As filed with the Securities and Exchange Commission on March 22, 1999
Registration No. 333-_____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PACIFIC CAPITAL BANCORP
(formerly Santa Barbara Bancorp)
(Exact name of registrant as specified in its charter)
California 95-3673456
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1021 Anacapa Street
Santa Barbara, California 93101-2036
(Address of principal executive offices) (Zip Code)
PACIFIC CAPITAL BANCORP DIRECTORS' STOCK OPTION PLAN
PACIFIC CAPITAL BANCORP 1994 STOCK OPTION PLAN
PACIFIC CAPITAL BANCORP 1984 AMENDED AND RESTATED STOCK OPTION PLAN
(Full title of the plans)
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Jay D. Smith, Esq. Copy to:
1021 Anacapa Street Karen Bryant, Esq.
Santa Barbara, California 93101 Jenkens & Gilchrist,
(805) 564-6310 A Professional Corporation
(Name, address and telephone number 1100 Louisiana Street, Suite 1800
including area code of agent for service) Houston, Texas 77002
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered(1)(2) per Share(3)(4) Offering Price(3)(4) Fee(3)(4)
<S> <C> <C> <C> <C>
Common Stock, no par value 550,140 Shares $ 23.97 $ 6,906,342 $ 1,920
<FN>
(1) Includes (i) 81,630 shares of Common Stock issuable under the
Pacific Capital Bancorp Directors' Stock Option Plan (the "Directors' Plan"),
(ii) 455,087 shares of Common Stock issuable under the Pacific Capital Bancorp
1994 Stock Option Plan, and (iii) 13,423 shares of Common Stock issuable under
the Pacific Capital Bancorp 1984 Amended and Restated Stock Option Plan.
(2) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of Common Stock issuable under the terms of the Plans
to prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration
fee.
(4) Calculated pursuant to Rule 457(h). Accordingly, the price per
share of the Common Stock offered hereunder pursuant to the Plans is based on
the following exercise prices: (i) 2,461 shares at $6.06 per share, (ii) 3,519
shares at $6.59 per share, (iii) 81,630 at $6.79 per share, (iv) 144,691 shares
at $7.65 per share, (v) 7,442 shares at $ 7.87 per share, (vi) 11,036 shares at
$8.48 per share, (vii) 1,118 shares at $8.98 per share, (viii) 2,132 shares at
$11.54 per share, (ix) 534 shares at $12.48 per share, (x) 84,000 shares at
$12.66 per share, (xi) 3,943 shares at $12.80 per share, (xii) 1,015 shares at
$15.87 per share, (xiii) 187,700 shares at $18.40 per share, (xiv) 1,016 at
$20.43 per share, (xv) 484 shares at $$21.45 per share, (xvi) 12,582 shares at
$22.48 per share, and (xvii) 4,837 shares at $23.97 per share.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(2) the registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1998;
(3) the registrant's Current Reports on Forms 8-K filed January 14,
1999 and December 3, 1998;
(4) the former Pacific Capital Bancorp's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997;
(5) the former Pacific Capital Bancorp's Quarterly Reports on Form
10-Q for the quarters ended March 31, June 30, and September 30, 1998;
(6) the Joint Proxy Statement/Prospectus filed by the registrant and
the former Pacific Capital Bancorp pursuant to Rule 424(b) on November
10, 1998; and
(7) the description of the common stock, no par value, of the
registrant (the "Common Stock") set forth in the Registration
Statement on Form 8-A (Registration No. 0-11113), including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant indemnity to directors,
officers, employees and other agents of the corporation ("Agents") in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933, as amended.
The Board of Directors of the registrant has resolved to indemnify the
officers and directors of the registrant to the full extent permitted by Section
317 of the California General Corporation Law, and the Sixth Article of the
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<PAGE>
registrant's Certificate of Restatement of Articles of Incorporation and Section
5.3 of the registrant's Amended and Restated Bylaws, as adopted by the Board of
Directors on January 26, 1999, authorize the registrant to provide for
indemnification of officers and directors to the same extent. This
indemnification limits the personal monetary liability of directors in
performing their duties on behalf of the registrant, to the extent permitted by
the California General Corporation Law, and permits the registrant to indemnify
its directors and officers against certain liabilities and expenses, to the
extent permitted by the California General Corporation Law. This indemnification
is based upon the indemnification provisions previously set forth in the
registrant's Articles of Incorporation prior to the merger of Pacific Capital
Bancorp into the registrant as approved by Pacific Capital Bancorp's
shareholders and the indemnification agreements which were approved by the
registrant's shareholders at the annual meeting of shareholders held on March
30, 1988. In addition, the registrant maintains a directors' and officers'
liability insurance policy that insures its directors and officers against
certain liabilities, including certain liabilities under the Securities Act of
1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit
Number Document Description
4.1* -- Certificate of Restatement of Articles of Incorporation of
the registrant dated January 27, 1999.
4.2* -- Amended and Restated Bylaws of the registrant effective
January 26, 1999.
4.3 -- Pacific Capital Bancorp Directors' Stock Option Plan and
Form of Stock Option Agreement (incorporated by reference to
Exhibit 10.25 of Pacific Capital Bancorp's Annual Report on
Form 10-K (File No. 0-13528) for the fiscal year ended
December 31, 1991).
4.4 -- Pacific Capital Bancorp 1994 Stock Option Plan, as amended,
and Forms of Incentive and Non-Qualified Stock Option
Agreements (incorporated by reference to Exhibit 4 to
Pacific Capital Bancorp Amendment No. 1 to Registration
Statement on Form S-8 (Reg. No. 33-83848) as filed on
November 15, 1994).
4.5 -- Pacific Capital Bancorp 1984 Amended and Restated Stock
Option Plan and Forms of Agreements (incorporated by
reference to Exhibit 10.27 of Pacific Capital Bancorp's
Annual Report on Form 10-K (File No. 0-13528) for the fiscal
year ended December 31, 1991).
5.1* -- Opinion of Counsel
23.1 -- Consent of Counsel (included in the opinion filed as Exhibit
5.1).
23.2* -- Consent of Arthur Andersen LLP.
23.3* -- Consent of KPMG LLP.
24.1 -- Power of Attorney (see signature page of this registration statement).
* Filed herewith.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
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<PAGE>
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Barbara, State of California on March 16, 1999.
PACIFIC CAPITAL BANCORP
By: /s/ David W. Spainhour
-------------------------------------
David W. Spainhour
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Jay D. Smith and Donald Lafler,
and each of them, each with full power to act without the other, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this registration statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person hereby ratifying and confirming that each of said attorneys-in-fact and
agents or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacities Date
--------- ---------- ----
<S> <C> <C>
/s/ Donald M. Anderson Chairman of the Board and Director March 14, 1999
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Donald M. Anderson
/s/ David W. Spainhour President, Chief Executive Officer and March 16, 1999
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David W. Spainhour Director (Principal Executive Officer)
/s/ William S. Thomas, Jr. Vice Chairman, Chief Operating Officer March 16, 1999
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William S. Thomas, Jr. and Director
/s/ Donald Lafler Senior Vice President and Chief Financial March 16, 1999
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Donald Lafler Officer (Principal Financial Officer)
/s/ Edward J. Czajka Vice President (Principal Accounting March 16, 1999
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Edward J. Czajka Officer)
/s/ Frank Barranco, M.D. Director March 13, 1999
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Frank Barranco, M.D.
<PAGE>
/s/ Edward E. Birch Director March 16, 1999
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Edward E. Birch
/s/ Terrill F. Cox Director March 15, 1999
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Terrill F. Cox
/s/ Richard M. Davis Director March 14, 1999
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Richard M. Davis
/s/ Anthony Guntermann Director March 14, 1999
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Anthony Guntermann
/s/ Dale E. Hanst Director March 16, 1999
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Dale E. Hanst
/s/ D. Vernon Horton Director March 16, 1999
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D. Vernon Horton
/s/ Roger C. Knopf Director March 16, 1999
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Roger C. Knopf
/s/ Clayton C. Larson Direcctor March 16, 1999
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Clayton C. Larson
/s/ William H. Pope Director March 16, 1999
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William H. Pope
/s/ Harry B. Powell Director March 16, 1999
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Harry B. Powell
/s/ Susan Trescher Director March 16, 1999
- -------------------------------
Susan Trescher
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Sequential
Exhibit Page
Number Document Description Number
------ -------------------- ------
4.1* -- Certificate of Restatement of Articles of Incorporation of
the registrant dated January 27, 1999.
4.2* -- Amended and Restated Bylaws of the registrant effective
January 26, 1999.
4.3 -- Pacific Capital Bancorp Directors' Stock Option Plan and
Form of Stock Option Agreement (incorporated by reference to
Exhibit 10.25 of Pacific Capital Bancorp's Annual Report on
Form 10-K (File No. 0-13528) for the fiscal year ended
December 31, 1991).
4.4 -- Pacific Capital Bancorp 1994 Stock Option Plan, as amended,
and Forms of Incentive and Non-Qualified Stock Option
Agreements (incorporated by reference to Exhibit 4 to
Pacific Capital Bancorp Amendment No. 1 to Registration
Statement on Form S-8 (Reg. No. 33-83848) as filed on
November 15, 1994).
4.5 -- Pacific Capital Bancorp 1984 Amended and Restated Stock
Option Plan and Forms of Agreements (incorporated by
reference to Exhibit 10.27 of Pacific Capital Bancorp's
Annual Report on Form 10-K (File No. 0-13528) for the fiscal
year ended December 31, 1991).
5.1* -- Opinion of Counsel
23.1 -- Consent of Counsel (included in the opinion filed as Exhibit
5.1).
23.2* -- Consent of Arthur Andersen LLP.
23.3* -- Consent of KPMG LLP.
24.1 -- Power of Attorney (see signature page of this registration
statement).
- --------------------------
* Filed herewith.
</TABLE>
Exhibit 4.1
CERTIFICATE OF RESTATEMENT
OF ARTICLES OF INCORPORATION
OF
PACIFIC CAPITAL BANCORP,
a California Corporation
DAVID W. SPAINHOUR and JAY D. SMITH certify that:
1. They are the President and the Secretary, respectively, of PACIFIC
CAPITAL BANCORP, a California corporation.
2. The Articles of Incorporation of this Corporation are restated to
read as follows:
FIRST: NAME
The name of the Corporation is: PACIFIC CAPITAL BANCORP.
SECOND: PURPOSE
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: AUTHORIZED STOCK
This Corporation is authorized to issue only one class of
shares of stock, designated "Common Stock." The total number of such
shares which this corporation is authorized to issue is forty million
(40,000,000).
FOURTH: BUSINESS COMBINATIONS
4.1 Definitions. For purposes of this Section 4, the following terms
shall have the meanings set forth below:
4.1.1 "Acquiring Party" shall mean any Ten Percent (10%)
Stockholder (as defined in Section 4.1.11, below) proposing to engage in a
Business Combination with this corporation or a Subsidiary of this Corporation.
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<PAGE>
4.1.2 "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and Regulations,
or any successor Rule, under the Securities Exchange Act of 1934, as then in
effect.
4.1.3 "Beneficial Owner" shall mean:
A. A person or any of its Affiliates or Associates who
directly or indirectly beneficially owns Voting Shares; and
B. A person or any of its Affiliates or Associates who
has the right (1) to acquire (whether such right is
exercisable immediately or only after the passage of time)
Voting Shares pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants, or options, or otherwise, or (2)
to vote Voting Shares pursuant to any agreement, arrangement
or understanding; and
C. A person or any of its Affiliates or Associates with
which a person described in subparagraphs A or B, above, has
any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any Voting
Shares of this Corporation.
4.1.4 "Business Combination" shall mean any of the following
transactions:
A. Any merger or consolidation of this Corporation or
of any Subsidiary of this Corporation, with or into (1) any
Ten Percent (10%) Stockholder or (2) any other corporation
(whether or not itself a Ten Percent (10%) Stockholder)
which, after such merger of consolidation, would be an
Affiliate of a Ten Percent (10%) Stockholder; or
B. Any sale, lease, transfer, mortgage, pledge or other
disposition (in one or a series of related transactions),
whether or not in partial or complete liquidation, of all of
any substantial part of the assets of this Corporation or
any Subsidiary, to or with any Ten Percent (10%) Stockholder
or the Affiliate of a Ten Percent (10%) Stockholder; or
C. The issuance or transfer by this Corporation or by
any Subsidiary of any securities of this Corporation of any
Subsidiary to any Ten Percent (10%) Stockholder or the
Affiliate of a Ten Percent (10%) Stockholder in exchange for
cash, securities, or other property (or a combination
thereof).
4.1.5 "Common Stock" shall mean the Common Stock of this
Corporation or of any Subsidiary of this Corporation involved in a Business
Combination.
4.1.6 "Disinterested Director" shall mean any director other
than an Interested Director.
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<PAGE>
4.1.7 "Interested Director" shall mean any director who is
an Affiliate or Associate of the Acquiring Party, or is nominated, elected or
appointed by or to represent the Acquiring Party; a director shall be deemed to
have been elected by an Acquiring Party if fifty percent (50%) or more of the
votes cast for such director are attributable to Voting Shares of which the
Acquiring Party is held to be the Beneficial Owner.
4.1.8 "Person" shall mean any individual, firm, corporation
or other entity.
4.1.9 "Subsidiary" shall mean any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
this Corporation; provided, however, that for purposes of the definition of a
Ten Percent (10%) Stockholder set forth in Section 4.1.11, below, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by this Corporation.
4.1.10 "Substantial part" of the assets of this Corporation
or any Subsidiary shall be deemed to be involved in a transaction described in
paragraph B of Section 4.1.4 of this Article FOURTH if the assets involved in
such transaction have a fair market value on the date of such transaction equal
to or greater than one-third (1/3) of the total assets of this Corporation (or
of such Subsidiary, as the case may be), as reflected in the most recent balance
sheet of this Corporation prior to the date of such transaction.
4.1.11 "Ten Percent (10%) Stockholder" shall mean, with
respect to any Business Combination, any person (other than this Corporation or
any Subsidiary) which, as of the record date for the determination of
stockholders entitled to notice and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction:
A. Is the Beneficial Owner, directly or indirectly, of
not less than ten percent (10%) of the Voting Shares; or
B. Is an Affiliate of this Corporation and at any time
within eighteen (18) months prior thereto was the Beneficial
Owner, directly or indirectly, of not less than ten percent
(10%) of the then outstanding Voting Shares.
4.1.12 "Unratified Business Combination" shall mean any
Business Combination other than a Business Combination which either:
A. Was set forth in a memorandum of understanding or
other written instrument approved by the Board of Directors
prior to the time the Acquiring Party of an Affiliate of the
Acquiring Party became a Ten Percent (10%) Stockholder;
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<PAGE>
B. Was approved by the Board of Directors at a duly
held meeting at which Interested Directors were disqualified
from voting; or
C. Was approved by the unanimous vote of the entire
Board of Directors.
4.1.13 "Voting Shares" shall mean any of the outstanding
shares of the capital stock of this Corporation entitled to vote generally in
the election of directors. The outstanding Voting Shares shall include shares
deemed to be beneficially owned within the meaning of Section 4.1.3, above, but
shall not include any other Voting Shares which may be issuable pursuant to any
agreement, or upon the exercise of conversion rights, warrants or options, or
otherwise.
4.2 Approval by Shareholders. Any Unratified Business Combination
involving this Corporation or a Subsidiary of this Corporation shall require the
affirmative vote of the holders of at least two-thirds (66.67%) of the
outstanding Voting Shares of this Corporation, considered for the purpose of
this Article FOURTH as one class, notwithstanding that, under applicable law,
some lesser percentage may be specified or no vote may be required.
4.3 Exceptions to Approval Requirements. The provisions of Section 4.2,
above, shall not apply to a proposed Business Combination and any such proposed
Business Combination shall require only such affirmative vote as is required by
law and any other provision of these Articles of Incorporation, if all of the
following conditions shall have been satisfied:
4.3.1 The aggregate amount of the cash and the fair market
value of other consideration to be received per share by holders of the Common
Stock in such proposed Business Combination:
A. Is not less than the highest per-share price
(including brokerage commissions and/or soliciting dealers'
fees) paid by the Acquiring Party in acquiring any of its
holdings or Common Stock; and
B. Is not less than the earnings per share of the
Common Stock for the four full consecutive fiscal quarters
immediately preceding the record date for the solicitation
of votes on such proposed Business Combination multiplied by
the then price/earnings multiple (if any) of the Acquiring
Party as customarily computed and reported in the financial
community.
4.3.2 The cash and fair market value of other consideration
to be received per share by holders of the Common Stock in such
proposed Business Combination bears the same or a greater
percentage relationship to the market price of the Common Stock
immediately prior to the announcement of the proposed Business
Combination, as the highest per share price (including brokerage
commissions and/or soliciting dealers' fees) which the Acquiring
Party paid for any shares of Common Stock acquired by it within
eighteen (18)
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<PAGE>
months prior to the proposed Business Combination bears to the market price of
the Common Stock immediately prior to the initial acquisition of any Common
Stock by the Acquiring Party.
4.3.3 The consideration to be received by holders of Common
Stock in the proposed Business Combination shall be in the same form and of the
same kind as the consideration paid by the Acquiring Party in acquiring the
shares of Common Stock already acquired by it.
4.3.4 After the Acquiring Party has acquired ownership of
not less than ten percent (10%) of the then outstanding Voting Shares ("10%
Interest") and prior to the consummation of the proposed Business Combination:
A. The Acquiring Party shall have taken steps to ensure
that this Corporation's Board of Directors included at all
times representation by Disinterested Directors (as defined
in Section 4.1.6, above) proportionate to the ratio that the
Voting Shares which from time to time are owned by persons
who are not Ten Percent (10%) Stockholders bears to all
Voting Shares outstanding at such respective times (with a
Disinterested Director to occupy any resulting fractional
board position);
B. There shall have been no reduction in the rate of
dividends payable on the Common Stock except as may have
been approved by the unanimous vote of the Board of
Directors;
C. The Acquiring Party shall not have acquired any
newly issued shares of stock, directly or indirectly, from
the Corporation (except upon conversion of convertible
securities acquired by it prior to becoming a Ten Percent
(10%) Stockholder or as the result of a pro rata stock
dividend or stock split); and
D. The Acquiring Party shall not have acquired any
additional shares of this Corporation's outstanding Common
Stock or securities convertible into or exchangeable for
Common Stock except as a part of the transaction which
resulted in the Acquiring Party acquiring its 10% Interest.
4.3.5 Prior to the consummation of the proposed Business
Combination, the Acquiring Party shall not have received a benefit, directly or
indirectly (except proportionately as a stockholder) of any loans, advances,
guarantees, pledges or other financial assistance or tax credits provided by
this Corporation or made any major change in this Corporation's business or
equity capital structure without the unanimous approval of the Board of
Directors.
4.3.6 A proxy statement conforming to the requirements of
the Securities Exchange Act of 1934 shall have been mailed to all holders of
Voting Shares for the purpose of soliciting stockholder approval of the proposed
Business Combination. Such proxy statement shall contain at the front thereof,
in a prominent place, any recommendation as to the advisability (or
inadvisability) of the Business Combination which any director may have
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<PAGE>
furnished in writing, and an opinion of a reputable investment banking firm as
to the fairness (or lack of fairness) of the terms of the proposed Business
Combination, form the point of view of the holders of Voting Shares other than
any Ten Percent (10%) Stockholder (such investment banking firm to be (a)
selected by a majority of the directors present at a duly held meeting of the
Board of Directors at which Interested Directors are disqualified from voting on
the selection of the investment banking firm, (b) furnished with all information
it reasonable requests, and (c) paid a reasonable fee for its services upon
receipt of this Corporation of such opinion).
4.4 Determination by Board. A majority of the directors present at a
duly held meeting of the Board of Directors at which Interested Directors are
disqualified from voting shall have the power and duty to determine for the
purposes of this Article FOURTH on the basis of information known to them, the
following facts:
4.4.1 The number of Voting Shares beneficially owned by any
person;
4.4.2 Whether a person is an Affiliate or Associate of
another person; and
4.4.3 Whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in Paragraph B of
Section 4.1.3, above.
4.5 Amendment. The provision of this Article FOURTH may not be altered,
amended or repealed except upon the approval of two-thirds (66.67%) of the
outstanding Voting Shares of this Corporation.
FIFTH: LIABILITY OF DIRECTORS
The liability of the directors of this Corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
SIXTH: INDEMNIFICATION OF AGENTS
The Corporation is authorized to indemnify its agents (as
that term is defined in Section 317 of the Corporations Code) from breaches of
duty to the Corporation and its stockholders through bylaw provisions,
agreements with its agents, the vote of disinterested shareholders or
disinterested directors, or otherwise, in excess of the indemnification
otherwise permitted by Section 317 of the Corporation code, subject to the
limits of such excess indemnification set forth in Section 204 of the
Corporations Code.
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<PAGE>
SEVENTH: ELIMINATION OF CUMULATIVE VOTING
No holder of any class of stock of the Corporation shall be
entitled to cumulate votes at any election of directors of the Corporation.
3. The foregoing Certificate of Restatement of Articles of
Incorporation has been duly approved by the Board of Directors.
4. Pursuant to Section 910(a) of the California Corporations Code, the
foregoing Certificate of Restatement of Articles of Incorporation is not
required to be approved by the vote of shareholders of the Corporation.
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: January 27, 1999
/s/ David W. Spainhour
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David W. Spainhour, President
/s/ Jay D. Smith
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Jay D. Smith, Secretary
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Exhibit 4.2
AMENDED AND RESTATED
BYLAWS
OF
PACIFIC CAPITAL BANCORP
Effective January 26, 1999
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
PACIFIC CAPITAL BANCORP
1. NAME; EXECUTIVE OFFICES
1.1 Name of Corporation. The name of this Corporation is PACIFIC CAPITAL
BANCORP.
1.2 Principal Office. The Board of Directors shall designate the location
of the principal executive office of the Corporation, which may be at any place
within or without the State of California. If the principal executive office is
located outside of California, and if the Corporation has one or more business
offices in California, then the Board of Directors shall designate a principal
business office in the State of California.
1.3 Additional or New Offices. The Board of Directors may establish
such branch or subordinate offices, or may relocate the Corporation's principal
office, from time to time, at or to such locations as it determines to be
appropriate.
2. MEETINGS OF THE SHAREHOLDERS
2.1 Place of Meeting. All meetings of the shareholders of this
Corporation shall be held at such place within or without the State as may be
designated from time to time by the Board of Directors.
2.2 Annual Meetings. The annual meeting of the shareholders shall be held
each year on the Tuesday following the fourth (4th) Monday of April, at 2:00
p.m., unless another date or time is fixed by resolution of the Board of
Directors. However, if this day falls on a legal holiday, then the meeting shall
be held at the same time and place on the next succeeding full business day. At
each annual meeting, 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.
2.3 Special Meetings.
2.3.1 Authorization to Call Special Meetings. The Chairperson of the
Board, the President, the Board of Directors, any two or more members of
the Board, or one or more shareholders holding not less than ten percent
(10%) of the voting power of the Corporation, may call special meetings of
the shareholders at any time for the purpose of taking any action permitted
to be taken by the shareholders under the California General Corporation
Law and the Articles of Incorporation.
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2.3.2 Procedure for Calling Special Meetings. If a special meeting is
called by any person other than the Board of Directors, the request for the
special meeting, specifying the general nature of the business proposed to
be transacted, shall be delivered personally or sent by registered mail or
by telegraphic or other facsimile transmission to the President, the
Chairperson of the Board, any Vice-President or the Secretary of the
Corporation. The officer receiving the request shall promptly cause notice
of the meeting to be given in the manner provided by Section 2.4 of these
Bylaws to the shareholders entitled to vote at the meeting. Any special
meeting called for pursuant to this Section 2.3 shall be held not less than
thirty-five (35) nor more than sixty (60) days following receipt of the
request for the special meeting. If notice of the special meeting is not
given to shareholders within twenty (20) days after the receipt of a
request, the person(s) calling the meeting may give notice thereof in the
manner provided by these Bylaws or apply to the California Superior Court
as provided in Section 305(c) of the California General Corporation Law.
2.4 Notice of Meetings.
2.4.1 Time of Notice. Notice of meetings, annual or special, shall be
given in writing to each shareholder entitled to vote at such meeting by
the Secretary or an Assistant Secretary, or if there be no such officers,
by the Chairperson of the Board or the President, or in the case of neglect
or refusal, by any person entitled to call a meeting, not less than ten
(10) days (or, if sent by third class mail, thirty (30) days) nor more than
sixty (60) days before the date of the meeting.
2.4.2 Procedure for Giving Notice. Written notice of the meeting shall
be given either personally or by first class mail (or third class mail if
the Corporation has shares held of record by 500 or more persons as of the
record date for the meeting) or telegraphic or other means of written
communication, charges prepaid, addressed to the shareholder at the address
of the shareholder appearing on the books of the Corporation or given by
the shareholder to the Corporation for the purpose of notice. If no such
address for notice appears on the Corporation's books or has not been
given, notice shall be deemed to have been given if sent to the shareholder
in care of the Corporation's principal executive office or if published at
least once in a newspaper of general circulation in the county in which the
principal executive office of the Corporation is located. Notice shall be
deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication. An
affidavit of mailing of any notice in accordance with the above provisions,
executed by the Secretary, Assistant Secretary or any transfer agent, shall
be prima facie evidence of the giving of the notice. The giving of notice
as provided by these Bylaws may be omitted only to the extent and in the
manner expressly permitted by the California General Corporation Law.
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2.4.3 Contents of Notice. Notice of any meeting of shareholders shall
specify:
A. The place, the date and the hour of the meeting;
B. Those matters which the Board, at the time of the mailing of
the notice, intends to present for action by the shareholders;
C. If directors are to be elected, the names of nominees whom, at
the time of the notice, management intends to present for election;
D. The general nature of any business to be transacted at a
special meeting and that no other business shall be transacted;
E. The general nature of business to be transacted at any
meeting, whether regular, annual or special, if such business relates
to any proposal to take action with respect to the approval of (i) a
contract or other transaction with an interested director, governed by
Section 310 of the California General Corporation Law, (ii) an
amendment of the Articles of Incorporation, (iii) the reorganization
of the Corporation within the meaning of the California General
Corporation Law, (iv) the voluntary dissolution of the Corporation, or
(v) a plan of distribution in dissolution other than in accordance
with the rights of any outstanding preferred shares as provided in
California General Corporation Law Section 2007; and
F. Such other matters, if any, as may be expressly required by
the California General Corporation Law.
2.5 Quorum Requirements. The holders of a majority of the shares entitled
to vote, represented in person or by proxy, shall be required for, and shall
constitute a quorum at, all meetings of the shareholders for the transaction of
business. The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
2.6 Adjourned Meetings.
2.6.1 Lack of Quorum. If a quorum is not present or represented at any
meeting of the shareholders, the meeting may be adjourned by a majority
vote of the shares entitled to vote who are present, either in person or by
proxy, until such time as the requisite number of voting shares
constituting a quorum is be present.
2.6.2 Notice of Adjourned Meeting. When a meeting is adjourned for
more than forty-five (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 in accordance with the provisions of Section 2.4 of these
Bylaws. Except as provided in this Section 2.6.2, it shall not be necessary
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to give any notice of the adjourned meeting, other than by announcement of the
time and place thereof at the meeting, other than by announcement of the time
and place thereof at the meeting at which the adjournment is taken, and the
Corporation may transact at the adjourned meeting any business which might have
been transacted at the original meeting.
2.7 Voting Rights.
2.7.1 General Voting Rights. Subject to the provisions of Section 702
through 706, inclusive, of the California General Corporation Law, only
persons in whose names shares entitled to vote stand on the stock records
of the Corporation on the record date shall be entitled to vote at meetings
of the shareholders. Except as provided in Section 2.7.3, below, every
shareholder entitled to vote shall be entitled to one vote for each share
held of record, and the affirmative vote of a majority of the shares
represented at the meeting and entitled to vote on any matter shall be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by the California General Corporation Law or by the
Articles of Incorporation.
2.7.2 Voice Voting; Written Ballots. Voting at meetings of the
shareholders may be by voice vote or by ballot except that, in any election
of directors, voting must be by written ballot if voting by ballot is
requested by any shareholder entitled to vote.
2.8 Voting by Proxy.
2.8.1 Form and Use of Proxies. Every shareholder entitled to vote, or
to execute consents, may do so either in person, by telegram, or by written
proxy in a form as provided in, and executed in accordance with the
applicable provisions of the California General Corporation Law. Proxies
must be filed with the Secretary or an Assistant Secretary of the
Corporation.
2.8.2 Validity of Proxies. The validity of a proxy tendered on behalf
of a shareholder, and any revocation thereof, shall be determined in
accordance with the provisions of Section 705 of the California General
Corporation Law.
2.9 Inspectors of Election. In advance of any meeting of shareholders, the
Board of Directors may appoint any persons other than nominees for office to act
as Inspectors of Election at such meeting or any adjournment thereof. If no
Inspectors of Election are appointed or if an appointment is vacated by an
Inspector who fails to appear or fails or refuses to act, the Chairperson of any
such meeting may, and on the request of any shareholder or his proxy shall, make
such appointment or fill such vacancy at the meeting. The number of Inspectors
shall be as prescribed by and shall have the duties set forth in Section 707(a)
of the California General Corporation Law. Inspectors shall have the authority
and duties set forth in Sections 707(b) and 707(c) of the California General
Corporation Law.
2.10 Shareholder Action Without a Meeting
2.10.1 Written Consents. Unless otherwise provided in the Articles of
Incorporation, any action which may be taken at any annual or special
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<PAGE>
meeting of the shareholders, other than the election of directors, 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 shareholders entitled to vote thereon were present and voted.
2.10.2 Notice of Written Consent. Unless the consents of all
shareholders entitled to vote have been solicited in writing, prompt notice
of any corporate action approved by shareholders without a meeting by less
than unanimous written consent shall be given, in accordance with Section
601(b) of the California General Corporation Law, to those shareholders
entitled to vote who have not consented in writing. Such notice must be
given at least ten (10) days before the consummation of any action
authorized by such approved if the action involves (i) a contact or other
transaction with an interested director, governed by Section 310 of the
California General Corporation Law, (ii) the indemnification of any present
or former agent of the Corporation within the meaning of Section 317 of the
California General Corporation Law, (iii) any reorganization within the
meaning of the California General Corporation Law, or (iv) a plan of
distribution in dissolution other than in accordance with the rights of any
outstanding preferred shares as provided in California General Corporation
Law Section 2007.
2.10.3 Election of Directors by Written Consent. A director may be
elected at any time to fill a vacancy (other than a vacancy resulting from
the removal of a director) not filled by the Board by written consent of
persons holding a majority of the outstanding shares entitled to vote for
the election of directors, and any required notice of such election shall
promptly be given as provided in Section 2.10.2, above. Directors may not
otherwise be elected without a meeting unless a consent in writing, setting
forth the action so taken, is signed by all of the persons who would be
entitled to vote for the election of directors.
2.10.4 Solicitation of Consents. In order that the shareholders have
an opportunity to receive and consider the information germane to making an
informed judgement as to whether to give a written consent, no corporate
action to be taken by written consent shall be effective until the later of
(a) twenty (20) days after the date of the commencement of a solicitation
(as such term is defined in Rule 14a-1 promulgated under the Securities
Exchange Act of 1934, as amended) of consents, and (b) such date as may be
specified in the proxy statement or information statement furnished in
connection with the solicitation; provided that the foregoing shall not
apply to any correspondence of not more than ten (10) persons. For purposes
of this Section 2.10, a consent solicitation shall be deemed to have
commenced when a proxy statement or information statement containing
information required by law is first furnished to the shareholders.
2.10.5 Duration of Consents. Consents to corporate action (a) shall be
effective only on delivery to the Corporation of the original or a
certified copy of the consent and (b) shall be valid for a maximum of sixty
(60) days after the date of the earliest dated consent delivered to the
Corporation in the manner provided in this Section 2.10.
2.10.6 Revocation of Consents. Consents may be revoked at any time
prior to the time that written consents of the number of shares required to
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authorize the proposed action have been filed with the Secretary of the
Corporation. Consents may be revoked by written notice delivered to any of
(a) the Corporation, (b) the shareholder or shareholders soliciting
consents or soliciting revocations in opposition to action by consent
proposed by the Corporation (the "Soliciting Shareholders"), or (c) a proxy
solicitor or other agent designated by the Corporation or the Soliciting
Shareholders. A revocation of a consent shall be effective upon receipt by
the applicable person.
2.10.7 Inspectors of Election. Within three (3) business days after
the delivery of any consents to the Corporation or the determination by the
Board of Directors that the Corporation should seek corporate action by
written consent, as the case may be, the Secretary shall engage independent
inspectors of elections (the "Inspectors") for the purpose of performing a
ministerial review of the validity of the consents and revocations. The
cost of retaining inspectors of election shall be borne by the Corporation.
2.10.8 Procedures for Counting. Consents and revocations shall be
delivered to the Inspectors upon receipt by the Corporation, the Soliciting
Shareholders or their proxy solicitors or other designated agents. As soon
as consents and revocations are received, the Inspectors shall review the
consents and revocations and shall maintain a count of the number of valid
and unrevoked consents. The Inspectors shall keep such count confidential
and shall not reveal the count to the Corporation, the Soliciting
Shareholder or their representatives or any other entity except in
connection with the Preliminary Report or the Final Report. As soon as
practicable after the earlier of (a) sixty (60) days after the date of the
earliest dated consent delivered to the Corporation or (b) a written
request therefor by the Corporation or the Soliciting Shareholders
(whichever is soliciting consents) (which request may be made no earlier
than twenty (20) days after the commencement of the applicable solicitation
of consents, except in the case of corporate action by written consent
taken pursuant to solicitation of not more than ten (10) persons), notice
of which request shall be given to the party opposing the solicitation of
consents, if any, the Inspectors shall issue a preliminary report (the
"Preliminary Report") to the Corporation and the Soliciting Shareholders
stating: (i) the number of valid consents; (ii) the number of valid
revocations; (iii) the number of valid and unrevoked consents; (iv) the
number of invalid consents; (v) the number of invalid revocations; and
(vii) whether, based on their preliminary count, the requisite number of
valid and unrevoked consents has been obtained to authorize or take the
action specified in the consents. Any request delivered by the Corporation
or the Soliciting Shareholders under this Section shall state that the
requesting party has a good faith belief that the requisite number of valid
and unrevoked consents to authorize or take the action specified in the
consents has been received in accordance with these By-Laws.
2.10.9 Inspectors' Final Report. Unless the Corporation and the
Soliciting Shareholders shall agree to a shorter or longer period, the
Corporation and the Soliciting Shareholders shall have forty-eight (48)
hours after the Inspectors' delivery of the Preliminary Report to review
the Preliminary Report and copies of the consents and revocations and to
advise the Inspectors and the opposing party in writing as to whether they
intend to challenge the Preliminary Report of the Inspectors. If no written
notice of an intention to challenge the Preliminary Report is received
within such 48-hour period, the Inspectors shall issue to the Corporation
and the Soliciting Shareholders their final report (the "Final Report")
containing the information from the Inspectors, determination with respect
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to whether the requisite number of valid and unrevoked consents was
obtained to authorize and take the action specified in the consents. If the
Corporation or the Soliciting Shareholders issue written notice of an
intention to challenge the Inspectors' Preliminary Report within such
48-hour period, a challenge session shall be scheduled by the Inspectors as
promptly as practicable. A transcript of the challenge session shall be
recorded by a certified court reporter. Following completion of the
challenge session, the Inspectors shall as promptly as practicable issue
their Final Report to the Soliciting Shareholders and the Corporation. The
Final Report shall contain the information included in the Preliminary
Report, plus all changes, if any, in the vote total as a result of the
challenge and a certification of whether the requisite number of valid and
unrevoked consents was obtained to authorize or take the action specified
in the consents. A copy of the Final Report of the Inspectors shall be
included in the Corporation's records in which the proceedings of meetings
of shareholders are maintained.
2.10.10 Further Review. If the Inspectors state in the Final Report
that the requisite number of valid and unrevoked consents was not obtained
to authorize or take the action specified in the consents, the party
soliciting the consents thereafter may make one additional request in
accordance with the provisions of Section 2.10.8 hereof that the Inspectors
again review the consents and revocations and issue a further Preliminary
Report and Final Report.
2.10.11 Notice to Shareholders. The Corporation shall give prompt
notice to the shareholders of the results of any consent solicitation or
the taking of the corporate action without a meeting and by less than
unanimous written consent.
2.10.12 Content of Consents; Delivery of Consents. Each written
consent shall bear the date of signature of each shareholder who signs the
consent and a clear statement of the name of the shareholder who signs the
consent. Consents and revocations of consent shall be delivered to the
Corporation or any other person by hand or by certified or registered mail,
return receipt requested. Subject to the provisions of Section 2.10.4
hereof, consents and revocations of consent shall be effective upon
receipt. other notices and requests delivered under this Section 2.10 may
be delivered personally, by facsimile or other form of electronic
transmission that provides for confirmation of receipt, or by certified or
registered United States mail, return receipt requested, and, if properly
addressed, shall be deemed delivered (a) on the date of delivery, if
delivery was made personally or by transmission by facsimile or other form
of electronic transmission, or (b) on the fifth (5th) business day after
the date on which deposited with the United States Postal Service.
2.10.13 Severability. Each term and provision of this Section 2.10
shall be valid and enforceable to the fullest extent permitted by law. If
independent counsel to the Corporation delivers to the Corporation a
written opinion stating, or a court of competent jurisdiction determines,
that this Section 2.10, or any portion thereof, or the application thereof
to any person or circumstance is illegal or unenforceable with respect to
any corporate action to be taken by written consent for which a consent has
been delivered to the Corporation, then this Section 2.10, or such portion
thereof, as the case may be, shall after the date of such delivery of such
opinion or such determination be null and void in total or with respect to
such person or circumstance, as the case may be, and the remainder of this
Section 2.10 or the application thereof to persons or circumstances other
than those to which it is held invalid or unenforceable, shall not be
affected thereby.
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2.11 Shareholder Proposals
2.11.1 Annual Meeting. At any annual meeting of Shareholders, only
such business shall be conducted as shall have been properly brought before
the meeting. The provisions of this Section 2.11.1 shall control the
determination of whether a proposal by any Shareholder, in his or her
capacity as a Shareholder, for action by the Shareholders of the
Corporation has been properly brought before the annual meeting.
A. Nomination of Directors. All nominations by shareholders of
persons to be elected as Directors of the Corporation shall be made in
accordance with the provisions of Section 3.6 of these Bylaws.
B. Submission of Proposal. To be properly brought before an
annual meeting of shareholders, any proposal for action by the
shareholders, other than the nomination of any person for election as
a Director, submitted by a shareholder of the Corporation must be made
in writing, must be timely delivered to the Secretary of the
Corporation at its principal place of business and must otherwise be a
proper matter for shareholder action. To be timely delivered, a
shareholder's proposal must be delivered to the Secretary of the
Corporation not later than the close of business on the 90th day nor
earlier than the close of business on the 120th day prior to the first
anniversary of the preceding year's annual meeting; provided that in
the event that the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such anniversary date,
to be timely delivered the proposal must be delivered (i) not earlier
than the close of business on the 120th day prior to such annual
meeting and (ii) not later than the close of business on the later of
(x) the 90th day prior to such annual meeting or (y) the 10th day
following the day on which public announcement of the date of such
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting or the adjournment of an annual
meeting commence a new time period for delivery of a shareholder's
proposal.
2.11.2 Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of Shareholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
2.11.3 Content of Submission. A shareholder's notice to the Secretary
of the Corporation requesting that a proposal for action be submitted for
consideration at any meeting of shareholders shall set forth as to the
matter which the shareholder proposes to bring before the meeting: (a) a
brief description of the business desired to be brought before the meeting
and the reasons for conducting such business at the meeting; (b) the name
and address, as they appear on the Corporation's books, of the shareholder
proposing such business; (c) the class and number of shares of stock of the
Corporation owned by the shareholder beneficially and of record; (d) any
material interest of the shareholder in the business proposed to be brought
before the meeting; and (e) any other information that is required by law
to be provided by the shareholder in the shareholder's capacity as a
proponent of the proposal.
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2.11.4 Number of Proposals. No shareholder, other than the
shareholder(s) on whose behalf the meeting is noticed and called, may
submit more than one (1) proposal for consideration at any one (1) meeting
of the shareholders of the Corporation.
2.11.5 Federal Rules. Nothing in this Section shall be deemed to limit
or waive the application of, or the need for any shareholder to comply
with, any of the provisions of Section 14 of the Securities Exchange Act of
1934 and the Rules promulgated thereunder applicable to the inclusion of
any shareholder proposal in any proxy statement or form of proxy used by
the Corporation in connection with any meeting of shareholders. Nothing in
this Bylaw shall be deemed to affect the rights of any shareholder to
request inclusion of a proposal in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
2.11.6 Chairperson's Statement. The Chairperson of the meeting shall
have the authority to determine and declare to the meeting whether any
business proposed to be brought before the meeting was properly brought
before the meeting in accordance with the provisions of this Section 2.11
and, if any proposed business is not in compliance with this Section 2.11,
to declare that such defective proposal shall be disregarded.
2.11.7 Public Announcement. For purposes of this Section 2.11, "public
announcement" shall mean the disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934.
3. DIRECTORS OF THE CORPORATION
3.1 Powers of Directors. Subject to the limitations of the Articles of
Incorporation, the Bylaws, and the California General Corporation Law as to
action requiring the authorization or approval of the shareholders, the
outstanding shares, or less than a majority vote of the preferred shares, all
corporate powers shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed by, the Board of
Directors. The Board may delegate the management of the day-to-day operation of
the business to a management company or other person, provided that the business
and the affairs of the Corporation shall be managed, and all corporation powers
shall be exercised under, the ultimate direction of the Board.
3.2 Number and Qualification of Directors.
3.2.1 Authorized Number. The number of directors who may be authorized
to serve on the Board of Directors of the Corporation shall be no less than
nine (9) nor more than seventeen (17). Until a different number within the
foregoing limits is specified in an amendment to this Section 3.2.1 duly
adopted by the Board of Directors or the shareholders, the exact number of
authorized directors shall be fifteen (15).
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3.2.2 Change in Authorized Number. Within the limits specified in
Section 3.2.1, above, a change in the exact number of authorized directors
of the Corporation may be made by an amendment to said Section 3.2.1 duly
approved by the Board of Directors or the shareholders. A change in the
minimum or maximum number of directors who may be authorized to serve on
the Board of Directors, or a change from a variable to a fixed Board, may
be made only by amendment of the Articles of Incorporation or by a Bylaw
amending this Section 3.2 duly adopted by the vote or written consent of
the holders of a majority of the outstanding shares entitled to vote.
Unless the Corporation then has less than three (3) shareholders of record,
the authorized number of directors shall not be reduced below three (3),
and no Bylaw or amendment of the Articles reducing the authorized number of
directors to less than five (5) shall 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% of the
outstanding shares entitled to vote.
3.3 Election of Directors; Term.
3.3.1 Term of Office. The directors shall be elected at each annual
meeting of the shareholders to hold office until the next annual meeting.
Each director, including a director elected to fill a vacancy, shall hold
office until the expiration of the term for which elected and until a
successor has been elected and qualified.
3.3.2 Reduction in Number of Directors. No reduction in the authorized
number of directors shall have the effect of removing any director prior to
the expiration of that director's term of office.
3.4 Resignation and Removal of Directors.
3.4.1 Resignation. Any director may resign by giving written notice of
resignation to the Chairperson of the Board, if any, or to the President,
the Secretary or the Board of Directors. If any director tenders a
resignation to take effect at a future time, the Board or the shareholders
shall have the power to elect a successor to take office at such time as
the resignation shall become effective.
3.4.2 Removal. The entire Board of Directors, or any individual
director, may be removed from office in the manner provided by the
California General Corporation Law.
3.5 Vacancies on Board of Directors.
3.5.1 Events Creating Vacancies. A vacancy in the Board of Directors
shall be deemed to exist in the case of the death, resignation or removal
of any director, if a director has been declared of unsound mind by order
of Court or convicted of a felony, if the authorized number of directors is
increased, or if the shareholders shall fail, either at a meeting at which
an increase in the number of directors is authorized or at an adjournment
thereof, or at any other time, to elect the full number of authorized
directors.
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3.5.2 Filling of Vacancies on Board. Vacancies in the Board of
Directors, except for a vacancy created by the removal of a director, may
be filled by a majority of the remaining directors, whether or not less
than a quorum, or by a sole remaining director, and each director so
elected shall hold office until the next annual meeting of the shareholders
and until a successor has been elected and qualified. A vacancy created by
the removal of a director may be filled only by a vote of the majority of
the shares entitled to vote at a duly held meeting of the shareholders. The
shareholders may at any time elect directors to fill any other vacancies
not filled by the directors and any such election made by written consent
shall require the consent of a majority of the outstanding shares entitled
to vote.
3.6 Nomination of Directors.
3.6.1 Authority to Make Nominations. Nominations for directors may be
made by the Board of Directors or by any holder of record of any
outstanding class of capital stock of the Corporation entitled to vote for
the election of directors.
3.6.2 Nomination Procedure. At annual meetings and special meetings of
the shareholders called by the Board of Directors, nominations for
directors, other than those approved by the Board of Directors of the
Corporation, shall be made in writing and shall be delivered or mailed to
the Secretary of the Corporation at its principal place of business not
less than fourteen (14) days nor more than fifty (50) days prior to
scheduled date of the meeting; provided, however, that if less than
twenty-one (21) days' notice of the meeting is given to the shareholders,
such nominations shall be mailed or delivered to the Secretary of the
Corporation not later than the close of business on the seventh (7th) day
following the day on which notice of the meeting was mailed to the
shareholders. Any such notification shall (a) be accompanied by a written
statement signed and acknowledged by the nominee consenting to his or her
nomination and agreeing to serve as director if elected by the
shareholders, and (b) shall contain the following information, to the
extent known to the nominating shareholder:
A. The name and address of each proposed nominee;
B. The total number of shares of capital stock of the Corporation
expected to be voted for each proposed nominee;
C. The principal occupation of each proposed nominee;
D. The name and residence address of the nominating shareholder;
and
E. The number of shares of capital stock of the Corporation owned
by the nominating shareholder.
3.6.3 Defective Nominations. Nominations not made in accordance with
this Section 3.6 may be disregarded by the Chairperson of the meeting, at
his or her discretion, and upon the instructions of the Chairperson, the
inspectors of the election may disregard any votes cast for any such
nominee.
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3.6.4 Exceptions. The provisions of this Section 3.6 shall apply only
to nominations for directors who are to be elected at the annual meeting or
any special meeting of shareholders called by the Board of Directors, and
this Section shall not apply to (a) nominations for directors who are to be
elected at a special meeting of shareholder properly called by the
shareholders at which directors are to be elected pursuant to Section 305
of the California Corporations Code to fill a vacancy on the Board of
Directors, or (b) the election of directors by the written consent of the
shareholders pursuant to Section 603 of the California Corporations Code.
3.7 Meetings of the Board of Directors.
3.7.1 Place of Meeting. Meetings of the Board of Directors shall be
held at the principal executive office of the Corporation, or at such other
place as may be designated from time to time by resolution of the Board of
Directors or as may be designated in the notice of the meeting.
3.7.2 Annual Meetings. An annual meeting of the Board of Directors
shall be held without notice at the place of the annual meeting of
shareholders immediately following the adjournment of the annual
shareholders meeting for the purpose of organizing the Board, electing any
officers desired to be elected, and transacting such other business as may
properly come before the meeting.
3.7.3 Other Regular Meetings. Other regular meetings of the Board of
Directors shall be held without notice at such time as may be designated
from time to time by resolution of the Board of Directors.
3.7.4 Special Meetings; Notices.
A. Special meetings of the Board of Directors may be called for
any purpose at any time by the Chairperson of the Board, the
President, the Secretary, or by any two (2) directors.
B. Notice of the time and place of special meetings shall be
delivered or communicated personally to each director by telephone, or
by telegraph or mail, charges prepaid, addressed to each director at
the address of that director as it is shown upon the records of the
Corporation, or if such address is not readily ascertainable, at the
place in which the meetings of the directors are regularly held.
Notice by mail shall be deposited in the United States mail at least
four (4) days prior to the scheduled time of the meeting and shall be
deemed given when so deposited. Notice by telegraph shall be delivered
to the telegraph company at least forty-eight (48) hours prior to the
scheduled time of the meeting and shall be deemed given when so
delivered. Should notice be delivered personally or by telephone, it
shall be so delivered at least twenty-four (24) hours prior to the
scheduled time of the meeting. Notice given by mail, telegraph or by
delivery in person within the time provided by this Section shall be
due, legal and personal notice to the director to whom it is directed.
Any oral notice given within the time provided by this Section shall
be due, legal and personal notice if communicated to a person at the
office of the director for whom intended in the reasonable belief that
such person will promptly communicate such notice to that director.
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3.7.5 Conference Telephone Meetings. Any meeting, regular or special,
may be held by conference telephone or similar communications equipment as
long as all directors participating in the meeting can hear one another,
and any such participation shall constitute presence in person at the
meeting.
3.7.6 Waiver of Notice. The transactions of any meeting of the Board
of Directors, however called and noticed or wherever held, shall be as
valid as action taken at a meeting regularly called and noticed if all the
directors are present and sign a written waiver of notice and consent to
holding such meeting, or if a majority of the directors are present and all
directors either before or after the meeting, sign a written waiver of
notice, or a consent to holding the meeting, or an approval of the minutes
thereof. All such waivers, consents, or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Notice of a
meeting need not be given to a director who attends the meeting without
protesting the lack of notice to such director, either prior thereto or at
the commencement of such meeting.
3.7.7 Quorum Requirements. A majority of the exact number of
authorized directors fixed in, or by the Board of Directors pursuant to
Section 3.2.1, shall be necessary to constitute a quorum for the
transaction of business (other than to adjourn) and the action of a
majority of the directors present at a meeting duly held at which a quorum
is present shall be valid as the act of the Board of Directors unless a
greater number is required by the Articles of Incorporation, these Bylaws,
or the California General Corporation Law. A meeting at which a quorum
initially is present may continue to transact business, notwithstanding the
withdrawal of one or mare directors, if any action taken is approved by at
least a majority of the required quorum for that meeting.
3.7.8 Adjourned Meetings. A majority of the directors present, whether
or not a quorum, may adjourn from time to time by fixing a new time and
place prior to taking adjournment, but if any meeting is adjourned for more
than twenty-four (24) hours, notice of any adjournment to another time or
place shall be given, prior to the reconvening of the adjourned meeting, to
any directors not present at the time the adjournment was taken.
3.8 Director Action Without a Meeting. Any action required or permitted to
be taken by the Board of Directors may be taken without a meeting, if all
members of the Board shall individually or collectively consent in writing to
that action. Each such written consent shall be filed with the minutes of the
proceedings of the Board, and shall have the same force and effect as a
unanimous vote of the directors.
3.9 Committees of Directors.
3.9.1 Appointment of Committees. The Board of Directors, by
resolutions adopted by a majority of the authorized number of directors,
may establish one or more committees (including specifically but without
limitation an Executive Committee and an Audit Committee), each consisting
of two or more directors, to serve at the pleasure of the Board, and may
designate one or more alternate directors to replace any absent committee
members at any meeting of a committee. The Board of Directors may delegate
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to any such committee any of the powers and authority of the Board of
Directors in the business and affairs of the Corporation, except those
powers specifically reserved to the Board of Directors by the provisions of
Section 311 of the California General Corporation Law.
3.9.2 Meetings and Actions of Committees. Meetings of committees shall
be held and actions of committees shall be taken in the same manner as is
provided by these Bylaws for meetings of directors, except that the time of
regular meetings of committees may be determined either by resolution of
the Board of Directors or by the members of the committee. Alternate
committee members shall be entitled to attend all committee meetings and to
receive notice of special meetings of the committee. The Board of Directors
may adopt rules for the governing of any committee not inconsistent with
the provisions of these Bylaws.
4. OFFICERS OF THE CORPORATION
4.1 Principal Officers. The principal officers of the Corporation shall
consist of a President, a Secretary and a Chief Financial Officer. At the
discretion of the Board of Directors, the Corporation may also appoint a
Chairperson of the Board, a Vice Chairperson of the Board, one or more
Vice-Presidents or Assistant Vice-Presidents, and such subordinate officers
pursuant to Section 4.3 of these Bylaws.
4.2 Election; Qualification and Tenure.
4.2.1 Election of Officers. After their election, the Board of
Directors shall meet and organize by electing a President, a Secretary and
a Chief Financial Officer, who may be, but need not be, members of the
Board of Directors, and such additional officers provided by these Bylaws
as the Board of Directors shall determine to be appropriate. Any two or
more offices may be held by the same person.
4.2.2 Term of Employment. Each officer of this Corporation shall serve
at the pleasure of the Board of Directors, subject, however, to any rights
of an officer under any contract of employment with the Corporation.
4.3 Subordinate Officers. Subordinate officers, including Assistant
Secretaries, Treasurers and Assistant Treasurers, and such other officers or
agents as the business of the Corporation may require, may from time to time be
appointed by the Board of Directors, the President, or by any officer empowered
to do so by the Board of Directors, and shall have such authority and shall
perform such duties as are provided in the Bylaws or as the Board of Directors
or the President may from time to time determine.
4.4 Resignation and Removal of Officers.
4.4.1 Removal. Any officer may be removed, either with or without
cause, by a majority of the directors at the time in office, at any regular
or special meeting of the Board, or, except in the case of an officer
appointed by the Board of Directors, by any officer upon whom the power of
removal has been conferred by the Board of Directors.
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4.4.2 Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President, or to the
Secretary or an Assistant Secretary of the Corporation. Any such
resignation shall take effect upon receipt of such notice or at any later
time specified therein, and unless otherwise specified in the notice, the
acceptance of such resignation shall not be necessary to make it effective.
4.4.3 Contractual Obligations. The resignation or removal of an
officer shall not prejudice the rights of the Corporation or of the officer
under any contract of employment between the officer and the Corporation.
4.5 Vacancies in Offices. Any vacancy in an office occurring because of
death, resignation, removal, disqualification or any other cause may be filled
by the Board of Directors at any regular or special meeting of the Board, or in
such manner as may otherwise be prescribed in the Bylaws for regular appointment
to the vacant office.
4.6 Responsibilities of Officers.
4.6.1 Chairperson of the Board. The Chairperson of the Board, if there
be one, shall, when present, preside at all meetings of the shareholders
and of the Board of Directors, and shall have such other powers and duties
as from time to time shall be prescribed by the Board of Directors. If
there is no President, the Chairperson of the Board, if any, shall be the
Chief Executive Officer and general manager of the Corporation and shall
have the powers and duties prescribed in Section 4.6.2, below.
4.6.2 President. The President shall be the general manager of the
Corporation and, subject to the control of the Board of Directors, shall be
the chief executive officer of the Corporation and shall have general
supervision, direction and control of the business and officers of the
Corporation. In the absence of the Chairperson of the Board, or if there be
none, the President shall preside at all meetings of the shareholders and
of the Board of Directors, but shall have no vote at any such meetings
unless the President is also a director. The President shall have the
general powers and duties of management customarily vested in the office of
President of a corporation, and shall have such other powers and duties as
may be prescribed by the Board of Directors.
4.6.3 Vice-Presidents. In the absence or the disability of the
President, and the Chairperson of the Board, if any, 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 President, shall perform the
duties and exercise the powers of the President and when so acting shall
have all of the powers of and shall be subject to all of the restrictions
upon the President. The Vice-Presidents shall perform such other duties and
have such other powers as the Board of Directors and the President shall
prescribe.
4.6.4 Secretary. The Secretary shall have such powers and shall
perform such duties as may be prescribed by the Board of Directors and the
President and shall, in addition:
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A. Keep, or cause to be kept, at the principal executive office
or such other place as the Board of Directors may order, a book of all
minutes of all of the proceedings of its shareholders and the Board of
Directors and committees of the Board, with the time and place of
holding of meetings, whether regular or special, and if special, how
authorized, the notice thereof given, the names of those present at
directors' meetings, the number of shares present or represented at
shareholders' meetings, and the proceedings thereof;
B. Keep, or cause to be kept, at the principal executive office
or at the office of the Corporation's transfer agent, at share
register or a duplicate share register, showing classes of shares held
by each, the number and date of certificates issued for the same, and
the number and date of cancellation of every certificate surrendered
for cancellation; and
C. Give, or cause to be given, notice of all the meetings of the
shareholders and of the Board of Directors required by the Bylaws or
by law to be given; and
D. Keep the seal of the Corporation if one be adopted, and affix
the seal to all documents requiring a seal.
4.6.5 Assistant Secretary. The Assistant Secretary, if provided for
and appointed, shall have all the rights, duties, powers and privileges of
the Secretary and may act in the place and stead of the Secretary whenever
necessary or desirable.
4.6.6 Chief Financial Officer. The Chief Financial Officer shall have
such powers and perform such duties as may be prescribed by the Board of
Directors and the President and shall, in addition:
A. Keep and maintain or cause to be kept and maintained, adequate
and correct accounts of the properties and business transactions of
the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus and shares;
B. Deposit all moneys and other valuables in the name and to the
credit of the Corporation with such depositories as may be designated
by the Board of Directors; and
C. Disburse the funds of the Corporation as may be ordered by the
Board of Directors, and render to the President and the directors,
whenever they so request, an account of all transactions as Chief
Financial Officer and of the financial condition of the Corporation.
5. COMPENSATION; INDEMNIFICATION
5.1 Directors' Fees and Expenses.
5.1.1 Compensation. Directors and committee members may receive such
compensation, if any, for their services, and may be reimbursed for
expenses incurred by them on behalf of the Corporation, in the manner and
to the extent provided in resolutions duly adopted by the Board of
Directors.
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5.1.2 Officer Compensation. This Section 5.1 shall not preclude any
director from also serving as an officer, employee or agent of the
Corporation and receiving compensation from the Corporation for such
services.
5.2 Compensation of Officers. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board of Directors or by the
President, subject to any rights of the officer pursuant to any employment
contract between that officer and the Corporation.
5.3 Indemnification of Agents.
5.3.1 Right to Indemnify. The Corporation shall have the power and
authority to indemnify any director, officer, committee member or other
representative, employee or agent of the Corporation (as that latter term
is defined in Section 317 of the California General Corporation Law) in the
manner and to the extent provided in Section 317 of the California General
Corporation Law. The indemnification provided for by this Section shall not
be deemed exclusive of any other rights which those seeking indemnification
may have including, but not limited to, any rights granted under any
agreement, insurance policy, or a vote of shareholders or disinterested
directors.
5.3.2 Liability Insurance. The Corporation shall have the power to
purchase and maintain insurance on behalf of any of its directors,
officers, employees or agents insuring against liability asserted against
or incurred by any such person in such capacity, whether or not the
Corporation would be empowered to indemnify such person under the
provisions of this Section 5.
6. CORPORATE RECORDS AND REPORTS
6.1 Corporate Records. The Corporation shall keep and maintain all of the
books and records required by this Section 6.1.
6.1.1 Record of Shareholders. A record of shareholders of the
Corporation, giving the names and addresses of all shareholders and the
number and class of shares held by each of them, shall be kept at the
Corporation's principal executive office, or at the office of its transfer
agent or registrar if one be appointed. The records of the Corporation's
shareholders shall be open to the shareholders for inspection in the manner
and to the extent provided by Section 1600 of the California General
Corporation Law.
6.1.2 Corporate Bylaws. The original or a copy of these Bylaws, as
amended to date, shall be kept at the principal executive office of the
Corporation or, if such office is not in the State of California, at its
principal business office in California, and shall be open to inspection by
the shareholders at any reasonable time during regular business hours. If
the Corporation has no principal executive or business office in
California, the Secretary shall furnish a copy of the Bylaws, as amended to
date, to any shareholder who makes a written request to inspect the Bylaws.
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6.1.3 Minutes and Accounting Records. Accounting books and records of
the business and properties of the Corporation, and minutes of the
proceedings of its shareholders, the Board of Directors and its committees
shall be kept at the principal executive office of the Corporation or at
such other location as may be fixed by the Board of Directors from time to
time. All such minutes, accounting books and records shall be open to
inspection upon the written request of a shareholder at any reasonable time
during regular business hours for a purpose reasonably related to the
interests of the requesting shareholder in accordance with the provisions
of Section 1601 of the California General Corporation Law.
6.2 Inspection of Books and Records.
6.2.1 Inspection by Directors. Every director shall have the absolute
right to inspect all books, records and documents of the Corporation and
each of its subsidiaries, and to inspect their respective properties, in
the manner provided by Section 1602 of the California General Corporation
Law.
6.2.2 Exercise of Inspection Right. Shareholders and directors may
exercise their right of inspection either in person or by an agent or
attorney acting on their behalf. The right to inspect any records or books
of the Corporation shall include also the right to copy and to make
extracts of such books and records.
6.3 Annual Report to Shareholders. For so long as the Corporation shall
have more than 100 shareholders of record (determined as provided in Section 605
of the General Corporation Law), the Board of Directors of the Corporation shall
cause an annual report to be prepared and delivered to shareholders in
accordance with the provisions of Section 1501 of the California General
Corporation Law, within the time frame required by that Section. If no annual
report for a previous fiscal year was sent to shareholders, the Corporation
shall, upon the written request of any shareholder made more than 120 days after
the close of that fiscal year, deliver or mail to the person making the request
within 30 days thereafter the financial statements required by Section 1501(a)
of the California General Corporation Law.
6.4 Financial Statements.
6.4.1 Right to Obtain Financial Statement. Upon the written request of
any one or more shareholders holding at least five percent (5%) of the
outstanding shares of any class of its stock, the Corporation shall furnish
an income statement for the Corporation's most recent fiscal year ended
more than one hundred and twenty (120) days prior to the date of the
request, and for the most recent interim quarterly or semiannual period
ended more than thirty (30) days prior to the date of the request. The
Chief Financial Officer shall cause the requested income statements to be
prepared, if not previously prepared, and delivered to any requesting
shareholder entitled to do so within thirty (30) days after receipt of any
such request.
6.4.2 Contents of Financial Statement. If an annual report for the
last fiscal year has not been sent to shareholders, the income statement
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prepared by the Corporation at the request of shareholders entitled to do
so shall be accompanied by a balance sheet as of the end of that period and
a statement of changes in financial position for the fiscal year.
6.5 Audit. The quarterly income statements and balance sheets referred to
in Sections 6.3 and 6.4, above, shall be accompanied by the report, if any, of
any independent accountants engaged by the Corporation or by a certificate of an
authorized officer of the Corporation that the income statements and balance
sheets were prepared without audit from the books and records of the
Corporation.
7. CERTIFICATES AND TRANSFER OF SHARES
7.1 Certificates for Shares.
7.1.1 Form of Certificate. Certificates for shares shall be in such
form as the Board of Directors may prescribe, certifying the number of
shares and the classes or series of shares owned by the shareholder, and
containing a statement setting forth the office or agency of the
Corporation from which the shareholder may obtain, upon request and without
charge, a copy of the statement of any rights, preferences, privileges, and
restrictions granted to or imposed upon each class or series of shares
authorized to be issued and upon the holders thereof, and any other legend
or statement as may be required by Section 418 of the California General
Corporation Law and the Federal and California corporate securities laws.
Notwithstanding the foregoing provisions of this Section 7.1.1 the Board of
Directors may adopt a system of issuance, recordation and transfer of the
Corporation's shares by electronic or other means not involving any
issuance of certificates, provided such system complies with the California
General Corporation Law.
7.1.2 Officer Signatures. Every certificate for shares shall be signed
in the name of the Corporation by the Chairperson of the Board or by the
President or Vice-President and the Chief Financial Officer or Assistant
Chief Financial Officer or the Secretary or an Assistant Secretary. Any or
all of the signatures on the certificate may be by facsimile.
7.2 Transfer of Shares on Books. Upon surrender to the Secretary or an
Assistant Secretary or to the transfer agent of the Corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
7.3 Lost or Destroyed Certificates. A new certificate may be issued without
the surrender and cancellation of a prior certificate that is lost, apparently
destroyed or wrongfully taken when: (a) the request for the issuance of a new
certificate is made within a reasonable time after the owner of the prior
certificate has notice of its loss, destruction or theft; and (b) such request
is received by the Corporation prior to its receipt of notice that the prior
certificate has been acquired by a bona fide purchaser; and (c) the owner of the
prior certificate gives an indemnity bond or other adequate security sufficient
in the judgment of the Board of Directors to indemnify the Corporation against
any claim, expense or liability resulting from the issuance of a new
certificate. Upon the issuance of a new certificate, the rights and liabilities
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of the Corporation, and of the holders of the old and new certificates, shall be
governed by the provisions of Sections 8104, 8404 and 8405 of the California
Commercial Code.
7.4 Transfer Agent and Registrars. The Board of Directors may appoint one
or more transfer agents or transfer clerks, and one or more registrars, which
shall be banks or trust companies, either domestic or foreign, at such times and
places as the Board of Directors determines to be appropriate.
8. GENERAL CORPORATE MATTERS
8.1 Corporate Seal. The Board of Directors may, in its discretion, adopt a
corporate seal, circular in form and having inscribed thereon the name of the
Corporation and the date and state of its incorporation.
8.2 Record Date. The Board of Directors may fix, in advance, a record date
for the purpose of determining shareholders entitled to notice of and to vote at
any meeting of shareholders, to consent to corporate action in writing without a
meeting, to receive any report, to receive any dividend or other distribution or
allotment of any right, to exercise rights with respect to any change,
conversion or exchange of shares, or to exercise any rights with respect to any
other lawful action. The record date so fixed shall not be more than sixty (60)
days prior to any event for the purpose for which it is fixed, and shall not be
less than ten (10) days prior to the date of any meeting of the shareholders. If
no such record date is fixed by the Board of Directors, then the record date
shall be that date prescribed by Section 701 of the California General
Corporation Law.
8.3 Voting of Shares in Other Corporations. Shares standing in the name of
this Corporation may be voted or represented and all rights incident thereto may
be exercised on behalf of the Corporation by the President or, if he is unable
or refuses to act, by a Vice-President or by such other person as the Board of
Directors may designate.
8.4 Definitions and Interpretation. Unless the context requires otherwise,
these Bylaws and the words and phrases included in them shall be construed and
interpreted in accordance with the general provisions, rules of construction and
definitions in the California General Corporation Law. Unless expressly provided
otherwise, every reference in these Bylaws to the provisions of the California
General Corporation Law shall refer to such provisions as they exist from time
to time, or to any successor provision thereto.
9. AMENDMENT TO BYLAWS
9.1 Amendments By Shareholders. These Bylaws may be repealed or amended, or
new Bylaws may be adopted, by the affirmative vote of a majority of the
outstanding shares entitled to vote, subject, however, to the restrictions on
such amendments imposed by the California General Corporation Law, other
applicable state or federal law, the Articles of Incorporation, or other
provisions of these Bylaws.
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9.2 Amendment By Directors. Subject to the right of shareholders as
provided in Section 9.1 to adopt, amend or repeal Bylaws, and subject to Section
212 of the California Corporations Code, the Board of Directors may adopt, amend
or repeal Bylaws; provided, however, that no Bylaw or amendment changing the
maximum or minimum number of directors of the Corporation, or changing the
number of authorized directors from a fixed to a variable number or vice versa,
shall be adopted other than in the manner provided by Section 3.2 of these
Bylaws.
9.3 Record of Amendments. Any amendment or new Bylaw adopted by the
shareholders or the Board of Directors shall be copied in the appropriate place
in the minute book with the original Bylaws, and the repeal of any Bylaw shall
be entered on the original Bylaws together with the date and manner of such
repeal. The original or a copy of the Bylaws as amended to date shall be open to
inspection by the shareholders at the Corporation's principal office in
California at all reasonable times during office hours.
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CERTIFICATE OF SECRETARY
KNOW ALL PERSONS BY THESE PRESENTS:
The undersigned, being the Secretary of PACIFIC CAPITAL BANCORP, a
California corporation (the "Corporation"), does hereby certify that the
foregoing Amended and Restated Bylaws were duly adopted by the Board of
Directors of the Corporation at a meeting thereof duly called and held on the
26th day of January, 1999, and accurately reflect all amendments of the Bylaws
that were adopted on or before such date.
IN WITNESS WHEREOF, the undersigned has executed this certificate and
affixed the seal of the Corporation on this 27th day of January, 1999.
/s/ Jay D. Smith
----------------------------------
Jay D. Smith, Corporate Secretary
(SEAL)
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Section Page
TABLE OF CONTENTS
1. NAME; EXECUTIVE OFFICES................................................1
1.1 Name of Corporation..........................................1
1.2 Principal Office.............................................1
1.3 Additional or New Offices....................................1
2. MEETINGS OF THE SHAREHOLDERS...........................................1
2.1 Place of Meeting.............................................1
2.2 Annual Meetings..............................................1
2.3 Special Meetings.............................................1
2.4 Notice of Meetings...........................................2
2.5 Quorum Requirements..........................................3
2.6 Adjourned Meetings...........................................3
2.7 Voting Rights................................................4
2.8 Voting by Proxy..............................................4
2.9 Inspectors of Election.......................................4
2.10 Shareholder Action Without a Meeting.........................5
2.11 Shareholder Proposals........................................8
3. DIRECTORS OF THE CORPORATION...........................................9
3.1 Powers of Directors..........................................9
3.2 Number and Qualification of Directors.......................10
3.3 Election of Directors; Term.................................10
3.4 Resignation and Removal of Directors........................10
3.5 Vacancies on Board of Directors.............................11
3.6 Nomination of Directors.....................................11
3.7 Meetings of the Board of Directors..........................12
3.8 Director Action Without a Meeting...........................14
3.9 Committees of Directors.....................................14
4. OFFICERS OF THE CORPORATION...........................................14
4.1 Principal Officers..........................................14
4.2 Election; Qualification and Tenure..........................15
4.3 Subordinate Officers........................................15
4.4 Resignation and Removal of Officers.........................15
4.5 Vacancies in Offices........................................15
4.6 Responsibilities of Officers................................16
5. COMPENSATION; INDEMNIFICATION.........................................17
5.1 Directors' Fees and Expenses................................17
5.2 Compensation of Officers....................................17
5.3 Indemnification of Agents...................................18
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TABLE OF CONTENTS (Cont'd)
Section Page
6. CORPORATE RECORDS AND REPORTS.........................................18
6.1 Corporate Records...........................................18
6.2 Inspection of Books and Records.............................19
6.3 Annual Report to Shareholders...............................19
6.4 Financial Statements........................................19
6.5 Audit.......................................................19
7. CERTIFICATES AND TRANSFER OF SHARES...................................20
7.1 Certificates for Shares.....................................20
7.2 Transfer of Shares on Books.................................20
7.3 Lost or Destroyed Certificates..............................20
7.4 Transfer Agent and Registrars...............................21
8. GENERAL CORPORATE MATTERS.............................................21
8.1 Corporate Seal..............................................21
8.2 Record Date.................................................21
8.3 Voting of Shares in Other Corporations......................21
8.4 Definitions and Interpretation..............................21
9. AMENDMENT TO BYLAWS...................................................21
9.1 Amendments By Shareholders..................................21
9.2 Amendment By Directors......................................22
9.3 Record of Amendments........................................22
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Exhibit 5.1
[Pacific Capital Corporation Letterhead]
March 15, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Reference is made to the registration under the Securities Act of 1933 (the
"Act") of an aggregate of 550,140 shares (the "Shares") of the Company's common
stock, no par value (the "Common Stock") of which (i) 81,630 shares of Common
Stock are to offered upon the terms and subject to the conditions set forth in
the Pacific Capital Bancorp Directors' Stock Option Plan (the "Directors'
Plan"), (ii) 455,087 shares of Common Stock are to offered upon the terms and
subject to the conditions set forth in the Pacific Capital Bancorp 1994 Stock
Option Plan (the "1994 Plan"), (iii) 13,423 shares of Common Stock are to
offered upon the terms and subject to the conditions set forth in the Pacific
Capital Bancorp Amended and Restated 1984 Stock Option Plan (the "1984 Plan" and
together with the Directors' Plan and the 1994 Plan, collectively referred to as
the "Plans").
I have examined or considered originals or copies, certified or otherwise
identified to my satisfaction, of the Certificate of Restatement of Articles of
Incorporation of the Company, the Amended and Restated Bylaws of the Company,
the Plans, records of relevant corporate proceedings with respect to the
offering of the Shares and such other documents, instruments and corporate
records as I have deemed necessary or appropriate for the expression of the
opinions contained herein. I have also reviewed the Company's Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission with respect to the Shares.
I have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to me as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to me as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that I have examined.
Based on the foregoing and having regard for such legal consideration as I
have deemed relevant, I am of the opinion that the Shares have been duly and
validly authorized for issuance and, when issued in accordance with the terms of
the applicable Plan, will be duly and validly issued, fully paid and
nonassessable.
<PAGE>
The foregoing opinion is limited to the federal laws of the United States
of America and the California General Corporate Law, and I am expressing no
opinion as to the effect of the laws of any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
By:/s/ Jay D. Smith
--------------------
Jay D. Smith
General Counsel
Exhibit 23.2
[Letterhead of Arthur Andersen LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
January 30, 1998, included in Santa Barbara Bancorp's (now known as Pacific
Capital Bancorp) Form 10-K for the year ended December 31, 1997, and to all
references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
March 17, 1999
Exhibit 23.3
[Letterhead of KPMG LLP]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Pacific Capital Bancorp
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Pacific Capital Bancorp (formerly known as Santa Barbara Bancorp) of our
report dated January 23, 1998, relating to the consolidated balance sheets of
Pacific Capital Bancorp and subsidiaries (prior to its merger into Santa Barbara
Bancorp) as of December 31, 1997 and 1996, and the related consolidated
statements of income, shareholders' equity, and cash flows for each of the years
in the three-year period ended December 31, 1997.
/s/ KPMG LLP
KPMG LLP
Mountain View, California
March 15, 1999
