Exhibit 3.5
AMENDED AND RESTATED BYLAWS
OF
TRI POINTE HOLDINGS, INC.
SECTION 1
SHAREHOLDERS AND SHAREHOLDERS’ MEETINGS
1.1Annual Meeting. The annual meeting of the shareholders of this corporation (the “Corporation”) for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at the principal office of the Corporation, or at some other place either within or without the State of Washington as designated by the Board of Directors, on the day and at the time specified in Exhibit A, which is attached hereto and incorporated herein by this reference, or on such other day and time as may be set by the Board of Directors. If the specified day is a Sunday or a legal holiday, then the meeting will take place on the next business day at the same time or on such other day and time as may be set by the Board of Directors.
1.2Special Meetings. Special meetings of the shareholders for any purpose or purposes may be called at any time by the Board of Directors, the Chairman, the Chief Executive Officer, the President, or a majority of the Board of Directors, or any shareholder or shareholders holding in the aggregate two thirds of the voting power of all shareholders. The meetings shall be held at such time and place as the Board of Directors may prescribe, or, if not held upon the request of the Board of Directors, at such time and place as may be established by the President or by the Secretary in the President’s absence. Only business within the purpose or purposes described in the meeting notice may be conducted.
1.3Notice of Meetings. Notice of the place, date and time of the annual shareholders’ meeting and notice of the place, date, time and purpose or purposes of special shareholders’ meetings shall be delivered not less than 10 (or, if required by Washington law, 20) or more than 60 days before the date of the meeting, (i) by tangible medium transmitted by mail, private carrier, personal delivery, telephone, wire or wireless equipment which transmits a facsimile of the notice, (ii) by electronic transmission in accordance with applicable law, or (iii) in any other manner approved by law, by or at the direction of the President or the Secretary, to each shareholder of record entitled to notice of such meeting. Notice given in accordance with the foregoing shall be effective when and as provided under applicable law.
1.4Waiver of Notice. Except where expressly prohibited by law or the Corporation’s articles of incorporation, notice of the place, date, time and purpose or purposes of any shareholders’ meeting may be waived by any shareholder at any time, either before or after the meeting. Such waiver may be provided by the shareholder to the Corporation either (i) in an executed and dated written record or (ii) if the Corporation has designated an address, location or system to which such waiver may be electronically transmitted and such waiver is electronically transmitted to such designated address, location, or system, in an executed and dated electronically transmitted record. Attendance at the meeting in person or by proxy waives
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objection to lack of notice or defective notice of the meeting unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. A shareholder waives objection to consideration of a particular matter at a meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
1.5Shareholders’ Action Without a Meeting. Any action that may be taken at a meeting of the shareholders may be taken without a meeting or a vote if (i) the action is taken by a single consent or multiple counterpart consents of all shareholders entitled to vote on the action and each such consent is in the form of an executed record and delivered to the Corporation or (ii) the action is taken by a single consent or multiple consents of 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 approve or take such action at a meeting at which all shares entitled to vote on the action were present and voted, and each such consent is in the form of an executed record and delivered to the Corporation. The Corporation shall comply with any provisions of the Washington business corporation act that require notice by the Corporation in connection with shareholder consents being sought or obtained for approval of any corporation action. Any consent delivered to the Corporation pursuant to this Section 1.5 shall be inserted in the minute book as if it were the minutes of a meeting of the shareholders and each consent shall be (i) in an executed record or (ii) if the Corporation has designated an address, location, or system to which the consent may be electronically transmitted and the consent is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record.
1.6Telephone Meetings. Shareholders may participate in a meeting of shareholders by means of a conference telephone or any similar communications equipment that enables all persons participating in the meeting to hear each other during the meeting. Participation by such means shall constitute presence in person at a meeting.
1.7List of Shareholders. At least 10 days before any shareholders’ meeting, the Secretary of the Corporation or the agent having charge of the share transfer books of the Corporation shall have compiled a complete list of the shareholders entitled to notice of a shareholders’ meeting, arranged in alphabetical order and by voting group, with the address of each shareholder and the number, class, and series, if any, of shares owned by each.
1.8Quorum and Voting. The presence in person or by proxy of the holders of a majority of the votes entitled to be cast on a matter at a meeting shall constitute a quorum of shareholders for that matter. If a quorum exists, action on a matter shall be approved by a voting group if the votes cast within a voting group favoring the action exceed the votes cast within the voting group opposing the action, unless a greater number of affirmative votes is required by the Corporation’s articles of incorporation or by law. If the Corporation’s articles of incorporation or Washington law provide for voting by two or more voting groups on a matter, action on a matter is taken only when voted upon by each of those voting groups counted separately. Action may be taken by one voting group on a matter even though no action is taken by another voting group.
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1.9Adjourned Meetings. If a shareholders’ meeting is adjourned to a different place, date or time, whether for failure to achieve a quorum or otherwise, notice need not be given of the new place, date or time if the new place, date or time is announced at the meeting before adjournment. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in these bylaws, that determination shall apply to any adjournment thereof, unless Washington law requires fixing a new record date. If Washington law requires that a new record date be set for the adjourned meeting, notice of the adjourned meeting must be given to shareholders as of the new record date. Any business may be transacted at an adjourned meeting that could have been transacted at the meeting as originally called.
1.10Proxies. A shareholder may appoint a proxy to vote or otherwise act for the shareholder by (i) executing a writing authorizing another person or persons to act for the shareholder as proxy or (ii) transmitting or authorizing the transmission of an electronic transmission which contains or is accompanied by information from which it can be reasonably verified that the transmission was authorized by the shareholder or by the shareholder’s attorney-in-fact. The Corporation shall require the holders of proxies by transmission to provide to the Corporation copies of the transmission and the Corporation shall retain copies of the transmission for at least 60 days after each shareholder vote or action where such proxy was exercised. The appointment shall be valid for 11 months unless the appointment form expressly provides for a longer period. An appointment of a proxy is revocable unless the appointment is coupled with an interest. No revocation shall be effective until written notice thereof has actually been received by the Secretary of the Corporation or any other person authorized to tabulate votes.
1.11Fixing Record Date. The Board of Directors may fix in advance a date as the record date for determining shareholders entitled: (i) to notice of or to vote at any shareholders’ meeting or any adjournment thereof; (ii) to receive payment of any share dividend; or (iii) to receive payment of any distribution. The Board of Directors may in addition fix record dates with respect to any allotment of rights or conversion or exchange of any securities by their terms, or for any other proper purpose, as determined by the Board of Directors and by law. The record date shall be not more than 70 days and, in case of a meeting of shareholders, not less than 10 days (or such longer period as may be required by Washington law) prior to the date on which the particular action requiring determination of shareholders is to be taken. If no record date is fixed for determining the shareholders entitled to notice of or to vote at a meeting of shareholders, the record date shall be the date before the day on which notice of the meeting is delivered. If no record date is fixed for the determination of shareholders entitled to a distribution (other than one involving a purchase, redemption, or other acquisition of the Corporation’s own shares), the record date shall be the date on which the Board adopted the resolution declaring the distribution. If no record date is fixed for determining shareholders entitled to a share dividend, the record date shall be the date on which the Board of Directors authorized the dividend.
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SECTION 2
BOARD OF DIRECTORS
2.1Number and Qualification. The business affairs and property of the Corporation shall be managed under the direction of a Board of Directors. The number of directors of the Corporation is set forth in Exhibit A. The Board of Directors may increase or decrease this number by resolution, but in no event shall the actual number of directors be less than three (3). A decrease in the number of directors shall not shorten the term of an incumbent director.
2.2Election; Term of Office. The directors shall be elected by the shareholders at each annual shareholders’ meeting or at a special shareholders’ meeting called for such purpose. Despite the expiration of a director’s term, that director continues to serve until that director’s successor is elected and qualified or until there is a decrease in the authorized number of directors.
2.3Vacancies. Except as otherwise provided by law, vacancies in the Board of Directors, whether caused by resignation, death, retirement, disqualification, removal, increase in the number of directors, or otherwise, may be filled for the remainder of the term by the Board of Directors, by the shareholders, or, if the directors in office constitute less than a quorum of the Board of Directors, by an affirmative vote of a majority of the remaining directors. The term of a director elected to fill a vacancy expires at the next shareholders’ meeting at which directors are elected. A vacancy that will occur at a specific later date may be filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
2.4Quorum and Voting. At any meeting of the Board of Directors, the presence in person (including presence by electronic means such as a telephone conference call) of a majority of the number of directors presently in office shall constitute a quorum for the transaction of business. Notwithstanding the foregoing, in no case shall a quorum be less than one-third of the authorized number of directors. If a quorum is present at the time of a vote, the affirmative vote of a majority of the directors present at the time of the vote shall be the act of the Board of Directors and of the Corporation except as may be otherwise specifically provided by the Corporation’s articles of incorporation, by these bylaws, or by law. A director who is present at a meeting of the Board of Directors when action is taken is deemed to have assented to the action taken unless: (i) the director objects at the beginning of the meeting, or promptly upon the director’s arrival, to holding the meeting or to transacting business at the meeting; (ii) the director’s dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) the director delivers notice of the director’s dissent or abstention to the presiding officer of the meeting before the adjournment of the meeting or to the Corporation within a reasonable time after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.
2.5Annual Meeting. The annual meeting of the Board of Directors of the Corporation shall be held immediately following the adjournment of the annual meeting of the shareholders at the office of the Corporation, or at such other place as may have been designated for the holding of the annual meeting of shareholders pursuant to Section 1.1 hereof.
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2.6Regular Meetings. Regular meetings of the Board of Directors shall be held at such place, date and time as shall from time to time be fixed by resolution of the Board of Directors.
2.7Special Meetings. Special meetings of the Board of Directors may be held at any place and at any time and may be called by the Chairman, the Chief Executive Officer, the President, or any two or more directors.
2.8Notice of Meetings. Unless the Corporation’s articles of incorporation provide otherwise, any annual meeting or regular meeting of the Board of Directors may be held without notice of the date, time, place, or purpose of the meeting. Any special meeting of the Board of Directors must be preceded by at least two days notice of the date, time, and place of the meeting, but not of its purpose, unless the Corporation’s articles of incorporation or these bylaws require otherwise. Notice may be given (i) orally, (ii) by tangible medium transmitted by mail, private carrier, personal delivery, telephone, wire or wireless equipment which transmits a facsimile of the notice, (iii) by electronic transmission in accordance with applicable law, or (iv) in any other manner allowed by law. Oral notice shall be sufficient only if a record of such notice is included in the Corporation’s minute book. Notice given in accordance with the foregoing shall be effective as provided by applicable law. Notice of any meeting of the Board of Directors may be waived by any director at any time. The waiver shall be set forth either (i) in an executed record or (ii) if the Corporation has designated an address, location, or system to which waiver may be electronically transmitted and the waiver is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. The waiver shall be delivered to the Corporation for inclusion in the minutes, either before or after the meeting. Attendance or participation by a director at a meeting shall constitute a waiver of any required notice of the meeting unless the director promptly objects to holding the meeting or to the transaction of any business on the grounds that the meeting was not lawfully convened and the director does not thereafter vote for or assent to action taken at the meeting.
2.9Directors’ Action Without A Meeting. The Board of Directors or a committee thereof may take any action without a meeting that it could properly take at a meeting if one or more consents setting forth the action are executed by all of the directors, or all of the members of the committee, as the case may be, either before or after the action is taken, and if the consents are delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Consents shall be set forth either (i) in an executed record or (ii) if the Corporation has designated an address, location, or system to which the consent may be electronically transmitted and the consent is electronically transmitted to the designated address, location, or system, in an executed electronically transmitted record. Such action shall be effective when the last director executes the consent, unless the consent specifies a later effective date.
2.10Committees of the Board of Directors. The Board of Directors, by resolutions adopted by a majority of the directors in office, may create from among its members one or more committees and shall appoint the members thereof. Each such committee must have two or more members, who shall be directors and who shall serve at the pleasure of the Board of Directors. Each committee of the Board of Directors may exercise the authority of the Board of Directors to the extent provided in its enabling resolution and any pertinent subsequent resolutions adopted in
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like manner, provided that the authority of each such committee shall be subject to applicable law. Each committee of the Board of Directors shall keep regular minutes of its proceedings and shall report to the Board of Directors when requested to do so.
2.11Telephone Meetings. Members of the Board of Directors or of any committee appointed by the Board of Directors may participate in a meeting of the Board of Directors or committee by means of a conference telephone or similar communications equipment that enables all persons participating in the meeting to hear each other during the meeting. Participation by such means shall constitute presence in person at a meeting.
2.12Compensation of Directors. The Board of Directors may fix the compensation of directors as such and may authorize the reimbursement of their expenses.
SECTION 3
OFFICERS
3.1Officers Enumerated; Appointment. The officers of the Corporation shall consist of such officers and assistant officers as may be appointed or otherwise designated by resolution of the Board of Directors. The officers may include a Chairman, a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary, a Chief Financial Officer or Treasurer, and any assistant officers. The officers shall hold office at the pleasure of the Board of Directors. Unless otherwise restricted by the Board of Directors, the President may appoint any assistant officer, the Secretary may appoint one or more Assistant Secretaries, and the Treasurer may appoint one or more Assistant Treasurers, but any such appointments must be recorded in writing in the corporate records.
3.2Qualifications. None of the officers of the Corporation need be a director. Any two or more corporate offices may be held by the same person.
3.3Duties of the Officers. Unless otherwise prescribed by the Board of Directors, the duties of the officers shall be as follows:
Chairman. The Chairman, if one is appointed, shall preside at meetings of the Board of Directors and of the shareholders, shall be responsible for carrying out the plans and directives of the Board of Directors, shall report to and consult with the Board of Directors and, if the Board so resolves, shall be the Chief Executive Officer. The Chairman shall have such other powers and duties as the Board of Directors may from time to time prescribe.
Chief Executive Officer. The Chief Executive Officer shall exercise the usual executive powers pertaining to the office of Chief Executive Officer. In the absence of a Chairman and the President, the Chief Executive Officer shall preside at meetings of the Board of Directors and of the shareholders. The Chief Executive Officer shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and the officers of the Corporation.
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President. The President shall exercise the usual executive powers pertaining to the office of President. In the absence of a Chairman, the President shall preside at meetings of the Board of Directors and of the shareholders, perform the other duties of the Chairman prescribed in this Section, and perform such other duties as the Board of Directors may from time to time designate. In addition, if there is no Secretary in office, the President shall perform the duties of the Secretary.
Vice President. Each Vice President (if any) shall perform such duties as the Board of Directors may from time to time designate.
Secretary. The Secretary shall be responsible for and shall keep, personally or with the assistance of others: records of the proceedings of the directors and shareholders; authenticate records of the Corporation; attest all share certificates in the name of the Corporation; keep the corporate seal, if any, and affix the same to share certificates and other proper documents; keep a record of the issuance of share certificates and the transfers of the same; and perform such other duties as the Board of Directors may from time to time designate.
Chief Financial Officer/Treasurer. The Chief Financial Officer or Treasurer shall have the care and custody of, and be responsible for, all funds and securities of the Corporation and shall cause to be kept regular books of account. The Chief Financial Officer or Treasurer shall cause to be deposited all funds and other valuable effects in the name of the Corporation in such depositories as may be designated by the Board of Directors. In general, the Chief Financial Officer or Treasurer shall perform all of the duties incident to the office of Treasurer, and such other duties as from time to time may be assigned by the Board of Directors.
Assistant Officers. Assistant officers may consist of one or more Assistant Vice Presidents, one or more Assistant Secretaries, and one or more Assistant Treasurers. Each assistant officer shall perform those duties assigned to that assistant officer from time to time by the Board of Directors, the President, or the officer who appointed that assistant officer.
3.4Vacancies. Vacancies in any office arising from any cause may be filled by the Board of Directors at any regular or special meeting.
3.5Removal. Any officer or agent may be removed by action of the Board of Directors with or without cause, but any removal shall be without prejudice to the contract rights, if any, of the person removed. Appointment or other designation of an officer or agent shall not of itself create any contract rights.
3.6Compensation. The compensation of all officers of the Corporation shall be fixed by the Board of Directors.
SECTION 4
SHARES AND CERTIFICATES OF SHARES
4.1Share Certificates. Share certificates shall be issued in numerical order, and each shareholder shall be entitled to a certificate signed by the Chief Executive Officer, the President
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or a Vice President, and attested by the Secretary or an Assistant Secretary. Share certificates may be sealed with the corporate seal, if any. Facsimiles of the signatures and seal may be used as permitted by law. Every share certificate shall state:
| (a) | the name of the Corporation; |
| (b) | that the Corporation is organized under the laws of the State of Washington; |
| (c) | the name of the person to whom the share certificate is issued; |
| (d) | the number, class and series (if any) of shares that the certificate represents; and |
| (e) | if the Corporation is authorized to issue shares of more than one class or series, that upon written request and without charge, the Corporation will furnish any shareholder with a full statement of the designations, preferences, limitations and relative rights of the shares of each class or series, and the authority of the Board of Directors to determine variations for future series. |
4.2Consideration 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 in 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.
4.3Transfers. Shares may be transferred by delivery of the certificate, accompanied either by an assignment in writing on the back of the certificate, or by a written power of attorney to sell, assign and transfer the same, signed by the record holder of the certificate. Except as otherwise specifically provided in these bylaws, no shares shall be transferred on the books of the Corporation until the outstanding certificate therefor has been surrendered to the Corporation.
4.4Loss or Destruction of Certificates. In the event of the loss or destruction of any certificate, a new certificate may be issued in lieu thereof upon satisfactory proof of such loss or destruction, and upon the giving of security against loss to the Corporation by bond, indemnity or otherwise, to the extent deemed necessary by the Board of Directors, the Secretary or the Treasurer.
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SECTION 5
BOOKS, RECORDS AND REPORTS
5.1Records of Corporate Meetings, Accounting Records and Share Registers. The Corporation shall keep, as permanent records, minutes of all meetings of the Board of Directors and shareholders, and all actions taken without a meeting, and all actions taken by a committee exercising the authority of the Board of Directors. The Corporation or its agent shall maintain, in a form that permits preparation of a list, a list of the names and addresses of its shareholders, in alphabetical order by class of shares, and the number, class, and series, if any, of shares held by each. The Corporation shall also maintain appropriate accounting records, and at its principal place of business shall keep copies of: (i) its articles of incorporation or restated articles of incorporation and all amendments in effect; (ii) its bylaws or restated bylaws and all amendments in effect; (iii) minutes of all shareholders’ meetings and records of all actions taken without meetings for the past three years; (iv) the year-end balance sheets and income statements for the past three fiscal years, prepared as required by Washington law; (v) all communications to shareholders generally in the past three years; (vi) a list of the names and business addresses of its current officers and directors; and (vii) its most recent annual report to the Secretary of State.
5.2Copies of Corporate Records. Any person dealing with the Corporation may rely upon a copy of any of the records of the proceedings, resolutions, or votes of the Board of Directors or shareholders, when certified by the Chairman, the Chief Executive Officer, the President, any Vice President, the Secretary or the Assistant Secretary.
5.3Examination of Records. A shareholder shall have the right to inspect and copy, during regular business hours at the principal office of the Corporation, in person or by that shareholder’s attorney or agent, the corporate records referred to in the last sentence of Section 5.1 of these bylaws if the shareholder gives the Corporation notice of the demand at least five business days before the date on which the shareholder wishes to make such inspection. In addition, if a shareholder’s demand is made in good faith and for a proper purpose, a shareholder may inspect and copy, during regular business hours at a reasonable location specified by the Corporation, excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors, records of actions taken by the Board of Directors without a meeting, minutes of shareholders’ meetings held or records of action taken by shareholders without a meeting not within the past three years, accounting records of the Corporation, or the record of shareholders; provided that the shareholder shall have made a demand describing with reasonable particularity the shareholder’s purpose and the records the shareholder desires to inspect, and provided further that the records are directly connected to the shareholder’s purpose. This Section 5.3 shall not affect any right of shareholders to inspect records of the Corporation that may be otherwise granted to the shareholders by law.
5.4Waiver of Section 1501 of California General Law. To the extent that the Corporation is subject to compliance with Section 1501 of the California General Corporation Law, so long as the Corporation has less than 100 holders of record of its shares, the annual report to shareholders referred to in Section 1501 of the California Corporations Code is expressly dispensed with, but nothing herein may be interpreted as prohibiting the Board of
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Directors from issuing annual or other periodic reports to the shareholders of the Corporation as they consider appropriate.
5.5Financial Statements. Not later than four months after the end of each fiscal year, or in any event prior to its annual meeting of shareholders, the Corporation shall prepare a balance sheet and income statement in accordance with Washington law. The Corporation shall furnish a copy of each to any shareholder upon request. Such request shall be set forth in either (i) a written record or (ii) if the Corporation has designated an address, location, or system to which such request may be electronically transmitted and such request is electronically transmitted to the Corporation such designated address, location, or system, in an electronically transmitted record.
SECTION 6
FISCAL YEAR
The fiscal year of the Corporation shall be as set forth in Exhibit A.
SECTION 7
CORPORATE SEAL
The corporate seal of the Corporation, if any, shall be in the form shown on Exhibit A.
SECTION 8
MISCELLANEOUS PROCEDURAL PROVISIONS
The Board of Directors may adopt rules of procedure to govern any meetings of shareholders or directors to the extent not inconsistent with law, the Corporation’s articles of incorporation, or these bylaws, as they are in effect from time to time. In the absence of any rules of procedure adopted by the Board of Directors, the chair of the meeting shall make all decisions regarding the procedures for any meeting.
SECTION 9
AMENDMENT OF BYLAWS
The Board of Directors is expressly authorized to make, alter and repeal the bylaws of the Corporation, subject to the power of the shareholders of the Corporation to change or repeal the bylaws.
SECTION 10
INDEMNIFICATION OF DIRECTORS AND OTHERS
10.1Grant of Indemnification. Subject to Section 10.2, each person 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 threatened, pending, or completed action, suit or proceeding, whether formal or informal, civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director of the Corporation or who, while a director of
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the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of the Corporation or another corporation or of a partnership, joint venture, trust, other enterprise, or employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by applicable law, as then in effect, against all expense, liability and loss (including attorneys’ fees, costs, judgments, fines, ERISA excise taxes or penalties and amounts to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, and such indemnification shall continue as to a person who has ceased to be a director and shall inure to the benefit of his or her heirs, executors and administrators.
10.2Limitations on Indemnification. Notwithstanding Section 10.1, no indemnification shall be provided hereunder to any such person to the extent that such indemnification would be prohibited by the Washington business corporation act or other applicable law as then in effect, nor, except as provided in Section 10.4 with respect to proceedings seeking to enforce rights to indemnification, shall the Corporation indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person except where such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
10.3Advancement of Expenses. The right to indemnification conferred in this Section 10 shall include the right to be paid by the Corporation the reasonable expenses incurred in defending any such proceeding in advance of its final disposition, except where the Board of Directors shall have adopted a resolution expressly disapproving such advancement of expenses, if the director furnishes the Corporation (i) a written affirmation of the director’s good faith belief that the director has met the standard of conduct as described by the Washington business corporation act, and (ii) a written undertaking, executed personally or on the director’s behalf to repay the advance if it is ultimately determined that the director did not meet the standard of conduct as described by the Washington business corporation act, which undertaking must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. The authorization of payments for such advancement of expenses may be made by resolution adopted by the shareholders or the Board of Directors.
10.4Right to Enforce Indemnification. If a claim under Section 10.1 is not paid in full by the Corporation within 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 10.3 is not paid within 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 to be paid also 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 (other than
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an action with respect to expenses authorized under Section 10.3) that the claimant has not met the standards of conduct which make it permissible hereunder or under the Washington business corporation 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, 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 the claimant has met the applicable standard of conduct set forth herein or in the Washington business corporation act nor (except as provided in Section 10.3) 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.
10.5Nonexclusivity. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 10 shall be valid to the extent consistent with Washington law.
10.6Indemnification of Officers, Employees and Agents. 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 officers, employees and agents of the Corporation on the same terms and with the same scope and effect as the provisions of this Section 10 with respect to the indemnification and advancement of expenses of directors of the Corporation or pursuant to rights granted pursuant to, or provided by, the Washington business corporation act or on such other terms as the Board may deem proper.
10.7Insurance and Other Security. The Corporation may maintain insurance, at its expense, to protect itself and any individual who is or was a director, officer, employee or agent of the Corporation or another corporation, a partnership, a joint venture, a trust or other enterprise against any liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as an officer, director, agent, or employee, whether or not the Corporation would have the power to indemnify such person against the same liability under the Washington business corporation act. The Corporation may enter into contracts with any director or officer of the Corporation in furtherance of the provisions of this Section 10 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 Section 10.
10.8Amendment or Modification. This Section 10 may be altered or amended at any time as provided in these bylaws, but no such amendment shall have the effect of diminishing the rights of any person who is or was an officer or director as to any acts or omissions taken or omitted to be taken prior to the effective date of such amendment.
10.9Effect of Section. The rights conferred by this Section 10 shall be deemed to be contract rights between the Corporation and each person who is or was a director or an officer.
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The Corporation expressly intends each such person to rely on the rights conferred hereby in performing such person’s respective duties on behalf of the Corporation.
SECTION 11
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Unless otherwise restricted by the Board of Directors, the Chairman, the Chief Executive Officer, the President, any Vice President and the Secretary of the Corporation are each authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares of other corporations standing in the name of the Corporation. This authority may be exercised by any such officer either in person or by a duly executed proxy or power of attorney.
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EXHIBIT A
Section 1.1. | Date and time of annual shareholders’ meeting: the third Thursday in April. | |
Section 2.1. | Number of directors, unless and until changed by resolution of the Board of Directors: three (3). | |
Section 6. | Fiscal year: the period from and including January 1 to and including December 31 of each calendar year. | |
Section 7. | The corporate seal shall be the one of which an impression is affixed in the left-hand margin of this Exhibit A, bearing the words: | |
[ ]
CORPORATE SEAL
WASHINGTON 1970
Date bylaws Adopted: [ ], 201[ ]
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