EXHIBIT 3.6
PLAN AND AGREEMENT OF MERGER
BETWEEN
XXXXXXXX FINANCIAL CORPORATION
AND
XXXXXXXX MERGER CORPORATION
This Plan and Agreement of Merger (this "Agreement") is entered into this
18th day of June, 2001 by and between Xxxxxxxx Merger Corporation, a Washington
corporation (the "Surviving Corporation"), and Xxxxxxxx Financial Corporation.,
a Delaware corporation ("Xxxxxxxx"). The Surviving Corporation and Xxxxxxxx are
sometimes referred to jointly as the "Constituent Corporations."
RECITALS
A. Each of the Constituent Corporations are corporations organized and
existing under the laws of the respective states as indicated in the first
paragraph of this Agreement.
B. The shareholders and directors of each of the Constituent Corporations
have deemed it advisable for the mutual benefit of the Constituent Corporations
and their respective shareholders that Xxxxxxxx be merged into the Surviving
Corporation pursuant to the provisions of the Washington Business Corporation
Act, Title 23B of the Revised Code of Washington and the Delaware General
Corporation Law (the "Merger").
NOW, THEREFORE, in accordance with the laws of the states of Washington and
Delaware, the Constituent Corporations agree that, subject to the following
terms and conditions, (i) Xxxxxxxx shall be merged into the Surviving
Corporation, (ii) the Surviving Corporation shall continue to be governed by the
laws of the state of Washington, and (iii) the terms of the Merger, and the mode
of carrying them into effect, shall be as follows:
ARTICLE I
ARTICLES OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
immediately prior to the Effective Time of the Merger shall constitute the
"Articles" of the Surviving Corporation within the meaning of Section
23B.01.400(l) of the Washington Business Corporation Act and Section 104 of the
Delaware General Corporation Law, except that Article I of the Articles of
Incorporation is hereby amended in its entirety to read as follows:
ARTICLE I. NAME
The name of this Corporation is Xxxxxxxx Financial Corporation.
ARTICLE II
APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Secretary of State of Delaware to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of Xxxxxxxx'x as well as for enforcement of any
obligation of the Surviving Corporation arising from the merger. The Delaware
Secretary of State shall mail a copy of such process to HEWM Corporate Services,
Inc., Suite 6100, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
ARTICLE III
CONVERSION OF SHARES
3.1 Xxxxxxxx Shares. At the Effective Time of the Merger each
outstanding share of the common stock of Xxxxxxxx shall automatically convert to
one share of common stock of the Surviving Corporation. At the Effective Time
of the Merger each outstanding share of theSeries 1 Preferred Stock of Xxxxxxxx
shall automatically convert to one share of Series A Preferred Stock of the
Surviving Xxxxxxxxxxx.Xx will not be necessary for shareholders of Xxxxxxxx to
exchange their existing stock certificates for stock certificates of the
Surviving Corporation.
3.2 Surviving Corporation Shares. At the Effective Time of the Merger
each outstanding share of the common stock of the Surviving Corporation shall be
automatically cancelled and returned to the status of authorized but unissued
shares.
ARTICLE IV
BYLAWS
The Bylaws of the Surviving Corporation shall be the governing Bylaws.
ARTICLE V
DIRECTORS AND OFFICERS
The directors and officers of Xxxxxxxx shall be the directors and officers
of the Surviving Corporation.
ARTICLE VI
EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable provisions
of the laws of Washington and Delaware. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time of the Merger: the
separate existence of Xxxxxxxx shall cease; the Surviving Corporation shall
possess all assets and property of every description, and every interest
therein, wherever located, and the rights, privileges, immunities, powers,
franchises, and authority, of a public as well as a private nature, of all of
the Constituent Corporations, all obligations belonging to or due any of the
Constituent Corporations shall be vested in and
become the obligations of, the Surviving Corporation without further act or
deed; title to any real estate or any interest therein vested in any of the
Constituent Corporations shall be vested in and become the obligations of the
Surviving Corporation without further act or deed; title to any real estate or
any interest therein shall not revert or in any way be impaired by reason
of the Merger; all rights of creditors and all liens upon any property of any of
the Constituent Corporations shall be preserved unimpaired; and the Surviving
Corporation shall be liable for all the obligations of the Constituent
Corporations and any claim existing, or action or proceeding pending, by or
Against any of the Constituent Corporations may be prosecuted to judgment
with right of appeal, as if the Merger had not taken place.
If at any time after the Effective Time of the Merger the Surviving
Corporation shall consider it to be advisable that any further conveyances,
agreements, documents, instruments, and assurances of law or any other things
are necessary or desirable to vest, perfect, confirm, or record in the Surviving
Corporation the title to any property, rights, privileges, powers, and
franchises of the Constituent Corporations or otherwise to carry out the
provisions of this Agreement, the proper directors and officers of the
Constituent Corporations last in office shall execute and deliver, upon the
Surviving Corporations request, any and all proper conveyances, agreements,
documents, instruments, and assurances of law, and do all things necessary or
proper to vest, perfect, or confirm title to such property, rights, privileges,
powers, and title to such property, rights, privileges, powers, and franchises
in the Surviving Corporation, and otherwise to carry out the provisions of this
Agreement.
ARTICLE VII
EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles A-2 of Merger have
been duly filed by the Constituent Corporations in the office of the Washington
Secretary of State pursuant to Section 23B.11.050 of the Washington Business
Corporation Act and the Office of the Delaware Secretary of State pursuant to
Section 252 of the Delaware General Corporation Law, or at such time thereafter
as is provided in such Certificate or Articles of Merger.
ARTICLE VIII
CONDITIONS
In the event that shareholders of Xxxxxxxx owning in excess of five percent
(5%) of the voting shares of Xxxxxxxx effectively exercise their appraisal
rights under Section 262 of the Delaware General Corporation Law, the Surviving
Corporation may terminate this Agreement by written notice to Xxxxxxxx. In such
event, this Agreement shall be of no further force and effect.
ARTICLE IX
TERMINATION
This Agreement may be terminated and the Merger abandoned as provided in
Article VIII hereor or by mutual consent of the directors of the Constituent
Corporations at any time prior to the Effective Time of the Merger.
ARTICLE X
NO THIRD PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm, or corporation, other than the Constituent Corporations
and their respective shareholders, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Plan and Agreement
of Merger to be executed as of the date first above written.
XXXXXXXX MERGER CORPORATION, a
Washington corporation
By: /s/ Xxxxxxx X. Xxxxx
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President
XXXXXXXX FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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President
ARTICLES OF INCORPORATION
OF
XXXXXXXX MERGER CORPORATION
The undersigned Incorporator hereby makes and adopts these Articles of
Incorporation as follows:
ARTICLE I. NAME
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The name of this corporation is Xxxxxxxx Merger Corporation.
ARTICLE II. SHARES
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Section 1. Classes of Stock. The total number of shares of stock which
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this Corporation is authorized to issue is Fifty Five Million (55,000,000),
Fifty Million of which shall constitute a single class of common shares with a
par value of $0.01 per share, and Five Million of which shall constitute
preferred stock with a par value of $0.01 per share.
The Preferred Stock may be issued in one or more classes or series within a
class, at the discretion of the Board of Directors of the Corporation. The
Board of Directors of the Corporation is authorized (a) to determine and alter
the designations, powers, preferences, limitations and relative rights granted
to or imposed on (i) any class of Preferred Stock before the issuance of any
shares of that class and the number of shares constituting any such class and
the designation thereof, or any of them; or (ii) one or more series within a
class, and designate the number of shares within that series, before the
issuance of any shares of that series; (b) to decrease (but not below the number
of shares of such series then outstanding) the number of shares of any such
series subsequent to the issue of shares of that series. If the number of
shares of any series of Preferred Stock shall be so 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 such
series.
Section 2. Preferred Stock, Series 1. The Corporation shall be authorized
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to issue up to 3,000,000 shares of Preferred Stock, Series 1, having the rights,
preferences and privileges se as follows:
A. DIVIDENDS
1. Payment of Dividends. The holders of the Preferred Stock, Series 1
---------------------
shall be entitled to receive, and the Corporation shall pay thereon, as and when
declared by the board of directors out of monies properly applicable to the
payment of dividends, fixed cumulative preferential cash dividends at the rate
of 5% per share per annum (the "Dividend Payment") on the amount paid-up thereon
payable in arrears on December 31 of each year (the "Dividend Payment Date").
Dividends on the Preferred Stock, Series 1 shall accrue from and including the
date of issuance. Checks of the Corporation or its dividend paying agent
payable at par at a chartered bank or trust company shall be issued in respect
of such dividends to the holders of the Preferred Stock, Series 1 entitled
thereto. The mailing of such checks shall satisfy and discharge all liability
for the dividends represented thereby, unless the checks are not paid on due
presentation. If on any Dividend Payment Date, the dividends
payable on such date are not paid in full on all of the Preferred Stock, Series
1 then issued and outstanding, the dividends or the unpaid part thereof shall be
paid on a subsequent date or dates as determined by the board of directors. The
holders of the Preferred Stock, Series 1 shall not be entitled to any dividends
other than or in excess of the cash dividends provided for herein. A dividend
which is represented by a check which has not been presented for payment within
six years after it was issued shall be forfeited to the Corporation.
2. Dividend for Other than a Full Year. The amount per share of the
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dividend accrued for any period which is less than a full year with respect to
any Preferred Stock, Series 1:
(a) which is issued, redeemed or purchased; or
(b) where the assets of the Corporation are distributed to the
holders of Preferred Stock, Series 1 on the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or involuntary, or on any other
distribution of assets of the Corporation among its shareholders for the purpose
of winding up its affairs, shall be equal to the amount (rounded to the nearest
1/100th of 1 cent) calculated by multiplying the Dividend Payment by a fraction
of which the numerator is the number of days during the year that the share has
been outstanding (including the date of issuance or the first day of the year as
well as the Dividend Payment Date or date of redemption, purchase, or
distribution of assets, as applicable) and the denominator is 365.
3. Interest Payment. The holders of the Preferred Stock, Series 1 shall
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be entitled to receive, as provided herein, an amount equivalent to interest at
the rate of 8% per annum on the amount of all Dividend Payments not paid on
their respective Dividend Payment Dates and which remain outstanding from time
to time, which shall be compounded annually on each Dividend Payment Date (the
"Interest Amount").
B. REDEMPTION AND PURCHASE
1. General.Subject to Section E, the Preferred Stock, Series 1 may be
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redeemed or purchased by the Corporation as provided in this Section, but not
otherwise.
2. Redemption Rights.
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(a) Subject to Section E, the Corporation may at its option redeem
at any time all or from time to time any number of the outstanding Preferred
Stock, Series 1 on payment of the Redemption Price as provided in Section B.3.
(b) If less than all of the outstanding Preferred Stock, Series 1
are to be redeemed, the shares to be redeemed shall be selected by lot, in
single shares or in units of 10 shares or less, or pro rata (disregarding
fractions) as the board of directors or a committee thereof in its sole
discretion shall by resolution determine.
3. Redemption Price. The price at which any Preferred Stock, Series 1 is
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redeemable (the "Redemption Price") shall be the aggregate of all accrued and
unpaid dividends up to and including
the date fixed for redemption, the amount paid-up thereon, any Interest Amount
applicable thereto and a redemption premium of 10% of the amount paid-up
thereon.
4. Redemption Procedure.
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(a) Notice of redemption (the "Redemption Notice") of the
Preferred Stock, Series 1 shall be given by the Corporation not less than 30
days prior to the date fixed for redemption to each holder of any Preferred
Stock, Series 1 to be redeemed. Accidental failure or omission to give the
Redemption Notice to one or more of such holders shall not affect the validity
of such redemption. The Redemption Notice shall set out the Redemption Price,
the date fixed for redemption, the place of redemption and, in the case of
partial redemption, the number of the holder's shares to be redeemed.
(b) On and after the date fixed for redemption, the Corporation
shall pay or cause to be paid the Redemption Price to or to the order of the
holders of the Preferred Stock, Series 1 redeemed on presentation and surrender,
at the place of redemption, of the respective certificates representing such
shares, and the holders of the Preferred Stock, Series 1 called for redemption
shall cease to be entitled to dividends or to exercise any of the rights of
holders in respect thereof, unless payment of the Redemption Price shall not be
made in accordance with the foregoing provisions, in which case the rights and
privileges of the holders shall remain unimpaired.
(c) The Corporation shall have the right at any time after mailing
the Redemption Notice to deposit the Redemption Price of the shares thereby
called for redemption, or such part thereof as at the time of deposit has not
been claimed by the shareholders entitled thereto, in a special account with a
chartered bank or trust company for the holders of such shares, and upon the
deposit being made or upon the date fixed for redemption, whichever is the
earlier, the Preferred Stock, Series 1 in respect of which the deposit shall
have been made shall be deemed to be redeemed and the rights of each holder
thereof shall be limited to receiving, without interest, his proportionate part
of the Redemption Price so deposited upon presentation and surrender of the
certificates representing his shares so redeemed.
(d) If less than all the Preferred Stock, Series 1 represented by
any certificate are redeemed, a new certificate for the balance shall be issued
without cost to the holder.
5. Purchase. Subject to Section E, the Corporation may purchase at any
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time all or from time to time any number of the outstanding Preferred Stock,
Series 1 in the open market (including purchases through or from an investment
dealer or firm holding membership on a stock exchange) or pursuant to tenders
received by the Corporation upon an invitation for tenders addressed to all
holders of the Preferred Stock, Series 1, at a price per share not exceeding the
Redemption Price plus costs of purchase. If, upon any invitation for tenders,
the Corporation receives tenders for Preferred Stock, Series 1 at the same price
in an aggregate number greater than the number for which the Corporation is
prepared to accept tenders, the shares to be purchased shall be selected from
the shares offered at prices as nearly as may be pro rata (to the nearest 10
shares) according to the number of Preferred Stock, Series 1 offered in each
tender, in the manner as the board of directors or a committee thereof in its
sole discretion shall by resolution determine.
6. Indenture. In the event that an "Event of Default", as such term is
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defined in a master indenture made between the Corporation and Xxxxxx Trust
Corporation of New York, as trustee, dated as of August 23, 1993, as amended
from time to time (the "Indenture"), occurs and is not remedied by the
Corporation within any applicable curative periods and either the "Trustee" or
"Holders" (as such terms are defined in the Indenture) provide written notice to
the Corporation declaring the principal amount of "Outstanding" "Securities" (as
such terms are defined in the Indenture) plus accrued interest to be due and
payable as provided for and pursuant to Section 502 of the Indenture, a holder
of any Preferred Stock, Series 1 may require the Corporation to redeem, at any
time and from time to time, the number of Preferred Stock, Series 1 as may be
presented for redemption by the holder as provided herein. The Corporation need
not redeem the Preferred Stock, Series 1 pro rata, among all holders of
Preferred Stock, Series 1. The price per share (the "Retraction Price") at
which the Corporation is required to redeem Preferred Stock, Series 1 pursuant
to the exercise of the right of retraction herein shall be the aggregate of all
accrued and unpaid dividends up to and including the dated fixed for redemption,
the amount paid-up thereon, any Interest Amount applicable thereto and a
retraction premium of 10% of the amount paid-up thereon. The holder of
Preferred Stock, Series 1 desiring to exercise his retraction right shall tender
his Preferred Stock, Series 1 to be redeemed by depositing with the Secretary of
the Corporation a certificate or certificates representing such Preferred Stock,
Series 1 together with a notice of retraction (the "Retraction Notice")
requesting redemption of a specified number of Preferred Stock, Series 1 and
stating the place at which the Retraction Price is to be paid. Such deposit
shall be irrevocable unless the Corporation shall fail to make payment of the
Retraction Price for the Preferred Stock, Series 1 to be redeemed within 30 days
of receipt of the Retraction Notice. The payment of the Retraction Price shall
be made by check payable at par at a United States or Canadian chartered bank or
trust company and at the place stated in the Retraction Notice. The Preferred
Stock, Series 1 shall then be and be deemed to be redeemed unless such check
fails to clear in the ordinary course. The Corporation shall use its best
efforts to pay the Retraction Price for the Preferred Stock, Series 1 to be
redeemed within 30 days of receipt of the Retraction Notice, or so soon
thereafter as liquid funds become available, to a holder of Preferred Stock,
Series 1 who has tendered his shares as provided herein and shall cancel his
certificates which were tendered subject to the terms hereof and issue new
certificates in respect of the unredeemed shares, if any. Upon payment of the
Retraction Price as provided herein, the Preferred Stock, Series 1 shall cease
to be entitled to dividends and the holder shall not be entitled to exercise any
of the rights of the shareholder in respect thereof.
7. Redeemed or Purchased Preferred Stock, Series 1. Preferred Stock,
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Series 1 redeemed or purchased by the Corporation shall remain as authorized but
unissued Preferred Stock, Series 1 and shall be available for issuance as such,
unless payment for same is not made by the Corporation in the ordinary course.
C. VOTING RIGHTS
1. General. The holders of the Preferred Stock, Series 1 shall be
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entitled to receive notice of and to attend at all meetings of shareholders of
the Corporation, other than separate meetings of the holders of another class or
series of shares. Subject to Sections C.2 and C.3 hereof, a holder of any
Preferred Stock, Series 1 shall be entitled to vote at such meetings on the
basis of a vote per share that is equal to the lesser of:
(a) one; and
(b) such fractional vote per share that results in the holder and
any other entity that may together with the holder be considered a "person" or
"group" (respectively, a "Person" or a "Group") as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1933, as amended (the
"Exchange Act") becoming the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of 34.6% (the "Threshold
Amount") of the total votes attached to all outstanding voting shares of the
Corporation outstanding from time to time, provided that in no event, except as
provided in Section C.3 hereof, shall any votes attach to the Preferred Stock,
Series 1 which would trigger a mandatory redemption of all of the variable rate
bonds (the "Bonds") issued pursuant to the Indenture. For greater certainty, if
at any time and only during such time a Person or Group is or becomes the
beneficial owner, directly or indirectly, of the Threshold Amount of the total
votes attaching to all outstanding voting shares of the Corporation, excluding
any Preferred Stock, Series 1, then if such Person or Group is or becomes the
beneficial owner, directly or indirectly, of any Preferred Stock, Series 1, the
same shall have no votes per share, except: (i) as provided in Sections C.2 or
C.3 hereof; or (ii) in the event the Person or Group subsequently is or becomes
the beneficial owner, directly or indirectly, of less than the Threshold Amount
of the total votes attaching to all Voting Shares of the Corporation.
2. Amendments to Master Indenture. If the Indenture is amended so that
-------------------------------
a Person or Group can become the beneficial owner of a percentage of the total
votes attached to all outstanding voting shares of the Corporation in excess of
the Threshold Amount without triggering a mandatory redemption of the Bonds, the
Threshold Amount shall be amended in Section C.1(b) to be equal to the lesser
of: (i) the amended percentage which triggers the mandatory redemption of the
Bonds pursuant to the Indenture minus 0.1%; and (ii) 47.9%.
3. Fully Voting. If any Person or Group becomes the beneficial owner,
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directly or indirectly, of a percentage of the total votes attached to all
outstanding voting shares of the Corporation from time to time in excess of the
Threshold Amount, as amended from time to time, (excluding any Preferred Stock
Series 1), then a holder of any Preferred Stock, Series 1 shall be entitled to
one vote per share.
4. Determination. In the event of any dispute or uncertainty, the votes
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per share of Preferred Stock Series 1 shall be determined from time to time as
required and as provided herein exclusively by the board of directors of the
Corporation, whose decision and calculation shall be final and binding upon all
parties and for all purposes.
D. LIQUIDATION, DISSOLUTION OR WIND-UP
1. Priority of Distributions. In the event of the liquidation,
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dissolution or winding-up of the Corporation or other distribution of the assets
-
of the Corporation among its shareholders for the purpose of winding up its
affairs, whether voluntary or involuntary, the holders of the Preferred Stock,
Series 1 shall be entitled, before any amounts shall be paid to or any property
or assets of the Corporation are distributed among the holders of the Common
Stock, or any other share of the Corporation ranking junior to the Preferred
Stock, Series 1, to receive an amount equal to the amount paid-up thereon,
together with all accrued and unpaid dividends thereon, any Interest Amount
applicable thereto and a premium of 10% of the amount paid-up thereon. After
payment to the holders of the Preferred Stock, Series 1 of the amounts so
payable to them, they shall not be entitled to share in any further distribution
of the assets of the Corporation.
2. Ratable Distribution.If any accrued and unpaid dividends, amounts
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payable on the return of capital, any Interest Amount or any premium in respect
of the Preferred Stock, Series 1 are not paid in full, all series of Preferred
Stock shall participate ratably in respect of accrued and unpaid dividends, the
return of capital, any Interest Amount and the premium.
E. RESTRICTIONS ON DIVIDENDS AND ISSUE OR RETIREMENT OF SHARES
The Corporation shall not at any time without, but may at any time with,
the approval of the holders of a majority of the outstanding shares of the
Preferred Stock, Series 1, authorize or issue any shares, other than additional
series of Preferred Stock, ranking prior to or on a parity with the Preferred
Stock, Series 1 as to the payment of dividends or the distribution of the
property or assets of the Corporation. Furthermore, so long as any of the
Preferred Stock, Series 1 are outstanding, the Corporation shall not:
(1) declare, pay or set apart for payment any dividends (other
than stock dividends in shares of the Corporation ranking junior to the
Preferred Stock, Series 1) on any shares of the Corporation ranking junior to
the Preferred Stock, Series 1;
(2) call for redemption, redeem, purchase or otherwise retire for
value any shares ranking junior to the Preferred Stock, Series 1 (except out of
the net cash proceeds of a substantially concurrent issue of shares of the
Corporation ranking junior to the Preferred Stock, Series 1);
(3c) call for redemption, redeem, purchase or otherwise retire for
value less than all of the Preferred Stock, Series 1;
(4) except out of the net cash proceeds of a substantially
concurrent issue of shares of the Corporation ranking junior to the Preferred
Stock, Series 1, call for redemption, redeem, purchase or otherwise retire for
value (i) any Preferred Stock, other than the Preferred Stock, Series 1 or (ii)
any shares of a class or series ranking on a parity with the Preferred Stock,
Series 1 in respect of the payment of dividends and the distribution of assets
in the event of a liquidation, dissolution or winding-up of the Corporation,
whether voluntary or involuntary, or in the event of any other distribution of
assets of the Corporation among its shareholders for the purpose of winding up
its affairs; or
(5) create or issue any additional Preferred Stock, unless, in
each such case, any Interest Amount and all accrued and unpaid dividends on the
outstanding Preferred Stock, Series 1 and on all other shares ranking prior to
or on a parity with the Preferred Stock, Series 1, up to and including all
dividends payable on the last preceding Dividend Payment Date, have been
declared and paid or set apart for payment.
F. NOTICES AND INTERPRETATION
1. Notices.
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(a) Any notice, check, invitation for tenders or other communication
from the Corporation provided for herein shall be sufficiently given if
delivered or if sent by ordinary first class mail, postage prepaid, to the
holders of the Preferred Stock, Series 1 at their respective addresses appearing
on the books of the Corporation or, in the event of the address of any of such
holders not so appearing, then at the last address of such holder known to the
Corporation. Accidental failure to give any notice, invitation for tenders or
other communication to one or more holders of the Preferred Stock, Series 1
shall not affect the validity of the notices, invitations for tenders or other
communications properly given or any action taken pursuant to such notice,
invitation for tender or other communication, but upon a failure being
discovered, the notice, invitation for tenders or other communication, as the
case may be, shall be sent forthwith to the holder or holders.
(b) If any notice, check, invitation for tenders or other
communication from the Corporation given to a holder of Preferred Stock, Series
1 pursuant to Section F.1(a) is returned on three consecutive occasions because
he cannot be found, the Corporation shall not be required to give or mail any
further notices, checks, invitations for tenders or other communications to such
shareholder until he informs the Corporation in writing of his new address.
2. Interpretation.
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(a) In the event that any day on which any dividend on the
Preferred Stock, Series 1 is payable or on or by which any other action is
required to be taken hereunder is not a business day, then such dividend shall
be payable or such other action shall be required to be taken on or before the
next succeeding day that is a business day. "Business day" means a day other
than a Saturday, a Sunday or any other day that is a statutory or civic holiday
in the place where the Corporation has its head office.
(b) All references herein to a holder of Preferred Stock, Series 1
shall be interpreted as referring to a registered holder of the Preferred Stock,
Series 1.
G. MODIFICATION
The rights, preferences and privileges governing the Preferred Stock,
Series 1 may be deleted, varied, modified, amended or amplified with the prior
approval of holders of Preferred Stock, Series 1 owning 67% of the outstanding
Preferred Stock, Series 1.
ARTICLE III. INITIAL REGISTERED OFFICE AND REGISTERED AGENT
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The initial registered office of this corporation shall be at Suite 6100;
000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and the name of its initial
registered agent at that address is HEWM Corporate Services, Inc.
ARTICLE IV. PREEMPTIVE RIGHTS
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Shareholders of the corporation have no preemptive right to acquire
unissued shares of the corporation.
ARTICLE V. BOARD OF DIRECTORS
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The number of directors constituting the initial Board of Directors shall
be as set forth in the bylaws of the Corporation. The names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders and until their successors shall be elected are:
Xxxxxxx X. Xxxxx
Young Soo Ko
Oq-Xxxx Xxxx
If a vacancy occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of directors, such vacancy shall be
filled by the Board of Directors in accordance with the Bylaws of the
corporation.
The directors shall be divided into three classes, designated Class I,
Class II and Class III. Initially, Class I directors shall be elected for a one-
year term, Class II directors for a two-year term and Class III directors for a
three-year term. At any annual meeting of shareholders, successors to the class
of directors whose term expires at that annual meeting shall be elected to serve
until the third ensuing annual meeting of shareholders. If the number of
directors is changed in the manner provided by the bylaws, any increase or
decrease shall be apportioned among the classes so the number of directors in
each class is as nearly equal as possible, and any additional director of any
class elected or appointed to fill a vacancy resulting from an increase in such
class shall hold office for a term that shall coincide with the remaining term
of such class. A director shall hold office until the annual meeting for the
year in which such director's term expires and until such director's successor
shall be elected and qualified, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
ARTICLE VI. REMOVAL OF DIRECTORS
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Subject to the rights of holders of any series of Preferred Stock then
outstanding, any director, or the entire board of directors, may be removed from
office only for cause and only by the affirmative vote of the holders of a
majority of the voting power of all shares of this corporation entitled to vote
for the election of directors. As used herein, "for cause" means either (i)
conviction of a felony by a court of competent jurisdiction and such conviction
is no longer subject to direct appeal or (ii) adjudication for gross negligence
or dishonest conduct in the performance of a director's duty to this corporation
by a court of competent jurisdiction and such adjudication is no longer subject
to direct appeal. Notwithstanding anything to the contrary, this Article may
be altered or eliminated only by amendment to this Article approved by
two-thirds of the votes entitled to be cast by each voting group entitled to
vote on such amendment.
ARTICLE VII. VOTING RIGHTS
---------------
At each election for directors, no cumulative voting by the shareholders
shall be permitted. Amendment of the articles of incorporation, approval of a
plan of merger or share exchange, authorization of the sale, lease, exchange or
other disposition of all, or substantially all of the corporation's property,
otherwise than in the usual and regular course of business, and authorization of
the dissolution of the corporation, shall be approved by each voting group
entitled to vote thereon by a simple majority of all the votes entitled to be
cast by that voting group.
ARTICLE VIII. LIMITATION ON LIABILITY OF DIRECTORS
--------------------------------------
A director shall have no liability to the corporation or its shareholders
for monetary damages for conduct as a director, except for acts or omissions
that involve intentional misconduct by the director, or a knowing violation of
law by the director, or for conduct violating Section 23B.08.310 of the Act, or
for any transaction from which the director will personally receive a benefit in
money, property or services to which the director is not legally entitled. If
the Act is hereafter amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director shall be eliminated or limited to the full extent permitted by the Act,
as so amended. Any repeal or modification of this Article shall not adversely
affect any right or protection of a director of the corporation existing at the
time of such repeal or modification for or with respect to an act or omission of
such director occurring prior to such repeal or modification.
ARTICLE IX. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
--------------------------------------------------------------
Section 1. Right to Indemnification. The corporation shall indemnify each
-------------------------
person who is or was, or is threatened to be made, a party to or is otherwise
involved (including, without limitation, as a witness) in any threatened,
pending or completed action, suit or other proceeding, whether civil, criminal,
administrative or investigative, and whether formal or informal, by reason of
the fact that he or she is or was a director or officer of the corporation or,
while a director or officer, he or she is or was serving at the request of the
corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation or of a partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise (whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, partner, member, trustee, employee or agent or in any other capacity
while serving as a director, officer, partner, member, trustee, employee or
agent), against all obligations to pay any judgment, settlement, penalty, fine
(including any excise tax assessed with respect to an employee benefit plan) and
reasonable expenses (including attorneys fees) incurred or suffered by such
person in connection therewith; provided, however, that (i) except as provided
in Section 2 of this Article with respect to proceedings seeking to enforce
rights to indemnification, the corporation shall indemnify a person in
connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the board of
directors of the corporation, and (ii) the corporation shall not indemnify any
person from or on account of: (a) acts or omissions of the person finally
adjudged to be intentional misconduct or a knowing violation of law, (b)
conduct finally adjudged to be in violation of RCW 23B.08.310, or (c) any
transaction with respect to which it was finally adjudged that such person
personally received a benefit in money, property or services to which the
person was not legally entitled. The right to indemnification conferred in
this Section 1 shall be a contract right and shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that the payment of such
expenses in advance of the final disposition of a proceeding shall be made only
upon delivery to the corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately
be determined that such director or officer is not entitled to be indemnified
under this Section 1 or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of
-------------------------------
this Article is not paid in full by the Corporation within sixty (60) days after
a written claim has been received by the corporation, except in the case of a
claim for expenses incurred in defending a proceeding in advance of its final
disposition, in which case the applicable period shall be twenty (20) days, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, to the extent successful in whole or
in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. The claimant shall be presumed to be entitled to
indemnification under this Article upon submission of a written claim (and, in
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition, where the required undertaking
has been tendered to the corporation), and thereafter the corporation shall have
the burden of proof to overcome the presumption that the claimant is not so
entitled. Neither the failure of the corporation (including its board of
directors, independent legal counsel or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances nor an actual determination by the corporation (including its
board of directors, independent legal counsel or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses shall be a defense to the action or create a presumption
that the claimant is not so entitled.
Section 3. Contracts. The corporation may, without further shareholder
---------
action, enter into contracts with any director or officer of the corporation in
furtherance of the provisions of this Article and may create a trust fund, grant
a security interest or use other means (including, without limitation, a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
Section 4. Indemnification of Employees and Agents of the Corporation. The
-------------------------------------------------------------
corporation may, by action of its board of directors from time to time, provide
indemnification and pay expenses in advance of the final disposition of a
proceeding to employees and agents of the corporation with the same scope and
effect as the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the corporation or pursuant
to rights granted pursuant to, or provided by, the Act or otherwise.
Section 4. Indemnification of Employees and Agents of the Corporation.
-------------------------------------------------------------
The corporation may, by action of its board of directors from time to time,
provide indemnification and pay expenses in advance of the final disposition of
a proceeding to employees and agents of the corporation with the same scope and
effect as
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the corporation or pursuant
to rights granted pursuant to, or provided by, the Act or otherwise.
Section 5. Nonexclusivity of Rights. The right to indemnification and the
--------------------------
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Articles of Incorporation, Bylaws, agreement, vote of shareholders or
disinterested directors or otherwise.
ARTICLE X. INCORPORATOR
--------------
The name and address of the incorporator are as follows:
Xxxxx X. Xxxxxx
Suite 6100, 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
DATED as of June 13, 2001.
/s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx, Incorporator
CONSENT TO APPOINTMENT AS REGISTERED AGENT
HEWM Corporate Services, Inc. hereby consents to serve as registered agent,
in the State of Washington, for the Corporation. It understands that as agent
for the Corporation, it will be its responsibility to accept service of process
in the name of the Corporation; to forward corporate license renewal mailings to
the Corporation; and to immediately notify the office of the Secretary of State
in the event of its resignation or of any change in the registered office
address of the Corporation for which it is the agent.
Dated as of June 13, 2001.
--------------------------------------------------
Vice President, HEWM Corporate Services, Inc.
184076 x00.XX (3Y1801!.DOC)(#184076 v1 - XXXXXXXX articles)
BYLAWS
------
OF
--
XXXXXXXX MERGER CORPORATION
---------------------------
ARTICLES I
SHAREHOLDERS
------------
Section 1. Annual Meeting. The annual meeting of the shareholders of
--------------
the corporation shall be held on the first Tuesday of December each year for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting. In case of incomplete financial or other
information, unavailability of shareholders, officers, directors or other
persons whose attendance at the annual meeting would be desirable or other
similar circumstances, the president in his or her discretion may postpone the
annual meeting. If the annual meeting is postponed, or if the election of
directors shall not be held on the day designated herein for any annual meeting
of the shareholders, or at any adjournment thereof, a special meeting shall be
held as soon as may be convenient as determined by the president, either in lieu
of the annual meeting if the annual meeting was postponed or for the election of
directors if the election was not held at the annual meeting or at any
adjournment thereof. Written or printed notice, stating the place, day, hour
and purpose of the special meeting shall be delivered not less than ten (10) nor
more than sixty (60) days before the date of the special meeting to each
shareholder of record entitled to vote at the meeting; provided however, that in
accordance with RCW 23B.07.050, notice of any meeting at which the shareholders
shall act on an amendment to the articles of incorporation, a plan of merger or
share exchange, a proposed sale of assets, or the dissolution of the
corporation, shall be delivered no fewer than twenty (20) nor more than sixty
(60) days before the meeting date. Notice shall be delivered either personally
or by mail, by or at the direction of the president, by the secretary or by the
officer or persons calling the meeting,. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail addressed to the
shareholder at his or her address as it appears on the stock transfer books of
the corporation, with postage thereon prepaid.
Section 2. Special Meetings. Special meetings of the shareholders
-----------------
may be called for any purpose or purposes by the President, the Secretary, the
Board of Directors or the holders of not less than one-tenth (1/10) of all the
shares entitled to vote at the meeting. Notice of special meetings shall be
given by the President or, at the direction of the President, by the Secretary
or Assistant Secretary to each shareholder of record entitled to vote at such
meetings in the same manner as hereinabove provided in Section 1 of this
Article.
Section 3. Place of Meeting. Meetings, annual or special, of the
------------------
shareholders shall be held at such place as shall be designated by the Board of
Directors, or in the absence of such a designation, at the main office of the
corporation. In addition, shareholders not present at any meeting of
shareholders may nevertheless participate in any such meeting of shareholders by
means of a conference telephone or similar communications equipment by which all
persons participating in
such meeting can hear each other at the same time. A shareholder participating
in a meeting by this means is deemed to be present in person at the meeting.
Section 4. Quorum; Waiver of Notice. A majority of the issued and
---------------------------
outstanding shares entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. Except as provided by law,
the affirmative vote of the majority of the outstanding shares represented at a
meeting and entitled to vote on the subject matter shall be the act of the
shareholders. If a quorum is not present at any annual or special meeting, the
President or a majority of the shareholders present, either in person or by
proxy, may adjourn to such time and place as may be decided upon by the
President or the holders of the majority of the shares present, and notice of
such adjournment shall be given in accordance with Section 1 of this Article;
but if a quorum be present, adjournment may be taken from day to day or to such
time and place as may be decided by the holders of the majority of the shares
present, and no notice of such adjournment need be given. No business shall be
transacted at an adjourned meeting that could not have been transacted at the
meeting from which the adjournment was taken. Whenever any notice is required
to be given pursuant to statute, to the articles of incorporation or to these
Bylaws a waiver thereof signed by the shareholder entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
Any shareholder attending a meeting in person or by proxy without objection
thereto shall be deemed to have waived notice of such meeting. Notice otherwise
complying with the terms hereof may be given by prepaid telegram as the
equivalent of notice by mail.
Section 5. Proxies. At all meetings of shareholders, a shareholder may
-------
vote by proxy executed in writing by the shareholder or by his or her duly
authorized attorney in fact. Such proxy shall be filed with the secretary of
the corporation before or at the time of the meeting. No proxy shall be valid
after 11 months from the date of its execution, unless otherwise provided in the
proxy.
Section 6. Record Date. For the purpose of determining 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, the Board
of Directors may fix in advance a record date for any such determination of
shareholders, such date to be not more than seventy (70) days prior to the date
on which the particular action requiring such determination of shareholders is
to be taken. When a record date is so fixed, only share-holders of record on
that date are entitled to notice of and to vote at the meeting or to receive the
dividend, distribution or allotment of rights, or to exercise the rights, as the
case may be, notwithstanding any transfer of any shares on the books of this
corporation after the record date. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the day
before the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
more than one hundred twenty (120) days after the date is fixed for the original
meeting.
Section 7. Voting Record. After fixing a record date for a shareholders'
-------------
meeting, the corporation shall prepare an alphabetical list of the names of all
shareholders on the record date who are entitled to notice of the shareholders'
meeting. The list shall be arranged by voting group, and within each voting
group by class or series of shares, and show the address of and number of shares
held by each shareholder. A shareholder, shareholder's agent, or a
shareholder's attorney may inspect the shareholder's list, beginning ten (10)
days prior to the shareholders' meeting and continuing through the meeting, at
the corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held during regular business hours
and at the shareholder's expense. The shareholders' list shall be kept open for
inspection during such meeting or any adjournment.
ARTICLE II
BOARD OF DIRECTORS
------------------
Section 1. Board of Directors. The business and affairs of this
--------------------
corporation shall be managed by the Board of Directors.
Section 2. Number, Election and Term of Office. The number of directors
------------------------------------
shall be three (3). The number of directors shall be as set forth in these
Bylaws and as the same may be amended from time to time as provided in Article
IX. In the event of failure to hold or postponement of the annual meeting of
shareholders as herein provided, succeeding directors may be elected at any time
thereafter at a special meeting of shareholders called for that purpose. Each
director shall be elected to serve for a term of one (1) year and until his or
her successor shall have been elected, unless removed as hereinafter provided.
Section 3. Meetings. A regular annual meeting of the Board of Directors
--------
shall be held immediately after, and at the same place as, the annual meeting of
shareholders. No notice of the annual meeting other than this bylaw need be
given unless the meeting is to be held at a place other than the main office of
the corporation, in which case the notice shall be given in the manner provided
in Section 1 of Article I of these Bylaws. The Board of Directors may provide,
by resolution, the time and place for the holding of additional regular meetings
without other notice than such resolution. Special meetings of the Board of
Directors may be called by or at the request of the president or any director.
Notice of any special meeting shall be given at least two (2) days prior thereto
by written notice delivered personally, by courier or mailed to each director at
his or her residential or business address, by telegram, facsimile transmission,
electronic mail transmission or personal communication by telephone. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mails so addressed, with postage thereon prepaid. If given by telegram, such
notice shall be deemed to have been delivered when the telegram is delivered to
the telegraph company. Directors may waive notice of meetings of the Board of
Directors, and a waiver thereof signed by the director entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where the director attends the meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 4. Resignation. Any director may resign at any time by delivering
-----------
written notice to the Board of Directors, its chairperson, the president or the
secretary of the corporation. A resignation shall be effective when the notice
is delivered unless the notice specifies a later effective date.
Section 5. Removal. The entire Board of Directors or any individual
-------
director, at a special meeting of the shareholders called for that purpose, may
be removed from office by a vote of shareholders holding a majority of the
outstanding shares entitled to a vote at an election of directors. If the Board
or any one (1) or more directors is so removed, or if one or more directors
resign, new directors may be elected at the same meeting. If new directors are
not elected at the meeting, the vacancies resulting from their removal shall be
filled in the manner provided in Section 7 of this Article.
Section 6. Quorum and Voting. A majority of the elected, qualified and
-------------------
acting directors shall constitute a quorum for the transaction of business. If
at any meeting of the Board there shall be less than a quorum present, a
majority of the directors present may adjourn to such time and place as may be
decided upon by the majority of the directors present, and notice of such
adjournment shall be given in accordance with Section 3 of this Article; but if
a quorum is present, adjournment may be taken from day to day or to such time
and place as may be decided by the majority of the directors present, and no
notice of such adjournment need be given. When a quorum exists, action may be
taken by a majority vote of the directors present.
Section 7. Vacancies. Vacancies in the Board of Directors shall be filled
---------
by a majority vote of the remaining directors though less than a quorum. In the
event there are no remaining directors, the shareholders shall fill the
vacancies in the Board of Directors at the next annual meeting of shareholders
or at a special meeting of shareholders called for that purpose. A director
selected to fill a vacancy shall hold office until his or her successor shall
have been elected. During the existence of any vacancy the remaining directors
shall possess and may exercise all powers vested in the Board of Directors. (a)
Unless the articles of incorporation provide otherwise, if a vacancy occurs on
the board of directors, including a vacancy resulting from an increase in the
number of directors: (i) the shareholders may fill the vacancy; (ii) the board
of directors may fill the vacancy; or (iii) if the directors in office
constitute fewer than a quorum of the board, they may fill the vacancy by the
affirmative vote of a majority of all the directors in office. (b) If the
vacant office was held by a director elected by holders of one or more
authorized classes or series of shares, only the holders of those classes or
series of shares are entitled to vote to fill the vacancy.
Section 8. Advisory Directors. The Board of Directors shall be and is
-------------------
authorized to appoint such number of Advisory Directors of this corporation as
the Board, in its discretion, may deem appropriate. Advisory Directors shall
act in an advisory capacity only, without authority to vote and without
responsibility for the management of the affairs of the corporation. They shall
have such rights and duties as the Board of Directors may from time to time
prescribe. The term of office of Advisory Directors shall correspond to the
term of office of the members of the Board of Directors
by which they were appointed, but shall be subject to termination at any time
at the discretion of the Board. The Advisory Directors may resign at
any time.
ARTICLE III
EXECUTIVE COMMITTEE
-------------------
The majority of the Board of Directors may designate two or more directors
to constitute an executive committee, which committee between meetings of the
Board of Directors shall have and may exercise all of the authority and powers
of the Board of Directors in the management of the business and affairs of the
corporation, except the appointment and removal of officers, agents and
employees of the corporation or as provided by Section 23B.08.250 of the
Washington Business Corporation Act (the "Act").
ARTICLE IV
----------
ACTION WITHOUT A MEETING
------------------------
Section 1. Actions of Directors or Committees of Directors by Written
--------------------------------------------------------------
Consent. Any corporate action required or permitted by the Articles of
---
Incorporation, Bylaws, or the laws under which this corporation is formed, to be
---
voted upon or approved at a duly called meeting of the directors or committee of
directors may be accomplished without a meeting if one or more unanimous written
consents of the respective directors or committee members, setting forth the
actions so taken, shall be signed, either before or after the action taken, by
all the directors or committee members, as the case may be. Action taken by
unanimous written consent is effective when the last director or committee
member signs the consent, unless the consent specifies a later effective date.
Section 2. Actions of Shareholders by Written Consent. Any action
-----------------------------------------------
required or permitted to be taken at a meeting of shareholders of the
corporation may be taken without a meeting or a vote if the action is taken by
shareholders holding of record or otherwise entitled to vote in the aggregate
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote on the
action were present and voted, provided that at the time the action is taken the
corporation is not a Public Company (as defined in the Act). Notice of the
taking of action by shareholders without a meeting by less than unanimous
written consent of all shareholders entitled to vote on the action shall be
given to those shareholders entitled to vote on the action who have not
consented in writing such that such notice shall be deemed effective (in the
manner described below) no fewer than twenty four (24) hours before the
effective date of the action, except where longer notice is required under the
Act. The notice shall be in writing and may be transmitted by: mail, private
carrier or personal delivery; telegraph or teletype; telephone, wire or wireless
equipment which transmits a facsimile of the notice; or by any other means
permitted by the Act. Written notice shall be effective as provided in Section
23B.01.410 of the Act (specifically including paragraph 5(a) thereof) or any
successor provisions thereto.
Section 3. Telephone Communications. The Board of Directors, or any
-------------------------
committee designated by the Board, may hold any meeting of the Board, or
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. Participation in such a meeting shall constitute presence in person
at the meeting.
ARTICLE V
OFFICERS AND AGENTS
-------------------
Section 1. EXECUTIVE OFFICERS.
-------------------
(a) Number: The initial officers of the corporation shall consist of a
------
Chairman, a President, a Treasurer, and a Secretary and other such officers as
the Board of Directors may designate. Any two or more offices may be held by
the same person.
(b) Election and Tenure: The officers of the corporation shall be
---------------------
elected by the Board of Directors at its first meeting and thereafter at each
regular annual meeting. In the event of a failure to hold the annual meeting as
herein provided, officers may be elected at any time thereafter at a special
meeting of directors called for that purpose. Each officer shall hold office
for the term of one year and until his or her successor shall be elected except
where expressly provided to the contrary in a contract authorized by the Board
of Directors. All officers and agents shall be subject to removal at any time
by the vote of a majority of the entire Board of Directors whenever in the
judgment of the Board the best interests of the corporation will be served by
such removal, without prejudice, however, to any contract rights of the person
so removed.
(c) Vacancies: A vacancy in any office shall be filled by the Board of
---------
Directors at any regular meeting, or at any special meeting called for that
purpose.
(d) Additional Officers and Agents: The Board of Directors may also
---------------------------------
elect such other officers or agents as it may deem necessary, with such
authority and duties as from time to time may be prescribed by the Board of
Directors.
Section 2. Chairman of the Board; President. If the Board of Directors
----------------------------------
elects a Chairman of the Board, such officer shall preside over all meetings of
the Board of Directors and of the shareholders. If there be no Chairman of the
Board, the President shall perform such duties. The Board of Directors shall
designate the Chairman of the Board, the President, or another person as the
chief executive officer and may prescribe the duties and powers of the chief
executive officer. If there be no such designation, the President shall be the
chief executive officer.
Section 3. Vice-Presidents. The vice-presidents, in the order of
---------------
seniority as designated by the Board of Directors, shall in the absence or
disability of the President exercise the powers and
perform the duties of the President. Each vice-president shall also exercise
such other powers and perform such other duties as shall be prescribed by the
Board of Directors, and such powers and duties of the President as may be
designated by the President.
Section 4. Secretary. The secretary shall give such notices of meetings
-----------
of the shareholders and of the Board of Directors as required by these Bylaws,
and shall keep a record of the proceedings of all such meetings. Such record
shall be kept at the principal or registered office of the corporation. He or
she shall have custody of all books and records and papers of the company except
those which are in the care of the treasurer or some other person authorized to
have custody and possession thereof by resolution of the Board of Directors. He
or she is authorized to sign with the president or vice-president in the name of
the corporation all deeds, notes, mortgages and contracts including those in any
way affecting real property or interests therein and shall affix the seal of the
corporation thereto when required in the regular course of business. He or she
shall submit such reports to the Board of Directors as may be requested by them
from time to time.
Section 5. Assistant Secretary. The assistant secretary shall, in the
--------------------
absence or disability of the secretary, exercise the powers and perform the
duties of the secretary. He or she shall also exercise such other powers and
perform such other duties as may be prescribed by the Board of Directors and
such powers and duties of the secretary as may be designated by the president or
secretary.
Section 6. Treasurer. The treasurer shall from time to time make such reports
---------
to the officers, Board of Directors and shareholders as may be required, and
shall perform such other duties as the Board of Directors shall from time to
time delegate to him or her.
ARTICLE VI
SHARES
------
Section 1. Certificates. Shares of stock of the corporation shall be
------------
represented by stock certificates which shall be in a form adopted by the Board
of Directors, provided all such stock certificates shall be consecutively
numbered, and shall express upon their face the number thereof, the date of
issuance, the number of shares for which and the person to whom issued and the
class thereof, and all such stock certificates shall be signed by any two (2)
officers of the corporation and may be sealed with the corporate seal, if any.
In addition, each certificate shall express upon its face that the corporation
is organized under the laws of the state of Washington and shall also express
the par value of the shares represented by the certificate, or shall state that
the shares are without par value, as may be appropriate. Each certificate shall
state upon the face or back thereof, in full or in summary, all of the
designations, preferences, limitations, restrictions on transfer and relative
rights of the shares of each class authorized to be issued.
Section 2. Subscriptions. Subscriptions for shares of stock of the
-------------
corporation shall be paid in full at such time, or in such installments and at
such times, as the Board of Directors may determine. In case of default in the
payment of any installment or call when such payment is due, the Board of
Directors may declare the shares and all previous payments thereon forfeited for
the use of the corporation, in the manner prescribed by the Act.
Section 3. Consideration for Shares. Shares of the corporation may be
--------------------------
issued for such consideration as shall be determined by the Board of Directors
to be adequate. The consideration for the issuance of shares may be paid in
whole or in part in cash, or any tangible or intangible property or benefit to
the corporation, including but not limited to promissory notes, services
performed, contracts for services to be performed, or other securities of the
corporation. Establishment by the Board of Directors of the amount of
consideration received or to be received for shares of the corporation shall be
deemed to be a determination that the consideration so established is adequate.
Section 4. Transfer of Shares. Transfer of shares of the corporation
--------------------
shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his or her legal representative, who shall furnish
proper evidence of authority to transfer, or by his or her attorney thereunto
authorized by power of attorney duly executed and filed with the secretary of
the corporation, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be owner thereof for all purposes. All
certificates surrendered to the corporation for transfer shall be canceled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except that in case
of a lost, destroyed or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the corporation as the Board of Directors may
prescribe. The record of shareholder and stock transfer books shall be kept at
the principal or registered office of the corporation or at the office of its
transfer agent or registrar, if any.
ARTICLE VII
-----------
BOOKS AND RECORDS
-----------------
Books of Accounts, Minutes and Share Register. The corporation shall keep
----------------------------------------------
as permanent records minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee of
the Board of Directors exercising the authority of the Board of Directors on
behalf of the corporation. The corporation shall maintain appropriate
accounting records. The corporation or its agent shall maintain a record of its
shareholders, in a form that permits preparation of a list of the names and
addresses of all shareholders, in alphabetical order by class of shares showing
the number and class of shares held by each. The corporation shall keep a copy
of the following records at its principal office: the Articles or Restated
Articles of Incorporation and all amendments to them currently in effect; the
Bylaws or Restated Bylaws and all amendments to them currently in effect; the
minutes of all shareholders' meetings, and records of all actions taken by
shareholders without a meeting, for the past three (3) years; its financial
statements for the past three (3) years, including balance sheets showing in
reasonable detail the financial condition of the corporation as of the close of
each fiscal year, and an income statement showing the results of its operations
during each fiscal year prepared on the basis of generally accepted accounting
principles or, if not, prepared on a basis explained therein; all written
communications to shareholders generally within the past three (3)
years; a list of the names and business addresses of its current directors and
officers; and its most recent annual report delivered to the Secretary of State
of Washington.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Section 1. Each individual who was or is made a party or is threatened to
be made a party to or is involved (including, without limitation, as a witness)
in any actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of the corporation or, being or having been such a
director or officer, he or she is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity, shall be indemnified and held harmless by the
corporation to the maximum extent permitted by applicable law as then in effect,
against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) actually or reasonably incurred or suffered by such
individual in connection therewith. Such indemnification shall continue as to
any such individual who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of his or her heirs, executors and
administrators. No indemnification shall be provided under this Article VIII to
any such individual if the corporation is prohibited by the nonexclusive
provisions of its organizing statute, as then in effect, from paying such
indemnification. The right to indemnification conferred in this section shall
be a contract right and shall include the right to be paid by the corporation
reasonable expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that the Board of Directors may, but shall
not be obligated, to condition such payment of such expenses in advance of the
final disposition of a proceeding upon delivery to the corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Article or otherwise, which
undertaking may be unsecured and may be accepted without reference to financial
ability to make repayment.
Section 2. The right to indemnification and the payment of reasonable
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article shall not be exclusive of any other right which any
individual may have or hereafter acquire under any statute, provision of the
Articles of Incorporation, Bylaws, agreement, vote of shareholders or
disinterested directors or otherwise.
Section 3. If a claim under this Article VIII is not paid in full by the
corporation within sixty (60) days after a written claim has been received by
the corporation, or if a claim for expenses incurred in defending a proceeding
in advance of its final disposition authorized under Section 1 of this Article
VIII is not paid in full by the corporation within twenty (20) days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, to the extent
successful in whole or in part, the claimant shall be entitled also to be paid
the expense of prosecuting such claim. The claimant shall be presumed to be
entitled to indemnification hereunder upon submission of a written claim
(and, in an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition, where the
required undertaking has been tendered to the corporation), and thereafter the
corporation shall have the burden of proof to overcome the presumption that
the claimant is so entitled. It shall be a defense to any such action with
respect to expenses authorized under Article VIII that the claimant has not met
the standards of conduct which make it permissible hereunder or under the Act
for the corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation. Neither the failure
of the corporation (including its Board of Directors, officers, independent
legal counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of or reimbursement or
advancement of expenses to the claimant is proper in the circumstances because
he or she has met the applicable standard set forth herein or in the Act nor
(except as provided herein) an actual determination by the corporation
(including its Board of Directors, officers, independent legal counsel, or its
shareholders) that the claimant is not entitled to indemnification or to the
reimbursement or advancement of expenses shall be a defense to the action or
create a presumption that the claimant is not so entitled.
Section 4. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such individual against such expense, liability or
loss under applicable statutes. The corporation may enter into contracts with
any director or officer of the corporation in furtherance of the provisions of
this Article and may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure the payment
of such amounts as may be necessary to effect indemnification as provided in
this Article.
Section 5. The corporation may, by action of its Board of Directors from
time to time, provide indemnification and pay reasonable expenses in advance of
the final disposition of a proceeding to employees and agents of the corporation
with the same scope and effect as the provisions of this Article with respect to
the indemnification and advancement of expenses of directors and officers of the
corporation or pursuant to rights granted pursuant to, or provided by, its
organizing statute or otherwise.
ARTICLE IX
AMENDMENT OF BYLAWS
-------------------
Section 1. By the Shareholders. These Bylaws may be amended, altered or
----------------------
repealed at any regular or special meeting of the shareholders if notice of the
proposed alteration or amendment is contained in the notice of the meeting.
Section 2. By the Board of Directors. These Bylaws may be amended,
-----------------------------
altered or repealed by the affirmative vote of a majority of the whole Board of
Directors at any regular or special meeting of the Board.
* * * * *
I hereby certify that the foregoing Bylaws consisting of ten (10) pages, are the
Bylaws of the Corporation adopted by the directors and approved by all of the
shareholders of the Corporation and that they are the whole thereof exactly as
adopted, and that I make this certificate to identify the same pursuant to
instructions of the Board of Directors.
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, Secretary
Date: June 18, 2001
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