<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934
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Silicon Valley Bancshares
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(Exact name of registrant as specified in its charter)
Delaware 91-1962278
(State of Incorporation) (I.R.S. Employer Identification No.)
3003 Tasman Drive, Santa Clara, California 95054
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(Address of principal executive offices) (Zip Code)
JOHN C. DEAN
Chief Executive Officer
SILICON VALLEY BANCSHARES
3003 Tasman Drive, Santa Clara, California 95054
(408) 654-7400
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(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
A. Catherine Ngo, Esq.
Silicon Valley Bancshares
3003 Tasman Drive
Santa Clara, California 95054
(408) 654-7400
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ITEM 5. OTHER MATTERS
Effective April 23, 1999, (the "Effective Date"), the Registrant has
changed its state of incorporation from California to Delaware. This change in
its state of incorporation was approved by the holders of a majority of the
Registrant's outstanding shares of Common Stock at the Registrant's annual
meeting of shareholders on April 15, 1999. At the time of reincorporation in
the State of Delaware, the Registrant merged into and is continuing its business
as a Delaware corporation. The reincorporation will not result in any change in
the Registrant's business, assets or liabilities, will not cause the
Registrant's corporate headquarters to be moved and will not result in any
relocation of management or other employees. Shareholders of the Registrant are
not required to undertake an exchange of the Registrant's shares. As of the
Effective Date, certificates for the Registrant's shares automatically represent
an equal number of shares in the Delaware company.
ITEM 7. EXHIBITS
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
2.1 Agreement and Plan of Merger dated April 21, 1999 by and between
Silicon Valley Bancshares, a California corporation, and Silicon
Valley Bancshares, Inc., a Delaware corporation
4.1 Certificate of Incorporation of Silicon Valley Bancshares, Inc,
as filed with the Delaware Secretary of State on March 22, 1999
4.2 Bylaws of the Company, as adopted on April 15, 1999
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Silicon Valley Bancshares
Date: April 22, 1999 By: /s/ Christopher T. Lutes
-------------- ------------------------
Christopher T. Lutes
Chief Financial Officer
2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2.1 Agreement and Plan of Merger dated April 21, 1999, by and between
Silicon Valley Bancshares, a California corporation, and Silicon
Valley Bancshares, Inc., a Delaware corporation
4.1 Certificate of Incorporation of Silicon Valley Bancshares, Inc,
as filed with the Delaware Secretary of State on March 22, 1999
4.2 Bylaws of the Company, as adopted on April 15, 1999
</TABLE>
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EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER is dated as of April 21, 1999 between
SILICON VALLEY BANCSHARES, INC., a Delaware corporation ("Bancshares Delaware"
or the "Surviving Corporation") and SILICON VALLEY BANCSHARES, a California
corporation ("Bancshares California"). (Bancshares Delaware and Bancshares
California are sometimes referred to herein as the "Constituent Corporations.")
W I T N E S S E T H:
WHEREAS, Bancshares Delaware is a corporation duly organized and existing
under the laws of the State of Delaware, having been incorporated on March 22,
1999, by a Certificate of Incorporation filed with the Secretary of State and
recorded in the Office of the Recorder of Deeds of the County of New Castle,
Delaware, on that date; the registered office of Bancshares Delaware in the
State of Delaware is located at 1013 Centre Road, in the city of Wilmington,
County of New Castle, and the name of its registered agent at such office is
Corporate Service Company.
WHEREAS, Bancshares California is a corporation duly organized and existing
under the laws of the State of California, having been incorporated on April 23,
1982, by Articles of Incorporation filed with the Secretary of State of
California on that date; the principal business office of Bancshares California
in the State of California is located at 3003 Tasman Drive, Santa Clara,
California 95054.
WHEREAS, Bancshares Delaware has an authorized capitalization consisting of
60,000,000 shares of Common Stock, par value $.001 per share ("Bancshares
Delaware Common Stock"), of which 1,000 shares are issued and outstanding as of
the date hereof and owned of record by Bancshares California, and 20,000,000
shares of Preferred Stock, $.001 par value per share, none of which are issued
and outstanding as of the date hereof.
WHEREAS, Bancshares California has an authorized capitalization consisting
of 60,000,000 shares of Common Stock, no par value ("Bancshares California
Common Stock"), of which 20,759,816 shares are issued and are outstanding as of
the date hereof, and 20,000,000 shares of Preferred Stock, no par value, none of
which are issued and outstanding as of the date hereof.
WHEREAS, the Boards of Directors of Bancshares Delaware and Bancshares
California deem it desirable, upon the terms and subject to the conditions
herein stated, that Bancshares California be merged with and into Bancshares
Delaware and that Bancshares Delaware be the Surviving Corporation, that each
share of Bancshares California Common Stock outstanding on the date hereof be
converted into the right to receive one share of Bancshares Delaware Common
Stock.
NOW, THEREFORE, it is agreed as follows:
A G R E E M E N T
1. MERGER. At the Effective Time of the Merger (as hereinafter defined),
Bancshares California shall be merged with and into Bancshares Delaware with
Bancshares Delaware as the Surviving Corporation and the separate corporate
existence of Bancshares California shall cease.
2. CONVERSION OF SHARES. At the Effective Time of the Merger, by virtue
of the merger and without any action on the part of the holder thereof,
4
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(a) Each then outstanding share of Bancshares California Common Stock
shall, be converted into the right to receive one (1) share of Bancshares
Delaware Common Stock, $.001 par value per share.
(b) The 1,000 outstanding shares of Bancshares Delaware Common Stock
owned by Bancshares California shall be canceled and retired and shall resume
the statues of authorized and unissued shares of Bancshares Delaware.
3. EFFECTIVE TIME. The merger shall become effective at the time and date
specified in the Certificate of Merger filed with the Secretary of State of the
State of Delaware, herein sometimes referred to as the "Effective Time of the
Merger."
4. GOVERNING DOCUMENTS. The Certificate of Incorporation of Bancshares
Delaware in effect at the Effective Time of the Merger shall be the Certificate
of Incorporation of the Surviving Corporation, to remain unchanged until amended
in accordance with the provisions thereof and of applicable law. The Bylaws of
Bancshares Delaware in effect at the Effective Time of the Merger shall be the
Bylaws of the Surviving Corporation, to remain unchanged until amended in
accordance with the provisions thereof and of applicable law.
5. DIRECTORS AND OFFICERS. The directors and officers of Bancshares
California at the Effective Time of the Merger shall be the directors and
officers of the Surviving Corporation, to serve until such time as their
successors are elected or appointed in accordance with the Bylaws.
6. STOCK CERTIFICATES. At and after the Effective Time of the Merger, all
of the outstanding certificates which immediately prior to the Effective Time of
the Merger evidenced shares of Bancshares California Common Stock shall be
deemed for all purposes to evidence ownership of, and to represent, shares of
Bancshares Delaware Common Stock into which the Bancshares California Common
Stock formerly evidenced by such certificates have been converted as provided
herein. The registered owner on the books and records of Bancshares California
or its transfer agents of each outstanding certificate evidence shares of
Bancshares California Common Stock shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to Bancshares
Delaware or its transfer agents, have and be entitled to exercise any and all
voting and other rights with respect to, and to receive any and all dividends
and other distributions upon, the shares of Bancshares Delaware Common Stock of
which such person is the owner.
7. RIGHTS AND DUTIES OF SURVIVING CORPORATION. At and after the Effective
Time of the Merger, all rights, privileges, powers and franchises and all
property and assets of every kind and description of Bancshares California shall
be vested in and be held and enjoyed by Bancshares Delaware, without further act
or deed, and all the estates and interests of every kind of Bancshares
California, including all debts due to it, shall be as effectively the property
of Bancshares Delaware as they were of Bancshares California, and the title to
any real estate vested by deed or otherwise in Bancshares California shall not
revert or be in any way impaired by reason of the Merger; and all rights of
creditors and liens upon any property of Bancshares California shall be
preserved unimpaired and all debts, liabilities and duties of Bancshares
California shall be debts, liabilities and duties of Bancshares Delaware and may
be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
At and after the Effective Time of the Merger, each option or other
right to acquire shares of Bancshares California Common Stock granted under (a)
any employee option or benefit plan of Bancshares California or (b) any other
employee option or benefit plan of any subsidiary of Bancshares California for
which Bancshares California has agreed to provide shares of Bancshares
California Common Stock (the "Plans"), which is outstanding immediately prior to
the Effective Time of the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become an option
or right to acquire (and Bancshares Delaware hereby assumes the obligation to
deliver) the same number of shares of Bancshares Delaware Common Stock at the
same price per share, and upon the same terms and subject to the same
conditions, as set forth in each of
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such plans as in effect at the Effective Time of the Merger. The same number of
shares of Bancshares Delaware Common Stock shall be reserved for purposes of
such plans as is equal to the number of shares of Bancshares California Common
Stock reserved as of the Effective Time of the Merger. Bancshares Delaware
hereby assumes, as of the Effective Time of the Merger, (x) the Plans and all
obligations under the Plans, including the outstanding options or awards or
portions thereof granted pursuant to the Plans and (y) all obligations of
Bancshares California under all other benefit plans as of the Effective Time of
the Merger with respect to which employee rights or accrued benefits are
outstanding at the Effective Time of the Merger.
8. STOCKHOLDER APPROVALS. This Agreement shall be submitted to the
stockholders entitled to vote thereon of each of the Constituent Corporations as
provided by the applicable laws of the States of Delaware and California. If
this Agreement is duly adopted by the requisite votes of such stockholders and
is not terminated as contemplated by Section 10, a certificate of merger in
substantially the form attached hereto as Exhibit "A" ("Certificate of Merger"),
executed in accordance with the laws of the State of Delaware, shall be filed
with the Secretary of State of the State of Delaware.
9. AMENDMENT. At any time prior to the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, this Agreement may
be amended by the Boards of Directors of the Constituent Corporations to the
extent permitted by Delaware law notwithstanding favorable action on the merger
by the stockholders of either or both of the Constituent Corporations.
10. TERMINATION. At any time prior to the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, this Agreement may
be terminated and abandoned by the Board of Directors of either of the
Constituent Corporations, notwithstanding favorable action on the merger by the
stockholders of either or both of the Constituent Corporations.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed by its Chairman of the Board of Directors or its President or any duly
authorized officer and attested to by its Secretary or an Assistant Secretary,
all as of the date first above written.
ATTEST: SILICON VALLEY BANCSHARES, INC.
a Delaware Corporation
By: A. Catherine Ngo By: Christopher T. Lutes
------------------------------- --------------------
Its: Secretary Its: Chief Financial Officer
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ATTEST: SILICON VALLEY BANCSHARES,
a California Corporation
By: A. Catherine Ngo By: Christopher T. Lutes
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Its: Secretary Its: Chief Financial Officer
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CERTIFICATE OF THE SECRETARY
OF
SILICON VALLEY BANCSHARES, INC.
A DELAWARE CORPORATION
I, A. Catherine Ngo, the Secretary of SILICON VALLEY BANCSHARES, INC., a
Delaware Corporation (the "Corporation"), hereby certify that the Agreement
of Merger to which this certificate is attached, after having been first
duly signed on behalf of the Corporation by its authorized officer and
attested to by its Secretary, was duly approved and adopted by Silicon
Valley Bancshares, a California corporation and the sole stockholder of the
Corporation by a majority of the outstanding stock of the Corporation
entitled to vote thereon.
DATED: April 21, 1999
A. Catherine Ngo
-----------------
Secretary
<PAGE>
CERTIFICATE OF THE SECRETARY
OF
SILICON VALLEY BANCSHARES,
A CALIFORNIA CORPORATION
I, A. Catherine Ngo, the Secretary of SILICON VALLEY BANCSHARES, a
California Corporation (the "Corporation"), hereby certify that the Agreement of
Merger to which this certificate is attached, after having been first duly
signed on behalf of the Corporation by its authorized officer and attested to by
its Secretary, was duly approved and adopted by the stockholders of the
Corporation the holders of a majority of the outstanding stock of the
Corporation entitled to vote thereon.
DATED: April 21, 1999
A. Catherine Ngo
-----------------
Secretary
<PAGE>
CERTIFICATE OF MERGER
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the Constituent
Corporations of the merger is as follows:
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<CAPTION>
Name State of Incorporation
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<S> <C>
SILICON VALLEY BANCSHARES, INC. Delaware
SILICON VALLEY BANCSHARES California
</TABLE>
SECOND: That a Plan and Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the Constituent Corporations in accordance with the requirements of
Section 252 of the General Corporation Law of the State of Delaware.
THIRD: That the name of the Surviving Corporation of the merger is SILICON
VALLEY BANCSHARES, INC., a Delaware Corporation.
FOURTH: That the Certificate of Incorporation of SILICON VALLEY
BANCSHARES, INC., a Delaware corporation, the Surviving Corporation, shall be
the Certificate of Incorporation of the merged corporation. Upon the filing
of the Certificate of Merger, Article the FIRST of the Certificate of
Incorporation is amended to read: "The name of the corporation is SILICON
VALLEY BANCSHARES".
FIFTH: That the executed Plan and Agreement of Merger is on file at the
principal place of business of the Surviving Corporation. The address of the
principal place of business of the Surviving Corporation is 3003 Tasman Drive,
Santa Clara, California 95054.
SIXTH: That a copy of the Plan and Agreement of Merger will be furnished
by the Surviving Corporation, on request and without cost to any stockholder of
any Constituent Corporation.
SEVENTH: That Silicon Valley Bancshares, a California corporation, has an
authorized capitalization consisting of 60,000,000 shares of Common Stock, no
par value, of which 20,759,816 shares are issued and are outstanding as of the
date hereof, and 20,000,000 shares of Preferred Stock, no par value, none of
which are issued and outstanding as of the date hereof.
SILICON VALLEY BANCSHARES, INC.
A Delaware Corporation
By: Christopher T. Lutes
--------------------
Its: Chief Financial Officer
-------------------------
ATTEST:
BY: A. Catherine Ngo
----------------
Secretary
<PAGE>
EXHIBIT 4.1
CERTIFICATE OF INCORPORATION OF
SILICON VALLEY BANCSHARES, INC.
A Delaware Corporation
FIRST: The name of this corporation is SILICON VALLEY BANCSHARES, INC.
(the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, 19805. The name and address of the Corporation's registered agent in
the State of Delaware is Corporation Service Company, 1013 Centre Road,
Wilmington, Delaware 19805.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 80,000,000, consisting of
60,000,000 shares of Common Stock, $.001 par value per share ("Common Stock"),
and 20,000,000 shares of Preferred Stock, $.001 par value per share. The
Preferred Stock may be issued from time to time in one or more series. The
Board of Directors is hereby authorized to fix or alter the voting rights,
designations, powers, preferences and relative and other special rights, and the
qualifications, limitations and restrictions of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series, or any
of them, and to increase or decrease the number of shares of any such series
subsequent to the issue of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of that series.
FIFTH: The name and mailing address of the incorporator are as follows:
Eileen Lyon
11355 West Olympic Boulevard
Los Angeles, California 90064
SIXTH: The business and affairs of the Corporation shall be managed by and
under the direction of the Board of Directors. The exact number of directors of
the Corporation shall be fixed by or in the manner provided in the bylaws of the
Corporation (the "Bylaws"). Subject to the requirements of the next sentence,
every shareholder entitled to vote at any election for directors shall have the
right to cumulate such shareholder's votes and give one candidate a number of
votes equal to the number of directors to be elected, multiplied by the number
of votes
<PAGE>
to which such shareholder's shares are entitled, or to distribute his or her
votes on the same principal among as many candidates as the shareholder shall
think fit. No shareholder shall be entitled to cumulate votes unless the name
of the candidate or candidates for whom the votes would be cast has been placed
in nomination prior to the voting and at least one shareholder has given notice
at the meeting, prior to the voting, of the shareholder's intention to cumulate
his or her votes. The candidates receiving the highest number of affirmative
votes of shares entitled to be voted for them, up to the number of directors to
be elected, shall be elected. Votes against the directors and votes withheld
shall have no legal effect.
SEVENTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) to adopt, repeal, rescind, alter or amend in any respect the
Bylaws, and to confer in the Bylaws powers and authorities upon the directors of
the Corporation in addition to the powers and authorities expressly, conferred
upon them by statute;
(b) from time to time to set apart out of any funds or assets of
the Corporation available for dividends an amount or amounts to be reserved as
working capital or for any other lawful purpose and to abolish any reserve so
created and to determine whether any, and, if any, what part, of the surplus of
the Corporation or its net profits applicable to dividends shall be declared in
dividends and paid to its shareholders, and all rights of the holders of stock
of the Corporation in respect of dividends shall be subject to the power of the
Board of Directors so to do;
(c) subject to the laws of the State of Delaware, from time to
time to sell, lease or otherwise dispose of any part or parts of the properties
of the Corporation and to cease to conduct the business connected therewith or
again to resume the same, as it may deem best; and
(d) in addition to the powers and authorities hereinbefore and
by the laws of the State of Delaware conferred upon the Board of Directors, to
execute all such powers and to do all acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the express provisions of
said laws of the Certificate of Incorporation of the Corporation and its Bylaws.
EIGHTH: Any action required or permitted to be taken by the shareholders of
the Corporation may be effected at a duly called annual or special meeting of
shareholders of the Corporation or by any consent in writing by such
shareholders.
NINTH: Each director shall serve until his or her successor is elected and
qualified or until his or her death, resignation or removal, and no decrease in
the authorized number of directors shall shorten the term of any incumbent
director.
TENTH: Meetings of shareholders of the Corporation may be held within or
without the State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept
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(subject to any provision of applicable law) outside the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws.
ELEVENTH: A director of the Corporation shall not be personally liable to
the corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, as the same exists or hereafter may be amended, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law. No amendment to or repeal of this Article
Tenth shall apply to or have an effect on the liability or alleged liability of
any director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
TWELFTH: The Corporation reserves the right to adopt, repeal, rescind,
alter or amend in any respect any provision contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by applicable law, and
all rights conferred on shareholders herein are granted subject to this
reservation.
THIRTEENTH: The Corporation shall not be subject to the provisions of
Section 203 of the Delaware General Corporation Law.
I, THE UNDERSIGNED, for purposes of forming a corporation under the laws of
the State of Delaware, do make, file and record this Certificate, and do certify
that the facts herein stated are true, and I have accordingly hereunto set my
hand this 19th day of March, 1999.
/s/ Eileen Lyon
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Eileen Lyon, Incorporator
<PAGE>
EXHIBIT 4.2
BYLAWS
OF
SILICON VALLEY BANCSHARES, INC.
<PAGE>
TABLE OF CONTENTS
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PAGE
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ARTICLE I
OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1. Registered Office. . . . . . . . . . . . . . . . . . . . .1
Section 2. Principle Executive Office . . . . . . . . . . . . . . . .1
Section 3. Other Offices. . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II
MEETINGS OF SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1. Place of Meetings. . . . . . . . . . . . . . . . . . . . .1
Section 2. Annual Meetings. . . . . . . . . . . . . . . . . . . . . .1
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . . .1
Section 4. Nominations and Proposals. . . . . . . . . . . . . . . . .2
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 6. Voting . . . . . . . . . . . . . . . . . . . . . . . . . .3
Section 7. List of Shareholders Entitled to Vote. . . . . . . . . . .3
Section 8. Stock Ledger . . . . . . . . . . . . . . . . . . . . . . .3
Section 9 Shareholder Action . . . . . . . . . . . . . . . . . . . .3
ARTICLE III
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 1. Number and Election of Directors . . . . . . . . . . . . .4
Section 2. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . .4
Section 3. Duties and Powers. . . . . . . . . . . . . . . . . . . . .4
Section 4. Meetings . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 5. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 6. Actions of Board . . . . . . . . . . . . . . . . . . . . .5
Section 7. Meetings by Means of Conference Telephone. . . . . . . . .5
Section 8. Committees . . . . . . . . . . . . . . . . . . . . . . . .5
Section 9. Compensation . . . . . . . . . . . . . . . . . . . . . . .5
Section 10. Interested Directors . . . . . . . . . . . . . . . . . . .5
ARTICLE IV
OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 1. General. . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 2. Election . . . . . . . . . . . . . . . . . . . . . . . . .6
Section 3. Voting Securities Owned by the Corporation . . . . . . . .6
Section 4. Chairman of the Board of Directors . . . . . . . . . . . .7
i
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Section 5. President. . . . . . . . . . . . . . . . . . . . . . . . .7
Section 6. Vice Presidents. . . . . . . . . . . . . . . . . . . . . .7
Section 7. Secretary. . . . . . . . . . . . . . . . . . . . . . . . .7
Section 8. Treasurer. . . . . . . . . . . . . . . . . . . . . . . . .8
Section 9. Assistant Secretaries. . . . . . . . . . . . . . . . . . .8
Section 10. Assistant Treasurers . . . . . . . . . . . . . . . . . . .8
Section 11. Other Officers . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE V
STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 1. Form of Certificates . . . . . . . . . . . . . . . . . . .9
Section 2. Signatures . . . . . . . . . . . . . . . . . . . . . . . .9
Section 3. Lost Certificates. . . . . . . . . . . . . . . . . . . . .9
Section 4. Transfers. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 5. Record Date. . . . . . . . . . . . . . . . . . . . . . . 10
Section 6. Beneficial Owners. . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Waivers of Notice. . . . . . . . . . . . . . . . . . . . 10
ARTICLE VII
GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. Dividends. . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Disbursements. . . . . . . . . . . . . . . . . . . . . . 11
Section 3. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Corporate Seal . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VIII
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1. Power to Indemnify in Actions,
Suits or Proceedings other than Those by or in
the Right of the Corporation. . . . . . . . . . . . 11
Section 2. Power to Indemnify in Actions, Suits
or Proceedings by or in the Right of the
Corporation . . . . . . . . . . . . . . . . . . . . 11
Section 3. Authorization of Indemnification . . . . . . . . . . . . 12
Section 4. Good Faith Defined . . . . . . . . . . . . . . . . . . . 12
Section 5. Indemnification by a Court . . . . . . . . . . . . . . . 13
Section 6. Expenses Payable in Advance. . . . . . . . . . . . . . . 13
Section 7. Nonexclusivity of Indemnification and
Advancement of Expenses . . . . . . . . . . . . . . 13
Section 8. Insurance. . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9. Certain Definitions. . . . . . . . . . . . . . . . . . . 14
ii
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Section 10. Survival of Indemnification and
Advancement of Expenses . . . . . . . . . . . . . . 14
ARTICLE IX
AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Entire Board of Directors. . . . . . . . . . . . . . . . 14
</TABLE>
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BYLAWS
OF
SILICON VALLEY BANCSHARES, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of Silicon
Valley Bancshares, Inc. (the "Corporation") in the State of Delaware shall be at
1013 Centre Road, in the City of Wilmington, County of New Castle, 19805. The
name of the Corporation's registered agent at that address is Corporation
Service Company.
SECTION 2. PRINCIPLE EXECUTIVE OFFICE. The principle executive
office of the Corporation shall be located at such place within or outside of
the State of Delaware as the Board of Directors of the Corporation ("Board of
Directors") from time to time shall designate.
SECTION 3. OTHER OFFICES. The Corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the shareholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meeting of shareholders
shall be held each year on a date and at a time designated by the Board. The
date so designated shall be within fifteen months after the last Annual Meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each shareholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
SECTION 3. SPECIAL MEETINGS. Unless otherwise prescribed by law
or by the Certificate of Incorporation, Special Meetings of Shareholders, for
any purpose or purposes, may be called by a majority of the Board of Directors,
the Chairman of the Board, the President, or holders of shares entitled to cast
not less than ten percent (10%) of the votes at the meeting. Written notice of
a Special Meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be given not less than
ten nor more than sixty days before the date of the meeting to each shareholder
entitled to vote at such meeting.
SECTION 4. NOMINATIONS AND PROPOSALS. Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders
<PAGE>
may be made at any meeting of shareholders only (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of notice provided for in these bylaws, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 4.
For nominations or other business to be properly brought before a
shareholders meeting by a shareholder pursuant to clause (c) of the preceding
sentence, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for shareholder action. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the meeting; provided,
however, that in the event that less than 65 days notice of the meeting is given
to shareholders, notice by the shareholder to be timely must be so delivered not
later than the close of business on the seventh (7th) day following the day on
which the notice of meeting was mailed. In no event shall the public
announcement of an adjournment of a shareholders meeting commence a new time
period for the giving of a shareholder's notice as described above. Such
shareholder's notice shall set forth (a) as to each person whom the shareholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (or any successor thereto) and Rule 14a-11 thereunder
(or any successor thereto) (including such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such shareholder,
as they appear on the Corporation's books, and of such beneficial owner, and
(ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
Notwithstanding any provision herein to the contrary, no business shall be
conducted at a shareholders meeting except in accordance with the procedures set
forth in this Section 4.
SECTION 5. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more
2
<PAGE>
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder entitled to vote at the meeting.
SECTION 6. VOTING. Unless otherwise required by law, the Certificate
of Incorporation or these Bylaws, any question brought before any meeting of
shareholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each shareholder represented at
a meeting of shareholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such shareholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of shareholders, in his or her discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
SECTION 7. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in the name of each shareholder. Such list shall be open
to the examination of any shareholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder of the Corporation who is
present.
SECTION 8. STOCK LEDGER. The stock ledger of the Corporation
shall be the only evidence as to who are the shareholders entitled to examine
the stock ledger, the list required by Section 7 of this Article II or the books
of the Corporation, or to vote in person or by proxy at any meeting of
shareholders.
SECTION 9. SHAREHOLDER ACTION. Any action required or permitted
to be taken by the shareholders of the Corporation may be authorized or taken by
the written consent of the holders of outstanding shares of stock having not
less than the minimum voting power that would be necessary to authorize or take
such action at a meeting or stockholders at which all shares entitled to vote
thereon were present and voted, provided all other requirements of applicable
law and the Certificate of Incorporation have been satisfied.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The Board of
Directors shall consist of not less than eight (8) nor more than fifteen (15)
members, the exact number of which shall initially be eight (8) and thereafter
fixed from time to time by the Board of Directors. Subject to the Certificate of
3
<PAGE>
Incorporation, and except as provided in Section 2 of this Article, directors
shall be elected by a plurality of the votes cast at Annual Meetings of
Shareholders, and each director so elected shall hold office until the next
Annual Meeting and until his or her successor is duly elected and qualified, or
until his or her earlier resignation or removal. Any director may resign at any
time upon notice to the Corporation. Directors need not be shareholders.
SECTION 2. VACANCIES. Subject to the Certificate of Incorporation
and Section 1 of this Article III, vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and
qualified, or until their earlier resignation or removal.
SECTION 3. DUTIES AND POWERS. The business of the Corporation
shall be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the shareholders.
SECTION 4. MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined by
the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, or any one director.
Notice thereof stating the place, date and hour of the meeting shall be given to
each director either by mail not less than forty-eight (48) hours before the
date of the meeting, by telephone, facsimile or telegram on twenty-four (24)
hours' notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances.
SECTION 5. QUORUM. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws, at all
meetings of the Board of Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 6. ACTIONS OF BOARD. Unless otherwise provided by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
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<PAGE>
SECTION 7. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless
otherwise provided by the Certificate of Incorporation or these Bylaws, members
of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when required.
SECTION 9. COMPENSATION. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 10. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose if (i) the material facts as to his or her or
their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or her or their relationship or interest and as to the contract
or transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the shareholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the shareholders. Interested
directors may be counted
5
<PAGE>
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a director) and one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any
number of offices may be held by the same person, unless otherwise prohibited by
law, the Certificate of Incorporation or these Bylaws. The officers of the
Corporation need not be shareholders of the Corporation nor, except in the case
of the Chairman of the Board of Directors, need such officers be directors of
the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first meeting
held after each Annual Meeting of Shareholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors or by such persons as the Board of Directors delegates.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of
the Board of Directors, if there be one, shall preside at all meetings of the
shareholders and of the Board of Directors. Except where by law the signature
of the President is required, the Chairman of the Board of Directors shall
possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Bylaws or by the Board of Directors.
6
<PAGE>
SECTION 5. PRESIDENT. The President shall, subject to the control
of the Board of Directors and, if there be one, the Chairman of the Board of
Directors, have general supervision of the business of the Corporation and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. He shall execute all bonds, mortgages, contracts and other instruments
of the Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors or the President. In
the absence or disability of the Chairman of the Board of Directors, or if there
be none, the President shall preside at all meetings of the shareholders and the
Board of Directors. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
Bylaws or by the Board of Directors.
SECTION 6. VICE PRESIDENTS. At the request of the President or in
his or her absence or in the event of his or her inability or refusal to act
(and if there be no Chairman of the Board of Directors), the Vice President or
the Vice Presidents if there is more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. Each Vice President shall perform such other duties and have
such other powers as the Board of Directors from time to time may prescribe. If
there be no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence
of the President or in the event of the inability or refusal of the President to
act, shall perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President.
SECTION 7. SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of shareholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. If the Secretary shall be unable or shall refuse to attend and record
the proceedings of all meetings of the shareholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause such
notice to be given. The Secretary shall give, or cause to be given, notice of
all meetings of the shareholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or President, under whose supervision he shall be. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings of
the shareholders and special meetings of the Board of Directors, and if there be
no Assistant Secretary, then either the Board of Directors or the President may
choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his or her signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
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SECTION 8. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his or her transactions as Treasurer and of the financial condition of the
Corporation. if required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
SECTION 9. ASSISTANT SECRETARIES. Except as may be otherwise
provided in these Bylaws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
SECTION 10. ASSISTANT TREASURERS. Assistant Treasurers, if there
be any, shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his or her disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
SECTION 11. OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the President or a
Vice President and (ii) by the Treasurer or an Assistant Treasurer,
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<PAGE>
or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by
(i) a transfer agent other than the Corporation or its employee, or (ii) a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his or her attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be canceled before a
new certificate shall be issued.
SECTION 5. RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of shareholders of record entitled to notice of
or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
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ARTICLE VI
NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law,
the Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or shareholder, such notice may be given by mail,
addressed to such director, member of a committee or shareholder, at his or her
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required by
law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or shareholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
SECTION 4. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the word "Delaware". The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative
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(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY
OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VIII,
the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the shareholders. To the extent, however, that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of authorization
in the specific case.
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SECTION 4. GOOD FAITH DEFINED. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of their duties,
or on the advice of legal counsel for the Corporation or another enterprise or
on information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term if another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be.
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director, officer, employee or agent may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Sections 1 or 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the
absence of any determination thereunder shall be a defense to such application
or create a presumption that the director, officer, employee or agent seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director, officer, employee or agent seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred in
defending or investigating a threatened or pending action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII.
SECTION 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of shareholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
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persons specified in Sections 1 and 2 of this Article VIII shall be made to the
fullest extent permitted by law. The provisions of this Article VIII shall not
be deemed to preclude the indemnification of any person who is not specified in
Sections 1 or 2 of this Article VIII but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
SECTION 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against such liability under
the provisions of this Article VIII.
SECTION 9. CERTAIN DEFINITIONS. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was a director or officer of the Corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VIII.
SECTION 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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ARTICLE IX
AMENDMENTS
SECTION 1 These Bylaws may be altered, amended or repealed, in whole
or in part, or new Bylaws may be adopted by the shareholders or by the Board of
Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of
shareholders or Board of Directors, as the case may be. All such amendments
must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors
then in office.
SECTION 2. ENTIRE BOARD OF DIRECTORS. As used in this Article IX
and in these Bylaws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
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