SECTIONS 12360-12364 - California Statutes

CORPORATIONS CODE

SECTION 12360-12364

12360. (a) Except as provided in subdivision (d), directors shall
be elected for such terms, not longer than four years, as are fixed
in the articles or bylaws. In the absence of any provision in the
articles or bylaws, the terms shall be one year. No amendment of the
articles or bylaws may extend the term of a director beyond that for
which the director was elected, nor may any bylaw provision
increasing the terms of directors be adopted without approval of the
members.
(b) Unless the articles or bylaws otherwise provide, 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, unless the director has
been removed from office.
(c) The articles or bylaws may prescribe requirements for
eligibility for election as a director.
(d) For the purposes of this subdivision, "designator" means one
or more designators. Subdivisions (a) through (c) notwithstanding,
all or any portion of the directors authorized in the articles or
bylaws of a corporation may hold office by virtue of designation or
selection by a specified designator as provided by the articles or
bylaws rather than by election. Such directors shall continue in
office for the term prescribed by the governing article or bylaw
provision, or, if there is no term prescribed, until the governing
article or bylaw provision is duly amended or repealed, except as
provided in subdivision (f) of Section 12362. A bylaw provision
authorized by this subdivision may be adopted, amended, or repealed
only by approval of the members (Section 12224), except as provided
in subdivision (d) of Section 12330. Unless otherwise provided in the
articles or bylaws, the entitlement to designate or select a
director or directors shall cease if any of the following
circumstances exist:
(1) The specified designator of that director or directors has
died or ceased to exist.
(2) If the entitlement of the specified designator of that
director or directors to designate is in the capacity of an officer,
trustee, or other status and the office, trust, or status has ceased
to exist.
(e) If a corporation has not issued memberships and (1) all the
directors resign, die, or become incompetent, or (2) a corporation's
initial directors have not been named in the articles and all
incorporators resign, die, or become incompetent before the election
of the initial directors, the superior court of any county may
appoint directors of the corporation upon application by any party in
interest.

12361. The board may declare vacant the office of a director whose
eligibility for election as a director has ceased, or who has been
declared of unsound mind by a final order of court, or convicted of a
felony, or, if at the time a director is elected, the bylaws provide
that a director may be removed for missing a specified number of
board meetings, fails to attend the specified number of meetings.

12362. (a) Subject to subdivisions (b), (c) and (g), any or all
directors may be removed without cause if one of the following
applies:
(1) In a corporation with fewer than 50 members, the removal is
approved by a majority of all members (Section 12223).
(2) In a corporation with 50 or more members, the removal is
approved by the members (Section 12224).
(b) In a corporation in which the articles or bylaws authorize
members to cumulate their votes pursuant to subdivision (a) of
Section 12485, no director may be removed (unless the entire board is
removed) when the votes cast against removal, or not consenting in
writing to the removal, would be sufficient to elect the director if
voted cumulatively at an election at which the same total number of
votes were cast (or, if the action is taken by written ballot, all
memberships entitled to vote were voted) and the entire number of
directors authorized at the time of the director's most recent
election were then being elected; and
(c) When by the provisions of the articles or bylaws the members
of any class, voting as a class, are entitled to elect one or more
directors, any director so elected may be removed only by the
applicable vote of the members of that class.
(d) Any reduction of the authorized number of directors or any
amendment reducing the number of class of directors does not remove
any director prior to the expiration of the director's term of
office, unless the reduction or amendment also provides for removal
of one or more specified directors.
(e) Except as provided in this section and Sections 12361 and
12363, a director may not be removed prior to the expiration of the
director's term of office.
(f) Where a director removed under this section or Section 12361
or 12363 was chosen by designation pursuant to subdivision (d) of
Section 12360, then:
(1) Where a different person may be designated pursuant to the
governing article or bylaw provision, the new designation shall be
made; or
(2) Where the governing article or bylaw provision contains no
provision under which a different person may be designated, the
governing article or bylaw provision shall be deemed repealed.
(g) For the purposes of this subdivision, "designator" means one
or more designators. If by the provisions of the articles or bylaws a
designator is entitled to designate one or more directors, then:
(1) Unless as otherwise provided in the articles or bylaws at the
time of designation, any director so designated may be removed
without cause by the designator of that director.
(2) Any director so designated may only be removed under
subdivision (a) with the written consent of the designator of that
director.
(3) Unless as otherwise provided in the articles or bylaws, the
right to remove shall not apply if any of the following circumstances
exist:
(A) The designator entitled to that right has died or ceased to
exist.
(B) If that right is in the capacity of an officer, trustee, or
other status, and the office, trust, or status has ceased to exist.

12363. The superior court of the proper county may, at the suit of
a director, or members possessing 5 percent of the voting power,
remove from office any director in case of fraudulent or dishonest
acts or gross abuse of authority or discretion with reference to the
corporation and may bar from reelection any director so removed for a
period prescribed by the court. The corporation shall be made a
party to such action.

12364. (a) Unless otherwise provided in the articles or bylaws and
except for a vacancy created by the removal of a director, vacancies
on the board may be filled by approval of the board (Section 12222)
or, if the number of directors then in office is less than a quorum,
by (1) the unanimous written consent of the directors then in office,
(2) the affirmative vote of a majority of the directors then in
office at a meeting held pursuant to notice or waivers of notice
complying with Section 12351, or (3) a sole remaining director.
Unless the articles or a bylaw approved by the members (Section
12224) provide that the board may fill vacancies occurring in the
board by reason of the removal of directors, such vacancies may be
filled only by approval of the members (Section 12224).
(b) The members may elect a director at any time to fill any
vacancy not filled by the directors.
(c) Any director may resign effective upon giving written notice
to the chairman of the board, the president, the secretary or the
board of directors of the corporation, unless the notice specifies a
later time for the effectiveness of such resignation. If the
resignation is effective at a future time, a successor may be elected
to take office when the resignation becomes effective.