Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS OF ENERGY WEST, INCORPORATED
AS OF MARCH, 2005
ARTICLE I
OFFICES
Section 1.1. Principal Office. The principal office of ENERGY WEST,
INCORPORATED, a Montana corporation, shall be in the City of Great Falls, County
of Cascade, State of Montana.
Section 1.2. Other Offices. The Company may also have an office or offices
at such other places either within or without the State of Montana as the board
of Directors (hereinafter called the "Board") may from time to time determine,
or the business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of stockholders shall be held
at a place designated by the Board of Directors.
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.
Section 2.3. Special Meetings of Stockholders. Special meetings of
stockholders for any purpose of purposes may be called at any time by the Board
and shall be called by the Board upon the request in writing of a stockholder or
stockholders holding of record at least 10% of the number of outstanding shares
of stock entitled to vote at such meeting, provided that any such request shall
state the purpose or purposes of the proposed meeting.
Section 2.4. Notice of Meetings. Except as otherwise provided by law, or by
the Articles of Incorporation or by the By-Laws, written notice of each annual
and special
meeting of stockholders shall be given by at the direction of the President or
the Secretary, or, in case of a special meeting, by the officer or the person
calling the meeting as provided in these By-Laws, either personally or by mail,
not more than 60 days and not less than 10 days before the meeting, to each
stockholder of record entitled to vote there at. Every such notice shall state
the place, day and hour of the meeting, and, in the case of a special meeting,
shall state briefly the purpose or purposes thereof.
Section 2.5. Quorum and Adjournments. For the purpose of any action to be
taken by stockholders at any meeting, the presence in person or by proxy of the
holders of a majority of the number of shares entitled to vote shall constitute
a quorum for the transaction of business except as otherwise expressly provided
by law. If for any reason there is not present a quorum at any meeting as
hereinbefore provided, the stockholders present or represented at the meeting
may adjourn, and such adjournment and the reasons there for shall be recorded in
the journal of the proceedings of the meetings of stockholders. If for any cause
an election does not take place on the day appointed consistent with the
procedure in these By-laws, it may be held on any day thereafter as shall be
designated by a majority vote of the stockholders present or represented at such
meeting, or to which such election may be adjourned or ordered by the Board. At
any such adjourned meeting, at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the meeting
as originally notified. The absence from any meeting of the number required by
law or by the Articles of Incorporation or these By-laws for action upon any
given matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting if the number required in
respect of such other matters shall be present. Any regularly called meeting of
stockholders may adjourn from day to day, from time to time.
Section 2.6. Organization. Except as otherwise provided by law, at any
meeting of stockholders, the President, or, in the absence of the President, the
Vice President, or, in the absence of both the President and the Vice President,
a chairman, chosen by the vote of a majority in interest of the stockholders
present thereat in person or by proxy and entitled to vote shall act as a
chairman; and the Secretary, or in his absence, an Assistant Secretary, or in
the absence of the Secretary and all Assistant Secretaries, a person whom the
Chairman of the meeting shall appoint shall act as Secretary of the meeting.
Section 2.7. Voting by Stockholders. Except as otherwise expressly provided
by law or the Articles of Incorporation, each stockholder present in person or
by proxy at any meeting shall have one vote with respect to each share of stock
registered in his name on the books of the Company:
(a) on the date fixed pursuant to Section 8.5 hereof as the record date for
the determination of stockholders entitled to notice of and to vote at such
meeting, or in the event that no such record date shall have been fixed, then on
the date determined in accordance with Section 8.5 hereof; provided, however,
that, in all elections for Directors, every stockholder shall have the right to
vote in person or by proxy the number of shares standing in his name, upon which
he is entitled to vote, for as many persons as
there are directors to be elected, or to cumulate said shares, and give one
candidate as many votes as the number of directors to be elected multiplied by
the number of his shares of stock , or to distribute the votes on the same
principle among any number of the candidates. The candidates receiving the
highest number of votes shall be deemed elected.
(b) Any stockholder entitled to vote at any meeting may vote either in
person or by his proxy appointed by an instrument in writing, subscribed by such
stockholder, or his attorney or agent thereunto authorized in writing and
delivered to the Secretary of the meeting.
(c) Except as otherwise expressly provided by law or by the Articles of
Incorporation, all matters to be decided by stockholders at any meeting, shall
be decided, if a quorum be present, by a plurality of the votes passed at the
meeting of the stockholders present in person, or by proxy and entitled to vote
thereon.
(d) The vote for election of directors shall be by ballot. Unless directed
by the Chairman of the meeting or demanded by a majority in interest of the
stockholders present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any other matter, other than the election of directors need
not be by ballot. Upon vote by ballot, each proxy if there be such proxy, and
shall state the number of shares voted by him. In the event that a vote by
ballot is so taken, the chairman of the meeting may, and, if requested by any
stockholder present in person or by proxy entitled to vote thereon, shall
appoint two persons to serve as inspectors of election for the purpose of such
vote. Such inspectors of election shall examine the ballots cast upon the taking
of such vote and shall report to the chairman the result thereof.
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 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.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. General Powers. The corporate powers, business and property of
the Company shall be exercised, conducted and controlled by the Board as from
time to time constituted.
Section 3.2. Number, Qualification and Term of Office. The number of
directors which shall constitute the whole Board shall be determined by
resolution of the Board of Directors except that the number of directors shall
not be less than five or more than nine. Each director shall own at least ten
shares of capital stock of the Company. The term of office shall be one year
unless the terms of the members of the Board of Directors are staggered as
permitted under Section 35-1-422, Montana Code Annotated. Effective following
the 2004 annual meeting of stockholders of the Company, no person of an age
seventy (70) years or older will be eligible for election, reelection,
appointment or reappointment as a member of the Board, and no director shall
serve as such beyond the annual meeting of stockholders of the Company
immediately following the attainment of the age of seventy (70) years.
Section 3.3. Place of Meetings. The Board may hold its meetings at the
principal place of business of the Company in the State of Montana or at such
other place or places either within or without the State of Montana as the Board
may from time to time determine or shall be specified or fixed in the respective
notices or waivers of notice thereof. In case the meetings of the Board shall be
held outside the State of Montana, either the original minutes of each meeting
containing a record of all proceedings thereat and signed by the chairman and
the secretary of such meeting or full and complete copies or duplicates of such
minutes certified by such chairman and secretary, under the seal of the Company,
shall be sent to and kept at the principal office of the Company in Montana and
shall be a part of the records in Montana.
Section 3.4. Annual Meetings. A meeting of the Board for the purposes of
election of officers and transaction of other business shall be held,
immediately following each annual meeting of stockholders for election of
Directors and at the place of the holding of such election.
Section 3.5. Regular Meetings. Regular meetings of the Board may be held,
with or without notice, at such time and place as may from time to time be
specified in a resolution adopted by the Board.
Section 3.6. Special Meetings: Notice. Special meetings of the Board shall
be held whenever called by the Chairman of the Board or by not less than two of
the Directors, or not less than one-third of the number of Directors then
constituting the Board, whichever is greater. Notice of such meetings shall be
given to each Director at least 48 hours before the time fixed for such meeting,
and such notice may be given in person or by mail, facsimile or telephone. Every
such notice shall state the time and place of the meeting, but need not state
the purpose thereof except as otherwise required by law or, the Articles of
Incorporation or these By-Laws.
Section 3.7. Quorum: Manner of Acting. At each meeting of the Board the
presence of a majority of the full number of Directors shall be necessary to
constitute a quorum and sufficient to form a Board for the transaction of
business. Any act and every decision of a majority of the Directors present at a
meeting at which a quorum shall be present and forming such Board shall be the
act of the Board, except as may be otherwise specifically provided by law or
these By-Laws. Any meeting of the Board may be adjourned by a majority vote of
the Directors present at such meeting. In the absence of a quorum at such
meeting, a majority of the Directors present thereat may adjourn such meeting
from time to time until a quorum shall be present thereat. Notice of any
adjourned meeting need not be given. The Directors shall act only as a Board,
and the individual Directors shall have no power as such.
Section 3.8. Organization. At all meetings of the Board, a Director chosen
by the Board, shall act as Chairman. The Secretary, or, in his absence, the
Assistant
Secretary of the Company, or, in the absence of the Secretary and all Assistant
Secretaries, a person appointed by the chairman of the meeting shall act as
Secretary of the meeting.
Section 3.9. Compensation. Directors shall be entitled to receive such fees
and expenses, if any, for attendance at meetings of the Board of Directors,
and/or fixed salaries for services as Directors, as may be fixed from time to
time by resolution of the Board. Directors may also receive compensation for
services rendered to the Company as officers, members of the Executive Committee
or other committee, or in any other capacity.
Section 3.10. Vacancies. If the office of any director or directors becomes
vacant by reason of death, resignation, retirement, disqualification, or
otherwise, such vacancy or vacancies shall except as otherwise provided by law,
be filled by an appointee of the remaining Directors, such appointee to hold
office for the unexpired term of his predecessors office.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 4.1. Designation: Term: Vacancies. The Board, by resolution passed
by a majority of the whole Board, may designate two or more Directors, as it may
from time to time determine, to constitute, together with the Chairman of the
Board as an ex-officio member, an Executive Committee, and may designate one or
more other Directors to serve as alternates for the members thereof in such
order and manner as may be fixed by the Executive Committee, and the Secretary,
or in his absence an Assistant Secretary, shall be the Secretary of the
Executive Committee. Any vacancy which may occur in the Executive Committee
shall be filled by the Board at any regular or special meeting thereof.
Section 4.2. Powers. To the extent provided in the resolution of the Board
establishing the Executive Committee, and to the extent permitted by law, the
Executive Committee shall have all of the powers vested in the Board by law or
by these By-Laws in the management of the property, business and affairs of the
Company, and such specific powers as may from time to time be conferred upon the
Executive Committee by resolution of the Board, and may exercise such powers in
such manner as the Executive Committee shall deem for the best interests of the
Company in all cases in which specific directions shall not have been given by
the Board; provided, however, that the Executive Committee shall have no power
to make any change in the By-Laws. All action taken by the Executive Committee
shall be subject to revision or alteration by the Board; provided, however, that
such revision or alteration shall not affect any action taken by any officer or
employee of the Company, or by any third party, or any rights of third parties
that have vested, in reliance upon any action or direction of the Executive
Committee.
Section 4.3. Procedure: Meetings: voting: records. The Executive Committee
may prescribe, for the conduct of its business, such rules and regulations, not
inconsistent
with these By-Laws, or with such resolutions or the guidance and control of the
Executive Committee as may from time to time be passed by the Board, as it shall
deem necessary or desirable, including, without limitation, rules fixing the
time and place of meetings and the notice to be given thereof, if any. A
majority of the Executive Committee shall constitute a quorum. The affirmative
vote of a majority of the whole Executive Committee, as from time to time
constituted, shall be necessary for the adoption of any resolution or the taking
of any other action. The Executive Committee shall keep a record of all actions
taken by it.
Section 4.4. Other Committees. The Board may from time to time by
resolution create such other committee or committees (in addition to the
Executive Committee) of Directors, officers, employees or other person
designated by it with such authority, function, and duties and compensation as
the Board shall by resolution prescribe. Each such committee shall be
established by a majority of the whole Board, and shall function according to
the resolution creating such committee. A majority of all the members of any
such committee may determine the action and fix the time and place of its
meetings, unless the Board shall otherwise provide. The Board shall have power
to change the members of any such committee at any time, to fill vacancies, and
to discharge any such committee, either with or without cause, at any time.
ARTICLE V
OFFICERS
Section 5.1. Designation. The principal officers of the Company shall be a
President, one or more Vice Presidents (one of whom maybe designated as the
Senior or Executive Vice President), a Secretary, a Controller, and a Treasurer
and such other Officers as they deem proper. Two or more offices may be held by
the same person, except the offices of President and Secretary.
Section 5.2. Election: Qualifications. The principal officers of the
Company shall be elected annually by the Board at its first meeting following
the annual meeting of stockholders. The person receiving the greatest number of
votes cast for any principal office at a meeting of the Board for the election
of officers, a quorum being present, shall be deemed elected to such office.
Section 5.3. Term of Office: Removal. Unless sooner removed, each principal
officer of the Company shall hold office until his successor shall have been
elected and qualified, but any principal officer may be removed from office at
any time at the pleasure of the Board.
Section 5.4. Appointive Officers and Agents. The Board may appoint such
officers, other than principal officers, including one or more Assistant
Secretaries, and Assistant Treasurers, and such agents and employees, as the
Board may deem necessary or advisable, each of whom shall hold office or his
position, as the case may be, for such period, as determined in these By-Laws or
as the Board may from time to time determine. The Board may delegate to any
principal officer or to any committee the power to
appoint, remove, fill vacancies, define the tenure of office or position, and
prescribe the duties and responsibilities of any such appointive officers,
agents or employees.
Section 5.5. Salaries. The compensation of the principal officers of the
Company shall be fixed from time to time by the Board of Directors.
Section 5.6. Bonds. The Board, at its discretion may require certain
officers and agents of the Company to give bond to the Company in such form and
amount and with such surety and upon such conditions as the Board may determine.
The Company may pay any reasonable premium cost of such bonds.
Section 5.7. Powers and Duties of the Officers of the Corporation. The
powers and duties of the Officers of the Corporation shall be as follows:
(a) The President shall be the Chief Executive Officer of the Company;
shall subject to the control and direction of the Board, have general
supervision, control and management of the affairs and business of the Company,
and, general charge and supervision of Vice Presidents and other employees of
the Company and shall see that all orders and resolutions of the Board are
carried into effect; shall sign or delegate to one or more Vice Presidents, the
power to sign and execute in the name of the company all deeds mortgages, bonds,
contracts or other instruments as may be required in the ordinary course of
business; and in general shall exercise all powers and perform the duties
incident to the office of President and such other powers and duties as may from
time to time be assigned to him by the Board or be prescribed by these By-Laws.
(b) At the request of the President, or during his absence or disability, a
Vice President shall exercise the powers and perform the duties of the
President. Each Vice President shall exercise such other powers and perform such
other duties as may from time to time be assigned to him by the Board or by the
President or prescribed by these By-Laws. In case there shall be more than one
Vice President, the foregoing shall apply to all the Vice Presidents.
(c) The Secretary shall attend all meetings of the Board and all meetings
of stockholders and shall be and act as the secretary of such meetings; shall
keep a journal of such meetings in the manner provided in these By-Laws; shall
give, or cause to be given, all notices provided for in these By-Laws or
required by the Articles of Incorporation or by law; shall be custodian of the
records, and be assured that all material documents that create material rights
or obligations on behalf of the Company are duly authorized in accordance with
these By-Laws; shall have charge of the Stock and Transfer Book of the Company,
and shall keep or cause to be kept said book in the manner provided in these
By-Laws; shall have charge of all books, records and papers of the Company
relating to its organization as a corporation, and shall see that all reports,
statements, and other documents required by law or these Bylaws are properly
kept or filed by the Treasurer or some other officer; shall sign with the
President any or all certificates of shares of stock of the company; and in
general shall exercise all powers and perform all duties incident to the office
of Secretary and such other powers and
duties as may from time to time be assigned to him by the Board or the President
or be prescribed by these By-Laws.
(d) The Assistant Secretaries shall assist at all time in the performance
of the duties of the Secretary, subject to his control and direction, and, in
the absence of the Secretary, the Assistant Secretary designated there for by
the President, or in the absence of such designation, and Assistant Secretary,
shall exercise the powers and perform the duties of the Secretary. The Assistant
Secretaries shall exercise such other powers and perform such other duties as
may from time to time be assigned to them by the Board or the President to be
prescribed by these By-Laws.
(e) Subject to order of the Board or the President, or as provided for in
these By-Laws, the Treasurer shall have the custody of the corporate fund and
securities; shall keep, or cause to be kept, full and accurate books and records
of account of the Company; shall deposit all moneys and other valuable effects
in the name and to the credit of the Company, in such depositories as may be
designated by the Board; shall disburse the funds of the Company as may be
ordered by the Board, taking proper vouchers for such disbursements; shall
render to the President and Directors at the regular meeting of the Board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the Financial condition of the Company; and in general shall exercise all
powers and perform all duties incident of the office of Treasurer and such other
powers and duties as may from time to time be assigned to him by the Board, or
the President or be prescribed by these By-Laws.
(f) The Assistant Treasurers shall assist at all times in the performance
of the duties of the Treasurer, subject to his control and direction, and in the
absence of the Treasurer, the Assistant Treasurer designated therefor by the
President, or, in the absence of such designation, any Assistant Treasurer,
shall exercise the powers and perform the duties of the Treasurer. The Assistant
Treasurers shall exercise such other powers and perform such other duties as may
from time to time be assigned to them by the Board or the President or be
prescribed by these By-Laws.
(g) At the request of the President or any Vice President, an Assistant
Vice President shall exercise the powers and perform the duties of the Vice
President. Each Assistant Vice President shall exercise such other powers and
perform such other duties as may from time to time be assigned to him by the
Board or by the President or prescribed by these By-Laws.
ARTICLE VI
INDEMNIFICATION
The Company shall indemnify each present or future Director and Officer of
the Company in the manner provided and to the greatest extent permitted by law.
The foregoing right of indemnification shall not exclude or restrict any other
rights or actions which any Director or Officer may have, and shall be available
whether or not the Director or Officer continues to hold such office at the time
of incurring such expense or
discharging such liability. In any action against any Director of Officer of the
Company to which this indemnification applies, such funds as reasonably may be
required to defend such action shall be advanced by the Company. Any repeal or
modification of this Article VI shall not adversely affect any right or
protection of any Director or Officer of the Company existing at the time of
such repeal or modification.
ARTICLE VII
CHECKS, CONTRACTS, LOANS, BANK ACCOUNT, ETC.
Section 7.1. Check, Drafts, etc. All checks, drafts, bill of exchange or
other orders for the payment of money, obligations, notes, or other evidences of
indebtedness, bills of lading, warehouse receipts and insurance certificates of
the company shall be signed or endorsed by any officer if such signatures are
being provided in the ordinary course of business and not for material
obligations being undertaken by the Company; or by such officers, agent or
agents, employee or employees of the Company as shall from time to time be
designated by the Board when such obligation represents a material obligation;
or as otherwise indicated in these By-Laws.
Section 7.2. Contracts. Unless authorized so to do by these By-Laws or the
Board, no officer, agent or employee shall have any power or authority to bind
the Company by any contract or engagement or to pledge its credit or to render
it liable pecuniarily for any purpose or to any amount. The board may authorize
one or more officers, agents or employees of the Company to enter into any
contract or execute and deliver any contract or other instrument in the name and
on behalf of the Company, and such authority may be general or be confined to
specific instances.
Section 7.3. Loans. No loans shall be contracted on behalf of the Company,
and no negotiable paper shall be issued in its name, unless authorized by the
Board. When so authorized, the officer or officers thereunto authorized may
effect loans and advances at any time of the Company from any bank, trust
Company or other institution or from any person, firm, association or
corporation, and or such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the Company and, when
authorized as aforesaid, as security for the payment of any and all loans,
advances, indebtedness and liabilities of the company, may mortgage, pledge,
hypothecate or transfer any real or personal property at the time or thereafter
held or to be held by the Company and to that end execute instruments of
mortgage or pledge or otherwise transfer such property. Such authority may be
general or be confined to specific instances. No loan of money shall be made by
the Company to any stockholder thereof.
Section 7.4. Deposits: Bank Accounts. All funds of the Company shall be
deposited from time to time to the credit of the company in such general or
special bank account or as the Board may from time to time designate, or as may
be designated by any officer or officers of the Company to whom the power to do
so may be delegated by the
Board. The Board may make such special rules and regulations with respect
thereto, not inconsistent with the provisions of these By-Laws, as it may deem
expedient.
Section 7.5. Proxies. The Board, by resolution from time to time, and
either generally or in specific instances, may appoint an attorney or attorneys
or agent or agents of the Company, in its name and behalf, to cast the votes,
which the Company may be entitled to cast as a stockholder or otherwise in any
other corporation any of whose stock or other securities may be held by the
Company, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing to any action by such other
corporation. Unless otherwise ordered by the Board, the President, or any other
person designated by him for the purpose, shall have the full power and
authority in behalf of the company to attend and to act and to vote at any
meetings of holders of stock or other securities of any corporation in which the
Company may hold stock or securities, and, at any such meeting, shall possess
and may exercise any and all the rights and powers incident to the ownership of
such stock or securities.
ARTICLE VIII
SHARES AND THEIR TRANSFER
Section 8.1. Certificates for Shares. Certificates for shares of stock of
the Company shall be in such form as shall be approved by the Board. Each such
certificate shall be signed by the President and the Secretary of the Company.
In case any officer or officers who shall have signed any such certificate or
certificates shall cease to be such officer or officers before such certificate
or certificates shall have been issued by the Company, such certificate or
certificates may none the less be adopted by the Company and be issued and
delivered as though the person or person who signed such certificates or
certificates had not ceased to be such officer or officers.
Section 8.2. Transfer of Shares. Transfer of shares of stock of the
Company, whether part paid or full paid, shall be made only on the books of the
Company, on payment of all taxes thereon and such shares (except as hereinafter
provided in the case of loss, destruction or mutilation of certificates)
properly endorsed by the holder thereof, or accompanied by proper evidence of
succession, assignment or authority to transfer, and delivered to the Secretary
of the Company or a transfer agent, if any, of the company. In addition to such
other evidence of succession, assignment or authority to transfer as may be
required by the Company, President, or Directors of Company may require when
shares are owned by person residing out of the of Montana and before entering
any transfer of the shares on the books of the Company or issuing a certificate
therefore to the transferee, from attorney or agent of the non-resident owner,
or from person claiming under the transfer, an affidavit or other evidences,
that the non-resident owner was alive at the date of the transfer, and if such
affidavit or other satisfactory evidence is not furnished, may require from the
attorney, agent or claimant, a bond of indemnity, with two sureties,
satisfactory to the office of the Company or, if not so satisfactory, then one
approved by the judge of the District Court of county in which the principal
office of the Company is situated, conditioned to protect the Company against
any liability to the legal representatives of the owners of the shares, in case
of his or her death before the transfer;
and if such affidavit or other evidence or bond be not furnished when required
as herein provided, neither the Company nor any officer thereof, shall be liable
for refusing to enter the transfer on the book of the Company.
A person in whose name shares of stock stand on books of Company shall be
deemed the owner thereof as regards the Company, and, upon any transfer of
shares, the person or persons into whose name or names such shares shall be
transferred on books of the Company shall be substituted for the person or
person out of whose name or names such shares shall have been transferred with
respect to all rights, privileges and obligations of holders of stock of the
Company and as against the Company or any other person or persons. Except to
extent permitted and provided for by law, no transfer of shares of stock of the
Company shall be valid against the Company, its stockholders or its creditors,
for any purpose until they shall have been entered on the records of the company
as hereinbefore in this section provided, or until a new certificate is issued
to the person to whom it has been transferred. The Company shall be entitled to
treat the holder of record of any share or shares as the holder in fact thereof
and, accordingly, shall not be found to recognize any equitable or other claim
to or interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, except as expressly provided by law
and these By-Laws.
Section 8.3. Lost, Destroyed and Mutilated Certificates. The holder of any
stock of the company shall immediately notify the company of any loss,
destruction or mutilation of the certificate for any such stock, and the Board
may, in its discretion, cause to be issued to him a new certificate or
certificates of stock upon the surrender of the mutilate certificate or, in case
or loss or destruction, upon satisfactory proof of such loss or destruction; and
the board may, in its discretion, require the owner of the lost or destroyed
certificate or his legal representative to give such surety or sureties as it
may direct, to indemnify the Company against any claim that may be made against
it with respect to the certificate or certificates alleged to have been lost or
destroyed.
Section 8.4. Transfer Agent and Registrar: Regulations. The company shall,
if and whenever the Board shall so determine, maintain one or more transfer
officers or agencies, each in charge of a transfer agent designated by the
Board, where the share of the stock of the Company shall be directly
transferable, and/or one or more registry offices, each in charge or a registrar
designated by the Board where such shares of stock shall be registered, and no
certificate for share of stock of the Company, in respect of which a transfer
agent and/or a registrar shall have been designated, shall be valid unless
countersigned by such transfer agent and/or registered by such registrar. The
Board may also make such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the stock of the Company.
Section 8.5. Closing of Transfer Books: Record Date. The Board may close
the stock transfer books of the Company for a period not exceeding seventy (70)
days preceding the date of any meeting of stockholders or election to vote, or
the date for the payment of any dividend, allotment of rights, or the date when
any change or conversion or exchange of capital stock shall go into effect or
the date of any other corporate action
or proceeding; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board may fix in advance a date not exceeding seventy
(70) days preceding the date of any meeting of stockholders, election or vote,
or the date of the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or the date for any other corporate action or proceeding,
as a record date for the determination of the stockholders entitled to notice of
and to vote at any such dividend, or any such allotment of rights, or to
exercise the rights in respect of any such change or conversion or exchange of
capital stock, or entitled to participate in or benefit by such other corporate
action or proceeding, and, in such case, such stockholders, and only such
stockholders, as shall be stockholders of record on the date so fixed shall be
entitled to notice of and to vote at such meeting, election or vote, or to
receive payment of such dividend, or to receive such allotment of rights, or to
exercise such rights of change or conversion or exchange of stock, or to
participate in or benefit by such other corporate action or proceeding,
notwithstanding any transfer of any stock on the books of the Company, after any
such record date fixed as aforesaid.
ARTICLE IX
DIVIDENDS
Subject to the provisions of law and the provisions of the Articles of
Incorporation, the Board may, at any regular or special meeting, declare a
dividend out of any funds legally available for such purpose on the outstanding
shares of the Company, which dividends may be paid in cash, in property, or in
shares of the Company.
ARTICLE X
BOOKS AND RECORDS
Section 10.1. Book of By-Laws. A copy of these By-Laws, certified by a
majority of the Directors and the Secretary of the Company, shall be typewritten
in a book kept in the principal office of the Company to be known as the "Book
of By-Laws". Said book shall be open to the inspection of the public during the
office hours of the Company each day except holidays. Whenever any amendment to
these By-Laws or new by-laws is adopted, it shall be typewritten in the book of
By-Laws, with the original By-Laws, and immediately after them. If any By-Laws
be repealed, the fact of repeal, with the date of the meeting at which the
repeal was enacted, or written consent was filed, shall be stated in said book.
Section 10.2. Journal of Meetings of Board of Directors and Stockholders.
The Company shall also keep a journal of all meeting of its directors and
stockholders, with the time and place of holding the same, whether regular or
special, and if special, its object, how authorized, and the notice thereof
given. Such record must embrace every act done or ordered to be done; who were
present, and, in the record of directors' meetings, who absent. If requested by
any Director or stockholder, the time must be noted when he entered the meeting
or obtained leave of absence there from. On a similar
request, the "ayes" and "nays" must be taken on any action or proposed action,
and a record thereof made. On a similar request, the protest of any Director or
stockholder to any action or proposed action, must be entered in full, and such
records must be opened to the inspection of any Director, stockholder or
creditor of the Company. In lieu of embracing in the records of stockholders'
meetings who were present, a list showing the names of those present at any such
meeting, certified by the chairman and secretary thereof, may be filed and kept
in the office of the Secretary of the Company.
Section 10.3. Stock and Transfer Book. The Company shall also keep a book,
to be know as the "stock and transfer book" in which must be kept a record of
all stock; the names of the stockholders alphabetically arranged; installments
paid or unpaid; assessments levied, and paid and unpaid, a statement of every
alienation, sale or transfer of stock made, the date thereof, and by and to
whom. The Stock and Transfer creditor, provided that the Board, may, from time
to time, prescribe the conditions and regulations pursuant to which such
inspections will be permitted.
Section 10.4. Other Books and Records. The company shall keep a record of
all business transactions and shall keep such other books and records as the
Board or the officers may from time to time determine.
Section 10.5. Place of Keeping. The books and records of the Company, or
duplicates duly certified thereof, shall be kept at the principal office of the
Company.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Fiscal Year. The Fiscal Year of the Company shall begin on
July 1 and end on June 30 in each year.
Section 11.2. Notices. Any notice required by these By-Laws, or otherwise,
to be given by mail shall be deemed to have been given by mail to any person
entitled thereto at the time it shall have been deposited in a Post Office or
mail box or mail chute maintained of the purpose by the United States
Government, provided that it shall at the time of such deposit be enclosed in a
postage prepaid envelope or wrapped addressed to such person at his address as
it appears on the books and records of the Company, or, if no address appears on
such books and records, then at such address as shall be otherwise known to the
Secretary, or, if no such address appears on such books and records or is
otherwise know to the Secretary, then in care of the agent of the Company at its
principal office in the State of Montana. Whenever, by any provisions of the
Articles of Incorporation or these By-Laws, or otherwise, any notice is required
to be given any specified number of days before any meeting or other event, the
day on which such notice was given shall be counted, but the day of such meeting
or other event shall not be counted in determining whether or not notice has
been given in proper time in a particular case.
Section 11.3. Waiver of Notice. Except as may be expressly provided by law
or by the Articles of Incorporation, whenever any notice whatever is required to
be given under the provisions of the laws of the State of Montana or under the
provisions of the Articles of Incorporation or these By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
Except as maybe otherwise specifically provided by law, any waiver by mail,
telegraph, cable or wireless, bearing the name of the person entitled to notice,
shall be deemed a waiver in writing, duly signed. The presence of any person at
any meeting, either in person or by proxy, shall be deemed the equivalent of a
waiver in writing, duly signed. Attendance of a Director at any meeting of the
Board shall constituted a waiver of notice of such meeting except where a
Director attends for the express purpose of objecting to the transaction of any
business because the meeting was not lawfully called or convened.
Section 11.4. Informal action by Stockholder. When all the stockholders
entitled under the Articles of Incorporation and the law and constitution of
Montana to vote at any meeting are present at any meeting, however called or
notified, and sign a written consent thereto on a record of such meeting, the
act and proceedings of such meeting are as valid as if has at a meeting legally
called and noticed.
Section 11.5. Resignations. Except as otherwise provided by law, any
officer or Director may resign at any time upon giving written notice to the
President or the Secretary. Such resignation shall take effect at the time
specified in the notice and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 11.6. Amendment of By-Laws. These By-Laws may be repealed and
amended and new By-Law may be adopted by the affirmative vote of a majority of
the Board at any annual, regular or special meeting of the Board.
