BYLAWS
OF
JORE CORPORATION
ARTICLE I
REGISTERED OFFICE AND REGISTERED AGENT
1. The registered office of the Corporation shall be located in the
State of Montana at such place as may be fixed from time to time by the Board of
Directors upon filing of such notices as may be required by law, and the
registered agent shall have a business office identical with such registered
office. A registered agent so appointed shall consent to appointment in writing
and such consent shall be filed with the Secretary of State of the State of
Montana.
2. If a registered agent changes the street address of the agent's
business office, the registered agent may change the street address of the
registered office of the Corporation by notifying the Corporation in writing of
the change and signing, either manually or in facsimile, and delivering to the
Secretary of State for filing a statement of such change, as required by law.
3. The Corporation may change its registered agent at any time upon
the filing of an appropriate notice with the Secretary of State, with the
written consent of the new registered agent either included in or attached to
such notice.
ARTICLE II
SHAREHOLDERS' MEETINGS
1. MEETING PLACE. All meetings of the shareholders shall be held,
pursuant to proper notice as set forth in Article II Section 5 of these Bylaws
(the "Bylaws"), at the principal executive office of the Corporation, or at such
other place as shall be determined from time to time by the Board of Directors.
2. ANNUAL MEETING TIME. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting shall be held each year on such date and at
such hour as may be determined by resolution of the Board of Directors from time
to time. In the absence of such determination, the annual meeting shall be held
each year on the second Tuesday of June, at the hour of 12:00 Noon, if not a
legal holiday, and if a legal holiday, then on the next business day following,
at the same hour.
3. ANNUAL MEETING - ORDER OF BUSINESS. At the annual meeting of
shareholders, the order of business shall be as follows:
(a) Call to order.
(b) Proof of notice of meeting (or filing of waiver).
(c) Reading of minutes of last annual meeting.
(d) Reports of officers.
(e) Reports of committees.
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(f) Election of directors.
(g) Other business.
4. SPECIAL MEETINGS. Special meetings of the shareholders for any
purpose may be called at any time by the President, the Board of Directors or
the holders of at least ten percent (10%) of all the votes entitled to be cast
on any issue proposed to be considered at such special meeting in accordance
with MCA 35-1-517. Special shareholders' meetings shall be held at the
Corporation's principal executive office or at such other place as shall be
identified in the notice of such meeting.
5. NOTICE.
(a) Except as provided in subsection (c) hereunder, notice of
the date, time and place of the annual meeting of shareholders shall be given by
delivering personally or by mailing a written or printed notice of the same, not
less than ten (10) days, and not more than sixty (60) days, prior to the meeting
to each shareholder of record entitled to vote at such meeting.
(b) Except as provided in subsection (c) hereunder, written or
printed notice of each special meeting of shareholders shall be given not less
than ten (10) days and not more than sixty (60) days prior to the meeting. Such
notice shall state the date, time and place of such meeting, and the purpose or
purposes for which the meeting is called, and shall be delivered personally, or
mailed to each shareholder of record entitled to vote at such meeting.
6. RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders, or at any
adjournment thereof, or entitled to receive dividends or distributions, the
Board of Directors shall fix in advance a record date for any such determination
of shareholders, such date to be not more than seventy (70) days and, in case of
a meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action requiring such determination of shareholders is to
be taken.
7. SHAREHOLDERS' LIST. After fixing a record date for a
shareholders' meeting, the Corporation shall prepare an alphabetical list of the
names of all its shareholders on the record date who are entitled to notice of a
shareholders' meeting. Such 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. The shareholders' list shall be kept
on file at the registered office of the Corporation for a period beginning ten
days prior to such meeting and shall be kept open at the time and place of such
meeting for the inspection by any shareholder, or any shareholder's agent or
attorney.
8. QUORUM. Except as otherwise required by law, a quorum at any
annual or special meeting of shareholders shall consist of shareholders
representing, either in person or by proxy, a majority of the votes entitled to
be cast on the matter by each voting group.
9. VOTING.
(a) Except as otherwise provided in the articles of
incorporation, as they may be amended or restated from time to time (as so
amended or restated, the "Articles of Incorporation") and subject to the
provisions of the laws of the State of Montana, each outstanding share,
regardless of class, is entitled to one vote on each matter voted on at a
shareholders' meeting.
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(b) If a quorum exists, action on a matter, other than the
election of directors, is approved by a voting group if the votes cast within
the voting group favoring the action exceed the votes cast within the voting
group opposing the action, unless the question is one which by express provision
of law, of the Articles of Incorporation or of these Bylaws a greater number of
affirmative votes is required.
(c) Unless otherwise provided in the Articles of Incorporation,
in any election of directors the candidates elected are those receiving the
largest numbers of votes cast by the shares entitled to vote in the election, up
to the number of directors to be elected by such shares.
10. PROXIES. A shareholder may vote either in person or by
appointing a proxy by signing an appointment form, either personally or by the
shareholder's attorney-in-fact or agent. An appointment of a proxy is effective
when received by the person authorized to tabulate votes for the Corporation.
An appointment of a proxy is valid for eleven months unless a longer period is
expressly provided in the appointment form.
11. ACTION BY SHAREHOLDERS WITHOUT A MEETING. Any action required or
which may be taken at a meeting of shareholders of the Corporation 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 signed by all the shareholders entitled
to vote on the action.
12. WAIVER OF NOTICE. A written waiver of any notice required to be
given to any shareholder, signed by the person or persons entitled to such
notice, whether before or after the time stated therein for the meeting, shall
be deemed the giving of such notice by the Corporation, provided that such
waiver has been delivered to the Corporation for inclusion in the minutes or
filing with the Corporation's records. A shareholder's attendance at a meeting
waives any notice required, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting.
13. ACTION OF SHAREHOLDERS BY COMMUNICATIONS EQUIPMENT. Shareholders
may participate in any meeting of shareholders by any means of communication by
which all persons participating in the meeting can hear each other during the
meeting. A shareholder participating in a meeting by this means is deemed to be
present in person at the meeting.
ARTICLE III
SHARES OF STOCK
1. ISSUANCE OF SHARES. No shares of the Corporation shall be issued
unless authorized by the Board of Directors. Such authorization shall include
the number of shares to be issued and the consideration to be received. Shares
may but need not be represented by certificates. Unless otherwise provided by
law, the rights and obligations of shareholders are identical whether or not
their shares are represented by certificates.
2. CERTIFICATED SHARES. If shares are represented by certificates,
certificates of stock shall be issued in numerical order, and each shareholder
shall be entitled to a certificate signed, either manually or in facsimile, by
the President, or a Vice President, and the Secretary, and such certificate may
bear the seal of the Corporation or a facsimile thereof. If an officer who has
signed or whose facsimile signature has been placed upon such certificate ceases
to be such
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officer before the certificate is issued, it may be issued by the Corporation
with the same effect as if the person were an officer on the date of issue.
At a minimum each certificate of stock shall state:
(a) the name of the Corporation;
(b) that the Corporation is organized under the laws of the
State of Montana;
(c) the name of the person to whom the certificate is issued;
(d) the number and class of shares and the designation of the
series, if any, the certificate represents; and
(e) if the Corporation is authorized to issue different classes
of shares or different series within a class, the
designations, relative rights, preferences and limitations
applicable to each class and the variations in rights,
preferences and limitations determined for each series, and
the authority of the Board of Directors to determine
variations for future series, must be summarized either on
the front or back of the certificate. Alternatively, the
certificate may state conspicuously on its front or back
that the Corporation will furnish the shareholder this
information without charge on request in writing.
In case of any mutilation, loss or destruction of any certificate of
stock, another certificate may be issued in its place on proof of such
mutilation, loss or destruction. The Board of Directors may impose conditions
on such issuance and may require the giving of a satisfactory bond or indemnity
to the Corporation in such sum as it might determine or establish such other
procedures as it deems necessary or appropriate.
3. UNCERTIFICATED SHARES.
(a) Unless the Articles of Incorporation provide otherwise, the
Board of Directors may authorize the issue of any of the Corporation's classes
or series of shares without certificates. This authorization does not affect
shares already represented by certificates until they are surrendered to the
Corporation.
(b) Within a reasonable time after the issuance of shares
without certificates, the Corporation shall send the shareholder a complete
written statement of the information required on certificates as provided in
Article III, Section 2 of these Bylaws.
4. TRANSFERS.
(a) Transfers of stock shall be made only upon the stock
transfer records of the Corporation, which records shall be kept at the
registered office of the Corporation or at its principal place of business, or
at the office of its transfer agent or registrar. The Board of Directors may,
by resolution, open a share register in any state of the United States, and may
employ an agent or agents to keep such register and to record transfers of
shares therein.
(b) Shares of certificated stock shall be transferred by
delivery of the certificates therefor, accompanied either by an assignment in
writing on the back of the certificate or an assignment separate from
certificate, or by a written power of attorney to sell, assign and transfer the
same, signed by the holder of said certificate. No shares of certificated stock
shall be
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transferred on the records of the Corporation until the outstanding certificates
therefor have been surrendered to the Corporation or to its transfer agent or
registrar.
(c) Shares of uncertificated stock shall be transferred upon
receipt by the Corporation of a written request for transfer signed by the
shareholder. Within a reasonable time after the transfer of shares without
certificates, the Corporation shall provide the new shareholder a complete
written statement of the information required on certificates as provided in
Article III, Section 2 of these Bylaws.
5. FRACTIONAL SHARES OR SCRIP. The Corporation may:
(a) issue fractions of a share;
(b) arrange for the disposition of fractional interests by the
shareholders;
(c) pay in money the value of fractions of a share; and
(d) issue scrip in registered or bearer form which shall entitle
the holder to receive a certificate for a full share upon
the surrender of enough scrip to equal a full share.
6. SHARES OF ANOTHER CORPORATION. Shares owned by the Corporation
in another corporation, domestic or foreign, may be voted by such officer, agent
or proxy as the Board of Directors may determine or, in the absence of such
determination, by the President of the Corporation.
ARTICLE IV
BOARD OF DIRECTORS
1. POWERS. The management of the affairs, property and interests of
the Corporation shall be vested in a Board of Directors. In addition to the
powers and authorities expressly conferred upon it by these Bylaws and by the
Articles of Incorporation, the Board of Directors may exercise all such powers
of the Corporation and do all such lawful acts as are not prohibited by statute
or by the Articles of Incorporation or by these Bylaws or as directed or
required to be exercised or done by the shareholders.
2. GENERAL STANDARDS FOR DIRECTORS
(a) A director shall discharge the duties of a director,
including duties as a member of a committee:
(i) in good faith;
(ii) with the care an ordinary prudent person in a
similar position would exercise under similar
circumstances; and
(iii) in a manner the director reasonably believes to be
in the best interests of the Corporation.
3. NUMBER AND TERM. The Board of Directors shall consist of no less
than two (2) persons and no more than ten (10) persons or so many as may from
time to time be designated by the then-existing Board of Directors. Directors
need not be shareholders or residents of the State of Montana. The directors
shall serve for a term ending on the date of the annual meeting of shareholders
following the annual meeting at which the director was elected;
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provided, however, that each director shall serve until his or her successor is
duly elected and qualified or until his or her death, resignation or removal.
4. CHANGE OF NUMBER. The number of directors may at any time be
increased or decreased by resolution of either the shareholders or directors at
any annual, special or regular meeting; PROVIDED, that no decrease in the number
of directors shall have the effect of shortening the term of any incumbent
director, except as provided in Sections 6 and 7 of this Article IV.
5. VACANCIES. All vacancies in the Board of Directors, whether
caused by resignation, death, removal or otherwise, may be filled by the
affirmative vote of a majority of the remaining directors in office though less
than a quorum of the Board of Directors. A director elected to fill a vacancy
shall hold office until the next shareholders' meeting at which directors are
elected and until his or her successor is elected and qualified.
6. RESIGNATION. A director may resign at any time by delivering
written notice to the Board of Directors, the President or the Secretary. A
resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
7. REMOVAL OF DIRECTORS. At a special meeting of shareholders
called expressly for that purpose, the entire Board of Directors, or any member
thereof, may be removed, with or without cause, by a vote of the holders of a
majority of shares then entitled to vote at an election of such directors. A
director or directors may be removed only if the number of votes cast to remove
the director exceeds the number of votes cast not to remove the director. The
notice of such special meeting must state that the purpose, or one of the
purposes, of the meeting is removal of the director or directors, as the case
may be.
8. REGULAR MEETINGS. Regular meetings of the Board of Directors or
any committee may be held without notice at the principal place of business of
the Corporation or at such other place or places, either within or without the
State of Montana, as the Board of Directors or such committee, as the case may
be, may from time to time designate. The annual meeting of the Board of
Directors shall be held without notice immediately after adjournment of the
annual meeting of shareholders.
9. SPECIAL MEETINGS.
(a) Special meetings of the Board of Directors may be called at
any time by the President or by any director, to be held at the principal place
of business of the Corporation or at such other place or places as the Board of
Directors or the person or persons calling such meeting may from time to time
designate. Notice of all special meetings of the Board of Directors, stating
the date, time and place thereof, shall be given at least three (3) days prior
to the date of the meeting, in accordance with the provisions set forth in
Article VII of these Bylaws. Such notice need not specify the business to be
transacted at, or the purpose of, the meeting.
(b) Special meetings of any committee of the Board of Directors
may be called at any time by such person or persons and with such notice as
shall be specified for such committee by the Board of Directors, or in the
absence of such specification, in the manner and with the notice required for
special meetings of the Board of Directors.
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10. WAIVER OF NOTICE. A director may waive any notice required by
law, by the Articles of Incorporation or by these Bylaws before or after the
time stated for the meeting, and such waiver shall be equivalent to the giving
of such notice. Such waiver must be in writing, signed by the director
entitled to such notice and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A director's attendance at or
participation in a meeting shall constitute a waiver of 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.
11. QUORUM. A majority of the full Board of Directors shall be
necessary at all meetings to constitute a quorum for the transaction of
business. 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.
12. REGISTERING DISSENT. A director who is present at a meeting of
the Board of Directors at which action on a corporate matter is taken is deemed
to have assented to such action unless:
(a) the director objects at the beginning of the meeting, or
promptly upon the director's arrival, to the holding of, or
transaction of business at, the meeting;
(b) the director's dissent or abstention from the action is
entered in the minutes if the meeting; or
(c) the director delivers written notice of the director's
dissent or abstention to the presiding officer of the
meeting before its adjournment or to the Corporation within
a reasonable time after adjournment of the meeting. The
right to dissent or abstain is not available to a director
who voted in favor of the action taken.
13. ACTION BY DIRECTORS WITHOUT A MEETING.
(a) Any action required or permitted to be taken at a meeting of
the Board of Directors, or of a committee thereof, may be taken without a
meeting if the action is taken by all members of the Board of Directors. The
action must be evidenced by one or more written consents setting forth the
action taken, signed by each of the directors, or by each of the members of the
committee, as the case may be, either before or after the action taken, and
delivered to the Corporation for inclusion in the minutes or filing with the
Corporation's records.
(b) Action taken under this section is effective when the last
director signs the consent, unless the consent specifies a later effective date.
14. PARTICIPATION BY MEANS OF COMMUNICATIONS EQUIPMENT. Any or all
directors may participate in a regular or special meeting of the Board of
Directors (or of a committee thereof) by, or may conduct the meeting through the
use of, any means of communication by which all directors participating can hear
each other during the meeting.
15. COMMITTEES.
(a) The Board of Directors, by resolution adopted by a majority
of the full Board of Directors, may create one or more committees of directors.
Each committee
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must have two or more members who serve at the pleasure of the Board of
Directors. To the extent specified by the Board of Directors, each committee
may exercise the authority of the Board of Directors, except that no committee
shall have the authority to:
(i) authorize or approve a distribution except
according to the general formula or method
prescribed by the Board of Directors;
(ii) approve or propose to shareholders action that
by law is required to be approved by shareholders;
(iii) fill vacancies on the Board of Directors or any of
its committees;
(iv) amend the Articles of Incorporation;
(v) adopt, amend or repeal these Bylaws;
(vi) approve a plan of merger not requiring shareholder
approval; or
(vii) authorize or approve the issuance or sale or
contract for sale of shares, or determine the
designation and relative rights, preferences and
limitations of a class or series of shares, except
that the Board of Directors may authorize a
committee (or a senior executive officer of the
Corporation) to do so within limits specifically
prescribed by the Board of Directors.
(b) The creation of, delegation of authority to or action by a
committee does not alone constitute compliance by a director with the standards
of conduct required by the Montana Business Corporation Act and these Bylaws.
16. REMUNERATION. By resolution of the Board of Directors, directors
may be remunerated in cash and/or by the grant of options,
warrants or other rights to purchase shares of the Corporation's
stock, and a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of the
Board of Directors or of a committee thereof; nothing herein
contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor.
17. NOTICE OF NOMINATION.
(a) Nominations for the election of directors may be made by the
Board of Directors. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(b) Nominations for the election of directors may be made by any
shareholder entitled to vote for the election of directors. Notwithstanding the
provisions of Article VII, such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage pre-paid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days prior
to any meeting of the shareholders called for the election of directors;
PROVIDED, HOWEVER, that if less than 21 days' notice of the meeting is given to
the shareholders, such written notice shall be delivered or mailed, as
prescribed above, to the Secretary of the Corporation not later than 5:00 p.m.
on the seventh day following the day on which notice of the meeting was mailed
to the shareholders. Each notice under this subsection (b) shall set forth (i)
the name, age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of each
such
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nominee, (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee, (iv) the name and address of the
shareholder giving notice and any other shareholders known by the shareholder to
be supporting such nominees, and (v) the number of shares of stock of the
Corporation which are beneficially owned by the shareholder giving notice and
any other shareholders known by the shareholder to be supporting such nominees.
(c) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and should he or she so determine, he
or she shall so declare to the meeting and the defective nomination shall be
disregarded.
(d) The provisions of this Section 17 of Article IV may be
amended, altered, changed or repealed only by the affirmative vote of the
holders of at least two-thirds (2/3) of the shares present and entitled to vote
at an election of directors.
ARTICLE V
OFFICERS
1. DESIGNATIONS. The officers of the Corporation shall be a
President, a Secretary and, at the discretion of the Board of Directors, one or
more Vice-Presidents and a Treasurer. The Board of Directors shall appoint all
officers. Any two or more offices may be held by the same individual.
The Board of Directors, in its discretion, may elect a Chairman from
among its members to serve as Chairman of the Board of Directors, who, when
present, shall preside at all meetings of the Board of Directors and the
shareholders, and who shall have such other powers as the Board may determine.
The Board of Directors, or a duly appointed officer to whom such
authority has been delegated by Board resolution, may appoint such other
officers and agents as it shall deem necessary or expedient, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
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 each annual meeting of the shareholders. Each
officer shall hold office until a successor shall have been appointed and
qualified, or until such officer's earlier death, resignation or removal.
3. POWERS AND DUTIES. If the Board appoints persons to fill the
following positions, such officers shall have the power and duties set forth
below:
(a) THE PRESIDENT. The President of the Corporation shall be
the chief executive officer of the Corporation and, subject to the direction and
control of the Board of Directors, shall have general control and management of
the business affairs and policies of the Corporation. The President shall act
as liaison from and as spokesperson for the Board of Directors. The President
shall participate in long-range planning for the Corporation and shall be
available to the other officers of the Corporation for consultation. The
President shall possess power to sign all certificates, contracts and other
instruments of the Corporation. Unless a Chairman of the Board of Directors has
been appointed and is present, the President shall preside
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at all meetings of the shareholders and of the Board of Directors. The
President shall perform all such other duties as are incident to the office of
President or are properly required by the Board of Directors.
(b) VICE PRESIDENTS. During the absence or disability of the
President, the Executive or Senior Vice-Presidents, if any, and the
Vice-Presidents, if any, in the order designated by the Board of Directors,
shall exercise all the functions of the President. Each Vice-President shall
have such powers and discharge such duties as may be assigned from time to time
by the Board of Directors.
(c) THE SECRETARY. The Secretary shall issue notices for all
meetings, except for notices for special meetings of the shareholders and
special meetings of the directors which are called by the requisite percentage
of shareholders or number of directors, shall keep minutes of all meetings,
shall have charge of the seal and the Corporation's books, and shall make such
reports and perform such other duties as are incident to the office of
Secretary, or are properly required of him or her by the Board of Directors.
(d) THE TREASURER. The Treasurer shall have the custody of all
moneys and securities of the Corporation and shall keep regular books of
account. The Treasurer shall disburse the funds of the Corporation in payment
of the just demands against the Corporation or as may be ordered by the Board of
Directors, taking proper vouchers or receipts for such disbursements, and shall
render to the Board of Directors from time to time as may be required an account
of all transactions as Treasurer and of the financial condition of the
Corporation. The Treasurer shall perform such other duties incident to his or
her office or that are properly required of him or her by the Board of
Directors.
4. STANDARDS OF CONDUCT FOR OFFICERS.
(a) An officer with discretionary authority shall discharge such
officer's duties under that authority:
(i) in good faith;
(ii) with the care an ordinary prudent person in a like
position would exercise under similar
circumstances; and
(iii) in a manner the officer reasonably believes to be
in the best interests of the Corporation.
5. DELEGATION. In the case of absence or inability to act of any
officer of the Corporation and of any person herein authorized to act in such
officer's place, the Board of Directors may from time to time delegate the
powers or duties of such officer to any other officer or any director or other
person whom it may in its sole discretion select.
6. VACANCIES. Vacancies in any office arising from any cause may be
filled by the Board of Directors at any regular or special meeting of the Board.
7. RESIGNATION. An officer may resign at any time by delivering
notice to the Corporation. Such notice shall be effective when delivered unless
the notice specifies a later effective date. Any such resignation shall not
affect the Corporation's contract rights, if any, with the officer.
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8. REMOVAL. Any officer elected or appointed by the Board of
Directors may be removed at any time, with or without cause, by the affirmative
vote of a majority of the whole Board of Directors, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
9. SALARIES AND CONTRACT RIGHTS. The salaries, if any, of the
officers shall be fixed from time to time by the Board of Directors. The
appointment of an officer shall not of itself create contract rights.
10. BONDS. The Board of Directors may, by resolution, require any
and all of the officers to give bonds to the Corporation, with sufficient surety
or sureties, conditioned for the faithful performance of the duties of their
respective offices, and to comply with such other conditions as may from time to
time be required by the Board of Directors.
ARTICLE VI
DISTRIBUTIONS AND FINANCE
1. DISTRIBUTIONS. The Board of Directors may authorize and the
Corporation may make distributions to its shareholders; provided that no
distribution may be made if, after giving it effect, either:
(a) The Corporation would not be able to pay its debts as they
become due in the usual course of business; or
(b) The Corporation's total assets would be less than the sum of
its total liabilities plus, unless the articles of
incorporation permit otherwise, the amount that would be
needed, if the corporation were to be dissolved at the time
of the distribution, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are
superior to those receiving the distribution.
The Board of Directors may authorize distributions to holders of
record at the close of business on any business day prior to the date on which
the distribution is made. If the Board of Directors does not fix a record date
for determining shareholders entitled to a distribution, the record date shall
be the date on which the Board of Directors authorizes the distribution.
2. MEASURE OF EFFECT OF A DISTRIBUTION. For purposes of determining
whether a distribution may be authorized by the Board of Directors and paid by
the Corporation under Article VI, Section 1 of these Bylaws, the effect of the
distribution is measured:
(a) In the case of a distribution of indebtedness, the terms of
which provide that payment of principal and interest are
made only if and to the extent that payment of a
distribution to shareholders could then be made under this
section, each payment of principal or interest is treated as
a distribution, the effect of which is measured on the date
the payment is actually made; or
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(b) In the case of any other distribution:
(i) if the distribution is by purchase, redemption, or
other acquisition of the Corporation's shares, the
effect of the distribution is measured as of the
earlier of the date any money or other property is
transferred or debt incurred by the Corporation,
or the date the shareholder ceases to be a
shareholder with respect to the acquired shares;
(ii) if the distribution is of an indebtedness other
than described in subsection 2(a) and (b)(i) of
this section, the effect of the distribution is
measured as of the date the indebtedness is
distributed; and
(iii) in all other cases, the effect of the distribution
is measured as of the date the distribution is
authorized if payment occurs within 120 days after
the date of authorization, or the date the payment
is made if it occurs more than 120 days after the
date of authorization.
3. DEPOSITORIES. The moneys of the Corporation shall be deposited
in the name of the Corporation in such bank or banks or trust company or trust
companies as the Board of Directors shall designate, and shall be drawn out only
by check or other order for payment of money signed by such persons and in such
manner as may be determined by resolution of the Board of Directors.
ARTICLE VII
NOTICES
Except as may otherwise be required by law, any notice to any
shareholder or director must be in writing and may be transmitted by: mail,
private carrier or personal delivery; telegraph or teletype; or telephone, wire
or wireless equipment which transmits a facsimile of the notice. Written notice
by the Corporation to its shareholders shall be deemed effective when mailed, if
mailed with first-class postage prepaid and correctly addressed to the
shareholder's address shown in the Corporation's current record of shareholders.
Except as set forth in the previous sentence, written notice shall be deemed
effective at the earliest of the following: (i) when received; (ii) five days
after its deposit in the United States mail, as evidenced by the postmark, if
mailed with first-class postage, prepaid and correctly addressed; (iii) on the
date shown on the return receipt, if sent by registered or certified mail,
return receipt requested, and receipt is signed by or on behalf of the
addressee; or (iv) if sent to a shareholder's address, telephone number, or
other number appearing on the records of the Corporation, when dispatched by
telegraph, teletype or facsimile equipment.
ARTICLE VIII
SEAL
The Corporation may adopt a corporate seal which seal shall be in such
form and bear such inscription as may be adopted by resolution of the Board of
Directors.
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ARTICLE IX
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
1. DEFINITIONS. For purposes of this Article:
(a) "Corporation" includes any domestic or foreign predecessor
entity of the Corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
A director is considered to be serving an employee benefit plan at the
Corporation's request if the director's duties to the Corporation include duties
or services by him to the plan or to participants in or beneficiaries of the
plan. Director includes, unless the context requires otherwise, the estate or
personal representative of a director.
(c) "Expenses" include counsel fees.
(d) "Liability" means the obligation to pay a judgment,
settlement, penalty, or fine, including an excise tax assessed with respect to
an employee benefit plan, or to pay reasonable expenses incurred with respect
to a proceeding.
(e) "Official capacity" means: (i) When used with respect to a
director, the office of director in the Corporation; and (ii) when used with
respect to an individual other than a director, as contemplated in Section 6 of
this Article IX, the office in the Corporation held by the officer or the
employment or agency relationship undertaken by the employee or agent on behalf
of the Corporation. "Official capacity" does not include service for any other
foreign or domestic corporation or any partnership, joint venture, trust,
employee benefit plan, or other enterprise.
(f) "Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
2. RIGHT TO INDEMNIFICATION.
(a) The Corporation shall indemnify any person who was or is a
party to any proceeding, whether or not brought by or in the right of the
Corporation, by reason of the fact that such person is or was a director of the
Corporation, against all reasonable expenses incurred by the director in
connection with the proceeding.
(b) Except as provided in subsection (e) of this Section 2, the
Corporation shall indemnify an individual made a party to a proceeding because
the individual is or was a director against liability incurred in the proceeding
if:
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(i) The individual acted in good faith; and
(ii) The individual reasonably believed:
(A) In the case of conduct in the individual's
official capacity with the Corporation, that
the individual's conduct was in the
Corporation's best interests; and
(B) In all other cases, that the individual's
conduct was at least not opposed to the
Corporation's best interests; and
(iii) In the case of any criminal proceeding, the
individual had no reasonable cause to believe the
individual's conduct was unlawful.
(c) A director's conduct with respect to an employee benefit
plan for a purpose the director reasonably believed to be in the interests of
the participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (b)(ii) of this Section 2.
(d) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the standard of
conduct described in this Section.
(e) The Corporation shall not indemnify a director under this
Section 2:
(i) In connection with a proceeding by or in the right
of the Corporation in which the director was
adjudged liable to the Corporation; or
(ii) In connection with any other proceeding charging
improper personal benefit to the director, whether
or not involving action in the director's official
capacity, in which the director was adjudged
liable on the basis that personal benefit was
improperly received by the director.
(f) Indemnification under this Article IX, Section 2 in
connection with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
3. ADVANCE FOR EXPENSES.
(a) The Corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding and in advance of any determination and
authorization of indemnification pursuant to Section 5 of this Article IX if:
(i) The director furnishes the Corporation a written
affirmation of the director's good faith belief
that the
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director has met the standard of conduct described
in Section 2 of this Article IX; and
(ii) The director furnishes the Corporation a written
undertaking, executed personally or on the
director's behalf, to repay the advance if it is
ultimately determined that the director did not
meet the standard of conduct.
(b) The undertaking required by subsection (a)(i) of this
Section 3 must be an unlimited general obligation of the director but need not
be secured and may be accepted without reference to financial ability to make
repayment.
4. COURT-ORDERED INDEMNIFICATION. A director of the Corporation who
is a party to a proceeding may apply for indemnification or advance of expenses
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving any notice
the court considers necessary may order indemnification or advance of expenses
if it determines:
(a) The director is entitled to mandatory indemnification
pursuant to MCA 35-1-453, in which case the court shall also order the
Corporation to pay the director's reasonable expenses incurred to obtain
court-ordered indemnification;
(b) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director met the standard of conduct set forth in Section 2 of this Article IX,
or was adjudged liable as described in Section 2(e) of this Article IX, but if
the director was adjudged so liable, the director's indemnification is limited
to reasonable expenses incurred; or
(c) In the case of an advance of expenses, the director is
entitled pursuant to the Articles of Incorporation, Bylaws, or any applicable
resolution or contract, to payment or reimbursement of the director's reasonable
expenses incurred as a party to the proceeding in advance of final disposition
of the proceeding.
5. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) The Corporation shall not indemnify a director under this
Article IX unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in Section 2(b)
of this Article IX.
(b) The determination shall be made:
(i) By the Board of Directors by majority vote of a
quorum consisting of directors not at the time
parties to the proceeding;
(ii) If a quorum cannot be obtained under (i) of this
subsection, by majority vote of a committee duly
designated by the Board of Directors, in which
designation directors who are parties may
participate, consisting solely of two or more
directors not at the time parties to the
proceeding;
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(iii) By special legal counsel:
(A) Selected by the Board of Directors or its
committee in the manner prescribed in (i) or
(ii) of this subsection; or
(B) If a quorum of the Board of Directors cannot
be obtained under (i) of this subsection and
a committee cannot be designated under (ii)
of this subsection, selected by majority vote
of the full Board of Directors, in which
selection directors who are parties may
participate; or
(iv) By the shareholders, but shares owned by or voted
under the control of directors who are at the time
parties to the proceeding may not be voted on the
determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(b)(iii) of this Section to select counsel.
6. INDEMNIFICATION OF OFFICERS.
(a) An officer of the Corporation who is not a director shall be
indemnified pursuant to MCA 35-1-457, and is entitled to apply for court-ordered
indemnification under Section 4 of this Article IX, in each case to the same
extent as a director; and
(b) The Corporation shall indemnify and advance expenses to an
officer who is not a director to the same extent as to a director under this
Article IX.
(c) The Corporation may also indemnify and advance expenses to
an officer who is not a director to the extent, consistent with law, that may be
provided by a general or specific action of its Board of Directors, or contract.
7. INDEMNIFICATION OF EMPLOYEES AND AGENTS.
(a) The Corporation may indemnify employees and agents of the
Corporation pursuant to MCA 35-1-457, and may afford the right to such employees
or agents to apply for court-ordered indemnification under Section 4 of this
Article IX, in each case to the same extent as a director; and
(b) The Corporation may indemnify and advance expenses to an
employee or agent of the Corporation who is not a director to the same extent as
to a director under this Article IX.
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(c) The Corporation may also indemnify and advance expenses to
an employee or agent who is not a director to the extent, consistent with law,
that may be provided by a general or specific action of its Board of Directors,
or contract.
8. INSURANCE. The Corporation may purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee, or agent
of the Corporation, or who, while a director, officer, employee, or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by the individual in
that capacity or arising from the individual's status as a director, officer,
employee, or agent, whether or not the Corporation would have power to indemnify
the individual against the same liability under this Article IX.
9. INDEMNIFICATION AS A WITNESS. This Article IX does not limit a
Corporation's power to pay or reimburse expenses incurred by a director in
connection with the director's appearance as a witness in a proceeding at a time
when the director has not been made a named defendant or respondent to the
proceeding.
10. REPORT TO SHAREHOLDERS. If the Corporation indemnifies or
advances expenses to a director pursuant to this Article IX in connection with a
proceeding by or in the right of the Corporation, the Corporation shall report
the indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders' meeting.
11. SHAREHOLDER AUTHORIZED INDEMNIFICATION.
(a) If authorized by a resolution adopted or ratified, before or
after the event, by the shareholders of the Corporation, the Corporation shall
have the power to indemnify or agree to indemnify a director made a party to a
proceeding, or obligate itself to advance or reimburse expenses incurred in a
proceeding, without regard to the limitations contained in this Article IX
(other than this Section 11); provided that no such indemnity shall indemnify
any director from or on account of:
(i) Acts or omissions of the director finally adjudged
to be intentional misconduct or a knowing
violation of law;
(ii) Conduct of the director finally adjudged to be an
unlawful distribution under MCA 35-1-713; or
(iii) Any transaction with respect to which it was
finally adjudged that such director personally
received a benefit in money, property, or services
to which the director was not legally entitled.
(b) Unless a resolution adopted or ratified by the shareholders
of the Corporation provides otherwise, any determination as to any indemnity or
advance of expenses under subsection (a) of this Section 11 shall be made in
accordance with Section 5 of this Article IX.
12. VALIDITY OF INDEMNIFICATION. A provision addressing the
Corporation's indemnification of or advance for expenses to directors that is
contained in these Bylaws, a
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resolution of its shareholders or Board of Directors, or in a contract or
otherwise, is valid only if and to the extent that provision is consistent with
MCA 35-1-451 through 35-1-457.
13. INTERPRETATION. The provisions contained in this Article IX
shall be interpreted and applied to provide indemnification to directors,
officers, employees and agents of the Corporation to the fullest extent allowed
by applicable law, as such law may be amended, interpreted and applied from time
to time.
14. SAVINGS CLAUSE. If this Article IX or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify each director as to reasonable expenses
and liabilities with respect to any proceeding, whether or not brought by or in
the right of the Corporation, to the full extent permitted by any applicable
portion of this Article IX that shall not have been invalidated, or by any other
applicable law.
15. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification under
this Article IX for directors, officers, employees and agents shall not be
exclusive of any other right which any person may have, or hereafter acquire,
under any statute, provision of the Articles of Incorporation, Bylaws, other
agreement, vote of shareholders or disinterested directors, insurance policy,
principles of common law or equity, or otherwise.
ARTICLE X
BOOKS AND RECORDS
The Corporation shall maintain appropriate accounting records and
shall keep as permanent records minutes of all meetings of its shareholders and
Board of Directors, a record of all actions taken by the shareholders or the
Board of Directors without a meeting and a record of all actions taken by a
committee of the Board of Directors. In addition, the Corporation shall keep at
its registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders in alphabetical order by class of shares showing
the number and class of the shares held by each. Any books, records and minutes
may be in written form or any other form capable of being converted into written
form within a reasonable time.
The Corporation shall keep a copy of the following records at its
principal office:
1. The Articles or Restated Articles of Incorporation and all
amendments thereto currently in effect;
2. The Bylaws or Restated Bylaws and all amendments thereto
currently in effect;
3. The minutes of all shareholders' meetings, and records of all
actions taken by shareholders without a meeting, for the past three years;
4. Its financial statements for the past three years, including
balance sheets showing in reasonable detail the financial condition of the
Corporation as of the close of each fiscal year, and an income statement showing
the results of its operations during each fiscal year prepared on the basis of
generally accepted accounting principles or, if not, prepared on a basis
explained therein;
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5. All written communications to shareholders generally within the
past three years;
6. A list of the names and business addresses of its current
directors and officers; and
7. Its most recent annual report delivered to the Secretary of State
of Montana.
ARTICLE XI
AMENDMENTS
1. BY SHAREHOLDERS. These Bylaws may be amended or repealed by the
shareholders in the manner set forth in Article II Section 9 of these Bylaws at
any regular or special meeting of the shareholders.
2. BY DIRECTORS. The Board of Directors shall have power to amend
or repeal the Bylaws of, or adopt new bylaws for, the Corporation. However, any
such Bylaws, or any alteration, amendment or repeal of the Bylaws, may be
subsequently changed or repealed by the holders of a majority of the stock
entitled to vote at any shareholders' meeting.
3. EMERGENCY BYLAWS. The Board of Directors may adopt emergency
Bylaws, subject to repeal or change by action of the shareholders, which shall
be operative during any emergency in the conduct of the business of the
Corporation resulting from an attack on the United States, any state of
emergency declared by the federal government or any subdivision thereof, or any
other catastrophic event.
Adopted by the Shareholders of the Corporation on April 29, 1999.
/s/ David H. Bjornson
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David H. Bjornson, Secretary
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