EXHIBIT 3.2
1997 RESTATED BYLAWS
OF
IN FOCUS SYSTEMS, INC.
CONTENTS
SECTION 1. OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Place of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 Notice of Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.5 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6 Fixing of Record Date for Determining Shareholders . . . . . . . . . 2
2.7 Shareholders' List . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.8 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.9 Manner of Acting . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.11 Voting of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.12 Voting for Directors . . . . . . . . . . . . . . . . . . . . . . . . 4
2.13 Action by Shareholders Without a Meeting . . . . . . . . . . . . . . 4
2.14 Voting of Shares by Corporation. . . . . . . . . . . . . . . . . . . 4
2.14.1 Shares Held by Another Corporation . . . . . . . . . . . . 4
2.14.2 Shares Held by the Corporation . . . . . . . . . . . . . . 4
2.15 Acceptance or Rejection of Shareholder Votes,
Consents, Waivers and Proxy Appointments. . . . . . . . . . . . . . 5
2.15.1 Documents Bearing Name of Shareholders . . . . . . . . . . 5
2.15.2 Documents Bearing Name of Third Parties. . . . . . . . . . 5
2.15.3 Rejection of Documents . . . . . . . . . . . . . . . . . . 5
2.16 Subject of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 General Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Number, Tenure and Qualifications. . . . . . . . . . . . . . . . . . 7
3.3 Nominations of Directors . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Annual and Regular Meetings. . . . . . . . . . . . . . . . . . . . . 8
3.5 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Meetings by Telecommunications . . . . . . . . . . . . . . . . . . . 8
3.7 Notice of Special Meetings . . . . . . . . . . . . . . . . . . . . . 8
3.7.1 Personal Delivery. . . . . . . . . . . . . . . . . . . . . 9
3.7.2 Delivery by Mail . . . . . . . . . . . . . . . . . . . . . 9
3.7.3 Delivery by Telegraph. . . . . . . . . . . . . . . . . . . 9
3.7.4 Oral Notice. . . . . . . . . . . . . . . . . . . . . . . . 9
3.7.5 Notice by Facsimile Transmission . . . . . . . . . . . . . 9
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3.7.6 Notice by Private Courier. . . . . . . . . . . . . . . . . 9
3.8 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8.1 Written Waiver . . . . . . . . . . . . . . . . . . . . . . 9
3.8.2 Waiver by Attendance . . . . . . . . . . . . . . . . . . .10
3.9 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.10 Manner of Acting . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 Presumption of Assent. . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Action by Board or Committees Without a Meeting. . . . . . . . . . 10
3.13 Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.15 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.16 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.17 Executive and Other Committees . . . . . . . . . . . . . . . . . . .11
3.17.1 Creation of Committees . . . . . . . . . . . . . . . . . .11
3.17.2 Authority of Committees. . . . . . . . . . . . . . . . . .11
3.17.3 Quorum and Manner of Acting. . . . . . . . . . . . . . . .12
3.17.4 Minutes of Meetings. . . . . . . . . . . . . . . . . . . .12
3.17.5 Resignation. . . . . . . . . . . . . . . . . . . . . . . .12
3.17.6 Removal. . . . . . . . . . . . . . . . . . . . . . . . . .12
3.18 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 4. OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
4.1 Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
4.2 Appointment and Term of Office . . . . . . . . . . . . . . . . . . .13
4.3 Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.4 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.5 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.6 Chair of the Board . . . . . . . . . . . . . . . . . . . . . . . . .13
4.7 Chief Executive Officer. . . . . . . . . . . . . . . . . . . . . . .13
4.8 President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.9 Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.10 Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.11 Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.12 Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS . . . . . . . . . . . . . . .15
5.1 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
5.2 Loans to the Corporation . . . . . . . . . . . . . . . . . . . . . .15
5.3 Loans to Directors . . . . . . . . . . . . . . . . . . . . . . . . .15
5.4 Checks, Drafts, Etc. . . . . . . . . . . . . . . . . . . . . . . . .15
5.5 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER. . . . . . . . . . . . .15
6.1 Issuance of Shares . . . . . . . . . . . . . . . . . . . . . . . . .15
6.2 Escrow for Shares. . . . . . . . . . . . . . . . . . . . . . . . . .16
6.3 Certificates for Shares. . . . . . . . . . . . . . . . . . . . . . .16
6.4 Stock Records. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
6.5 Restriction on Transfer. . . . . . . . . . . . . . . . . . . . . . .16
6.5.1 Securities Laws. . . . . . . . . . . . . . . . . . . . . .16
6.5.2 Other Restrictions . . . . . . . . . . . . . . . . . . . .16
6.6 Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . .16
6.7 Lost or Destroyed Certificates . . . . . . . . . . . . . . . . . . .17
6.8 Transfer Agent and Registrar . . . . . . . . . . . . . . . . . . . .17
6.9 Officer Ceasing to Act . . . . . . . . . . . . . . . . . . . . . . .17
6.10 Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 7. BOOKS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 8. FISCAL YEAR. . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 9. SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 10. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . .18
10.1 Directors and Officers. . . . . . . . . . . . . . . . . . . . . . .18
10.2 Employees and Other Agents. . . . . . . . . . . . . . . . . . . . .18
10.3 No Presumption of Bad Faith . . . . . . . . . . . . . . . . . . . .18
10.4 Advances of Expenses. . . . . . . . . . . . . . . . . . . . . . . .18
10.5 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
10.6 Nonexclusivity of Rights. . . . . . . . . . . . . . . . . . . . . .19
10.7 Survival of Rights. . . . . . . . . . . . . . . . . . . . . . . . .19
10.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.9 Amendments to Law . . . . . . . . . . . . . . . . . . . . . . . . .19
10.10 Savings Clause. . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.11 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 11. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
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1997 RESTATED BYLAWS
OF
IN FOCUS SYSTEMS, INC.
SECTION 1
OFFICES
The principal office of the Corporation shall be located at the principal
place of business or such other place as the Board of Directors (the "Board")
may designate. The Corporation may have such other offices, either within or
without the State of Oregon, as the Board may designate or as the business of
the Corporation may require from time to time.
SECTION 2
SHAREHOLDERS
2.1 ANNUAL MEETING. The annual meeting of the shareholders shall be held
in the month of April each year, or in such other month as fixed by the Board,
on such date and at such time as fixed by the Board, at the principal office of
the Corporation or at such other place as fixed by the Board, for the purpose of
electing Directors and transacting such other business as may properly come
before the meeting.
2.2 SPECIAL MEETINGS. The Board or the Chair of the Board may call
special meetings of the shareholders for any purpose. The holders of not less
than one-tenth of all the outstanding shares of the Corporation entitled to vote
on any issue proposed to be considered at the proposed special meeting, if they
date, sign and deliver to the Corporation's Secretary a written demand for a
special meeting describing the purpose(s) for which it is to be held, may call a
special meeting of the shareholders for such stated purpose(s).
2.3 PLACE OF MEETING. All meetings shall be held at the principal office
of the Corporation or at such other place as designated by the Board, by any
persons entitled to call a meeting hereunder, or in a waiver of notice signed by
all of the shareholders entitled to vote at the meeting.
2.4 NOTICE OF MEETING.
2.4.1 The Corporation shall cause to be delivered to each
shareholder entitled to notice of or to vote at an annual or special meeting of
shareholders, either personally or by mail, not less than ten (10) nor more than
sixty (60) days before the meeting, written notice stating the date, time and
place of the meeting and, in the case of a special meeting, the purpose(s) for
which the meeting is called.
2.4.2 Notice to a shareholder of an annual or special shareholder
meeting shall be in writing. Such notice, if in comprehensible form, is
effective (a) when mailed, if
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it is mailed postpaid and is correctly addressed to the shareholder's address
shown in the Corporation's then current record of shareholders; or (b) when
received by the shareholder, if it is delivered by telegraph, facsimile
transmission or private courier.
2.4.3 If an annual or special shareholders' meeting is adjourned
to a different date, time, or place, notice need not be given of the new date,
time, or place if the new date, time, or place is announced at the meeting
before adjournment, unless a new record date for the adjourned meeting is or
must be fixed under Section 2.6.1 of these Bylaws or the Oregon Business
Corporation Act.
2.5 WAIVER OF NOTICE.
2.5.1 Whenever any notice is required to be given to any
shareholder under the provisions of these Bylaws, the Articles of Incorporation
or the Oregon Business Corporation Act, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, and delivered to the Corporation for inclusion in the minutes
for filing with the corporate records, shall be deemed equivalent to the giving
of such notice.
2.5.2 The attendance of a shareholder at a meeting waives
objection to lack of, or defect in, notice of such meeting or of consideration
of a particular matter at the meeting, unless the shareholder, at the beginning
of the meeting or prior to consideration of such matter, objects to holding the
meeting, transacting business at the meeting, or considering the matter when
presented at the meeting.
2.6 FIXING OF RECORD DATE FOR DETERMINING SHAREHOLDERS.
2.6.1 For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders or any adjournment
thereof, or shareholders entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other purpose, the Board
may fix in advance a date as the record date for any such determination. Such
record date shall 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 is to be taken. If no record
date is fixed for the determination of shareholders entitled to notice of or to
vote at a meeting, or to receive payment of a dividend, the date on which the
notice of meeting is mailed or on which the resolution of the Board declaring
such dividend is adopted, as the case may be, shall be the record date for such
determination. Such determination shall apply to any adjournment of the
meeting, provided such adjournment is not set for a date more than 120 days
after the date fixed for the original meeting.
2.6.2 The record date for the determination of shareholders
entitled to demand a special shareholder meeting shall be the date the first
shareholder signs the demand.
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2.7 SHAREHOLDERS' LIST.
2.7.1 Beginning two (2) business days after notice of a meeting of
shareholders is given, a complete alphabetical list of the shareholders entitled
to notice of such meeting shall be made, arranged by voting group, and within
each voting group by class or series, with the address of and number of shares
held by each shareholder. This record shall be kept on file at the
Corporation's principal office or at a place identified in the meeting notice in
the city where the meeting will be held. On written demand, this record shall
be subject to inspection by any shareholder at any time during normal business
hours. Such record shall also be kept open at such meeting for inspection by
any shareholder.
2.7.2 A shareholder may, on written demand, copy the shareholders'
list at such shareholder's expense during regular business hours, provided that:
(a) Such shareholder's demand is made in good faith and for a
proper purpose;
(b) Such shareholder has described with reasonable particularity
such shareholder's purpose in the written demand; and
(c) The shareholders' list is directly connected with such
shareholder's purpose.
2.8 QUORUM. A majority of the votes entitled to be cast on a matter at a
meeting by a voting group, represented in person or by proxy, shall constitute a
quorum of that voting group for action on that matter at a meeting of the
shareholders. If a quorum is not present for a matter to be acted upon, a
majority of the shares represented at the meeting may adjourn the meeting from
time to time without further notice. If the necessary quorum is present or
represented at a reconvened meeting following such an adjournment, any business
may be transacted that might have been transacted at the meeting as originally
called. The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
2.9 MANNER OF ACTING.
2.9.1 If a quorum exists, action on a matter (other than the
election of Directors) by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless the affirmative vote of a greater number is required by these Bylaws, the
Articles of Incorporation or the Oregon Business Corporation Act.
2.9.2 If a matter is to be voted on by a single group, action on
that matter is taken when voted upon by that voting group. If a matter is to be
voted on by two or more
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voting groups, action on that matter is taken only when voted upon by each of
those voting groups counted separately. Action may be taken by one voting group
on a matter even though no action is taken by another voting group entitled to
vote on such matter.
2.10 PROXIES. A shareholder may vote by proxy executed in writing by the
shareholder or by his or her attorney-in-fact. Such proxy shall be effective
when received by the Secretary or other officer or agent authorized to tabulate
votes at the meeting. A proxy shall become invalid eleven (11) months after the
date of its execution, unless otherwise expressly provided in the proxy. A
proxy for a specified meeting shall entitle the holder thereof to vote at any
adjournment of such meeting but shall not be valid after the final adjournment
thereof.
2.11 VOTING OF SHARES. Each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
2.12 VOTING FOR DIRECTORS. Each shareholder may vote, in person or by
proxy, the number of shares owned by such shareholder that are entitled to vote
at an election of Directors, for as many persons as there are Directors to be
elected and for whose election such shares have a right to vote. Unless
otherwise provided in the Articles of Incorporation, Directors are elected by a
plurality of the votes cast by shares entitled to vote in the election at a
meeting at which a quorum is present.
2.13 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action which could be
taken at a meeting of the shareholders may be taken without a meeting if a
written consent setting forth the action so taken is signed by all shareholders
entitled to vote with respect to the subject matter thereof. The action shall
be effective on the date on which the last signature is placed on the consent,
or at such earlier or later time as is set forth therein. Such written consent,
which shall have the same force and effect as a unanimous vote of the
shareholders, shall be inserted in the minute book as if it were the minutes of
a meeting of the shareholders.
2.14 VOTING OF SHARES BY CORPORATION.
2.14.1 SHARES HELD BY ANOTHER CORPORATION. Shares standing in the
name of another corporation may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may determine;
provided, however, such shares are not entitled to vote if the Corporation owns,
directly or indirectly, a majority of the shares entitled to vote for directors
of such other corporation.
2.14.2 SHARES HELD BY THE CORPORATION. Authorized but unissued
shares shall not be voted or counted for determining whether a quorum exists at
any meeting or counted in determining the total number of outstanding shares at
any given time. Notwithstanding the foregoing, shares of its own stock held by
the Corporation in a fiduciary
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capacity may be counted for purposes of determining whether a quorum exists, and
may be voted by the Corporation.
2.15 ACCEPTANCE OR REJECTION OF SHAREHOLDER VOTES, CONSENTS, WAIVERS AND
PROXY APPOINTMENTS.
2.15.1 DOCUMENTS BEARING NAME OF SHAREHOLDERS. If the name signed
on a vote, consent, waiver or proxy appointment corresponds to the name of a
shareholder, the Secretary or other agent authorized to tabulate votes at the
meeting may, if acting in good faith, accept such vote, consent, waiver or proxy
appointment and give it effect as the act of the shareholder.
2.15.2 DOCUMENTS BEARING NAME OF THIRD PARTIES. If the name signed
on a vote, consent, waiver or proxy appointment does not correspond to the name
of its shareholder, the Secretary or other agent authorized to tabulate votes at
the meeting may nevertheless, if acting in good faith, accept such vote,
consent, waiver or proxy appointment and give it effect as the act of the
shareholder if:
(a) The shareholder is an entity and the name signed purports to
be that of an officer or an agent of the entity;
(b) The name signed purports to be that of an administrator,
executor, guardian or conservator representing the shareholder and, if the
Secretary or other agent requests, acceptable evidence of fiduciary status has
been presented;
(c) The name signed purports to be that of a receiver or trustee
in bankruptcy of the shareholder, and, if the Secretary or other agent requests,
acceptable evidence of this status has been presented;
(d) The name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the Secretary or other
agent requests, acceptable evidence of the signatory's authority to sign has
been presented; or
(e) Two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of the
co-owners and the person signing appears to be acting on behalf of all co-
owners.
2.15.3 REJECTION OF DOCUMENTS. The Secretary or other agent
authorized to tabulate votes at the meeting is entitled to reject a vote,
consent, waiver or proxy appointment if such agent, acting in good faith, has
reasonable basis for doubt about the validity of the signature on it or about
the signatory's authority to sign for the shareholder.
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2.16 SUBJECT OF MEETINGS. To be properly brought before an annual meeting
of shareholders, business must be either (i) specified in the notice of the
meeting (or any supplement or amendment thereto) given by or at the direction of
the Board, (ii) otherwise brought before the meeting by or at the direction of
the Board, or (iii) otherwise brought before the meeting by a shareholder who is
a shareholder of record at the time of giving of the notice provided for in this
Section 2.16, who shall be entitled to vote at such meeting and who complies
fully with all of the notice procedures and other requirements set forth in this
Section 2.16. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting of shareholders by a shareholder,
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) calendar days nor more than ninety (90)
calendar days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is changed by more than thirty (30) calendar days from such anniversary
date, notice by the shareholder to be timely must be so received not later than
the close of business on the tenth (10th) calendar day following the earlier of
the day on which notice of the date of the meeting was mailed or public
disclosure was made. A shareholder's notice to the Corporation's Secretary of
business proposed to be conducted at any annual or special meeting of
shareholders shall set forth as to each matter the shareholder proposes to bring
before such meeting (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (ii) the name and record address of the shareholder proposing such
business and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (iii) the class, series and number of shares of the
capital stock of the Corporation which are owned beneficially and of record by
such shareholder and by the beneficial owner, if any, on whose behalf the
proposal is made, and (iv) any material interest of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at a meeting of shareholders except in accordance with the procedures
set forth in this Section 2.16. The officer of the Corporation presiding at a
meeting of shareholders (the "Presiding Officer") shall determine whether the
proposed business is properly brought before the meeting in accordance with the
provisions of this Section 2.16. If the Presiding Officer should determine that
the proposed business is not properly brought before the meeting, the Presiding
Officer shall state such determination to the meeting, whereupon any such
business not properly brought before the meeting shall not be transacted or
otherwise brought before the meeting. Notwithstanding the foregoing provisions
of this Section 2.16, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder with respect to the matters set forth herein.
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SECTION 3
BOARD OF DIRECTORS
3.1 GENERAL POWERS. The business and affairs of the Corporation shall be
managed by the Board, except as may be otherwise provided in these Bylaws, the
Articles of Incorporation or the Oregon Business Corporation Act.
3.2 NUMBER, TENURE AND QUALIFICATIONS. The authorized number of Directors
of the Corporation shall be no less than three and no more than seven. The
current number of Directors shall be within such maximum and minimum limits as
determined, or as amended from time to time, by resolution adopted by the Board.
The maximum or minimum number of Directors may be changed from time to time by
amendment to these Bylaws, but no decrease in the number of Directors shall
shorten the term of any incumbent Director. Each Director shall hold office
until the next annual meeting of shareholders or until removed. If a Director's
term expires, however, the Director shall continue to serve until the Director's
successor shall have been elected and qualified, or until there is a decrease in
the number of Directors. Directors need not be shareholders of the Corporation
or residents of the State of Oregon.
3.3 NOMINATIONS OF DIRECTORS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
Directors. Nominations of persons for election to the Board of the Corporation
at any meeting of shareholders may be made by or at the direction of the Board,
by any committee of persons appointed by the Board or at the meeting by any
shareholder of the Corporation who is a shareholder of record at the time of
giving notice provided for in this Section 3.3, who shall be entitled to vote
for the election of directors at the meeting and who complies fully with all of
the notice procedures and other requirements set forth in this Section 3.3 and
the procedures and requirements set forth in the Oregon Business Corporation
Act. Nominations by any shareholder shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation (a) in the case of an annual meeting, not less than
sixty (60) calendar days nor more than ninety (90) calendar days prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is changed by more than
thirty (30) calendar days from such anniversary date, notice by the shareholder
to be timely must be so received not later than the close of business on the
tenth (10th) calendar day following the earlier of the day on which notice of
the date of the meeting was mailed or public disclosure was made, and (b) in the
case of a special meeting at which Directors are to be elected, not later than
the earlier of (i) the close of business on the tenth (10th) calendar day
following the earlier of the day on which notice of the date of the meeting was
mailed or public disclosure was made or (ii) the close of business on the fifth
(5th) calendar day before the date of the meeting. Such shareholder's notice to
the Secretary or a written demand from shareholders pursuant to Section 60.204
of the Oregon Revised Statutes shall set forth (i) as to each person whom such
shareholders propose to nominate for election or reelection as a Director,
Page 7 - 1997 RESTATED BYLAWS
(a) the name, age, business address and residence address of the person, (b) the
principal occupation or employment of the person, (c) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (d) all other information relating to the person that is or would be
required to be disclosed in a solicitation for proxies for election of Directors
pursuant to the Rules and Regulations of the Securities and Exchange Commission
under Section 14 of the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a Director if elected); (ii) as to the shareholders giving
such notice or demand (a) the name and record address of the shareholders, (b)
the class and number of shares of capital stock of the Corporation which are
beneficially owned by each such shareholder and also which are owned of record
by each such shareholder and (c) any material interest or relationship each such
shareholder has in or with the proposed nominee; and (iii) as to each beneficial
owner, if any, on whose behalf the nomination is made, (a) the name and address
of such person, (b) the class and number of shares of capital stock of the
Corporation which are beneficially owned by such person and (c) any material
interest or relationship such person has in or with the proposed nominee. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a Director of the Corporation. No person
shall be eligible for election as a Director of the Corporation unless nominated
in accordance with the procedures set forth herein. The Presiding Officer shall
determine whether the nomination is made in accordance with the foregoing
procedures. If the Presiding Officer should determine that the nomination was
not made in accordance with the foregoing procedures, the Presiding Officer
shall state such determination to the meeting, whereupon any such defective
nomination shall be disregarded and not otherwise brought before the meeting.
Notwithstanding the foregoing provisions of this Section 3.3, a shareholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth herein.
3.4 ANNUAL AND REGULAR MEETINGS. An annual Board meeting shall be held
without further notice at the principal office of the Corporation on the day
immediately following the annual meeting of shareholders, or at such other date,
time and place as fixed by the Board. By resolution, the Board, or any
committee thereof, may specify the time and place for holding regular meetings
thereof without other notice than such resolution.
3.5 SPECIAL MEETINGS. Special meetings of the Board or any committee
designated by the Board may be called by or at the request of the Chair of the
Board, the Chief Executive Officer, the President, or any two Directors, and, in
the case of any special meeting of any committee designated by the Board, by the
Chair thereof. The person or persons authorized to call special meetings may
fix any place either within or without the State of Oregon as the place for
holding any special Board or committee meeting called by them.
Page 8 - 1997 RESTATED BYLAWS
3.6 MEETINGS BY TELECOMMUNICATIONS. Members of the Board or any committee
designated by the Board may participate in a meeting of such Board or committee
by use of any means of communication by which all persons participating may
simultaneously hear each other during the meeting. Participation by such means
shall be deemed presence in person at the meeting.
3.7 NOTICE OF SPECIAL MEETING. Notice of a special Board or committee
meeting stating the date, time and place of the meeting shall be given to a
Director in writing or orally by telephone or in person as set forth below.
Neither the business to be transacted at, nor the purpose of, any special
meeting need be specified in the notice of such meeting.
3.7.1 PERSONAL DELIVERY. If delivery is by personal service, the
notice shall be effective if delivered at such address at least one day before
the meeting.
3.7.2 DELIVERY BY MAIL. If notice is delivered by mail, the
notice shall be deemed effective if deposited in the official government mail at
least five days before the meeting properly addressed to a Director at his or
her address shown on the records of the Corporation with postage prepaid.
3.7.3 DELIVERY BY TELEGRAPH. If notice is delivered by telegraph,
the notice shall be deemed effective if the content thereof is delivered to the
telegraph company by such time that telegraph company guarantees delivery at
least one day before the meeting.
3.7.4 ORAL NOTICE. If notice is delivered orally, by telephone or
in person, the notice shall be effective if personally given to a Director at
least one day before the meeting.
3.7.5 NOTICE BY FACSIMILE TRANSMISSION. If notice is delivered by
facsimile transmission, the notice shall be deemed effective if the content
thereof is transmitted to the office of a Director, at the facsimile number
shown on the records of the Corporation, at least one day before the meeting,
and receipt is either confirmed by confirming transmission equipment or
acknowledged by the receiving office.
3.7.6 NOTICE BY PRIVATE COURIER. If notice is delivered by
private courier, the notice shall be deemed effective if delivered to the
courier, properly addressed and prepaid, by such time that the courier
guarantees delivery at least one day before the meeting.
3.8 WAIVER OF NOTICE.
3.8.1 WRITTEN WAIVER. Whenever any notice is required to be given
to any Director under the provisions of these Bylaws, the Articles of
Incorporation or the Oregon Business Corporation Act, a waiver thereof in
writing, executed at any time, specifying the meeting for which notice is
waived, signed by the person or persons entitled to such notice,
Page 9 - 1997 RESTATED BYLAWS
and filed with the minutes or corporate records, shall be deemed equivalent to
the giving of such notice.
3.8.2 WAIVER BY ATTENDANCE. The attendance of a Director at a
Board or committee meeting shall constitute a waiver of notice of such meeting,
unless the Director, at the beginning of the meeting, or promptly upon such
Director's arrival, objects to holding the meeting or transacting any business
at the meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.9 QUORUM. A majority of the number of Directors fixed by or in the
manner provided by these Bylaws shall constitute a quorum for the transaction of
business at any Board meeting.
3.10 MANNER OF ACTING. The act of the majority of the Directors present at
a Board or committee meeting at which there is a quorum shall be the act of the
Board or committee, unless the vote of a greater number is required by these
Bylaws, the Articles of Incorporation or the Oregon Business Corporation Act.
3.11 PRESUMPTION OF ASSENT. A Director of the Corporation present at a
Board or committee meeting at which action on any corporate matter is taken
shall be deemed to have assented to the action taken unless such Director
objects at the beginning of the meeting, or promptly upon such Director's
arrival, to holding the meeting or transacting business at the meeting; or such
Director's dissent is entered in the minutes of the meeting; or such Director
delivers a written notice of dissent or abstention to such action with the
presiding officer of the meeting before the adjournment thereof; or such
Director forwards such notice by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. A Director who
voted in favor of such action may not thereafter dissent or abstain.
3.12 ACTION BY BOARD OR COMMITTEES WITHOUT A MEETING. Any action which
could be taken at a meeting of the Board or of any committee appointed by the
Board may be taken without a meeting if a written consent setting forth the
action so taken is signed by each Director or by each committee member. The
action shall be effective when the last signature is placed on the consent,
unless the consent specifies an earlier or later date. Such written consent,
which shall have the same effect as a unanimous vote of the Directors or such
committee, shall be inserted in the minute book as if it were the minutes of a
Board or committee meeting.
3.13 RESIGNATION. Any Director may resign at any time by delivering
written notice to the Chair of the Board, the Board, or to the registered office
of the Corporation. Such resignation shall take effect at the time specified in
the notice, or if no time is specified, upon delivery. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board.
Page 10 - 1997 RESTATED BYLAWS
3.14 REMOVAL. One or more members of the Board (including the entire
Board) may be removed at a meeting of shareholders called expressly for that
purpose, provided that the notice of such meeting states that the purpose, or
one of the purposes, of the meeting is such removal. A member of the Board may
be removed with or without cause, unless the Articles of Incorporation permit
removal for cause only, by a vote of the holders of a majority of the shares
then entitled to vote on the election of the Director(s). A Director may be
removed only if the number of votes cast to remove the Director exceeds the
number of votes cast to not remove the Director. If a Director is elected by a
voting group of shareholders, only the shareholders of that voting group may
participate in the vote to remove such Director.
3.15 VACANCIES. Any vacancy occurring on the Board, including a vacancy
resulting from an increase in the number of Directors, may be filled by the
shareholders, by the Board, by the affirmative vote of a majority of the
remaining Directors though less than a quorum of the Board, or by a sole
remaining Director. A Director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office; except that the term of
a Director elected by the Board to fill a vacancy expires at the next
shareholders' meeting at which Directors are elected. Any Directorship to be
filled by reason of an increase in the number of Directors may be filled by the
affirmative vote of a majority of the number of Directors fixed by the Bylaws
prior to such increase for a term of office continuing only until the next
election of Directors by the shareholders. Any Directorship not so filled by
the Directors shall be filled by election at the next annual meeting of
shareholders or at a special meeting of shareholders called for that purpose.
If the vacant Directorship is filled by the shareholders and was held by a
Director elected by a voting group of shareholders, then only the holders of
shares of that voting group are entitled to vote to fill such vacancy. A
vacancy that will occur at a specific later date by reason of a resignation
effective at such later date or otherwise may be filled before the vacancy
occurs, but the new Director may not take office until the vacancy occurs.
3.16 MINUTES. The Board shall keep minutes of its meetings and shall cause
them to be recorded in books kept for that purpose.
3.17 EXECUTIVE AND OTHER COMMITTEES.
3.17.1 CREATION OF COMMITTEES. The Board, by resolution adopted by
a majority of the number of Directors fixed in the manner provided by these
Bylaws, may appoint standing or temporary committees, including an Executive
Committee, from its own number and consisting of no less than two (2) Directors.
The Board may invest such committee(s) with such powers as it may see fit,
subject to such conditions as may be prescribed by the Board, these Bylaws, the
Articles of Incorporation and the Oregon Business Corporation Act.
3.17.2 AUTHORITY OF COMMITTEES. Each committee shall have and may
exercise all of the authority of the Board to the extent provided in the
resolution of the Board
Page 11 - 1997 RESTATED BYLAWS
designating the committee and any subsequent resolutions pertaining thereto and
adopted in like manner, except that no such committee shall have the authority
to: (a) authorize distributions, except as may be permitted by Section
3.17.2(g) of these Bylaws; (b) approve or propose to shareholders actions
required by the Oregon Business Corporation Act to be approved by shareholders;
(c) fill vacancies on the Board or any committee thereof; (d) adopt, amend or
repeal these Bylaws; (e) amend the Articles of Incorporation; (f) approve a plan
of merger not requiring shareholder approval; or (g) authorize or approve
reacquisition of shares, except within limits prescribed by the Board.
3.17.3 QUORUM AND MANNER OF ACTING. A majority of the number of
Directors composing any committee of the Board, as established and fixed by
resolution of the Board, shall constitute a quorum for the transaction of
business at any meeting of such committee.
3.17.4 MINUTES OF MEETINGS. All committees so appointed shall keep
regular minutes of their meetings and shall cause them to be recorded in books
kept for that purpose.
3.17.5 RESIGNATION. Any member of any committee may resign at any
time by delivering written notice thereof to the Board, the Chair of the Board
or the Corporation. Any such resignation shall take effect at the time
specified in the notice, or if no time is specified, upon delivery. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is
irrevocable unless revocation is permitted by the Board.
3.17.6 REMOVAL. The Board may remove from office any member of any
committee elected or appointed by it, but only by the affirmative vote of not
less than a majority of the number of Directors fixed by or in the manner
provided by these Bylaws.
3.18 COMPENSATION. By Board resolution, Directors and committee members
may be paid their expenses, if any, of attendance at each Board or committee
meeting, or a fixed sum for attendance at each Board or committee meeting, or a
stated salary as Director or a committee member, or a combination of the
foregoing. No such payment shall preclude any Director or committee member from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 4
OFFICERS
4.1 NUMBER. The Officers of the Corporation shall be a President and a
Secretary, each of whom shall be appointed by the Board. One or more Vice
Presidents, a Treasurer and such other Officers and assistant Officers,
including a Chair of the Board and/or a Chief Executive Officer, may be
appointed by the Board; such Officers and assistant Officers to hold office for
such period, have such authority and perform such duties as are
Page 12 - 1997 RESTATED BYLAWS
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 subordinate Officers or agents and to prescribe their
respective terms of office, authority and duties. Any two or more offices may
be held by the same person.
4.2 APPOINTMENT AND TERM OF OFFICE. The Officers of the Corporation shall
be appointed annually by the Board at the Board meeting held after the annual
meeting of the shareholders. If the appointment of Officers is not made at such
meeting, such appointment shall be made as soon thereafter as a Board meeting
conveniently may be held. Unless an Officer dies, resigns, or is removed from
office, he or she shall hold office until the next annual meeting of the Board
or until his or her successor is appointed.
4.3 RESIGNATION. Any Officer may resign at any time by delivering written
notice to the Corporation. Any such resignation shall take effect at the time
specified in the notice, or if no time is specified, upon delivery. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is
irrevocable unless revocation is permitted by the Board.
4.4 REMOVAL. Any Officer or agent appointed by the Board may be removed
by the Board, with or without cause, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Appointment of an
Officer or agent shall not of itself create contract rights.
4.5 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 for the unexpired portion of the term, or for a new term
established by the Board. If a resignation is made effective at a later date,
and the Corporation accepts such future effective date, the Board may fill the
pending vacancy before the effective date, if the Board provides that the
successor does not take office until the effective date.
4.6 CHAIR OF THE BOARD. If appointed, the Chair of the Board shall
perform such duties as shall be assigned to him or her by the Board from time to
time and shall preside over meetings of the Board and shareholders unless
another Officer is appointed or designated by the Board as Chair of such
meeting.
4.7 CHIEF EXECUTIVE OFFICER. If appointed, the Chief Executive Officer
shall be the chief executive Officer of the Corporation unless some other
Officer is so designated by the Board, shall preside over meetings of the Board
and shareholders in the absence of a Chair of the Board and, subject to the
Board's control, shall supervise and control all of the assets, business and
affairs of the Corporation. The Chief Executive Officer shall have authority to
sign deeds, mortgages, bonds, contracts, or other instruments, except when the
signing and execution thereof have been expressly delegated by the Board or by
these Bylaws to some other Officer or agent of the Corporation, or are required
by law to be otherwise
Page 13 - 1997 RESTATED BYLAWS
signed or executed by some other Officer or in some other manner. In general,
the Chief Executive Officer shall perform all duties incident to the office of
Chief Executive Officer and such other duties as are prescribed by the Board
from time to time.
4.8 PRESIDENT. In the absence of a Chief Executive Officer or in the
event of the death of the Chief Executive Officer or his or her inability to
act, the President shall perform the duties of the Chief Executive Officer,
except as may be limited by resolution of the Board, with all the powers of and
subject to all the restrictions upon the Chief Executive Officer. The President
shall have, to the extent authorized by the Chief Executive Officer or the
Board, the same powers as the Chief Executive Officer to sign deeds, mortgages,
bonds, contracts or other instruments. The President shall perform such other
duties as from time to time may be assigned to him or her by the Chief Executive
Officer or the Board.
4.9 VICE PRESIDENT. In the event of the death of the President or his or
her inability to act, the Vice President (or if there is more than one Vice
President, the Vice President who was designated by the Board as the successor
to the President, or if no Vice President is so designated, the Vice President
first appointed to such office) shall perform the duties of the President,
except as may be limited by resolution of the Board, with all the powers of and
subject to all the restrictions upon the President. Vice Presidents shall have,
to the extent authorized by the Chief Executive Officer, the President, or the
Board, the same powers as the President to sign deeds, mortgages, bonds,
contracts or other instruments. Vice Presidents shall perform such other duties
as from time to time may be assigned to them by the Chief Executive Officer, the
President, or the Board.
4.10 SECRETARY. The Secretary shall: (a) prepare and keep the minutes of
meetings of the shareholders and the Board in one or more books provided for
that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be responsible for custody
of the corporate records and seal of the Corporation; (d) keep registers of the
post office address of each shareholder and Director; (e) have general charge of
the stock transfer books of the Corporation; and (f) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him or her by the Chief Executive Officer, the President
or by the Board. In the absence of the Secretary, an Assistant Secretary may
perform the duties of the Secretary.
4.11 TREASURER. If required by the Board, the Treasurer shall give a bond
for the faithful discharge of his or her duties in such amount and with such
surety or sureties as the Board shall determine. The Treasurer shall have
charge and custody of and be responsible for all funds and securities of the
Corporation; 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 in general perform all of
the duties incident to the office of the Treasurer and such other duties as from
time to time may be
Page 14 - 1997 RESTATED BYLAWS
assigned to him or her by the Chief Executive Officer, the President or by the
Board. In the absence of the Treasurer, an Assistant Treasurer may perform the
duties of the Treasurer.
4.12 SALARIES. The salaries of the Officers shall be fixed from time to
time by the Board or by any person or persons to whom the Board has delegated
such authority. No Officer shall be prevented from receiving such salary by
reason of the fact that he or she is also a Director of the Corporation.
SECTION 5
CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 CONTRACTS. The Board 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.
5.2 LOANS TO THE CORPORATION. No loans shall be contracted on behalf of
the Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board. Such authority may be general
or confined to specific instances.
5.3 LOANS TO DIRECTORS. The Corporation shall not lend money to or
guarantee the obligation of a Director unless: (a) the particular loan or
guarantee is approved by a majority of the votes represented by the outstanding
voting shares of all classes, voting as a single voting group, excluding the
votes of the shares owned by or voted under the control of the benefitted
Director; or (b) the Board determines that the loan or guarantee benefits the
Corporation and either approves the specific loan or guarantee or a general plan
authorizing the loans and guarantees. The fact that a loan or guarantee is made
in violation of this provision shall not affect the borrower's liability on the
loan.
5.4 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or 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 is from time to time determined by
resolution of the Board.
5.5 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 Board may select.
SECTION 6
CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 ISSUANCE OF SHARES. No shares of the Corporation shall be issued
unless authorized by the Board, which authorization shall include the maximum
number of shares to
Page 15 - 1997 RESTATED BYLAWS
be issued and the consideration to be received for each share. Before the
Corporation issues shares, the Board shall determine that the consideration
received or to be received for such shares is adequate. Such determination by
the Board shall be conclusive insofar as the adequacy of consideration for the
issuance of shares relates to whether the shares are validly issued, fully paid
and nonassessable.
6.2 ESCROW FOR SHARES. The Board may authorize the placement in escrow of
shares issued for a contract for future services or benefits or a promissory
note, or may authorize other arrangements to restrict the transfer of shares,
and may authorize the crediting of distributions in respect of such shares
against their purchase price, until the services are performed, the note is paid
or the benefits received. If the services are not performed, the note is not
paid, or the benefits are not received, the Board may cancel, in whole or in
part, such shares placed in escrow or restricted and such distributions
credited.
6.3 CERTIFICATES FOR SHARES. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Board. Such
certificates shall be signed by any two of the following officers: the Chair of
the Board, the President, any Vice President, the Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar other than the Corporation itself or an employee of the
Corporation. All certificates shall be consecutively numbered or otherwise
identified.
6.4 STOCK RECORDS. The stock transfer books shall be kept at the
registered office or principal place of business of the Corporation or at the
office of the Corporation's transfer agent or registrar. The name and address
of each person to whom certificates for shares are issued, together with the
class and number of shares represented by each such certificate and the date of
issue thereof, shall be entered on the stock transfer books of the Corporation.
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.
6.5 RESTRICTION ON TRANSFER.
6.5.1 SECURITIES LAWS. 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, or has otherwise
satisfied itself that such transfer restrictions are not required, all
certificates representing shares of the Corporation shall bear conspicuously on
the front or back of the certificate a legend or legends describing the
restriction or restrictions.
6.5.2 OTHER RESTRICTIONS. In addition, the front or back of all
certificates shall include conspicuous written notice of any further
restrictions which may be imposed on the transferability of such shares.
Page 16 - 1997 RESTATED BYLAWS
6.6 TRANSFER OF SHARES. Transfer of shares of the Corporation shall be
made only on the stock transfer books of the Corporation pursuant to
authorization or document of transfer made by the holder of record thereof or by
his or her legal representative, who shall furnish proper evidence of authority
to transfer, or by his or her attorney-in-fact authorized by power of attorney
duly executed and filed with the Secretary of the Corporation. All certificates
surrendered to the Corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificates for a like number of
shares shall have been surrendered and cancelled.
6.7 LOST OR DESTROYED CERTIFICATES. In the case of a lost, destroyed or
mutilated certificate, a new certificate may be issued therefor upon such terms
and indemnity to the Corporation as the Board may prescribe.
6.8 TRANSFER AGENT AND REGISTRAR. The Board may from time to time appoint
one or more Transfer Agents and one or more Registrars for the shares of the
Corporation, with such powers and duties as the Board shall determine by
resolution.
6.9 OFFICER CEASING TO ACT. In case any officer who has signed or whose
facsimile signature has been placed upon a stock certificate shall have ceased
to be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if the signer were such officer at the date
of its issuance.
6.10 FRACTIONAL SHARES. The Corporation shall not issue certificates for
fractional shares.
SECTION 7
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its shareholders
and Board and such other records as may be necessary or advisable.
SECTION 8
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year, provided
that if a different fiscal year is at any time selected for purposes of federal
income taxes, the fiscal year shall be the year so selected.
SECTION 9
SEAL
The seal of the Corporation, if any, shall consist of the name of the
Corporation and the state of its incorporation.
Page 17 - 1997 RESTATED BYLAWS
SECTION 10
INDEMNIFICATION
10.1 DIRECTORS AND OFFICERS. The Corporation shall indemnify its directors
and officers to the fullest extent not prohibited by law.
10.2 EMPLOYEES AND OTHER AGENTS. The Corporation shall have the power to
indemnify its employees and other agents to the fullest extent not prohibited by
law.
10.3 NO PRESUMPTION OF BAD FAITH. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of NOLO CONTENDERE or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of this Corporation, or, with respect to
any criminal proceeding, that the person had reasonable cause to believe that
the conduct was unlawful.
10.4 ADVANCES OF EXPENSES. The expenses incurred by a director or officer
in any proceeding shall be paid by the Corporation in advance at the written
request of the director or officer, if the director or officer:
10.4.1 Furnishes the Corporation a written affirmation of such
person's good faith belief that such person is entitled to be indemnified by the
Corporation; and
10.4.2 Furnishes the Corporation a written undertaking to repay such
advance to the extent that it is ultimately determined by a court that such
person is not entitled to be indemnified by the Corporation. Such advances
shall be made without regard to the person's ability to repay such expenses and
without regard to the person's ultimate entitlement to indemnification under
this Bylaw or otherwise.
10.5 ENFORCEMENT. Without the necessity of entering into an express
contract, all rights to indemnification and advances under this Bylaw shall be
deemed to be contractual rights and be effective to the same extent and as if
provided for in a contract between the Corporation and the director or officer
who serves in such capacity at any time while this Bylaw and any other
applicable law, if any, are in effect. Any right to indemnification or advances
granted by this Bylaw to a director or officer shall be enforceable by or on
behalf of the person holding such right in any court of competent jurisdiction
if (a) the claim for indemnification or advances is denied, in whole or in part,
or (b) no disposition of such claim is made within ninety (90) days of request
thereof. The claimant in such enforcement action, if successful in whole or in
part, shall be entitled to be also paid the expense of prosecuting the claim.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition when the required affirmation and undertaking
have been tendered to the Corporation) that the claimant has not met the
standards of conduct which makes it permissible under the law for the
Corporation to indemnify the claimant, but the burden of
Page 18 - 1997 RESTATED BYLAWS
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or its shareholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
10.6 NONEXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
Bylaw shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of articles of incorporation,
bylaws, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in the person's official capacity and as to action in another
capacity while holding office. The Corporation is specifically authorized to
enter into individual contracts with any or all of its directors, officers,
employees or agents respecting indemnification and advances to the fullest
extent not prohibited by law.
10.7 SURVIVAL OF RIGHTS. The rights conferred on any person by this Bylaw
shall continue as to a person who has ceased to be a director, officer, employee
or other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
10.8 INSURANCE. To the fullest extent not prohibited by law, the
Corporation, upon approval by the Board of Directors, may purchase insurance on
behalf of any person required or permitted to be indemnified pursuant to this
Bylaw.
10.9 AMENDMENTS TO LAW. For purposes of this Bylaw, the meaning of "law"
within the phrase "to the fullest extent not prohibited by law" shall include,
but not be limited to, the Oregon Business Corporation Act, as the same exists
on the date hereof or as it may be amended; provided, however, that in the case
of any such amendment, such amendment shall apply only to the extent that it
permits the Corporation to provide broader indemnification rights than the Act
permitted the Corporation to provide prior to such amendment.
10.10 SAVINGS CLAUSE. If this Bylaw or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall indemnify each director, officer or other agent to the fullest
extent permitted by any applicable portion of this Bylaw that shall not have
been invalidated, or by any other applicable law.
10.11 CERTAIN DEFINITIONS. For purposes of this Section, the following
definitions shall apply:
10.11.1 The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement and appeal
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of any threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Corporation or otherwise and whether civil,
criminal, administrative or investigative, in which the director or officer may
be or may have been involved as a party or otherwise by reason of the fact that
the director or officer is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
10.11.2 The term "expenses" shall be broadly construed and shall
include, without limitation, all costs, charges and expenses (including fees and
disbursements of attorneys, accountants and other experts) actually and
reasonably incurred by a director or officer in connection with any proceeding,
all expenses of investigations, judicial or administrative proceedings or
appeals, and any expenses of establishing a right to indemnification under these
Bylaws, but shall not include amounts paid in settlement, judgments or fines.
10.11.3 "Corporation" shall mean In Focus Systems, Inc. and any
successor corporation thereof.
10.11.4 Reference to a "director," "officer," "employee" or "agent"
of the Corporation shall include, without limitation, situations where such
person is serving at the request of the Corporation as a director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
10.11.5 References to "other enterprises" shall include employee
benefit plans. References to "fines" shall include any excise taxes assessed on
a person with respect to any employee benefit plan. References to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants, or beneficiaries. A person who
acted in good faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Bylaw.
SECTION 11
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board at any regular or special meeting of the Board; provided,
however, that the shareholders, in amending or repealing a particular Bylaw, may
provide expressly that the Board may not amend or repeal that Bylaw. The
shareholders may also make, alter, amend and repeal the Bylaws of the
Corporation at any annual meeting or at a special meeting called for that
purpose. All Bylaws made by the Board may be amended, repealed, altered or
Page 20 - 1997 RESTATED BYLAWS
modified by the shareholders at any regular or special meeting called for that
purpose. The foregoing Bylaws were adopted by the Board of Directors of the
Corporation on February 25, 1997 and the Secretary of the Corporation was
empowered to authenticate such Bylaws by his signature below.
___________________________________
Michael D. Yonker, Secretary
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