EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
INTERMOUNTAIN COMMUNITY BANCORP
ARTICLE I
OFFICES
1.1 Registered Office. The Corporation's registered office shall be
located at Third & Oak, Sandpoint, Idaho 83864, and shall continuously maintain
in the State of Idaho a registered office that may be, but need not be, the same
as any of its places of business.
1.2 Principal and Other Offices. The Corporation shall also have a
principal business office located at Third & Oak, Sandpoint, Idaho 83864, and
may have such other offices, either within or without the State of Idaho, as the
Board of Directors may designate or as the business of the Corporation may
require from time to time.
ARTICLE II
SHAREHOLDERS
2.1 Annual Meetings.
(a) The Corporation shall hold an annual meeting of the Shareholders
on such date and at such time as may be designated by the Board of Directors,
or, if not so designated, then not later than 120 days after the close of the
Corporation's fiscal year for the purpose of electing directors and transacting
such other business as may come before the meeting. If the day fixed for the
annual meeting is a legal holiday in the State of Idaho the meeting shall be
held on the next succeeding business day.
(b) The failure to hold an annual meeting on the date fixed in
accordance with Subsection (a) of this Section shall not affect the validity of
any corporate action.
(c) Unless otherwise permitted by the Board of Directors, business,
including nomination of directors, may be properly brought before an Annual
Meeting by a Shareholder only upon the Shareholder's timely notice in writing to
the Secretary of the Corporation. . To be timely for purposes of advance notice
requirements, a shareholder's proposal must be delivered to the Secretary at the
principal executive offices of the corporation not less than one hundred twenty
(120) calendar days in advance of the first anniversary of the date the
corporation's proxy statement was mailed to shareholders for the preceding
year's annual meeting. In no event will the public announcement of an
adjournment of a shareholders meeting commence a new time period for the giving
of a shareholder's notice as described above. A shareholder's notice to the
secretary must set forth as to each matter the shareholder proposes to bring
before the annual meeting: (a) a brief description of the business desired to be
brought before the meeting, (b) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, (c) the class
number of shares of the corporation which are owned beneficially by such
shareholder, (d) any material interest of the shareholder in such business, and
(e) any other
information that is required to be provided by the shareholder pursuant to
Regulation 14A (or any successor thereto) under the Securities Exchange Act of
1934, as amended (the "1934 Act") in such shareholder's capacity as a proponent
of a shareholder proposal. Notwithstanding anything in these Bylaws to the
contrary, no business will be conducted at any annual meting except in
accordance with the procedures set forth in this section. The chairman of the
annual meeting will, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting and in accordance with
the provisions of this section, and, if the Chairman should so determine, he or
she will so declare at the meeting that any such business not properly brought
before the meeting will not be transacted.
2.2 Special Meetings.
(a) The Corporation shall hold a Special Meeting of Shareholders on
the call of the Chair of the Board, the Board of Directors, or upon request of
Shareholders holding at least 20% of the outstanding Common Stock of the
Corporation. Those calling the Special Meeting shall sign, date and deliver to
the Secretary one or more written demands for the meeting describing the purpose
or purposes for which it is to be held.
(b) Only business within the purpose or purposes described in the
meeting notice may be conducted at a Special Meeting of Shareholders.
2.3 Nomination for Directors.
(a) Only persons who are nominated in accordance with the procedures
set forth in this section will be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of shareholders by or at the direction of the Board of
Directors or by any shareholder of the Corporation entitled to vote in the
election of directors at the meeting who complies with the notice procedures set
forth in this section. Such nominations, other than those made by or at the
direction of the Board of Directors, must be in writing and delivered to the
Secretary at the principal executive offices of the Corporation not less than
one hundred twenty (120) calendar days in advance of the first anniversary of
the date the Corporation's proxy statement was mailed to shareholders for the
preceding year's annual meeting. In no event will the public announcement of an
adjournment of a shareholders meeting commence a new time period for the giving
of a shareholder's notice as described above. Such shareholder's notice must set
forth (i) as to each person whom the shareholder proposes to nominate for
election or re-election as a director: (A) the name, age, business address and
residence address of such person, (B) the principal occupation or employment of
such person, (C) the class and number of shares of the Corporation which are
beneficially owned by such person, (D) 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 nominations are to
be made by the shareholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
elections of directors, or is otherwise required, in each case pursuant to
Regulation 14A (or any successor thereto) under the 1934 Act (including without
limitation such person's written consent to being name in the proxy statement,
if any, as a nominee and to serving as a director if elected); and (ii) as to
such shareholder giving notice: (X) the name and
address, as they appear on the Corporation's books, of the shareholder, (Y) the
class and number of shares of the Corporation which are owned beneficially by
such shareholder, and (Z) any other information that is required to be provided
by the shareholder pursuant to Regulation 14A (or any successor thereto) under
the 1934 Act in such shareholder's capacity as a proponent of a shareholder
nomination. At the request of the Board of Directors, any person nominated by a
shareholder for election as a director will furnish to the secretary of the
Corporation that information required to be set forth in the shareholder's
notice of nomination which pertains to the nominee. No person will be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth in this section. The Chairman of the meeting will,
if the facts warrant, determine and declare at the meeting that a nomination was
not made in accordance with the procedures prescribed by these Bylaws, and if
the Chairman so determines, he or she will so declare at the meeting, and the
defective nomination will be disregarded.
(b) Consideration for Management's Recommended Slate of Directors.
Upon the receipt of a shareholder nomination made in accordance with the
procedures prescribed by Section 2.3(a) of these Bylaws, such nomination will be
evaluated by the Corporation's board of directors or a committee thereof in
accordance with its evaluation procedures, in order to determine whether such
nominee should be included in the slate of persons recommended by the Board of
Directors to the Corporation's shareholders for election at the next annual
meeting. Nothing in this provision requires that the board include the proposed
nominee in the slate of directors recommended to shareholders in management's
annual proxy statement.
2.4 No Action Without a Meeting. Any action required or permitted to be
taken by the Shareholders of the Corporation must be effected at a duly called
Annual or Special Meeting of such Shareholders and may not be effected by any
consent in writing by such Shareholders.
2.5 Place of Meetings. The Board of Directors may designate any place,
within or without the State of Idaho, as the place of meeting for any Annual or
Special Meeting. If no designation is made, the place of meeting shall be the
Corporation's principal office.
2.6 Notice of Meetings.
(a) The Corporation shall notify Shareholders of the date, time and
place of each Annual and Special Meeting of Shareholders not earlier than 60
days or less than 10 days before the meeting date. The Corporation is required
to give notice only to Shareholders entitled to vote at the meeting.
(b) Notice of an Annual Meeting need not include a description of
the purpose or purposes for which the meeting is called.
(c) Notice of a Special Meeting must include a description of the
purpose or purposes for which the meeting is called. Only the business described
in the notice shall be conducted at the Special Meeting.
(d) If an Annual or Special Meeting of Shareholders is adjourned to
a different date, time or place, notice need not be given of the new date, time
or place if the new
date, time or place is announced at the meeting before adjournment. If a new
record date for the adjourned meeting is or must be fixed, however, then notice
of the adjourned meeting must be given to persons who are Shareholders as of the
new record date.
2.7 Waiver of Notice.
(a) A Shareholder at any time may waive any notice required by law,
the Articles of Incorporation or these Bylaws. The waiver must be in writing,
signed by the Shareholder entitled to the notice and delivered to the
Corporation for inclusion in the minutes or filing with the corporate records.
(b) A Shareholder's attendance at a meeting waives objection to:
(1) 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; and
(2) Consideration of a particular matter at the meeting 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.
2.8 Record Date.
(a) The Board of Directors shall fix in advance a record date in
order to determine the Shareholders entitled to notice of a meeting of
Shareholders, to demand a Special Meeting of Shareholders, to vote, to receive
payment of a dividend or other distribution or to take any other action or
exercise any other right of Shareholders. The record date shall not be more than
70 days before the meeting or action requiring a determination of Shareholders.
(b) If the Board of Directors fails to fix the record date for
determining Shareholders entitled to demand a Special Meeting of Shareholders,
then the record date shall be the date the first Shareholder signs the demand.
(c) If the Board of Directors fails to fix the record date for
determining Shareholders entitled to notice of and to vote at an Annual or
Special Meeting of Shareholders, then the record date shall be the close of
business on the day before the first notice is delivered to Shareholders.
(d) If the Board of Directors fails to fix the record date for
determining Shareholders entitled to a share dividend, then the record date
shall be the date the Board authorizes the share dividend.
(e) If the Board of Directors fails to fix the record date for
determining Shareholders entitled to a distribution, other than a date involving
a repurchase or reacquisition of shares, then the record date shall be the date
the Board authorizes the distribution.
(f) A determination of Shareholders entitled to notice of or to vote
at a meeting of Shareholders is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
2.9 Organization of Meetings. At every meeting of Shareholders:
(a) The Chair of the Board, or if the Chair of the Board has not
been appointed or is absent, then the Vice Chairman, if any, and if the Vice
Chairman is absent, then any individual chosen by a majority in interest of the
Shareholders entitled to vote at the meeting, shall act as chair of the meeting.
(b) The Secretary, or if the Secretary is absent then any Assistant
Secretary, or if no Assistant Secretary has been appointed or is present, then
any individual chosen by a majority in interest of the Shareholders entitled to
vote at the meeting, shall act as secretary of the meeting.
2.10 List of Shareholders for Meetings.
(a) After fixing a record date for a meeting of Shareholders, the
Secretary shall prepare an alphabetical list of the names of all of the
Shareholders who are entitled to notice of the meeting. The list shall be
arranged by voting group, and within each voting group by class or series of
shares, and show the address of and number of shares held by each Shareholder.
(b) The list of Shareholders must be available for inspection by any
Shareholder at least 10 days before the meeting for which the list was prepared
and continuing through the meeting at the Corporation's principal office or at a
place identified in the meeting notice in the city where the meeting will be
held. A Shareholder or the Shareholder's agent or attorney is entitled on
written demand and demonstration of a proper purpose to inspect and, subject to
the requirements of law, to copy the list at the principal office of the
Corporation during regular business hours and at the Shareholder's expense
during the period it is available for inspection.
(c) The Secretary shall make the list of Shareholders available at
the meeting, and any Shareholder or the Shareholder's agent or attorney is
entitled to inspect the list at any time during the meeting or any adjournment.
(d) Refusal or failure to prepare or make available the list of
Shareholders does not affect the validity of action taken at the meeting.
2.11 Quorum.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Unless the Articles of Incorporation or law provide for
a lesser or greater number, a majority of the votes
entitled to be cast on the matter by the voting group constitutes a quorum of
that voting group for action on that matter.
(b) Once a share is represented for any purpose at a 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.
2.12 Voting.
(a) Each outstanding share is entitled to one vote on each matter
voted on at a meeting of Shareholders. Votes may not be cumulated for any matter
brought before the Shareholders for a vote.
(b) If a quorum exists, action on a matter, other than the election
of directors, by a voting group is approved if a majority of the votes cast
within the voting group favor the action, unless the Articles of Incorporation
or law require a greater number of affirmative votes.
(c) Directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present. Shareholders do not have the right to cumulate their votes for the
election of a director or directors.
(d) If the Articles of Incorporation or law provide for voting by a
single group on a matter, action on that matter is taken when voted upon by that
voting group.
2.13 Proxies.
(a) A Shareholder may vote shares in person or by proxy.
(b) A Shareholder may appoint a proxy to vote or otherwise act for
the Shareholder by signing an appointment form, either personally or by the
Shareholder's attorney-in-fact.
(c) An appointment of a proxy is effective when received by the
Secretary. An appointment is valid for 11 months unless a longer period is
expressly provided in the appointment form.
2.14 Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a Shareholder, the Corporation, if acting
in good faith, is entitled to accept the vote, consent, waiver or proxy
appointment and give it effect as the act of the Shareholder.
(b) If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its Shareholder, the Corporation,
if acting in good faith, nevertheless is entitled to accept the vote, consent,
waiver or proxy appointment and give it effect as the act of the Shareholder if:
(1) The Shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
(2) The name signed purports to be that of an administrator,
executor, guardian or conservator representing the Shareholder and,
if the Corporation requests, evidence of fiduciary status acceptable
to the Corporation has been presented with respect to the vote,
consent, waiver or proxy appointment;
(3) The name signed purports to be that of a receiver or
trustee in bankruptcy of the Shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation has
been presented with respect to the vote, consent, waiver or proxy
appointment;
(4) The name signed purports to be that of a pledgee,
beneficial owner or attorney-in--fact of the Shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the Shareholder has been presented
with respect to the vote, consent, waiver or proxy appointment; or
(5) Two or more persons are the Shareholder as cotenants or
fiduciaries and the name signed purports to be the name of at least
one of the co-owners and the person signing appears to be acting on
behalf of all co-owners.
(c) The Corporation is entitled to reject a vote, consent, waiver or
proxy appointment if the Secretary, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the signatory's
authority to sign for the Shareholder.
(d) Redeemable shares are not entitled to vote after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
(e) The shares of the Corporation are not entitled to vote if they
are owned, directly or indirectly, by a second domestic or foreign Corporation,
and the Corporation owns, directly or indirectly, a majority of the shares
entitled to vote for directors of the second Corporation. The preceding sentence
does not limit the power of the Corporation to vote any shares, including its
own shares, held by it in a fiduciary capacity.
ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers. All corporate powers of the Corporation shall be
exercised by or under the authority of, and the business and affairs of the
Corporation managed under the direction of, the Board of Directors, subject to
any limitations set forth in the Articles of Incorporation.
3.2 Number, Qualification and Term.
(a) The number of directors shall be not less than five (5) and not
more than fifteen (15). The number of directors shall be within the limits
specified, and as determined by resolutions adopted by the directors and may,
subject to the Articles of Incorporation, be increased or decreased from time to
time by amendment of these Bylaws, but no decrease shall shorten the term of an
incumbent director.
(b) Directors shall be elected in accordance with the provisions of
the Articles of Incorporation.
(c) Directors need not be residents of the State of Idaho or
Shareholders of the Corporation.
(d) The terms of the initial directors expire at the first meeting
of Shareholders at which directors are elected. The terms of all other directors
expire at the next Annual Meeting of Shareholders following their election
except that in the event the Board of Directors consists of nine (9) or more
directors, then their terms and the dates of their election shall be as provided
for in the Articles of Incorporation. Despite the expiration of a director's
term, the director continues to serve until the director's successor is elected
and qualifies or until there is a decrease in the number of directors.
3.3 Resignation.
(a) A director may resign at any time by delivering written notice
to the Board of Directors, the Chair of the Board or the Corporation.
(b) A resignation is effective when the notice is effective under
Article VIII of these Bylaws unless the notice specifies a later effective date.
(c) Once delivered, a notice of resignation is irrevocable unless
revocation is permitted by the Board of Directors.
3.4 Removal by Shareholders.
(a) The Shareholders may remove one or more directors in the midst
of the director's term only for "cause" as defined and provided in the Articles
of Incorporation.
(b) A director may be removed only if the number of votes cast to
remove the director exceed the number of votes cast not to remove the director.
Shareholders do not have the right to cumulate their votes for the removal of a
director or directors.
(c) A director may be removed by the Shareholders only at a meeting
called for the purpose of removing the director and the meeting notice must
state that the purpose, or one of the purposes, of the meeting is removal of the
director.
3.5 Vacancies.
(a) If a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of directors:
(1) The Board may fill the vacancy;
(2) If the directors remaining in office constitute fewer than
a quorum of the Board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office; and
(3) Shareholders may not fill vacancies.
(b) A director elected to fill a vacancy shall hold office for the
unexpired portion of the term of the director whose position shall be vacant and
until his or her successor shall be elected and qualified.
3.6 Compensation. The Board of Directors, by resolution, may pay each
director his or her expenses, if any, of attendance at each meeting of the Board
or of a committee of the Board, as well as a stated salary for his or her
service as a director or a fixed sum for attendance at each meeting of the Board
or of a committee of the Board or both. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
3.7 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice of the date, time, place or purpose of the meeting. The
Board may provide, by resolution, the time and place, either within or without
the State of Idaho, for the holding of regular meetings without other notice
than such resolution.
3.8 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chair of the Board or any two of the
directors. The person or persons authorized to call Special Meetings of the
Board may fix the time and place, either within or without the State of Idaho,
as the time and place for holding any Special Meeting of the Board called by
him, her or them.
3.9 Telephone Meetings. The Board of Directors may permit any or all
directors to participate in a regular or Special Meeting by, or conduct the
meeting through, use of any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
3.10 Action Without a Meeting.
(a) Action required or permitted to be taken at a meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board. The action must be evidenced by one or more
written-consents describing the action taken,
signed by each director and included in the minutes or filed with the corporate
records reflecting the action taken.
(b) Action taken under this Section is effective when the last
director signs the consent, unless the consent specifies an earlier or later
effective date.
(c) A consent signed under this Section has the effect of a meeting
vote and may be described as such in any document.
3.11 Notice of Meetings. Special Meetings of the Board of Directors must
be preceded by at least two days' notice of the date, time and place of the
meeting. The notice need not describe the purpose of the Special Meeting. Notice
shall be provided as set forth in Section 8.2.
3.12 Waiver of Notice.
(a) A director at any time may waive any notice required by law, the
Articles of Incorporation or these Bylaws. Except as provided in Subsection (b)
of this Section 3.12, the waiver must be in writing, must be signed by the
director entitled to the notice, must specify the meeting for which notice is
waived and must be filed with the minutes or corporate records.
(b) A director's attendance at or participation in a meeting waives
any required notice to the director of the meeting unless the director at the
beginning of the meeting, or promptly upon the director's arrival, objects to
holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
3.13 Organization of Meetings. At every meeting of the Board of Directors:
(a) The Chair of the Board, or if the Chair of the Board has not
been appointed or is absent, then the Vice Chair of the Board, or if the Vice
Chair of the Board has not been appointed or is absent, then any director chosen
by a majority of the directors present at the meeting, shall act as chair of the
meeting.
(b) The Secretary, or if the Secretary is absent then any Assistant
Secretary, or if no Assistant Secretary has been appointed or is present, then
any individual chosen by a majority of the directors present at the meeting,
shall act as secretary of the meeting.
3.14 Quorum. A quorum of the Board of Directors consists of:
(a) If the Corporation has a fixed Board size, a majority of the
fixed number of directors; or
(b) If the Corporation has a variable-range size Board, a majority
of the number of directors prescribed, or if no number is prescribed, a majority
of the number in office immediately before the meeting begins.
3.15 Voting.
(a) If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the Board of Directors.
(b) A director who is present at a meeting of the Board of Directors
or a committee of the Board when corporate action is taken is deemed to have
assented to the action taken unless:
(1) The director objects at the beginning of the meeting, or
promptly upon the director's arrival, to holding the meeting or
transacting business at the meeting;
(2) The director's dissent or abstention from the action taken
is entered in the minutes of the meeting; or
(3) The director delivers written notice of dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Corporation immediately after adjournment of
the meeting.
The right of dissent or abstention is not available to a director who votes in
favor of the action taken.
3.16 Committees.
(a) The Board of Directors may create one or more committees and
appoint members of the Board to serve on them. Each committee shall have two or
more members, who serve at the pleasure of the Board.
(b) The creation of a committee and appointment of members to it
must be approved by the greater of a majority of all the directors in office
when the action is taken or the number of directors required to take action
under Section 3.15.
(c) The provisions of the Articles of Incorporation and these Bylaws
governing meetings, action without meetings, notice, waiver of notice and quorum
and voting requirements of the Board of Directors apply to committees and their
members as well.
(d) Except as provided in Subsection (e) of this Section 3.16, to
the extent specified by the Board of Directors or in the Articles of
Incorporation, each committee may exercise the authority of the Board.
(e) A committee may not:
(1) Authorize distributions;
(2) Approve or propose to Shareholders actions that are
required to be approved by Shareholders;
(3) Fill vacancies on the Board of Directors or on any of
its committees;
(4) Amend the Articles of Incorporation;
(5) Adopt, amend or repeal bylaws;
(6) Approve a plan of merger not requiring Shareholder
approval;
(7) Authorize or approve reacquisition of shares; or
(8) Authorize or approve the issuance or sale or contract
for issuance or sale of shares or any other securities
of the Corporation, or determine the designation and
relative rights, preferences and limitations of a class
or series of shares of the Corporation.
3.17 Conflicts of Interest. A conflict of interest transaction is not
voidable by the Corporation solely because of a director's interest in the
transaction if any one of the following is true:
(a) The material facts of the transaction and the director's
interest were disclosed or known to the Board of Directors or a committee of the
Board and the Board or committee authorized, approved or ratified the
transaction;
(b) The material facts of the transaction and the director's
interest were disclosed or known to the Shareholders entitled to vote and they
authorized, approved or ratified the transaction; or
(c) The transaction was fair to the Corporation.
3.18 Loans to Directors.
(a) The Corporation may not lend money to or guarantee the
obligation of a director unless:
(1) The particular loan or guaranty is approved by a majority
of the votes represented by the outstanding voting shares of all classes, voting
as a single voting group, excluding the votes of shares owned by or voted under
the control of the benefitted director; or
(2) The Board of Directors determines that the loan or
guaranty benefits the Corporation and either approves the specific loan or
guaranty or a general plan authorizing loans and guaranties.
(b) The fact that a loan or guaranty is made in violation of this
Section does not affect the borrowers liability on the loan.
3.19 Certain Board Actions.
(a) Subject to the provisions of the Articles of Incorporation, the
Board of Directors, when evaluating any offer of another party to (i) make a
tender or exchange offer for the equity securities of the Corporation or any
subsidiary, (ii) merge or consolidate the Corporation or any subsidiary with
another Corporation, or (iii) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation, or of any subsidiary, may,
in connection with the exercise of its judgment in determining what is in the
best interests of the Corporation and its Shareholders, give due consideration
to all relative factors, including by way of illustration but not of limitation
any or all of the following:
(1) Whether the offer is acceptable based on historical
operating results, the financial condition of the Corporation and
its subsidiaries, and its future prospects;
(2) Whether a more favorable offer could be obtained for the
Corporation's or its subsidiaries' securities or assets in the
foreseeable future;
(3) The social, economic, or any other material impact that an
acquisition of the equity securities of the Corporation or
substantially all of its assets would have upon the employees and
customers of the Corporation and its subsidiaries and the
communities that they serve;
(4) The reputation and business practices of the offeror and
its management and affiliates as they would affect the employees and
customers of the Corporation and its subsidiaries and the future
value of the Corporation's stock;
(5) The value of the securities, if any, that the offeror is
offering in exchange for the Corporation's or its subsidiaries'
securities or assets based on an analysis of the worth of the
Corporation or its subsidiaries as compared to the offeror
Corporation or other entity whose securities are being offered; and
(6) Any antitrust or other legal or regulatory issues that are
raised by the offer.
(b) If the Board of Directors determines that an offer should be
rejected, it may take any lawful action to accomplish its purpose including, but
not limited to, any and all of the following:
(1) Recommending that Shareholders not accept the offer;
(2) Litigation against the offeror;
(3) Filing complaints or protests with any governmental and
regulatory authorities;
(4) Acquiring the Corporation's securities, subject to the
requirements of applicable law;
(5) Selling or otherwise issuing authorized but unissued
securities or granting options with respect thereto; and
(6) Obtaining a more favorable offer from another individual
or entity.
ARTICLE IV
OFFICERS
4.1 Number.
(a) The officers of the Corporation shall include a President and a
Secretary and may also include one or more Vice Presidents and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers,
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board and shall have such powers and duties as may be
prescribed by the Board.
(b) The same individual may simultaneously hold more than one office
in the Corporation.
4.2 Term of Office. Each officer shall hold office until a successor shall
have been duly elected and shall have qualified or until the officers
resignation or removal.
4.3 Resignation.
(a) An officer may resign at any time by delivering notice to the
Corporation. A resignation is effective when the notice is effective under
Article VIII unless the notice specifies a later effective date.
(b) Once delivered, a notice of resignation is irrevocable unless
revocation is permitted by the Board of Directors.
4.4 Removal. The Board of Directors may remove any officer at any time
with or without cause.
4.5 Contract Rights of Officers. The election of an officer does not
itself create contract rights. Removal or resignation of an officer does not
affect the contract rights, if any, of the Corporation or the officer.
4.6 Chair of the Board. The Chair of the Board shall preside at all
meetings of the Board of Directors and shall perform such other duties as from
time to time may be prescribed by the Board.
4.7 Vice Chair of the Board. The Vice Chair of the Board shall preside at
all meetings of the Board of Directors in the absence of the Chair and shall
perform such other duties as from time to time may be prescribed by the Board.
4.8 President. The President shall be the principal executive officer of
the Corporation and, subject to the control of the Board of Directors, in
general shall supervise, direct and control the business and affairs and the
other officers of the Corporation. The President shall perform all duties
commonly incident to the office of President and such other duties as from time
to time may be assigned by the Board.
4.9 Secretary. The Secretary shall:
(a) Prepare the minutes of all meetings of the Board of Directors
and all committees of the Board and of all meetings of Shareholders and shall
have custody of the minute book and other corporate records;
(b) Countersign all instruments requiring the seal of the
Corporation except when the power to sign or execute is expressly delegated to
another officer by the Board of Directors or these Bylaws;
(c) See that all notices provided for in these Bylaws are duly
given;
(d) Keep a register of the mailing address of each Shareholder as
furnished to the Secretary by such Shareholder;
(e) Have general charge of the stock transfer books of the
Corporation;
(f) Authenticate records of the Corporation; and
(g) In general perform all duties commonly incident to the office of
Secretary and such other duties as from time to time may be assigned by the
President or the Board.
4.10 Treasurer. The Treasurer shall:
(a) Have charge and custody of and be responsible for all funds and
securities of the Corporation;
(b) Receive and give receipts for monies due and payable to the
Corporation from an-y source whatsoever and deposit all such monies in the name
of the Corporation in such banks, trust companies or other depositories as shall
be selected in accordance with the provisions of Article VI of these Bylaws;
(c) If required by the Board, give a bond for the faithful discharge
of his or her duties in such sum and with such surety or sureties as the Board
shall determine; and
(d) In general perform all duties commonly 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.
4.11 Salaries. The salary of the President and Chief Executive Officer
shall be fixed from time to time by the Board of Directors. Salaries of other
employees shall be fixed from time to time by the President and Chief Executive
Officer, subject to the approval of the Board of Directors. The President and
Chief Executive Officer shall not be prevented from receiving such salary
because the officer is also a director of the Corporation. The President and
Chief Executive Officer who also is a director may vote upon his or her own
salary.
4.12 Officers' Bonds. Any active officer or employee shall give or cause
to be provided such bond for the faithful discharge of his or her duties in such
sum and with such surety or sureties as the Board of Directors shall request.
ARTICLE V
SHARES
5.1 Issuance of Shares. The Board of Directors may authorize shares to be
issued for consideration consisting of any tangible or intangible property or
benefit to the Corporation, including cash, promissory notes, services
performed, or other securities of the Corporation.
5.2 Share Options. The Corporation may issue rights, options or warrants
for the purchase of shares of the Corporation. The Board of Directors shall
determine the terms upon which such rights, options or warrants are issued,
their form and content and the consideration for which the shares are to be
issued.
5.3 Certificates for Shares.
(a) The Board of Directors 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 on certificates under section (b), below.
(b) Certificates representing shares of the Corporation shall be in
such form as shall be determined by the Board of Directors, provided that each
certificate shall state on its face:
(1) The name of the Corporation and that it is organized under
the laws of the State of Idaho;
(2) The name of the person to whom the shares are issued; and
(3) The number and class of shares and the designation of the
series, if any, the certificate represents.
(c) If the Corporation is authorized in its Articles of
Incorporation to issue different classes of shares or different series within a
class, the designations, relative rights, preferences and limitations applicable
to each class, 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 either shall be summarized on the front or back of
each certificate or each certificate shall state conspicuously on its front or
back that the Corporation will furnish the Shareholder with this information on
request in writing and without charge.
(d) Certificates shall be signed, either manually or with a
facsimile of manual signatures, by the President and by the Secretary or an
Assistant Secretary.
(e) All certificates surrendered to the Corporation for transfer
shall be canceled and no new certificate shall be issued until the former
certificate 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 and indemnity to the Corporation as the Board of Directors may
prescribe.
5.4 Transfer of Shares. Transfer of shares of the Corporation shall be
made only by the holder of record thereof, the holder's legal representative
(who shall furnish proper evidence of authority to transfer) or the holder's
attorney (who shall furnish a proper power of attorney duly executed and filed
with the Secretary of the Corporation). The person in whose name shares stand on
the books of the Corporation shall be deemed by the Corporation to be the owner
thereof for all purposes.
5.5 Restrictions on Transfer. No securities of the Corporation and no
certificate representing such securities shall be transferred in violation of
any:
(a) Law, or
(b) Restriction on such transfer set forth in the Articles of
Incorporation.
5.6 No Fractional Shares. The Corporation shall not issue fractions of
shares.
5.7 Transfer Agent and Registrar. The Board of Directors may appoint one
or more transfer agents or transfer clerks and one or more registrars and may
require all certificates for shares to bear their signatures.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
6.1 Contracts. Except as provided otherwise by law or these Bylaws, the
Board of Directors may authorize any officer or officers and agent or agents to
enter into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation, and such authority may be general or confined to
specific instances.
6.2 Loans. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
6.3 Checks and Drafts. All checks, drafts or other orders for the payment
of money and notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers and agent or agents of
the Corporation as from time to time shall be determined by resolution of the
Board of Directors.
6.4 Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select.
ARTICLE VII
DIVIDENDS
From time to time, the Board of Directors in the exercise of sound
discretion may declare and the Corporation may pay dividends or make other
distributions to its Shareholders subject to the requirements of law.
ARTICLE VIII
NOTICE
8.1 Written Notice. Notice shall be in writing unless oral notice is
specifically permitted under the circumstances by these Bylaws. All notices by
the Corporation to the Shareholders shall be in writing.
8.2 Methods of Notice. Notice may be communicated in person, by mail or
other method of delivery; or by telephone, voice mail or other electronic means
including e-mail. If these forms of personal notice are impracticable, notice
may be communicated by a newspaper of general circulation in the area where
publishes, or by radio, television, or other form of public broadcast
communication.
8.3 When Notice Effective.
(a) Written notice by the Corporation to a Shareholder, if in a
comprehensible form, is effective when mailed if it is mailed postage prepaid
and is correctly addressed to the Shareholder's address shown in the
Corporation's current record of Shareholders, or upon electronic transmission.
(b) Oral notice is effective when communicated if communicated in a
comprehensible manner.
(c) Notice by facsimile is effective when faxed to the number
provided by the person entitled to notice.
8.4 Notice to a Corporation. Written notice to a domestic or foreign
Corporation authorized to transact business in the State of Idaho may be
addressed to its registered agent at its registered office or to the domestic or
foreign Corporation or its president or secretary at its principal office or
mailing address as shown in the records of the office.
ARTICLE IX
AMENDMENTS
These Bylaws may be amended or repealed and new bylaws may be adopted by
the Board of Directors at any regular or Special Meeting, subject to repeal or
change by action of the Shareholders of the Corporation at a regular of Special
Shareholders' Meeting.
ARTICLE X
INDEMNIFICATION
10.1 Directors and Officers. The Corporation shall indemnify its directors
and officers who are made, or threatened to be made, parties to a proceeding by
reason of the fact that the person is or was a director or officer of the
Corporation, for liability incurred by such persons as a result of such
proceedings, to the fullest extent permitted by the Idaho Business Corporation
Act ("The Act"), as the same exists or may hereafter be amended (but, in the
case of alleged occurrences of actions or omissions preceding any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than The Act permitted the Corporation to
provide prior to such amendment).
10.2 No Presumption of Bad Faith. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the Corporation or, with respect to any
criminal proceeding, that the person had reasonable cause to believe that its
conduct was unlawful.
10.3 Advances of Expenses to Officers and Directors. The reasonable
expenses incurred by a director or officer in any proceeding to which that
person is made a party by reason of such person's office or directorship shall,
at the written request of the director or officer, be paid by the Corporation
prior to final judgment or disposition of the matter, if the director or
officer:
(a) Furnishes the Corporation a written affirmation of such person's
good faith belief that such person is entitled to be indemnified by the
Corporation; and
(b) Furnishes the Corporation a written undertaking to repay such
advance to the extent that it is ultimately determined by a court that such
person is not entitled to be indemnified by the Corporation. Such advances shall
be made without regard to the person's ability to repay such expenses and
without advance determination of the person's ultimate entitlement to
indemnification under this Article or otherwise.
10.4 Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances to or on behalf of
directors and officers under this Article shall be deemed to be contractual
rights and be effective to the same extent and as if provided for in a contract
between the Corporation and the director or officer who serves in such capacity
at any time while this bylaw and relevant provisions of The Act and other
applicable law, if any, are in effect. Any right to indemnification or advances
granted by this Article to a director or officer shall be enforceable by on or
on behalf of the person holding such right in any court of competent
jurisdiction if (a) the claim for indemnification or advances is improperly
denied, in whole or in part, or (b) no disposition of such claim is made within
90 days after a written request therefor. The claimant in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also the
reasonable expense of prosecuting the enforcement claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
reasonable expenses incurred in connection with any proceeding in advance of its
final disposition when the required affirmation and undertaking have been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under The Act for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or its Shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in The Act, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel or its Shareholders) that the claimant has not met
such applicable standard of conduct, by itself shall be a defense to the action
or create a presumption that the claimant has not met the applicable standard of
conduct.
10.5 Non-Exclusivity of Rights. The rights conferred on any person by this
Article shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of Articles of Incorporation,
Bylaws, agreement, vote of Shareholders or disinterested directors or otherwise,
both as to action in the person's official capacity and as to action in another
capacity while holding office. The Board of Directors is specifically authorized
to enter into individual contracts with any or all of the Corporation's
directors or officers on behalf of the Corporation respecting indemnification
and advances, to the fullest extent permitted by the law. To the extent any such
contract is more limited than the rights created by this Article, the contract
shall govern.
10.6 Survival of Rights. The rights conferred on any person by this
Article shall continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such person.
10.7 Insurance. To the fullest extent permitted by The Act, the
Corporation, upon approval by the Board of Directors, may purchase insurance on
behalf of any person required or permitted to be indemnified pursuant to this
Article or any contract. Any obligation or authorization of the Corporation for
payment of indemnity or advancement of expenses to or on behalf of a director or
officer pursuant to any provision in this or other documents shall be
extinguished to the extent there is enforceable insurance coverage for the same
expenses or liabilities. If insurance coverage is disputed, the Corporation
shall advance any expenses and other payments required by this Article upon
assignment of the claim against the insurer for failure to provide or pay such
amounts.
10.8 Amendment. Any repeal of this Article shall operate only
prospectively and no repeal or modification hereof shall adversely affect the
rights under this Article in effect at the time of the alleged occurrence of any
action or omission to act that is the cause of any proceeding against any agent
of the Corporation.
10.9 Savings Clause. If this Article or any portion hereof is invalidated
on any ground by any court of competent jurisdiction, the Corporation shall
retain the obligation or power to indemnify each director or officer to the
fullest extent permitted by any applicable portion of this Article that shall
not have been invalidated, or by any other applicable law.
10.10 Certain Definitions. For the purpose of this Article, the following
definitions shall apply:
(a) The term `proceeding shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement and appeal of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative.
(b) The term `expenses" shall be broadly construed and shall
include, without limitation, reasonable expenses of investigations, judicial or
administrative proceedings or appeals, attorneys fees and disbursements and
reasonable expenses of establishing a right to indemnification under this
Article but shall not include amounts paid in settlement, judgments, fines or
other monetary penalties.
(c) The term "liability" shall be broadly construed and shall
include payment or legal responsibility to pay judgments and decrees,
administrative imposition of fines or other monetary penalties, and reasonable
settlement of disputed claims.
(d) The term "Corporation" shall include, in addition to the
resulting or surviving 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 authority to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was serving at the request
of such
constituent corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as the person would have with respect to such constituent
corporation if its separate existence had continued.
(e) Reference to a "director" or "officer of the Corporation shall
include, without limitation, situations where such person is serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise.
(f) Reference to "other enterprises" shall include employee benefit
plans. References to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan. References to "serving at the request
of the Corporation" shall include any service as a director or officer of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to any employee benefit plan, its participants, or
beneficiaries. A person who acted in good faith and in a manner the person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, without reasonable cause to believe that any
conduct asserted to constitute a criminal violation was unlawful shall be deemed
to have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article.
These amended and Restated Bylaws were approved by the Board on September 3,
2004.
/s/ Terry Merwin
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Secretary