EXHIBIT 3.2
NIKE, Inc.
Third Restated Bylaws
(Adopted September 17, 1995;
amended September 20, 2004)
NIKE, Inc.
Third Restated Bylaws
TABLE OF CONTENTS
Page
ARTICLE 1 - Offices 1
Section 1. Principal Offices 1
Section 2. Additional Offices 1
ARTICLE 2 - Shareholders 1
Section 1. Place of Meetings 1
Section 2. Annual Meetings 1
Section 3. Special Meetings 1
Section 4. Notice of Meetings and Waiver 1
Section 5. Quorum 2
Section 6. Voting Rights 2
Section 7. Voting of Shares by Certain Holders 3
Section 8. Proxies 3
Section 9. Shareholder Lists 3
Section 10. Business of Shareholder Meetings 4
ARTICLE 3 - Directors 5
Section 1. Powers 5
Section 2. Number and Qualifications 5
Section 3. Election and Tenure 5
Section 4. Vacancies 5
Section 5. Resignation 6
Section 6. Removal 6
Section 7. Meetings - Notice and Waiver 6
Section 8. Quorum and Vote 6
Section 9. Compensation 7
ARTICLE 4 - Committees 7
Section 1. Committees of the Board of Directors 7
Section 2. Actions of the Committees 7
Section 3. Procedures 7
Section 4. Appointment of Committee Members 7
ARTICLE 5 - Officers 8
Section 1. Designation; Appointment 8
Section 2. Chairman of the Board 8
Section 3. President 9
Section 4. Vice Presidents 9
Section 5. Secretary 9
Section 6. Treasurer 9
Section 7. Assistant Officers 10
Section 8. Divisional Officers 10
ARTICLE 6 - Certificates and Transfer of Shares 10
Section 1. Certificates for Shares 10
Section 2. Transfer on the Books 11
Section 3. Lost Certificates 11
Section 4. Transfer Agents and Registrars 11
Section 5. Record Date 11
Section 6. Registered Shareholders 11
ARTICLE 7 - General Provisions 11
Section 1. Records 11
Section 2. Seal 12
Section 3. Amendment of Bylaws 12
Section 4. Action Without a Meeting 12
Section 5. Telephonic Meetings 12
Section 6. Fiscal Year 12
Section 7. Execution of Corporate Instruments 12
ARTICLE 8 - Transactions With Interested Directors 13
Section 1. Validity of Transaction 13
Section 2. Indirect Interest 13
Section 3. Authorization by Board 13
Section 4. Authorization by Shareholders 14
ARTICLE 9 - Indemnification 14
ARTICLE 10 - Limitation of Director Liability 17
NIKE, Inc.
Third Restated Bylaws
ARTICLE 1 - Offices
Section 1. Principal Office. The registered office and principal
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executive offices of NIKE, Inc., an Oregon corporation (the
"Corporation"), shall be located in Beaverton, Oregon, or such other
location as the Board of Directors may determine.
Section 2. Additional Offices. The Corporation may also have
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offices at such other places, either within or without Oregon, as the
Board of Directors may from time to time determine or as the business of
the Corporation may require.
ARTICLE 2 - Shareholders
Section 1. Place of Meetings. Meetings of the shareholders of the
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Corporation shall be held at Beaverton, Oregon, or any other place,
either within or without Oregon, selected by the Board of Directors, or
in the absence of a selection by the Board of Directors, by the Chairman
of the Board.
Section 2. Annual Meetings. The annual meeting of the
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shareholders shall be held on the third Monday in September of each year
if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such time as may be designated by the Board
of Directors and specified in the notice of the meeting. The Board of
Directors shall have the discretion to designate a different annual
meeting date for any year, provided that the date so designated is
within 60 days of the date specified in the preceding sentence. At the
annual meeting, the shareholders shall elect by vote a Board of
Directors, consider reports of the affairs of the Corporation, and
transact such other business as may properly be brought before the
meeting.
Section 3. Special Meetings. The Corporation shall hold a special
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meeting of shareholders upon the call of the Chairman of the Board or
the Board of Directors, or if the holders of at least 10 percent of all
votes entitled to be cast on any issue proposed to be considered at the
special meeting sign, date and deliver to the Secretary of the
Corporation one or more written demands for the meeting describing the
purpose or purposes for which it is to be held. Special meetings of the
shareholders may not be called by any other person or persons.
Section 4. Notice of Meetings and Waiver.
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(a) General. The Corporation shall notify shareholders in
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writing of the date, time and place of each annual and special
shareholders meeting not earlier than 60 days nor less than ten days
before the meeting date. Except as otherwise required by applicable
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law, the Corporation is required to give notice only to shareholders
entitled to vote at the meeting. Such notice is effective when mailed
if it is mailed postage prepaid and is correctly addressed to the
shareholder's address shown in the Corporation's current record of
shareholders. Except as otherwise required by applicable law, notice of
an annual meeting need not include a description of the purpose or
purposes for which the meeting is called. Notice of a special meeting
shall include a description of the purpose or purposes for which the
meeting is called.
(b) Adjourned Meetings. If an annual or special shareholders
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meeting is adjourned to a different date, time or place, notice need not
be given of the new date, time or place if the new date, time or place
is announced at the meeting before adjournment. If a new record date
for the adjourned meeting is fixed, or is required by law to be fixed,
notice of the adjourned meeting shall be given to persons who are
shareholders as of the new record date. A determination of shareholders
entitled to notice of or to vote at a shareholders meeting is effective
for any adjournment of the meeting unless the Board of Directors fixes a
new record date, which it must do if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting.
(c) Waiver of Notice. A shareholder's attendance at a meeting
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waives objection to (i) lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting, and (ii)
consideration of a particular matter at the meeting that is not within
the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
Section 5. Quorum. Shares entitled to vote as a separate voting
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group may take action on a matter at a meeting only if a quorum of those
shares exists with respect to that matter. Unless otherwise required by
law, a majority of the votes entitled to be cast on the matter by the
voting group constitutes a quorum of that voting group for action on
that matter. Once a share is represented for any purpose at a meeting,
it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting. In the absence of a
quorum, a majority of those present in person or represented by proxy
may adjourn the meeting from time to time until a quorum exists. Any
business that might have been transacted at the original meeting may be
transacted at the adjourned meeting if a quorum exists.
Section 6. Voting Rights. The voting rights of holders of stock
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of the Corporation, and the circumstances under which any class of stock
has special voting rights and the manner of exercise thereof, are as set
forth in the Restated Articles of Incorporation, as amended (the
"Restated Articles"). Only shares of stock are entitled to vote.
Except as otherwise provided in the Restated Articles or by applicable
law: (i) each outstanding share, regardless of class, is entitled to
one vote on each matter voted on at a shareholders meeting; (ii) if a
quorum exists, action on a matter, other than the election of directors,
by a voting group shall be approved if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group
opposing the action; and (iii) directors shall be elected by a plurality
of the votes cast by holders of the shares entitled to vote in the
election at a meeting at which a quorum is present.
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Section 7. Voting of Shares by Certain Holders. If the name
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signed on a vote, consent, waiver or proxy corresponds to the name of a
shareholder, the Corporation, if acting in good faith, is entitled to
accept the vote, consent, waiver or proxy and give it effect as the act
of the shareholder. If the name signed on a vote, consent, waiver or
proxy does not correspond to the name of its shareholder, the
Corporation, if acting in good faith, is nevertheless entitled to accept
the vote, consent, waiver or proxy and give it effect as the act of the
shareholder if authorized by ORS 60.237 or any successor provision
dealing with acceptance of votes.
Shares of the Corporation are not entitled to be voted if (i) they
are owned, directly or indirectly, by another domestic or foreign
corporation, and (ii) the Corporation owns, directly or indirectly, a
majority of the shares entitled to be voted for the directors of such
other corporation. This paragraph does not limit the power of a
corporation to vote any shares, including its own shares, held by it in
a fiduciary capacity.
Any redeemable shares that the Corporation may issue are not
entitled to be voted after notice of redemption is mailed to the holders
and a sum sufficient to redeem the shares has been deposited with a
bank, trust company or other financial institution under an irrevocable
obligation to pay the holders the redemption price on surrender of the
shares.
Section 8. Proxies. A shareholder entitled to vote or to execute
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any waiver or consent may do so either in person or by written proxy
duly executed and filed at or before the meeting at which it is to be
used with the Secretary at the Corporation or other officer or agent of
the Corporation authorized to tabulate votes. An appointment of a proxy
is effective when received by the Secretary or other officer or agent of
the Corporation authorized to tabulate votes. An appointment is valid
for 11 months unless a longer period is expressly provided in the
appointment form. An appointment of a proxy is revocable by the
shareholder unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest.
Section 9. Shareholder Lists. After fixing a record date for a
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meeting, the Corporation shall prepare an alphabetical list of the names
of all of its shareholders who are entitled to notice of the meeting.
The list shall be arranged by voting group, and within each voting
group, by class or series of shares and show the address of and the
number of shares held by each shareholder. The shareholder list shall
be available for inspection by any shareholder, beginning two business
days after notice of the meeting for which the list was prepared is
given and continuing through the meeting. Such list shall be kept on
file at the Corporation's principal office or at a place identified in
the meeting notice in the city where the meeting will be held. A
shareholder, or the shareholder's agent or attorney, shall be entitled
on written demand to inspect and, subject to the requirements of law, to
copy the list during regular business hours and at the shareholder's
expense during the period it is available for inspection. The
Corporation shall make the shareholder list available at the meeting,
and any shareholder, or the shareholder's agent or attorney, is entitled
to inspect the list at any time during the meeting or any adjournment.
The original stock transfer book shall be prima facie evidence as to who
are the shareholders entitled to inspect such list or to vote at any
meeting of shareholders. Refusal or failure to prepare or make
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available the shareholder list does not affect the validity of action
taken at the meeting.
Section 10. Business of Shareholder Meetings.
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(a) The Chairman of the Board, or such other officer of the
Corporation designated by the Board of Directors, shall call meetings of
the shareholders to order and shall act as presiding officer thereof.
Unless otherwise determined by the Board of Directors prior to the
meeting, the presiding officer, or any person he or she designates,
shall also have the authority in his or her sole discretion to regulate
the conduct of any such meeting, including, without limitation: the
establishment of rules for determining if business is to be brought
before such meeting; the establishment of procedures for the maintenance
of order and safety; setting limitations on the time allotted to
questions or comments on the affairs of the Corporation; imposing
restrictions on entry to such meeting of shareholders after the time
prescribed for the commencement thereof; determining the opening and
closing of the voting polls; imposing restrictions on the persons (other
than shareholders or their proxies) who may attend such meeting;
ascertaining whether any shareholder or his or her proxy may be excluded
from such meeting based upon any determination by the presiding officer,
in his or her discretion, that any such person has disrupted or is
likely to disrupt the proceedings thereat; and by determining the
circumstances in which any person may make a statement or ask questions
at such meeting.
(b) Only business within the purpose or purposes described in
the meeting notice may be conducted at a special shareholders meeting.
(c) At the annual meeting of the shareholders, only such
business shall be conducted as shall have been properly brought before
the meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii)
otherwise brought before the meeting by or at the direction of the Board
of Directors, or (iii) otherwise properly brought before the meeting by
a shareholder, and (iv) under law, an appropriate subject of shareholder
action.
(d) In addition to any other applicable requirements, including,
without limitation, requirements relating to solicitation of proxies and
proposals of security holders under the Securities Exchange Act of 1934,
as amended, (the "Proxy Rules") for business to be properly brought
before the annual meeting by a shareholder, including nominations of
persons for election to the Board of Directors, the shareholder must
have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be received by
the Secretary at the principal executive offices of the Corporation, not
less than 60 days prior to the meeting. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder proposes to
bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting; (ii) the name
and address, as they appear on the Corporation's books, of the
shareholder proposing such business; (iii) the class and number of
shares of the Corporation which are beneficially owned by the
shareholder; (iv) any material interest of the shareholder in such
business; (v) a description of all arrangements or understandings
between such shareholder and any other person or persons in connection
with the proposal of such business, (vi) a representation that such
shareholder intends to appear in person or by proxy at the annual
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meeting to bring such business before the meeting; and (vii) with regard
to nominations, all information required by the Proxy Rules.
(e) No business shall be conducted at an annual or special
meeting except in accordance with the procedures set forth in this
Section 10. The presiding officer at a shareholders meeting shall, if
the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the
provisions of this Section. If the presiding officer should so
determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
(f) The Chairman of the Board shall, in advance of any meeting
of shareholders, appoint one or more inspectors of election to act at
the meeting. The inspectors of election shall decide upon the
qualifications of voters, count the votes, declare the results and make
a written report thereof.
ARTICLE 3 - Directors
Section 1. Powers. The Corporation shall have a Board of
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Directors. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors.
Section 2. Number and Qualifications. The number of directors
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shall be determined by resolution of the Board of Directors, and shall
not be less than five. Any decrease in the number of directors
designated by the Board of Directors shall not shorten an incumbent
director's term. Directors need not be residents of Oregon or
shareholders of the Corporation.
Section 3. Election and Tenure. The directors shall be elected at
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the annual meeting of the shareholders, by separate vote of the Class A
and Class B Common Stock in the manner required by the Restated
Articles. Their term of office shall begin immediately after election.
The terms of all directors, including a director elected to fill a
vacancy, expire at the next annual shareholders meeting following their
election. Despite the expiration of a director's term, the director
shall continue to serve until his or her successor is elected and
qualifies or until there is a decrease in the number of directors.
Section 4. Vacancies. A vacancy in the Board of Directors shall
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exist upon the death, resignation or removal of any director or upon an
increase in the number of directors. If a vacancy occurs on the Board
of Directors as a result of death, resignation or removal from office of
a director who is elected by a separate class vote of the common stock,
it shall be filled by the affirmative vote of a majority of the
remaining directors similarly elected by such class. If none shall be
remaining, the vacancy shall be filled by all directors then in office.
If the directors remaining in office constitute fewer than a quorum of
the Board, they may fill the vacancy by an affirmative vote of a
majority of all of the directors remaining in office. If a vacancy
occurs on the Board of Directors as a result of an increase in the
number of directors, the Board of Directors may fill such vacancy,
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provided they may not elect more than three additional directors in any
period between annual shareholders meetings to fill such vacancies.
Section 5. Resignation. A director may resign at any time by
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delivering written notice to the Chairman of the Board of Directors, the
Board of Directors or the Corporation.
Section 6. Removal. The shareholders may remove one or more
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directors with or without cause. If a director is elected by a voting
group of shareholders, only the shareholders of that voting group may
participate in the vote to remove the director. A director may be
removed by the shareholders only at a meeting called for the purpose of
removing the director and the meeting notice must state that the
purpose, or one of the purposes, of the meeting is removal of the
director.
Section 7. Meetings - Notice and Waiver.
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(a) The Board of Directors may hold regular or special meetings
in or out of Oregon.
(b) Regular meetings of the Board of Directors may be held
without notice of the date, time, place or purpose of the meeting. The
Board of Directors may fix, by resolution, the time and place for the
holding of regular meetings.
(c) Special meetings of the Board of Directors for any purpose
or purposes may be called at any time by the Chairman of the Board, or a
majority of directors. Notice of special meetings of the Board of
Directors shall be preceded by at least 48 hours' notice of the date,
time, place and general purpose of the meeting. The notice shall be
given orally, either in person or by telephone, or shall be delivered in
writing, either personally, by mail or by facsimile or by telegram.
(d) Notice of the time and place of holding any adjourned
meeting need not be given if such time and place are fixed at the
meeting adjourned.
(e) The transaction of all business at any meeting of the Board
of Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum be present, and if, either
before or after the meeting, each of the directors not present shall
sign a written waiver of notice, or consent to holding such meeting, or
an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of
the minutes of the meeting. A director's attendance at or participation
in a meeting waives any required notice to the director of the meeting
unless the director at the beginning of the meeting, or promptly upon
the director's arrival, objects to holding the meeting or transacting
business at the meeting and does not thereafter vote for or assent to
action taken at the meeting.
Section 8. Quorum and Vote.
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(a) A majority of the directors in office shall constitute a
quorum for the transaction of business. A majority of the directors
present, in the absence of a quorum, may adjourn from time to time but
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may not transact any business. If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present is the
act of the Board of Directors, unless a different vote is required by
law.
(b) A director who is present at a meeting of the Board of
Directors, or is present at a meeting of a committee of the Board of
Directors, when corporate action is taken, is deemed to have assented to
the action taken unless (i) the director objects at the beginning of the
meeting, or promptly upon the director's arrival, to holding the meeting
or transacting business at the meeting, (ii) the director's dissent or
abstention from the action taken is entered in the minutes of the
meeting, or (iii) the director delivers written notice of dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of the
meeting. The right of dissent or abstention is not available to a
director who votes in favor of the action taken.
Section 9. Compensation. Directors shall be entitled to such
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compensation for their services as may be approved by the Board of
Directors, including, without limitation, an annual fee, a fixed sum for
attending each Board and committee meeting, and their expenses of
attendance at each meeting of the Board or a committee. No such payment
shall preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee, consultant or otherwise and
receiving compensation for that service.
ARTICLE 4 - Committees
Section 1. Committees of the Board of Directors. The Board of
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Directors shall designate an Executive Committee, a Nominating and
Corporate Governance Committee, an Audit Committee, a Compensation
Committee, a Finance Committee, and a Corporate Responsibility
Committee, each of which shall have powers and authority of the Board of
Directors to the extent provided for in charters for each committee
adopted by the Board of Directors. The Board of Directors may designate
one or more additional committees of the Board with such powers as shall
be specified in charters adopted by the Board. Each committee shall
consist of one or such greater number of directors as shall be
determined from time to time by resolution of the Board of Directors.
Section 2. Actions of the Committees. Each committee shall keep
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regular minutes of its meetings. All action taken by a committee shall
be reported to the Board of Directors at its meeting next succeeding
such action and shall be subject to approval and revision by the Board,
provided that no legal rights of third parties shall be affected by such
revisions.
Section 3. Procedures. The provisions of Article 3 of these
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Bylaws governing meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors shall apply to committees
and their members as well.
Section 4. Appointment of Committee Members. The members of each
________________________________
committee shall be appointed by the Board of Directors by resolution and
shall serve until the first meeting of the Board of Directors after the
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annual meeting of shareholders and until their successors are elected
and qualified or until the members' earlier resignation or removal. The
Board of Directors shall designate the Chair of each committee other
than the Executive Committee. The Chairman of the Board shall serve as
Chair of the Executive Committee. The Board may also designate the Vice
Chair of any committee, as appropriate. Vacancies may be filled by the
Board of Directors at any meeting.
With the approval of the Board of Directors, the Chairman of the
Board may designate one or more directors to serve as an alternate
member or members at any committee meeting to replace any absent or
disqualified member. The Chairman of the Board may designate a
committee member as acting Chair of that committee, in the absence of
the elected committee Chair or a Vice Chair.
ARTICLE 5 - Officers
Section 1. Designation; Appointment.
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(a) 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 Treasurer, a Secretary and such
other officers and assistant officers as the Board of Directors or the
Chairman of the Board shall from time to time appoint, none of whom need
be members of the Board of Directors. The officers shall hold office at
the pleasure of the Board of Directors if appointed by the Board, or the
Chairman of the Board if appointed by the Chairman. Subject to the
terms of any contract of employment between the Corporation and such
officer, any officer appointed by the Board of Directors or the Chairman
of the Board may be removed at any time by the Board of Directors or the
Chairman, respectively.
The same individual may simultaneously hold more than one office in
the Corporation. A vacancy in any office because of death, resignation,
removal or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to such office. The salaries and
other compensation of the officers of the Corporation shall be fixed by
or in the manner designated by the Board of Directors.
(b) Any officer may resign at any time by giving written notice
to the Board of Directors, the Chairman of the Board of Directors or the
Secretary. Unless the notice specifies a later effective date, a
resignation is effective at the earliest of the following: (i) when
received; (ii) five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postage prepaid and correctly
addressed; or (iii) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested and the receipt
is signed by or on behalf of the addressee. Once delivered, a notice of
resignation is irrevocable unless revocation is permitted by the Board
of Directors. If a resignation is made effective at a later date and
the Corporation accepts the future effective date, the Board of
Directors may fill the pending vacancy before the effective date, if the
Board of Directors provides that the successor shall not take office
until the effective date.
Section 2. Chairman of the Board. The Chairman of the Board shall
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preside at all meetings of the Board of Directors and shareholders and
will be the Chief Executive Officer of the Corporation. Subject to the
control of the Board of Directors, the Chairman of the Board shall have
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general supervision, direction and control of the business and affairs
of the Corporation and shall perform other duties commonly incident to
such office. The Chairman of the Board will have authority to execute
on behalf of the Corporation all contracts, deeds, agreements, stock
certificates and other instruments. The Chairman of the Board will be
the Chair of the Executive Committee and an ex officio a member of all
other standing committees, will have the general powers and duties of
management usually vested in the Chief Executive Officer of a
corporation and will have such other powers and duties as may be
prescribed by the Board of Directors or these Bylaws.
Section 3. President. The President will be the Chief Operating
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Officer of the Corporation, and will have such duties of general
supervision, direction and control of the business and affairs of the
Corporation as are authorized by the Board of Directors and the Chairman
of the Board. In the absence of the Chairman of the Board, the
President will perform the duties and responsibilities of the Chairman
of the Board. The President will be ex officio a member of all the
standing committees, have the general powers and duties of management
usually vested in the office of Chief Operating Officer of a corporation
and will have such other powers and duties as may be prescribed by the
Board of Directors, the Chairman of the Board or these Bylaws.
Section 4. Vice Presidents. Each Executive Vice President, Senior
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Vice President and Vice President shall have such powers and perform
such duties as may be assigned to the officer by the Board of Directors
or by the Chairman of the Board or the President or these Bylaws. In
the absence or disability of the Chairman of the Board and the
President, the Chairman of the Board's duties and powers shall be
performed and exercised by a senior officer designated by the Board of
Directors or the Chairman of the Board.
Section 5. Secretary. The Secretary shall attend all meetings of
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the shareholders and of the Board of Directors, and shall record all
acts and proceedings thereof in the minute book of the Corporation. The
Secretary shall give notice in conformity with these Bylaws of all
meetings of the shareholders, of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all
other duties given him in these Bylaws and other duties commonly
incident to such office and shall also perform such other duties and
have such other powers as the Board of Directors or the Chairman of the
Board may designate from time to time. An Assistant Secretary is
authorized to assume and perform the duties of the Secretary in the
absence of the Secretary, and to also perform such other duties and have
such other powers as the Board of Directors or the Chairman of the Board
shall designate from time to time.
Section 6. Treasurer. The Treasurer shall perform all duties and
_________
acts incident to the position of Treasurer, shall have custody and be
responsible for the Corporation's funds and securities, shall supervise
the investments of its funds, and shall deposit all money and other
valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be
authorized, taking proper vouchers for such disbursements, and shall
render to the Board of Directors, whenever required, an account of all
the transactions of the Treasurer and of the financial condition of the
Corporation. The Treasurer shall perform such other duties as may be
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assigned, and shall report to the Chief Financial Officer or, in the
absence of the Chief Financial Officer, to the Chairman of the Board.
In the absence of the Treasurer, an Assistant Treasurer is authorized to
assume the duties of the Treasurer, and to also perform such other
duties and have such other powers as the Board of Directors or the
Chairman of the Board shall designate from time to time.
Section 7. Assistant Officers. Such other officers as the Board
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of Directors, the Chairman of the Board or the President may designate,
including a Deputy Chairman of the Board of Directors and Assistant
Officers, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors or the Chairman
of the Board.
Section 8. Divisional Officers. The Board of Directors or the
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Chairman of the Board may from time to time appoint persons to hold
nominal titles as officers of divisions or of other areas of the
Corporation's business ("Divisional Officers"). No Divisional Officer
shall by reason of such appointment become a corporate officer or have
the authority of a corporate officer. Each Divisional Officer shall
only perform such duties and have such powers as may be assigned to the
person by the Board of Directors or the Chairman of the Board. Any
title given to any Divisional Officer may be withdrawn, with or without
cause at any time, by the Board of Directors or the Chairman, and any
duty or authority delegated to any such person may be withdrawn, with or
without cause at any time, by the Board of Directors or the Chairman.
ARTICLE 6 - Certificates and Transfer of Shares
Section 1. Certificates for Shares.
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(a) Form. Certificates for shares shall be in such form as the
____
Board of Directors may designate, shall state the name of the
Corporation and the state law under which the Corporation is organized,
shall state the name of the person to whom the shares represented by the
certificate are issued, and shall state the number and class of shares
and the designation of the series, if any, the certificate represents.
If the Corporation is authorized to issue different classes of shares or
different series within a class, the designations, relative rights,
preferences and limitations applicable to each class, the variations in
rights, preferences and limitations determined for each series and the
authority of the Board of Directors to determine variations for future
series shall be summarized on the front or back of each certificate, or
each certificate may state conspicuously on its front or back that the
Corporation shall furnish shareholders with this information on request
in writing and without charge.
(b) Signing. Each certificate for shares shall be signed,
_______
either manually or in facsimile, by (i) the Chairman of the Board or the
President and (ii) the Secretary or an Assistant Secretary of the
Corporation. The certificates may bear the corporate seal or its
facsimile. If any officer who has signed a share certificate, either
manually or in facsimile, no longer holds office when the certificate is
issued, the certificate shall nevertheless be valid.
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Section 2. Transfer on the Books. Upon surrender to the
_____________________
Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, and
subject to any limitations on transfer appearing on the certificate or
in the Corporation's stock transfer records, the Corporation shall issue
a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 3. Lost Certificates. In the event a certificate is
_________________
represented to be lost, stolen or destroyed, a new certificate shall be
issued in place thereof upon such proof of the loss, theft or
destruction and upon the giving of such bond or other indemnity as may
be required by the Corporation.
Section 4. Transfer Agents and Registrars. The Board of Directors
______________________________
may from time to time appoint one or more transfer agents and one or
more registrars for the shares of the Corporation who will have such
powers and duties as the Board of Directors may specify.
Section 5. Record Date. In order that the Corporation may
___________
determine the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of
any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which
shall not be more than 70 nor less than 10 days before the date of such
meeting, nor more than 70 days prior to any other action. If no record
date is fixed by the Board of Directors, the record date for determining
shareholders entitled to notice of or to vote at a meeting of
shareholders shall be the close of business on the day next preceding
the day on which notice of such meeting is given, or, if notice is
waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall
apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Registered Shareholders. The Corporation shall be
_______________________
entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE 7 - General Provisions
Section 1. Records. The Corporation shall maintain all records
_______
required by law. All such records shall be kept at its principal
office, registered office or at any other place designated by the
Chairman of the Board of the Corporation, or as otherwise provided by
applicable law. The records of the Corporation allowed to be inspected
by shareholders shall be open to inspection by the shareholders or the
11
shareholders' agents or attorneys in the manner and to the extent
required by applicable law.
Section 2. Seal. The corporate seal, if any, shall be circular in
____
form and shall have inscribed thereon the name of the Corporation and
the state of incorporation.
Section 3. Amendment of Bylaws. Except as otherwise provided by
___________________
applicable law or by the Restated Articles, the Board of Directors may
amend or repeal these Bylaws at any regular or special meeting. The
Corporation's shareholders may also amend or repeal these Bylaws, as
authorized by applicable laws.
Section 4. Action Without a Meeting. Any action required or
________________________
permitted by law to be taken at any meeting of the Board of Directors,
or at any meeting of a committee of the Board of Directors, or at any
meeting of shareholders may be taken without a meeting if the action is
taken by all members of the Board or the Committee or all shareholders.
The action shall be evidenced by one or more written consents describing
the action taken, signed by each director, committee member or
shareholder and included in the minutes or filed with the corporate
records reflecting the action taken. Action taken under this Section 4
is effective when the last director or shareholder signs the consent,
unless the consent specifies an earlier or later effective date. A
consent signed under this section has the effect of a meeting vote and
may be described as such in any document.
Section 5. Telephonic Meetings. The Board of Directors or any
___________________
committee thereof may permit any or all directors to participate in a
regular or special meeting by, or conduct the meeting through, use of
any means of communication by which all directors participating may
simultaneously hear each other during the meeting. All directors
participating in a Board or committee meeting by this means shall be
deemed to be present in person at the meeting.
Section 6. Fiscal Year. The fiscal year of the Corporation shall
___________
extend from June 1 until May 31 of the following calendar year.
Section 7. Execution of Corporate Instruments.
__________________________________
(a) The Board of Directors may, in its discretion, determine the
method and designate the signatory officer or officers, or other person
or persons, to execute any corporate instrument or document, and such
execution or signature shall be binding upon the Corporation.
(b) Unless otherwise specifically determined by the Board of
Directors or otherwise required by law, formal contracts of the
Corporation, promissory notes, deeds of trusts, mortgages and other
evidences of indebtedness of the Corporation, and other corporate
instruments shall be executed, signed or endorsed by the Chairman of the
Board, the President, the Treasurer, or any Vice President. All other
instruments and documents requiring the corporate signature may be
executed as aforesaid or in such other manner as may be directed by the
Board of Directors.
(c) All checks and drafts drawn on banks or other depositories
12
on funds to the credit of the Corporation or in special accounts of the
Corporation shall be signed by such person or persons as the Board of
Directors shall authorize so to do.
ARTICLE 8 - Transactions With Interested Directors
Section 1. Validity of Transaction.
_______________________
(a) No transaction involving the Corporation shall be voidable
by the Corporation solely because of a director's direct or indirect
interest in the transaction if:
(i) The material facts of the transaction and the director's
interest were disclosed or known to the Board of Directors or a
committee of the Board of Directors, and the Board of Directors or
committee authorized, approved or ratified the transaction;
(ii) The material facts of the transaction and the
director's interest were disclosed or known to the shareholders entitled
to vote and the shareholders authorized, approved or ratified the
transaction by the affirmative vote of the holders of a majority of the
issued and outstanding shares of the Corporation, or by written consent;
or
(iii) The transaction was fair and reasonable to the
Corporation.
(b) This Article 8 shall not invalidate any contract,
transaction or determination that would otherwise be valid under
applicable law.
Section 2. Indirect Interest. Solely for purposes of this Article
_________________
8, a director of the Corporation has an indirect interest in a
transaction if another entity in which the director has a material
financial interest or in which the director is a general partner is a
party to the transaction; or the transaction with another entity of
which the director is a director, officer or trustee is a party to the
transaction and the transaction is or should be considered by the Board
of Directors.
Section 3. Authorization by Board. For purposes of Section 1 of
______________________
this Article 8, a transaction in which a director has an interest is
authorized, approved or ratified by the Board of Directors if it
receives the affirmative vote of a majority of the directors on the
Board of Directors, or on the committee, who have no direct or indirect
interest in the transaction. A transaction may not be authorized,
approved or ratified under this Article 8 by a single director. If a
majority of the directors who have no direct or indirect interest in the
transaction vote to authorize, approve or ratify the transaction, a
quorum shall be present for the purpose of taking action under this
Article 8. The presence of, or a vote cast by, a director with a direct
or indirect interest in the transaction shall not affect the validity of
any action taken under Section 1 of this Article 8 by the Board of
Directors or a committee thereof, if the transaction is otherwise
authorized, approved or ratified as provided in Section 1 of this
Article 8.
13
Section 4. Authorization by Shareholders. For purposes of Section
_____________________________
1 of this Article 8, a transaction in which a director has an interest
is authorized, approved or ratified if it receives the vote of a
majority of the shares entitled to vote under this Article 8 voting as a
single voting group. Shares owned by or voted under the control of a
director who has a direct or indirect interest in the transaction, and
shares owned by or voted under the control of any entity described in
paragraph (a) of Section 2 of this Article 8 may be counted in a vote of
shareholders to determine whether to authorize, approve or ratify a
transaction by vote of the shareholders under Section 1 of this Article
8. A majority of the shares, whether or not present, that are entitled
to be counted in a vote on the transaction under this Article 8
constitutes a quorum for the purpose of taking action under this Article
8.
ARTICLE 9 - Indemnification
(a) The Corporation shall indemnify to the fullest extent
permitted by law, any person who is made, or threatened to be made, a
party to or witness in, or is otherwise involved in, any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative, or otherwise (including any
action, suit or proceeding by or in the right of the Corporation) by
reason of the fact that:
(i) the person is or was a director or officer of the
Corporation or any of its subsidiaries;
(ii) the person is or was serving as a fiduciary within the
meaning of the Employee Retirement Income Security Act of 1974 with
respect to any employee benefit plan of the Corporation or any of its
subsidiaries; or
(iii) the person is or was serving, at the request of the
Corporation or any of its subsidiaries, as a director or officer, or as
a fiduciary of an employee benefit plan, of another corporation,
partnership, joint venture, trust or other enterprise.
(b) The Corporation may indemnify its employees and other agents
to the fullest extent permitted by law.
(c) The expenses incurred by a director or officer or other
indemnified person in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, investigative, or otherwise, which the director or
officer is made or threatened to be made a party to or witness in, or
is otherwise involved in, shall be paid by the Corporation in advance
upon written request if the indemnified person:
(i) furnishes the Corporation a written affirmation that in
good faith the person believes that he or she is entitled to be
indemnified by the Corporation; and
(ii) furnishes the Corporation a written undertaking to
repay such advance to the extent that it is ultimately determined by a
court that such person is not entitled to be indemnified by the
Corporation. Such advances shall be made without regard to the person's
ability to repay such expenses and without regard to the person's
ultimate entitlement to indemnification under this Article or otherwise.
14
(d) The rights of indemnification provided in this Article 9
shall be in addition to any rights to which a person may otherwise be
entitled under any articles of incorporation, bylaw, agreement, statute,
policy of insurance, vote of shareholders or Board of Directors, or
otherwise; shall continue as to a person who has ceased to be a
director, officer, employee or agent of the Corporation; and shall inure
to the benefit of the heirs, executors and administrators of such
person.
(e) Any repeal of this Article 9 shall be prospective only and
no repeal or modification of this Article 9 shall adversely affect any
right or protection that is based upon this Article 9 and pertains to an
act or omission that occurred prior to the time of such repeal or
modification.
(f) As a condition precedent to indemnification under this
Article 9, not later than 30 days after receipt by the director or
officer of notice of the commencement of any proceeding the director or
officer shall, if a claim in respect of the proceeding is to be made
against the Corporation under this Article 9, notify the Corporation in
writing of the commencement of the proceeding. The failure to properly
notify the Corporation shall not relieve the Corporation from any
liability which it may have to the director or officer otherwise than
under this Article 9. With respect to any proceeding as to which the
director or officer so notifies the Corporation of the commencement:
(i) The Corporation shall be entitled to participate in the
proceeding at its own expense.
(ii) Except as otherwise provided in this paragraph (f), the
Corporation may, at its option and jointly with any other indemnifying
party similarly notified and electing to assume such defense, assume the
defense of the proceeding, with legal counsel reasonably satisfactory to
the director or officer. The director or officer shall have the right
to use separate legal counsel in the proceeding, but the corporation
shall not be liable to the director or officer under this Article 9 for
the fees and expenses of separate legal counsel incurred after notice
from the Corporation of its assumption of the defense, unless (A) the
director or officer reasonably concludes that there may be a conflict of
interest between the Corporation and the director or officer in the
conduct of the defense of the proceeding, or (B) the Corporation does
not use legal counsel to assume the defense of such proceeding. The
Corporation shall not be entitled to assume the defense of any
proceeding brought by or on behalf of the Corporation or as to which the
director or officer has made the conclusion provided for in (A) above.
(iii) If two or more persons who may be entitled to
indemnification from the Corporation, including the director or officer
seeking indemnification, are parties to any proceeding, the Corporation
may require the director or officer to use the same legal counsel as the
other parties. The director or officer shall have the right to use
separate legal counsel in the proceeding, but the Corporation shall not
be liable to the director or officer under this Article 9 for the fees
and expenses of separate legal counsel incurred after notice from the
Corporation of the requirement to use the same legal counsel as the
other parties, unless the director or officer reasonably concludes that
there may be a conflict of interest between the director or officer and
any of the other parties required by the Corporation to be represented
by the same legal counsel.
(iv) The Corporation shall not be liable to indemnify the
director or officer under this Article 9 for any amounts paid in
15
settlement of any proceeding effected without its written consent, which
shall not be unreasonably withheld. The director or officer shall
permit the Corporation to settle any proceeding that the Corporation
assumes the defense of, except that the Corporation shall not settle any
action or claim in any manner that would impose any penalty or
limitation on the director or officer without such person's written
consent.
(g) Notwithstanding any provision in this Article 9, the
Corporation shall not be obligated under this Article 9 to make any
indemnification or advance any expenses in connection with any claim
made against any director or officer:
(i) for which payment is required to be made to or on behalf
of the director or officer under any insurance policy, except with
respect to any excess amount to which the director or officer is
entitled under this Article 9 beyond the amount of payment under such
insurance policy;
(ii) if a court having jurisdiction in the matter finally
determines that such indemnification is not lawful under any applicable
statute or public policy;
(iii) in connection with any proceeding (or part of any
proceeding) initiated by the director or officer, or any proceeding by
the director or officer against the Corporation or its directors,
officers, employees or other persons entitled to be indemnified by the
Corporation, unless: (A) the Corporation is expressly required by law to
make the indemnification; (B) the proceeding was authorized by the Board
of Directors; or (C) the director or officer initiated the proceeding
pursuant to subsection (i) of this Article 9 and the director or officer
is successful in whole or in part in such proceeding; or
(iv) for an accounting of profits made from the purchase and
sale by the director or officer of securities of the Corporation within
the meaning of Section 16(b) of the Exchange Act, or similar provision
of any state statutory law or common law.
(h) In the event of payment under this Article 9, the
Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of the director or officer. The director or
officer shall execute all documents required and shall do all acts that
may be necessary to secure such rights and to enable the Corporation
effectively to bring suit to enforce such rights.
(i) Without the necessity of entering into an express contract,
all rights to indemnification and advances to directors and officers
under this Article 9 shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract
between the Corporation and the director or officer. Any director or
officer may enforce any right to indemnification or advances under this
Article 9 in any court of competent jurisdiction if: (i) the Corporation
denies the claim for indemnification or advances, in whole or in part,
or (ii) the Corporation does not dispose of such claim within 45 days of
request therefor. It shall be a defense to any such enforcement action
(other than an action brought to enforce a claim for advancement of
expenses pursuant to, and in compliance with, this Article 9) that the
director or officer is not entitled to indemnification under this
Article 9. However, except as provided in subsection (f) of this
Article 9, the Corporation shall not assert any defense to an action
brought to enforce a claim for advancement of expenses pursuant to this
Article 9 if the director or officer has tendered to the Corporation the
16
affirmation and undertaking required hereunder. The burden of proving
by clear and convincing evidence that indemnification is not appropriate
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or independent legal counsel) to have
made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the director or
officer has met the applicable standard of conduct nor an actual
determination by the Corporation (including its Board of Directors or
independent legal counsel) that indemnification is improper because the
director or officer has not met such applicable standard of conduct,
shall be asserted as a defense to the action or create a presumption
that the director or officer is not entitled to indemnification under
this Article 9 or otherwise. The director's or officer's expenses
incurred in connection with successfully establishing such person's
right to indemnification or advances, in whole or in part, in any
proceeding shall also be paid or reimbursed by the Corporation.
(j) The rights conferred on any person by this Article 9 shall
continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) To the fullest extent permitted by law, the Corporation,
upon approval by the Board of Directors, may purchase insurance on
behalf of any person required or permitted to be indemnified pursuant to
this Article 9.
(l) If this Article 9 or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer to
the full extent not prohibited by any applicable portion of this Article
9 that shall not have been invalidated, or by any other applicable law.
ARTICLE 10 - Limitation of Director Liability
To the fullest extent permitted by law, no director of the
Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for conduct as a director. Without
limiting the generality of the foregoing, if the Oregon Revised Statutes
are amended, after this Article 10 becomes effective, to authorize
corporate action further eliminating or limiting the personal liability
of directors of the Corporation, then the liability of directors of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Oregon Revised Statutes, as so amended. No amendment
or repeal of this Article 10, nor the adoption of any provision of these
Bylaws inconsistent with this Article 10, nor a change in the law, shall
adversely affect any right or protection that is based upon this Article
10 and pertains to conduct that occurred prior to the time of such
amendment, repeal, adoption or change. No change in the law shall
reduce or eliminate the rights and protections set forth in this Article
10 unless the change in the law specifically requires such reduction or
elimination.
17