Exhibit 3.1
Amendments to By-Laws of Energy West, Incorporated
1. Section 2.2 is amended and restated in its entirety:
"Section 2.2 Annual Meetings of the Stockholders. The Company shall conduct
an annual meeting of stockholders in the month of November of each year or such
other time as by resolution of the Board of Directors (and compliant with
existing law) may be determined. The day of the month for such meeting shall be
determined by the Board of Directors. At each annual meeting, directors shall be
elected in accordance with the provisions of the Articles of Incorporation of
the Company (hereinafter called "Articles of Incorporation") and these By Laws.
Each annual meeting shall be a general meeting, open for the transaction of any
business within the powers of the Company, without special notice of such
business, except in any case where special notice may be required by the laws of
the State of Montana or the Articles of Incorporation or these By Laws. Each
holder of shares entitled to vote at the meeting shall be entitled to one vote
for each share held and may vote and otherwise act in person or by proxy."
2. The following Sections 2.8 and 2.9 are hereby added at the end of
Article II.
"Section 2.8. Advance Notification of Business to be Transacted at Annual
Meetings. No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the board of directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the board of directors (or
any duly authorized committee thereof), or (c) otherwise properly brought before
the annual meeting by any stockholder of the Company (i) who is a stockholder of
record on the date of the giving of the notice by such stockholder as provided
for in this Section 2.8 and on the record date for the determination of
stockholders entitled to vote at such annual meeting, and (ii) who complies with
the notice procedures set forth in this Section.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the secretary of
the Company.
To be timely, a stockholder's notice to the secretary must be delivered to
or mailed and received at the principal executive offices of the Company no
earlier than the date that is 120 calendar days prior to the date of the annual
meeting at which such business is proposed to be brought, and not later than 60
calendar days prior to the date of such annual meeting; provided that in the
event that there has not been a public disclosure of the date of the annual
meeting at least 70 calendar days prior to the date of such meeting, then a
stockholder's notice to the secretary pursuant to this Section 2.8 shall be
timely if given no later than 10 calendar days following the first date upon
which public disclosure of the date of such annual meeting shall have been made.
To be in proper written form, a stockholder's notice to the secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock of
the Company which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
No business shall be conducted at the annual meeting of stockholders,
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.8; provided, however, that once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.8 shall be deemed to preclude discussion
by any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
For purposes of these by-laws, "public disclosure" shall mean disclosure by
the Company in a press release reported by the Dow Jones, Associated Press,
Reuters, PR Newswire or comparable national news service, or in a document
publicly filed by the Company with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 2.9. Nomination of Directors. Nominations of persons for election
to the board of directors may be made at any annual meeting of stockholders (a)
by or at the direction of the board of directors (or any duly authorized
committee thereof) or (b) by any stockholder of the Company (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section. Persons nominated by a stockholder of the
Company shall only be eligible for election as directors of the Company if such
persons are nominated in accordance with the following procedures.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the secretary of the Company.
To be timely, a stockholder's notice to the secretary pursuant to this
Section 2.9 must be delivered to or mailed and received at the principal
executive offices of the Company no later than the last date upon which notice
may timely be delivered pursuant to Section 2.8 to the secretary of the Company
by a stockholder seeking to bring business before the annual meeting.
To be in proper written form, a stockholder's notice to the secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the
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Company which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act"); and (b) as to the stockholder
giving the notice (i) the name and record address of such stockholder, (ii) the
class or series and number of shares of capital stock of the Company which are
owned beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act. Such notice must be accompanied by a written consent of each
proposed nominee to be named as a nominee and to serve as a director if elected.
No person nominated by a stockholder of the Company shall be eligible for
election as a director of the Company unless nominated in accordance with the
procedures set forth in this Section 2.9. If the chairman of the annual meeting
determines that a nomination was not made in accordance with the foregoing
procedures, the chairman shall declare to the meeting that the nomination was
defective and such defective nomination shall be disregarded."
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