AMENDED AND RESTATED
BYLAWS
OF
FLUKE CORPORATION
(A corporation incorporated under
the laws of the State of Washington)
SECTION 1
Stockholders and Stockholders' Meetings
1.1 Annual Meeting. The annual meeting of the stockholders of 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, 6920 Seaway
Boulevard, Everett, WA 98203 or at some other place, either within or
without the State of Washington as designated by the Board of Director
("the Board"), on the second Wednesday of September at 5 p.m (or if such
specified day is a legal holiday, then on the next business day at the
same time), or on such other day and time as may be set by the Board.
1.2 New Business. At an annual meeting of stockholders, only such
new business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the annual meeting (a) by, or at
the direction of, the Board or (b) by any stockholder of the corporation
who complies with the notice procedures set forth in this Section 1.2.
For a proposal to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received at,
the principal office of the corporation not less than 70 days prior to
the scheduled annual meeting, regardless of any postponements, deferrals
or adjournments of that meeting to a later date; provided, however,
that, if less than 80 days' notice or prior public disclosure of the
date of the scheduled annual meeting is given or made, notice by the
stockholder to be timely must be so delivered or received not later than
the close of business on the 10th day following the earlier of the day
on which such notice of the date of the scheduled annual meeting was
mailed or the day on which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the proposal desired to be brought before the
annual meeting and the reasons for conducting such business at the
annual meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business and any
other stockholders known by such stockholder to be supporting such
proposal, (c) the class and number of shares of stock of the corporation
which are beneficially owned by the stockholder on the date of such
stockholder notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such
stockholder notice, and (d) any financial interest of the stockholder in
such proposal.
The Board may reject any stockholder proposal not timely made in
accordance with the terms of this Section 1.2. If the Board, or a
designated committee thereof, determines that the information provided
in a stockholder's notice does not satisfy the informational
requirements of this Section 1.2 in any material respect, the Secretary
shall promptly notify such stockholder of the deficiency in the notice.
The stockholder shall have an opportunity to cure the deficiency by
providing additional information to the Secretary within such period of
time, not to exceed five days from the date such deficiency notice is
given to the stockholder, as the Board or such committee thereof shall
reasonably determine. If the deficiency is not cured within such
period, or if the Board or such committee thereof determines that the
additional information provided by the stockholder, together with
information previously provided, does not satisfy the requirements of
this Section 1.2 in any material respect, then the Board may reject such
stockholder's proposal.
The Secretary shall notify a stockholder in writing whether such
stockholder's proposal has been made in accordance with the time and
informational requirements of this Section 1.2. Notwithstanding the
procedure set forth in this Section 1.2, if neither the Board nor such
committee thereof makes a determination as to the validity of any
stockholder proposal, the presiding officer of the annual meeting shall
determine and declare at the annual meeting whether the stockholder
proposal was made in accordance with the terms of this Section 1.2. If
the presiding officer determines that a stockholder proposal was made in
accordance with the terms of this Section 1.2, ballots shall be provided
for use at the meeting with respect to any such proposal. If the
presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Section 1.2, such proposal shall not
be acted upon at the annual meeting.
In addition to the notice procedures of this Section 1.2,
stockholder proposals may be ruled out of order if the subject matter of
the proposal is beyond the authority of stockholders as a matter of law,
is unclear or is inappropriate for stockholder consideration.
1.3 Special Meetings. Special meetings of the stockholders for any
purpose or purposes may be called at any time by the Board, to be held
at such date, time and place as the Board shall prescribe. Upon the
request of the Board, it shall be the duty of the Secretary to deliver
notice of such special meeting of the stockholders within thirty (30)
days after the receipt of said request. If said Secretary shall neglect
or refuse to deliver such notice, the Board may do so.
1.4 Notice of Meetings. Written notice stating the date, time and
place of the annual stockholders' meeting and, in the case of a special
stockholders' meeting, the purpose or purposes for which the meeting is
called, shall be delivered within the period prescribed by the
Washington Business Corporation Act either personally or by mail, by or
at the direction of the Secretary, to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail addressed to
the stockholder at his or her address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid.
1.5 Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment
of any dividend, or in order to make a determination of stockholders for
the payment of any distribution, the allotment of rights, the conversion
or exchange of any securities by their terms or any other proper
purpose, the Board may fix in advance a date as the record date for any
such determination of stockholders. Such record date shall not be more
than seventy (70) days and, in case of a meeting of stockholders, not
less than ten (10) days prior to the date on which the particular action
requiring such determination is to be taken.
If no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders, or
stockholders entitled to receive payment of a dividend, the date on
which notice of the meeting is mailed or the date on which the
resolution of the Board declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section 1.5, such
determination shall apply to any adjournment thereof, unless the Board
chooses to establish a new record date or if the adjournment is more
than one hundred twenty (120) days after the date of the original
meeting in which case the Board must establish a new record date.
1.6 List of Stockholders. At least ten (10) days before each
stockholders' meeting, the Secretary or the agent having charge of the
stock transfer books of the corporation shall compile a complete list of
the stockholders entitled to vote at such meeting or adjournment
thereof, arranged in alphabetical order, with the address of each
stockholder and the number of shares owned by each stockholder. This
list shall be kept at the principal office of the corporation for ten
(10) days prior to the meeting, and shall be kept open at such meeting,
for the inspection of any stockholder or any stockholder's agent.
1.7 Quorum. The holders of a majority of the shares entitled to vote
at a meeting, present in person or by proxy, shall constitute a quorum
of stockholders for the transaction of business and the act of a
majority of the shares present in person or by proxy at a meeting at
which there is a quorum, shall be the act of the corporation, except as
otherwise provided by these Bylaws, the Articles of Incorporation, or
the Washington Business Corporation Act.
1.8 Adjourned Meetings. Whether for failure to obtain a quorum or
otherwise, an adjournment or adjournments of any stockholders' meeting
may be taken to such date, time and place as the majority of those
present may determine. Notice need not be given of the new date, time
and place if the announcement of such information is made at such
meeting before adjournment. However if a new record date is set pursuant
to Section 1.5, notice of the adjourned meeting must be given to
stockholders as of the new record date.
1.9 Proxies. The holder of any proxy for a stockholder shall present
evidence to the Secretary of his or her appointment by an instrument in
writing signed by the stockholder or by his or her duly authorized
attorney-in-fact. No proxy shall be valid after eleven (11) months from
the date of its execution unless otherwise provided in the proxy.
Revocation of a stockholder's proxy shall not be effective until written
notice thereof has actually been received by the Secretary prior to the
start of the meeting.
SECTION 2
Board of Directors
2.1 Number and Qualification. The business affairs and property of
the corporation shall be managed under the direction of a Board of
Directors, the number of members of which shall be eleven.
2.2 Election -Term of Office. Directors shall hold office for the
term set forth in this Section 2.2, and until their respective
successors are elected and qualified, unless removed in accordance with
the Articles of Incorporation and the Washington Business Corporation
Act. When the Board shall consist of fewer than nine members, each
Director shall hold office until the next succeeding annual meeting of
stockholders. When the Board shall consist of nine or more members, the
Directors shall be divided into three classes, each class to be as
nearly equal in number as possible, the term of office of Directors of
the first class to expire at the first annual meeting of stockholders
after their election, that of the second class to expire at the second
annual meeting after their election, and that of the third class to
expire at the third annual meeting after their election. At each annual
meeting after such classification, the number of Directors equal to the
number of the class whose term expires at the time of such meeting shall
be elected to hold office until the third succeeding annual meeting. In
the event of failure to elect Directors at any annual stockholders'
meeting, or in the event of failure to hold any annual stockholders'
meeting as provided by these Bylaws, Directors may be elected at a
special meeting of the stockholders called for that purpose.
2.3 Director Nominations. Nominations of candidates for election as
Directors at any meeting of stockholders may be made (a) by, or at the
direction of, a majority of the Board or (b) by any stockholder entitled
to vote at such meeting. Only persons nominated in accordance with the
procedures set forth in this Section 2.3 shall be eligible for election
as Directors at a stockholders' meeting.
Nominations, other than those made by, or at the direction of,
the Board, shall be made pursuant to timely notice in writing to the
Secretary as set forth in this Section 2.3. To be timely a
stockholder's notice shall be delivered to, or mailed and received at,
the principal office of the corporation not less than 70 days nor more
than 90 days prior to the date of the scheduled stockholder meeting,
regardless of postponements, deferrals, or adjournments of that meeting
to a later date; provided, however, that if less than 80 days' notice or
prior public disclosure of the date of the scheduled meeting is given or
made, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 10th day following
the earlier of the day on which such notice of the date of the scheduled
meeting was mailed or the day on which such public disclosure was made.
Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as
a Director and as to the stockholder giving the notice (i) the name,
age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and
number of shares of stock of the corporation which are beneficially
owned by such person on the date of such stockholder notice and (iv) any
other information relating to such person that is required to be
disclosed in solicitations of proxies with respect to nominees for
election as Directors, pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended; and (b) as to the stockholder giving
the notice (i) the name and address, as they appear on the corporation's
books, of such stockholder and any other stockholders known by such
stockholder to be supporting such nominees and (ii) the class and number
of shares of stock of the corporation which are beneficially owned by
such stockholder on the date of such stockholder notice and by any other
stockholders known by such stockholder to be supporting such nominees on
the date of such stockholder notice. At the request of the Board, any
person nominated by, or at the direction of, the Board for election as a
Director at a stockholder meeting shall furnish to the Secretary that
information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee.
No person shall be elected as a Director of the corporation
unless nominated in accordance with the procedures set forth in this
Section 2.3. Ballots bearing the names of all the persons who have been
nominated for election as Directors at a stockholder meeting in
accordance with the procedures set forth in this Section 2.3 shall be
provided for use at the stockholder meeting.
The Board, or a designated committee thereof, may reject any
nomination by a stockholder not timely made in accordance with the
requirements of this Section 2.3. If the Board, or a designated
committee thereof, determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of
this Section 2.3 in any material respect, the Secretary shall promptly
notify such stockholder of the deficiency in the notice. The
stockholder shall have an opportunity to cure the deficiency by
providing additional information to the Secretary within such period of
time, not to exceed five (5) days from the date such deficiency notice
is given to the stockholder, as the Board or such committee thereof
shall reasonably determine. If the deficiency is not cured within such
period, or if the Board or such committee thereof reasonably determines
that the additional information provided by the stockholder, together
with information previously provided, does not satisfy the requirements
of this Section 2.3 in any material respect, then the Board may reject
such stockholder's nomination.
The Secretary shall notify a stockholder in writing whether such
stockholder's director nomination has been made in accordance with the
time and information requirements of this Section 2.3. Notwithstanding
the procedure set forth in this Section 2.3, if neither the Board nor
such committee thereof makes a determination as to the validity of any
nominations by a stockholder, the presiding officer of the meeting shall
determine and declare at the meeting whether a nomination was made in
accordance with the terms of this Section 2.3. If the presiding officer
determines that a nomination was made in accordance with the terms of
this Section 2.3, ballots shall be provided for use at the meeting with
respect to such nominee. If the presiding officer determines that a
nomination was not made in accordance with the terms of this Section
2.3, the defective nomination shall be disregarded.
2.4 Vacancies. Except as otherwise provided by the Washington
Business Corporation Act, vacancies in the Board, whether caused by
resignation, death, retirement, disqualification, removal or otherwise,
may be filled for the remainder of the term by the affirmative vote of a
majority of the remaining Directors though less than a quorum of the
Board, except that Directors elected to fill vacancies occurring through
an increase in the number of Directors shall serve until the next
election of Directors by the stockholders.
2.5 Quorum and Voting. At any meeting of the Board, the presence in
person of a majority of the authorized number of Directors shall
constitute a quorum for the transaction of business. If a quorum is
present, the act of a majority of the Directors present at such meeting
shall be the act of the Board except as may be otherwise specifically
provided by these Bylaws, the Articles of Incorporation or the
Washington Business Corporation Act.
2.6 Annual Meeting. The first meeting of each newly elected Board
shall be known as the annual meeting thereof, and shall be held
immediately after the annual stockholders' meeting or any special
stockholders' meeting at which a Board is elected. Said meeting shall
be held at the same place as such stockholders' meeting unless some
other place shall be specified by resolution of the Board. It shall be
the duty of the Board at their annual meeting to elect the officers of
the corporation.
2.7 Regular Meetings. Regular meetings of the Board, or any
committee thereof, shall be held at such date, time and place as shall
from time to time be fixed by resolution of the Board.
2.8 Special Meetings. Special meetings of the Board may be held at
any place at any time whenever called by the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating Officer, any
Vice President, the Secretary or the Treasurer, or any two or more
Directors.
2.9 Notice of Meetings. No notice of the annual meeting of the Board
shall be required. No notice of any regular Board or committee meeting
need be given, if the date, time and place thereof shall have been fixed
by resolution of the Board. Oral or written notice of the date, time and
place of regular meetings not fixed by Board resolution or special
meetings of the Board or committees thereof shall be given by the
Secretary, or by the person calling the meeting, at least two days prior
to the time of the meeting. Notice of any meeting of the Board may be
waived in writing by any Director at any time, either before or after
such meeting, and attendance at such meeting in person shall constitute
a waiver of notice except where a Director attends for the express
purpose of objecting to the transaction of any business because the
meeting was not lawfully convened.
2.10 Directors' Action Without a Meeting. Any action which could be
properly taken at a meeting of the Board or committee thereof, may be
taken without such a meeting if one or more written consents setting
forth the action so taken shall be signed by all the Directors, or all
of the members of the committee, as the case may be.
2.11 Committees of the Board. The Board, by resolutions adopted by a
majority of the entire Board, may designate from among its members an
Executive Committee and one or more other committees. Each such
committee may exercise the authority of the Board to the extent provided
in such resolution and any subsequent resolutions pertaining thereto and
adopted in like manner, provided that the authority of each such
committee shall be subject to the limitations set forth in the
Washington Business Corporation Act. Such committees shall keep minutes
of their proceedings and make regular reports to the Board.
2.12 Telephone Meetings. Members of the Board or any committee
thereof may participate in a meeting of such Board or committee by means
of a conference telephone or similar communications equipment by which
all directors participating in the meeting can hear each other during
the meeting. A director participating by such means is deemed to be
present in person at such meeting.
2.13 Compensation. Directors shall be paid their expenses, if any,
incurred in attending meetings of the Board or of any committee thereof,
a fixed fee for attendance at each Board or committee meeting, a fixed
annual retainer, any combination of the above, or such other
consideration as may be authorized by a majority of the entire Board
from time to time. Such payment does not preclude any Director from
serving the corporation in any other capacity and receiving compensation
therefor.
2.14 Rights Agreement. Notwithstanding any of the foregoing, any
action stated in the Rights Agreement between this corporation and the
First National Bank of Boston dated as of July 11, 1988, as such
agreement may be amended from time to time (the "Rights Agreement") to
be taken by the Board after a Person has become an Acquiring Person
shall require the presence in office of Continuing Directors and the
concurrence of a majority of the Continuing Directors. In connection
with any action stated in the Rights Agreement to be taken solely by the
Continuing Directors, the Continuing Directors shall constitute and have
the full authority of a committee of the Board. Capitalized terms in
this paragraph shall have the meaning indicated in the Rights Agreement.
SECTION 3
Officers
3.1 Officers Enumerated - Election. The officers of the corporation
shall be a Chairman of the Board and Chief Executive Officer, a
President and Chief Operating Officer, one or more Vice Presidents, a
Secretary and a Treasurer (together with one or more Assistant
Secretaries and Assistant Treasurers if such are desired by the Board),
all of whom shall be elected by the Board, to hold office at the
pleasure of the Board.
3.2 Qualifications. None of the officers of the corporation need be
a director. Any two or more corporate offices may be held by the same
person, except the offices of President and Secretary.
3.3 The Chairman of the Board and Chief Executive Officer. The
Chairman of the Board and Chief Executive Officer ("the Chairman") shall
preside at all meetings of the Board and of the stockholders, shall
report to and consult with the Board and shall perform such other duties
as the Board may from time to time prescribe.
3.4 The President and Chief Operating Officer. In the absence of the
Chairman, the President and Chief Operating Officer ("the President")
shall preside at meetings of the Board and of the stockholders and shall
perform such other duties as the Board may from time to time prescribe.
3.5 The Vice President. The Vice President shall act as President in
the absence or disability of the President and shall perform such other
duties as the Board, the Chairman and/or the President may from time to
time prescribe.
3.6 The Secretary. The Secretary, personally or with the assistance
of others, shall keep records of the proceedings of the Directors and
stockholders; attest all certificates of stock in the name of the
corporation; keep the corporate seal and affix the same to certificates
of stock and other proper documents; keep a record of the issuance of
certificates of stock and the transfers of the same; and perform such
other duties as the Board, the Chairman and/or the President may from
time to time prescribe.
3.7 The Treasurer. The Treasurer shall have the care and custody,
and be responsible for, all funds and securities of the corporation, and
shall cause to be kept regular books of account. The Treasurer shall
cause to be deposited all such funds and securities in the name of the
corporation and shall perform such other duties as the Board, the
Chairman and/or the President may from time to time prescribe.
3.8 Vacancies. Vacancies in any office arising from any cause may be
filled by the Board at any regular or special meeting.
3.9 Removal. Any officer or agent may be removed by action of the
Board at any time, with or without cause, but such removal shall be
without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of
itself create any contract rights.
3.10 Other Officers and Agents. The Board may appoint such other
officers and agents as it shall deem necessary or expedient, who shall
hold their office for such terms, and shall exercise such powers and
perform such duties, as shall be determined from time to time by the
Board.
SECTION 4
Shares Certificates and Their Transfer
4.1 Issuance of Shares. No shares of the corporation shall be issued
unless authorized by the Board or by an authorized committee thereof
which is specifically empowered to do so.
4.2 Share Certificates. Share certificates shall be issued in
numerical order, and each stockholder shall be entitled to a certificate
signed, either manually or in facsimile, by the Chairman of the Board,
President or a Vice President, and by the Secretary or an Assistant
Secretary, and sealed, either manually or in facsimile, with the
corporate seal.
4.3 Transfers. 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 specially provided by these Bylaws, no shares of
stock shall be transferred on the books of the corporation until the
outstanding certificate has been surrendered to the corporation.
4.4 Loss 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 or
the Secretary or Treasurer.
SECTION 5
Books and Records
5.1 Records of Meetings. The corporation shall keep as permanent
records, minutes of all Board and stockholder meetings, a record of all
Board actions taken by consent, and a record of all actions taken by a
committee of the Board exercising the authority of the Board on behalf
of the corporation.
5.2 Accounting Records. The corporation shall maintain appropriate
accounting records.
5.3 Stockholder Records. The corporation or its agent shall maintain
a record of its stockholders which includes the names and addresses of
all stockholders and the number and class of shares held by each.
5.4 Principal Office Records. The corporation shall maintain the
following records at its principal office:
a) the Articles of Incorporation and all amendments to them
currently in effect;
b) the Bylaws and all amendments to them currently in effect;
c) the minutes of all stockholders' meetings for the past three
years;
d) the consolidated balance sheets and income statements for the
past three years;
e) all written communications to the stockholders for the last
three years;
f) a list of the names and business addresses of the current
Directors and officers; and
g) the most recent annual report delivered to the Washington
Secretary of State.
5.5 Inspection of Records by Stockholders. A stockholder of the
corporation is entitled to inspect and copy, during regular business
hours, the records described in Section 5.4 if the stockholder gives the
corporation written notice of the stockholder's demand at least five
business days before the date that the stockholder wishes to inspect and
copy. Other corporate records may be available to be inspected and
copied by stockholders if such demand is made in good faith and for a
proper purpose and complies with the requirements of the Washington
Business Corporation Act.
SECTION 6
Fiscal Year
The fiscal year of the corporation shall be a 52/53 week fiscal
year ending on the last Friday in April.
SECTION 7
Corporate Seal
The corporate seal of the corporation shall consist of the name of
the corporation, the state of its incorporation and the year of its
incorporation.
SECTION 8
Amendment of Bylaws
Except as provided in the Articles of Incorporation, these Bylaws
may be adopted, altered, amended or repealed or new Bylaws enacted only:
(i) upon receiving the affirmative vote of a majority of the entire
Board and of a majority of the Continuing Directors (as defined in the
Articles of Incorporation), voting separately and as a subclass of
Directors; or (ii) at any annual meeting of the stockholders, if notice
thereof is contained in the notice of such meeting, (or at any special
meeting thereof duly called for that purpose) by the affirmative vote of
the holders of eighty percent (80%) of the voting power of the
outstanding shares of Common Stock, in addition to any other vote
required for such action by law or the provisions of any other class or
series of stock of the corporation.
SECTION 9
Indemnification of Directors and Officers
9.1 Right to Indemnification. Subject to Section 9.2, 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
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director
or officer of the corporation or who, while a director or officer of the
corporation, is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, other enterprise, or employee benefit
plan, whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other assigned
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, without the
requirement of any further approval or finding by the stockholders, the
Board, or independent legal counsel, 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 or officer and shall inure to the benefit of his or her heirs,
executors and administrators.
9.2 Indemnification Exclusions. Notwithstanding Section 9.1, no
indemnification shall be provided hereunder to any such person (a) to
the extent that such indemnification would be prohibited by the
Washington Business Corporation Act or other applicable law as then in
effect, or, (b) except as provided in Section 9.4, in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the Board.
9.3 Advancement of Expenses. The right to indemnification conferred
in this Section 9 shall include the right to be paid by the corporation
the expenses incurred in defending any such proceeding in advance of its
final disposition, except where the Board shall have adopted a
resolution expressly disapproving such advancement of expenses;
provided, however, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise.
9.4 Right to Bring Suit. If a claim under Section 9.1 is not paid in
full by the corporation within sixty 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 9.3 is not paid within twenty 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 not so entitled. It shall be a defense to any such
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.
9.5 Nonexclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provision of the Articles of Incorporation or the Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise.
9.6 Indemnification of Employees and Agents. The corporation may, by
action of its Board from time to time, provide indemnification and pay
expenses in advance of the final disposition of a proceeding to
employees and agents of the corporation on the same terms and with the
same scope and effect as set out in the provisions of this Section with
respect to the indemnification and advancement of expenses of directors
and officers of the corporation or pursuant to rights granted pursuant
to, or provided by, the Washington Business Corporation Act or on such
other terms as the Board may deem proper.
9.7 Insurance, Contracts and Funding. The corporation may maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation or who, while a director, officer,
employee or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense,
liability or loss 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 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 9.
9.8 No Diminishment of Rights. This Section 9 may be altered or
amended as provided in Section 8, at any time, 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.
9.9 Contract Rights. The rights conferred by this Section 9 shall be
deemed to be contract rights between the corporation and each person who
is or was a director or officer. The corporation expressly intends each
such person to rely on the rights conferred hereby in performing his or
her respective duties on behalf of the corporation.
Revised - February 1, 1996