Quarterly Report — Form 10-Q Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-Q Puget Energy 3rd Quarter 2007 Form 10-Q HTML 947K
12: 10-Q Puget Energy 3rd Quarter 2007 Form 10-Q -- PDF 334K
f10q110107
2: EX-3.I Articles of Amendment of Puget Energy HTML 12K
3: EX-3.II Amended and Restated Bylaws of Puget Energy HTML 149K
4: EX-12.1 Puget Energy Computation of Ratios HTML 119K
5: EX-12.2 Puget Sound Energy Computation of Ratios HTML 107K
6: EX-31.1 Puget Energy CEO Certification HTML 13K
7: EX-31.2 Puget Energy CFO Cerification HTML 12K
8: EX-31.3 Puget Sound Energy CEO Certification HTML 13K
9: EX-31.4 Puget Sound Energy CFO Certification HTML 13K
10: EX-32.1 CEO Certification HTML 11K
11: EX-32.2 CFO Certification HTML 10K
EX-3.II — Amended and Restated Bylaws of Puget Energy
Fixing
of Record Date for Determining Shareholders
6
2.9
Voting
Record
6
2.10
Quorum
6
2.11
Manner
of Acting
7
2.12
Proxies
7
2.12.1
Written
Authorization
7
2.12.2
Recorded
Telephone Call, Voice Mail or Other Electronic
Transmission
7
2.12.3
Effectiveness
of Appointment of Proxy
7
2.12.4
Revocability
of Proxy
8
2.12.5
Death
or Incapacity of Shareholder Appointing a Proxy
8
2.12.6
Acceptance
of Proxy's Vote or Action
8
2.12.7
Meaning
of Sign or Signature
8
2.13
Voting
of Shares
8
2.14
Voting
for Directors
9
2.15
Action
by Shareholders Without a Meeting
9
SECTION
3.
BOARD
OF DIRECTORS
9
3.1
General
Powers
9
3.2
Number
and Tenure
9
3.3
Nomination
and Election
10
3.3.1
Nomination
10
3.3.2
Election
10
3.4
Chairperson
of the Board
11
3.5
Regular
Meetings
11
3.6
Special
Meetings
11
3.7
Meetings
by Communications Equipment
11
3.8
Notice
of Special Meetings
11
3.8.1
Number
of Days' Notice
11
3.8.2
Type
of Notice
12
3.8.3
Effectiveness
of Written Notice
12
3.8.4
Effectiveness
of Oral Notice
13
3.9
Waiver
of Notice
13
3.9.1
By
Delivery of a Record
13
3.9.2
By
Attendance
14
3.10
Quorum
14
3.11
Manner
of Acting
14
3.12
Presumption
of Assent
14
3.13
Action
by Board or Committees Without a Meeting
14
3.14
Resignation
15
3.15
Removal
15
3.16
Vacancies
15
3.17
Executive
and Other Committees
15
3.17.1
Creation
of Committees
15
3.17.2
Authority
of Committees
16
SECTION
4.
OFFICERS
16
4.1
Appointment
and Term
16
4.2
Resignation
16
4.3
Removal
17
4.4
Contract
Rights of Officers
17
4.5
Chief
Executive Officer
17
4.6
President
17
4.7
Vice
President
18
4.8
Secretary
18
4.9
Treasurer
18
4.10
Salaries
18
SECTION
5.
CERTIFICATES
FOR SHARES AND THEIR TRANSFER
19
5.1
Issuance
of Shares
19
5.2
Certificates
for Shares
19
5.3
Stock
Records
19
5.4
Transfer
of Shares
19
5.5
Lost
or Destroyed Certificates
19
SECTION
6.
INDEMNIFICATION
20
6.1
Right
to Indemnification
20
6.2
Restrictions
on Indemnification
20
6.3
Advancement
of Expenses
20
6.4
Right
of Indemnitee to Bring Suit
21
6.5
Procedures
Exclusive
21
6.6
Nonexclusivity
of Rights
21
6.7
Insurance,
Contracts and Funding
21
6.8
Indemnification
of Employees and Agents of the Corporation
22
6.9
Persons
Serving Other Entities
22
SECTION
7.
AMENDMENTS
22
AMENDED
AND RESTATED
BYLAWS
OF
Puget
Energy, Inc.
SECTION
1. DEFINITIONS
As
used
in these Bylaws, the following terms shall have the following
meanings:
"Articles
of Incorporation" means the corporation's Articles of Incorporation and all
amendments as filed with the Washington Secretary of State.
"Board"
means the Board of Directors of the corporation.
"Electronic
transmission" means an electronic communication not directly involving the
physical transfer of a record in a tangible medium that may be retained,
retrieved and reviewed by the sender and the recipient and that may be directly
reproduced in a tangible medium by the sender and recipient.
"Execute,""executes" or "executed" means signed with respect to a written record or
electronically transmitted along with sufficient information to determine the
sender's identity with respect to an electronic transmission.
"RCW"
means the Revised Code of Washington, and "RCW 23B" means Title 23B of the
Revised Code of Washington (also known as the Washington Business Corporation
Act).
"Record"
means information inscribed on a tangible medium or contained in an electronic
transmission.
"Tangible
medium" means a writing, copy of a writing or facsimile, or a physical
reproduction, each on paper or on other tangible material.
"Washington
Business Corporation Act" means the Washington Business Corporation Act of
the
State of Washington, as it exists now or may be amended.
"Writing"
or "written" means embodied in a tangible medium, and excludes an electronic
transmission.
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 and
time to be determined by the Board.
2.2
Special
Meetings
The
Chairperson of the Board, the Chief Executive Officer or the President may
call
special meetings of the shareholders for any purpose.
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 provided 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 Chairperson of the Board,
the
President or the Secretary to each shareholder entitled to notice of or to
vote
at the meeting, as provided below.
2.5.1 Number
of Days' Notice
(a) Normal
Business. Except as provided in paragraph (b) of this
subsection, notice of the meeting shall be provided not less than 10 nor more
than 60 days before the meeting.
(b) Amendment
to Articles of Incorporation; Merger or Share Exchange; Sale of Assets or
Dissolution. Notice of a meeting held for the purpose of
considering 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.
2.5.2 Adjourned
Meeting
If
an
annual or special shareholders' meeting is adjourned to a different date, time
and place, no notice of the new date, time and 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.
2.5.3
Type of Notice
(a) Notice
Provided in a Tangible Medium. Notice may be provided in a
tangible medium and may be transmitted by mail, private carrier, personal
delivery, telegraph, teletype, telephone or wire or wireless equipment that
transmits a facsimile of the notice. If these forms of notice in a
tangible medium are impracticable, notice in a tangible medium may be
transmitted by an advertisement in a newspaper of general circulation in the
area where published.
(b) Notice
Provided in an Electronic Transmission. Notice may be
provided in an electronic transmission and be electronically
transmitted.
(1) Consent
to
Receive Notice by Electronic Transmission. Notice to
shareholders in an electronic transmission is effective only with respect to
shareholders that have consented, in the form of a record, to receive
electronically transmitted notices and designated in the consent the address,
location or system to which these notices may be electronically
transmitted. Notice provided in an electronic transmission includes
material required or permitted to accompany the notice by the Washington
Business Corporation Act or other applicable statute or regulation.
(2) Revocation
of
Consent to Receive Notice by Electronic Transmission. A
shareholder that has consented to receipt of electronically transmitted notices
may revoke the consent by delivering a revocation to the corporation in the
form
of a record. The consent of a shareholder to receive notice by
electronic transmission is revoked if the corporation is unable to
electronically transmit two consecutive notices given by the corporation in
accordance with the consent, and this inability becomes known to the Secretary
of the corporation, the transfer agent or any other person responsible for
giving the notice. The inadvertent failure by the corporation to
treat this inability as a revocation does not invalidate any meeting or other
action.
(3) Posting
Notice
on an Electronic Network. Notice to shareholders that have
consented to receipt of electronically transmitted notices may be provided
by
posting the notice on an electronic network and delivering to the shareholder
a
separate record of the posting, together with comprehensible instructions
regarding how to obtain access to the posting on the electronic
network.
2.5.4 Effectiveness
of Notice
(a) Notice
by Mail. Notice
given by mail is effective when deposited in the United States mail, first-class
postage prepaid, properly addressed to the shareholder at the shareholder's
address as it appears in the corporation's current record of
shareholders.
(b) Notice
by Telegraph, Teletype or Facsimile Equipment. Notice given
by telegraph, teletype or facsimile equipment that transmits a facsimile of
the
notice is effective when dispatched to the shareholder's address, telephone
number or other number appearing on the records of the corporation.
(c) Notice
by Air Courier. Notice given by air courier is effective
when dispatched, if prepaid and properly addressed to the shareholder at the
shareholder's address as it appears in the corporation's current record of
shareholders.
(d) Notice
by Ground Courier or Other Personal Delivery. Notice given
by ground courier or other personal delivery is effective when received by
a
shareholder.
(e) Notice
by Electronic Transmission. Notice provided in an electronic
transmission, if in comprehensible form, is effective when it (i) is
electronically transmitted to an address, location or system designated by
the
recipient for that purpose or (ii) has been posted on an electronic network
and a separate record of the posting has been delivered to the recipient
together with comprehensible instructions regarding how to obtain access to
the
posting on the electronic network.
(f) Notice
by Publication. Notice
given by publication is effective five days after first
publication.
2.6
Business
for Shareholders' Meetings
2.6.1
Business at Annual
Meetings
In
addition to the election of directors, other proper business may be transacted
at an annual meeting of shareholders, provided that such business is properly
brought before such meeting. To be properly brought before an annual
meeting, business must be (a) brought by or at the direction of the Board
or (b) brought before the meeting by a shareholder pursuant to written
notice thereof, in accordance with Section 2.6.3 , and received by the Secretary
not less than 90 or more than 120 days prior to the anniversary date of the
prior year's annual meeting. Any such shareholder notice shall set
forth (i) the name and address of the shareholder proposing such business;
(ii) a representation that the shareholder is entitled to vote at such
meeting and a statement of the number of shares of the corporation that are
beneficially owned by the shareholder; (iii) a representation that the
shareholder intends to appear in person or by proxy at the meeting to propose
such business; and (iv) as to each matter the Shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting,
the
language of the proposal (if appropriate) and any material interest of the
shareholder in such business. No business shall be conducted at any
annual meeting of shareholders except in accordance with this Section
2.6.1. If the facts warrant, the Board, or the chairperson of an
annual meeting of shareholders, may determine and declare that (a) that a
proposal does not constitute proper business to be transacted at the meeting
or
(b) that business was not properly brought before the meeting in accordance
with the provisions of this Section 2.6.1 and, if, in either case, it is so
determined, any such business shall not be transacted. In addition to
the procedures set forth in this Section 2.6.1, shareholders desiring to include
a proposal in the corporation's proxy statement must also comply with the
requirements set forth in Rule 14a-8 under Section 14 of the Securities
Exchange Act of 1934, as amended, or any successor provision.
2.6.2
Business at Special
Meetings
At
any
special meeting of the shareholders, only such business as is specified in
the
notice of such special meeting given by or at the direction of the person or
persons calling such meeting, in accordance with Section 2.5, shall come
before such meeting.
2.6.3
Notice to Corporation
Any
written notice required to be delivered by a shareholder to the corporation
pursuant to this Section 2.6 must be given, either by personal delivery or
by registered or certified mail, postage prepaid, to the Secretary at the
corporation's principal executive offices in the City of Bellevue, State of
Washington.
2.7
Waiver
of Notice
2.7.1 By
Delivery of a Record
Whenever
any notice is required to be given to any shareholder under the provisions
of
these Bylaws, the Articles of Incorporation or the Washington Business
Corporation Act, a waiver of notice must be (a) delivered by the
shareholder entitled to notice to the corporation for inclusion in the minutes
or filing with the corporate records, and (b) set forth either in an
executed and dated written record or, if the corporation has designated an
address, location or system to which the waiver may be electronically
transmitted and the waiver is electronically transmitted to the designated
address, location or system, in an executed and dated electronically transmitted
record, 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 the equivalent
of
the giving of such notice.
2.7.2 Waiver
by Attendance
Notice
of
the time, place and purpose of any meeting will 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.
2.8
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
at a meeting, the record date shall be the day immediately preceding 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.
2.9
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.
2.10
Quorum
A
majority 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 a majority of such
votes are 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.
2.11
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.
2.12
Proxies
A
shareholder or the shareholder's agent or attorney-in-fact may appoint a proxy
to vote or otherwise act for the shareholder by an executed writing or by a
recorded telephone call, voice mail or other electronic
transmission.
2.12.1 Written
Authorization
Execution
of a writing authorizing another person or persons to act for the shareholder
as
proxy may be accomplished by the shareholder or the shareholder's authorized
officer, director, employee or agent signing the writing or causing his or
her
signature to be affixed to the writing by any reasonable means including, but
not limited to, by facsimile signature.
2.12.2 Recorded
Telephone Call, Voice Mail or Other Electronic
Transmission
Authorizing
another person or persons to act for the shareholder as proxy may be
accomplished by transmitting or authorizing the transmission of a recorded
telephone call, voice mail or other electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be
the
holder of the proxy to receive the transmission, provided that the transmission
must either set forth or be submitted with information, including any security
or validation controls used, from which it can reasonably be determined that
the
transmission was authorized by the shareholder. If it is determined
that the transmission is valid, the inspectors of election or, if there are
no
inspectors, any officer or agent of the corporation making that determination
on
behalf of the corporation shall specify the information upon which they
relied. The corporation shall require the holders of proxies received
by transmission to provide to the corporation copies of the transmission, and
the corporation shall retain copies of the transmission for a reasonable period
of time after the election provided that they are retained for at least 60
days.
2.12.3 Effectiveness
of Appointment of Proxy
An
appointment of a proxy is effective when a signed appointment form or telegram,
cablegram, recorded telephone call, voicemail or other transmission of the
appointment is received by the inspectors of election or the officer or agent
of
the corporation authorized to tabulate votes. An appointment is valid
for 11 months unless a longer period is expressly provided in the
appointment. A proxy with respect to a specified meeting shall
entitle its holder to vote at any reconvened meeting following adjournment
of
the meeting but shall not be valid after the final adjournment.
2.12.4 Revocability
of Proxy
An
appointment of a proxy is revocable by the shareholder unless the appointment
indicates that it is irrevocable and the appointment is coupled with an
interest. Appointments coupled with an interest include the
appointment of a pledgee, a person who purchased or agreed to purchase the
shares, a creditor of the corporation who extended it credit under terms
requiring the appointment, an employee of the corporation whose employment
contract requires the appointment or a party to a voting agreement created
under
RCW 23B.07.310. An appointment made irrevocable is revoked when
the interest with which it is coupled is extinguished. A transferee
for value of shares subject to an irrevocable appointment may revoke the
appointment if the transferee did not know of its existence when the transferee
acquired the shares and the existence of the irrevocable appointment was not
noted conspicuously on the certificate representing the shares or on the
information statement for shares without certificates.
2.12.5 Death
or Incapacity of Shareholder Appointing a
Proxy
The
death
or incapacity of the shareholder appointing a proxy does not affect the right
of
the corporation to accept the proxy's authority unless notice of the death
or
incapacity is received by the officer or agent of the corporation authorized
to
tabulate votes before the proxy exercises the proxy's authority under the
appointment.
2.12.6 Acceptance
of Proxy's Vote or Action
Subject
to RCW 23B.07.240 and to any express limitation on the proxy's authority
stated in the appointment form or recorded telephone call, voice mail or other
electronic transmission, the corporation is entitled to accept the proxy's
vote
or other action as that of the shareholder making the appointment.
2.12.7 Meaning
of Sign or Signature
For
the
purposes of this Section 2.12, "sign" or "signature" includes any manual,
facsimile, conformed or electronic signature.
2.13
Voting
of 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 on such matter.
2.14
Voting
for Directors
Each
shareholder entitled to vote at 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. 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.
2.15
Action
by Shareholders Without a
Meeting
Any
action that may 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. If not otherwise fixed
by the Board, the record date for determining shareholders entitled to take
action without a meeting is the date the first shareholder consent is
signed. A shareholder may withdraw a consent only by delivering a
written notice of withdrawal to the corporation prior to the time that consents
sufficient to authorize taking the action have been delivered to the
corporation. Every written consent shall bear the date of signature
of each shareholder who signs the consent. A written consent is not
effective to take the action referred to in the consent unless, within 60 days
of the earliest dated consent delivered to the corporation, written consents
signed by a sufficient number of shareholders to take action are delivered
to
the corporation. Unless the consent specifies a later effective date,
actions taken by written consent of the shareholders are effective when
(a) consents sufficient to authorize taking the action are in possession of
the corporation and (b) the period of advance notice required by the
Articles of Incorporation to be given to any nonconsenting or nonvoting
shareholders has been satisfied. Any such consent shall be inserted
in the minute book as if it were the minutes of a meeting of the
shareholders.
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
and Tenure
The
Board
shall be composed of not less than nine or more than
fifteenDirectors, the specific number to be set by resolution of
the Board. The number of Directors may be changed from time to time
by amendment to these Bylaws, but no decrease in the number of Directors shall
have the effect of shortening the term of any incumbent
Director. Directors shall be elected and serve in accordance with the
Articles of Incorporation.
3.3
Nomination
and Election
3.3.1
Nomination
Only
persons who are nominated in
accordance with the following procedures shall be eligible for election as
Directors. Nominations for the election of Directors may be made (a) by or
at the direction of the Board or (b) by any shareholder of record entitled
to vote for the election of Directors at such meeting; provided, however, that
a
shareholder may nominate persons for election as Directors only if written
notice (in accordance with Section 2.6.3) of such shareholder’s intention
to make such nominations is received by the Secretary (i) with respect to
an election to be held at an annual meeting of the shareholders, not less than
120 or more than 150 days prior to the date of such annual meeting established
pursuant to Section 2.1 (or if less than 120 days’ notice or prior public
disclosure of the date of the annual meeting is given or made to the
shareholders, not later than the tenth day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
was made) and (ii) with respect to an election to be held at a special
meeting of the shareholders for the election of Directors, not later than the
close of business on the seventh business day following the date on which notice
of such meeting is first given to shareholders. Any such shareholder’s notice
shall set forth (a) the name and address of the shareholder who intends to
make a nomination; (b) a representation that the shareholder is entitled to
vote at such meeting and a statement of the number of shares of the corporation
that are beneficially owned by the shareholder; (c) a representation that
the shareholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (d) as to each
person the shareholder proposes to nominate for election or re-election as
a
Director, the name and address of such person and such other information
regarding such nominee as would be required to be disclosed in solicitations
of
proxies for the election of such nominees as Directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended, and a description
of
any arrangements or understandings, between the shareholder and such nominee
and
any other persons (including their names), pursuant to which the nomination
is
to be made; (e) the consent of each such nominee to serve as a Director if
elected; and (f) a statement whether such person, if elected, intends to tender,
promptly following such person's election or re-election, an irrevocable
resignation effective upon such person's failure to receive the required vote
for re-election at the next meeting at which such person would face re-election
and upon acceptance of such resignation by the Board, in accordance with the
corporation's corporate governance guidelines on director elections. If the
facts warrant, the Board, or the chairperson of a shareholders’ meeting at which
Directors are to be elected, shall determine and declare that a nomination
was
not made in accordance with the foregoing procedure and, if it so determined,
the defective nomination shall be disregarded. The procedures set forth in
this
Section 3.3.1 for nomination for the election of Directors by shareholders
are in addition to, and not in limitation of, any procedures now in effect
or
hereafter adopted by or at the direction of the Board or any committee
thereof.
3.3.2
Election
Unless
otherwise provided in the Articles of Incorporation, at each election of
Directors, the persons receiving the greatest number of votes, up to the number
of Directors to be elected, shall be the Directors.
3.4
Chairperson
of the Board
If
appointed by the Board, the Chairperson of the Board shall preside over the
meetings of the Board and shareholders unless another member of the Board is
appointed or designated by the Board to preside over such
meetings. The Chairperson shall have such duties as may be prescribed
by resolution of the Board, or by policy or guidelines approved by resolution
of
the Board and shall perform such other duties commonly incident to his or her
office, except that if there shall be a Chief Executive Officer, the Chairperson
of the Board shall not, unless the Chief Executive Officer is absent or
disabled, perform such duties as are by these Bylaws or by resolution of the
Board delegated exclusively to the Chief Executive Officer. The
Chairperson of the Board must be a Director of the corporation.
3.5
Vice
Chairperson
The
Board
may appoint a Vice Chairperson of the Board who shall have such duties as may
be
prescribed by resolution of the Board, or by policy or guidelines approved
by
resolution of the Board. The Vice Chairperson of the Board must be a
Director of the corporation.
3.6
Lead
Independent Director
The
Board
may appoint a Lead Independent Director who shall have such duties as may be
prescribed by resolution of the Board, or by policy or guidelines approved
by
resolution of the Board. The Lead Independent Director must be a
Director of the corporation.
3.7
Regular
Meetings
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.
3.8
Special
Meetings
Special
meetings of the Board or any committee designated by the Board may be called
by
or at the request of the Chairperson of the Board, the Chief Executive Officer,
the President, the Secretary or, in the case of special Board meetings, any
twoDirectors and, in the case of any special meeting of any
committee designated by the Board, by its Chairperson. The person or
persons authorized to call special meetings may fix any place for holding any
special Board or committee meeting called by them.
3.9
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.
3.10
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 the form of a record or orally, as
provided below. Neither the business to be transacted at nor the
purpose of any special meeting need be specified in the notice of such
meeting.
3.10.1 Number
of Days' Notice
Notice
of
the meeting shall be given at least two days before the meeting.
3.10.2 Type
of Notice
(a) Oral
Notice. Oral notice may be communicated in person, by
telephone, wire or wireless equipment that does not transmit a facsimile of
the
notice, or by any electronic means that does not create a record.
(b) Notice
Provided in a Tangible Medium. Notice may be provided in a
tangible medium and may be transmitted by mail, private carrier, personal
delivery, telegraph, teletype, telephone or wire or wireless equipment that
transmits a facsimile of the notice.
(c) Notice
Provided in an Electronic Transmission. Notice may be
provided in an electronic transmission and be electronically
transmitted.
(1) Consent
to
Receive Notice by Electronic Transmission. Notice to
Directors in an electronic transmission is effective only with respect to
Directors who have consented, in the form of a record, to receive electronically
transmitted notices and designated in the consent the address, location or
system to which these notices may be electronically
transmitted. Notice provided in an electronic transmission includes
material required or permitted to accompany the notice by the Washington
Business Corporation Act or other applicable statute or regulation.
(2) Revocation
of
Consent to Receive Notice by Electronic Transmission. A
Director who has consented to receipt of electronically transmitted notices
may
revoke the consent by delivering a revocation to the corporation in the form
of
a record. The consent of a Director to receive notice by electronic
transmission is revoked if the corporation is unable to electronically transmit
two consecutive notices given by the corporation in accordance with the consent,
and this inability becomes known to the Secretary of the corporation or any
other person responsible for giving the notice. The inadvertent
failure by the corporation to treat this inability as a revocation does not
invalidate any meeting or other action.
(3) Posting
Notice
on an Electronic Network. Notice to Directors who have
consented to receipt of electronically transmitted notices may be provided
by
posting the notice on an electronic network and delivering to the Director
a
separate record of the posting, together with comprehensible instructions
regarding how to obtain access to the posting on the electronic
network.
3.10.3 Effectiveness
of Written Notice
(a) Notice
by Mail. Notice given by mail is effective five days after its deposit
in the United States mail, as evidenced by the postmark, if mailed with
first-class postage prepaid and correctly addressed to the Director at his
or
her address shown on the records of the corporation.
(b) Notice
by Registered or Certified Mail. Notice is effective on the
date shown on the return receipt, if sent by registered or certified mail,
return receipt requested, and the receipt is signed by or on behalf of the
addressee.
(c) Notice
by Telegraph, Teletype or Facsimile Equipment. Notice sent
to the Director's address, telephone number or other number appearing on the
records of the corporation is effective when dispatched by telegraph, teletype
or wire or wireless equipment that transmits a facsimile of the
notice.
(d) Notice
by Private Carrier. Notice given by private carrier is
effective when received by the Director.
(e) Personal
Notice. Notice given by personal delivery is effective when
received by the Director.
(f) Notice
by Electronic Transmission. Notice provided by electronic
transmission, if in comprehensible form, is effective when it (i) is
electronically transmitted to an address, location or system designated by
the
recipient for that purpose or (ii) has been posted on an electronic network
and a separate record of the posting has been delivered to the recipient
together with comprehensible instructions regarding how to obtain access to
the
posting on the electronic network.
3.10.4 Effectiveness
of Oral Notice
(a) Notice
in Person or by Telephone. Oral notice is effective when
received by the Director.
(b) Notice
by Wire or Wireless Equipment. Notice given by wire or
wireless equipment that does not transmit a facsimile of the notice or by any
electronic means that does not create a record is effective when communicated
to
the Director.
3.11
Waiver
of Notice
3.11.1 By
Delivery of a Record
A
Director may waive any notice required to be given to any Director under the
provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, before or after the date and time stated in the notice
and the waiver shall be equivalent to the giving of notice. The
waiver must be delivered by the Director entitled to the notice to the
corporation for inclusion in the minutes or filing with the corporate
records. The waiver shall be set forth either in an executed written
record or, if the corporation has designated an address, location or system
to
which the waiver may be electronically transmitted and the waiver has been
electronically transmitted to the designated address, location or system, in
an
executed electronically transmitted record. 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 the meeting.
3.11.2
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.
3.12
Quorum
One-third
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 one-third are 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.
3.13
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.
3.14
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.
3.15
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 executed by each of the Directors or
by
each committee member either before or after the action is taken and delivered
to the corporation, each of which shall be set forth in an executed written
record or, if the corporation has designated an address, location or system
to
which consent may be electronically transmitted and the consent is
electronically transmitted to the designated address, location or system in
an
executed electronically transmitted record. Action taken by consent
of Directors without a meeting is effective when the last Director executes
the
consent, unless the consent specifies a later effective date. Any
such consent shall be inserted in the minute book as if it were the minutes
of a
Board or a committee meeting.
3.16
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 an executed notice to the Chairperson 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.
3.17
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 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.
3.18
Vacancies
Unless
the Articles of Incorporation provide otherwise, any vacancy occurring on the
Board may be filled by the shareholders, the Board or, if the Directors in
office constitute fewer than a quorum, by the affirmative vote of a majority
of
the remaining Directors. Any vacant office to be held by a Director
elected by the holders of one or more classes or series of shares entitled
to
vote and be counted collectively thereon shall be filled only by the vote of
the
holders of such class or series of shares. A Director elected to fill
a vacancy shall serve only until the next election of Directors by the
shareholders.
3.19
Executive
and Other Committees
3.19.1
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.
3.19.2
Authority of Committees
Each
committee shall have and may exercise all of 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: (a) authorize or approve a
distribution except according to a general formula or method prescribed by
the
Board, (b) approve or propose to shareholders actions or proposals required
by the Washington Business Corporation Act to be approved by shareholders,
(c) fill vacancies on the Board or any committee thereof, (d) amend
the Articles of Incorporation pursuant to RCW 23B.10.020, (e) adopt, amend
or repeal Bylaws, (f) approve a plan of merger not requiring shareholder
approval, or (g) 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 may
authorize a committee or a senior executive officer of the corporation to do
so
within limits specifically prescribed by the Board.
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, any Vice President in charge of a principal business unit,
division or function or any other officer who performs a policy-making
function. The Board or the President may appoint such other officers
and assistant 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 executed 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 by any officer authorized to appoint officers or
assistant officers.
If
appointed, the Chief Executive Officer shall, if also a Director of the
corporation, preside at all meetings of the Board and shareholders in the
absence of the Chairperson of the Board unless another member of the Board
is
appointed or designated by the Board to preside over such
meetings. The Chief Executive Officer shall, subject to the control
of the Board, supervise and control all the assets, business and affairs of
the
corporation and shall have such other powers as the Board shall by resolution
from time to time prescribe. The Chief Executive Officer need not be
a Director of the corporation.
4.6
President
If
appointed, the President shall perform the duties commonly incident to his
or
her office, except that if there shall be a Chairperson of the Board or a Chief
Executive Officer the President shall not, unless the Chairperson of the Board
and the Chief Executive Officer are absent or disabled, perform such duties
as
are by these Bylaws or by resolution of the Board delegated exclusively to
the
Chairperson of the Board or the Chief Executive Officer, as the case may
be. The President shall perform such other duties as are prescribed
by the Board from time to time. The President need not be a Director
of the corporation.
4.7
Vice
President
In
the
event of the death or disability of the President or his or her inability to
act, any Vice President shall perform the duties and have the powers of the
President, except as may be limited by resolution of the Board, with all the
powers of and subject to all the restrictions on the President. Vice
Presidents shall perform such other duties as from time to time may be assigned
to them 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 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 of 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 or at the direction of the Board. In the absence of the
Treasurer, an Assistant Treasurer may perform the duties of the
Treasurer. The Treasurer shall be the chief financial and accounting
officer of the corporation unless the Board shall have designated a Vice
President or Controller to serve as principal financial or accounting
officer. If required by the Board, the Treasurer or any Assistant
Treasurer shall give a bond for the faithful discharge of his or her duties
in
such amount and with such surety or sureties as the Board shall
determine.
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. CERTIFICATES FOR SHARES AND THEIR TRANSFER
5.1
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.
5.2
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.
5.3
Stock
Records
The
stock
transfer books shall be kept at the principal office of 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.
5.4
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.
5.5
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
6. INDEMNIFICATION
6.1
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 (hereafter a
"proceeding"), by reason of the fact that he or she is
or was a Director, officer, employee or agent of the corporation or, that being
or having been such a Director or officer or an employee or an agent 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 inure to
the
benefit of the indemnitee's heirs, executors and
administrators. Except as provided in Section 6.4 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 6.1 shall be a contract right.
6.2
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 Section
6.2 shall be as set forth in such amended statutory provision.
6.3
Advancement
of Expenses
The
right
to indemnification conferred in Section 6.1 shall include the right to be paid
by the corporation the expenses incurred in defending any proceeding in advance
of its final disposition (hereinafter an "advancement of
expenses"). An 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.
6.4
Right
of Indemnitee to Bring
Suit
If
a
claim under Section 6.1 or 6.3 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 an 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 6 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.
6.5
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 6 are in lieu of the procedures required
by
Section 23B.08.550 or any successor provision of the Washington Business
Corporation Act.
6.6
Nonexclusivity
of Rights
Except
as
set forth in Section 6.5, the right to indemnification and the advancement
of
expenses conferred in this Section 6 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.
6.7
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 6 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 6.
6.8
Indemnification
of Employees and Agents of the
Corporation
In
addition to the rights of indemnification set forth in Section 6.1, 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 6 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.
6.9
Persons
Serving Other Entities
Any
person who, while a Director, officer or employee 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 are 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 Sections 6.1 and 6.3,
respectively.
SECTION
7. 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.
Dates Referenced Herein and Documents Incorporated by Reference
