SECOND RESTATED BYLAWS
OF
INTEGRATED MEASUREMENT SYSTEMS, INC.
ARTICLE I
OFFICES
1.1 PRINCIPAL OFFICE. The principal office of the corporation shall be
located at 9525 S.W. Gemini Drive, Beaverton, Oregon 97008. The corporation
may have such other offices as the Board of Directors may designate or as the
business of the corporation may from time to time require.
1.2 REGISTERED OFFICE. The registered office of the corporation
required by the Oregon Business Corporation Act to be maintained in the State
of Oregon may be, but need not be, identical with the principal office in the
State of Oregon, and the address of the registered office may be changed from
time to time by the Board of Directors.
ARTICLE II
SHAREHOLDERS
2.1 ANNUAL MEETING. The annual meeting of the shareholders shall be
held during the month of May each year, unless a different date and time are
fixed by the Board of Directors and stated in the notice of the meeting. The
failure to hold an annual meeting at the time stated herein shall not affect
the validity of any corporate action.
2.2 SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the President or by the Board of Directors and shall be called by
the President (or in the event of absence, incapacity, or refusal of the
President, by the Secretary or any other officer) at the request of the
holders of not less than one-tenth of all the outstanding shares of the
corporation entitled to vote at the meeting. The requesting shareholders
shall sign, date, and deliver to the Secretary a written demand describing
the purpose or purposes for holding the special meeting.
2.3 PLACE OF MEETINGS. Meetings of the shareholders shall be held at
the principal business office of the corporation or at such other place,
within or without the State of Oregon, as may be determined by the Board of
Directors.
2.4 NOTICE OF MEETINGS. Written notice stating the date, time, and
place of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called shall be mailed to each shareholder
entitled to vote at the meeting at the
shareholder's address shown in the corporation's current record of
shareholders, with postage thereon prepaid, not less than 10 nor more than 60
days before the date of the meeting.
2.5 WAIVER OF NOTICE. A shareholder may at any time waive any notice
required by law, the Articles of Incorporation, or these Second Restated
Bylaws. The waiver must be in writing, be signed by the shareholder entitled
to the notice, and be delivered to the corporation for inclusion in the
minutes for filing with the corporate records. A shareholder's attendance at
a meeting waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting. The
shareholder's attendance also waives objection to 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.
2.6 RECORD DATE
(a) For the purpose of determining shareholders entitled to notice
of a shareholders' meeting, to demand a special meeting, or to vote or to
take any other action, the Board of Directors may fix a future date as the
record date for any such determination of shareholders, such date in any case
to be not more than 70 days before the meeting or action requiring a
determination of shareholders. The record date shall be the same for all
voting groups.
(b) A determination of shareholders entitled to notice of or to
vote at a shareholders' meeting 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.
(c) If a court orders a meeting adjourned to a date more than 120
days after the date fixed for the original meeting, it may provide that the
original record date continue in effect or it may fix a new record date.
2.7 SHAREHOLDERS' LIST FOR MEETING. After the record date for a
shareholders' meeting is fixed by the Board of Directors, the Secretary of
the corporation shall prepare an alphabetical list of the names of all its
shareholders entitled to notice of the shareholders' meeting. The list must
be arranged by voting group and within each voting group by class or series
of shares and show the address of and number of shares held by each
shareholder. The shareholders' list must be available for inspection by any
shareholder, beginning two business days after notice of the meeting is given
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. The corporation shall make the shareholders' list 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. Refusal or failure to prepare or make available the
shareholders' list does not affect the validity of action taken at the
meeting.
2.8 QUORUM; ADJOURNMENT. 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. 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 in that matter. A majority of shares represented at
the meeting, although less than a quorum, may adjourn the meeting from time
to time to a different time and place without further notice to any
shareholder of any adjournment. At such adjourned meeting at which a quorum
is present, any business may be transacted that might have been transacted at
the meeting originally held. Once a share is represented for any purpose at
a meeting, it shall be deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting, unless a new record
date is set for the adjourned meeting.
2.9 VOTING REQUIREMENTS; ACTION WITHOUT MEETING. Unless otherwise
provided in the Articles of Incorporation, each outstanding share entitled to
vote shall be entitled to one vote upon each matter submitted to a vote at a
meeting of shareholders. If a quorum exists, action on a matter, other than
the election of directors, is approved if the votes cast by the shares
entitled to vote favoring the action exceed the votes cast opposing the
action, unless a greater number of affirmative votes is required by law or
the Articles of Incorporation. If a quorum exists, directors are elected by
a plurality of the votes cast by the shares entitled to vote unless otherwise
provided in the Articles of Incorporation. No cumulative voting for
directors shall be permitted unless the Articles of Incorporation so provide.
Action required or permitted by law to be taken at a shareholders' meeting
may be taken without a meeting if the action is taken by all the shareholders
entitled to vote on the action. The action must be evidenced by one or more
written consents describing the action taken, signed by all the shareholders
entitled to vote on the action and delivered to the corporation for inclusion
in the minutes for filing with the corporate records. Action taken under
this section is effective when the last shareholder signs the consent, unless
the consent specifies an earlier or later effective date. If the law
requires that notice of proposed action be given to nonvoting shareholders
and the action is to be taken by unanimous consent of the voting
shareholders, the corporation must give its nonvoting shareholders written
notice of the proposed action at least 10 days before the action is taken.
The notice must contain or be accompanied by the same material that, under
the Oregon Business Corporation Act, would have been required to be sent to
nonvoting shareholders in a notice of meeting at which the proposed action
would have been submitted to the shareholders for action.
2.10 PROXIES.
(a) A shareholder may vote shares in person or by proxy by signing
an appointment, either personally or by the shareholder's attorney-in-fact.
An appointment of a proxy shall be effective when received by the Secretary
or other officer of the corporation authorized to tabulate votes. An
appointment is valid for 11 months unless a longer period is provided in
the appointment form. An appointment is revocable by the shareholder
unless the appointment form conspicuously states that it is irrevocable and
the appointment is coupled with an interest that has not been extinguished.
(b) The death or incapacity of a shareholder appointing a proxy
shall not affect the right of the corporation to accept the proxy's authority
unless notice of the death or incapacity is received by the Secretary or
other officer authorized to tabulate votes before the proxy exercises the
proxy's authority under the appointment.
2.11 CORPORATION'S 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 a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, or proxy appointment and give it effect as the act of
the shareholder if:
(i) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
(ii) 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;
(iii) 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;
(iv) 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
(v) Two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver,
or proxy appointment if the Secretary or other officer or agent authorized to
tabulate votes, 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) The shares of a corporation are not entitled to vote if they
are owned, directly or indirectly, by a second corporation, and the first
corporation owns, directly or indirectly, a majority of the shares entitled
to vote for directors of the second corporation; provided, however, a
corporation may vote any shares, including its own shares, held by it in a
fiduciary capacity.
(e) The corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this provision shall not be liable in
damages to the shareholder for the consequences of the acceptance or
rejection. Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this provision is valid unless a
court of competent jurisdiction determines otherwise.
2.12 NOTICE OF BUSINESS TO BE CONDUCTED AT MEETING. At an annual
meeting of the shareholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before
an annual meeting, business must be (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
an annual meeting by a shareholder.
For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in writing
to the Secretary of the corporation. To be timely, a shareholder's notice
must be delivered to or mailed and received at the principal executive
offices of the corporation not less than 60 days nor more than 90 days prior
to the meeting; provided, however, that in the event that less than 60 days'
notice or prior public disclosure of the date of the meeting is given or made
to shareholders, notice by the shareholder to be timely must be so received
not later than the close of business on the 10th day following the day on
which such notice of the date of the annual meeting was mailed or such public
disclosure was made.
A shareholder's notice to the Secretary shall 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 annual
meeting and the reasons for conducting such business at the annual meeting,
(b) the name and address, as they appear on the corporation's books, of the
shareholder proposing such business, (c) the class and number of shares of
stock of the corporation which are beneficially owned by the shareholder, and
(d) any material interest of the shareholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 2.12.
The Chairman of the annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 2.12
and if the Chairman should so determine, the Chairman shall so declare to the
meeting and any such business not properly brought before the meeting shall
not be transacted.
ARTICLE III
BOARD OF DIRECTORS
3.1 DUTIES. All corporate powers shall be exercised by or under the
authority of the Board of Directors and the business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors.
3.2 NUMBER AND QUALIFICATION. As set forth in the Restated Articles of
Incorporation, the number of directors of the corporation shall be not less
than three nor more than twelve, and within such limits, the exact number
shall be fixed and increased or decreased from time to time by resolution of
the Board of Directors. If the number of directors is fixed by the Board of
Directors at six or more, the directors shall be divided into three classes
designated Class I, Class II and Class III, each class to be as nearly equal
in number as possible. At the next annual meeting of shareholders following
that designation ("First Meeting"), directors of all three classes shall be
elected. The term of office of Class I directors shall expire at the first
annual meeting of shareholders following their election. The terms of Class
II directors shall expire at the second annual meeting of shareholders
following their election. The terms of the Class III directors shall expire
at the third annual meeting of shareholders following their election. At
each annual meeting of shareholders after the First Meeting, each class of
directors elected to succeed those directors whose terms expire shall be
elected to serve for three-year terms and until their successors are elected
and qualified, so that the term of one class of directors will expire each
year. When the number of directors is changed within the limits provided
herein, any newly created directorships, or any decrease in directorships,
shall be so apportioned among the classes as to make all classes as nearly
equal as
possible, provided that no decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
directors. Directors need not be residents of the State of Oregon or
shareholders of the corporation.
3.3 CHAIRMAN OF THE BOARD OF DIRECTORS. The directors may elect a
director to serve as Chairman of the Board of Directors to preside at all
meetings of the Board of Directors and to fulfill any other responsibilities
delegated by the Board of Directors.
3.4 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this Section 3.4 immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Oregon, for the holding of additional regular meetings
without other notice than the resolution.
3.5 SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the President or any director. The person
or persons authorized to call special meetings of the Board of Directors may
fix any place, either within or without the State of Oregon, as the place for
holding any special meeting of the Board of Directors called by them.
3.6 NOTICE. Notice of the date, time, and place of any special meeting
of the Board of Directors shall be given at least three days prior to the
meeting by any means provided by law. If mailed, notice shall be deemed to
be given upon deposit in the United States mail addressed to the director at
the director's business address, with postage thereon prepaid. If by
telegram, notice shall be deemed to be given when the telegram is delivered
to the telegraph company. Notice by all other means shall be deemed to be
given when received by the director or a person at the director's business or
residential address whom the person giving notice reasonably believes will
deliver or report the notice to the director within 24 hours. The attendance
of a director at a meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need
be specified in the notice or waiver of notice of such meeting.
3.7 WAIVER OF NOTICE. A director may at any time waive any notice
required by law, the Articles of Incorporation, or these Second Restated
Bylaws. Unless a director attends or participates in a meeting, a waiver
must be in writing, must be signed by the director entitled to notice, must
specify the meeting for which notice is waived, and must be filed with the
minutes or corporate records.
3.8 QUORUM. A majority of the number of directors fixed by Section 3.2
shall constitute a quorum for the transaction of business at any meeting of
the Board of Directors.
3.9 MANNER OF ACTING.
(a) The act of the majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors,
unless a different number is provided by law, the Articles of Incorporation,
or these Second Restated Bylaws.
(b) Members of the Board of Directors may hold a board meeting by
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation
in such a meeting shall constitute presence in person at the meeting.
(c) Any action that is required or permitted to be taken by the
directors at a meeting may be taken without a meeting if a consent in writing
setting forth the action so taken shall be signed by all of the directors
entitled to vote on the matter. The action shall be effective on the date
when the last signature is placed on the consent or at such earlier or later
time as is set forth therein. Such consent, which shall have the same effect
as a unanimous vote of the directors, shall be filed with the minutes of the
corporation.
3.10 VACANCIES. Any vacancy, including a vacancy resulting from an
increase in the number of directors, occurring on the Board of Directors may
be filled by the shareholders, the Board of Directors, or the affirmative
vote of a majority of the remaining directors if less than a quorum of the
Board of Directors, or by a sole remaining director. If the vacant office is
filled by the shareholders and was held by a director elected by a voting
group of shareholders, then only the holders of shares of that voting group
are entitled to vote to fill the vacancy. Any directorship not so filled by
the directors shall be filled by election at an annual meeting or at a
special meeting of shareholders called for that purpose. A director elected
to fill a vacancy shall be elected to serve until the next annual meeting of
shareholders and until a successor shall be duly elected and qualified. A
vacancy that will occur at a specific later date, by reason of a resignation
or otherwise, may be filled before the vacancy occurs, and the new director
shall take office when the vacancy occurs.
3.11 COMPENSATION. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
3.12 PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors shall be presumed to have assented to the action taken (a) unless
the director's dissent to the action is entered in the minutes of the
meeting, (b) unless a written dissent to the action is filed with the person
acting as the secretary of the meeting before the adjournment thereof or
forwarded by certified or registered mail to the Secretary of the corporation
immediately after the adjournment of the meeting or (c) unless the director
objects at the meeting to the holding of the meeting or transacting business
at the meeting. The right to dissent shall not apply to a director who voted
in favor of the action.
3.13 DIRECTOR CONFLICT OF INTEREST.
(a) A transaction in which a director of the corporation has a
direct or indirect interest shall be valid notwithstanding the director's
interest in the transaction if the material facts of the transaction and the
director's interest are disclosed or known to the Board of Directors or a
committee thereof and it authorizes, approves, or ratifies the transaction by
a vote or consent sufficient for the purpose without counting the votes or
consents of directors with a direct or indirect interest in the transaction;
or the material facts of the transaction and the director's interest are
disclosed or known to shareholders entitled to vote and they, voting as a
single group, authorize, approve, or ratify the transaction by a majority
vote; or the transaction is fair to the corporation.
(b) A conflict of interest transaction may be authorized,
approved, or ratified if it receives the affirmative vote of a majority of
directors on the Board of Directors or a committee thereof who have no direct
or indirect interest in the transaction. If a majority of such directors
vote to authorize, approve, or ratify the transaction, a quorum is present
for the purpose of taking action.
(c) A conflict of interest transaction may be authorized,
approved, or ratified by a majority vote of shareholders entitled to vote
thereon. Shares owned by or voted under the control of a director or an
entity controlled by a director who has a direct or indirect interest in the
transaction are entitled to vote with respect to a conflict of interest
transaction. A majority of the shares, whether or not present, that are
entitled to be counted in a vote on the transaction constitutes a quorum for
the purpose of authorizing, approving, or ratifying the transactions.
(d) A director has an indirect interest in a transaction if (i)
another entity in which the director has a material financial interest or in
which the director is a general partner is a party to the transaction or (ii)
another entity of which the director is a director, officer, or trustee is a
party to the transaction and the transaction is or should be considered by
the Board of Directors.
3.14 REMOVAL. All or any number of the directors of the corporation may
be removed only for cause and at a meeting of shareholders called expressly
for that purpose, by the vote of 75 percent of the votes then entitled to be
cast for the election of directors. At any meeting of shareholders at which
one or more directors are removed, a majority of votes then entitled to be
cast for the election of directors may fill any vacancy created by such
removal. If any vacancy created by removal of a director is not filled by
the shareholders at the meeting at which the removal is effected, such
vacancy may be filled by a majority vote of the remaining directors.
3.15 RESIGNATION. Any director may resign by delivering written notice
to the Board of Directors, its chairperson, or the corporation. Such
resignation shall be effective at the earliest of the following, unless the
notice specifies a later effective date, (a) on receipt, (b) five days after
its deposit in the United States mails, if mailed postpaid and correctly
addressed, or (c) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by addressee. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board of Directors.
3.16 NOMINATIONS FOR ELECTION TO BOARD OF DIRECTORS. Only persons who are
nominated in accordance with the procedures set forth in this Section 3.16
shall be eligible for election as directors. Nominations of persons for
election to the Board of Directors 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 for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 3.16.
Such nominations, other than those made by or at the direction of the
Board of Directors shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 60 days' notice or prior
public disclosure of the date of the meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made.
Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or re-election as a director,
(i) the name, age, business address and residence address of such person,
(ii) the principal occupation or employment of such person, (iii) the class
and number of shares of stock of the corporation which are beneficially owned
by such person, and (iv) any other information relating to such person that
is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(including, without limitation, such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (b) as to the shareholder giving the notice, (i) the name and address, as
they appear on the corporation's books, of such shareholder, and (ii) the
class and number of shares of stock of the corporation which are beneficially
owned by such shareholder.
At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
this Section 3.16. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these Second Restated Bylaws,
and if the Chairman should so determine, the Chairman shall so declare to the
meeting and the defective nomination shall be disregarded.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
4.1 DESIGNATION OF EXECUTIVE COMMITTEE. The Board of Directors may
designate two or more directors to constitute an executive committee. The
designation of an executive committee, and the delegation of authority to it,
shall not operate to relieve the Board of Directors, or any member thereof,
of any responsibility imposed by law. No member of the executive committee
shall continue to be a member thereof after ceasing to be a director of the
corporation. The Board of Directors shall have the power at any time to
increase or decrease the number of members of the executive committee, to
fill vacancies thereon, to change any member thereof, and to change the
functions or terminate the existence thereof. The creation of the executive
committee and the appointment of members to it shall be approved by a
majority of the directors in office when the action is taken, unless a
greater number is required by the Articles of Incorporation or these Second
Restated Bylaws.
4.2 POWERS OF EXECUTIVE COMMITTEE. During the interval between
meetings of the Board of Directors, and subject to such limitations as may be
imposed by resolution of the Board of Directors, the executive committee may
have and may exercise all the authority of the Board of Directors in the
management of the corporation, provided that the committee shall not have the
authority of the Board of Directors with respect to the
following matters: authorizing distributions; approving or proposing to the
shareholders actions that are required to be approved by the shareholders
under the Articles of Incorporation or these Second Restated Bylaws or by
law; filling vacancies on the Board of Directors or any committee thereof;
amending the Articles of Incorporation; adopting, amending, or repealing
bylaws; approving a plan of merger not requiring shareholder approval;
authorizing or approving a reacquisition of shares, except according to a
formula or method prescribed by the Board of Directors; authorizing or
approving the issuance or sale or contract for sale of shares or determining
the designation and relative rights, preferences, and limitations of a class
or series of shares except within limits specifically prescribed by the Board
of Directors.
4.3 PROCEDURES; MEETINGS; QUORUM.
(a) The Board of Directors shall appoint a chairperson from among
the members of the executive committee and shall appoint a secretary who may,
but need not, be a member of the executive committee. The chairperson shall
preside at all meetings of the executive committee and the secretary of the
executive committee shall keep a record of its acts and proceedings, which
shall be filed with the minutes of the corporation.
(b) Regular meetings of the executive committee, of which no
notice shall be necessary, shall be held on such days and at such places as
shall be fixed by resolution adopted by the executive committee. Special
meetings of the executive committee shall be called at the request of the
President or of any member of the executive committee, and shall be held upon
such notice as is required by these Second Restated Bylaws for special
meetings of the Board of Directors.
(c) Attendance of any member of the executive committee at a
meeting shall constitute a waiver of notice of the meeting. A majority of
the executive committee, from time to time, shall be necessary to constitute
a quorum for the transaction of any business, and the act of a majority of
the members present at a meeting at which a quorum is present shall be the
act of the executive committee. Members of the executive committee may hold
a meeting of such committee by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such meeting shall constitute presence in
person at the meeting.
(d) Any action that is required or permitted to be taken at a
meeting of the executive committee may be taken without a meeting if a
consent in writing setting forth the action so taken shall be signed by all
members of the executive committee entitled to vote on the matter. The
action shall be effective on the date when the last signature is placed on
the consent or at such earlier or later time as is set forth therein.
Such consent, which shall have the same effect as a unanimous vote of the
members of the executive committee, shall be filed with the minutes of the
corporation.
(e) The Board of Directors may approve a reasonable fee for the
members of the executive committee as compensation for attendance at meetings
of the executive committee.
4.4 OTHER COMMITTEES. By the approval of a majority of the directors
when the action is taken (unless a greater number is required by the Articles
of Incorporation), the Board of Directors, by resolution, may create one or
more additional committees, appoint directors to serve on them, and define
the duties of such committee or committees. Each such committee shall have
two or more members, who shall serve at the pleasure of the Board of
Directors. Such additional committee or committees shall not have the powers
proscribed in Section 4.2.
ARTICLE V
OFFICERS
5.1 NUMBER. The officers of the corporation shall be a President and a
Secretary. Such other officers and assistant officers as are deemed
necessary or desirable may be appointed by the Board of Directors and shall
have such powers and duties prescribed by the Board of Directors or the
officer authorized by the Board of Directors to prescribe the duties of other
officers. A duly appointed officer may appoint one or more officers or
assistant officers if such appointment is authorized by the Board of
Directors. Any two or more offices may be held by the same person.
5.2 APPOINTMENT AND TERM OF OFFICE. The officers of the corporation
shall be appointed annually by the Board of Directors at the first meeting of
the Board of Directors held after the annual meeting of the shareholders. If
the officers shall not be appointed at the meeting, a meeting shall be held
as soon thereafter as is convenient for such appointment of officers. Each
officer shall hold office until a successor shall have been duly appointed
and qualified or until the officer's death, resignation, or removal.
5.3 QUALIFICATION. An officer need not be a director, shareholder, or
a resident of the State of Oregon.
5.4 RESIGNATION AND REMOVAL. An officer may resign at any time by
delivering notice of such resignation to the corporation. A resignation is
effective on receipt unless the notice specifies a later effective date. If
the corporation accepts a specified later effective date, the Board of
Directors may fill the pending vacancy before the effective date, but the
successor may not take office until the effective date. Once delivered, a
notice of resignation is irrevocable unless revocation is permitted by the
Board of
Directors. Any officer appointed by the Board of Directors may be
removed at any time with or without cause. Appointment of an officer shall
not of itself create contract rights. Removal or resignation of an officer
shall not affect the contract rights, if any, of the corporation or the
officer.
5.5 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification, or otherwise may be filled by the Board of
Directors for the unexpired portion of the term.
5.6 PRESIDENT. The President shall be the chief executive officer of
the corporation and shall be in general charge of its business and affairs,
subject to the control of the Board of Directors. The President shall
preside at all meetings of shareholders and at all meetings of directors
(unless there is an acting Chairman of the Board presiding at the meeting).
The President may execute on behalf of the corporation all contracts,
agreements, stock certificates, and other instruments. The President shall
from time to time report to the Board of Directors all matters within the
President's knowledge affecting the corporation that should be brought to the
attention of the Board of Directors. The President shall vote all shares of
stock in other corporations owned by the corporation and is empowered to
execute proxies, waivers of notice, consents, and other instruments in the
name of the corporation with respect to such stock. The President shall
perform other duties assigned by the Board of Directors.
5.7 VICE PRESIDENTS. In the absence of the President or in the event
of the President's death or inability or refusal to act, the Vice President
(or, in the event there be more than one Vice President, the Vice Presidents
in the order designated at the time of their election, or in the absence of
any designation, then in the order of their election), if any, shall perform
the duties of the President and, when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. Any Vice
President shall perform other duties assigned by the President or by the
Board of Directors.
5.8 SECRETARY. The Secretary shall prepare the minutes of all meetings
of the directors and shareholders, shall have custody of the minute books and
other records pertaining to the corporate business, and shall be responsible
for authenticating the records of the corporation. The Secretary shall
countersign all instruments requiring the seal of the corporation and shall
perform other duties assigned by the Board of Directors. In the event no
Vice President exists to succeed to the President under the circumstances set
forth in Section 5.7 above, the Secretary shall make such succession.
5.9 ASSISTANT SECRETARIES. The Assistant Secretaries, when authorized
by the Board of Directors or these Second Restated Bylaws, may sign, with the
President or Vice President, certificates for shares of the corporation the
issuance of which shall have been authorized by resolution of the Board of
Directors. The Assistant Secretaries shall, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors
shall determine. The Assistant Secretaries shall, in general, perform such
duties as shall be specifically assigned to them in writing by the President
or the Board of Directors.
5.10 SALARIES. The salaries of the officers shall be fixed from time to
time by the Board of Directors, and no officer shall be prevented from
receiving such salary because the officer is also a director of the
corporation.
ARTICLE VI
ISSUANCE OF SHARES
6.1 CERTIFICATES FOR SHARES.
(a) Certificates representing shares of the corporation shall be
in a form determined by the Board of Directors. Such certificates shall be
signed, either manually or in facsimile, by two officers of the corporation,
at least one of whom shall be the President or a Vice President, and may be
sealed with the seal of the corporation or a facsimile thereof. All
certificates for shares shall be consecutively numbered or otherwise
identified.
(b) Every certificate for shares of stock that are subject to any
restriction on transfer pursuant to the Articles of Incorporation, these
Second Restated Bylaws, applicable securities laws, agreements among or
between shareholders, or any agreement to which the corporation is a party
shall have conspicuously noted on the face or back of the certificate either
(i) the full text of the restriction or (ii) a statement of the existence of
such restriction and that the corporation retains a copy of the restriction.
Every certificate issued when the corporation is authorized to issue more
than one class or series of stock shall set forth on its face or back either
(i) the full text of the designations, relative rights, preferences, and
limitations of the shares of each class and series authorized to be issued
and the authority of the Board of Directors to determine variations for
future series or (ii) a statement of the existence of such designations,
relative rights, preferences, and limitations and a statement that the
corporation will furnish a copy thereof to the holder of such certificate
upon written request and without charge.
(c) The name and mailing address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the corporation. Each
shareholder shall have the duty to notify the corporation of his or her
mailing address. All certificates surrendered to the corporation for
transfer shall be canceled, and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered
and canceled, except that in case of a lost, destroyed, or mutilated
certificate a new one may
be issued therefor upon such terms and indemnity to the corporation as the
Board of Directors prescribes.
6.2 TRANSFER OF SHARES. A transfer of shares of the corporation shall
be made only on the stock transfer books of the corporation by the holder of
record thereof or by the holder's legal representative, who shall furnish
proper evidence of authority to transfer, or by the holder's attorney
thereunto authorized by 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.
6.3 TRANSFER AGENT AND REGISTRAR. The Board of Directors may from time
to time appoint one or more transfer agents and one or more registrars for
the shares of the corporation, with such powers and duties as the Board of
Directors determines by resolution. The signatures of officers upon a
certificate may be facsimiles if the certificate is manually signed on behalf
of a transfer agent or by a registrar other than the corporation itself or an
employee of the corporation.
6.4 OFFICER CEASING TO ACT. If the person who signed a share
certificate, either manually or in facsimile, no longer holds office when the
certificate is issued, the certificate is nevertheless valid.
ARTICLE VII
CONTRACTS, LOANS, CHECKS, AND OTHER INSTRUMENTS
7.1 CONTRACTS. 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 of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
7.2 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.
7.3 CHECKS; 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 and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
7.4 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 VIII
MISCELLANEOUS PROVISIONS
8.1 SEAL. The Board of Directors from time to time may provide for a
seal of the corporation, which shall be circular in form and shall have
inscribed thereon the name of the corporation, the state of incorporation and
the words "Corporate Seal."
8.2 SEVERABILITY. Any determination that any provision of these Second
Restated Bylaws is for any reason inapplicable, invalid, illegal, or
otherwise ineffective shall not affect or invalidate any other provision of
these Second Restated Bylaws.
ARTICLE IX
OREGON CONTROL SHARE ACT
The provisions of the Oregon Control Share Act, Oregon Revised Statutes
Sections 60.801 through 60.816, shall not apply to acquisitions of shares of
the voting stock of the corporation.
ARTICLE X
AMENDMENTS
These Second Restated Bylaws may be altered, 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.
/s/ Keith L. Barnes
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Keith L. Barnes, President and
Chief Executive Officer
ADOPTED: March 25, 1998