UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
Filed by the Registrant (X)
Filed by a Party other than the Registrant ( )
Check the appropriate box:
(X) Preliminary Information Statement
( ) Confidential, for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2))
( ) Definitive Information Statement
CIMBIX CORPORATION
----------------------------------------------
(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
(X) No fee required.
( ) Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
( ) Fee paid previously with preliminary materials.
( ) Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
<page>
CIMBIX CORPORATION
112, 5414 Cameron Street
Las Vegas, Nevada 89118
NOTICE OF ACTION TAKEN WITHOUT A STOCKHOLDER MEETING
July 6, 2005
To the Stockholders of Cimbix Corporation:
The purpose of this Information Statement is to inform the holders of Cimbix
Corporation (the "Company," "us," or "we") that our board of directors and
the holders of approximately 75% of our voting stock have approved an
amendment to our Articles of Incorporation to: a) change the Company's name
from Cimbix Corporation to PetsMobility Inc.; b) to increase the authorized
capital of the Company from 100,000,000 common shares to 200,000,000 common
shares; c) to amend Article IX of the Articles of Incorporation to permit
action taken by written consent of a majority of shareholders entitled to
vote on the action; and d) to amend Section 2.14 of the Company's Bylaws to
permit any action that may be or is required to be taken at a meeting of the
shareholders to be taken without a meeting by written consent of a majority
of shareholders entitled to vote with respect to the matter.
On July 6, 2005, the Company's board of directors approved a resolution
authorizing certain amendments to our Articles of Incorporation and Bylaws.
On July 6, 2005, the holders of approximately 75% majority of the outstanding
shares of the Company's Common Stock entitled to vote thereon executed a
written consent in accordance with the provisions set forth pursuant to Title
23B.07.020 of the Revised Code of Washington, Article VIII of the Articles of
Incorporation, and Section 12 of the Bylaws of the Company to approve and
adopt certain amendments to its Articles of Incorporation and Bylaws.
This letter and the accompanying Information Statement are being distributed
to you, our shareholders, in accordance with the requirements of the Revised
Code of Washington Title 23B.07.050 and Section 14(c) of the Securities
Exchange Act of 1934, as amended. The Information Statement describes the
change to the Company's Articles of Incorporation and Bylaws.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
Thank you for your continued support of Cimbix Corporation.
By Order of the Board of Directors
/s/ Donald Walker
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Donald Walker
President and CEO
<page>
CIMBIX CORPORATION
112, 5414 Cameron Street
Las Vegas, Nevada 89118
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
This Information Statement is being mailed on or about July 6, 2005 to
shareholders of record of Cimbix Corporation, a Washington corporation, who did
not sign the majority written consent of shareholders. It is being furnished
in connection with the adoption of certain amendments to the Company's Articles
of Incorporation and Bylaws by written consent of the holders of approximately
75% of the outstanding shares of the Common Stock of the Company. We
anticipate that the amendments will become effective on or after July 29, 2005.
A copy of the amendments to our Articles of Incorporation is attached to this
document as Exhibit A.
On July 6, 2005, the amendments were adopted by the written consent of holders
of approximately 75% of the issued and outstanding shares of the Company's
Common Stock entitled to vote thereon in accordance with the provisions set
forth in the Revised Code of Washington 23B.10.020. and Section 2.14 of our
Bylaws. Our board of directors decided to obtain the written consent of
holders of approximately 75% of the outstanding Common Stock entitled to vote
on the amendments in order to eliminate the cost and delay involved in holding
a special meeting of the Company's shareholders and in order to amend our
Articles of Incorporation and Bylaws in a timely manner.
The record date for purposes of determining the shareholders entitled to vote
and to whom this Information Statement is to be sent is July 6, 2005. As of the
record date, we had 14,104,843 shares of Common Stock issued and all shares of
Common Stock outstanding and entitled to vote on the amendments, with each share
of Common Stock entitled to one vote. The holders of 10,621,625 shares of the
issued and outstanding Common Stock, representing approximately 75% of the votes
entitled to be cast with regard to the amendments, approved the amendments by
written consent.
Pursuant to regulations promulgated under the Securities Exchange Act of 1934,
as amended, the amendments may not be effected until at least 20 calendar days
after this Information Statement is sent or given to the Company's shareholders.
We anticipate that the amendments will become effective on or after July 29,
2005 upon filing with the Secretary of State of Washington.
There will not be a meeting of shareholders to approve these amendments and none
is required under the Washington Corporate Statutes because these actions have
been approved by written consent of the holders of approximately 75% of the
outstanding shares of the Company's voting Common Stock. Under the Revised Code
of Washington 23B.07.050 and Section 14(c) of the Securities Exchange Act of
1934, as amended, we are required to provide prompt notice of the taking of
corporate action without a meeting to our shareholders of record who have not
consented in writing to this action. This Information Statement is intended to
provide you with the required notice.
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION
a) TO CHANGE THE COMPANY'S NAME FROM "CIMBIX CORPORATION" TO "PETSMOBILITY INC."
The Company's board of directors and the shareholders holding approximately 75%
of the voting shares of its Common Stock have approved the change of the
Company's name from Cimbix Corporation to PetsMobility Inc. The name change
from Cimbix Corporation to PetsMobility Inc. will become effective upon the
filing of an amendment to the Company's Articles of Incorporation with the
Secretary of State of Washington, which is expected to occur as soon as is
reasonably practicable on or after the 20th day following the mailing of this
Information Statement to our shareholders. The name change of the Company will
have no effect upon the holders of Common Stock, except to better reflect the
Company's current business.
REASON FOR THE NAME CHANGE
The Company's current business name is Cimbix Corporation. The Company
recently entered into an exclusive worldwide license agreement with
PetsMobility Network (Canada) Inc. ("PetsMobility") to market and distribute
their wireless communication device and other technology products developed by
PetsMobility under the PetsMobility brand for a term of 10 years with an
option to renew for another 10 years. The board of directors and a majority
of the shareholders believe that the name PetsMobility Inc. better reflect the
Company's current business and the products that it will market.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the outstanding shares of
common stock is required for approval of the amendment to the Articles of
Incorporation under the Washington Revised Statutes. The Company has obtained
this approval through written consent of shareholders owning approximately 75%
of the outstanding voting shares of its Common Stock. Therefore, an
extraordinary meeting of the shareholders to approve the increase in authorized
share capital and the amendment to the Articles of Incorporation is unnecessary
and will not take place for this purpose. A copy of the amendment is attached
to this Information Statement as Exhibit A.
ABSENCE OF DISSENTERS' RIGHTS
No dissenters' or appraisal rights are available to the Company's shareholders
under the Revised Code of Washington, the Company's Articles of Incorporation
or its Bylaws in connection with this amendment.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION
b) INCREASE IN SHARE CAPITAL TO 200,000,000 AUTHORIZED COMMON SHARES
The Company's board of directors and the shareholders holding approximately 75%
of the voting shares of its Common Stock have approved an increase in the number
of the Company's authorized Common Stock from 100,000,000 to 200,000,000 without
any change in par value of $0.0001 by means of an amendment to the Company's
Articles of Incorporation. The increase in share capital to 200,000,000
authorized common shares will become effective upon filing of an amendment to
the Company's Articles of Incorporation with the Secretary of State of
Washington, which is expected to occur as soon as is reasonably practicable on
or after the 20th day following the mailing of this Information Statement to
our shareholders. The increase in the number of authorized Common Stock will
have no effect upon the holders of Common Stock, except to provide the Company
with increased flexibility in its ability to issue shares, raise capital or
acquire new businesses or properties.
REASONS FOR THE INCREASE IN AUTHORIZED COMMON STOCK
The Company's Articles of Incorporation presently authorizes the issuance by
the Company of up to 100,000,000 shares of Common Stock, par value $0.0001 per
share. As of the record date, there were 14,104,843 shares of Common Stock
issued and outstanding.
Due to the Company's new business initiatives, the holders of approximately 75%
majority of the Company's Common Stock have approved an amendment to the
Company's Articles of Incorporation pursuant to which the number of shares of
common stock which the Company will be authorized to issue will be increased
from 100,000,000 to 200,000,000 shares. The additional shares of Common Stock,
when issued, would have the same rights and privileges as the shares of Common
Stock now issued. There are no pre-emptive rights relating to the Common Stock.
Any issuance of additional shares of Common Stock would increase the number of
outstanding shares of Common Stock and (unless such issuance was pro-rata among
existing shareholders) the percentage ownership of existing shareholders would
be diluted accordingly. The dilutive effect of such an issuance could
discourage a change in control of the Company by making it more difficult or
costly. We are not aware of anyone seeking to accumulate Common Stock or to
obtain control of the Company, and have no present intention to use the
additional authorized shares to deter a change in control.
Although the Company does not presently have any plans, intentions, agreements,
understandings or arrangements regarding the issuance of additional shares of
Common Stock other than what has been disclosed, the board of directors believes
that it is in our best interests to increase the number of authorized shares of
Common Stock in order to have additional authorized but unissued shares
available for issuance to meet business needs as they arise without the expense
and delay of a Special Meeting of shareholders.
The board of directors believes that the availability of such shares will
provide us with the flexibility to issue Common Stock for proper corporate
purposes, which may be identified by the Board of Directors in the future. For
example, such shares may be issued in the event the board of directors
determines that it is necessary or appropriate to permit a future stock
dividend or stock split, to raise additional capital, to acquire another
corporation or its business or assets, to establish a strategic relationship
with a corporate partner or to issue shares under management incentive or
employee and consultant benefit plans. The board of directors does not intend
to authorize the issuance of any such shares, except upon terms the board of
directors deems to be in the Company's best interests. Except as otherwise
required by applicable law and regulations, authorized but unissued shares of
Common Stock may be issued at such time, for such purpose and for such
consideration as the board of directors may determine to be appropriate,
without further authorization by shareholders.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the outstanding shares of
Common Stock is required for approval of the amendment to the Articles of
Incorporation under the Washington Revised Statutes. The Company has obtained
this approval through written consent of shareholders owning approximately 75%
of the outstanding voting shares of its Common Stock. Therefore, an
extraordinary meeting of the shareholders to approve the increase in authorized
share capital and the amendment to the Articles of Incorporation is unnecessary
and will not take place for this purpose. A copy of the amendment is attached
to this Information Statement as Exhibit A.
ABSENCE OF DISSENTERS' RIGHTS
No dissenters' or appraisal rights are available to the Company's shareholders
under the Revised Code of Washington, the Company's Articles of Incorporation
or its Bylaws in connection with this amendment.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION
c) TO PERMIT ACTION TAKEN WITHOUT A SHAREHOLDER'S MEETING IF THE ACTION IS TAKEN
BY WRITTEN CONSENT OF A MAJORITY OF SHAREHOLDERS
The Company's board of directors and the shareholders holding approximately 75%
of the voting shares of its Common Stock have approved that any action required
or permitted to be taken at a shareholders' meeting may be taken without a
meeting or a vote if the action is taken by written consent of a majority of
shareholders entitled to vote on the action. The change in Article IX of the
Articles of Incorporation will become effective upon filing of an amendment to
the Company's Articles of Incorporation with the Secretary of State of
Washington, which is expected to occur as soon as is reasonably practicable on
or after the 20th day following the mailing of this Information Statement to our
shareholders. The change in Article IX will provide the holders of Common Stock
with increased flexibility to affect business actions without the unanimous
consent of all shareholders.
REASONS FOR THE CHANGE IN ARTICLE IX
The Company's Articles of Incorporation presently authorizes any action required
or permitted to be taken at a shareholders' meeting may be taken without a
meeting or a vote if either a) the action is taken by written consent of all
shareholders entitled to vote on the action; or b) so long as this corporation
is not a public company, the action is taken by written consent of
shareholders holding of record, or otherwise entitled to vote, in the aggregate
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
on the action were present and voted.
The board of directors and holders of approximately 75% majority of the
Company's common stock have approved an amendment to the Company's
Articles of Incorporation to permit action taken by written consent of a
majority of shareholders entitled to vote on the action to meet business needs
as they arise without the associated expense and delay of conducting Special
Meetings of shareholders.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the outstanding shares of
common stock is required for approval of the amendment to the Articles of
Incorporation under the Washington Revised Statutes. The Company has obtained
this approval through written consent of shareholders owning approximately 75%
of the outstanding voting shares of its Common Stock. Therefore, an
extraordinary meeting of the stockholders to approve the change in Article IX
to the Articles of Incorporation is unnecessary and will not take place for
this purpose. A copy of the amendment is attached to this Information
Statement as Exhibit A.
ABSENCE OF DISSENTERS' RIGHTS
No dissenters' or appraisal rights are available to the Company's shareholders
under the Revised Code of Washington, the Company?s Articles of Incorporation
or its Bylaws in connection with this amendment.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
AMENDMENT AND RESTATEMENT OF BYLAWS
d) TO PERMIT ACTION TAKEN WITHOUT A SHAREHOLDER'S MEETING IF THE ACTION IS TAKEN
BY WRITTEN CONSENT OF A MAJORITY OF SHAREHOLDERS
The Company's board of directors and the shareholders holding approximately 75%
of the voting shares of its Common Stock have approved to amend Section 2.14 of
the Company's Bylaws to permit any action that may be or is required to be
taken at a meeting of the shareholders may be taken without a meeting by written
consent of a majority of shareholders entitled to vote with respect to the
matter. The change in Section 2.14 of the Company's Bylaws will become
effective upon an amendment to the Company's Bylaws which is expected to occur
as soon as is reasonably practicable on or after the 20th day following the
mailing of this Information Statement to our shareholders. The change in
Section 2.14 of the Company's Bylaws will provide the holders of Common Stock
with increased flexibility to affect business actions without the unanimous
consent of all shareholders.
REASONS FOR THE CHANGE IN SECTION 2.14 OF THE COMPANY'S BYLAWS
The Company's Bylaws presently authorizes any action that may be or is required
to be taken at a meeting of the shareholders may be taken without a meeting by
unanimous consent if one or more written consents setting forth the action so
taken shall be signed by all the shareholders entitled to vote with respect to
the matter. Action may also be taken by less than unanimous consent. Action by
less than unanimous consent may be taken if one or more written consents
describing the action taken shall be signed by shareholders holding the record
or otherwise entitled to vote in the aggregate not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote on the action were present and voted.
The board of directors and holders of approximately 75% majority of the
Company's Common Stock have approved an amendment to the Company's Bylaws to
permit action taken by written consent of a majority of shareholders entitled
to vote on the action to meet business needs as they arise without the
associated expense and delay of conducting Special Meetings of shareholders.
VOTE REQUIRED
The affirmative vote of the holders of a majority of the outstanding shares of
Common Stock is required for approval of the amendment to the Articles of
Incorporation under the Washington Revised Statutes. The Company has obtained
this approval through written consent of shareholders owning approximately 75%
majority of the outstanding voting shares of its Common Stock. Therefore, an
extraordinary meeting of the shareholders to approve the change in Section
2.14 of the Company's Bylaws is unnecessary and will not take place for this
purpose. A copy of the amendment is attached to this Information Statement as
Exhibit B.
ABSENCE OF DISSENTERS' RIGHTS
No dissenters' or appraisal rights are available to the Company's shareholders
under the Revised Code of Washington, the Company's Articles of Incorporation
or its Bylaws in connection with this amendment.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE NOT REQUESTED TO SEND US A PROXY.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information concerning the ownership of
the Company's Common Stock as of July 6, 2005 with respect to (i) each person
known to the Company to be the beneficial owner of more than five percent of
the Company's Common Stock; (ii) all directors; and (iii) directors and
executive officers of the Company as a group. The notes accompanying the
information in the table below are necessary for a complete understanding of
the figures provided below. As of July 6, 2005, there were 14,104,843 shares
of Common Stock issued.
<table>
<caption>
CURRENT DIRECTORS AND OFFICERS:
<s> <c> <c>
Title of Class Name and address of beneficial owner Amount and Nature
- -------------- ------------------------------------ ------------------
Common Stock Donald Walker 775,375 shares
President, Chief Executive Officer,
Director
99 Elm Street
Larkspur, California 94939
Common Stock Robert Rosner 776,250 shares
Secretary, Director
#134, 9663 Santa Monica Blvd
Beverly Hills, California 90210
- -------------- ------------------------------------ ------------------
Common Stock Directors and Officers as a group 1,551,625 shares
5% STOCKHOLDERS:
None
</table>
INTEREST OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
No director, executive officer, associate of any director or executive officer
or any other person has any substantial interest, direct or indirect, by
security holdings or otherwise, in the amendments to be made to the Company's
Articles of Incorporation or in any action covered by the related resolution
adopted by the board of directors, which is not shared by all other
shareholders.
ADDITIONAL INFORMATION
Additional information concerning the Company, including its annual and
quarterly reports on forms 10-KSB and 10-QSB, which has been filed with the
Securities and Exchange Commission, may be accessed at www.sec.gov.
SIGNATURE
Pursuant to the requirements of the Exchange Act of 1934, as amended, the
Company has duly caused this report to be signed on its behalf by the
undersigned hereunto authorized.
CIMBIX CORPORATION
BY ORDER OF THE BOARD OF DIRECTORS
/S/ DONALD WALKER
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DONALD WALKER
President, Chief Executive Officer
Dated July 6, 2005
<page>
EXHIBIT A
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[ The Seal ] ARTICLES OF AMENDMENT
[ of the ]SECRETARY OF WASHINGTON WASHINGTON
[ State of ]SECRETARY OF STATE PROFIT CORPORATION
[Washington]
Corporations Division (Per Chapter 23B.10 RCW)
801 Capital Way South, PO Box 40234 Page 1
Olympia, WA 98504-0234 -------------------------
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Person to contact about this filing: Daytime Phone Number:
ROBERT ROSNER (310) 435 ? 0435
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AMENDMENT TO ARTICLES OF INCORPORATION
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Name of Corporation: CIMBIX CORPORATION
UBI Number: 602 059 547 Corporation Number: 29322070
Amendments to Articles of Incorporation were adopted on : ____________
Effective Date of Articles of Amendment:
[ ] Specific Date: ________ [X] Upon filing by the Secretary of State
Articles of Amendment were adopted by:
[ ] Incorporators. Shareholders action was not required
[ ] Board of Directors. Shareholders action was not required
[X ] Duly approved shareholder action in accordance with Chapter 23B.10 RCW
- ---------------------------------------------------------------------------
AMENDMENTS TO THE ARTICLES OF INCORPORATION ARE AS FOLLOWS:
ARTICLE I
The name of the corporation is ?PetsMobility Inc.?
ARTICLE II
2.1 Authorized Capital
The total number of shares that this corporation is authorized to issue is
220,000,000, consisting of 200,000,000 shares of Common Stock having a par
value of $0.0001 per share and 20,000,000 shares of Preferred Stock having
a par value of $0.0001 per share. The Common Stock is subject to the rights
and preferences of the Preferred Stock as set forth below.
ARTICLE IX
9.1 Shareholder Actions
Any action required or permitted to be taken at a shareholders meetings may
be taken without a meeting or a vote if the action is taken by the written
consent of a majority of shareholders entitled to vote on the action.
To the extent that the Washington Business Corporation Act requires prior
notice of any such action to be given to non-consenting or non-voting
shareholders, such notice shall be made prior to the date on which the
action becomes effective, as required by the Washington Business Corporation
Act. The form of the notice shall be sufficient to apprise the non-
consenting or nonvoting shareholder of the nature of the action to be
effected, in a manner approved by the Directors of the corporation or by
the committee or officers to whom the Board of Directors has delegated that
responsibility.
- ----------------------------------------------------------------------------
Signature of Officer:
This document is hereby executed under penalties of perjury, and is, to the
best of my knowledge, true and correct.
/s/ ___________________________ ________________________ Date: _________
Signature of Officer Name of Officer
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INFORMATION AND ASSISTANCE : (360) 753 - 7115
<page>
EXHIBIT B
BYLAWS OF
PETSMOBILITY INC.
SECTION 1. OFFICES
The principal office of the corporation shall be located at the
principal place of business or such other place as the Board of Directors
("Board") may designate. The corporation may have such other offices as the
Board may designate or as the business of the corporation may require.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting
The annual meeting of the shareholders to elect Directors and
transact such other business as may properly come before the meeting shall be
held on a date not more than 180 days after the end of the corporation's
fiscal year, such date and time to be determined by the Board.
2.2 Special Meetings
(a) Subject to paragraph 2.2(b), the Chairman of the Board, the President
or the Board may call special meetings of the shareholders for any purpose.
Further, a special meeting of the shareholders shall be held if the holders
of not less than 25% of all the votes entitled to be cast on any issue
proposed to be considered at such special meeting have dated, signed and
delivered to the Secretary one or more written demands for such meeting,
describing the purpose or purposes for which it is to be held.
(b) So long as the Corporation is a public company, special meetings of
the shareholders of the Corporation for any purpose may be called at any time
by the Board or, if the Directors in office constitute fewer than a quorum of
the Board, by the affirmative vote of a majority of all the Directors in
office, but such special meetings may not be called by any other person or
persons.
2.3 Meetings by Communications Equipment
Shareholders may participate in any meeting of the shareholders by any
means of communication by which all persons participating in the meeting can
hear each other during the meeting. Participation by such means shall
constitute presence in person at a meeting.
2.4 Date, Time and Place of Meeting
Except as otherwise provide in these Bylaws, all meetings of
shareholders, including those held pursuant to demand by shareholders, shall
be held on such date and at such time and place designated by or at the
direction of the Board.
2.5 Notice of Meeting
Written notice stating the place, day and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called shall be given by or at the direction of the Board, the Chairman of the
Board, the President or the Secretary to each shareholder entitled to notice of
or to vote at the meeting not less than 10 nor more than 60 days before the
meeting, except that notice of a meeting to act on an amendment to the Articles
of Incorporation, a plan of merger or share exchange, the sale, lease, exchange
or other disposition of all or substantially all of the corporation?s assets
other than in the regular course of business or the dissolution of the
corporation shall be given not less than 20 or more than 60 days before such
meeting. If an annual or special shareholders? meeting is adjourned to a
different date, time or place, no notice of the new date, time or place is
required if they are announced at the meeting before adjournment. If a new
record date for the adjourned meeting is or must be fixed, notice of the
adjourned meeting must be given to shareholders entitled to notice of or to
vote as of the new record date.
Such notice may be transmitted by mail, private carrier, personal
delivery, telegraph, teletype or communications equipment that transmits a
facsimile of the notice. If those forms of written notice are impractical in
the view of the Board, the Chairman of the Board, the President or the
Secretary, written notice may be transmitted by an advertisement in a
newspaper of general circulation in the area of the corporation?s principal
office. If such notice is mailed, it shall be deemed effective when deposited
in the official government mail, first-class postage prepaid, properly
addressed to the shareholder at such shareholder's address as it appears in the
corporation's current record of shareholders. Notice given in any other manner
shall be deemed effective when dispatched to the shareholder's address,
telephone number or other number appearing on the records of the corporation.
Any notice given by publication as herein provided shall be deemed effective
five days after first publication.
2.6 Waiver of Notice
Whenever any notice is required to be given by an shareholder under
the provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, a waiver of notice in writing, signed by the person
or persons entitled to such notice and delivered to the corporation, whether
before or after the date and time of the meeting or before or after the action
to be taken by consent is effective, shall be deemed equivalent to the giving
of such notice. Further, notice of the time, place and purpose of any meeting
will be deemed to be waived by any shareholder by attendance in person or by
proxy, unless such shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting.
2.7 Fixing of Record Date for Determining Shareholders
For the purpose of determining shareholders entitled (a) to notice of
or to vote at any meeting of shareholders or any adjournment thereof, (b) to
demand a special meeting, or (c) to receive payment of any dividend, or in
order to make a determination of shareholders for any other purpose, the Board
may fix a future date as the record date for any such determination. Such
record date shall be not more than 70 days, and, in case of a meeting of
shareholders, not less than 10 days, prior to the date on which the particular
action requiring such determination is to be taken. If no record date is fixed
for the determination of shareholders entitled to notice of or to vote a
meeting, the record date shall be the day immediately proceeding the date on
which notice of the meeting is first given to shareholders. Such a
determination shall apply to any adjournment of the meeting unless the Board
fixes a new record date, which it shall do if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting. If no
record date is set for the determination of shareholders entitled to receive
payment of any stock, dividend or distribution (other than one involving a
purchase, redemption or other acquisition of the corporation?s shares), the
record date shall be the date the Board authorizes the stock dividend or
distribution.
2.8 Voting Record
At least 10 days before each meeting of shareholders, an alphabetical
list of the shareholders entitled to notice of such meeting shall be made,
arranged by voting group and by each class or series of shares, with the
address of and number of shares held by each shareholder. This record shall
be kept at the principal office of the corporation for 10 days prior to such
meeting, and shall be kept open at such meeting, for the inspection of any
shareholder or any shareholder's agent or attorney.
2.9 Quorum
Except with respect to any greater requirement contained in the
Articles of Incorporation or the Washington Business Corporation Act, one-
third of the votes entitled to be cast on a matter by the holders of shares
that, pursuant to the Articles of Incorporation or the Washington Business
Corporation Act, are entitled to vote and be counted collectively upon such
matter, represented in person or by proxy, shall constitute a quorum of such
shares at a meeting of shareholders. If less than the required number of such
votes is represented at a meeting, a majority of the votes so represented may
adjourn the meeting from time to time. Any business may be transacted at a
reconvened meeting that might have been transacted at the meeting as originally
called, provided a quorum is present or represented at such meeting. Once a
share is represented for any purpose at a meeting other than solely to object
to holding the meeting or transacting business, it is deemed present for quorum
purposes for the remainder of the meeting and any adjournment (unless a new
record date is or must be set for the adjourned meeting), notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.10 Manner of Acting
If a quorum is present, action on a matter other than the election of
Directors shall be approved if the votes cast in favor of the action by the
shares entitled to vote and be counted collectively upon such matter exceed
the votes cast against such action by the shares entitled to vote and be
counted collectively thereon, unless the Articles of Incorporation or the
Washington Business Corporation Act requires a greater number of affirmative
votes. Whenever the Washington Business Corporation Act permits a
corporation's bylaws to specify that a lesser number of shares than would
otherwise be required shall suffice to approve an action by shareholders,
these Bylaws hereby specify that the number of shares required to approve
such an action shall be such lesser number.
2.11 Proxies
As shareholder may vote by proxy executed in writing by the shareholder
or by his or her attorney-in-fact or agent, such proxy shall be effective when
received by the Secretary or other officer or agent authorized to tabulate
votes. A proxy shall become invalid 11 months after the date of its execution,
unless otherwise provided in the proxy. A proxy with respect to a specified
meeting shall entitle its holder to vote at any reconvened meeting following
adjournment of such meeting but shall not be valid after the final adjournment.
2.12 Voting Shares
Except as provided in the Articles of Incorporation, each outstanding
share entitled to vote with respect to a matter submitted to a meeting of
shareholders shall be entitled to one vote upon such matter.
2.13 Voting for Directors
Each shareholder entitled to vote to an election of Directors may vote,
in person or by proxy, the number of shares owned by such shareholder for as
many persons as there are Directors to be elected and for whose election such
shareholder has a right to vote. Shareholders shall not have the right to
cumulate their votes. Unless otherwise provided in the Articles of
Incorporation, the candidates elected shall be those receiving the largest
number of votes cast, up to the number of Directors to be elected.
2.14 Action by Shareholders Without a Meeting
Any action that may be or is required to be taken at a meeting of the
shareholders may be taken without a meeting by written consent of a majority
of shareholders entitled to vote with respect to the matter.
SECTION 3. BOARD OF DIRECTORS
3.1 General Powers
All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the corporation shall be managed under the
direction of, the Board, except as may be otherwise provided in these Bylaws,
the Articles of Incorporation or the Washington Business Corporation Act.
3.2 Number, Classification and Tenure
The Board shall be composed of not less than one nor more than six
Directors, the specific number to be set by resolution of the Board or, if
the Directors in office constitute fewer than a quorum of the Board, by the
affirmative vote of a majority of all the Directors in office. The number of
Directors may be changed from time to time as provided by the Articles of
Incorporation, but no decrease in the number of Directors shall have the
effect of shortening the term of any incumbent Director. The Directors shall
be divided into three classes, with each class to be as nearly equal in number
as possible, as specified by resolution of the Board or, if the Directors in
office constitute fewer than a quorum of the Board, by the affirmative vote of
a majority of all the Directors in office. The term of office of Directors of
the first class shall expire at the first annual meeting of shareholders after
their election. The term of office of Directors of the second class shall
expire at the second annual meeting after their election. The term of office
of Directors of the third class shall expire at the third annual meeting after
their election. At each annual meeting after such classification, a number of
Directors equal to the number of the class whose term expires at the time of
such meeting shall be elected to hold office until the third succeeding annual
meeting. Absent his or her death, resignation or removal, a Director shall
continue to serve despite the expiration of the Director?s term until his or
her successor shall have been elected and qualified or until there is a
decrease in the number of Directors. Directors need not be shareholders of
the corporation or residents of the state of Washington, and need not meet
any other qualifications.
3.3 Annual and Regular Meetings
An annual Board meeting shall be held without notice immediately after
and at the same place as the annual meeting of shareholders. By resolution the
Board, or any committee designated by the Board, may specify the time and place
for holding regular meetings without notice other than such resolution.
3.4 Special Meetings
Special meetings of the Board or any committee designated by the Board
may be called by or at the request of the Chairman of the Board, the President,
the Secretary or, in the case of special Board meetings, any one-third or more
of the Directors in office and, in the case of any special meeting of any
committee designated by the Board, by its Chairman. The person or persons
authorized to call special meetings may fix any place for holding any special
Board or committee meeting called by them.
3.5 Meetings by Communications Equipment
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by, or conduct the meeting
through the use of, any means of communication by which all Directors
participating in the meeting can hear each other during the meeting.
Participation by such means shall constitute presence in person at a meeting.
3.6 Notice of Special Meetings
Notice of a special Board or committee meeting stating the place, day
and hour of the meeting shall be given to a Director in writing or orally.
Neither the business to be transacted at nor the purpose of any special meeting
need be specified in the notice of such meeting.
3.6.1 Personal Delivery
If notice is given by personal delivery, the notice shall be delivered
to a Director at least two days before the meeting.
3.6.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deposited in the
official government mail at least five days before the meeting, properly
addressed to a Director at his or her address shown on the records of the
corporation, with postage thereon prepaid.
3.6.3 Delivery by Private Carrier
If notice is given by private carrier, the notice shall be dispatched
to a Director at his or her address shown on the records of the corporation at
least three days before the meeting.
3.6.4 Facsimile Notice
If a notice is delivered by wire or wireless equipment that transmits
a facsimile of the notice, the notice shall be dispatched at least two days
before the meeting to a Director at his or her telephone number or other number
appearing on the records of the corporation.
3.6.5 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be delivered to
the telegraph company for delivery to a Director at his or her address shown on
the records of the corporation at least three days before the meeting.
3.6.6 Oral Notice
If notice is delivered by orally, by telephone or in person, the notice
shall be personally given to the Director at least two days before the meeting.
3.7 Waiver of Notice
3.7.1 In Writing
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, a waiver thereof in writing, signed by the person or
persons entitled to such notice and delivered to the corporation, whether
before or after the date and time of the meeting, shall be deemed equivalent
to the giving of such notice. Neither the business to be transacted at nor
the purpose of any regular or special meeting of the Board or any committee
designated by the Board need be specified in the waiver of notice of such
meeting.
3.7.2 By Attendance
A Director's attendance at or participation in a Board or committee
meeting shall constitute a waiver of notice of such meeting, unless the
Director at the beginning of the meeting, or promptly upon his or her arrival,
objects to holding the meeting or transacting business at such meeting and
does not thereafter vote for or assent to action taken at the meeting.
3.8 Quorum
A majority of the number of Directors fixed by or in the manner
provided in these Bylaws shall constitute a quorum for the transaction of
business at any Board meeting but, if less than a majority is present at a
meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice. A majority of the number of Directors
composing any committee of the Board, as established and fixed by resolution
of the Board, shall constitute a quorum for the transaction of business at
any meeting of such committee but, if less than a majority are present at a
meeting, a majority of such Directors present may adjourn the committee
meeting from time to time without further notice.
3.9 Manner of Acting
If a quorum is present when the vote is taken, the act of the
majority of the Directors present at a Board or committee meeting shall be
the act of the Board or such committee, unless the vote of a greater number
is required by these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act.
3.10 Presumption of Assent
A Director of the corporation who is present at a Board or committee
meeting at which any action is taken shall be deemed to have assented to the
action taken unless (a) the Director objects at the beginning of the meeting,
or promptly upon the Director's arrival, to holding the meeting or
transacting any business at such meeting, (b) the Director's dissent or
abstention from the action taken is entered in the minutes of 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 of dissent or abstention is not available to a Director who votes
in favor of the action taken.
3.11 Action by Board or Committees Without a Meeting
Any action that could be taken at a meeting of the Board or of any
committee created by the Board may be taken without a meeting if one or more
written consents setting forth the action so taken are signed and approved
by all of the Directors or by each committee member either before or after
the action is taken and delivered to the corporation. Action taken by written
consent of Directors without a meeting is effective when the last Director
signs the consent, unless the consent specifies a later effective date. Any
such written consent shall be inserted in the minute book as if it were the
minutes of a Board or a committee meeting.
3.12 Resignation
Any Director may resign from the Board or any committee of the Board
at any time by delivering either oral tender of resignation at any meeting of
the Board or any committee, or written notice to the Chairman of the Board,
the President, the Secretary or the Board. Any such resignation is effective
upon delivery thereof unless the notice of resignation specifies a later
effective date and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
3.13 Removal
At a meeting of shareholders called expressly for that purpose, one
or more members of the Board, including the entire Board, may be removed with
or without cause (unless the Articles of Incorporation permit removal for
cause only) by the holders of the shares entitled to elect the Director or
Directors whose removal is sought if the number of votes cast to remove the
Director exceeds the number of votes cast not to remove the Director.
3.14 Vacancies
If a vacancy occurs on the Board, including a vacancy resulting from
an increase in the number of Directors, the Board may fill the vacancy, or, if
the Directors in office constitute fewer than a quorum of the Board, they may
fill the vacancy by the affirmative vote of a majority of all the Directors
in office. The shareholders may fill a vacancy only if there are no Directors
in office. A Director elected to fill a vacancy shall serve only until the next
election of Directors by the shareholders.
3.15 Executive and Other Committees
3.15.1 Creation of Committees
The Board, by resolution adopted by the greater of a majority of the
Directors then in office and the number of Directors required to take action
in accordance with these Bylaws, may create standing or temporary committees,
including an Executive Committee, and appoint members from its own number and
invest such committees with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board, the Articles of Incorporation,
these Bylaws and applicable law. Each committee must have two or more members,
who shall serve at the pleasure of the Board.
3.15.2 Authority of Committees
Each Committee shall have and may exercise all the authority of the
Board to the extent provided in the resolution of the Board creating the
committee and any subsequent resolutions adopted in like manner, except that no
such committee shall have the authority to: (1) authorize or approve a
distribution except according to a general formula or method prescribed by the
Board, (2) approve or propose to shareholders actions or proposals required by
the Washington Business Corporation Act to be approved by shareholders, (3) fill
vacancies on the Board or any committee thereof, (4) amend the Articles of
Incorporation pursuant to RCW 23B.lO.020, (5) adopt, amend or repeal Bylaws,
(6) approve a plan of merger not requiring shareholder approval, or (7)
authorize or approve the issuance or sale of contract for sale of shares, or
determine the designation and relative rights, preferences and limitations of
a class or series of shares except that the Board may authorize a committee or
a senior executive officer of the corporation to do so within limits
specifically prescribed by the Board.
3.15.3 Minutes of Meetings
All committees shall keep regular minutes of their meetings and shall
cause them to be recorded in books kept for that purpose.
3.15.4 Removal
The Board may remove any member of any committee elected or appointed
by it but only by the affirmative vote of the greater of a majority of
Directors then in office and the number of Directors required to take action
in accordance with these Bylaws.
3.16 Compensation
By Board resolution, Directors and committee members may be paid either
expenses, if any, of attendance at each Board or committee meeting, or a fixed
sum for attendance at each Board or committee meeting, or a stated salary as
Director or a committee member, or a combination of the foregoing. No such
payment shall preclude any Director or committee member from serving the
corporation in any other capacity and receiving compensation therefore.
SECTION 4. OFFICERS
4.1 Appointment and Term
The officers of the corporation shall be those officers appointed from
time to time by the Board or by any other officer empowered to do so. The Board
shall have sole power and authority to appoint executive officers. As used
herein, the term ?executive officer? shall mean the President, the chief
financial officer and any other officer designated by the Board as an executive
officer. The Board or the President may appoint such other officers to hold
office for such period, have such authority and perform such duties as may be
prescribed. The Board may delegate to any other officer the power to appoint
any subordinate officers and to prescribe their respective terms of office,
authority and duties. Any two or more offices may be held by the same person.
Unless an officer dies, resigns or is removed from office, he or she shall hold
office until his or her successor is appointed.
4.2 Resignation
Any officer may resign at any time by delivering written notice to the
corporation. Any such resignation is effective upon delivery, unless the notice
of resignation specifies a later effective date, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make
it effective.
4.3 Removal
Any officer may be removed by the Board at any time, with or without
cause. An officer or assistant officer, if appointed by another officer, may be
removed at any time, with or without cause, by any officer authorized to appoint
such officer or assistant officer.
4.4 Contract Rights of Officers
The appointment of an officer does not itself create contract rights.
4.5 Chairman of the Board
If appointed, the Chairman of the Board shall perform such duties as
shall be assigned to him or her by the Board from time to time, and shall
preside over meetings of the Board and shareholders unless another officer
is appointed or designated by the Board of Chairman of such meetings.
4.6 President
If appointed, the President shall be the chief executive officer of the
corporation unless some other offices is to designated by the Board, shall
preside over meetings of the Board and shareholders in the absence of a Chairman
of the Board, and, subject to the Board?s control, shall supervise and control
all the assets, business and affairs of the corporation. In general, the
President shall perform all duties incident to the office of President and
such other duties as are prescribed by the Board from time to time. If no
Secretary has been appointed, the President shall have responsibility for the
preparation of minutes of meetings of the Board and shareholders and for
authentication of the records of the corporation.
4.7 Vice President
In the event of the death of the President or his or her inability to
act, the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Vice Presidents shall perform such other duties
as from time to time may be assigned to them by the President or by or at the
direction of the Board.
4.8 Secretary
If appointed, the Secretary shall be responsible for preparation of
minutes of the meetings of the Board and shareholders, maintenance of the
corporation records and stock registers, and authentication of the corporation's
records, and shall in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him or
her by the President or by or at the direction of the Board. In the absence of
the Secretary, an Assistant Secretary may perform the duties of the Secretary.
4.9 Treasurer
If appointed, the Treasurer shall have charge and custody of and be
responsible for all funds and securities of the corporation, receive and give
receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in
banks, trust companies or other depositories selected in accordance with the
provisions of these Bylaws, and in general perform all the duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the President or by or at the direction of the Board.
In the absence of the Treasurer, an Assistant Treasurer may perform the duties
of the Treasurer.
4.10 Salaries
The salaries of the officers shall be fixed from time to time by the
Board or by any person or persons to whom the Board has delegated such
authority. No officer shall be prevented from receiving such salary by reason
of the fact that he or she is also a Director of the corporation.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts
The Board may authorize any officer or officers, or agent or agents,
to enter into any contract or execute and deliver any instrument in the name of
and on behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 Loans to the Corporation
No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board. Such authority may be general or confined to specific
instances.
5.3 Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, or agent or agents, of the corporation and
in such manner as is from time to time determined by resolution of the Board.
5.4 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 may authorize.
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Issuance of Shares
No shares of the corporation shall be issued unless authorized by the
Board, or by a committee designated by the Board to the extent such committee
is empowered to do so.
6.2 Certificates for Shares
Certificates representing shares of the corporation shall be signed,
either manually or in facsimile, by the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary and shall include on their face written notice of any restrictions
that may be imposed on the transferability of such shares. All certificates
shall be consecutively numbered or otherwise identified.
6.3 Stock Records
The stock transfer books shall be kept at the principal office at the
corporation or at the office of the corporation?s transfer agent or registrar.
The name and address of each person to whom certificates for shares are issued,
together with the class and number of shares represented by each such
certificate and the date of issue thereof, shall be entered on the stock
transfer books 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.
6.4 Restriction on Transfer
Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable securities laws, or has otherwise satisfied itself
that such transfer restrictions are not required, all certificates
representing shares of the corporation shall bear a legend on the face of
the certificate, or on the reverse of the certificate if a reference to the
legend is contained on the face, which reads substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE ?ACT?), OR APPLICABLE STATE SECURITIES LAWS,
AND NO INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
(A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY
SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THIS
CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR
THE HOLDER OF THESE SECURITIES SATISFACTORY TO THIS
CORPORATION STATING THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION, OR (C) THIS CORPORATION OTHERWISE
SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
6.5 Transfer of Shares
The transfer of shares of the corporation shall be made only on the
stock transfer books of the corporation pursuant to authorization or document
of transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer,
or by his or her attorney-in-fact authorized by power of attorney duly
executed and filed with the Secretary of the corporation. All certificates
surrendered to the corporation for transfer shall be canceled and no new
certificate shall be issued until the former certificates for a like number
of shares shall have been surrendered and canceled.
6.6 Lost or Destroyed Certificates
In the case of a lost, destroyed or damaged certificate, a new
certificate may be issued in its place upon such terms and indemnity to the
corporation as the Board may prescribe.
SECTION 7. BOOKS AND RECORDS
The corporation shall:
(a) Keep as permanent records minutes of all meetings of its
shareholders and the Board, a record of all actions taken by the shareholders
or the Board without a meeting, and a record of all actions taken by a
committee of the Board exercising the authority of the Board on behalf of
the corporation.
(b) Maintain appropriate accounting records.
(c) Maintain a record of its shareholders, in a form that permits preparation
of a list of the names and addresses of all shareholders, in alphabetical
order by class of shares showing the number and class of shares held by each;
provided, however, such record may be maintained by an agent of the
corporation.
(d) Maintain its records in written form or in another form capable of
conversion into written form within a reasonable time.
(e) Keep a copy of the following records at its principal office:
1. the Articles of Incorporation and all amendments thereto as currently in
effect;
2. these Bylaws and all amendments thereto as currently in effect;
3. the minutes of all meetings of shareholders and records of all action
taken by shareholders without a meeting, for the past three years;
4. the financial statements described in Section 23B.16.200(1) of the
Washington Business Corporation Act, for the past three years;
5. all written communications to shareholders generally within the past
three years;
6. a list of the names and business addresses of the current Directors and
officers; and
7. the most recent annual report delivered to the Washington Secretary of State.
SECTION 8. ACCOUNTING YEAR
The accounting year of the corporation shall be the calendar year,
provided that if a different accounting year is at any time selected by the
Board for purposes of federal income taxes, or any other purpose, the
accounting year shall be the year so selected.
SECTION 9. SEAL
The Board may provide for a corporate seal that shall consist of the
name of the corporation, the state of its incorporation, and the year of its
incorporation.
SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification
Each person who was, is or is threatened to be made a party to or is
otherwise involved (including, without limitation, as a witness) in any
threatened, pending or completed action, suit, claim or proceeding, whether
civil, criminal, administrative or investigative and whether formal or informal
(hereinafter a "proceedings"), by reason of the fact that he or she is or was a
Director or officer of the corporation or, that being or having been such a
Director or officer of the corporation, he or she is or was serving at the
request of the corporation as a Director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise (hereafter an ?indemnitee?), whether the basis
of a proceeding is alleged action in an official capacity or in any other
capacity while serving as such a Director, officer, partner, trustee, employee
or agent, shall be indemnified and held harmless by the corporation against all
losses, claims, damages (compensatory, exemplary, punitive or otherwise),
liabilities and expenses (including attorneys' fees, costs, judgments, fines,
ERISA excise taxes or penalties, amounts to be paid in settlement and any other
expenses) actually and reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a Director or officer of the Corporation or a Director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
and shall insure to the benefit of the indemnitee?s heirs, executors and
administrators. Except as provided in subsection 10.4 of this Section with
respect to proceedings seeking to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if a proceeding (or part
thereof) was authorized or ratified by the Board. The right to indemnification
conferred in this Section shall be a contract right.
10.2 Restrictions on Indemnification
No indemnification shall be provided to any such indemnitee for acts or
omissions of the indemnitee finally adjudged to be intentional misconduct or a
knowing violation of law, for conduct of the indemnitee finally adjudged to be
in violation of Section 23B.08.310 of the Washington Business Corporation Act,
for any transaction with respect to which it was finally adjudged that such
indemnitee personally received a benefit in money, property or services to which
the indemnitee was not legally entitled or if the corporation is otherwise
prohibited by applicable law from paying such indemnification. Notwithstanding
the foregoing, if Section 23B.08.560 or any successor provision of the
Washington Business Corporation Act is hereafter amended, the restrictions on
indemnification set forth in this subsection 10.2 shall be as set forth in such
amended statutory provision.
10.3 Advancement of Expenses
The right to indemnification conferred in this Section shall include the
right to be paid by the corporation the expenses reasonably incurred in
defending any proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"). As advancement of expenses shall be made
upon delivery to the corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal that such indemnitee is not entitled
to be indemnified.
10.4 Right of Indemnitee to Bring Suit
If a claim under subsection 10.1 or 10.3 of this Section is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim. If successful in whole or in part, in any such suit
or in a suit brought by the corporation to recover an advancement of expenses
pursuant to the terms of the undertaking, the indemnitee shall be entitled to
be paid also the expense of litigating such suit. The indemnitee shall be
presumed to be entitled to indemnification under this Section upon submission
of a written claim (and, in an action brought to enforce a claim for an
advancement of expenses, when the required undertaking has been tendered to
the corporation) and thereafter the corporation shall have the burden of proof
to overcome the presumption that the indemnitee is so entitled.
10.5 Procedures Exclusive
Pursuant to Section 23B.08.560 (2) or any successor provision of the
Washington Business Corporation Act, the procedures for indemnification and the
advancement of expenses set forth in this Section are in lieu of the procedures
required by Section 23B.08.550 or any successor provision of the Washington
Business Corporation Act.
10.6 Non-exclusivity of Rights
Except as set forth in subsection 10.5, the right to indemnification and
the advancement of expenses conferred in this Section shall not be exclusive of
any other right that any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation or Bylaws of the corporation, general
or specific action of the Board or shareholders, contract or otherwise.
10.7 Insurance, Contracts and Funding
The corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, partner, trustee, employee or agent of the
corporation or another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any expense, liability or loss, whether
or not the corporation would have the authority or right to indemnify such
person against such expense, liability or loss under the Washington Business
Corporation Act or other law. The corporation may enter into contracts with any
Director, officer, partner, trustee, employee or agent of the corporation in
furtherance of the provisions of this section and may create a trust fund, grant
a security interest, or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Section.
10.8 Identification of Employees and Agents of the Corporation
In addition to the rights of indemnification set forth in subsection
10.1, the corporation may, by action of the Board, grant rights to
indemnification and advancement of expenses to employees and agents or any
class or group of employees and agents of the corporation (a) with the same
scope and effect as the provisions of this Section with respect to
indemnification and the advancement of expenses of Directors and officers of
the corporation; (b) pursuant to rights granted or provided by the Washington
Business Corporation Act; or (c) as are otherwise consistent with law.
10.9 Persons Serving Other Entities
Any person who, while a Director or officer of the corporation, is or
was serving (a) as a Director, officer, employee or agent of another corporation
of which a majority of the shares entitled to vote in the election of its
directors is held by the corporation or (b) as a partner, trustee or otherwise
in an executive or management capacity in a partnership, joint venture, trust,
employee benefit plan or other enterprise of which the corporation or a majority
owned subsidiary of the corporation is a general partner or has a majority
ownership shall conclusively be deemed to be so serving at the request of the
corporation and entitled to indemnification and the advancement of expenses
under subsections 10.1 and 10.3 of this Section.
SECTION 11. LIMITATION OF LIABILITY
To the full extent that the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation
or elimination of the liability of any person who would be considered an
indemnitee under subsection 10.1 of Section 10, an indemnitee of the
Corporation shall not be liable to the Corporation or its shareholders for
monetary damages for conduct in the capacity based upon which such person is
considered an indemnitee. Any amendments to or repeal of this Section 11 shall
not adversely affect any right or protection of any indemnitee of the
Corporation for or with respect to any acts or omissions of such indemnitee
occurring prior to such amendment or repeal.
SECTION 12. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board, except that the Board may not repeal or amend any Bylaw
that the shareholders have expressly provided, in amending or repealing such
Bylaw, may not be amended or repealed by the Board. The shareholders may also
alter, amend and repeal these Bylaws or adopt new Bylaws. All Bylaws made by
the Board may be amended, repealed, altered or modified by the shareholders.
The foregoing Bylaws were adopted by the Board on July ______, 2005.
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Secretary