Attached files
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS OF
WEST COAST BANCORP
(As amended through February 9, 2010)
TABLE OF CONTENTS
| Page | ||||
| SECTION 1 | Shareholders’ Meetings | 1 | ||
| 1.1 | Place | 1 | ||
| 1.2 | Annual Meeting | 1 | ||
| 1.3 | Special Meetings | 1 | ||
| 1.4 | Notices of Meetings | 1 | ||
| 1.5 | Waiver of Notice | 1 | ||
| 1.6 | Adjourned Meetings | 2 | ||
| 1.7 | Quorum of Shareholders | 2 | ||
| 1.8 | Voting of Shares | 2 | ||
| 1.9 | Action Without Meeting | 2 | ||
| 1.10 | Stockholder Business | 3 | ||
| SECTION 2 | Board of Directors | 3 | ||
| 2.1 | Number and Qualifications | 3 | ||
| 2.2 | Nominations for Directors | 3 | ||
| 2.3 | Vacancies | 4 | ||
| 2.4 | Regular Meetings | 4 | ||
| 2.5 | Special Meetings | 4 | ||
| 2.6 | Notice of Meetings | 4 | ||
| 2.7 | Waiver of Notice | 4 | ||
| 2.8 | Quorum of Directors; Attendance | 4 | ||
| 2.9 | Dissent by Directors | 4 | ||
| 2.10 | Action Without Meeting | 5 | ||
| 2.11 | Committees | 5 |
-i-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
| SECTION 3 | Officers | 6 | ||
| 3.1 | Officers Enumerated; Election | 6 | ||
| 3.2 | Qualifications | 6 | ||
| 3.3 | Chairman and Vice Chairman of the Board | 6 | ||
| 3.4 | Chief Executive Officer | 6 | ||
| 3.5 | Co-Chief Executive Officers | 6 | ||
| 3.6 | President | 7 | ||
| 3.7 | Co-Presidents | 7 | ||
| 3.8 | Vice President | 7 | ||
| 3.9 | Secretary | 7 | ||
| 3.10 | Treasurer | 7 | ||
| 3.11 | Other Officers and Agents | 7 | ||
| 3.12 | Removal of Officers | 8 | ||
| 3.13 | Vacancies | 8 | ||
| 3.14 | Salaries | 8 | ||
| SECTION 4 | Business of the Corporation | 8 | ||
| 4.1 | Obligations | 8 | ||
| 4.2 | Contracts | 8 | ||
| 4.3 | Loans to Corporation | 8 | ||
| 4.4 | Checks and Drafts | 8 | ||
| SECTION 5 | Indemnification | 8 | ||
| 5.1 | Definitions | 8 | ||
| 5.2 | Directors and Officers | 10 | ||
| 5.3 | Employees and Agents | 10 |
-ii-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
| 5.4 | Procedure for Seeking Indemnification or Advance | 10 | ||
| 5.5 | Contract and Related Rights | 12 | ||
| 5.6 | Exceptions | 14 | ||
| SECTION 6 | Stock | 14 | ||
| 6.1 | Certificate of Stock | 14 | ||
| 6.2 | Transfer | 15 | ||
| 6.3 | Shareholders of Record | 15 | ||
| 6.4 | Loss or Destruction of Certificates | 15 | ||
| 6.5 | Record Date and Transfer Books | 15 | ||
| 6.6 | Regulations | 15 | ||
| SECTION 7 | Books and Records | 15 | ||
| 7.1 | Records of the Corporate Meetings and Share Register | 15 | ||
| 7.2 | Reliance of Records | 16 | ||
| 7.3 | Form of Records | 16 | ||
| SECTION 8 | Corporate Seal | 16 | ||
| SECTION 9 | Amendments | 16 | ||
| 9.1 | Action by board | 16 | ||
| 9.2 | Amendment by Shareholders | 16 | ||
| 9.3 | Amendments to Shareholder Quorum Requirements | 16 | ||
| 9.4 | Amendments to board Quorum Requirements | 16 |
-iii-
AMENDED AND RESTATED
BYLAWS
OF
WEST COAST BANCORP
OF
WEST COAST BANCORP
SECTION 1
Shareholders’ Meetings
Shareholders’ Meetings
1.1 Place. Shareholders’ meetings may be held at the
principal office of the corporation, or at any other location within or without
the State of Oregon as determined by the board of directors and stated in the
notice of meeting.
1.2 Annual Meeting. The annual meeting of the shareholders of
the corporation for the election of directors to succeed those whose terms then
expire and for the transaction of any other business as may properly come before
the meeting will be held each year on a date and at a time selected by the board
of directors that is not later than five (5) months after the end of the
corporation’s fiscal year. Failure to hold an election of directors at the
annual meeting of the shareholders within the time stated in these bylaws,
through oversight or otherwise, does not affect the validity of any corporate
action, and a meeting of the shareholders may be held at a later date for the
election of directors and for the transaction of any other business that may
properly come before the meeting. Any election held or other business transacted
at a later meeting will be as valid as if done or transacted at the annual
meeting of the shareholders. Any later meeting will be called in the same manner
as a special meeting of the shareholders, and notice of the time, place, and
purpose of the meeting will be given in the same manner as notice of a special
meeting of the shareholders.
1.3 Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, may be called by the president or by the board of
directors, and shall be called by the president if one or more written demands
for a meeting describing the purpose or purposes for which it is to be held are
signed, dated, and delivered to the secretary by the holders of at least 10
percent of all votes entitled to be cast on any issue proposed to be considered
at the meeting.
1.4 Notices of Meetings. Written notice stating the date, time, and
place of the meeting, and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting. Notice of any shareholders’
meeting may be given either personally or by mail, by or at the direction of the
president, the secretary, or the person or persons calling the meeting, to each
shareholder of record entitled to vote at the meeting and to others as required
by law. If mailed, the notice will be effective when deposited in the United
States mail with postage prepaid, addressed to the shareholder at his or her
address as it appears in the current records of the corporation.
1.5 Waiver of Notice. Notice of any shareholders’ meeting may be
waived at any time, either before or after the meeting, if the waiver is in
writing, signed by the shareholders entitled to notice, and delivered to the
corporation. A shareholder’s attendance at a meeting waives objection to lack of
notice or defective notice of the meeting unless the shareholder objects at the
beginning of the meeting to holding the meeting or transacting business at the
meeting. A shareholder waives objection to consideration of a particular matter
at a meeting that is not within the purpose or purposes described in the meeting
notice unless the shareholder objects to considering the matter when it is
presented.
1.6 Adjourned Meetings. An adjournment or adjournments of any
shareholders’ meeting may be taken until the time and place determined by those
present, without new notice being given, whether by reason of the failure of a
quorum to attend or otherwise.
1.7 Quorum of Shareholders. Shares entitled to vote as a separate voting
group may take action on a matter only if a quorum of those shares exists with
respect to the matter. A majority of the votes entitled to be cast on the matter
by voting group, represented in person or by proxy, shall constitute a quorum of
that voting group for action on that matter. If a quorum exists, action on a
matter, other than the election of directors, shall be approved by a voting
group if the votes cast within the voting group favoring the action exceed the
votes cast opposing the action unless the Oregon Business Corporation Act, the
articles of incorporation, or these bylaws require a greater number of
affirmative votes. Directors shall be elected by a plurality of the votes cast
by the shares entitled to vote in the election at a meeting at which a quorum is
present. Once a share is represented for any purpose at a meeting, it shall be
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting. Shareholders may participate in a meeting of the shareholders
by means of a conference telephone or similar communications equipment by which
all persons participating in the meeting can hear each other during the
meeting.
1.8 Voting of Shares. A shareholder may vote either in person or
by proxy executed in writing by the shareholder or his or her duly authorized
attorney-in-fact. No proxy will be valid after eleven (11) months from the date
of its execution, unless otherwise provided in the proxy. Any proxy shall be
filed with the secretary of the corporation before or at the time of the
meeting.
1.9 Action Without Meeting. Any action required or permitted to be taken
at a meeting of the shareholders of the corporation may be taken without a
meeting if a written consent resolution, setting forth the action taken, is
signed by all shareholders entitled to vote on the action and is delivered to
the corporation. Once delivered, the consent resolution will have the same force
and effect as a unanimous vote of the shareholders.
-2-
1.10 Stockholder Business. At any annual meeting of the shareholders,
only such business shall be conducted (other than procedural matters relating to
the conduct of the meeting) as shall have been brought before the meeting (a) by
or at the direction of the board of directors, (b) as specified in the notice of
such meeting, or (c) by any stockholder of record of the corporation who
complies with the notice procedures set forth in this Section 1.10. For business
to be properly brought before an annual meeting by any such shareholder, the
shareholder must given written notice thereof to the secretary, either by
personal delivery or by certified mail, postage prepaid, addressed to the
secretary at the corporation’s executive offices not less than sixty (60) days
in advance of such meeting (provided that if the date of such annual meeting of
shareholders has not been publicly announced by the corporation more than 90
days in advance of such meeting, such written notice must be given within
fifteen (15) days after the first public disclosure of the date of the annual
meeting, including, without limitation, disclosure of the meeting date set forth in any document or
exhibit thereto filed by the corporation with the Securities and Exchange
Commission). Each such notice shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation’s stock ledger of the shareholder of record of
shares of the corporation entitled to vote at such meeting and intends to appear
at the meeting in person or by proxy to propose such business, and (d) any
material interest of such shareholder in the proposed business. The chairman of
an annual meeting shall, if the facts warrant, determine and declare to the
meeting that any such business was not properly brought before the meeting and
in accordance with the provisions of this Section 1.10, and if he should so
determine, he shall so declare to the meeting and such business not properly
brought before the meeting shall not be transacted.
SECTION 2
Board of Directors
Board of Directors
2.1 Number and Qualifications. The business and affairs of the corporation
will be managed by a board of directors, the members of which need not be
shareholders of the corporation or residents of the State of Oregon. The number
of directors shall be fixed in the manner set forth in the articles of
incorporation.
2.2 Nominations for Directors. Nominations for election to the board of
directors may be made by the board of directors or by any shareholder of any
outstanding class of capital stock of the corporation entitled to vote for the
election of directors. Nominations by the board of directors of candidates for
election to the board shall be approved by at least a majority of the members of
the board of directors. Any shareholder entitled to vote for the election of
directors may nominate at a meeting persons for election as directors only if
written notice of such shareholder’s intent to make such nomination is given,
either by personal delivery or by certified mail, postage prepaid, addressed to
the secretary at the corporation’s executive offices not later than (i) with
respect to an election to be held at an annual meeting of shareholders, sixty
(60) days prior to the date of such meeting (provided that if the date of such
annual meeting of shareholders has not been publicly announced by the
corporation more than 90 days in advance of such meeting, such written notice
must be given within fifteen (15) days after the first public disclosure of the
date of the annual meeting, including without limitation, disclosure of the
meeting date set forth in any document or exhibit thereto filed by the
corporation with the Securities and Exchange Commission), and (ii) with respect
to an election to be held at a special meeting of shareholders for the election
of directors, the close of business on the seventh day following the date on
which notice of such meeting is first given to shareholders. Each such notice
shall set forth: (a) the name and address, as they appear on the corporation’s
stock ledger of the shareholder who intends to make the nomination and the name
and address of each person to be nominated; (b) a representation that such
shareholder is a holder of record of shares of the corporation entitled to vote
at such meeting and intends to appear at the meeting in person or by proxy to
nominate the person or persons specified in the notice as directors; (c) a
description of all arrangements or understandings between such shareholder and
each proposed nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by such
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission were such
nominee to be nominated by the board of directors; and (e) the consent of each
proposed nominee to serve as a director of the corporation if so elected. The
chairman of any meeting of shareholders to elect directors may refuse to permit
the nomination of any person to be made without compliance with the foregoing
procedure. Unless waived by the Board on a case-by-case basis, no person may
stand for election or reelection for director if such person has attained the
age of seventy two (72).
-3-
2.3 Vacancies. In the event of any increase or decrease in
the authorized number of directors, each director then serving as such shall
nevertheless continue as a director until the expiration of his current term, or
his earlier resignation, removal from office or death.
2.4 Regular Meetings. Regular meetings of the board of directors
will be held on the dates and at the times and places decided by the board of
directors.
2.5 Special Meetings. Special meetings of the board of directors
may be held at any time and at any place whenever called by an executive officer
or director of the corporation.
2.6 Notice of Meetings. Notice of the annual or regular meetings of
the board of directors is not required. Notice of the date, time, and place of
special meetings of the board of directors must be given, by or at the direction
of the chairman of the board, the president, the secretary, or any person or
persons calling the meeting, by mail, facsimile, radio, telegram, or personal
communication over the telephone or otherwise, at least two (2) days prior to
the day on which the meeting is to be held. No notice need be given if the time
and place of the meeting has been fixed by resolution of the board of directors
and a copy of the resolution has been mailed to every director at least three
(3) days before the meeting.
2.7 Waiver of Notice. Notice of any meeting of the board of
directors may be waived at any time, either before or after a meeting, if the
waiver is in writing, signed by the director entitled to notice, and delivered
to the corporation. Notice is waived by any director attending or participating
in a meeting unless the director, at the beginning of the meeting or promptly on
the director’s arrival, objects to holding the meeting or transacting business
at the meeting and does not vote for or assent to any action taken at the
meeting.
2.8 Quorum of Directors;
Attendance. A majority of
the number of directors fixed in accordance with the articles of incorporation
or bylaws from time to time will constitute a quorum for the transaction of
business. The act of a majority of the directors present at a meeting at which a
quorum is present will be the act of the board of directors unless a greater
requirement is imposed by law, the articles of incorporation, or these bylaws.
Members of the board of directors or any committee designated by the board of
directors may participate in a meeting of the board of directors or committee by
means of a conference telephone or similar communication equipment by which all
persons participating in the meeting can hear each other at the meeting.
Participation by such means will constitute presence in person at a
meeting.
2.9 Dissent by Directors. A director of the corporation who is present
at a meeting of its board of directors at which action on any corporate matter
is taken will be presumed to have assented to the action unless (a) the director
objects at the beginning of the meeting, or promptly on his or her arrival, to
holding the meeting or transacting business at the 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 his or her dissent or
abstention to the presiding officer of the meeting before its adjournment or to
the corporation within a reasonable time after adjournment. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
-4-
2.10 Action Without Meeting. Any action which may be or is required to be
taken at a meeting of the board of directors, or any action which may be taken
at a meeting of a committee designated by the board of directors, may be taken
without a meeting if a written consent resolution, setting forth the action
taken, is signed by all of the directors or all of the members of the committee,
as the case may be, and is delivered to the corporation. The fully signed
consent resolution will have the same force and effect as a unanimous vote.
2.11 Committees. The board of directors, by resolution
adopted by a majority of the full board of directors, shall designate from among
its members an executive committee and may designate one or more other
committees. Each must consist of two (2) or more persons. The committees will be
governed by the same rules regarding meetings, actions without meetings,
notices, waivers of notice, and quorum and voting requirements applied to the
board of directors. To the extent provided in the resolution forming the
committee, each committee may have and may exercise all the authority of the
board of directors, except that no committee will have the authority to:
(a) Authorize or approve a distribution except as may be permitted by
paragraph (g) below;
(b) Approve or propose to shareholders action required to be approved by
shareholders;
(c) Fill vacancies on the board of directors or on any of its committees;
(d) Amend the articles of incorporation of the corporation except as may be
necessary to document a determination of the relative rights, preferences, and
limitations of a series of shares as permitted by paragraph (h) below;
(e) Adopt, amend, or repeal the bylaws of the corporation;
(f) Approve a plan of merger not requiring shareholder approval;
(g) Authorize or approve reacquisition of shares, except within limits
presented by the board of directors; or
-5-
(h) 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 an officer of the corporation to do so:
1. Pursuant to a stock option or other stock compensation plan; or
2. By approving the maximum number of shares to be issued and delegating the
authority to determine all or any part of the terms of the issuance or sale or
contract of sale and the designation and relative rights, preferences, and
limitations of the class or series of shares.
The creation of or delegation of authority to, or action by such a
committee of the board of directors will not operate to relieve the board of
directors, or any of its members, of any responsibility imposed by law.
SECTION 3
Officers
Officers
3.1 Officers Enumerated;
Election. The officers of
the corporation will include a chief executive officer, president, secretary,
and treasurer and one or more vice presidents, as well as any assistants to the
officers as the board of directors may determine. The offices of president and
chief executive officer may be held by two (2) individuals as co-presidents and
co-chief executive officers. The board of directors, in its discretion, may also
elect a chairman of the board and a vice chairman of the board from among the
members of the board who shall not be deemed an officer of the corporation
unless so designated by the board of directors. All officers will be elected by
the board of directors.
3.2 Qualifications. None of the officers of the corporation need
be a director. Any two or more offices may be held by the same
person.
3.3 Chairman and Vice Chairman of the
Board. The chairman of the
board, if any, or, in the chairman’s absence, the vice chairman of the board, if
any, will preside at all meetings of the board of directors and of the
shareholders at which he or she is present, and will perform any other duties
assigned by the board of directors from time to time.
3.4 Chief Executive Officer. Subject to the authority of the board of
directors, the chief executive officer will have general charge, supervision,
and control over the business and affairs of the corporation and will be
responsible for its management. The chief executive officer shall have the power
and shall perform the duties as are regularly and customarily performed by the
chief executive officer of a corporation and may delegate such duties as
appropriate to other officers of the corporation. The chief executive officer
will submit a report of the operations of the corporation for the preceding year
to the shareholders at their annual meeting. If no chairman of the board is
elected by the board of directors or in the absence of the chairman of the
board, the chief executive officer will preside at all meetings of the
shareholders, and of the board of directors if he or she is a member of the
shareholders, and of the board of directors if he or she is a member of the
board. Any shares of stock of another corporation held by the corporation will
be voted by the chief executive officer subject to direction from the board of
directors. The chief executive officer will perform any other duties assigned to
that office from time to time by the board of directors.
3.5 Co-Chief Executive Officers. The office of chief executive officer may be
shared by two (2) individuals. In the event that two persons hold office as
co-chief executive officers, the co-chief executive officers shall determine
between themselves those areas of which each shall have primary responsibility,
it being understood that both of them shall be involved in and be responsible
for all major policy decisions and both of them shall have general oversight
over the business and affairs of the Combined Corporation. Any matters upon
which the co-chief executive officers are unable to agree shall be referred to
the Executive Committee. If one co-chief executive officer is absent or
disabled, the other shall exercise all the duties of that office.
-6-
3.6 President. The president, who also may be the chief
executive officer of the corporation, shall have such authority and shall
exercise such duties as shall, from time to time, be assigned to that office by
the board of directors or, as appropriate, the chief executive
officer.
3.7 Co-Presidents. The office of president may be shared by two
(2) individuals, one of whom or both of whom may also be the chief executive
officer or co-chief executive officers of the corporation. In the event that two
persons hold office as co-presidents, the board of directors or, as appropriate,
the chief executive officer or co-chief executive officers shall determine those
areas of which each co-president shall have primary responsibility. Any matters
upon which the co-presidents are unable to agree shall be referred to the chief
executive officer or co-chief executive officers, if such person or persons are
not also a co-president or co-presidents, and otherwise to the Executive
Committee. If one co-president is absent or disabled, the other shall exercise
all the duties of that office.
3.8 Vice President. If the president is absent or disabled, the
vice president will have and may exercise and perform the authority and duties
of the president. In addition, the vice president will perform any other duties
assigned to that office by the board of directors, the chief executive officer,
or president from time to time. If more than one vice president is elected, the
vice presidents will have the titles, seniority, and duties established for them
by the board of directors.
3.9 Secretary. The secretary will prepare and keep minutes
of meetings of shareholders and directors, will be responsible for
authenticating records of the corporation, and will exercise the usual authority
pertaining to the office of secretary. The secretary will keep and, when proper,
affix the seal of the corporation, if any, and will perform any other duties
assigned to that office by the board of directors, the CEO, or president from
time to time.
3.10 Treasurer. The treasurer, who may also be the chief
financial officer, will have charge and custody of and be responsible for all
funds and securities of the corporation. The treasurer will deposit all such
funds in the name of the corporation in the depositories or invest them in the
investments designated or approved by the board of directors, and will authorize
disbursements of the funds of the corporation in payment of just demands against
the corporation or as may be ordered by the board of directors on securing
proper vouchers. The treasurer will render to the board of directors from time
to time, as may be required, an account of all transactions as treasurer; and
will perform any other duties assigned to that office from time to time by the
board of directors, the CEO, or president.
3.11 Other Officers and Agents. The board of directors may appoint other
officers and agents as it deems necessary or expedient. These other officers and
agents will exercise the authority and perform the duties prescribed for them by
the board of directors, which authority and duties may include, in the case of
the other officers, one or more of the duties of the named officers of the
corporation.
-7-
3.12 Removal of Officers. Any officer or agent may be removed by the
board of directors whenever in its judgment the best interests of the
corporation will be served by doing so. Removal will be without prejudice to the
contract rights, if any, of the person removed. Election or appointment of an
officer or agent will not of itself create contract rights.
3.13 Vacancies. Vacancies in any office arising from any
cause may be filled by the board of directors at any regular or special
meeting.
3.14 Salaries. Salaries of all officers of the corporation
appointed by the board of directors will be fixed by the board of directors or
by a person or committee authorized by the board of directors.
SECTION 4
Business of the Corporation
Business of the Corporation
4.1 Obligations. Any agreements or other documents requiring
Board approval will be valid if approved by the Board and signed by the chief
executive officer, president, or vice president and attested by the secretary or
an assistant secretary.
4.2 Contracts. The board of directors may authorize any
officer or agent to enter into any contract or execute and deliver any
instrument in the name and on behalf of the corporation. This authority may be
general or confined to specific instances.
4.3 Loans to Corporation. No loans will be contracted on behalf of the
corporation, and no evidence of indebtedness will be issued in its name, unless
authorized by the board of directors. This authority may be general or confined
to specific instances.
4.4 Checks and Drafts. All checks, drafts, or other orders for the
payment of money, notes, or other evidence of indebtedness issued in the name of
the corporation will be signed by the officer(s) or agent(s) of the corporation
and in the manner prescribed from time to time by the board of
directors.
SECTION 5
Indemnification
Indemnification
5.1 Definitions. As used in this Section, whether capitalized
or not:
(a) “Act” means the Oregon Business Corporations Act, now or hereafter in
force.
(b) “Corporation” means this corporation, and any domestic or foreign
predecessor entity which, in a merger or other transaction, ceased to exist.
(c) “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. “Director”
includes the estate or personal representative of a director, unless the context
requires otherwise.
-8-
(d) “Disinterested Director” means a director of the Corporation who is not
and was not a party to the matter in respect of which indemnification is sought
by the Indemnitee.
(e) “Expenses” include counsel fees.
(f) “Indemnitee” means an individual who possesses indemnification rights
pursuant to the Articles of Incorporation, these bylaws, or other corporate
action authorized by these bylaws. It also includes the heirs, executors, and
other successors in interest of the above individuals.
(g) “Independent Counsel” means a law firm, or member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the corporation or the Indemnitee in an action to determine the
Indemnitee’s rights under these bylaws.
(h) “Liability” means the obligation to pay a judgment, settlement, penalty,
fine, including any excise tax assessed with respect to an employee benefit
plan, or reasonable expenses incurred with respect to a proceeding.
(i) “Officer” means an individual who is or was an officer of the corporation
or an individual who, while an officer 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. “Officer” includes, unless the
context requires otherwise, the estate or personal representative of an officer.
(j) “Party” includes an individual who was, is, or is threatened to be named
a defendant or respondent in a proceeding.
(k) “Proceeding” means any threatened, pending, or completed action, suit, or
proceeding whether civil, criminal, administrative, or investigative and whether
formal or informal.
-9-
5.2 Directors and Officers. The corporation will indemnify its directors
and officers to the full extent permitted by the Act. For the avoidance of
doubt, such indemnification shall include the obligation of the corporation,
subject to section 5.4(a) below, to such directors and officers to pay the
expenses of such directors and officers in connection with a Proceeding,
promptly as incurred and in advance of the conclusion of the Proceeding.
However, the indemnity will not apply on account of:
(a) Acts or omissions of a director or officer finally adjudged to be
intentional misconduct or a knowing violation of law;
(b) A proceeding by or in the right of the corporation in which the director
or officer was adjudged liable to the corporation; or
(c) Any proceeding charging improper personal benefit to the director or
officer in which the director or officer was adjudged liable on the basis that
personal benefit was improperly received by the director or officer.
The corporation will advance expenses for such
persons pursuant to the terms set forth in these bylaws, in a resolution of the
board of directors, or in a contract with any such person.
5.3 Employees and Agents. The corporation may, by action of the board
of directors, grant rights to indemnification and advancement of expenses to any
current or former employees and agents of the corporation within the same scope
and effect allowed by the provisions of this Section with respect to the
indemnification and advancement of expenses of directors and officers of the
corporation or by the Act or otherwise.
5.4 Procedure for Seeking Indemnification or
Advance.
(a) Notification and Defense of
Claim. An Indemnitee will
promptly notify the corporation in writing of any proceeding for which
indemnification is sought under this Section, provided that the failure of an
Indemnitee to so notify the corporation shall not relieve the corporation of its
obligations in respect of such Indemnitee hereunder except to the extent that
the corporation shows that it has been actually prejudiced by such failure. In
addition, the Indemnitee will provide the corporation with information and
cooperation that the corporation may reasonably require and which is within the
Indemnitee’s power.
With respect to any proceeding of which the
Indemnitee has notified the corporation:
1. The corporation will be
entitled to participate in the proceeding at its own expense; and
2. Except as otherwise
provided below, to the extent that it may wish, the corporation, jointly with
any other indemnifying party similarly notified, will be entitled to assume the
defense of the proceeding, with counsel satisfactory to the Indemnitee. The
Indemnitee’s consent to such counsel will not be unreasonably withheld,
conditioned or delayed.
The corporation will not be entitled to assume the defense of any
proceeding brought by or on behalf of the corporation or as to which Indemnitee
has reasonably concluded that a conflict of interest exists or is likely to
arise between the corporation and the Indemnitee in the conduct of the
defense.
-10-
After notice from the corporation to the Indemnitee of its election to
assume the defense, the corporation will not be liable to the Indemnitee under
this Section for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense. However, the fees and expenses of the
Indemnitee’s counsel will be paid by the corporation if:
1. The employment of counsel by the Indemnitee has been authorized by the
corporation; or
2. Indemnitee reasonably concludes that a conflict of interest may exist
between the corporation and the Indemnitee in the conduct of the defense; or
3. The corporation did not in fact employ counsel to assume the defense of
the Proceeding.
Notwithstanding the assumption of defense by
the corporation in any Proceeding, the Indemnitee will continue to have the
right to employ its counsel in the Proceeding, at the Indemnitee’s expense.
(b) Information Required and Determination of
Indemnification. For
purposes of pursuing rights to indemnification under this Section, the
Indemnitee will submit to the board of directors an Indemnification Statement,
consisting of:
1. A sworn statement requesting indemnification; and
2. Any evidence that the Board may reasonably request of all amounts for
which indemnification is requested.
Submission of an Indemnification Statement to the Board will create a
presumption that the Indemnitee is entitled to indemnification and, if requested
in accordance with the following Subsection, advancement of expenses. The
corporation will, within sixty (60) calendar days after submission of the
Indemnification Statement (or twenty (20) calendar days in the case of
advancement of expenses), make the payments requested in the Indemnification
Statement to or for the benefit of the Indemnitee, unless within sixty (60) or
twenty (20) day period the corporation determines (in the manner provided below)
that the Indemnitee is not entitled to indemnification under this Section by
reason of not having met the standard of conduct required to be eligible
therefor and gives the Indemnitee notice in writing of such determination, which
notice will disclose with particularity the evidence on which the determination
is based. Such determination will be based on clear and convincing evidence,
sufficient to rebut the foregoing presumption.
Upon submission of an Indemnification Statement, a determination, if
required by applicable law, with respect to the Indemnitee’s entitlement thereto
shall be made as follows: (1) if requested by the Indemnitee, by Independent
Counsel, or (2) if no request is made by the Indemnitee for a determination by
Independent Counsel, (i) by the board of directors by a majority vote of a
quorum consisting of Disinterested Directors, or (ii) if a quorum of the board
of directors consisting of Disinterested Directors is not obtainable, or even if
obtainable, such quorum of Disinterested Directors so directs, by either (a) a
majority vote of a committee duly designated by the board of directors
consisting solely of two or more Disinterest Directors, or (b) Independent
Counsel in a written opinion to the board of directors, a copy of which shall be
delivered to Indemnitee. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
Indemnitee, the Independent Counsel shall be selected by the board of directors
or a duly designated committee under clause (2)(ii)(a) of the preceding
sentence.
-11-
Any determination that the Indemnitee is not entitled to indemnification
and any failure to make the payments requested in the Indemnification Statement
will be subject to judicial review by any court of competent
jurisdiction.
(c) Effect of Determination. If a determination shall have been made
pursuant to paragraph (b) of this Section 5.4 that the Indemnitee is entitled to
indemnification, the corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to paragraph (d) of Section 5.5 of these
bylaws.
(d) Special Procedure Regarding
Advances. An Indemnitee
seeking payment or reimbursement of expenses in advance of a final disposition
of the proceeding must furnish the corporation, as part of the Indemnification
Statement, with:
1. A written affirmation of the Indemnitee’s good faith belief that the
Indemnitee has met the standard
of conduct required to be eligible for indemnification; and
2. If the Act requires, a written undertaking, constituting an unlimited
general obligation of the Indemnitee, to repay the advance if it is ultimately
determined that the Indemnitee did not meet the required standard of conduct.
(e) Settlement. The corporation is not liable to indemnify
Indemnitee for any amounts paid in settlement of any proceeding without the
corporation’s written consent. The corporation will not settle any proceeding in
any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee’s written consent.
5.5 Contract and Related Rights.
(a) Contract Rights. The right of an Indemnitee to
indemnification and advancement of expenses conferred in these bylaws is a
contract right that vests at the time of such person’s service to or at the
request of the corporation on which the Indemnitee will be presumed to have
relied in determining to serve or continue to serve in his or her capacity with
the corporation. Such right will continue as long as Indemnitee is subject to any possible
proceeding. Any amendment to or repeal of this Section will not diminish or
adversely affect any right or protection of any current or former Indemnitee
with respect to any acts or omissions of the Indemnitee occurring or alleged to
have occurred prior to the amendment or repeal. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in these bylaws (i) 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, agreement, vote of stockholders or
Disinterested Directors or otherwise and (ii) cannot be terminated or diminished
by the Corporation, the board of directors or the stockholders of the
corporation with respect to a person’s service or capacity prior to the date of
such purported termination or diminishment.
-12-
(b) Optional Insurance, Contracts, and
Funding. The corporation
may:
1. Maintain insurance, at its expense, to protect itself and any
Indemnitee against any liability,
whether or not the corporation would have power to indemnify the individual
against the same liability under the Act;
2. Enter into contracts with any Indemnitee in furtherance of this
Section and consistent with the
Act; and
3. Create a trust fund, grant a security interest, or use other means
(including, without limitation, a
letter of credit) to ensure the payment of amounts that may be necessary to
effect indemnification as provided in this Section.
(c) Severability. If any provision or application of this
Section is invalid or unenforceable, the remainder of this Section and its
remaining applications will not be affected thereby and will continue in full
force and effect.
(d) Right of Indemnitee to Bring
Suit. If a claim under
this Section for indemnification is not paid in full by the corporation within
sixty (60) days, or for advancement of expenses is not paid in full by the
corporation within twenty (20) days, after an Indemnification Statement setting
forth the claim has been received by the corporation, the Indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim. To the extent such suit is successful, the Indemnitee will be
entitled to recover from the corporation the expense (to be prorated if the
Indemnitee is only partially successful) of prosecuting the claim. It shall be a
defense to any such action that the Indemnitee has not met the standard of
conduct which makes it permissible under the Act for the corporation to
indemnify the Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Corporation.
Neither (1) the failure of the corporation
(including its board of directors or Independent Counsel) to have made a
determination prior to the commencement of a proceeding that indemnification of,
or reimbursement or advance of expenses to, the Indemnitee is proper in the
circumstances, nor (2) an actual determination by the corporation (including its
board of directors or Independent Counsel) that the Indemnitee is not entitled
to indemnification or to the reimbursement or advancement of expenses, will
create a presumption that the Indemnitee is not so entitled.
(e) No Assertion of Invalidity of
Bylaws. The corporation
shall be precluded from asserting in any judicial proceeding commenced pursuant
to paragraph (d) of this Section 5.5 that the procedures and presumptions of
these bylaws are not valid, binding and enforceable and shall stipulate in such
proceeding that the corporation is bound by all provisions of these
bylaws.
-13-
5.6 Exceptions. Notwithstanding any other provision of this
Section, the corporation will not be obligated pursuant to the terms of these
bylaws to indemnify or advance expenses to Indemnitee with respect to any
proceeding:
(a) Claims Initiated by
Indemnitee. Initiated or
brought voluntarily by Indemnitee and not by way of defense, except with respect
to proceedings brought to establish or enforce a right of indemnification under
these bylaws or any other statute or law or as otherwise required under the Act.
However, indemnification or advancement of expenses may be provided by the
corporation in specific cases if the board of directors finds it to be
appropriate.
(b) Lack of Good Faith. Initiated or brought voluntarily by
Indemnitee to enforce or interpret these bylaws if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such proceeding was not made in good faith or was frivolous.
(c) Insured Claims. For which any of the expenses or liabilities
for indemnification being sought have been paid directly to Indemnitee by an
insurance carrier under a policy of insurance maintained by the corporation.
(d) Prohibited by Law. If the corporation is prohibited by the Act,
or other applicable law as then in effect from paying such indemnification
and/or advancement of expenses.
5.7 Service for Other Entities. The indemnification and advancement of
Expenses provided under this Section will apply to directors and officers and,
to the extent rights to indemnification are granted under Section 5.3 above,
employees, or agents of the corporation for both (a) service in such capacities
for the corporation, and (b) service 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, regardless of whether there is alleged in any Proceeding action in
an official capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee or agent. A person is
considered to be serving an employee benefit plan at the corporation’s request
if that person’s duties to the corporation also impose duties on, or otherwise
involve services by, that person to the plan or to participants or beneficiaries
of the plan.
SECTION 6
Stock
Stock
6.1 Certificate of Stock. Certificates of stock will be issued in
numerical order. Each shareholder will be entitled to a certificate signed,
either manually or in facsimile, by the president or vice president and the
secretary, or by the board of directors. The certificate may be sealed with the
corporate seal. Every certificate of stock will state:
(a) The name of the corporation and the fact that the corporation is
incorporated under the laws of the State of Oregon;
-14-
(b) The name of the registered holder of the shares represented by the
certificate; and
(c) The number and class of the shares and the designation of the series, if
any, represented by the certificate.
6.2 Transfer. Subject to any legend appearing on the
certificate, shares of stock may be transferred by delivery of the certificate,
accompanied by either an assignment in writing on the back of the certificate or
a separate written assignment and power of attorney to transfer the same, which
in either event is signed by the record holder of the certificate. No transfer
will be valid, except as between the parties to the transfer, until the transfer
is made on the books of the corporation. Except as otherwise specifically
provided in these bylaws, no shares of stock will be transferred on the books of
the corporation until the outstanding certificate or certificates representing
the transferred stock have been surrendered to the corporation accompanied by an
assignment as above.
6.3 Shareholders of Record. The corporation will be entitled to treat
the holder of record on the books of the corporation of any share or shares of
stock as the holder in fact of those shares for all purposes, including the
payment of dividends on and the right to vote the stock, unless provided
otherwise by the board of directors.
6.4 Loss or Destruction of
Certificates. If any
certificate of stock is lost or destroyed, another may be issued in its place on
proof of loss or destruction and on the giving of a satisfactory bond of
indemnity to the corporation. A new certificate may be issued without requiring
any bond when, in the judgment of the board of directors, it is proper to do so.
6.5 Record Date and Transfer
Books. For the purpose of
determining shareholders entitled to notice of or vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, or in order to make a determination of shareholders for any
other proper purpose, the board of directors will make in advance a record date
for any such determination of shareholders. The record date in any case will not
be more than seventy (70) days and, in the case of a meeting of shareholders,
not less than ten (10) days prior to the date on which the particular action
requiring the determination of shareholders is to be taken. If no record date is
fixed for these purposes, the date on which notice of the meeting is mailed or
the date on which the resolution of the board of directors declaring the
dividend is adopted, as the case ma be, will be the record date for the
determination of shareholders.
6.6 Regulations. The board of directors will have the power
and authority to make all rules and regulations it deems expedient concerning
the issue, transfer, conversion, and registration of certificates for shares of
stock of the corporation not inconsistent with these bylaws, the articles of
incorporate, or the laws of the United States or the State of Oregon.
SECTION 7
Books and Records
Books and Records
7.1 Records of the Corporate Meetings and Share
Register. The corporation
will keep at either its principal place of business, its registered office, or
another place permitted by law, as the board of directors may designate, (a)
books and records of account and minutes or records of all of the proceedings of
the board of directors, director committees, and shareholders, and (b) a record
of shareholders, giving the name of the shareholders and showing their
respective addresses and the number and class of shares held by
each.
-15-
7.2 Reliance of Records. Any person dealing with the corporation may
rely on a copy of any of the records of the proceedings, resolutions, or votes
of the board of directors, director committees, or shareholders when certified
by the president, vice president, or secretary.
7.3 Form of Records. All books and records may be kept on paper
or in electronic or other format.
SECTION 8
Corporate Seal
Corporate Seal
The corporation may adopt, but will not be
required to adopt, a corporate seal. If a seal is adopted, it will be circular
and will include the name of the corporation and the words “corporate seal.”
SECTION 9
Amendments
Amendments
9.1 Action by Board. The board of directors may amend or repeal
the bylaws unless:
(a) The articles of incorporation or the provisions of law reserve this power
exclusively to the shareholders in whole or in part; or
(b) The shareholders in amending or adopting a particular bylaw provide
expressly that the board of directors may not amend or repeal that bylaw.
9.2 Amendment by Shareholders. The shareholders may amend or repeal the
bylaws even though the bylaws may also be amended and repealed by its board of
directors.
9.3 Amendments to Shareholder Quorum
Requirements. If expressly
authorized by the articles of incorporation, the shareholders may adopt or amend
a bylaw that fixes a greater quorum or voting requirement for shareholders, or
voting groups of shareholders, than is required by law. The adoption or
amendment of a bylaw that adds, changes, or deletes a greater quorum or voting
requirement for shareholders must meet the same quorum requirement and be
adopted by the same vote and voting groups required to take action under the
quorum and voting requirement then in effect or the quorum or voting requirement
proposed to be adopted, whichever is greater. A bylaw that fixes a greater
quorum or voting requirement for shareholders under this Section 9.3 may not be
adopted, amended, or repealed by the board of directors.
9.4 Amendments to Board Quorum
Requirements. A bylaw
provision that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed:
(a) If the provision was originally adopted by the shareholders, only by the
shareholders; or
(b) If the provision was originally adopted by the board of directors, either
by the shareholders or by the board of directors.
A bylaw provision adopted or amended by the shareholders that fixes a
greater quorum or voting requirement for the board of directors may provide that
it may be amended or repealed only by a specified vote of either the
shareholders or the board of directors.
-16-