Who can adopt or change the bylaws?

Bylaws may generally be adopted, amended, or repealed by approval of either the shareholders or the board of directors. See Cal. Corp. Code § 211. There are several exceptions to this general rule. First, if the articles of incorporation do not name the company’s initial directors, then the incorporator or incorporators may, until the directors are elected, do whatever is necessary and proper to perfect the organization of the corporation, including adopting and amending bylaws. See Cal. Corp. Code § 210. Second, the articles of incorporation or bylaws may restrict or eliminate the power of the board of directors to adopt, amend, or repeal any or all bylaws, so long as the restriction does not conflict with the statutory prohibition against supermajority votes in connection with the election or removal without cause of directors or the institution of voluntary dissolution proceedings. See Cal. Corp. Code §§ 204(a)(5), 211. Third, unless the number of the corporation’s directors is specified in the articles of incorporation, the bylaws must set forth the number of directors, or that the number of directors shall be not less than a stated minimum nor more than a stated maximum. Once the corporation has issued shares, only the shareholders may adopt a bylaw specifying or changing a fixed number of directors or the maximum or minimum number of directors or changing from a fixed to a variable number of directors or vice versa. See Cal. Corp. Code § 212(a). Finally, any bylaws adopted by the board of directors are always subject to amendment or repeal by the shareholders.