EXHIBIT 3.2
RESTATED BYLAWS
OF
LABOR READY, INC.
AS ADOPTED OCTOBER 19, 1995
ARTICLE I
SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the shareholders of this
Corporation shall be held during the month of of each year. The
failure to hold an annual meeting at the time stated in these Bylaws does not
affect the validity of any corporate action.
Section 2. SPECIAL MEETINGS. Except as otherwise provided by law, special
meetings of shareholders of this Corporation shall be held whenever called by
any officer or by the Board of Directors or one or more shareholders who hold at
least ten percent (10%) of all shares entitled to vote on any issue proposed to
be considered at the meeting.
Section 3. PLACE OF MEETINGS. Meetings of shareholders shall be held in
Spokane, Washington, or at such place within or without the State of Washington
as determined by the Board of Directors, pursuant to proper notice.
Section 4. NOTICE. Written notice of each shareholders' meeting stating
the date, time, and place and, in case of a special meeting, the purpose(s) for
which such meeting is called, shall be given by the corporation not less than
ten (10) (unless a greater period of notice is required by law in a particular
case) nor more than sixty (60) days prior to the date of the meeting, to each
shareholder of record entitled to vote at such meeting unless required by law to
send notice to all shareholders (regardless of whether or not such shareholders
are entitled to vote), to the shareholder's address as it appears on the current
record of shareholders of this Corporation.
Section 5. WAIVER OF NOTICE. A shareholder may waive any notice required
to be given by these Bylaws, or the Articles of Incorporation of this
Corporation, or any of the corporate laws of the State of Washington, before or
after the meeting that is the subject of such notice. A valid waiver is created
by any of the following three methods: (a) in writing, signed by the
shareholder entitled to the notice and delivered to the Corporation for
inclusion in its corporate records; (b) attendance at the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; or (c) failure to object at the time of
presentation of a matter not within the purpose or purposes described in the
meeting notice.
Section 6. QUORUM OF SHAREHOLDERS. At any meeting of the shareholders, a
majority in interest of all the shares entitled to vote on a matter, represented
by shareholders of record in person or by proxy, shall constitute a quorum of
that voting group for action on that matter.
Once a share is represented at a meeting, other than to object to holding
the meeting or transacting business, it is deemed to be 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. At such reconvened
meeting, any business may be transacted that might have been transacted at the
meeting as originally notified.
If a quorum exists, action on a matter 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 the question is one upon
which by express provision of law or of the Articles of Incorporation or of
these Bylaws a different vote is required.
Section 7. PROXIES. Shareholders of record may vote at any meeting either
in person or by proxy executed in writing. A proxy is effective when received
by the person authorized to tabulate votes for the Corporation. A proxy is
valid for eleven (11) months unless a longer period is expressly provided in the
proxy.
Section 8. VOTING. Subject to the provisions of the laws of the State of
Washington, and unless otherwise provided in the Articles of Incorporation, each
outstanding share, regardless of class, is entitled to one (1) vote on each
matter voted on at a shareholders' meeting.
Section 9. ADJOURNMENT. A majority of the shares represented at the
meeting, even if less than a quorum, may adjourn the meeting from time to time.
At such reconvened meeting at which a quorum is present any business may be
transacted at the meeting as originally notified. If a meeting is adjourned to
a different date, time, or place, notice need not be given of the new date,
time, or place if a new date, time, or place is announced at the meeting before
adjournment; however, if a new record date for the adjourned meeting is or must
be fixed in accordance with the corporate laws of the State of Washington,
notice of the adjourned meeting must be given to persons who are shareholders as
of the new record date.
ARTICLE II
BOARD OF DIRECTORS
Section 1. POWERS OF DIRECTORS. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors, except as
otherwise provided by its Articles of Incorporation.
Section 2. NUMBER AND QUALIFICATIONS. The business affairs and property
of this Corporation shall be managed by a Board of not less than three (3)
directors. The number of directors may at any time be increased or decreased by
the shareholders or by the Board of Directors at any regular or special meeting.
Directors need not be shareholders of this Corporation or residents of the State
of Washington, but must have reached the age of majority.
Section 3. ELECTION - TERM OF OFFICE. The terms of the initial directors
expire at the first shareholders' meeting at which directors are elected. The
directors shall be elected by the shareholders at each annual shareholders'
meeting to hold office until the next annual meeting of the shareholders and
until their respective successors are elected and qualified. If, for any
reason, the directors shall not have been elected at any annual meeting, they
may be elected at a special meeting of shareholders called for that purpose in
the manner provided by these Bylaws.
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Section 4. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such places, and at such times as the Board by vote may
determine, and, if so determined, no notice thereof need be given.
Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time or place whenever called by any officer or one (1) or
more directors, notice thereof being given to each director by the officer
calling or by the officer directed to call the meeting.
Section 6. NOTICE. No notice is required for regularly scheduled
meetings of the Board of Directors. Notice of special meetings of the Board of
Directors, stating the date, time, and place thereof, shall be given at least
two (2) days prior to the date of the meeting. The purpose of the meeting need
not be given in the notice. Notice for special meetings must be by facsimile,
personal delivery, overnight delivery or oral.
Section 7. WAIVER OF NOTICE. A director may waive notice of a special
meeting of the Board either before or after the meeting, and such waiver shall
be deemed to be the equivalent of giving notice. The waiver must be in writing,
signed by the director and entitled to the notice and delivered to the
Corporation for inclusion in its corporate records. Attendance of a director at
a meeting shall constitute waiver of notice of that meeting unless said director
attends for the express purpose of objecting to the transaction of business
because the meeting has not been lawfully called or convened.
Section 8. QUORUM OF DIRECTORS. A majority of the members of the Board
of Directors shall constitute a quorum for the transaction of business. When a
quorum is present at any meeting, a majority of the members present thereat
shall decide any question brought before such meeting, except as otherwise
provided by the Articles of Incorporation or by these Bylaws.
Section 9. ADJOURNMENT. A majority of the directors present, even if
less than a quorum, may adjourn a meeting and continue it to a later time.
Notice of the adjourned meeting or of the business to be transacted thereat,
other than by announcement, shall not be necessary. At any adjourned meeting at
which a quorum is present, any business may be transacted which could have been
transacted at the meeting as originally called.
Section 10. RESIGNATION AND REMOVAL. Any director of this Corporation may
resign at any time by giving written notice to the Board of Directors, its
Chairman, the President, or Secretary of this Corporation. Any such resignation
is effective when the notice is delivered, unless the notice specifies a later
effective date. The shareholders, at a special meeting called expressly for
that purpose, may remove from office with or without cause one or more directors
and elect their successors. A director may be removed only if the number of
votes cast for removal exceeds the number of votes cast against removal.
Section 11. VACANCIES. Unless otherwise provided by law, in case of any
vacancy in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, the remaining directors, whether
constituting a quorum or not, or the shareholders, may fill the vacancy.
Section 12. COMPENSATION. By resolution of the Board of Directors, each
director may be paid expenses, if any, of attendance at each meeting of the
Board of Directors, and may be paid a stated salary as director, or a fixed sum
for attendance at each meeting of the Board of Directors, or both. No such
payment shall preclude any director from serving this Corporation in any other
capacity and receiving compensation therefor.
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Section 13. PRESUMPTION OF ASSENT. A director of this Corporation who is
present at a 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 it 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 shall file written dissent or abstention with the
presiding officer of the meeting before its adjournment or to the
Corporation within a reasonable time after adjournment of the meeting.
The right of dissent or abstention is not available to a director who votes in
favor of the action taken.
Section 14. COMMITTEES. The Board of Directors, by resolution adopted by
a majority of the full Board of Directors, may designate from among its members
an Executive Committee and one or more other committees, each of which:
a. Must have two (2) or more members;
b. Must be governed by the same rules regarding meetings, action
without meetings, notice, and waiver of notice, and quorum and voting
requirements as applied to the Board of Directors; and
c. To the extent provided in such resolution, shall have and may
exercise all the authority of the Board of Directors, except no such
committee shall have the authority to:
(1) Authorize or approve a distribution except according to a
general formula or method prescribed by the Board of Directors;
(2) Approve or propose to shareholders action which the
Washington Business Corporation Act requires to be approved by
shareholders;
(3) Fill vacancies on the Board of Directors or on any of its
committees;
(4) Amend the Articles of Incorporation;
(5) Adopt, amend, or repeal the Bylaws;
(6) Approve a plan of merger not requiring shareholder approval;
or
(7) Authorize or approve the issuance or sale or contract for
sale of shares, or determine the designation and relative rights,
preferences, and limitations on 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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ARTICLE III
SPECIAL MEASURES APPLYING TO BOTH
SHAREHOLDERS' MEETINGS AND DIRECTORS' MEETINGS
Section 1. ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at a meeting of the shareholders or the Board of Directors may be
accomplished without a meeting if the action is taken by all the shareholders
entitled to vote thereon, or all the members of the Board, as the case may be.
The action must be evidenced by one or more written consents describing the
action to be taken, signed by all the shareholders entitled to vote thereon, or
by all directors, as the case may be, and delivered to the Corporation for
inclusion in the minutes. Directors' consents may be signed either before or
after the action taken.
Action taken by unanimous written consent is effective when the last
director signs the consent, unless the consent specifies a later effective date.
Action taken by unanimous written consent of the shareholders is effective when
all consents are in the possession of the Corporation, unless the consent
specifies a later effective date.
If the corporate laws of the state of Washington require that notice of a
proposed action be given to nonvoting shareholders and the action is to be taken
by unanimous consent of the voting 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 would have been required to be sent to the nonvoting
shareholders in a notice of meeting at which the proposed action would have been
submitted to a vote of the shareholders.
Section 2. CONFERENCE TELEPHONE. Meetings of the shareholders and Board
of Directors may be effectuated 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 such meeting.
Section 3. ORAL AND WRITTEN NOTICE. Oral notice may be communicated in
person or by telephone, wire or wireless equipment that does not transmit a
facsimile of the notice. Oral notice is effective when communicated.
Written notice may be transmitted by mail, private carrier, or personal
delivery; telegraph or teletype; or telephone, wire, or wireless equipment that
transmits a facsimile of the notice. Written notice is effective at the earliest
of the following: (a) when received; (b) five (5) days after its deposit in the
U.S. mail if mailed with first-class postage; (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.
ARTICLE IV
OFFICERS
Section 1. POSITIONS. The officers of this Corporation may be a
President, one or more Vice Presidents, a Secretary, a Treasurer, a Chief
Financial Officer, a Chief Operating Officer, and a Chief Information Services
Officer as appointed by the Board. Such other officers and assistant officers
as may be necessary may be appointed by the Board of Directors or by a duly
appointed officer to whom such authority has been
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delegated by Board resolution. No officer need be a shareholder or a director
of this Corporation. Any two or more offices may be held by the same person.
The Board of Directors in its discretion may elect a Chairman from amongst
its members to serve as Chairman of the Board of Directors, who, when present
shall preside at all meetings of the Board of Directors, and who shall have such
other powers as the Board may determine.
Section 2. APPOINTMENT AND TERM OF OFFICE. The officers of this
Corporation shall be appointed annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of the
shareholders. If officers are not appointed at such meeting, such appointment
shall occur as soon as possible thereafter. Each officer shall hold office
until a successor shall have been appointed and qualified or until said
officer's earlier death, resignation, or removal.
Section 3. POWERS AND DUTIES. If the Board appoints persons to fill the
following officer positions, such officer shall have the powers and duties set
forth below:
a. PRESIDENT AND CHIEF EXECUTIVE OFFICER. The President and Chief
Executive Officer shall be the chief executive officer of this Corporation
and, subject to the direction and control of the Board of Directors, shall
have general supervision of the business and officers of this Corporation.
In addition, the President and Chief Executive Officer shall have
responsibility for planning and directing the strategic direction of the
Corporation, subject to approval of the Board of Directors. Unless a
Chairman of the Board of Directors has been elected and is present, the
President shall preside at meetings of the Board of Directors.
The President, or any Vice President or such other person(s) as are
specifically authorized by vote of the Board of Directors, shall sign all
bonds, deeds, mortgages, and any other agreements, and such signature(s)
shall be sufficient to bind this Corporation. The President shall perform
such other duties as the Board of Directors shall designate.
b. VICE PRESIDENT. During the absence or disability of the
President, the Vice President (or in the event that there be more than one
Vice President, the Vice Presidents in the order designated by the Board of
Directors) shall exercise all functions of the President, except as limited
by resolution of the Board of Directors. Each Vice President shall have
such powers and discharge such duties as may be assigned from time to time
to such Vice President by the President or by the Board of Directors.
c. SECRETARY. The Secretary shall:
(1) Prepare minutes of the directors' and shareholders' meetings
and keep them in one or more books provided for that purpose;
(2) Authenticate records of the Corporation;
(3) See that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law;
(4) Be custodian of the corporate records and of the seal of the
Corporation (if any), and affix the seal of the Corporation to all
documents as may be required;
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(5) Keep a register of the post office address of each
shareholder which shall be furnished to the Secretary by such
shareholder;
(6) Sign with the President, or a Vice President, certificates
for shares of the Corporation, the issuance of which shall have been
authorized by resolution of the Board of Directors;
(7) Have general charge of the stock transfer books of the
Corporation; and
(8) In general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him by the President or by the Board of Directors. In the
Secretary's absence, an Assistant Secretary shall perform the
Secretary's duties.
d. TREASURER. The Treasurer shall have the care and custody of the
money, funds, and securities of the Corporation, shall account for the
same, and shall have and exercise, under the supervision of the Board of
Directors, all the powers and duties commonly incident to this office.
e. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
oversee the care and custody of the money, funds, and securities of the
Corporation, shall account for the same, and shall have and exercise, under
the supervision of the Board of Directors, all the powers and duties
commonly incident to this office.
f. CHIEF OPERATING OFFICER. The Chief Operating Officer shall,
under the supervision of the President and Chief Executive Officer, have
responsibility to implement policy directives as adopted by the Board of
Directors, as well as responsibility for day-to-day management of the
activities of the Corporation.
g. CHIEF INFORMATION SERVICES OFFICER. The Chief Information
Services Officer shall have responsibility, under the supervision of the
Chief Executive Officer and Chief Financial Officer, for developing,
maintaining and implementing management information and accounting systems
of the Corporation necessary for the efficient operation of the business,
consistent with policy directives as adopted by the Board of Directors and
as required to enable the Corporation to perform its legal obligations.
Section 4. SALARIES AND CONTRACT RIGHTS. The salaries, if any, of the
officers shall be fixed from time to time by the Board of Directors. The
appointment of an officer shall not of itself create contract rights.
Section 5. RESIGNATION OR REMOVAL. Any officer of this Corporation may
resign at any time by giving written notice to the Board of Directors. Any such
resignation is effective when the notice is delivered, unless the notice
specifies a later date, and shall be without prejudice to the contract rights,
if any, of such officer.
The Board of Directors, by majority vote of the entire Board, may
remove any officer or agent appointed by it, with or without cause. The removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 6. VACANCIES. If any office becomes vacant by any reason, the
directors may appoint a successor or successors who shall hold office for the
unexpired term.
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ARTICLE V
CERTIFICATES OF SHARES AND THEIR TRANSFER
Section 1. ISSUANCE; CERTIFICATES OF SHARES. No shares of this
Corporation shall be issued unless authorized by the Board. Such authorization
shall include the maximum number of shares to be issued, the consideration to be
received, and a statement that the Board considers the consideration to be
adequate. Certificates for shares of the Corporation shall be in such form as
is consistent with the provisions of the Washington Business Corporation Act and
shall state:
a. The name of the Corporation and that the Corporation is organized
under the laws of the State of Washington;
b. The name of the person to whom issued; and
c. The number and class of shares and the designation of the series,
if any, which such certificate represents.
The certificate shall be signed by original or facsimile signature of two
officers of the Corporation, and the seal of the Corporation may be affixed
thereto.
Section 2. TRANSFER OF STOCK. Shares of stock may be transferred by
delivery of the certificate accompanied by either an assignment in writing on
the back of the certificate or by a written power of attorney to assign and
transfer the same on the books of this Corporation, signed by the record holder
of the certificate. The shares shall be transferable on the books of this
Corporation upon surrender thereof so assigned or endorsed.
Section 3. LOSS OR DESTRUCTION OF CERTIFICATES. In case of the loss,
mutilation, or destruction of a certificate of stock, a duplicate certificate
may be issued upon such terms as the Board of Directors shall prescribe.
Section 4. RECORD DATE AND TRANSFER BOOKS. For the purpose of
determining shareholders who are entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or entitled to receive payment of
any dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may fix in advance a record date for any
such determination of shareholders, such date in any case to be not more than
seventy (70) days and, in case of a meeting of shareholders, not less than ten
(10) days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken.
If no record date is fixed for such purposes, 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.
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Section 5. VOTING RECORD. The officer or agent having charge of the
stock transfer books for shares of this Corporation shall make at least ten (10)
days before each meeting of shareholders a complete record of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each.
Such record shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof.
ARTICLE VI
BOOKS AND RECORDS
Section 1. BOOKS OF ACCOUNTS, MINUTES, AND SHARE REGISTER. The
corporation:
a. 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;
b. Shall maintain appropriate accounting records;
c. 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; and
d. Shall keep a copy of the following records at its principal
office:
(1) The Articles or Restated Articles of Incorporation and all
amendments to them currently in effect;
(2) The Bylaws or Restated Bylaws and all amendments to them
currently in effect;
(3) The minutes of all shareholders' meetings, and records of
all actions taken by shareholders without a meeting, for the past
three (3) years;
(4) Its financial statements for the past three (3) 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;
(5) All written communications to shareholders generally within
the past three (3) years;
(6) A list of the names and business addresses of its current
directors and officers; and
(7) Its most recent annual report delivered to the Secretary of
State of Washington.
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Section 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 President or Secretary.
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 1. DEFINITIONS. As used in this Article:
a. "Act" means the Washington Business Corporation Act, now or
hereafter in force.
b. "Agent" means an individual who is or was an agent of the
Corporation or an individual who, while an agent of the Corporation, is or
was serving at the Corporation's request 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. "Agent" includes, unless the context required otherwise, the
estate or personal representative of an agent.
c. "Corporation" means this Corporation, and any domestic or foreign
predecessor entity which, in a merger or other transaction, ceased to
exist.
d. "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is
or was serving Corporation's request 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. "Director" includes, unless the context requires otherwise,
the estate or personal representative of a director.
e. "Employee" means an individual who is or was an employee of the
Corporation or an individual, while an employee of the Corporation, is or
was serving at the Corporation's request 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. "Employee" includes, unless the context requires otherwise,
the estate or personal representative of an employee.
f. "Expenses" include counsel fees.
g. "Indemnitee" means an individual made a party to a proceeding
because the individual is or was a Director, Officer, Employee, or Agent of
the Corporation, and who possesses indemnification rights pursuant to the
Articles, these Bylaws, or other corporate action. "Indemnitee" shall also
include the heirs, executors, and other successors in interest of such
individuals.
h. "Liability" means the obligation to pay a judgment, settlement,
penalty, fine, including an excise tax assessed with respect to an employee
benefit plan, or reasonable expenses incurred with respect to a proceeding.
i. "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee,
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employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise.
"Officer," includes, unless the context requires otherwise, the estate or
personal representative of an officer.
j. "Party" includes an individual who was, is, or is threatened to
be named a defendant or respondent in a proceeding.
k. "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative, and whether formal or informal.
Section 2. INDEMNIFICATION RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. The Corporation shall indemnify its Directors, Officers, Employees and
Agents to the full extent permitted by applicable law as then in effect against
liability arising out of a proceeding to which such individual was made a party
because the individual is or was a Director, Officer, Employee or Agent of the
Corporation. The Corporation shall advance expenses incurred by such persons who
are parties to a proceeding in advance of final disposition of the proceeding,
as provided herein.
Section 3. PROCEDURE FOR SEEKING INDEMNIFICATION AND/OR ADVANCEMENT OF
EXPENSES.
a. NOTIFICATION AND DEFENSE OF CLAIM. Indemnitee shall promptly
notify the Corporation in writing of any proceeding for which
indemnification could be sought under this Article. In addition,
Indemnitee shall give the Corporation such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
With respect to any such proceeding as to which Indemnitee has
notified the Corporation:
(1) The Corporation will be entitled to participate therein at
its own expense;
(2) Except as otherwise provided below, to the extent that it
may wish, the Corporation, jointly with any other indemnifying party
similarly notified, will be entitled to assume the defense thereof,
with counsel satisfactory to Indemnitee. Indemnitee's consent to such
counsel may not be unreasonably withheld.
After notice from the Corporation to Indemnitee of its election to
assume the defense, the Corporation will not be liable to Indemnitee under
this Article for any legal or other expenses subsequently incurred by
Indemnitee in connection with such defense. However, Indemnitee shall
continue to have the right to employ its counsel in such proceeding, at
Indemnitee's expense; and if:
(a) The employment of counsel by Indemnitee has been authorized
by the Corporation;
(b) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between the Corporation and Indemnitee in the
conduct of such defense; or
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(c) The Corporation shall not in fact have employed counsel to
assume the defense of such proceeding,
the fees and expenses of Indemnitee's counsel shall be at the expense of
the Corporation.
The Corporation shall not be entitled to assume the defense of any
proceeding brought by or on behalf of the Corporation or as to which
Indemnitee shall reasonably have made the conclusion that a conflict of
interest may exist between the Corporation and the Indemnitee in the
conduct of the defense.
b. INFORMATION TO BE SUBMITTED AND METHOD OF DETERMINATION AND
AUTHORIZATION OF INDEMNIFICATION. For the purpose of pursuing rights to
indemnification under this Article, the Indemnitee shall submit to the
Board a sworn statement requesting indemnification and reasonable evidence
of all amounts for which such indemnification is requested (together, the
sworn statement and the evidence constitutes an "Indemnification
Statement").
Submission of an Indemnification Statement to the Board shall create a
presumption that the Indemnitee is entitled to indemnification hereunder,
and the Corporation shall, within sixty (60) calendar days thereafter, make
the payments requested in the Indemnification Statement to or for the
benefit of the Indemnitee, unless: (1) within such sixty (60) calendar day
period it shall be determined by the Corporation that the Indemnitee is not
entitled to indemnification under this Article; (2) such vote shall be
based upon clear and convincing evidence (sufficient to rebut the foregoing
presumption); and (3) the Indemnitee shall receive notice in writing of
such determination, which notice shall disclose with particularity the
evidence upon which the determination is based.
At the election of the President, the foregoing determination may be
made by either: (1) the written consent of the shareholders owning a
majority of the stock in the Corporation; (2) a committee chosen by written
consent of a majority of the directors of the Corporation, and consisting
solely of two (2) or more directors not at the time parties to the
proceeding; or (3) as provided by RCW 23B.08.550, as amended.
Any determination that the Indemnitee is not entitled to
indemnification, and any failure to make the payments requested in the
Indemnification Statement, shall be subject to judicial review by any court
of competent jurisdiction.
c. SPECIAL PROCEDURE REGARDING ADVANCE FOR EXPENSES. An Indemnitee
seeking payment of expenses in advance of a final disposition of the
proceeding must furnish the Corporation, as part of the Indemnification
Statement:
(1) A written affirmation of the Indemnitee's good faith belief
that the Indemnitee has met the standard of conduct required to be
eligible for indemnification; and
(2) A written undertaking, constituting an unlimited general
obligation of the Indemnitee, to repay the advance if it is ultimately
determined that the Indemnitee did not meet the required standard of
conduct.
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If the Corporation determines that indemnification is authorized, the
Indemnitee's request for advance of expenses shall be granted.
d. SETTLEMENT. The Corporation is not liable to indemnify
Indemnitee for any amounts paid in settlement of any proceeding without
Corporation's written consent. The Corporation shall not settle any
proceeding in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the Corporation
nor Indemnitee may unreasonably withhold its consent to a proposed
settlement.
Section 4. CONTRACT AND RELATED RIGHTS.
a. CONTRACT RIGHTS. The right of an Indemnitee to indemnification
and advancement of expenses is a contract right upon which the Indemnitee
shall be presumed to have relied in determining to serve or to continue to
serve in his or her capacity with the Corporation. Such right shall
continue as long as the Indemnitee shall be subject to any possible
proceeding. Any amendment to or repeal of this Article shall not adversely
affect any right or protection of an Indemnitee with respect to any acts or
omissions of such Indemnitee occurring prior to such amendment or repeal.
b. OPTIONAL INSURANCE, CONTRACTS, AND FUNDING. The Corporation may:
(1) Maintain insurance, at its expense, to protect itself and
any Indemnitee against any liability, whether or not the Corporation
would have power to indemnify the individual against the same
liability under RCW 23B.08.510 or .520, or a successor statute;
(2) Enter into contracts with any Indemnitee in furtherance of
this Article and consistent with the Act; and
(3) 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.
c. SEVERABILITY. If any provision or application of this Article
shall be invalid or unenforceable, the remainder of this Article and its
remaining applications shall not be affected thereby, and shall continue in
full force and effect.
d. RIGHT OF INDEMNITEE TO BRING SUIT. If (1) a claim under this
Article for indemnification is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation;
or (2) a claim under this Article for advancement of expenses is not paid
in full by the Corporation within twenty (20) days after a written claim
has been received by the Corporation, then the Indemnitee may, but need
not, at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim. To the extent successful in whole or in
part, the Indemnitee shall be entitled to also be paid the expense (to be
proportionately prorated if the Indemnitee is only partially successful) of
prosecuting such claim.
Neither: (1) the failure of the Corporation (including its Board of
Directors, its shareholders, or independent legal counsel) to have made a
determination prior to the commencement of such proceeding that
indemnification
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or reimbursement or advancement of expenses to the Indemnitee is proper in
the circumstances; nor (2) an actual determination by the Corporation
(including its Board of Directors, its shareholders, or independent legal
counsel) that the Indemnitee is not entitled to indemnification or to the
reimbursement or advancement of expenses, shall be a defense to the
proceeding or create a presumption that the Indemnitee is not so entitled.
Section 5. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms of
these Bylaws to indemnify or advance expenses to Indemnitee with respect to any
proceeding:
a. CLAIMS INITIATED BY INDEMNITEE. Initiated or brought voluntarily
by Indemnitee and not by way of defense, except with respect to proceedings
brought to establish or enforce a right to indemnification under these
Bylaws or any other statute or law or as otherwise required under the
statute; but such indemnification or advancement of expenses may be
provided by the Corporation in specific cases if the Board of Directors
finds it to be appropriate.
b. LACK OF GOOD FAITH. Instituted by Indemnitee to enforce or
interpret this Agreement, if a court of competent jurisdiction determines
that each of the material assertions made by Indemnitee in such proceeding
was not made in good faith or was frivolous.
c. INSURED CLAIMS. For which any of the expenses or liabilities for
indemnification is being sought have been paid directly to Indemnitee by an
insurance carrier under a policy of officers' and directors' liability
insurance maintained by the Corporation.
d. PROHIBITED BY LAW. If the Corporation is prohibited by the
Washington Business Corporation Act or other applicable law as then in
effect from paying such indemnification and/or advancement of expenses.
For example, the Corporation and Indemnitee acknowledge that the Securities
and Exchange Commission ("SEC") has taken the position that indemnification
is not possible for liabilities arising under certain federal securities
laws, and federal legislation prohibits indemnification for certain ERISA
violations. Indemnitee understands and acknowledges that the Corporation
has undertaken or may be required in the future to undertake with the SEC
to submit the question of indemnification to a court in certain
circumstances for a determination of the Corporation's right to indemnify
Indemnitee.
ARTICLE VIII
LIMITATION OF DIRECTOR LIABILITY
A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for conduct as a director,
except for:
(a) Acts or omissions involving intentional misconduct by the director or
a knowing violation of law by the director;
(b) Conduct violating RCW 23B.08.310 (which involves certain distributions
by the corporation);
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(c) Any transaction from which the director will personally receive a
benefit in money, property, or services to which the director is not
legally entitled.
If the Washington Business Corporation Act is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the Washington Business
Corporation Act, as so amended. Any repeal or modification of the foregoing
paragraph by the shareholders of the corporation shall not adversely affect any
right or protection of a director of the corporation with respect to any acts or
omissions of such director occurring prior to such repeal or modification.
ARTICLE IX
AMENDMENT OF BYLAWS
Section 1. BY THE SHAREHOLDERS. These Bylaws may be amended or
repealed at any regular or special meeting of the shareholders if notice of the
proposed amendment is contained in the notice of the meeting.
Section 2. BY THE BOARD OF DIRECTORS. These Bylaws may be amended or
repealed by the affirmative vote of a majority of the whole Board of Directors
of any meeting of the Board, if notice of the proposed amendment is contained in
the notice of the meeting. However, the directors may not modify the Bylaws
fixing their qualifications, classifications, or term of office.
ARTICLE X
RULES OF ORDER
The rules contained in the most recent edition of Robert's Rules of Order,
newly revised, shall govern all meetings of shareholders and directors where
those rules are not inconsistent with the Articles of Incorporation, Bylaws, or
other rules of order of this Corporation.
The undersigned, as President, of Labor Ready, Inc. executes these Bylaws
on October 19, 1995.
/s/ Glenn Welstad
---------------------------------
Glenn Welstad
President
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