EXHIBIT 3.4
AMENDED AND RESTATED BYLAWS OF
CELEBRATE EXPRESS, INC.
These Amended and Restated Bylaws (the "Bylaws") are promulgated pursuant
to the Washington Business Corporation Act, as set forth in Title 23B of the
Revised Code of Washington.
ARTICLE 1.
OFFICES
1.1 PRINCIPAL OFFICE. The principal office of the Corporation shall be
located at the principal place of business or such other place as the Board of
Directors may designate.
1.2 REGISTERED OFFICE AND REGISTERED AGENT. The registered office of the
Corporation shall be located in the State of Washington at such place as may be
fixed from time to time by the Board of Directors upon filing of such notices as
may be required by law, and the registered agent shall have a business office
identical with such registered office. Any change in the registered agent or
registered office shall be effective upon filing such change with the office of
the Secretary of State of the State of Washington.
1.3 OTHER OFFICES. The Corporation shall also have and maintain an
office or principal place of business at such place as may be fixed by the Board
of Directors, and may also have offices at such other places, both within and
without the State of Washington, as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2.
SHAREHOLDERS
2.1 ANNUAL MEETING
(a) The annual meeting of the shareholders 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 on a date and at a time
and place to be set by the Board of Directors.
(b) At an 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 properly 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. For business to be properly brought
before an annual meeting by a shareholder, 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 delivered to or mailed and received at
the principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on
the one hundred twentieth (120th) day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that no
annual meeting was held in the previous year or the date of the annual meeting
has been changed by more than thirty (30) days from the date contemplated at the
time of the previous year's proxy statement, notice by the shareholder to be
timely must be so received not earlier than the close of business on the
ninetieth (90th) day prior to such annual meeting and not later than the close
of business on the later of the sixtieth (60th) day prior to such annual meeting
or, in the event public announcement of the date of such annual meeting is first
made by the Corporation fewer than seventy (70) days prior to the date of such
annual meeting, the close of business on the tenth (10th) day following the day
on which public announcement of the date of such meeting is first made by the
Corporation. A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting: (a) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, (d) any material interest of the
shareholder in such business and (e) any other information that is required to
be provided by the shareholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as a
proponent to a shareholder proposal. Notwithstanding the foregoing, in order to
include information with respect to a shareholder proposal in the proxy
statement and form of proxy for a shareholders' meeting, shareholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the meeting shall not
be transacted.
2.2 SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose or purposes may be called at any time by a majority of the Board of
Directors or by the Chairperson of the Board (if one be elected) or by the Chief
Executive Officer. The Board of Directors may designate any place as the place
of any special meeting called by the Chairperson, the Chief Executive Officer or
the Board.
2.3 NOTICE OF MEETINGS. Except as otherwise provided in Subsections
2.3(b) and 2.3(c) below, the Secretary, Assistant Secretary, or any transfer
agent of the Corporation shall deliver, either personally or by mail, private
carrier, telegraph or teletype, or telephone, wire or wireless equipment which
transmits a facsimile of the notice, not less than ten (10) nor more than sixty
(60) days before the date of any meeting of shareholders, written notice stating
the place, day, and time of the meeting to each shareholder of record entitled
to vote at such meeting. If mailed in the United States, such notice shall be
deemed to be delivered when deposited in the United States mail, with
first-class postage thereon prepaid, addressed to the shareholder at his address
as it appears on the Corporation's record of shareholders. If mailed outside the
United States, such notice shall be deemed to be delivered five (5) days after
being deposited in the mail, with first-class airmail postage thereon, return
receipt requested, addressed to the shareholder at the shareholder's address as
it appears on the Corporation's record of shareholders.
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(a) NOTICE OF SPECIAL MEETING. In the case of a special meeting,
the written notice shall also state with reasonable clarity the purpose or
purposes for which the meeting is called and the actions sought to be approved
at the meeting. No business other than that specified in the notice may be
transacted at a special meeting.
(b) PROPOSED ARTICLES OF AMENDMENT OR DISSOLUTION. If the business
to be conducted at any meeting includes any proposed amendment to the Articles
of Incorporation or the proposed voluntary dissolution of the Corporation, then
the written notice shall be given not less than twenty (20) nor more than sixty
(60) days before the meeting date and shall state that the purpose or one of the
purposes is to consider the advisability thereof, and, in the case of a proposed
amendment, shall be accompanied by a copy of the amendment.
(c) PROPOSED MERGER, CONSOLIDATION, EXCHANGE, SALE, LEASE OR
DISPOSITION. If the business to be conducted at any meeting includes any
proposed plan of merger or share exchange, or any sale, lease, exchange, or
other disposition of all or substantially all of the Corporation's property
otherwise than in the usual or regular course of its business, then the written
notice shall state that the purpose or one of the purposes is to consider the
proposed plan of merger or share exchange, sale, lease, or disposition, as the
case may be, shall describe the proposed action with reasonable clarity, and, if
required by law, shall be accompanied by a copy or a detailed summary thereof;
and written notice shall be given to each shareholder of record, whether or not
entitled to vote at such meeting, not less than twenty (20) nor more than sixty
(60) days before such meeting, in the manner provided in Section 2.3 above.
(d) DECLARATION OF MAILING. A declaration of the mailing or other
means of giving any notice of any shareholders' meeting, executed by the
Secretary, Assistant Secretary, or any transfer agent of the Corporation giving
the notice, shall be prima facie evidence of the giving of such notice.
(e) WAIVER OF NOTICE. Notice of any shareholders' meeting may be
waived in writing by any shareholder at any time, either before or after the
meeting. Except as provided below, the waiver must be signed by the shareholder
entitled to the notice, and be delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A shareholder's attendance at a
meeting waives objection to lack of notice, or defective notice, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting.
2.4 QUORUM. A quorum shall exist at any meeting of shareholders if a
majority of the shares entitled to vote is represented in person or by proxy.
Shares entitled to vote as a separate voting group may take action on a matter
at a meeting only if a quorum of those shares exists with respect to that
matter. The shareholders present at a duly organized meeting may continue to
transact business at such meeting and at any adjournment of such meeting (unless
a new record date is or must be set for the adjourned meeting), notwithstanding
the withdrawal of enough shareholders from either meeting to leave less than a
quorum. Once a share is represented for any purpose at a meeting other than
solely to object to holding the meeting or transacting business at the 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 the adjourned meeting.
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2.5 VOTING OF SHARES. Except as otherwise provided in the Articles of
Incorporation or these Bylaws, every shareholder of record shall have the right
at every shareholders' meeting to one vote for every share standing in his name
on the books of the Corporation. If a quorum exists, action on a matter, other
than the election of directors, is approved by a voting group if the votes cast
within the voting group favoring the action exceed the votes cast within the
voting group opposing the action, unless a greater number is required by the
Articles of Incorporation or the Washington Business Corporation Act.
2.6 ADJOURNED MEETINGS. A majority of the shares represented at a
meeting, even if less than a quorum, may adjourn the meeting from time to time
without further notice. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. However, if a
new record date for the adjourned meeting is or must be fixed in accordance with
the Washington Business Corporation Act, notice of the adjourned meeting must be
given to persons who are shareholders as of the new record date. At any
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting.
2.7 RECORD DATE. For the purpose of determining 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, the Board of Directors may fix
in advance a record date for any such determination of shareholders, such date
to be not more than seventy (70) days and, in the case of a meeting of
shareholders, not less than ten (10) days prior to the meeting or action
requiring such determination of shareholders. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the day
before the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
more than one hundred twenty (120) days after the date is fixed for the original
meeting.
2.8 RECORD OF SHAREHOLDERS ENTITLED TO VOTE. After fixing a record date
for a shareholders' meeting, the Corporation shall prepare an alphabetical list
of the names of all shareholders on the record date who are entitled to notice
of the shareholders' 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 number of shares held by each shareholder. A shareholder, shareholder's
agent, or a shareholder's attorney may inspect the shareholders list, beginning
ten days prior to the shareholders' meeting and continuing through the meeting,
at the Corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held during regular business hours
and at the shareholder's expense. The shareholders list shall be kept open for
inspection during such meeting or any adjournment. Failure to comply with the
requirements of this Section shall not affect the validity of any action taken
at such meeting.
2.9 TELEPHONIC MEETINGS. Shareholders may participate in a meeting by
means of a conference telephone or other communications equipment by which all
persons participating in the meeting can hear each other during the meeting, and
participation by such means shall constitute presence in person at a meeting.
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2.10 PROXIES. At all meetings of shareholders, a shareholder may vote by
proxy executed in writing by the shareholder or by his duly authorized attorney
in fact. Such proxy shall be filed with the secretary of the Corporation before
or at the time of the meeting. No proxy shall be valid after eleven (11) months
from the date of its execution, unless otherwise provided in the proxy.
2.11 ORGANIZATION
(a) At every meeting of shareholders, the Chairperson of the Board
of Directors, or, if a Chairperson has not been appointed or is absent, the
Chief Executive Officer, or, if the Chief Executive Officer is absent, a
chairman of the meeting chosen by a majority in interest of the shareholders
entitled to vote, present in person or by proxy, shall act as chairman. The
Secretary, or, in his absence, an Assistant Secretary directed to do so by the
Chief Executive Officer, shall act as secretary of the meeting.
(b) The Board of Directors of the Corporation shall be entitled to
make such rules or regulations for the conduct of meetings of shareholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to shareholders of
record of the Corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of shareholders shall not be required to
be held in accordance with rules of parliamentary procedure.
ARTICLE 3.
BOARD OF DIRECTORS
3.1 MANAGEMENT RESPONSIBILITY. 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, except as may
be otherwise provided in the Articles of Incorporation or the Washington
Business Corporation Act.
3.2 NUMBER OF DIRECTORS, QUALIFICATION. The authorized number of
directors of the Corporation shall be not less than four (4) nor more than nine
(9), the specific number to be set by resolution of the Board of Directors.
Directors need not be shareholders. No reduction of the authorized number of
directors shall have the effect of removing any director before that director's
term of office expires.
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3.3 ELECTION. At the first annual meeting of shareholders and at each
annual meeting thereafter, the shareholders shall elect directors to hold office
at the annual meeting. If, for any reason, the directors shall not have been
elected at an annual meeting, they may be elected at a special meeting of
shareholders called for that purpose in accordance with these Bylaws. Despite
the expiration of a director's term, the director shall continue to serve until
the director's successor shall have been elected and qualified or until there is
a decrease in the number of directors.
3.4 VACANCIES. Any vacancy occurring in the Board of Directors (whether
caused by resignation, death, an increase in the number of directors, or
otherwise) may be filled the Board of Directors or the shareholders if not
filled by the Board. If the directors in office constitute fewer than a quorum
of the Board, they may fill the vacancy by the affirmative vote of a majority of
all the directors in office. A director elected to fill any vacancy shall hold
office until the next shareholders meeting at which directors are elected.
3.5 REMOVAL. One or more members of the Board of Directors (including
the entire Board) may be removed, with cause, at a meeting of shareholders
called expressly for that purpose. A director may be removed only if the number
of votes cast to remove the director exceeds the number of votes cast not to
remove the director. Neither the Board of Directors nor any individual director
may be removed without cause.
3.6 RESIGNATION. Any director may resign at any time by delivering his
written resignation to the Secretary, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
be deemed effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each Director so chosen shall hold office for the unexpired portion of the term
of the Director whose place shall be vacated and until his successor shall have
been duly elected and qualified.
3.7 ANNUAL MEETING. The first meeting of each newly elected Board of
Directors shall be known as the annual meeting thereof and shall be held without
notice immediately after the annual shareholders' meeting or any special
shareholders' meeting at which a Board is elected. Said meeting shall be held at
the same place as such shareholders' meeting unless some other place shall be
specified by resolution of the Board of Directors.
3.8 REGULAR MEETINGS. Regular meetings of the Board of Directors or of
any committee designated by the Board may be held at such place and such day and
hour as shall from time to time be fixed by resolution of the Board or
committee, without other notice than the delivery of such resolution as provided
in Section 3.10 below.
3.9 SPECIAL MEETINGS. Special meetings of the Board of Directors or any
committee designated by the Board may be called by the Chief Executive Officer
or the Chairperson of the Board (if one be elected) or any director or committee
member, to be held at such place and such day and hour as specified by the
person or persons calling the meeting.
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3.10 NOTICE OF MEETING. Notice of the date, time, and place of all
special meetings of the Board of Directors or any committee designated by the
Board shall be given by the Secretary, or by the person calling the meeting, by
mail, private carrier, telegram, facsimile transmission, or personal
communication over the telephone or otherwise, provided such notice is received
at least two (2) days prior to the day upon which the meeting is to be held.
No notice of any regular meeting need be given if the time and place
thereof shall have been fixed by resolution of the Board of Directors or any
committee designated by the Board and a copy of such resolution has been
delivered by mail, private carrier, telegram or facsimile transmission to every
director or committee member and is received at least two (2) days before the
first meeting held in pursuance thereof.
Notice of any meeting of the Board of Directors or any committee
designated by the Board need not be given to any director or committee member if
it is waived in a writing signed by the director entitled to the notice, whether
before or after such meeting is held.
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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors or any committee designated by the Board need be
specified in the notice or waiver of notice of such meeting unless required by
the Articles of Incorporation or these Bylaws.
Any meeting of the Board of Directors or any committee designated by
the Board shall be a legal meeting without any notice thereof having been given
if all of the directors or committee members have received valid notice thereof,
are present without objecting, or waive notice thereof in a writing signed by
the director and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records, or any combination thereof.
3.11 QUORUM OF DIRECTORS. A majority of the number of directors fixed by
or in the manner provided by these Bylaws shall constitute a quorum for the
transaction of 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 the Articles of Incorporation or these Bylaws require the vote
of a greater number of directors.
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place. If the meeting is
adjourned for more than forty-eight (48) hours, then notice of the time and
place of the adjourned meeting shall be given before the adjourned meeting takes
place, in the manner specified in Section 3.10 of these Bylaws, to the directors
who were not present at the time of the adjournment.
3.12 PRESUMPTION OF ASSENT. Any director who is present at any meeting of
the Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless (a) 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; (b) the director's
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (c) the director delivers written notice of dissent or abstention to
the presiding officer of the meeting before the adjournment thereof or to the
Corporation within a reasonable time after adjournment of the meeting. Such
right to dissent or abstain shall not be available to any director who voted in
favor of such action.
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3.13 ACTION BY DIRECTORS WITHOUT A MEETING. Any action required by law to
be taken or which may be taken at a meeting of the Board of Directors or of a
committee thereof may be taken without a meeting if one or more written
consents, setting forth the action so taken, shall be signed by all of the
directors or all of the members of the committee, as the case may be, either
before or after the action taken and delivered to the Corporation for inclusion
in the minutes or filing with the corporate records. Such consent shall have the
same effect as a unanimous vote at a meeting duly held upon proper notice on the
date of the last signature thereto, unless the consent specifies a later
effective date.
3.14 TELEPHONIC MEETINGS. Members of the Board of Directors or any
committee designated by the Board may participate in a meeting of the Board or
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
during the meeting. Participation by such means shall constitute presence in
person at a meeting.
3.15 COMPENSATION. By resolution of the Board of Directors, the directors
and committee members may be paid their expenses, if any, or a fixed sum or a
stated salary as a director or committee member for attendance at each meeting
of the Board or of such committee as the case may be. No such payment shall
preclude any director or committee member from serving the Corporation in any
other capacity and receiving compensation therefor.
3.16 COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the full Board, may from time to time designate from among its
members one or more committees, each of which must have two (2) or more members
and, to the extent provided in such resolution, shall have and may exercise all
the authority of the Board of Directors, except that no such committee shall
have the authority to:
(a) authorize or approve a distribution except according to a
general formula or method prescribed by the Board of Directors;
(b) approve or propose to shareholders action that the Washington
Business Corporation Act requires to be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of its
committees;
(d) adopt any amendment to the Articles of Incorporation;
(e) adopt, amend or repeal these Bylaws;
(f) approve a plan of merger; or
(g) authorize or approve the issuance or sale or contract for sale
of shares, or determine the designation and relative rights, preferences and
limitations of a class or series of shares, except that the Board of Directors
may authorize a committee, or a senior executive officer of the Corporation, to
do so within limits specifically prescribed by the Board of Directors.
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Meetings of such committees shall be governed by the same procedures
as govern the meetings of the Board of Directors. All committees so appointed
shall keep regular minutes of their meetings and shall cause them to be recorded
in books kept for that purpose at the office of the Corporation.
ARTICLE 4.
OFFICERS
4.1 APPOINTMENT. The officers of the Corporation shall be appointed
annually by the Board of Directors at its annual meeting held after the annual
meeting of the shareholders. If the appointment of officers is not held at such
meeting, such appointment shall be held as soon thereafter as a Board meeting
conveniently may be held. Except in the case of death, resignation or removal,
each officer shall hold office at the pleasure of the Board of Directors until
the next annual meeting of the Board and until his successor is appointed and
qualified.
4.2 QUALIFICATION. None of the officers of the Corporation need be a
director, except as specified below. Any two or more of the corporate offices
may be held by the same person.
4.3 OFFICERS DESIGNATED. The officers of the Corporation shall include,
if and when designated by the Board of Directors, a Chief Executive Officer, a
President, one or more Vice Presidents (the number thereof to be determined by
the Board of Directors), a Secretary, a Chief Financial Officer and a Treasurer.
The Board of Directors may also appoint such other officers and assistant
officers as it may deem necessary.
The Board of Directors may, in its discretion, appoint a Chairperson
of the Board of Directors; and, if a Chairperson has been appointed, the
Chairperson shall, when present, preside at all meetings of the Board of
Directors and the shareholders and shall have such other powers commonly
incident to his office and as the Board may prescribe.
(a) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be
the chief executive officer of the corporation and, subject to the direction and
control of the Board, shall supervise and control all of the assets, business,
and affairs of the corporation. The Chief Executive Officer shall vote the
shares owned by the corporation in other corporations, domestic or foreign,
unless otherwise prescribed by resolution of the Board. In general, the Chief
Executive Officer shall perform all duties incident to the office of Chief
Executive Officer and such other duties as may be prescribed by the Board from
time to time.
The Chief Executive Officer shall, unless a Chairperson of the Board
of Directors has been appointed and is present, preside at all meetings of the
shareholders and the Board of Directors.
(b) PRESIDENT. The President shall report to the Chief Executive
Officer. In the absence of the Chief Executive Officer or his inability to act,
the President, if any, shall perform all the duties of the Chief Executive
Officer and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the Chief Executive Officer; provided that no such
President shall assume the authority to preside as Chairperson of meetings of
the Board unless such President is a member of the Board. In general, the
President shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board from time to time.
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(c) VICE PRESIDENTS. In the absence of the President or his
inability to act, the Vice Presidents, if any, in order of their rank as fixed
by the Board of Directors or, if not ranked a Vice President designated by the
Board shall perform all the duties of the President and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President; provided that no such Vice President shall assume the authority to
preside as Chairperson of meetings of the Board unless such Vice President is a
member of the Board. The Vice Presidents shall have such other powers and
perform such other duties as from time to time may be respectively prescribed
for them by the Board, these Bylaws or the President.
(d) SECRETARY. The Secretary shall attend all meetings of 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
and of all meetings 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 his office and shall also
perform such other duties and have such other powers, as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
(e) CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep or cause to be kept the books of account of the Corporation in a thorough
and proper manner and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Chief Financial Officer, subject to the order of the Board of
Directors, shall have the custody of all funds and securities of the
Corporation. The Chief Financial Officer shall perform other duties commonly
incident to his office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time. The President may direct the Treasurer or any Assistant Treasurer,
or the Controller or any Assistant Controller to assume and perform the duties
of the Chief Financial Officer in the absence or disability of the Chief
Financial Officer, and each Treasurer and Assistant Treasurer and each
Controller and Assistant Controller shall perform other duties commonly incident
to his office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time to
time.
(f) TREASURER. Subject to the direction and control of the Board
of Directors, the Treasurer shall have charge and custody of and be responsible
for all funds and securities of the Corporation; and, at the expiration of his
term of office, he shall turn over to his successor all property of the
Corporation in his possession.
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In the absence of the Treasurer, an Assistant Treasurer may perform
the duties of the Treasurer.
4.4 DELEGATION. In case of the absence or inability to act of any
officer of the Corporation and of any person herein authorized to act in his
place, the Board of Directors may from time to time delegate the powers or
duties of such officer to any other officer or director or other person whom it
may select.
4.5 RESIGNATION. Any officer may resign at any time by delivering
written notice to the Corporation. Any such resignation shall take effect when
the notice is delivered unless the notice specifies a later date. Unless
otherwise specified in the notice, acceptance of such resignation by the
Corporation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party.
4.6 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board at any time with or without cause.
Election or appointment of an officer or agent shall not of itself create
contract rights.
4.7 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification, creation of a new office, or any other cause may be
filled by the Board of Directors for the unexpired portion of the term or for a
new term established by the Board.
4.8 COMPENSATION. Compensation, if any, for officers and other agents
and employees of the Corporation shall be determined by the Board of Directors,
or by the Chief Executive Officer to the extent such authority may be delegated
to him by the Board. No officer shall be prevented from receiving compensation
in such capacity by reason of the fact that he is also a director of the
Corporation.
ARTICLE 5.
EXECUTION OF CORPORATION INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
5.1 EXECUTION OF CORPORATE INSTRUMENTS. 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 on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation
the corporate name without limitation, or to enter into contracts on behalf of
the Corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the Corporation.
All checks and drafts drawn on banks or other depositaries 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.
Unless authorized or ratified by the Board of Directors or within
the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the Corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
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5.2 VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and other
securities of other corporations owned or held by the Corporation for itself, or
for other parties in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized so to do by resolution of
the Board of Directors, or, in the absence of such authorization, by the
Chairperson of the Board of Directors, the Chief Executive Officer, the
President or any Vice President.
ARTICLE 6.
STOCK
6.1 FORM AND EXECUTION OF CERTIFICATES. Certificates for the shares of
stock of the Corporation shall be in such form as is consistent with the
Articles of Incorporation and applicable law. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairperson of the Board of Directors, the Chief
Executive Officer, the President or any Vice President and by the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary, certifying the
number of shares owned by him in the Corporation. Any or all of the signatures
on the certificate may be facsimiles. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent, or registrar at the date of issue. Each
certificate shall state upon the face or back thereof, in full or in summary,
all of the powers, designations, preferences, and rights, and the limitations or
restrictions of the shares authorized to be issued or shall, except as otherwise
required by law, set forth on the face or back a statement that the Corporation
will furnish without charge to each shareholder who so requests the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to this Section or otherwise required by law or with respect to this
Section a statement that the Corporation will furnish without charge to each
shareholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
6.2 LOST CERTIFICATES. A new certificate or certificates shall be issued
in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to agree to indemnify the Corporation in such manner as it shall
require or to give the Corporation a surety bond in such form and amount
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as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed.
6.3 TRANSFERS
(a) Transfers of record of shares of stock of the Corporation
shall be made only upon its books by the holders thereof, in person or by
attorney duly authorized, and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares.
(b) The corporation shall have power to enter into and perform any
agreement with any number of shareholders of any one or more classes of stock of
the Corporation to restrict the transfer of shares of stock of the Corporation
of any one or more classes owned by such shareholders in any manner not
prohibited by the Act.
6.4 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 the laws of Washington.
6.5 EXECUTION OF OTHER SECURITIES. All bonds, debentures and other
corporate securities of the Corporation, other than stock certificates (covered
in Section 6.1), may be signed by the Chairperson of the Board of Directors, the
Chief Executive Officer, the President or any Vice President, or such other
person as may be authorized by the Board of Directors, and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested by
the signature of the Secretary or an Assistant Secretary, or the Chief Financial
Officer or Treasurer or an Assistant Treasurer; provided, however, that where
any such bond, debenture or other corporate security shall be authenticated by
the manual signature, or where permissible facsimile signature, of a trustee
under an indenture pursuant to which such bond, debenture or other corporate
security shall be issued, the signatures of the persons signing and attesting
the corporate seal on such bond, debenture or other corporate security may be
the imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an
Assistant Treasurer of the Corporation or such other person as may be authorized
by the Board of Directors, or bear imprinted thereon the facsimile signature of
such person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall appear
thereon or on any such interest coupon, shall have ceased to be such officer
before the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the Corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have
been used thereon had not ceased to be such officer of the Corporation.
Except as otherwise specifically provided in these Bylaws, no shares
of stock shall be transferred on the books of the Corporation until the
outstanding certificate therefor has been surrendered to the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled, and
no new certificate shall be issued until the former certificate for a like
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number of shares shall have been surrendered and cancelled, except that in case
of a lost, destroyed, or mutilated certificate a new one may be issued therefor
upon such terms (including indemnity to the Corporation) as the Board of
Directors may prescribe.
ARTICLE 7.
BOOKS AND RECORDS
7.1 BOOKS OF ACCOUNTS, MINUTES AND SHARE REGISTER. The corporation shall
keep as permanent records minutes of all meetings of its shareholders and Board
of Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee of
the Board of Directors exercising the authority of the Board of Directors on
behalf of the Corporation. The corporation shall maintain appropriate accounting
records. The corporation or its agent shall maintain a record of its
shareholders, in a form that permits preparation of a list of the names and
addresses of all shareholders, in alphabetical order by class of shares showing
the number and class of shares held by each. The corporation shall keep a copy
of the following records at its principal office: the Articles or Restated
Articles of Incorporation and all amendments to them currently in effect; the
Bylaws or Restated Bylaws and all amendments to them currently in effect; the
minutes of all shareholders' meetings, and records of all actions taken by
shareholders without a meeting, for the past three years; its financial
statements for the past three years, including balance sheets showing in
reasonable detail the financial condition of the Corporation as of the close of
each fiscal year, and an income statement showing the results of its operations
during each fiscal year prepared on the basis of generally accepted accounting
principles or, if not, prepared on a basis explained therein; all written
communications to shareholders generally within the past three years; a list of
the names and business addresses of its current directors and officers; and its
most recent annual report delivered to the Secretary of State of Washington.
7.2 COPIES OF RESOLUTIONS. Any person dealing with the Corporation may
rely upon a copy of any of the records of the proceedings, resolutions, or votes
of the Board of Directors or shareholders, when certified by the Chief Executive
Officer, the President or Secretary.
ARTICLE 8.
FISCAL YEAR
The fiscal year of the Corporation shall be set by resolution of the Board
of Directors.
ARTICLE 9.
CORPORATE SEAL
The Board of Directors may adopt a corporate seal for the Corporation
which shall have inscribed thereon the name of the Corporation, the year and
state of incorporation and the words "corporate seal".
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ARTICLE 10.
INDEMNIFICATION
10.1 RIGHT TO INDEMNIFICATION. Each individual (hereinafter an
"indemnitee") who was or is made a party or is threatened to be made a party to
or is otherwise involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation or that, while serving as a director or officer of
the Corporation, he or she is or was also serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation or of a foreign or domestic partnership,
joint venture, trust, employee benefit plan or other enterprise, whether the
basis of the proceeding is alleged action in an official capacity as such a
director, officer, employee, partner, trustee, or agent or in any other capacity
while serving as such director, officer, employee, partner, trustee, or agent,
shall be indemnified and held harmless by the Corporation to the full extent
permitted by applicable law as then in effect, against all expense, liability
and loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts to be paid in settlement) incurred
or suffered by such indemnitee in connection therewith, and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee, partner, trustee, or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided, however, that no
indemnification shall be provided to any such indemnitee if the Corporation is
prohibited by the Washington Business Corporation Act or other applicable law as
then in effect from paying such indemnification; and provided, further, that
except as provided in Section 10.2 of this Article with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized or
ratified by the Board of Directors. The right to indemnification conferred in
this Section 10.1 shall be a contract right and shall include the right to be
paid by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition (hereinafter an "advancement of expenses"). Any
advancement of expenses shall be made only upon delivery to the Corporation of a
written undertaking (hereinafter an "undertaking"), by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses
under this Section 10.1 and upon delivery to the Corporation of a written
affirmation (hereinafter an "affirmation") by the indemnitee of his or her good
faith belief that such indemnitee has met the standard of conduct necessary for
indemnification by the Corporation pursuant to this Article.
10.2 RIGHT OF INDEMNITEE TO BRING SUIT. If a written claim for
indemnification under Section 10.1 of this Article is not paid in full by the
Corporation within ninety (90) days after the Corporation's receipt thereof,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful, in whole or in part, in any such suit or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Article upon submission of a
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written claim (and, in an action brought to enforce a claim for an advancement
of expenses, where the required undertaking and affirmation have been tendered
to the Corporation) and thereafter the Corporation shall have the burden of
proof to overcome the presumption that the indemnitee is so entitled. Neither
the failure of the Corporation (including the Board of Directors, independent
legal counsel or the shareholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances nor an actual determination by the Corporation (including the
Board of Directors, independent legal counsel or the shareholders) that the
indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the indemnitee is not so entitled.
10.3 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement of expenses conferred in this Article X 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 Bylaws of the
Corporation, general or specific action of the Board of Directors, contract or
otherwise.
10.4 INSURANCE, CONTRACTS AND FUNDING. The corporation may maintain
insurance, at its expense, to protect itself and any individual who is or was a
director, officer, employee or agent of the Corporation or who, while a
director, officer, employee or agent of the Corporation, is or was serving at
the request of the Corporation as a agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any expense, liability or loss asserted against or incurred
by the individual in that capacity or arising from the individual's status as a
director, officer, employee or agent, 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, officer, employee or agent of the Corporation in
furtherance of the provisions of this Article 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 Article.
10.5 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
corporation may, by action of the Board of Directors, grant rights to
indemnification and advancement of expenses to employees and agents of the
Corporation with the same scope and effect as the provisions of this Article
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 otherwise.
10.6 PERSONS SERVING OTHER ENTITIES. Any individual who is or was a
director, officer or employee of the Corporation who, while a director, officer
or employee of the Corporation, is or was serving (a) as a director or officer
of another foreign or domestic corporation of which a majority of the shares
entitled to vote in the election of its directors is held by the Corporation,
(b) as a trustee of an employee benefit plan and the duties of the director or
officer to the Corporation also impose duties on, or otherwise involve services
by, the director or officer to the plan or to participants in or beneficiaries
of the plan or (c) in an executive or management capacity in a foreign or
domestic partnership, joint venture, trust or other enterprise of which the
Corporation or a wholly owned subsidiary of the Corporation is a general partner
or has a majority ownership or interest shall be deemed to be so serving at the
request of the Corporation and entitled to indemnification and advancement of
expenses under this Article.
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ARTICLE 11.
AMENDMENT OF BYLAWS
11.1 These Bylaws may be altered, amended or repealed and new Bylaws may
be adopted by the Board, except that the Board may not repeal or amend any Bylaw
that the shareholders have expressly provided, in amending or repealing such
Bylaw, may not be amended or repealed by the Board. The shareholders may also
alter, amend and repeal these Bylaws or adopt new Bylaws. All Bylaws made by the
Board may be amended, repealed, altered or modified by the shareholders.
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