EXHIBIT 3.2
RESTATED BYLAWS
OF
ACTIVE VOICE CORPORATION
RESTATED BYLAWS
OF
ACTIVE VOICE CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE I..................................................................................1
1.1 ANNUAL MEETING...........................................................1
1.1.1 TIME AND PLACE OF MEETING.........................................1
1.1.2 BUSINESS CONDUCTED AT MEETING.....................................1
1.2 SPECIAL MEETINGS.........................................................2
1.3 NOTICE OF MEETINGS.......................................................3
1.3.1 NOTICE OF SPECIAL MEETING.........................................3
1.3.2 PROPOSED ARTICLES OF AMENDMENT, MERGER, EXCHANGE,
SALE, LEASE, OR DISPOSITION......................................3
1.3.3 PROPOSED DISSOLUTION..............................................3
1.3.4 DECLARATION OF MAILING............................................4
1.3.5 WAIVER OF NOTICE..................................................4
1.4 QUORUM; VOTE REQUIREMENT.................................................4
1.5 ADJOURNED MEETINGS.......................................................4
1.6 FIXING RECORD DATE.......................................................5
1.7 SHAREHOLDERS' LIST FOR MEETING...........................................5
1.8 RATIFICATION.............................................................5
1.9 ACTION BY SHAREHOLDERS WITHOUT A MEETING.................................5
1.10 TELEPHONIC MEETINGS......................................................6
ARTICLE II.................................................................................6
2.1 RESPONSIBILITY OF BOARD OF DIRECTORS.....................................6
2.2 NUMBER OF DIRECTORS; QUALIFICATION.......................................6
2.3 ELECTION OF DIRECTORS; NOMINATIONS.......................................7
2.3.1 ELECTION AND TERM OF OFFICE.......................................7
2.3.2 NOMINATIONS FOR DIRECTORS.........................................7
2.4 VACANCIES................................................................8
2.5 REMOVAL..................................................................8
2.6 RESIGNATION..............................................................9
2.7 ANNUAL MEETING...........................................................9
2.8 REGULAR MEETINGS.........................................................9
2.9 SPECIAL MEETINGS.........................................................9
2.10 NOTICE OF MEETING........................................................9
2.11 QUORUM OF DIRECTORS.....................................................10
2.12 DISSENT BY DIRECTORS....................................................10
2.13 ACTION BY DIRECTORS WITHOUT A MEETING...................................10
2.14 TELEPHONIC MEETINGS.....................................................11
2.15 COMPENSATION............................................................11
2.16 COMMITTEES..............................................................11
ARTICLE III...............................................................................12
3.1 APPOINTMENT.............................................................12
3.2 QUALIFICATION...........................................................12
3.3 OFFICERS ENUMERATED.....................................................12
3.3.1 CHAIRMAN OF THE BOARD............................................12
3.3.2 PRESIDENT........................................................12
3.3.3 VICE PRESIDENTS..................................................13
3.3.4 SECRETARY........................................................13
3.3.5 TREASURER........................................................13
3.4 DELEGATION..............................................................14
3.5 RESIGNATION.............................................................14
3.6 REMOVAL.................................................................14
3.7 VACANCIES...............................................................14
3.8 OTHER OFFICERS AND AGENTS...............................................14
3.9 COMPENSATION............................................................14
3.10 GENERAL STANDARDS FOR OFFICERS..........................................15
ARTICLE IV................................................................................15
4.1 CONTRACTS...............................................................15
4.2 CHECKS, DRAFTS, ETC.....................................................15
4.3 DEPOSITS................................................................15
ARTICLE V.................................................................................15
5.1 ISSUANCE OF SHARES......................................................15
5.2 CERTIFICATES OF STOCK...................................................15
5.3 STOCK RECORDS...........................................................16
5.4 RESTRICTIONS ON TRANSFER................................................17
5.5 TRANSFERS...............................................................17
ARTICLE VI................................................................................18
ARTICLE VII...............................................................................18
ARTICLE VIII..............................................................................18
ARTICLE IX................................................................................18
ARTICLE X.................................................................................18
10.1 DEFINITIONS.............................................................18
10.2 MANDATORY INDEMNIFICATION...............................................18
10.3 INSURANCE...............................................................19
10.4 CHANGES IN LAW..........................................................19
10.5 EXCLUSIVITY; NATURE OF RIGHTS; AMENDMENT................................19
ARTICLE XI................................................................................19
11.1 COMMUNICATIONS BY FACSIMILE.............................................19
11.2 INSPECTOR OF ELECTIONS..................................................19
11.3 RULES OF ORDER..........................................................20
11.4 CONSTRUCTION............................................................21
11.5 SEVERABILITY............................................................21
ARTICLE XII...............................................................................21
ARTICLE XIII..............................................................................21
RESTATED BYLAWS
OF
ACTIVE VOICE CORPORATION
These Bylaws are promulgated pursuant to the Washington Business
Corporation Act, as set forth in Title 23B of the Revised Code of Washington
(the "Act").
ARTICLE I
SHAREHOLDERS
1.1 ANNUAL MEETING.
1.1.1 TIME AND PLACE OF MEETING. The annual meeting of the
shareholders of the corporation for the election of directors and for the
transaction of such other business as may properly come before the meeting shall
be held each year at a place, day, and time to be set by the Board of Directors.
1.1.2 BUSINESS CONDUCTED AT MEETING.
(a) At an annual meeting of shareholders, an item of
business may be conducted, and a proposal may be considered and acted upon, only
if such item or proposal is brought before the annual meeting (i) by, or at the
direction of, the Board of Directors, or (ii) by any shareholder of the
corporation who is entitled to vote at the meeting and who complies with the
procedures set forth in the remainder of this Section 1.1.2. This Section 1.1.2
shall not apply to matters of procedure that, pursuant to Section 11.3(a) of
these Bylaws, are subject to the authority of the chairman of the meeting.
(b) For an item of business or proposal to be brought
before an annual meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the Secretary of the corporation. To be
timely, a shareholder's notice must be delivered to, or mailed and received at,
the principal office of the corporation (a) not less than one hundred twenty
(120) days prior to the first anniversary of the date that the corporation's
proxy statement was first released to shareholders in connection with the
previous year's annual meeting; or (b) a reasonable time before the corporation
begins to print and mail its proxy materials if the date of the current year's
annual meeting has been changed by more than thirty (30) days from the date of
the previous year's meeting.
(c) A shareholder's notice to the Secretary under
Section 1.1.2(b) shall set forth, as to each item of business or proposal the
shareholder intends to bring before the annual meeting (i) a brief description
of the item of business or proposal and the reasons for bringing it before the
annual meeting, (ii) the name and address, as they appear on the corporation's
books, of the shareholder and of any other shareholders that the shareholder
knows or anticipates will support the item of business or proposal, (iii) the
number and class of shares of stock of the corporation that are beneficially
owned on the date of such notice by the shareholder and by any such other
shareholders, and (iv) any financial interest of the shareholder or any such
other shareholders in such item of business or proposal.
(d) The Board of Directors, or a designated committee
thereof, may reject a shareholder's notice that is not timely given in
accordance with the terms of Section 1.1.2(b). If the Board of Directors, or a
designated committee thereof, determines that the information provided in a
shareholder's notice does not satisfy the requirements of Section 1.1.2(c) in
any material respect, the Secretary of the corporation shall notify the
shareholder of the deficiency in the notice. The shareholder shall have an
opportunity to cure the deficiency by providing additional information to the
Secretary within such period of time, not to exceed five (5) days from the date
such deficiency notice is given to the shareholder, as the Board of Directors or
such committee shall reasonably determine. If the deficiency is not cured within
such period, or if the Board of Directors or such committee determines that the
additional information provided by the shareholder, together with information
previously provided, does not satisfy the requirements of Section 1.1.2(c) in
any material respect, then the Board of Directors or such committee may reject
the shareholder's notice.
(e) Notwithstanding the procedures set forth in
Section 1.1.2(d), if a shareholder desires to bring an item of business or
proposal before an annual meeting, and neither the Board of Directors nor any
committee thereof has made a prior determination of whether the shareholder has
complied with the procedures set forth in this Section 1.1.2 in connection with
such item of business or proposal, then the chairman of the annual meeting shall
determine and declare at the annual meeting whether the shareholder has so
complied. If the chairman determines that the shareholder has so complied, then
the chairman shall so state and ballots shall be provided for use at the meeting
with respect to such item of business or proposal. If the chairman determines
that the shareholder has not so complied, then, unless the chairman, in his sole
and absolute discretion, determines to waive such compliance, the chairman shall
state that the shareholder has not so complied and the item of business or
proposal shall not be brought before the annual meeting.
(f) This Section 1.1.2 shall not prevent the
consideration and approval or disapproval at the annual meeting of reports of
officers, directors and committees of the Board of Directors, but, in connection
with such reports, no item of business may be conducted, and no proposal may be
considered and acted upon, unless there has been compliance with the procedures
set forth in this Section 1.1.2 in connection therewith.
1.2 SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose or purposes may be called at any time by the Board of Directors or by
the Chairman of the Board (if one be appointed) or by the President or by one or
more shareholders holding shares representing not less than one-tenth (1/10) of
all the votes entitled to be cast on any issue proposed to be considered at that
meeting, to be held at such time and place as the Board or the Chairman (if one
be appointed) or the President may prescribe; provided, that, at any time when
the corporation is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), special meetings of the
shareholders for any purpose or purposes may be called at any time only by the
Board of Directors or the Chairman of the Board (if one be appointed) or the
President or one or more shareholders holding shares representing not less than
twenty-five percent (25%) of all the votes entitled to be cast on any issue
proposed to be considered at that meeting.
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If a special meeting is called by any person or persons other than the
Board of Directors or the Chairman of the Board (if one be appointed) or the
President, then a written demand, describing with reasonable clarity the purpose
or purposes for which the meeting is called and specifying the general nature of
the business proposed to be transacted, shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
Secretary of the corporation. Upon receipt of such a demand, the Secretary shall
cause notice of such meeting to be given, within thirty (30) days after the date
the demand was delivered to the Secretary, to the shareholders entitled to vote,
in accordance with the provisions of Section 1.3 of these Bylaws.
1.3 NOTICE OF MEETINGS. Except as otherwise provided below, the
Secretary, Assistant Secretary, or any transfer agent of the corporation shall
give, in any manner permitted by law, not less than ten (10) nor more than sixty
(60) days before the date of any meeting of shareholders, written notice stating
the place, day, and time of the meeting to each shareholder of record entitled
to vote at such meeting. If mailed, notice to a shareholder with first-class
postage prepaid, correctly addressed to the shareholder at the shareholder's
address as it appears on the current record of shareholders of the corporation,
shall be effective when mailed. Otherwise, written notice shall be effective at
the earliest of the following: (a) when received, (b) five (5) days after its
deposit in the United States mail, as evidenced by the postmark, if mailed with
first-class postage prepaid and correctly addressed, or (c) on the date shown on
the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee.
1.3.1 NOTICE OF SPECIAL MEETING. In the case of a special
meeting, the written notice shall also state with reasonable clarity the purpose
or purposes for which the meeting is called and the general nature of the
business proposed to be transacted at the meeting. No business other than that
within the purpose or purposes specified in the notice may be transacted at a
special meeting.
1.3.2 PROPOSED ARTICLES OF AMENDMENT, MERGER, EXCHANGE, SALE,
LEASE, OR DISPOSITION. If the business to be conducted at any meeting includes
any proposed amendment to the Articles of Incorporation or any proposed merger
or exchange of shares, or any proposed sale, lease, exchange, or other
disposition of all or substantially all of the property and assets (with or
without the goodwill) of the corporation not in the usual or regular course of
its business, then the written notice shall state that the purpose or one of the
purposes is to consider the proposed amendment or plan of merger, exchange of
shares, sale, lease, exchange, or other disposition, as the case may be, shall
describe the proposed action with reasonable clarity, and shall be accompanied
by a copy of the proposed amendment or plan. Written notice of such meeting
shall be given to each shareholder of record, whether or not entitled to vote at
such meeting, not less than twenty (20) days before such meeting, in the manner
provided in Section 1.3 above.
1.3.3 PROPOSED DISSOLUTION. If the business to be conducted at
any meeting includes the proposed voluntary dissolution of the corporation, then
the written notice shall state that the purpose or one of the purposes is to
consider the advisability thereof. Written notice of such meeting shall be given
to each shareholder of record, whether or not entitled to vote at such
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meeting, not less than twenty (20) days before such meeting, in the manner
provided in Section 1.3 above.
1.3.4 DECLARATION OF MAILING. A declaration of the mailing or
other means of giving any notice of any shareholders' meeting, executed by the
Secretary, Assistant Secretary, or any transfer or other agent of the
corporation giving notice on its behalf, shall be prima facie evidence of the
giving of such notice.
1.3.5 WAIVER OF NOTICE. A shareholder may waive notice of any
meeting at any time, either before or after such meeting. Except as provided
below, the waiver must be in writing, be signed by the shareholder entitled to
the notice, and be delivered to the corporation for inclusion in the minutes or
filing with the corporate records. A shareholder's attendance at a meeting in
person or by proxy waives objection to lack of notice or defective notice of the
meeting unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting on the ground that
the meeting is not lawfully called or convened. In the case of a special
meeting, or an annual meeting at which fundamental corporate changes are
considered, a shareholder waives objection to consideration of a particular
matter that is not within the purpose or purposes described in the meeting
notice unless the shareholder objects to considering the matter when it is
presented.
1.4 QUORUM; VOTE REQUIREMENT. A quorum shall exist at any meeting of
shareholders if a majority of the votes entitled to be cast is represented in
person or by proxy. Once a share is represented for any purpose at a meeting
other than solely to object to holding the meeting or transacting business at
the meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting. Subject to the foregoing, the
determination of the voting groups entitled to vote (as required by law), and
the quorum and voting requirements applicable thereto, must be made separately
for each matter being considered at a meeting. In the case of any meeting of
shareholders that is adjourned more than once because of the failure of a quorum
to attend, those who attend the third convening of such meeting, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors, provided that the percentage of shares represented at the
third convening of such meeting shall not be less than one-third of the shares
entitled to vote.
If a quorum exists, action on a matter (other than the election of
directors) is approved by a voting group if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action unless a greater number of affirmative votes is required by law or by
the Articles of Incorporation.
1.5 ADJOURNED MEETINGS. An adjournment or adjournments of any
shareholders' meeting, whether by reason of the failure of a quorum to attend or
otherwise, may be taken to such date, time, and place as the chairman of the
meeting may determine without new notice being given if the date, time, and
place are announced at the meeting at which the adjournment is taken. However,
if the adjournment is for more than one hundred twenty (120) days from the date
set for the original meeting, a new record date for the adjourned meeting shall
be fixed and a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the adjourned meeting, in accordance
with the provisions of Section 1.3 of these Bylaws. At
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any adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting. Any meeting at which directors are
to be elected shall be adjourned only from day to day until such directors are
elected.
1.6 FIXING RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders (or, subject to
Section 1.5 above, any adjournment thereof), the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than seventy (70) days prior to the
meeting. If no such record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, then the day
before the first notice is delivered to shareholders shall be the record date
for such determination of shareholders. If no notice is given because all
shareholders entitled to notice have waived notice, then the record date for the
determination of shareholders entitled to notice of or to vote at a meeting
shall be the date on which the last such waiver of notice was obtained. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof, except as provided in Section 1.5 of these Bylaws. If no
notice is given because all shareholders entitled to notice have signed a
consent as described in Section 1.9 below, the record date for determining
shareholders entitled to take action without a meeting is the date the first
shareholder signs the consent.
1.7 SHAREHOLDERS' LIST FOR MEETING. The corporation shall cause to be
prepared an alphabetical list of the names of all of its shareholders on the
record date who are entitled to notice of a shareholders' meeting or any
adjournment thereof. The list must be arranged by voting group (and within each
voting group by class or series of shares) and show the address of and the
number of shares held by each shareholder. The shareholders' list must be
available for inspection by any shareholder, beginning ten (10) days prior to
the meeting and continuing through the meeting, at the principal office of the
corporation or at a place identified in the meeting notice in the city where the
meeting will be held. Such list shall be produced and kept open at the time and
place of the meeting. During such ten-day period, and during the whole time of
the meeting, the shareholders' list shall be subject to the inspection of any
shareholder, or the shareholder's agent or attorney. In cases where the record
date is fewer than ten (10) days prior to the meeting because notice has been
waived by all shareholders, the Secretary shall keep such record available for a
period from the date the first waiver of notice was delivered to the date of the
meeting. Failure to comply with the requirements of this section shall not
affect the validity of any action taken at the meeting.
1.8 RATIFICATION. Subject to the requirements of RCW 23B.08.730,
23B.17.020, and 23B.19.040, any contract, transaction, or act of the corporation
or of any director or officer of the corporation that shall be authorized,
approved, or ratified by the affirmative vote of a majority of shares
represented at a meeting at which a quorum is present shall, insofar as
permitted by law, be as valid and as binding as though ratified by every
shareholder of the corporation.
1.9 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action which may be or
which is required by law to be taken at any meeting of shareholders may be
taken, without a meeting or notice of a meeting, if one or more consents in
writing, setting forth the action so taken, are signed by all of the
shareholders entitled to vote or, in the place of any one or more of such
shareholders, by a person holding a valid proxy to vote with respect to the
subject matter thereof,
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and are delivered to the corporation for inclusion in the minutes or filing with
the corporate records. If notice of the proposed action to be taken by unanimous
consent of the voting shareholders is required by law to be given to nonvoting
shareholders, the corporation must give its nonvoting shareholders written
notice of the proposed action at least ten (10) days before the action is taken.
The notice must contain or be accompanied by the same material that, by law,
would have been required to be sent to nonvoting shareholders in a notice of
meeting at which the proposed action would have been submitted to such
shareholders for action. Action taken by unanimous written consent is effective
when all consents are in possession of the corporation, unless the consent
specifies a later effective date. Such consent shall have the same force and
effect as a meeting vote of shareholders and may be described as such in any
articles or other document filed with the Secretary of State of the State of
Washington.
1.10 TELEPHONIC MEETINGS. Shareholders may participate in a meeting by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other at the same
time, and participation by such means shall constitute presence in person at a
meeting.
ARTICLE II
BOARD OF DIRECTORS
2.1 RESPONSIBILITY OF BOARD OF DIRECTORS. The business and affairs and
property of the corporation shall be managed under the direction of a Board of
Directors. A director shall discharge the duties of a director, including duties
as a member of a committee, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner the director reasonably believes to be in the best interests of the
corporation. In discharging the duties of a director, a director is entitled to
rely on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by: (a) one or
more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented; (b) legal
counsel, public accountants, or other persons as to matters the director
reasonably believes are within the person's professional or expert competence;
or (c) a committee of the Board of Directors of which the director is not a
member, if the director reasonably believes the committee merits confidence. A
director is not acting in good faith if the director has knowledge concerning
the matter in question that makes reliance otherwise permitted above
unwarranted. The creation of, delegation of authority to, or action by a
committee does not alone constitute compliance by a director with the standards
of conduct imposed by law upon directors. A director is not liable for any
action taken as a director, or any failure to take any action, if the director
performed the duties of the director's office in compliance with this section.
2.2 NUMBER OF DIRECTORS; QUALIFICATION. The exact number of directors of
the corporation shall be six (6) until amended in accordance with these Bylaws.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires. If a
greater or lesser number of directors than is specified in this section is
elected by the shareholders, then election of that number shall automatically be
deemed to constitute an amendment to these Bylaws. No director need be a
shareholder of the corporation or a resident of Washington. Each director must
be at least eighteen (18) years of age.
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2.3 ELECTION OF DIRECTORS; NOMINATIONS.
2.3.1 ELECTION AND TERM OF OFFICE. At each annual meeting of
shareholders, the shareholders shall elect directors. Each director shall hold
office until the next succeeding annual meeting or, in the case of staggered
terms as permitted by RCW 23B.08.060, for the term for which he is elected, and
in each case until his successor shall have been elected and qualified.
2.3.2 NOMINATIONS FOR DIRECTORS.
(a) Nominations of candidates for election as
directors at an annual meeting of shareholders may only be made (i) by, or at
the direction of, the Board of Directors, or (ii) by any shareholder of the
corporation who is entitled to vote at the meeting and who complies with the
procedures set forth in the remainder of this Section 2.3.2.
(b) If a shareholder proposes to nominate one or more
candidates for election as directors at an annual meeting, the shareholder must
have given timely notice thereof in writing to the Secretary of the corporation.
To be timely, a shareholder's notice must be delivered to, or mailed and
received at, the principal office of the corporation (i) not less than one
hundred twenty (120) days prior to the first anniversary of the date that the
corporation's proxy statement was first released to shareholders in connection
with the previous year's annual meeting; or (ii) a reasonable time before the
corporation begins to print and mail its proxy materials if the date of the
current year's annual meeting has been changed by more than thirty (30) days
from the date of the previous year's meeting.
(c) A shareholder's notice to the Secretary under
Section 2.3.2(b) shall set forth, as to each person whom the shareholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the number and class of shares of stock of the
corporation that are beneficially owned on the date of such notice by such
person, and (iv) if the corporation at such time has any security registered
pursuant to Section 12 of the Exchange Act, any other information relating to
such person required to be disclosed in solicitations of proxies with respect to
nominees for election as directors pursuant to Regulation 14A under the Exchange
Act, including but not limited to information required to be disclosed by
Schedule 14A of Regulation 14A, and any other information that the shareholder
would be required to file with the Securities and Exchange Commission in
connection with the shareholder's nomination of such person as a candidate for
director or the shareholder's opposition to any candidate for director nominated
by, or at the direction of, the Board of Directors. In addition to the above
information, a shareholder's notice to the Secretary under Section 2.3.2(b)
shall (A) set forth (i) the name and address, as they appear on the
corporation's books, of the shareholder and of any other shareholders that the
shareholder knows or anticipates will support any candidate or candidates
nominated by the shareholder, and (ii) the number and class of shares of stock
of the corporation that are beneficially owned on the date of such notice by the
shareholder and by any such other shareholders, and (B) be accompanied by a
written statement, signed and acknowledged by each candidate nominated by the
shareholder, that the candidate agrees to be so nominated and to serve as a
director of the corporation if elected at the annual meeting.
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(d) The Board of Directors, or a designated committee
thereof, may reject any shareholder's nomination of one or more candidates for
election as directors if the nomination is not made pursuant to a shareholder's
notice timely given in accordance with the terms of Section 2.3.2(b). If the
Board of Directors, or a designated committee thereof, determines that the
information provided in a shareholder's notice does not satisfy the requirements
of Section 2.3.2(c) in any material respect, the Secretary of the corporation
shall notify the shareholder of the deficiency in the notice. The shareholder
shall have an opportunity to cure the deficiency by providing additional
information to the Secretary within such period of time, not to exceed five (5)
days from the date such deficiency notice is given to the shareholder, as the
Board of Directors or such committee shall reasonably determine. If the
deficiency is not cured within such period, or if the Board of Directors or such
committee determines that the additional information provided by the
shareholder, together with information previously provided, does not satisfy the
requirements of Section 2.3.2(c) in any material respect, then the Board of
Directors or such committee may reject the shareholder's notice.
(e) Notwithstanding the procedures set forth in
Section 2.3.2(d), if a shareholder proposes to nominate one or more candidates
for election as directors at an annual meeting, and neither the Board of
Directors nor any committee thereof has made a prior determination of whether
the shareholder has complied with the procedures set forth in this Section 2.3.2
in connection with such nomination, then the chairman of the annual meeting
shall determine and declare at the annual meeting whether the shareholder has so
complied. If the chairman determines that the shareholder has so complied, then
the chairman shall so state and ballots shall be provided for use at the meeting
with respect to such nomination. If the chairman determines that the shareholder
has not so complied, then, unless the chairman, in his sole and absolute
discretion, determines to waive such compliance, the chairman shall state that
the shareholder has not so complied and the defective nomination shall be
disregard.
2.4 VACANCIES. Except as otherwise provided by law, any vacancy
occurring in the Board of Directors (whether caused by resignation, death, or
otherwise) may be filled by the affirmative vote of a majority of the directors
present at a meeting of the Board at which a quorum is present, or, if the
directors in office constitute less than a quorum, by the affirmative vote of a
majority of all of the directors in office. Notice shall be given to all of the
remaining directors that such vacancy will be filled at the meeting. However, if
the vacant office was held by a director elected by a voting group composed of
less than all of the voting shareholders, then the Board of Directors shall not
have the power to fill such vacancy. A director elected to fill any vacancy
shall hold office until the next meeting of shareholders at which directors are
elected, and until his successor shall have been elected and qualified.
2.5 REMOVAL. One or more members of the Board of Directors (including
the entire Board) may be removed, with or without cause, at a special meeting of
shareholders called expressly for that purpose. A director (or the entire Board)
may be removed if the number of votes cast in favor of removing such director
(or the entire Board) exceeds the number of votes cast against removal; provided
that, if a director (or the entire Board) has been elected by one or more voting
groups, only those voting groups may participate in the vote as to removal.
However, if the Articles of Incorporation grant shareholders the right to
cumulate their votes in the election of directors, a director may not be removed
if a number of votes sufficient to elect
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such director under cumulative voting (computed on the basis of the number of
votes actually cast at the meeting on the question of removal) is cast against
such director's removal.
2.6 RESIGNATION. A director may resign at any time by delivering written
notice to the Board of Directors, its Chairman, the President, or the Secretary.
A resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
2.7 ANNUAL MEETING. The first meeting of each newly elected Board of
Directors shall be known as the annual meeting thereof and shall be held without
notice immediately after the annual shareholders' meeting or any special
shareholders' meeting at which a Board is elected. Such meeting shall be held at
the same place as such shareholders' meeting unless some other place shall be
specified by resolution of the shareholders.
2.8 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held at such place, day, and time as shall from time to time be fixed by
resolution of the Board without notice other than the delivery of such
resolution as provided in Section 2.10 below.
2.9 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the President or the Chairman of the Board (if one be appointed) or
any two or more directors, to be held at such place, day, and time as specified
by the person or persons calling the meeting.
2.10 NOTICE OF MEETING. Notice of the place, day, and time of any
meeting of the Board of Directors for which notice is required shall be given,
at least two (2) days preceding the day on which the meeting is to be held, by
the Secretary or an Assistant Secretary, or by the person calling the meeting,
in any manner permitted by law, including orally. Any oral notice given by
personal communication over the telephone or otherwise may be communicated
either to the director or to a person at the office of the director who, the
person giving the notice has reason to believe, will promptly communicate it to
the director. Notice shall be deemed to have been given on the earliest of (a)
the day of actual receipt, (b) five (5) days after the day on which written
notice is deposited in the United States mail, as evidenced by the postmark,
with first-class postage prepaid and correctly addressed, or (c) on the date
shown on the return receipt, if sent by registered or certified mail, return
receipt requested, and the receipt is signed by or on behalf of the addressee.
No notice of any regular meeting need be given if the place, day, and
time thereof have been fixed by resolution of the Board of Directors and a copy
of such resolution has been given to each director, either by personally
delivering the copy to the director at least two (2) days, or by depositing the
copy in the United States mail with first-class postage prepaid and correctly
addressed to the director at the director's address as it appears on the records
of the corporation at least five (5) days (as evidenced by the postmark), prior
to the day of the first meeting held in pursuance thereof.
Notice of a meeting of the Board of Directors need not be given to any
director if it is waived by the director in writing, whether before or after
such meeting is held. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting unless required by law, the
Articles of Incorporation, or these Bylaws.
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A director's attendance at or participation in a meeting shall
constitute a waiver of notice of such meeting except when a director attends or
participates in a meeting for the express purpose of objecting on legal grounds
prior to or at the beginning of the meeting (or promptly upon the director's
arrival) to the holding of the meeting or the transaction of any business and
does not thereafter vote for or assent to action taken at the meeting. Any
meeting of the Board of Directors shall be a legal meeting without any notice
thereof having been given if all of the directors have received valid notice
thereof, are present without objecting, or waive notice thereof, or any
combination thereof.
2.11 QUORUM OF DIRECTORS. Except in particular situations where a lesser
number is expressly permitted by law, and unless a greater number is required by
the Articles of Incorporation, a majority of the number of directors specified
in or fixed in accordance with these Bylaws shall constitute a quorum for the
transaction of business, and the affirmative vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. If the number of directors in office at any time is less than the
number specified in or fixed in accordance with these Bylaws, then a quorum
shall consist of a majority of the number of directors in office; provided that
in no event shall a quorum consist of fewer than one-third of the number
specified in or fixed in accordance with these Bylaws.
Directors at a meeting of the Board of Directors at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, provided such withdrawal does not reduce the number of
directors attending the meeting below the level of a quorum.
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting of the Board of Directors to another time and
place. If the meeting is adjourned for more than forty-eight (48) hours, then
notice of the time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section 2.10 of these
Bylaws, to the directors who were not present at the time of the adjournment.
2.12 DISSENT BY DIRECTORS. Any director who is present at any meeting of
the Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless the director objects at the
beginning of the meeting (or promptly upon the director's arrival) to the
holding of, or the transaction of business at, the meeting; or unless the
director's dissent or abstention shall be entered in the minutes of the meeting;
or unless the director delivers written notice of the director's dissent or
abstention to the presiding officer of the meeting before the adjournment
thereof or to the corporation within a reasonable time after the adjournment of
the meeting. Such right to dissent or abstention shall not be available to any
director who votes in favor of such action.
2.13 ACTION BY DIRECTORS WITHOUT A MEETING. Any action required by law
to be taken or which may be taken at a meeting of the Board of Directors may be
taken without a meeting if one or more consents in writing, setting forth the
action so taken, shall be signed either before or after the action so taken by
all of the directors and delivered to the corporation for inclusion in the
minutes or filing with the corporate records. Such consent shall have the same
effect as a meeting vote. Action taken under this section is effective when the
last director signs the consent, unless the consent specifies a later effective
date.
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2.14 TELEPHONIC MEETINGS. Except as may be otherwise restricted by the
Articles of Incorporation, members of the Board of Directors may participate
in a meeting of the Board by any means of communication by which all directors
participating in the meeting may simultaneously hear each other during the
meeting. Participation by such means shall constitute presence in person at a
meeting.
2.15 COMPENSATION. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, and may be paid a fixed sum or a
stated salary as a director, for attendance at each meeting of the Board. No
such payment shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
2.16 COMMITTEES. The Board of Directors, by resolution adopted by the
greater of (a) a majority of all of the directors in office, or (b) the number
of directors required by the Articles of Incorporation or these Bylaws to take
action may from time to time create, and appoint individuals to, one or more
committees, each of which must have at least two (2) members. If a committee is
formed for the purpose of exercising functions of the Board, the committee must
consist solely of directors. If the only function of a committee is to study and
make recommendations for action by the full Board, the committee need not
consist of directors. Members of a committee composed solely of directors, in
fulfilling their standard of conduct, may rely upon Section 2.1 above.
Committees of directors may exercise the authority of the Board of Directors to
the extent specified by such resolution or in the Articles of Incorporation or
these Bylaws. However, no committee shall:
(a) authorize or approve a distribution (as defined in RCW
23B.01.400) except according to a general formula or method prescribed by the
Board of Directors;
(b) approve or propose to shareholders action that by law is
required to be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of its
committees;
(d) amend the Articles of Incorporation;
(e) adopt, amend, or repeal Bylaws;
(f) approve a plan of merger not requiring shareholder
approval; or
(g) authorize or approve the issuance or sale or contract for
sale of shares, or determine the designation and relative rights, preferences,
and limitations of a class or series of shares, except that the Board of
Directors may authorize a committee of directors (or a senior executive officer
of the corporation) to do so within limits specifically prescribed by the Board
of Directors.
Committees shall be governed by the same provisions as govern the
meetings, actions without meetings, notice and waiver of notice, quorum and
voting requirements, and standards of conduct of the Board of Directors. The
Executive Committee (if one be established) shall meet periodically between
meetings of the full Board. All committees shall keep regular minutes of
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their meetings and shall cause them to be recorded in books kept for that
purpose at the office of the corporation.
ARTICLE III
OFFICERS
3.1 APPOINTMENT. The officers of the corporation shall be appointed
annually by the Board of Directors at its annual meeting held after the annual
meeting of the shareholders. If the appointment of officers is not held at such
meeting, such appointment shall be held as soon thereafter as a Board meeting
conveniently may be held. Except in the case of death, resignation, or removal,
each officer shall hold office until the next annual meeting of the Board and
until his successor is appointed and qualified.
3.2 QUALIFICATION. None of the officers of the corporation need be a
director, except as specified below. Any two or more of the corporate offices
may be held by the same person.
3.3 OFFICERS ENUMERATED. Except as otherwise provided by resolution of
the Board of Directors, the officers of the corporation and their respective
powers and duties shall be as follows:
3.3.1 CHAIRMAN OF THE BOARD. The Chairman of the Board (if
such an officer be appointed) shall be a director and shall perform such duties
as shall be assigned to him by the Board of Directors and in any employment
agreement. The Chairman shall preside at all meetings of the shareholders and at
all meetings of the Board at which he is present. The Chairman may sign deeds,
mortgages, bonds, contracts, and other instruments, except when the signing
thereof has been expressly delegated by the Board or by these Bylaws to some
other officer or agent of the corporation or is otherwise required by law to be
signed by some other officer or in some other manner. If the President dies or
becomes unable to act, the Chairman shall perform the duties of the President,
except as may be limited by resolution of the Board of Directors, with all the
powers of and subject to all the restrictions upon the President.
3.3.2 PRESIDENT. Subject to such supervisory powers as may be
given by the Board of Directors to the Chairman of the Board (if such an officer
be appointed), the President shall be the chief executive officer of the
corporation unless some other officer is so designated by the Board and, subject
to the control of the Board and the Executive Committee (if one be established),
shall supervise and control all of the assets, business, and affairs of the
corporation. If no Chairman of the Board has been appointed, the President shall
be a director. The President may sign certificates for shares of the
corporation, deeds, mortgages, bonds, contracts, and other instruments, except
when the signing thereof has been expressly delegated by the Board or by these
Bylaws to some other officer or agent of the corporation or is otherwise
required by law to be signed by some other officer or in some other manner. The
President shall vote the shares owned by the corporation in other corporations,
domestic or foreign, unless otherwise prescribed by law or resolution of the
Board. In general, the President shall perform all duties incident to the office
of President and such other duties as may be prescribed by the Board from time
to time. In the absence of the Chairman of the Board, the President, if a
director, shall preside over all meetings of the shareholders and over all
meetings of the Board of Directors. The President
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shall have the authority to appoint one or more Assistant Secretaries and
Assistant Treasurers, as he deems necessary.
3.3.3 VICE PRESIDENTS. If no Chairman of the Board has been
appointed, in the absence or disability of the President, the Vice Presidents,
if any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a Vice President designated by the Board shall perform all the duties of
the President and when so acting shall have all the powers of, and be subject to
all the restrictions upon, the President; provided that no such Vice President
shall assume the authority to preside as Chairman of meetings of the Board
unless such Vice President is a member of the Board. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be
respectively prescribed for them by the Board, these Bylaws, the President, or
the Chairman of the Board (if one be appointed).
3.3.4 SECRETARY. The Secretary shall:
(a) have responsibility for preparing minutes of
meetings of the shareholders and the Board of Directors and for
authenticating records of the corporation;
(b) see that all notices are duly given in accordance
with the provisions of Sections 1.3, 1.5, 2.8, and 2.10 of these
Bylaws and as required by law;
(c) be custodian of the corporate records and seal of
the corporation, if one be adopted;
(d) keep a register of the post office address of
each shareholder and director;
(e) attest certificates for shares of the corporation;
(f) have general charge of the stock transfer books
of the corporation;
(g) when required by law or authorized by resolution
of the Board of Directors, sign with the President, or other officer
authorized by the President or the Board, deeds, mortgages, bonds,
contracts, and other instruments; and
(h) in general, perform all duties incident to the
office of Secretary and such other duties as from time to time may be
assigned by the President or the Board of Directors.
In the absence of the Secretary, an Assistant Secretary may perform the
duties of the Secretary.
3.3.5 TREASURER. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such surety or sureties as the Board shall determine. The
Treasurer shall:
(a) have charge and custody of and be responsible for
all funds and securities of the corporation;
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(b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all
such moneys in the name of the corporation in banks, trust companies, or
other depositories selected in accordance with the provisions of these
Bylaws; and
(c) in general, perform all of the duties incident to
the office of Treasurer and such other duties as from time to time may
be assigned by the President or the Board of Directors.
In the absence of the Treasurer, an Assistant Treasurer may perform the
duties of the Treasurer.
3.4 DELEGATION. In case of the absence or inability to act of any
officer of the corporation and of each person herein authorized to act in his
place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any other officer or other person whom it may select.
3.5 RESIGNATION. Any officer may resign at any time by delivering notice
to the corporation. Any such resignation shall take effect at the time the
notice is delivered unless the notice specifies a later effective date. Unless
otherwise specified therein, acceptance of such resignation by the corporation
shall not be necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party.
3.6 REMOVAL. Any officer or agent may be removed by the Board with or
without cause. An officer empowered to appoint another officer or assistant
officer also has the power to remove any officer he would have the power to
appoint whenever in his judgment the best interests of the corporation would be
served thereby. The removal of an officer or agent shall be without prejudice to
the contract rights, if any, of the corporation or the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
3.7 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification, creation of a new office, or any other cause may be
filled by the Board of Directors for the unexpired portion of the term or for a
new term established by the Board.
3.8 OTHER OFFICERS AND AGENTS. One or more Vice Presidents and such
other officers and assistant officers as may be deemed necessary or advisable
may be appointed by the Board of Directors or, to the extent provided in Section
3.3.2 above, by the President. Such other officers and assistant officers shall
hold office for such periods, have such authorities, and perform such duties as
are provided in these Bylaws or as may be provided by resolution of the Board.
Any officer may be assigned by the Board any additional title that the Board
deems appropriate. The Board may delegate to any officer or agent the power to
appoint any such assistant officers or agents and to prescribe their respective
terms of office, authorities, and duties.
3.9 COMPENSATION. Compensation, if any, for officers and other agents
and employees of the corporation shall be determined by the Board of Directors,
or by the President to the extent such authority may be delegated to him by the
Board. No officer shall be prevented from
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receiving compensation in such capacity by reason of the fact that he is also a
director of the corporation.
3.10 GENERAL STANDARDS FOR OFFICERS. Officers with discretionary
authority shall discharge their duties under that authority in accordance with
the same standards of conduct applicable to directors as specified in Section
2.1 above (except for subsection (c) thereof).
ARTICLE IV
CONTRACTS, CHECKS AND DRAFTS
4.1 CONTRACTS. The Board of Directors may authorize any officer or
officers or agent or agents to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances.
Subject to the limitations set forth in RCW 23B.08.700 through
23B.08.730, 23B.17.020, and 23B.19.040, to the extent applicable:
(a) The corporation may enter into contracts and otherwise
transact business as vendor, purchaser, lender, borrower, or otherwise with its
directors and shareholders and with corporations, associations, firms, and
entities in which they are or may be or become interested as directors,
officers, shareholders, members, or otherwise.
(b) Any such contract or transaction shall not be affected or
invalidated or give rise to liability by reason of the director's or
shareholder's having an interest in the contract or transaction.
4.2 CHECKS, DRAFTS, ETC. All checks, drafts, and other orders for the
payment of money, notes, and other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers or agent or
agents of the corporation and in such manner as may be determined from time to
time by resolution of the Board of Directors.
4.3 DEPOSITS. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the Treasurer, subject to the
direction of the Board of Directors, may select.
ARTICLE V
STOCK
5.1 ISSUANCE OF SHARES. No shares of the corporation shall be issued
unless authorized by the Board of Directors, which authorization shall include
the maximum number of shares to be issued, the consideration to be received for
each share, and, if the consideration is in a form other than cash, the
determination of the value of the consideration.
5.2 CERTIFICATES OF STOCK. All shares of the corporation shall be
represented by certificates in such form, not inconsistent with the Articles of
Incorporation, as the Board of Directors may from time to time prescribe.
Certificates of stock shall be issued in numerical order and shall be signed by
the President or a Vice President, attested to by the Secretary or an
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Assistant Secretary, and sealed with the corporate seal, if any. If any
certificate is manually signed by a transfer agent or a transfer clerk and by a
registrar, the signatures of the President, Vice President, Secretary or
Assistant Secretary upon that certificate may be facsimiles that are engraved or
printed. If any person who has signed or whose facsimile signature has been
placed on a certificate no longer is an officer when the certificate is issued,
the certificate may nevertheless be issued with the same effect as if the person
were still an officer at the time of its issue. Every certificate of stock shall
state:
(a) The state of incorporation;
(b) The name of the registered holder of the shares
represented thereby;
(c) The number and class of shares, and the designation of the
series, if any, which such certificate represents;
(d) If the corporation is authorized to issue different
classes of shares or different series within a class, either a summary of (on
the face or back of the certificate), or a statement that the corporation will
furnish to any shareholder upon written request and without charge a summary of,
the designations, relative rights, preferences, and limitations applicable to
each class and the variations in rights, preferences and limitations determined
for each series, and the authority of the Board of Directors to determine
variations for future series; and
(e) If the shares are subject to transfer or other
restrictions under applicable securities laws or contracts with the corporation,
either a complete description of or a reference to the existence and general
nature of such restrictions on the face or back of the certificate.
5.3 STOCK RECORDS. The corporation or its agent shall maintain at the
registered office or principal office of the corporation, or at the office of
the transfer agent or registrar of the corporation, if one be designated by the
Board of Directors, a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders in
alphabetical order by class of shares showing the number and class of shares
held by each. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes.
5.4 RESTRICTIONS ON TRANSFER. The Board of Directors shall have the
authority to ISSUE SHARES OF THE CAPITal stock of this corporation and the
certificates therefor subject to such transfer restrictions and other
limitations as it may deem necessary to promote compliance with applicable
federal and state securities laws, and to regulate the transfer thereof in such
manner as may be calculated to promote such compliance or to further any other
reasonable purpose. Except to the extent that the corporation has obtained an
opinion of counsel acceptable to the corporation that transfer restrictions are
not required under applicable securities laws, all certificates representing
shares of the corporation shall bear the following legend (or a legend of
substantially the same import) on the face of the certificate or on the reverse
of the certificate if a reference to the legend is contained on the face:
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NOTICE: RESTRICTIONS ON TRANSFER
The securities represented by this certificate have not been
registered under the Securities Act of 1933, or any state
securities laws, and may not be offered, sold, transferred,
encumbered, or otherwise disposed of except upon satisfaction
of certain conditions. Information concerning these
restrictions may be obtained from the corporation or its legal
counsel. Any offer or disposition of these securities without
satisfaction of said conditions will be wrongful and will not
entitle the transferee to register ownership of the securities
with the corporation.
5.5 TRANSFERS. Shares of stock may be transferred by delivery of the
certificates therefor, accompanied by:
(a) an assignment in writing on the back of the certificate,
or an assignment separate from certificate, or a written power of attorney to
sell, assign, and transfer the same, signed by the record holder of the
certificate; and
(b) such additional documents, instruments, and other items of
evidence as may be reasonably necessary to satisfy the requirements of any
transfer restrictions applicable to such shares, whether arising under
applicable securities or other laws, or by contract, or otherwise.
Except as otherwise specifically provided in these Bylaws, no shares of
stock shall be transferred on the books of the corporation until the outstanding
certificate therefor has been surrendered to the corporation. All certificates
surrendered to the corporation for transfer shall be canceled, and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except that, in case of a lost,
destroyed, or mutilated certificate, a new one may be issued therefor upon such
terms (including indemnity to the corporation) as the Board of Directors may
prescribe.
ARTICLE VI
RECORDS OF CORPORATE MEETINGS
The corporation shall keep, as permanent records, minutes of all
meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by a committee of the Board of Directors exercising the
authority of the Board of Directors on behalf of the corporation. The
corporation shall keep at its principal office a copy of the minutes of all
shareholders' meetings that have occurred, and records of all action taken by
shareholders without a meeting, within the past three (3) years. Any person
dealing with the corporation may rely upon a copy of any of the records of the
proceedings, resolutions, or votes of the Board or shareholders when certified
by the President or Secretary.
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ARTICLE VII
FINANCIAL MATTERS
The corporation shall maintain appropriate accounting records at its
principal office and shall prepare the annual financial statements required by
RCW 23B.16.200. Except to the extent otherwise expressly determined by the Board
of Directors or otherwise required by law, the accounting records of the
corporation shall be kept and prepared in accordance with generally accepted
accounting principles applied on a consistent basis from period to period. The
fiscal year of the corporation shall be the calendar year unless otherwise
expressly determined by the Board of Directors.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may from time to time authorize, and the
corporation may make, distributions (as defined in RCW 23B.01.400) to its
shareholders to the extent permitted by RCW 23B.06.400, subject to any
limitation in the Articles of Incorporation. A director who votes for or assents
to a distribution made in violation of RCW 23B.06.400 is personally liable to
the corporation for the amount of the distribution that exceeds that which could
have been distributed without violating RCW 23B.06.400 if it is established that
the director did not perform the director's duties in compliance with Section
2.1 above.
ARTICLE IX
CORPORATE SEAL
The Board of Directors may, but shall not be required to, adopt a
corporate seal for the corporation in such form and with such inscription as the
Board may determine. If such a corporate seal shall at any time be so adopted,
the application of or the failure to apply such seal to any document or
instrument shall have no effect upon the validity or invalidity of such document
or instrument under otherwise applicable principles of law.
ARTICLE X
INDEMNIFICATION
As provided by Article IV, Section Fourth, of the Articles of
Incorporation:
10.1 DEFINITIONS. The capitalized terms in this Article X shall have the
meanings set forth in RCW 23B.08.500.
10.2 MANDATORY INDEMNIFICATION. The Corporation shall indemnify and hold
harmless each individual who is or was serving as a Director or officer of the
Corporation or who, while serving as a Director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against any and all Liability incurred with respect to any Proceeding to which
the individual is or is threatened to be made a Party because of such service,
and shall make advances of reasonable
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Expenses with respect to such Proceeding, to the fullest extent permitted by
law, without regard to the limitations in RCW 23B.08.510 through 23B.08.550;
provided that no such indemnity shall indemnify any Director or officer from or
on account of (a) acts or omissions of the Director or officer finally adjudged
to be intentional misconduct or a knowing violation of law; (b) conduct of the
Director or officer finally adjudged to be in violation of RCW 23B.08.310; or
(c) any transaction with respect to which it was finally adjudged that such
Director or officer personally received a benefit in money, property, or
services to which the Director or officer was not legally entitled.
10.3 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer, employee, or agent of
the Corporation or, who, while a director, officer, employee, or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise against Liability asserted against or incurred by the individual in
that capacity or arising from the individual's status as a director, officer,
employee, or agent, whether or not the Corporation would have power to indemnify
the individual against such Liability under RCW 23B.08.510 or 23B.08.520.
10.4 CHANGES IN LAW. If, after the effective date of this Article X, the
Act is amended to authorize further indemnification of Directors or officers,
then Directors and officers of the Corporation shall be indemnified to the
fullest extent permitted by the Act as so amended.
10.5 EXCLUSIVITY; NATURE OF RIGHTS; AMENDMENT. To the extent permitted
by law, the rights to indemnification and advance of reasonable Expenses
conferred in this Article X shall not be exclusive of any other right which any
individual may have or hereafter acquire under any statute, provision of the
Bylaws, agreement, vote of shareholders or disinterested directors, or
otherwise. The right to indemnification conferred in this Article X shall be a
contract right upon which each Director or officer shall be presumed to have
relied in determining to serve or to continue to serve as such. Any amendment to
or repeal of this Article X shall not adversely affect any right or protection
of a Director or officer of the Corporation for or with respect to any acts or
omissions of such Director or officer occurring prior to such amendment or
repeal.
ARTICLE XI
MISCELLANY
11.1 COMMUNICATIONS BY FACSIMILE. Whenever these Bylaws require notice,
consent, or other communication to be delivered for any purpose, transmission by
phone, wire, or wireless equipment which transmits a facsimile of such
communication shall constitute sufficient delivery for such purpose. Such
communication shall be deemed to have been received by or in the possession of
the addressee upon completion of the transmission.
11.2 INSPECTOR OF ELECTIONS. Before any annual meeting of shareholders,
the Board of Directors may appoint an inspector of elections to act at the
meeting and any adjournment thereof. If no inspector of elections is so
appointed by the Board, then the chairman of the meeting may appoint an
inspector of elections to act at the meeting. If any person appointed as
inspector fails to appear or fails or refuses to act, then the chairman of the
meeting may, and
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upon the request of any shareholder or a shareholder's proxy shall, appoint a
person to fill that vacancy.
Such inspector of elections shall:
(a) determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, and, with the advice of legal counsel to the corporation, the
authenticity, validity, and effect of proxies pursuant to RCW 23B.07.220 and
23B.07.240 and any procedure adopted by the Board of Directors pursuant to RCW
23B.07.230;
(b) receive votes, ballots, or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine the result; and
(f) do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
11.3 RULES OF ORDER. The rules contained in the most recent edition of
Robert's Rules of Order, Revised, shall govern all meetings of shareholders and
directors where those rules are not inconsistent with the Articles of
Incorporation or Bylaws, subject to the following:
(a) The chairman of the meeting shall have absolute authority
over matters of procedure, and there shall be no appeal from the ruling of the
chairman. If the chairman in his absolute discretion deems it advisable to
dispense with the rules of parliamentary procedure for any meeting or any part
thereof, the chairman shall so state and shall clearly state the rules under
which the meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents continuation of
the legitimate business of the meeting, the chairman may quit the chair and
announce the adjournment of the meeting; upon so doing, the meeting shall be
deemed immediately adjourned, subject to being reconvened in accordance with
Section 1.5 or 2.11 of these Bylaws, as the case may be.
(c) The chairman may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting of shareholders.
(d) A resolution or motion at a meeting of shareholders shall
be considered for vote only if proposed by a shareholder or duly authorized
proxy and seconded by an individual who is a shareholder or duly authorized
proxy other than the individual who proposed the resolution or motion.
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11.4 CONSTRUCTION. Within these Bylaws, words of any gender shall be
construed to include any other gender, and words in the singular or plural
number shall be construed to include the plural or singular, respectively,
unless the context otherwise requires.
11.5 SEVERABILITY. If any provision of these Bylaws or any application
thereof shall be invalid, unenforceable, or contrary to applicable law, the
remainder of these Bylaws, and the application of such provisions to individuals
or circumstances other than those as to which it is held invalid, unenforceable,
or contrary to applicable law, shall not be affected thereby.
ARTICLE XII
AMENDMENT OF BYLAWS
Subject to the requirements of RCW 23B.10.210 relating to supermajority
quorum provisions for the Board of Directors, the Bylaws of the corporation may
be amended or repealed, or new Bylaws may be adopted, by: (a) the shareholders,
even though the Bylaws may also be amended or repealed, or new Bylaws may also
be adopted, by the Board of Directors; or (b) subject to the power of the
shareholders of the corporation to change or repeal the Bylaws, the Board of
Directors, unless such power is reserved, by the Articles of Incorporation or by
law, exclusively to the shareholders in whole or in part, or unless the
shareholders, in amending or repealing a particular bylaw, provide expressly
that the Board of Directors may not amend or repeal that bylaw.
ARTICLE XIII
AUTHENTICATION
The foregoing Amended and Restated Bylaws were read, approved, and duly
adopted by the Board of Directors of Active Voice Corporation on the 21st day of
October, 1999, and the President and Secretary of the corporation were empowered
to authenticate such Bylaws by their signatures below.
/s/ Frank J. Costa
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Frank J. Costa, President
ATTEST:
/s/ Jose S. David
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Jose S. David, Secretary
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