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Exhibit 3.2
BY-LAWS
of
SPACEHAB, INCORPORATED
PREAMBLE
These By-laws are subject to, and governed by, the Washington
Business Corporation Act (the "WBCA") of the State of Washington and the Amended
and Restated Articles of Incorporation of SPACEHAB, Incorporated, a Washington
corporation (the "Corporation") then in effect (the "Articles"). In the event of
a direct conflict between the provisions of these By-laws and (i) the mandatory
provisions of the WBCA or the provisions of the Articles, such provisions of the
WBCA or the Articles, as the case may be, will be controlling or (ii) a
permissive provision of the WBCA, such provision of the WBCA shall be
controlling unless otherwise decided by the Corporation's Board of Directors
(the "Board").
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of SPACEHAB,
Incorporated in the State of Washington shall be at 520 Pike Street, Seattle,
Washington 98101, and the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may also have an office or
offices at any other place or places within or outside the State of Washington
ARTICLE II
Meetings of Shareholders
SECTION 1. Annual Meetings. The annual meeting of the shareholders
for the election of directors, and for the transaction of such other business as
may properly come before the meeting, shall be held at such place, date and hour
as shall be fixed by the Board, within or without the State of Washington, and
designated in the notice or waiver of notice thereof.
SECTION 2. Special Meetings. Except as otherwise required by law,
special meetings of the shareholders may be called only in accordance with the
provisions of the Articles.
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SECTION 3. Notice of Meetings. Except as otherwise required by law
or by the Articles or these By-laws, notice of each annual or special meeting of
the shareholders shall be given to each shareholder of record entitled to vote
at such meeting and, if and to the extent required by law, to each shareholder
of the Corporation, not less than ten (10) nor more than sixty (60) days before
the day on which the meeting is to be held, except that notice of a meeting to
act on an amendment to the Articles of Incorporation, a plan of merger or share
exchange, a proposed sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation other than in the usual or
regular course of business, or the dissolution of the Corporation shall be given
no fewer than twenty (20) days nor more than sixty (60) days before the meeting
date. Written notice may be transmitted by mail (postage prepaid), private
carrier, or personal delivery; telegraph or teletype; cable or other telephonic
transmission to the shareholder at his address as it appears in the records of
the Corporation. If these forms of written notice are impracticable in the view
of the Board, the Chairman of the Board, the President or the Secretary, written
notice may be transmitted by an advertisement in a newspaper of general
circulation in the area where published. If mailed, such notice shall be deemed
effective when deposited in the United States mail, first-class postage prepaid,
properly addressed to the shareholder at his address as it appears in the
Corporation's records. Notice dispatched by telegraph, teletype, or facsimile
equipment shall be deemed effective when dispatched to the shareholder's
address, telephone number or other number appearing on the records of the
Corporation. Any notice given by publication as herein provided shall be deemed
effective five (5) days after first publication. Every such notice shall state
the place, the date and hour of the meeting, and, in case of a special meeting,
the purpose or purposes for which the meeting is called. Except as otherwise
required by law, notice of any meeting of shareholders shall not be required to
be given to any shareholder who shall attend such meeting in person or by proxy,
or who shall, in person or by attorney thereunto authorized, waive such notice
in writing to be delivered to the Corporation (for inclusion in the minutes or
the corporate records), either before or after such meeting. Except as otherwise
provided in these By-laws, neither the business to be transacted at, nor the
purpose of, any meeting of the shareholders need be specified in any such notice
or waiver of notice. Notice of any adjourned meeting of shareholders shall not
be required to be given, except when expressly required by law.
SECTION 4. Quorum. At each meeting of the shareholders, except where
otherwise provided by the Articles or these By-laws, the holders of at least
one-third of the issued and outstanding shares of stock of the Corporation
entitled to vote at such meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business, except as otherwise
required by law, these By-laws or the Articles. In the absence of a quorum a
majority in interest of the shareholders present in person or represented by
proxy and entitled to vote, or, in the absence of all the shareholders entitled
to vote, any officer entitled to preside at, or act as secretary of, such
meeting, shall have the power to adjourn the meeting to another time and/or
place, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At any such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally called. If the adjournment is for
more than one hundred and twenty (120) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote at the
meeting. Once a share is represented for any purpose at a meeting other than
solely to object to holding the meeting or transacting business thereat, it is
deemed present for quorum purposes
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for the remainder of the meeting and any adjournment thereof (unless a new
record date is or must be set for the adjourned meeting) notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
SECTION 5. Organization. At each meeting of the shareholders, one of
the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(a) the Chairman;
(b) the President;
(c) any Vice-President;
(d) any officer of the Corporation designated by the Board to act as
chairman of such meeting and to preside thereat; or
(e) a shareholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the shareholders present in
person or by proxy and entitled to vote thereat.
The Secretary or, if he shall be presiding over such meeting in
accordance with the provisions of this Section 5 or if he shall be absent from
such meeting, the person (who shall be an Assistant Secretary, if an Assistant
Secretary has been appointed and is present) whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the minutes
thereof.
SECTION 6. Order of Business. The order of business at each meeting
of the shareholders shall be determined by the chairman of such meeting, but
such order of business may be changed by a majority in voting interest of those
present in person or by proxy at such meeting and entitled to vote thereat.
SECTION 7. Voting. Except as may otherwise be required by law or
these By-laws, shareholders shall have the voting rights specified in the
Articles.
SECTION 8. Informal Action by Shareholders. Any action required or
permitted to be taken by the shareholders must be effected at a duly called
annual or special meeting of such shareholders and may not be effected by a
consent in writing by any such shareholders.
SECTION 9. Voting Procedures and Inspections of Elections.
(a) The Corporation shall, in advance of any meeting of
shareholders, appoint one or more inspectors to act at the meeting and
make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of shareholders,
the person presiding at the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before entering upon the discharge
of his duties, shall
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take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii)
count all votes and ballots, (iv) determine and retain for a reasonable
period a record of the disposition of any challenges made to any
determination by the inspectors, and (v) certify their determination of
the number of shares represented at the meeting, and their count of all
votes and ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
(c) The date and time of the opening and the closing of the polls
for each matter upon which the shareholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any
revocations thereof or changes thereto, shall be accepted by the
inspectors after the closing of the polls unless a state court in
Washington, upon application by a shareholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, ballots and the regular books and
records of the Corporation, except that the inspectors may consider other
reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or
similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the shareholder
holds of record. If the inspectors consider other reliable information for
the limited purpose permitted in this Section 9, the inspectors at the
time they make their certification pursuant to subsection (b)(v) of this
Section 9 shall specify the precise information considered by them
including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information was
obtained and the basis for the inspectors' belief that such information is
accurate and reliable.
SECTION 10. Advance Notification of Proposals at Shareholders'
Meetings. If a shareholder desires to submit a proposal for consideration at an
annual or special shareholders' meeting, or to nominate persons for election as
directors at any shareholders' meeting duly called for the election of
directors, written notice of such shareholders' intent to make such a proposal
or nomination must be given and received by the Secretary of the Corporation at
the principal executive offices of the Corporation either by personal delivery
or by United States mail not later than (i) with respect to an annual meeting of
shareholders, 60 days prior to the anniversary date of the immediately preceding
annual meeting, and (ii) with respect to a special meeting of shareholders, the
close of business on the tenth day following the date on which notice of such
meeting is first sent or given to shareholders. Each notice shall describe the
proposal or nomination in sufficient detail for the proposal or nomination to be
summarized on the agenda for the meeting and shall set forth: (i) the name and
address, as it appears on the books of the Corporation, of the shareholder who
intends to make the proposal or nomination; (ii) a representation that the
shareholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the
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meeting to present such proposal or nomination; and (iii) the class and number
of shares of the Corporation which are beneficially owned by the shareholder. In
addition, in the case of a shareholder proposal, the notice shall set forth the
reasons for conducting such proposed business at the meeting and any material
interest of the shareholder in such business. In the case of a nomination of any
person for election as a director, the notice shall set forth: (i) the name and
address of any person to be nominated; (ii) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (iii) such other information
regarding such nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended; and (iv) the consent of each
nominee to serve as a director of the Corporation if so elected. The presiding
officer of the annual or special meeting shall, if the facts warrant, refuse to
acknowledge a proposal or nomination not made in compliance with the foregoing
procedure, and any such proposal or nomination not properly brought before the
meeting shall not be considered.
SECTION 11. Advisory Shareholder Votes. In order for the
shareholders to adopt or approve any precatory proposal submitted to them for
the purpose of requesting the Board to take certain actions, a majority of the
outstanding stock of the Corporation entitled to vote thereon must be voted in
favor of the proposal in accordance with Section 7 of this Article II.
SECTION 12. List of Shareholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its stock
ledger to prepare and make, at least 10 days before every meeting of the
shareholders, a complete list of the shareholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each shareholder and
the number of shares registered in the name of each shareholder. Such list shall
be open to the examination of any shareholder, shareholder's agent, or
shareholder's attorney, for any purpose germane to any such meeting, during
ordinary business hours, for a period of at least 10 days prior to such meeting,
either at a place within the city where such meeting is to be held, which place
shall be specified in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held. Such list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any shareholder, shareholder's agent or shareholder's attorney
during the meeting or adjournment.
ARTICLE III
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Articles directed or required to be exercised
or done by the shareholders.
SECTION 2. Number and Term of Office. The number of directors shall
be fixed in accordance with the Articles. Directors need not be shareholders.
Each director shall hold office until his successor is elected and qualified, or
until his earlier death, resignation, retirement, disqualification or removal in
the manner hereinafter provided. The number of
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directors may be changed from time to time by amendment to these By-laws or
Articles, but no decrease in the number of directors shall have the effect of
shortening the term of any incumbent director.
SECTION 3. Election of Directors. At each meeting of the
shareholders for the election of directors at which a quorum is present, the
persons receiving the greatest number of votes, up to the number of directors to
be elected, of the shareholders present in person or by proxy and entitled to
vote thereon, shall be the directors; provided that for purposes of such vote no
shareholder shall be allowed to cumulate his votes.
SECTION 4. Resignation and Vacancies. Any director may resign at any
time by giving written notice to the Board, the Chairman, the President or the
Secretary. Such resignation shall take effect at the time specified therein or,
if the time be not specified, upon delivery thereof; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Except as otherwise require by law, vacancies on the Board and newly
created directorships will be filled in accordance with the Articles.
SECTION 5. Meetings.
(a) Regular Meetings. As soon as practicable after each annual
election of directors, the Board shall meet for the purpose of
organization and the transaction of other business, unless it shall have
transacted all such business by written consent pursuant to Section 6 of
this Article III.
(b) Special Meetings. Other meetings of the Board shall be held at
such times and places as the Board, the Chairman, the President or any two
directors shall from time to time determine.
(c) Notice of Meetings. Notice shall be given to each director for
each regular and special meeting, including the time, place and purpose of
such meeting. Notice of each such meeting shall be mailed to each
director, addressed to him at his residence or usual place of business, at
least two days before the date on which such meeting is to be held, or
shall be sent to him at such place by telegraph, cable, wireless or other
form of recorded communication, or be delivered personally or by telephone
not later than the day before the day on which such meeting is to be held,
but notice need not be given to any director who shall attend such
meeting. A written waiver of notice, signed by the person entitled thereto
and delivered to the Corporation, whether before or after the time of the
meeting stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board may hold its meetings at such place
or places within or outside the State of Washington as the Board may from
time to time determine, or as shall be designated in the respective
notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of
directors then in office shall be present in person at any meeting of the
Board in order to constitute a quorum for the transaction of business at
such meeting, and the vote of a
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majority of those directors present at any such meeting at which a quorum
is present shall be necessary for the passage of any resolution or act of
the Board, except as otherwise expressly required by law, the Articles or
these By-laws. In the absence of a quorum for any such meeting, a majority
of the directors present thereat may adjourn such meeting from time to
time a quorum shall be present and no further notice thereof need be
given. A director who is in attendance at a meeting of the Board but who
abstains from the vote on any matter by announcing his abstention to the
person acting as secretary of the meeting for inclusion in the minutes and
not voting on such matter shall not be deemed present at such meeting for
purposes of the preceding sentence with respect to such vote, but shall be
deemed present at such meeting for all other purposes.
(f) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside thereat, in the following
order of precedence:
(1) the Chairman;
(2) the President (if a director); or
(3) a person designated by the Board.
The Secretary or, in the case of his absence, any person (who shall
be an Assistant Secretary, if an Assistant Secretary has been
appointed and is present) whom the chairman of the meeting shall
appoint shall act as secretary of such meeting and keep the minutes
thereof.
SECTION 6. Directors' Consent in Lieu of Meeting. Unless otherwise
restricted by the Articles or these By-laws, any action required or permitted to
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting, without prior notice and without a vote, if one or more
written consents, setting forth the action so taken, are signed by all the
members of the Board or committee, either before or after the action taken, and
such consent is filed with the minutes of proceedings of the Board or committee.
Action taken by written consent of Directors without a meeting is effective when
the last Director signs the consent, unless the consent specifies a later
effective date.
SECTION 7. Action by Means of Conference Telephone or Similar
Communications Equipment. Any one or more members of the Board or any committee
thereof, may participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 8. Committees. The Board, by resolution adopted by the
greater of a majority of the Directors then in office when the action is taken
or the number of directors required to take action in accordance with WBCA and
these By-laws, may designate one or more committees, each such committee to
consist of two or more directors. The Board, by resolution adopted by the same
vote required herein, also may designate one or more additional directors as
alternate members of any such committee to replace any absent or disqualified
member of any meeting of the committee, and at any time may change the
membership of any committee or
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amend or rescind the resolution designating the committee. Each committee shall
keep a record of proceedings and report the same to the Board to such extent and
in such form as the Board may require. Unless otherwise provided in the
resolution designating a committee, a majority of all of the members of any such
committee may select its Chairman, fix its rules or procedure, fix the time and
place of its meetings and specify what notice of meetings, if any, shall be
given. Each committee shall have and may exercise all of the authority of the
Board to the extent provided in the resolution of the Board creating the
committee and any subsequent resolutions pertaining thereto and adopted in like
manner, except, that no such committee shall have the authority to: (1)
authorize or approve a distribution except according to a general formula or
method prescribed by the Board, (2) approve or propose to shareholders actions
or proposals required by the WBCA to be approved by shareholders, (3) fill
vacancies on the Board or any committee thereof, (4) adopt, amend or repeal
By-laws, (5) amend the Articles of Incorporation pursuant to RCW 23B.10.020, (6)
approve a plan of merger, (7) 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 may authorize a committee or a senior executive officer of the Corporation
to do so within limits specifically prescribed by the Board, or (8) engage in
any act or activity otherwise prohibited by Section 23B.08.250 of the WBCA.
SECTION 9. Compensation. The Board of Directors shall have the
authority to fix the compensation of directors, which may include their
expenses, if any, of attendance at each meeting of the Board of Directors or of
a committee.
SECTION 10. Preferred Stock Directors. Notwithstanding the
foregoing, whenever the holders of one or more classes or series of Preferred
Stock shall have the right, voting separately as a class or series, to elect
directors, the election, term of office, filling of vacancies, removal and other
features of such directorships shall be governed by the terms of the resolution
or resolutions adopted by the Board of Directors pursuant to ARTICLE FOURTH of
the Articles applicable thereto, and each director so elected shall not be
subject to the provisions of this ARTICLE III unless otherwise provided therein.
ARTICLE IV
Officers
SECTION 1. Executive Officers. The executive officers of the
Corporation shall be a Chairman, a President, Vice-Presidents, a Secretary and a
Treasurer, and may include such other officers as the Board may appoint pursuant
to Section 3 of this Article IV. Any two or more offices may be held by the same
person.
SECTION 2. Authority and Duties. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent so provided, by the Board.
SECTION 3. Other Officers. The Corporation may have such other
officers, agents and employees as the Board may deem necessary, including one or
more Assistant Secretaries, one or more Assistant Treasurers and one or more
Vice-Presidents, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board, the
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Chairman, or the President may from time to time determine. The Board may
delegate to any principal officer the power to appoint and define the authority
and duties of, or remove, any such officers, agents or employees.
SECTION 4. Term of Office, Resignation and Removal. All executive
officers shall be elected or appointed by the Board and shall hold office for
such term as may be prescribed by the Board. Each executive officer shall hold
office until his successor has been elected or appointed and qualified or until
his earlier death or resignation or removal in the manner hereinafter provided.
The Board may require any executive officer to give security for the faithful
performance of his duties.
Any officer may resign at any time by delivering notice to the
Board, the Chairman, the President or the Secretary. Such resignation shall take
effect at the time specified therein or, if the time be not specified, at the
time notice is given. Except as aforesaid, the acceptance of such resignation
shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board with or without cause, subject to
any agreements to the contrary.
SECTION 5. Vacancies. If the office of Chairman, President,
Secretary or Treasurer becomes vacant for any reason, the Board shall fill such
vacancy, and if any other office becomes vacant, the Board may fill such
vacancy. Except as otherwise provided in these By-laws, any officer so appointed
or elected by the Board shall serve only until such time as the unexpired term
of his predecessor shall have expired and until his successor shall have been
duly elected and qualified, unless reelected or reappointed by the Board.
SECTION 6. The Chairman. The Chairman of the Board shall perform
such duties as shall be assigned to him 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 Chairman of such meeting.
SECTION 7. The President. The President shall be the chief executive
officer and, in the event that the office of Chairman is or becomes vacant, the
chief executive officer of the Corporation. The President shall have general
charge and supervision of the operation of the business and affairs of the
Corporation. The President may sign certificates for shares of the Corporation,
deeds, mortgages, bonds, contracts, or other instruments, except when the
signing and execution thereof have been expressly delegated by the Board or by
these By-laws to some other officer or agent of the corporation or are required
by law to be otherwise signed or executed by some other officer or in some other
manner. He shall from time to time make such reports of the affairs of the
Corporation as the Board may require and shall perform such other duties as may
from time to time be assigned to him by the Board or the Chairman.
SECTION 8. Vice President. In the event of the death of the
President or his or her inability to act, the Vice President, if any (or if
there is more than one Vice President, the Vice President who was designed by
the Board as the successor to the President, or if no Vice President is so
designated, the Vice President first elected to such office) shall perform the
duties
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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. Any Vice
President may sign, with the Secretary or Assistant Secretary, certificates for
shares of the corporation. Vice Presidents shall have, to the extent authorized
by 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 President
or by the Board.
SECTION 9. The Secretary. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of the
shareholders and shall record the minutes of all proceedings in a book to be
kept for that purpose. He may give, or cause to be given, notice of all meetings
of the shareholders and of the Board, and shall perform such other duties as may
be prescribed by the Board, the Chairman or the President, under whose
supervision he shall act. He shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it
and, when so affixed, it may be attested by his signature or by the signature of
the Treasurer or, if appointed, an Assistant Secretary or an Assistant
Treasurer. The Board may give general authority to any other officer to affix
the seal of the Corporation and to attest such affixing of the seal. He shall
keep in safe custody the certificate books and shareholder records, including
registers of the post office address of each shareholder and director, and such
other books and records as the Board may direct, and shall perform all other
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board, the Chairman or the President.
SECTION 10. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman, President and directors, at the
regular meetings of the Board, or whenever they may require it, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation, shall perform all other duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the Board,
the Chairman or the President.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 1. Execution of Documents. The Board shall designate, by
either specific or general resolution, the officers, employees and agents of the
Corporation who shall have the power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, checks, drafts and other orders for the payment of
money and other documents for and in the name of the Corporation, and may
authorize such officers, employees and agents to delegate such power (including
authority to redelegate) by written instrument to other officers, employees or
agents of the Corporation; and, unless so designated or expressly authorized by
these By-laws, no officer, employee or agent shall have any power or authority
to bind the Corporation by any contract or engagement, to pledge its credit or
to render it liable pecuniarily for any purpose or to any amount.
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SECTION 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or Treasurer, or any other officer to whom power in
this respect shall have been given by the Board, shall select.
SECTION 3. Proxies in Respect of Stock or Other Securities of Other
Corporations. The Board shall designate the officers of the Corporation who
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities. Such designated officers may instruct the person or persons
so appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its said powers
and rights.
ARTICLE VI
Shares and Their Transfer: Fixing Record Date
SECTION 1. Certificates for Shares. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the Corporation, which shall be in such form as
shall be prescribed by the Board. The Board may provide by resolution or
resolutions that some or all of any or all classes or series of the
Corporation's stock shall be uncertificated shares. Each certificate for shares
shall be numbered and issued in consecutive order. Certificates of stock in the
Corporation, if any, shall be signed, either manually or in facsimile by two of
the following officers in the name of the Corporation: the Chairman, or the
President, or any Vice President and by the Treasurer (or an Assistant
Treasurer, if appointed) or the Secretary (or an Assistant Secretary, if
appointed). Where a certificate is countersigned by a transfer agent, other than
the Corporation or an employee of the Corporation, or by a registrar, the
signatures of the Chairman or the President or a Vice President and the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
may be facsimiles. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue. All certificates shall
include written notice of any restrictions which may be imposed on the
transferability of shares.
SECTION 2. Shares without Certificates. The Board may authorize the
issue of some or all of the shares of any or all of its classes or series
without certificates. Within a reasonable time after the issue or transfer of
shares without certificates, the Corporation shall send the shareholder a
written statement of the information required by law on the certificates. The
written statement shall include written notice of any restrictions which may be
imposed on the transferability of such shares.
SECTION 3. Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by
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proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate of stock or
uncertificated shares in place of any certificate therefor issued by the
Corporation to the person entitled thereto, cancel the old certificate and
record the transaction in its stock transfer books.
SECTION 4. Addresses of Shareholders. Each shareholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to him, and, if any shareholder shall
fail to designate such address, corporate notices may be served upon him by mail
directed to him at his post office address, if any, as the same appears on the
share record books of the Corporation or at his last known post office address.
SECTION 5. Replacement. In case of the loss, destruction, mutilation
or theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate therefor issued by
the Corporation may be issued upon satisfactory proof of such loss, destruction,
mutilation or theft and upon such terms as the Board of Directors may prescribe.
The Board of Directors may in its discretion require the owner of the lost,
destroyed, mutilated or stolen certificate, or his legal representative, to give
the Corporation a bond, in such sum and in such form and with such surety or
sureties as it may direct, to indemnify the Corporation against any claim that
may be made against it with respect to the certificate alleged to have been
lost, destroyed, mutilated or stolen.
SECTION 6. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for stock of
Corporation.
SECTION 7. Fixing Date for Determination of Shareholders of Record.
The Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board, in
order that the Corporation may determine which shareholders are entitled to (i)
notice of or to vote at any meeting of shareholders or any adjournment thereof,
(ii) receive payment of any dividend, or (iii) notice for any other purpose.
Such record date shall be not more than seventy (70) days, in the case of a
meeting of shareholders not less than ten (10) days prior to the date on which
the particular action requiring such action 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, the record date shall be the day immediately preceding
the date on which notice of the meeting is first given to shareholders. Such a
determination shall apply to any adjournment of the meeting unless the Board
fixes a new record date, which it shall do if the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting. If no record
date is set for the determination of shareholders entitled to receive payment of
any stock dividend or distribution (other than one involving a purchase,
redemption, or other acquisition of the Corporation's shares) the record date
shall be the date the Board authorizes the stock dividend or distribution.
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ARTICLE VII
Seal
The corporate seal shall be in such form as may be approved from
time to time by the Board. The seal may be used by causing it or a facsimile
thereof, to be impressed or affixed or in any other manner reproduced.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of
the Board.
ARTICLE IX
Indemnification and Insurance
SECTION 1. Indemnification.
(a) Third Party Actions. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party (including,
without limitation as a witness) to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, including all appeals (other
than an action, suit or proceeding by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation (and the Corporation, in the discretion of the Board, may so
indemnify a person by reason of the fact that he is or was an employee or
agent of the Corporation or is or was serving at the request of the
Corporation in any other capacity for or on behalf of the Corporation),
against reasonable expenses (including counsel fees), judgments, decrees,
fines , penalties and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if, in
the case of conduct in his official capacity with the Corporation, he
acted in good faith and in the Corporation's best interests, and in all
other cases, he acted in good faith and was at least not opposed to the
Company's best interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful,
except that no indemnification shall be made in respect to any claim,
issue or matter as to which Indemnitee shall have been finally adjudged to
be liable for (i) negligence or misconduct in the performance of his duty
to the Corporation unless and only to the extent that the court in which
such action or suit was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper, or (ii) violating any of the
terms or provisions of Section 16 of the Securities Exchange Act of 1934,
as amended, or any of the rules or regulations promulgated thereunder. The
termination of any action, suit or 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 or in a manner which he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause
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to believe that his conduct was unlawful. Notwithstanding the foregoing,
the Corporation shall be required to indemnify an officer or director in
connection with an action, suit or proceeding initiated by such person
only if such action, suit or proceeding was authorized by the Board or a
committee thereof. No indemnity shall be provided by the Corporation for
expenses that have been paid directly by an insurance carrier under a
policy of directors' and officers' liability insurance maintained by the
Company.
(b) Actions By or in the Right of the Company. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit, including
all appeals, by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director or officer
of the Corporation (and the Corporation, in the discretion of the Board,
may so indemnify a person by reason of the fact that he is or was an
employee or agent of the Corporation or is or was serving at the request
of the Corporation in any other capacity for or on behalf of the
Corporation), against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if, in the case of conduct in his official capacity
with the Corporation, he acted in good faith and in the Corporation's best
interests, and in all other cases, he acted in good faith and was at least
not opposed to the Company's best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have
been finally adjudged to be liable for (i) negligence or misconduct in the
performance of his duty to the Corporation unless and only to the extent
that the court in which such action or suit was brought, or any other
court of competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity
for such expenses as such court shall deem proper or (ii) violating any of
the terms or provisions of Section 16 of the Securities Exchange Act of
1934, as amended, or any of the rules or regulations promulgated
thereunder. Notwithstanding the foregoing, the Corporation shall be
required to indemnify an officer or director in connection with an action,
suit or proceeding initiated by such person only if such action, suit or
proceeding was authorized by the Board or a committee thereof. No
indemnity shall be provided by the Corporation for expenses that have been
paid directly by an insurance carrier under a policy of directors' and
officers' liability insurance maintained by the Company.
(c) Indemnify if Successful. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this Section 1, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Standard of Conduct. Except in a situation governed by
subsection (c) of this Section 1, any indemnification under subsections
(a) and (b) of this Section 1 (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent
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is proper in the circumstances because he has met the applicable standard
of conduct set forth in subsections (a) and (b) of this Section 1. Such
determination shall be made (1) by the Board by a majority vote of a
quorum consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders, but shares
owned by or voted under the control of directors who are parties to the
proceeding may not be voted on determination. The determination required
by clauses (1) and (2) of this subsection (d) may in either event be made
by the written consent of the majority required by each clause.
(e) Advancement of Expenses. Expenses (including attorneys' fees) of
each officer and directory hereunder indemnified actually and reasonably
incurred in defending any civil, criminal, administrative or investigative
action, suit or proceeding or threat thereof shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of (i) an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Corporation as authorized in the
Article and (ii) a written affirmation of director's good faith belief
that he has performed his duty to the Company, upon request by the
Corporation and if required under applicable law. Such expenses (including
counsel fees) incurred by employees and agents may be so paid upon the
receipt of the aforesaid understanding and such terms and conditions, if
any, as the Board deems appropriate.
(f) Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article IX shall not be deemed
be exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) Procedures Exclusive. Pursuant to Section 23B.08.560(1) or any
successor provision of the WBCA, the procedures for indemnification and
advancement of expenses this Article are in lieu of the procedures
required by Sections 23B.08.510 through 23B.08.550 or any successor
provisions of the WBCA.
SECTION 2. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent 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 against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of the WBCA.
SECTION 3. Definitions.
(a) For purposes of this Article IX, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and
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authority to indemnify its directors, officers, and employees or agents,
so that any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article IX with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(b) References to "other capacities" shall include serving as a
trustee or agent for any employee benefit plan; references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and 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; and a person who acted
in good faith and in a manner he 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 Article IX.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(d) The right to indemnification conferred by this Article IX shall
be deemed to be a contract between the Corporation and each person
referred to herein until amended or repealed, but no amendment to or
repeal of these provisions shall apply to or have any effect on the right
to indemnification of any person with respect to any liability or alleged
liability of such person for or with respect to any act or omission of
such person occurring prior to such amendment or repeal.
(e) A person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the course of
their duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term "another
enterprise" as used herein shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director or executive officer. The provisions of this
subsection shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person
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may be deemed to have met the applicable standard of conduct set forth in
Section l(a) or Section 1(b) of this Article IX, as the case may be.
ARTICLE X
Amendment
These By-laws may be altered, amended or repealed or new By-laws may
be adopted by the Board, subject to the provisions of these By-laws and the
Articles. The fact that the power to amend, alter, repeal or adopt the By-laws
has been conferred upon the Board shall not divest the shareholders of the same
powers.
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