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EXHIBIT 3.4
BYLAWS
OF
PROGRESSIVE NETWORKS, INC.
ADOPTED MARCH 31, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3.1 Notice of Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3.2 Proposed Articles of Amendment, Merger, Exchange, Sale, Lease or Disposition . . . . . . . . . . . . 2
1.3.3 Proposed Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3.4 Declaration of Mailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3.5 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Quorum; Vote Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Adjourned Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6 Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.7 Shareholders' List for Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.8 Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 Action by Shareholders Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.10 Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Responsibility of Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Number of Directors; Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Election; Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.9 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.10 Notice of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.11 Quorum of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.12 Dissent by Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.13 Action by Directors Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.14 Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.15 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.16 Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3 Officers Enumerated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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TABLE OF CONTENTS
(continued)
3.3.1 Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3.2 President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3.3 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3.4 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.3.5 Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.6 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.8 Other Officers and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.9 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.10 General Standards for Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV CONTRACTS, CHECKS AND DRAFTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.2 Checks, Drafts, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Issuance of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Certificates of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Stock Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.4 Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI RECORDS OF CORPORATE MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII FINANCIAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IX CORPORATE SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE X INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.2 Mandatory Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.4 Changes in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.5 Exclusivity; Nature of Rights; Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE XI MISCELLANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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TABLE OF CONTENTS
(continued)
11.1 Communications by Facsimile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.2 Inspector of Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.3 Rules of Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.4 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE XII AMENDMENT OF BYLAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE XIII AUTHENTICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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BYLAWS OF
PROGRESSIVE NETWORKS, INC.
These Bylaws are promulgated pursuant to the Washington Business
Corporation Act, as set forth in Title 23B of the Revised Code of Washington
(the "Act").
ARTICLE I
SHAREHOLDERS
1.1 Annual Meeting. 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 within
ninety (90) to one hundred eighty (180) days after the fiscal year end of the
corporation at a date, time and location determined by resolution of the Board
of Directors. At any time prior to the commencement of the annual meeting, the
Board may postpone the annual meeting for a period of up to one hundred twenty
(120) days from the date fixed for such meeting in accordance with this Section
1.1.
1.2 Special Meetings. Special meetings of the shareholders for any
purpose or purposes may be called at any time by the Board of Directors or by
the Chairman of the Board (if one be appointed) or by the President or by one
or more shareholders holding at least twenty-five percent (25%) of all the
shares entitled to be cast on any issue proposed to be considered at that
meeting, to be held at such time and place as the Board or the Chairman (if one
be appointed) or the President may prescribe.
If a special meeting is called by any person or persons other than the
Board of Directors or the Chairman of the Board (if one be appointed) or the
President, then a written demand, describing with reasonable clarity the
purpose or purposes for which the meeting is called and specifying the general
nature of the business proposed to be transacted, shall be delivered personally
or sent by registered mail or by telegraphic or other facsimile transmission to
the Secretary of the corporation. Upon receipt of such a demand, the Secretary
shall cause notice of such meeting to be given, within thirty (30) days after
the date the demand was delivered to the Secretary, to the shareholders
entitled to vote, in accordance with the provisions of Section 1.3 of these
Bylaws. Except as provided below, if the notice is not given by the Secretary
within thirty (30) days after the date the demand was delivered to the
Secretary, then the person or persons demanding the meeting may specify the
time and place of the meeting and give notice thereof.
1.3 Notice of Meetings. Except as otherwise provided below, the
Secretary, Assistant Secretary, or any transfer agent of the corporation shall
give, in any manner permitted by law, not less than ten (10) nor more than
sixty (60) days before the date of any
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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, notice to a shareholder shall be effective when mailed, with
first-class postage thereon prepaid, correctly addressed to each shareholder at
the shareholder's address as it appears on the current record of shareholders
of the corporation. Otherwise, written notice shall be effective at the
earliest of the following: (a) when received, (b) five (5) days after its
deposit in the United States mail, as evidenced by the postmark, if mailed with
first-class postage, prepaid, and correctly addressed, or (c) 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.
1.3.1 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 general nature of
the business proposed to be transacted at the meeting. No business other than
that within the purpose or purposes specified in the notice may be transacted
at a special meeting.
1.3.2 Proposed Articles of Amendment, Merger, Exchange, Sale,
Lease or Disposition. If the business to be conducted at any meeting includes
any proposed amendment to the Articles of Incorporation or any proposed merger
or exchange of shares, or any proposed sale, lease, exchange, or other
disposition of all or substantially all of the property and assets (with or
without the goodwill) of the corporation not 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 amendment or plan of merger, exchange
of shares, sale, lease, exchange, or other disposition, as the case may be,
shall describe the proposed action with reasonable clarity, and shall be
accompanied by a copy of the proposed amendment or plan. Written notice of
such meeting shall be given to each shareholder of record, whether or not
entitled to vote at such meeting, not less than twenty (20) days before such
meeting, in the manner provided in Section 1.3 above.
1.3.3 Proposed Dissolution. If the business to be conducted at
any meeting includes the proposed voluntary dissolution of the corporation,
then the written notice shall state that the purpose or one of the purposes is
to consider the advisability thereof. Written notice of such meeting shall be
given to each shareholder of record, whether or not entitled to vote at such
meeting, not less than twenty (20) days before such meeting, in the manner
provided in Section 1.3 above.
1.3.4 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.
1.3.5 Waiver of Notice. A shareholder may waive notice of any
meeting at any time, either before or after such meeting. Except as provided
below, the waiver must be in writing, 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
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attendance at a meeting in person or by proxy waives objection to 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 on the ground that the meeting is not lawfully called or
convened. In the case of a special meeting, or an annual meeting at which
fundamental corporate changes are considered, a shareholder waives objection to
consideration of a particular matter 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.
1.4 Quorum; Vote Requirement. A quorum shall exist at any meeting
of shareholders if a majority of the votes entitled to be cast is represented
in person or by proxy. 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 that adjourned meeting. Subject to the
foregoing, the determination of the voting groups entitled to vote (as required
by law), and the quorum and voting requirements applicable thereto, must be
made separately for each matter being considered at a meeting. In the case of
any meeting of shareholders that is adjourned more than once because of the
failure of a quorum to attend, those who attend the third convening of such
meeting, although less than a quorum, shall nevertheless constitute a quorum
for the purpose of electing directors, provided that the percentage of shares
represented at the third convening of such meeting shall not be less than
one-third of the shares entitled to vote.
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 of affirmative votes is required by
law or by the Articles of Incorporation.
1.5 Adjourned Meetings. An adjournment or adjournments of any
shareholders' meeting, whether by reason of the failure of a quorum to attend
or otherwise, may be taken to such date, time, and place as the chairman of the
meeting may determine without new notice being given if the date, time, and
place are announced at the meeting at which the adjournment is taken. However,
if the adjournment is for more than one hundred twenty (120) days from the date
set for the original meeting, a new record date for the adjourned meeting shall
be fixed and a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting, in accordance
with the provisions of Section 1.3 of these Bylaws. At any adjourned meeting,
the corporation may transact any business which might have been transacted at
the original meeting. Any meeting at which directors are to be elected shall
be adjourned only from day to day until such directors are elected.
1.6 Fixing Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders (or, subject to
Section 1.5 above, any adjournment thereof), the Board of Directors may fix in
advance a date as the record date for
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any such determination of shareholders, such date in any case to be not more
than seventy (70) days prior to the meeting. If no such record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, then the day before the first notice is delivered to
shareholders shall be the record date for such determination of shareholders.
If no notice is given because all shareholders entitled to notice have waived
notice, then the record date for the determination of shareholders entitled to
notice of or to vote at a meeting shall be the date on which the last such
waiver of notice was obtained. 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, except as
provided in Section 1.5 of these Bylaws. If no notice is given because all
shareholders entitled to notice have signed a consent as described in Section
1.9 below, the record date for determining shareholders entitled to take action
without a meeting is the date the first shareholder signs the consent.
1.7 Shareholders' List for Meeting. The corporation shall cause to
be prepared an alphabetical list of the names of all of its shareholders on the
record date who are entitled to notice of a shareholders' meeting or any
adjournment thereof. The list must 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 shareholders' list must be
available for inspection by any shareholder, beginning ten (10) days prior to
the meeting and continuing through the meeting, at the principal office of the
corporation or at a place identified in the meeting notice in the city where
the meeting will be held. Such list shall be produced and kept open at the
time and place of the meeting. During such ten-day period, and during the
whole time of the meeting, the shareholders' list shall be subject to the
inspection of any shareholder, or the shareholder's agent or attorney. In
cases where the record date is fewer than ten (10) days prior to the meeting
because notice has been waived by all shareholders, the Secretary shall keep
such record available for a period from the date the first waiver of notice was
delivered to the date of the meeting. Failure to comply with the requirements
of this section shall not affect the validity of any action taken at the
meeting.
1.8 Ratification. Subject to the requirements of RCW 23B.08.730,
23B.17.020, and 23B.19.040, any contract, transaction, or act of the
corporation or of any director or officer of the corporation that shall be
authorized, approved, or ratified by the affirmative vote of a majority of
shares represented at a meeting at which a quorum is present shall, insofar as
permitted by law, be as valid and as binding as though ratified by every
shareholder of the corporation.
1.9 Action by Shareholders Without a Meeting. Any action which may
be or which is required by law to be taken at any meeting of shareholders may
be taken, without a meeting or notice of a meeting, if one or more consents in
writing, setting forth the action so taken, are signed by all of the
shareholders entitled to vote or, in the place of any one or more of such
shareholders, by a person holding a valid proxy to vote with respect to the
subject matter thereof, and are delivered to the corporation for inclusion in
the minutes or filing with the corporate records. If notice of the proposed
action to be taken by unanimous
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consent of the voting shareholders is required by law to be given to nonvoting
shareholders, the corporation must give its nonvoting shareholders written
notice of the proposed action at least ten (10) days before the action is
taken. The notice must contain or be accompanied by the same material that, by
law, would have been required to be sent to nonvoting shareholders in a notice
of meeting at which the proposed action would have been submitted to such
shareholders for action. Action taken by unanimous written consent is
effective when all consents are in possession of the corporation, unless the
consent specifies a later effective date. Such consent shall have the same
force and effect as a meeting vote of shareholders and may be described as such
in any articles or other document filed with the Secretary of State of the
State of Washington.
1.10 Telephonic Meetings. Shareholders may participate in a meeting
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other at the
same time, and participation by such means shall constitute presence in person
at a meeting.
ARTICLE II
BOARD OF DIRECTORS
2.1 Responsibility of Board of Directors. The business and affairs
and property of the corporation shall be managed under the direction of a Board
of Directors. A director shall discharge the duties of a director, including
duties as a member of a committee, in good faith, with the care an ordinarily
prudent person in a like position would exercise under similar circumstances,
and in a manner the director reasonably believes to be in the best interests of
the corporation. In discharging the duties of a director, a director is
entitled to rely on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or presented by:
(a) one or more officers or employees of the corporation whom the director
reasonably believes to be reliable and competent in the matters presented; (b)
legal counsel, public accountants, or other persons as to matters the director
reasonably believes are within the person's professional or expert competence;
or (c) a committee of the Board of Directors of which the director is not a
member, if the director reasonably believes the committee merits confidence. A
director is not acting in good faith if the director has knowledge concerning
the matter in question that makes reliance otherwise permitted above
unwarranted. The creation of, delegation of authority to, or action by a
committee does not alone constitute compliance by a director with the standards
of conduct imposed by law upon directors. A director is not liable for any
action taken as a director, or any failure to take any action, if the director
performed the duties of the director's office in compliance with this section.
2.2 Number of Directors; Qualification. The Board shall be composed
of not less than one (1) and not more than seven (7) directors, the specific
number to be set by resolution of the Board of Directors or the 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. If a
greater or lesser number of directors than is specified in this section is
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elected by the shareholders, then election of that number shall automatically
be deemed to constitute an amendment to these Bylaws. No director need be a
shareholder of the corporation or a resident of Washington. Each director must
be at least eighteen (18) years of age.
2.3 Election; Term of Office. At the first annual meeting of
shareholders and at each annual meeting thereafter, the shareholders shall
elect directors. Except in the case of death, resignation or removal, each
director shall hold office until the next succeeding annual meeting or, in the
case of staggered terms as permitted by RCW 23B.08.060, for the term for which
she is elected, and in each case until her successor shall have been elected
and qualified.
2.4 Vacancies. Except as otherwise provided by law, any vacancy
occurring in the Board of Directors (whether caused by resignation, death, or
otherwise) may be filled by the affirmative vote of a majority of the directors
present at a meeting of the Board at which a quorum is present, or, if the
directors in office constitute less than a quorum, by the affirmative vote of a
majority of all of the directors in office. Notice shall be given to all of
the remaining directors that such vacancy will be filled at the meeting.
However, if the vacant office was held by a director elected by a voting group
composed of less than all of the voting shareholders, then the Board of
Directors shall not have the power to fill such vacancy. A director elected to
fill any vacancy shall hold office until the next meeting of shareholders at
which directors are elected, and until her successor shall have been elected
and qualified.
2.5 Removal. One or more members of the Board of Directors
(including the entire Board) may be removed, with or without cause, at a
special meeting of shareholders called expressly for that purpose. A director
(or the entire Board) may be removed if the number of votes cast in favor of
removing such director (or the entire Board) exceeds the number of votes cast
against removal; provided that, if a director (or the entire Board) has been
elected by one or more voting groups, only those voting groups may participate
in the vote as to removal. However, if the Articles of Incorporation grant
shareholders the right to cumulate their votes in the election of directors, a
director may not be removed if a number of votes sufficient to elect such
director under cumulative voting (computed on the basis of the number of votes
actually cast at the meeting on the question of removal) is cast against such
director's removal.
2.6 Resignation. A director may resign at any time by delivering
written notice to the Board of Directors, its Chairman, the President, or the
Secretary. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date.
2.7 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. Such meeting shall
be held at the same place as such shareholders' meeting unless some other place
shall be specified by resolution of the shareholders.
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2.8 Regular Meetings. Regular meetings of the Board of Directors
may be held at such place, day, and time as shall from time to time be fixed by
resolution of the Board without notice other than the delivery of such
resolution as provided in Section 2.10 below.
2.9 Special Meetings. Special meetings of the Board of Directors
may be called by the President or the Chairman of the Board (if one be
appointed) or any two or more directors, to be held at such place, day, and
time as specified by the person or persons calling the meeting.
2.10 Notice of Meeting. Notice of the place, day, and time of any
meeting of the Board of Directors for which notice is required shall be given,
at least two (2) days preceding the day on which the meeting is to be held, by
the Secretary or an Assistant Secretary, or by the person calling the meeting,
in any manner permitted by law, including orally. Any oral notice given by
personal communication over the telephone or otherwise may be communicated
either to the director or to a person at the office of the director who, the
person giving the notice has reason to believe, will promptly communicate it to
the director. Notice shall be deemed to have been given on the earliest of (a)
the day of actual receipt, (b) five (5) days after the day on which written
notice is deposited in the United States mail, as evidenced by the postmark,
with first-class postage prepaid, and correctly addressed, or (c) 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.
No notice of any regular meeting need be given if the place, day, and
time thereof have been fixed by resolution of the Board of Directors and a copy
of such resolution has been delivered to every director at least two (2) days
or deposited in the United States mail, as evidenced by the postmark, with
first-class postage prepaid, and correctly addressed at least five (5) days
preceding the day of the first meeting held in pursuance thereof.
Notice of a meeting of the Board of Directors need not be given to any
director if it is waived by the director in writing, whether before or after
such meeting is held. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting unless required by
law, the Articles of Incorporation, or these Bylaws.
A director's attendance at or participation in a meeting shall
constitute a waiver of notice of such meeting except when a director attends or
participates in a meeting for the express purpose of objecting on legal grounds
prior to or at the beginning of the meeting (or promptly upon the director's
arrival) to the holding of the meeting or the transaction of any business and
does not thereafter vote for or assent to action taken at the meeting. Any
meeting of the Board of Directors shall be a legal meeting without any notice
thereof having been given if all of the directors have received valid notice
thereof, are present without objecting, or waive notice thereof, or any
combination thereof.
2.11 Quorum of Directors. Except in particular situations where a
lesser number is expressly permitted by law, and unless a greater number is
required by the Articles of
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Incorporation, a majority of the number of directors specified in or fixed in
accordance with these Bylaws shall constitute a quorum for the transaction of
business, and the affirmative vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors. If the number of directors in office at any time is less than the
number specified in or fixed in accordance with these Bylaws, then a quorum
shall consist of a majority of the number of directors in office; provided that
in no event shall a quorum consist of fewer than one-third of the number
specified in or fixed in accordance with these Bylaws.
Directors at a meeting of the Board of Directors at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, provided such withdrawal does not reduce the number of
directors attending the meeting below the level of a quorum.
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting of the Board of Directors 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 2.10 of these
Bylaws, to the directors who were not present at the time of the adjournment.
2.12 Dissent by Directors. 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 the director
objects at the beginning of the meeting (or promptly upon the director's
arrival) to the holding of, or the transaction of business at, the meeting; or
unless the director's dissent or abstention shall be entered in the minutes of
the meeting; or unless the director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting before the
adjournment thereof or to the corporation within a reasonable time after the
adjournment of the meeting. Such right to dissent or abstention shall not be
available to any director who votes in favor of such action.
2.13 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 may be
taken without a meeting if one or more consents in writing, setting forth the
action so taken, shall be signed either before or after the action so taken by
all of the directors 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 meeting vote. Action taken under this section is effective when
the last director signs the consent, unless the consent specifies a later
effective date.
2.14 Telephonic Meetings. Except as may be otherwise restricted by the
Articles of Incorporation, members of the Board of Directors may participate in
a meeting of the Board by any means of communication by which all directors
participating in the meeting may simultaneously hear each other during the
meeting. Participation by such means shall constitute presence in person at a
meeting.
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2.15 Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, and may be paid a fixed sum or a
stated salary as a director, for attendance at each meeting of the Board. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
2.16 Committees. The Board of Directors, by resolution adopted by the
greater of (a) a majority of all of the directors in office, or (b) the number
of directors required by the Articles of Incorporation or these Bylaws to take
action may from time to time create, and appoint individuals to, one or more
committees, each of which must have at least two (2) members. If a committee
is formed for the purpose of exercising functions of the Board, the committee
must consist solely of directors. If the only function of a committee is to
study and make recommendations for action by the full Board, the committee need
not consist of directors. Members of a committee composed solely of directors,
in fulfilling their standard of conduct, may rely upon Section 2.1 above.
Committees of directors may exercise the authority of the Board of Directors to
the extent specified by such resolution or in the Articles of Incorporation or
these Bylaws. However, no committee shall:
(a) authorize or approve a distribution (as defined in RCW
23B.01.400) except according to a general formula or method prescribed by the
Board of Directors;
(b) approve or propose to shareholders action that by law
is required to be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of
its committees;
(d) amend the Articles of Incorporation;
(e) adopt, amend, or repeal Bylaws;
(f) approve a plan of merger not requiring shareholder
approval; 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 of directors (or a senior
executive officer of the corporation) to do so within limits specifically
prescribed by the Board of Directors.
Committees shall be governed by the same provisions as govern the
meetings, actions without meetings, notice and waiver of notice, quorum and
voting requirements, and standards of conduct of the Board of Directors. The
Executive Committee (if one be established) shall meet periodically between
meetings of the full Board. All committees 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.
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ARTICLE III
OFFICERS
3.1 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 until the next annual meeting of the
Board and until her successor is appointed and qualified.
3.2 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.
3.3 Officers Enumerated. Except as otherwise provided by resolution
of the Board of Directors, the officers of the corporation and their respective
powers and duties shall be as follows:
3.3.1 Chairman of the Board. The Chairman of the Board (if
such an officer be appointed) shall be a director and shall perform such duties
as shall be assigned to her by the Board of Directors and in any employment
agreement. The Chairman shall preside at all meetings of the shareholders and
at all meetings of the Board at which she is present. The Chairman may sign
deeds, mortgages, bonds, contracts, and other instruments, except when the
signing thereof has been expressly delegated by the Board or by these Bylaws to
some other officer or agent of the corporation or is otherwise required by law
to be signed by some other officer or in some other manner. If the President
dies or becomes unable to act, the Chairman shall perform the duties of the
President, except as may be limited by resolution of the Board of Directors,
with all the powers of and subject to all the restrictions upon the President.
3.3.2 President. Subject to such supervisory powers as may be
given by the Board of Directors to the Chairman of the Board (if such an
officer be appointed), the President shall be the chief executive officer of
the corporation unless some other officer is so designated by the Board and,
subject to the control of the Board and the Executive Committee (if one be
established), shall supervise and control all of the assets, business, and
affairs of the corporation. The President may sign certificates for shares of
the corporation, deeds, mortgages, bonds, contracts, and other instruments,
except when the signing thereof has been expressly delegated by the Board or by
these Bylaws to some other officer or agent of the corporation or is otherwise
required by law to be signed by some other officer or in some other manner.
The President shall vote the shares owned by the corporation in other
corporations, domestic or foreign, unless otherwise prescribed by law or
resolution 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. In the absence of the Chairman of the Board,
the President, if a director, shall preside over all meetings of the
shareholders and over all meetings of the Board of Directors. The President
shall have
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the authority to appoint one or more Assistant Secretaries and Assistant
Treasurers, as she deems necessary.
3.3.3 Vice Presidents. If no Chairman of the Board has been
appointed, in the absence or disability of the President, 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 Chairman 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, the
President, or the Chairman of the Board (if one be appointed).
3.3.4 Secretary. The Secretary shall:
(a) have responsibility for preparing minutes of
meetings of the shareholders and the Board of Directors and for
authenticating records of the corporation;
(b) see that all notices are duly given in
accordance with the provisions of Sections 1.3, 1.5, 2.8, and 2.10 of
these Bylaws and as required by law;
(c) be custodian of the corporate records and seal
of the corporation, if one be adopted;
(d) keep a register of the post office address of
each shareholder and director;
(e) attest certificates for shares of the
corporation;
(f) have general charge of the stock transfer books
of the corporation;
(g) when required by law or authorized by
resolution of the Board of Directors, sign with the President, or other
officer authorized by the President or the Board, deeds, mortgages,
bonds, contracts, and other instruments; and
(h) in general, perform all duties incident to the
office of Secretary and such other duties as from time to time may be
assigned by the President or the Board of Directors.
In the absence of the Secretary, an Assistant Secretary may perform the
duties of the Secretary.
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3.3.5 Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of her duties in such
sum and with such surety or sureties as the Board shall determine. The
Treasurer shall:
(a) have charge and custody of and be responsible
for all funds and securities of the corporation;
(b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all
such moneys in the name of the corporation in banks, trust companies, or
other depositories selected in accordance with the provisions of these
Bylaws; and
(c) in general, perform all of the duties incident
to the office of Treasurer and such other duties as from time to time
may be assigned by the President or the Board of Directors.
In the absence of the Treasurer, an Assistant Treasurer may perform the
duties of the Treasurer.
3.4 Delegation. In case of the absence or inability to act of any
officer of the corporation and of each person herein authorized to act in her
place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any other officer or other person whom it may select.
3.5 Resignation. Any officer may resign at any time by delivering
notice to the corporation. Any such resignation shall take effect at the time
the notice is delivered unless the notice specifies a later effective date.
Unless otherwise specified therein, 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.
3.6 Removal. Any officer or agent may be removed by the Board with
or without cause. An officer empowered to appoint another officer or assistant
officer also has the power to remove any officer she would have the power to
appoint whenever in her judgment the best interests of the corporation would be
served thereby. The removal of an officer or agent shall be without prejudice
to the contract rights, if any, of the corporation or the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
3.7 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.
3.8 Other Officers and Agents. One or more Vice Presidents and such
other officers and assistant officers as may be deemed necessary or advisable
may be appointed by
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the Board of Directors or, to the extent provided in Section 3.3.2 above, by
the President. Such other officers and assistant officers shall hold office
for such periods, have such authorities, and perform such duties as are
provided in these Bylaws or as may be provided by resolution of the Board. Any
officer may be assigned by the Board any additional title that the Board deems
appropriate. The Board may delegate to any officer or agent the power to
appoint any such assistant officers or agents and to prescribe their respective
terms of office, authorities, and duties.
3.9 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 President to the extent such authority may be delegated to
her by the Board. No officer shall be prevented from receiving compensation in
such capacity by reason of the fact that she is also a director of the
corporation.
3.10 General Standards for Officers. Officers with discretionary
authority shall discharge their duties under that authority in accordance with
the same standards of conduct applicable to directors as specified in Section
2.1 above (except for subsection (c) thereof).
ARTICLE IV
CONTRACTS, CHECKS AND DRAFTS
4.1 Contracts. The Board of Directors may authorize any officer or
officers or agent or agents to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances.
Subject to the limitations set forth in RCW 23B.08.700 through
23B.08.730, 23B.17.020, and 23B.19.040, to the extent applicable:
(a) The corporation may enter into contracts and otherwise
transact business as vendor, purchaser, lender, borrower, or otherwise with its
directors and shareholders and with corporations, associations, firms, and
entities in which they are or may be or become interested as directors,
officers, shareholders, members, or otherwise.
(b) Any such contract or transaction shall not be affected
or invalidated or give rise to liability by reason of the director's or
shareholder's having an interest in the contract or transaction.
4.2 Checks, Drafts, Etc. All checks, drafts, and other orders for
the payment of money, notes, and other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer or officers or agent or
agents of the corporation and in such manner as may be determined from time to
time by resolution of the Board of Directors.
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4.3 Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies, or other depositories as the Treasurer, subject to the
direction of the Board of Directors, may select.
ARTICLE V
STOCK
5.1 Issuance of Shares. No shares of the corporation shall be
issued unless authorized by the Board of Directors, which authorization shall
include the maximum number of shares to be issued, the consideration to be
received for each share, and, if the consideration is in a form other than
cash, the determination of the value of the consideration.
5.2 Certificates of Stock. Certificates of stock shall be issued in
numerical order, and each shareholder shall be entitled to a certificate signed
by the President or a Vice President, attested to by the Secretary or an
Assistant Secretary, and sealed with the corporate seal, if any. Every
certificate of stock shall state:
(a) The state of incorporation;
(b) The name of the registered holder of the shares
represented thereby;
(c) The number and class of shares, and the designation of
the series, if any, which such certificate represents;
(d) If the corporation is authorized to issue different
classes of shares or different series within a class, either a summary of (on
the face or back of the certificate), or a statement that the corporation will
furnish to any shareholder upon written request and without charge a summary
of, the designations, relative rights, preferences, and limitations applicable
to each class and 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; and
(e) If the shares are subject to transfer or other
restrictions under applicable securities laws or contracts with the
corporation, either a complete description of or a reference to the existence
and general nature of such restrictions on the face or back of the certificate.
5.3 Stock Records. The corporation or its agent shall maintain at
the registered office or principal office of the corporation, or at the office
of the transfer agent or registrar of the corporation, if one be designated by
the Board of Directors, 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
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held by each. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes.
5.4 Restrictions on Transfer. The Board of Directors shall have the
authority to issue shares of the capital stock of this corporation and the
certificates therefor subject to such transfer restrictions and other
limitations as it may deem necessary to promote compliance with applicable
federal and state securities laws, and to regulate the transfer thereof in such
manner as may be calculated to promote such compliance or to further any other
reasonable purpose. Except to the extent that the corporation has obtained an
opinion of counsel acceptable to the corporation that transfer restrictions are
not required under applicable securities laws, all certificates representing
shares of the corporation shall bear the following legend (or a legend of
substantially the same import) on the face of the certificate or on the reverse
of the certificate if a reference to the legend is contained on the face:
NOTICE: RESTRICTIONS ON TRANSFER
The securities represented by this certificate have not been
registered under the Securities Act of 1933, or any state
securities laws, and may not be offered, sold, transferred,
encumbered, or otherwise disposed of except upon satisfaction of
certain conditions. Information concerning these restrictions
may be obtained from the corporation or its legal counsel. Any
offer or disposition of these securities without satisfaction of
said conditions will be wrongful and will not entitle the
transferee to register ownership of the securities with the
corporation.
5.5 Transfers. Shares of stock may be transferred by delivery of
the certificates therefor, accompanied by:
(a) an assignment in writing on the back of the
certificate, or an assignment separate from certificate, or a written power of
attorney to sell, assign, and transfer the same, signed by the record holder of
the certificate; and
(b) such additional documents, instruments, and other items
of evidence as may be reasonably necessary to satisfy the requirements of any
transfer restrictions applicable to such shares, whether arising under
applicable securities or other laws, or by contract, or otherwise.
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 canceled, and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, 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.
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ARTICLE VI
RECORDS OF CORPORATE MEETINGS
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 keep at its principal office a copy of the minutes of all
shareholders' meetings that have occurred, and records of all action taken by
shareholders without a meeting, within the past three (3) years. 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 or shareholders when certified
by the President or Secretary.
ARTICLE VII
FINANCIAL MATTERS
The corporation shall maintain appropriate accounting records at its
principal office and shall prepare the annual financial statements required by
RCW 23B.16.200. Except to the extent otherwise expressly determined by the
Board of Directors or otherwise required by law, the accounting records of the
corporation shall be kept and prepared in accordance with generally accepted
accounting principles applied on a consistent basis from period to period. The
fiscal year of the corporation shall be the calendar year unless otherwise
expressly determined by the Board of Directors.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may from time to time authorize, and the
corporation may make, distributions (as defined in RCW 23B.01.400) to its
shareholders to the extent permitted by RCW 23B.06.400, subject to any
limitation in the Articles of Incorporation. A director who votes for or
assents to a distribution made in violation of RCW 23B.06.400 is personally
liable to the corporation for the amount of the distribution that exceeds that
which could have been distributed without violating RCW 23B.06.400 if it is
established that the director did not perform the director's duties in
compliance with Section 2.1 above.
ARTICLE IX
CORPORATE SEAL
The Board of Directors may, but shall not be required to, adopt a
corporate seal for the corporation in such form and with such inscription as
the Board may determine. If such a corporate seal shall at any time be so
adopted, the application of or the failure to apply such
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seal to any document or instrument shall have no effect upon the validity or
invalidity of such document or instrument under otherwise applicable principles
of law.
ARTICLE X
INDEMNIFICATION
As provided by Section 5.4 of the Articles of Incorporation:
10.1 Definitions. The capitalized terms in this Article X shall have
the meanings set forth in RCW 23B.08.500.
10.2 Mandatory Indemnification. The Corporation shall indemnify and
hold harmless each individual who is or was serving as a Director or officer of
the Corporation or who, while serving as a Director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against any and all Liability incurred with respect to any
Proceeding to which the individual is or is threatened to be made a Party
because of such service, and shall make advances of reasonable Expenses with
respect to such Proceeding, to the fullest extent permitted by law, without
regard to the limitations in RCW 23B.08.510 through 23B.08.550; provided that
no such indemnity shall indemnify any Director or officer from or on account of
(a) acts or omissions of the Director or officer finally adjudged to be
intentional misconduct or a knowing violation of law; (b) conduct of the
Director or officer finally adjudged to be in violation of RCW 23B.08.310; or
(c) any transaction with respect to which it was finally adjudged that such
Director or officer personally received a benefit in money, property, or
services to which the Director or officer was not legally entitled.
10.3 Insurance. The Corporation may purchase and maintain insurance
on behalf of an 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
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise against Liability 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 power to indemnify the individual against such Liability under RCW
23B.08.510 or 23B.08.520.
10.4 Changes in Law. If, after the effective date of this Article X,
the Act is amended to authorize further indemnification of Directors or
officers, then Directors and officers of the Corporation shall be indemnified
to the fullest extent permitted by the Act as so amended.
10.5 Exclusivity; Nature of Rights; Amendment. To the extent
permitted by law, the rights to indemnification and advance of reasonable
Expenses conferred in this Article X
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shall not be exclusive of any other right which any individual may have or
hereafter acquire under any statute, provision of the Bylaws, agreement, vote
of shareholders or disinterested directors, or otherwise. The right to
indemnification conferred in this Article X shall be a contract right upon
which each Director or officer shall be presumed to have relied in determining
to serve or to continue to serve as such. Any amendment to or repeal of this
Article X shall not adversely affect any right or protection of a Director or
officer of the Corporation for or with respect to any acts or omissions of such
Director or officer occurring prior to such amendment or repeal.
ARTICLE XI
MISCELLANY
11.1 Communications by Facsimile. Whenever these Bylaws require
notice, consent, or other communication to be delivered for any purpose,
transmission by phone, wire, or wireless equipment which transmits a facsimile
of such communication shall constitute sufficient delivery for such purpose.
Such communication shall be deemed to have been received by or in the
possession of the addressee upon completion of the transmission.
11.2 Inspector of Elections. Before any annual meeting of
shareholders, the Board of Directors may appoint an inspector of elections to
act at the meeting and any adjournment thereof. If no inspector of elections
is so appointed by the Board, then the chairman of the meeting may appoint an
inspector of elections to act at the meeting. If any person appointed as
inspector fails to appear or fails or refuses to act, then the chairman of the
meeting may, and upon the request of any shareholder or a shareholder's proxy
shall, appoint a person to fill that vacancy.
Such inspector of elections shall:
(a) determine the number of shares outstanding and the
voting power of each, the number of shares represented at the meeting, the
existence of a quorum, and, with the advice of legal counsel to the
corporation, the authenticity, validity, and effect of proxies pursuant to RCW
23B.07.220 and 23B.07.240 and any procedure adopted by the Board of Directors
pursuant to RCW 23B.07.230;
(b) receive votes, ballots, or consents;
(c) hear and determine all challenges and questions in any
way arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine the result; and
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(f) do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
11.3 Rules of Order. The rules contained in the most recent edition
of Robert's Rules of Order, Revised, shall govern all meetings of shareholders
and directors where those rules are not inconsistent with the Articles of
Incorporation or Bylaws, subject to the following:
(a) The chairman of the meeting shall have absolute
authority over matters of procedure, and there shall be no appeal from the
ruling of the chairman. If the chairman in her absolute discretion deems it
advisable to dispense with the rules of parliamentary procedure for any meeting
or any part thereof, the chairman shall so state and shall clearly state the
rules under which the meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents continuation of
the legitimate business of the meeting, the chairman may quit the chair and
announce the adjournment of the meeting; upon so doing, the meeting shall be
deemed immediately adjourned, subject to being reconvened in accordance with
Section 1.5 of these Bylaws, as the case may be.
(c) The chairman may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting of shareholders.
(d) A resolution or motion at a meeting of shareholders
shall be considered for vote only if proposed by a shareholder or duly
authorized proxy and seconded by an individual who is a shareholder or duly
authorized proxy other than the individual who proposed the resolution or
motion.
11.4 Construction. Within these Bylaws, words of any gender shall be
construed to include any other gender, and words in the singular or plural
number shall be construed to include the plural or singular, respectively,
unless the context otherwise requires.
11.5 Severability. If any provision of these Bylaws or any
application thereof shall be invalid, unenforceable, or contrary to applicable
law, the remainder of these Bylaws, and the application of such provisions to
individuals or circumstances other than those as to which it is held invalid,
unenforceable, or contrary to applicable law, shall not be affected thereby.
ARTICLE XII
AMENDMENT OF BYLAWS
Subject to the requirements of RCW 23B.10.210 relating to supermajority
quorum provisions for the Board of Directors, the Bylaws of the corporation may
be amended or repealed, or new Bylaws may be adopted, by: (a) the
shareholders, even though the Bylaws may also be amended or repealed, or new
Bylaws may also be adopted, by the Board of
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Directors; or (b) subject to the power of the shareholders of the corporation
to change or repeal the Bylaws, the Board of Directors, unless such power is
reserved, by the Articles of Incorporation or by law, exclusively to the
shareholders in whole or in part or unless the shareholders, in amending or
repealing a particular bylaw, provide expressly that the Board of Directors may
not amend or repeal that bylaw.
ARTICLE XIII
AUTHENTICATION
The foregoing Bylaws were read, approved, and duly adopted by the Board
of Directors of Progressive Networks, Inc. on the 31st day of March, 1995, and
the President and Secretary of the corporation were empowered to authenticate
such Bylaws by their signatures below.
/s/ Rob Glaser
___________________________
Rob Glaser, President
/s/ Rob Glaser
___________________________
Rob Glaser, Secretary
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