the accrual of the alleged cause of action asserted in
any proceeding for which such director or officer is seeking
indemnification or an advance of expenses.
19
ARTICLE VI
Amendments
----------
Section 48. Amendments by Shareholders.
--------------------------
By-Laws may be adopted, amended or repealed by the affirmative vote or
written consent of a majority of the outstanding shares entitled to vote;
provided, however, that an amendment to Section 15 reducing the number of
directors on a fixed-number board or the minimum number of directors on a
variable-number board to a number less than five cannot be adopted if the votes
cast against its 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 49. Amendment by Directors.
----------------------
Subject to the right of shareholders under the preceding Section 48,
by-laws may be adopted, amended, or repealed by the Board of Directors, except
that only the shareholders can adopt a by-law or amendment thereto which
specifies or changes the number of directors on a fixed-number board, or the
minimum or maximum number of directors on a variable-number Board, or which
changes from a fixed-number Board to a variable-number Board or vice versa.
ARTICLE VII
Committees of the Board of Directors
------------------------------------
Section 50. Committees of the Board of Directors.
------------------------------------
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board and
with such authority and organization as the Board may from time to time
determine. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Any such committee, to the extent provided in the resolution of the Board shall
have all the authority of the Board, except with respect to:
(1) The approval of any action for which shareholder approval is also
required.
(2) The filling of vacancies on the Board or in any committee.
(3) The fixing of compensation of the directors for serving on the Board or
on any committee.
(4) The amendment or repeal of by-laws or the adoption of new by-laws.
(5) The amendment or repeal of any resolution of the Board which by its
express terms is not so amendable or repealable.
(6) A distribution to the shareholders of the corporation as defined in
Section 166 of the Corporations Code, except at at rate or in a
periodic amount or within a price range determined by the Board.
(7) The appointment of other committees of the Board or the members
thereof.
The Board of Directors shall designate a chairman for each committee who
shall have the sole power to call any committee meeting other than a meeting set
by the Board. Except as otherwise established by the Board of Directors, Article
III of these By-Laws shall apply to committees of the Board and action by such
committees, mutatis mutandis.
-----------------
24
Section 51. Loans or Guaranties to Officers.
-------------------------------
The Board of Directors alone may approve, without counting the vote of any
interested director or directors, loans to or guaranties of the obligations of
officers of the corporation, whether or not the officers are directors of the
corporation, or any employee benefit plan authorizing such loans or guaranties
to officers, if the Board of Directors determines that such loan or guaranty or
plan may reasonably be expected to benefit the corporation and if, on the date
of approval, the corporation has outstanding shares held on record by 100 or
more persons.
25