16
January 19, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Registration Statement on Form 8-B
New Univar Corporation
File No. 1-5858
Gentlemen:
Attached via EDGAR is a Registration Statement on Form 8-B for New
Univar Corporation, a Washington corporation (the "Company"). As
explained in the filing, the Company is currently a wholly owned
subsidiary of Univar Corporation, a Delaware corporation ("Univar-
Delaware"). At 7:00 P.M., Pacific time on February 29, 1996, Univar-
Delaware will be merged into the Company, thereby changing its state of
incorporation from Delaware to Washington.
We understand that the Company will continue to have the same
Commission File number as Univar-Delaware (namely, 1-5858).
Univar-Delaware has wired the $250 filing fee to Mellon Bank for
this filing and the funds are held there in the SEC's account under the
name of "Univar Corporation".
The Company hereby requests that the effectiveness of this
Registration Statement be accelerated to the close of business on
February 29, 1996.
Please call the undersigned at (206) 889-3990 if you have any
questions in connection with this submission.
Sincerely yours,
/s/ WILLIAM A. BUTLER
William A. Butler
Vice President and
General Counsel
FORM 8-B
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
PURSUANT TO SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
NEW UNIVAR CORPORATION
(Exact name of registrant as specified in its charter)
Washington 91-0816142
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6100 Carillon Point, Kirkland, Washington 98033
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be
registered
Common Stock, without par value New York Stock
Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 1. General Information
(a) New Univar Corporation (the "Company") was organized on
October 24, 1995 as a corporation under the laws of the State of
Washington. At 7:00 p.m. Pacific time on February 29, 1996 (the
"Effective Time of the Merger"), the name of the Company will be
changed to "Univar Corporation."
(b) The Company's fiscal year ends on February 28/29.
Item 2. Transaction of Succession.
(a) The Company's parent corporation, Univar Corporation, a
Delaware corporation ("Univar Delaware"), has securities registered
pursuant to Section 12(b) of the Securities Exchange Act of 1934, as
amended (the "Act"). At the Effective Time of the Merger, Univar
Delaware intends to terminate such registration.
(b) At the Effective Time of the Merger: (i) Univar Delaware
will merge with and into the Company with the Company being the
surviving entity (such transaction being referred to herein as the
"Merger"), (ii) each outstanding share of Univar Delaware Common
Stock will be converted into one share of Common Stock of the
Company and (iii) each outstanding share of the Common Stock of the
Company outstanding immediately prior to the Effective Time of the
Merger will be canceled and returned to the status of authorized but
unissued shares.
Item 3. Securities to be Registered.
The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, without par value, and 5,000,000
shares of Preferred Stock, without par value. At the Effective Time
of the Merger, the Company anticipates it will have 21,674,008
shares of Common Stock issued and outstanding and no shares of
Preferred Stock issued and outstanding. (That number of shares of
Common Stock is based on the issued and outstanding shares of common
stock of Univar Delaware as of the date of filing this Registration
Statement, and will change to the same extent as the number of
shares of common stock of Univar Delaware changes.) No shares of
Common Stock or Preferred Stock of the Company are currently held by
or for the account of the Company.
Item 4. Description of Registrant's Securities to be Registered.
Information required by this Item is incorporated herein by
reference to the information under the caption "Reincorporation in
Washington and Increase in Capital Shares" contained in the Proxy
Statement of Univar Delaware dated July 7, 1995 (the "Proxy
Statement"). Capitalized terms used below in this Item have the
meanings ascribed to them in the Articles of Incorporation of the
Company included as Appendix B to the Proxy Statement.
In addition, holders of the Common Stock of the Company have no
preemptive rights to acquire additional capital shares or securities
convertible into capital shares issued by the Company. Except as
otherwise provided in the Articles of Incorporation of the Company,
the holders of Common Stock have the unlimited voting rights, with
each share being entitled to one vote, and the rights to receive the
net assets of the Company upon dissolution, with each share
participating on a pro rata basis. The Common Stock is not subject
to any terms of conversion or sinking fund or redemption provisions.
Holders of Common Stock are not liable for further calls or
assessments by the Company for liabilities of the Company imposed on
its shareholders under the state statutes of the State of
Washington.
The Board of Directors of the Company is divided into three
classes, with each class to be as equal in number as possible. A
director's basic term shall be three years. Except as described in
the next sentence, holders of Common Stock are not entitled to
cumulative voting provisions with respect to the election of
directors or other matters. On or after the date on which any
shareholder becomes a Forty Percent Shareholder (measured by
beneficial ownership of the voting stock of the Company), and until
such time as there is no longer any Forty Percent Shareholder, there
shall be cumulative voting for election of directors so that any
shareholder entitled to vote in such election shall be entitled to
as many votes as shall equal the number of directors to be elected
multiplied by the number of votes to which such shareholder's shares
would otherwise be entitled.
The Company's Articles of Incorporation provide that, subject
to the provisions of any series of Preferred Shares which may be
outstanding, any Major Transaction shall require the affirmative
vote of holders of not less than 80% of the outstanding Voting
Shares, which shall include the affirmative vote of at least 50% of
the outstanding Voting Shares held by shareholders other than the
Twenty Percent Shareholder involved in such transaction, unless the
transaction and/or acquisition of shares by the Twenty Percent
Shareholder received prior Board approval, satisfies certain
financial test and/or complies with certain proxy solicitation and
other requirements. "Major Transaction" is defined to include,
inter alia, any merger or consolidation of the Company or a
Subsidiary with a Twenty Percent Shareholder, any sale, lease,
exchange, transfer or other disposition of all or a Substantial Part
of the assets of the Company or of a Subsidiary, the issuance of any
securities of the Company or a Subsidiary to a Twenty Percent
Shareholder, the acquisition by the Company or a Subsidiary of any
securities of a Twenty Percent Shareholder, any reclassification of
Voting Shares proposed by a Twenty Percent Shareholder within five
years after such Twenty Percent Shareholder became a Twenty percent
Shareholder, or any loan or other extension of credit by the Company
or a Subsidiary to a Twenty Percent Shareholder.
In addition, the Company's Articles of Incorporation contain
restrictions and/or limitations on the following transactions
involving Five Percent Shareholders or Affiliates thereof: share
repurchases, merger transactions, or sales, leases or other
dispositions of the Company's assets; the issuance or transfer by
the Company (in one or a series of transactions) of any securities
of the Company or any Subsidiary having an aggregate Fair Market
Value of $2.0 million or more; the adoption of a plan of liquidation
or dissolution of the Company proposed by a Five Percent
Shareholder; and any reclassification of securities or
recapitalization of the Company which has the effect of increasing
the proportionate share ownership of a Five Percent Shareholder.
The foregoing provisions of the Company's Articles of
Incorporation could have the effect of delaying, deferring or
preventing a change of control of the Company.
Except as provided in the following sentence, the provisions of
the Company's Articles of Incorporation may be amended by two-thirds
of the outstanding Voting Shares of the Company. The provisions of
Articles III (Purpose), VI (Certain Definitions; Interpretations),
VII (Higher Than Majority Vote of Shareholders Required in the Event
of Certain Transactions), VIII (Restrictions on Share Repurchases
and Other Transactions), X (Directors), XII (Special Shareholder
Meetings) and XIII (Restrictions on Certain Amendments) may not be
repealed or amended unless approved by not less than 80% of the
outstanding Voting Shares; provided that if there is a Twenty
Percent Shareholder, such 80% vote must include the affirmative vote
of at least 50% of the outstanding Voting Shares held by
shareholders other than the Twenty Percent Shareholder.
Item 5. Financial Statements and Exhibits.
(a) No financial statements are required to be filed herewith
because the consolidated capital structure of the Company
immediately after consummation of the Merger will be substantially
the same as that of Univar Delaware immediately prior to
consummation of the Merger.
(b) Exhibits.
1.1 The Plan and Agreement of Merger relating to the Merger is
contained in the Proxy Statement and incorporated herein by
reference.
2.1 The Proxy Statement is incorporated herein by reference.
3.2 Plan and Agreement of Merger (see Item 1.1 above)
3.3(i) Articles of Incorporation of the Company are
contained in the Proxy Statement and incorporated herein by
reference.
3.3(ii) Bylaws of the Company
3.4 Instruments defining the rights of security holders:
Exhibit 4.1 to the Form 10-K filed by Univar Delaware for the
fiscal year ended February 28, 1995 (the "Form 10-K") is
incorporated herein by reference.
3.10 Material Contracts:
Exhibits 10.1 through 10.30, inclusive, in the Form 10-K and in
subsequently filed Forms 10-Q of Univar Delaware are
incorporated herein by reference.
3.21 Subsidiaries of the Company
Exhibit 22 to the Form 10-K is incorporated herein by
reference.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this application
for registration to be signed on its behalf by the undersigned,
thereunto duly authorized, on this 19th day of January, 1996.
NEW UNIVAR CORPORATION
a Washington corporation
By: /s/ Paul H. Hough
Paul H. Hough
President and CEO
Exhibit 3.3 (ii)
BYLAWS
OF
UNIVAR CORPORATION
(a Washington corporation)
Adopted December 18, 1995
ARTICLE I
Shareholders
1.1 ANNUAL MEETING. The annual meeting of the shareholders of the
Corporation for the election of Directors and for the transaction of
such other business as properly may be submitted to such annual meeting,
shall be held at the hour and on the date designated by the Board of
Directors or an authorized committee of the Board of Directors, such
date to be within six months of the end of the fiscal year.
1.2 SPECIAL MEETINGS. Special meetings of the shareholders of the
Corporation, for any purpose or purposes, may be called at any time by
the Board of Directors or an authorized committee of the Board of
Directors.
1.3 PLACE OF MEETINGS. Meetings of shareholders shall be held at
such place within or without the State of Washington as determined by
the Board of Directors, or an authorized committee, pursuant to proper
notice.
1.4 NOTICE. Written notice of each shareholders' meeting stating
the date, time, and place and, in case of a special meeting, the
purpose(s) for which such meeting is called, shall be given by the
Corporation not less than ten (10) (unless a greater period of notice is
required by law in a particular case) nor more than sixty (60) days
prior to the date of the meeting, to each shareholder of record, to the
shareholder's address as it appears on the current record of
shareholders of the Corporation.
1.5 QUORUM OF SHAREHOLDERS. At any meeting of the shareholders,
a majority in interest of all the shares entitled to vote on a matter,
represented by shareholders of record in person or by proxy, shall
constitute a quorum of that voting group for action on that matter.
Once a share is represented at a meeting, other than to object to
holding the meeting or transacting business, it is deemed to be 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 the adjourned meeting. At such reconvened meeting, any business may
be transacted that might have been transacted at the meeting as
originally notified.
If a quorum exists, action on a matter is approved by a voting
group if the votes cast within the voting group favoring the action
exceed the votes cast within the voting group opposing the action,
unless the question is one for which a different vote is required by
express provision of the Washington Business Corporation Act, as amended
("WBCA"), the Articles of Incorporation, or these Bylaws.
1.6 ADJOURNMENT. A majority of the shares represented at the
meeting, even if less than a quorum, may adjourn the meeting from time
to time. At such reconvened meeting at which a quorum is present any
business may be transacted at the meeting as originally notified. If a
meeting is adjourned to a different date, time, or place, notice need
not be given of the new date, time, or place if a new date, time, or
place is announced at the meeting before adjournment; however, if a new
record date for the adjourned meeting is or must be fixed in accordance
with the WBCA, notice of the adjourned meeting must be given to persons
who are shareholders as of the new record date.
1.7 RECORD DATE AND TRANSFER BOOKS. For the purpose of
determining shareholders who are entitled to notice of or to 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, the Board of Directors may
fix in advance a record date for any such determination of shareholders,
such date in any case to be not more than seventy (70) days and, in case
of a meeting of shareholders, not less than ten (10) days prior to the
date on which the particular action, requiring such determination of
shareholders, is to be taken.
If no record date is fixed for such purposes, the date on which
notice of the meeting is mailed or the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case
may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the Board
of Directors fixes a new record date, which it must do if the meeting is
adjourned to a date more than one hundred twenty (120) days after the
date is fixed for the original meeting.
1.8 VOTING RECORD. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least
ten (10) days before each meeting of shareholders, a complete record of
the shareholders entitled to vote at such meeting or any adjournment
thereof, arranged by any applicable voting groups and in alphabetical
order, with the address of and the number of shares held by each. Such
record shall be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder or any
shareholder's agent during the whole time of the meeting for the
purposes thereof.
1.9 PROXIES. Shareholders of record may vote at any meeting
either in person or by proxy executed in writing. A proxy is effective
when received by the person authorized to tabulate votes for the
Corporation. A proxy is valid for eleven (11) months unless a longer
period is expressly provided in the proxy.
1.10 ORGANIZATION OF MEETING. The officer designated by the Board
of Directors as Chief Executive Officer (or another officer designated
by the Board of Directors) may call any meeting of shareholders to order
and shall be the Chairman thereof. The Corporate Secretary, if present
at any meeting of its shareholders, shall act as the secretary of such
meeting. If the Corporate Secretary is absent from any such meeting,
the Chairman of such meeting may appoint a secretary for the meeting.
1.11 PROPER BUSINESS FOR SHAREHOLDERS' MEETING. At any annual or
special meeting of the shareholders of the Corporation, only business
properly brought before the meeting may be transacted. To be properly
brought before an annual or special meeting, business or other proposals
must be (i) specified in the notice of the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii)
otherwise properly brought before the meeting by or at the direction of
the Board of Directors, or (iii) otherwise properly brought before the
meeting by a shareholder. For business to be properly brought before an
annual meeting by a shareholder, written notice thereof must have been
received by the Corporate Secretary from such shareholder not less than
120 days prior to the date corresponding to the date on which the
Corporation mailed its proxy statement in connection with its previous
year's annual meeting of shareholders. For business to be properly
brought before a special meeting by a shareholder, or in the event the
date of the annual meeting has been changed by more than 30 calendar
days from the date contemplated at the time of the previous year's proxy
statement, notice by the shareholder to be timely must be received by
the Corporate Secretary not later than the close of business on the 10th
day following the earlier of the day on which notice of the date of the
scheduled meeting was mailed or the day on which public disclosure of
such date was made.
Any such notice shall set forth as to each matter the shareholder
proposes to bring before the meeting (i) a brief description of the
business desired to be brought before the meeting, the reasons for
conducting such business at the meeting, and the language of the
proposal, (ii) the name and address of the shareholder proposing such
business, (iii) a representation that the shareholder is a holder of
record (or beneficial owner of shares to the extent the Corporation has
established a procedure pursuant to Section 23B.07.230 of the WBCA
granting such right to a beneficial owner of share registered in the
name of a nominee) of shares of the Corporation entitled to vote at such
meeting, and (iv) any material interest of the shareholder in such
business. Any such notice to the Corporation shall also comply with all
applicable provisions of Regulation 14A under the Securities Exchange
Act of 1934 (the "Exchange Act") or similar rules or regulations then
applicable to shareholder proposals for companies subject to the proxy
rules of the Exchange Act. No business shall be conducted at any
meeting of shareholders except in accordance with this Section, and the
chairman of any meeting of shareholders and the Board of Directors may
refuse to permit any business to be brought before the meeting without
compliance with the foregoing procedures.
1.12 ORDER OF BUSINESS. The Chairman of a meeting of
shareholders, determined in accordance with Section 1.10, shall have
discretion to establish the order of business for such meeting subject
to any specific order established by the Board of Directors.
ARTICLE II
Board of Directors
2.1 NUMBER AND QUALIFICATIONS. The business affairs and property
of the Corporation shall be managed by a Board of not less than nine
directors nor more than fifteen directors. The number of directors may
at any time be increased or decreased by resolution of the Board of
Directors or by the shareholders at the annual meeting. Directors need
not be shareholders of the Corporation.
Each director of the Corporation shall be eligible to serve as
follows:
2.1.1 Any director who has served as President, a Vice
President, or Chairman of the Board of Directors of the Corporation
shall be eligible to serve as director until the regular meeting of the
Board of Directors immediately following his 72nd birthday.
2.2.2 Any director who is, at the time of his 65th birthday or
his retirement, a full time employee of the Corporation or one of its
subsidiaries shall not be eligible to serve after his 65th birthday or
his retirement, whichever event is earlier, except as provided in 2.1.1
above.
2.1.3 Any director other than one of the classes referred to in
Subsections 2.1.1 and 2.1.2 of this Section 2.1 shall be eligible to
serve until the regular meeting of the Board of Directors immediately
following his 72nd birthday.
2.2 ELECTION - TERM OF OFFICE. The election of directors, their
terms of service, the procedures for their removal and the filling of
vacancies shall be in accordance with the Corporation's Articles of
Incorporation.
2.3 NOMINATION OF DIRECTORS FOR ELECTIONS. Nominations for the
election of directors may be made by the Board of Directors or a
committee appointed by the Board of Directors or, if the shareholders
are, at the time, entitled to cumulate their votes in the election of
directors in accordance with Section 8.3 of the Articles of
Incorporation, by a majority of the "Disinterested Directors" or by any
shareholder who is the "Beneficial Owner" of one percent (1%) or more of
the outstanding shares of "Voting Shares" (as said terms are defined in
the Articles of Incorporation) in accordance with the following
procedures. However, any such shareholder holding one percent (1%) or
more of the outstanding Voting Shares at the time may nominate one or
more persons for election as directors at a meeting only if written
notice of such shareholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Corporate Secretary in accordance
with the following procedures: For a nomination to be properly
submitted before an annual meeting by a shareholder, written notice
thereof must have been received by the Corporate Secretary from such
shareholder not less than 120 days prior to the date corresponding to
the date on which the Corporation mailed its proxy statement in
connection with its previous year's annual meeting of shareholders. For
a nomination to be properly submitted before a special meeting by a
shareholder, or in the event the date of the annual meeting has been
changed by more than 30 calendar days from the date contemplated at the
time of the previous year's proxy statement, notice by the shareholder
to be timely must be received by the Corporate Secretary not later than
the close of business on the 10th day following the earlier of the day
on which notice of the date of the scheduled meeting was mailed or the
day on which public disclosure of such date was made.
Each such notice to the Corporate Secretary shall set forth: (i)
the name and address of record of the shareholder who intends to make
the nomination; (ii) a representation accompanied by appropriate written
documentation to confirm that the shareholder is a holder of record (or
beneficial owner of shares to the extent the Corporation has established
a procedure pursuant to Section 23B.07.230 of the WBCA granting such
right to a beneficial owner of share registered in the name of a
nominee) of Voting Shares entitled to vote at such meeting which shares
represent one percent (1%) or more of the outstanding Voting Shares, and
that such shareholder intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (iii)
the name, age, business and residence addresses, and principal
occupation or employment of each nominee; (iv) a description of all
arrangements or understandings between the shareholder and each nominee
and any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
shareholder; (v) such other information regarding such 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; and (vi) the consent of each nominee to serve as a
director of the Corporation if so elected. The Corporation may require
any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. Subject to
applicable filing requirements of the Securities and Exchange Commission
and applicable notice requirements, the Corporation shall, prior to
mailing its final proxy statement to the shareholders, (a) advise the
shareholder submitting the nomination of any deficiencies in the
information provided and any other reason why it has concluded that the
nomination does not satisfy the foregoing requirements, and (b) give
such shareholder and nominee a reasonable opportunity to cure any such
defects and/or nominate a substitute nominee. A substitute nominee must
also comply with the requirements of this section other than the initial
date for providing the notice and information. The good faith
determination by the Board of Directors of the qualifications, or lack
thereof, of a nominee shall be final.
2.4 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such places, and at such times as the Board may
determine, and, if so determined, no notice thereof need be given. A
regular meeting of the Board may be held without notice immediately
after the annual meeting of shareholders at the same place at which such
meeting was held.
2.5 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time or place upon the call of a majority of
directors, the Chairman of the Board, or the Chief Executive Officer.
2.6 NOTICE. No notice is required for regular meetings of the
Board of Directors. Notice of special meetings, or a change in the time
and place of any regular meeting, of the Board of Directors, stating the
date, time, and place thereof, shall be given at least seventy-two (72)
hours prior to the time of the meeting. Such notice may be oral or
written.
2.7 WAIVER OF NOTICE. A director may waive notice of a special
meeting of the Board either before or after the meeting, and such waiver
shall be deemed to be the equivalent of giving notice. The waiver must
be in writing, signed by the director entitled to the notice and
delivered to the Corporation for inclusion in its corporate records.
Attendance or participation of a director at a meeting shall constitute
waiver of notice of that meeting unless said director attends or
participates for the express purpose of objecting to the transaction of
business because the meeting has not been lawfully called or convened.
2.8 QUORUM OF DIRECTORS. A majority of the members of the Board
of Directors shall constitute a quorum for the transaction of business,
but if at any meeting of the Board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time
to time until a quorum shall have been obtained. When a quorum is
present at any meeting, a majority of the members present shall decide
any question brought before such meeting, except as otherwise provided
by the Articles of Incorporation or by these Bylaws.
2.9 ADJOURNMENT. A majority of the directors present, even if
less than a quorum, may adjourn a meeting and continue it to a later
time. Notice of the adjourned meeting or of the business to be
transacted thereat, other than by announcement, shall not be necessary.
At any adjourned meeting at which a quorum is present, any business may
be transacted which could have been transacted at the meeting as
originally called.
2.10 RESIGNATION. Any director of the Corporation may resign at
any time by giving written notice to the Board of Directors, the
Chairman, the Chief Executive Officer, or the Corporate Secretary. Any
such resignation is effective when the notice is delivered, unless the
notice specifies a later effective date.
2.11 COMPENSATION. The Board shall have the sole authority to fix
the amount of compensation of directors. A director who is being
compensated as a full time employee shall not be entitled for receive
fees as a director unless specifically approved by the Board.
2.12 COMMITTEES. The Board of Directors, by resolution adopted by
a majority of the full Board of Directors, may designate from among its
members one or more committees, each of which:
a. Shall have two (2) or more members;
b. Shall be governed by the same rules regarding meetings,
action without meetings, notice, and waiver of notice, and quorum and
voting requirements as applied to the Board of Directors or by such
other rules as a committee may establish; and
c. To the extent provided in such resolution, shall have and
may exercise all the authority of the Board of Directors, except no such
committee shall have the authority to:
(1) Authorize or approve a distribution except according
to a general formula or method prescribed by the Board of Directors;
(2) Approve or propose to shareholders action which the
WBCA requires to be approved by shareholders;
(3) Fill vacancies on the Board of Directors or on any
of its committees;
(4) Amend the Articles of Incorporation;
(5) Adopt, amend, or repeal the Bylaws;
(6) Approve a plan of merger not requiring shareholder
approval; or
(7) Authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative
rights, preferences, and limitations on a class or series of shares,
except that the Board of Directors may authorize a committee, or a
senior executive officer of the Corporation, to do so within limits
specifically prescribed by the Board of Directors.
ARTICLE III
Special Measures Applying to Meetings of
Shareholders, the Board of Directors and Committees of the Board
3.1 ACTION BY WRITTEN CONSENT. Any action required or permitted
to be taken at a meeting of the Board of Directors or a committee of the
Board may be accomplished without a meeting if the action is taken by
all the members of the Board or all the members of the committee, as the
case may be. The action must be evidenced by one or more written
consents describing the action to be taken, signed by all directors or
all members of the committee, as the case may be, and delivered to the
Corporation for inclusion in the minutes. Directors' consents may be
signed either before or after the action taken.
Action taken by unanimous written consent is effective when the
last director signs the consent, unless the consent specifies a later
effective date.
3.2 USE OF COMMUNICATIONS EQUIPMENT. Meetings of the
shareholders, the Board of Directors, and committees of the Board may be
effectuated by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other during the meeting. Participation by such means shall
constitute presence in person at such meeting.
3.3 ORAL AND WRITTEN NOTICE. Oral notice may be communicated in
person or by telephone, wire or wireless equipment that does not
transmit a facsimile of the notice. Oral notice is effective when
communicated if communicated in a comprehensible manner.
Written notice may be transmitted by mail, private carrier, or
personal delivery; telegraph or teletype; or telephone, wire, or
wireless equipment that transmits a facsimile of the notice and provides
the transmitter with an electronically generated receipt. Written
notice is effective at the earliest of the following: (a) when
received; (b) five (5) days after its deposit in the US. mail if mailed
with first-class postage; (c) on the date shown on the return receipt,
if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee.
ARTICLE IV
Officers
4.1 POSITIONS. The officers of the Corporation may consist of a
Chairman, a Vice Chairman, a President, one or more Vice Presidents (who
may be designated as Vice Presidents, Senior Vice Presidents or
Executive Vice Presidents), a Corporate Secretary, a Treasurer, and such
other positions or titles as may be appointed by the Board of Directors
or the Chief Executive Officer. The Corporation may have such
additional or assistant officers (sometimes referred to as "additional
officers") as the Board of Directors, Chief Executive Officer or Chief
Operating Officer may deem necessary for its business and may appoint
from time to time. The Board of Directors shall also have the
authority, but shall not be required, to designate officers as the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, or similar such titles. Any two or more offices may be held by
the same person.
If a director/officer has not been designated as Chairman, or if
the designated Chairman is not present, the Board of Directors shall
elect a Chairman from amongst its members to serve as Chairman of the
Board of Directors. The Chairman shall preside at all meetings of the
Board of Directors, and shall have such other powers as the Board may
determine.
4.2 APPOINTMENT AND TERM OF OFFICE. The officers of the
Corporation shall be appointed annually at the first meeting of the
Board of Directors held after each annual meeting of the shareholders.
If officers are not appointed at such meeting, such appointment shall
occur as soon as possible thereafter, or may be left vacant. Each
officer shall hold office until a successor shall have been appointed
and qualified or until said officer's earlier death, resignation, or
removal.
4.3 AUTHORITY AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The
Chief Executive Officer (who shall be the President in the absence of
any other designation by the Board of Directors) shall have general
charge and supervision of the business of the Corporation, shall see
that all orders, actions and resolutions of the Board of Directors are
carried out, and shall have such other authority and shall perform such
other duties as set forth in these bylaws or, to the extent consistent
with the bylaws, such other authorities and duties as prescribed by the
Board of Directors.
4.4 AUTHORITY AND DUTIES OF OTHER OFFICERS. Each officer other
than the Chief Executive Officer shall have the authority and shall
perform the duties prescribed by the Chief Executive Officer, or by an
officer authorized by the Chief Executive Officer or the Board of
Directors to prescribe the duties of such officer. Any designation of
duties by the Chief Executive Officer or other officer shall be subject
to review by the Board of Directors but shall be in full force and
effect in the absence of such review.
4.5 COMPENSATION AND CONTRACT RIGHTS. The Board of Directors
shall have authority (a) to fix the compensation, whether in the form of
salary, bonus, stock options or otherwise, of all officers and employees
of the Corporation, either specifically or by formula applicable to
particular classes of officers or employees, and (b) to authorize
officers of the Corporation to fix the compensation of subordinate
employees. The Board of Directors shall have authority to appoint a
Compensation Committee and may delegate to such committee any or all of
its authority relating to compensation. The appointment of an officer
shall not of itself create contract rights.
4.6 RESIGNATION OR REMOVAL. Any officer of the Corporation may
resign at any time by giving written notice to the Board of Directors.
Any such resignation is effective when the notice is delivered, unless
the notice specifies a later date, and shall be without prejudice to the
contract rights, if any, of such officer.
The Board of Directors, by majority vote of the entire Board, may
remove any officer or agent, with or without cause. An officer or
assistant officer, if appointed by another officer, may also be removed
by any officer authorized to appoint officers or assistant officers.
The removal shall be without prejudice to the contract rights, if any,
of the person so removed.
4.7 VACANCIES. If any office becomes vacant for any reason, the
directors may appoint a successor or successors who shall hold office
for the unexpired term or leave such office vacant.
ARTICLE V
Certificates of Shares and Their Transfer
5.1 ISSUANCE; CERTIFICATES OF SHARES. No shares of the
Corporation shall be issued unless authorized by the Board. Such
authorization shall include the maximum number of shares to be issued,
the consideration to be received, and a statement that the Board
considers the consideration to be adequate. Shares may but need not be
represented by certificates. Certificates for shares of the Corporation
shall be in such form as is consistent with the provisions of the WBCA
or the law of a predecessor corporation and after the effective date of
these Bylaws shall state:
a. The name of the Corporation and that the Corporation is
organized under the laws of the State of Washington;
b. The name of the person to whom issued; and
c. The number and class of shares and the designation of the
series, if any, which such certificate represents.
The certificate shall be signed by original or facsimile signature
of two officers of the Corporation, and the seal of the Corporation may
be affixed thereto.
5.2 TRANSFER OF STOCK. Shares of stock represented by
certificates may be transferred by delivery of the certificate
accompanied by either an assignment in writing on the back of the
certificate or by a written power of attorney to assign and transfer the
same on the books of the Corporation, signed by the record holder of the
certificate. The shares shall be transferable on the books of the
Corporation upon surrender thereof so assigned or endorsed.
5.3 RULES AND REGULATIONS CONCERNING THE ISSUE, TRANSFER AND
REGISTRATION OF SHARES. The Board of Directors shall have power and
authority to make all such rules and regulations as the Board may deem
proper or expedient concerning the issue, transfer and registration of
shares of stock. In case of the loss, mutilation, or destruction of a
certificate of stock, a duplicate certificate may be issued upon such
terms as the Board shall authorize. The Board shall have power and
authority to appoint from time to time one or more transfer agents and
registrar of the shares of stock.
5.4 SHARES WITHOUT CERTIFICATES. The Corporation shall have
authority to issue some or all of the shares without certificates.
Within a reasonable time after the issue or transfer of shares without
certificates, the Corporation shall send the shareholder a written
statement of the information required on certificates by the WBCA.
ARTICLE VI
Books and Records
6.1 BOOKS OF ACCOUNTS, MINUTES, AND SHARE REGISTER. Except as
otherwise provided by law, the Corporation:
a. Shall keep as permanent records minutes of all meetings
of its shareholders and Board of Directors, a record of all actions
taken by the Board of Directors without a meeting, and a record of all
actions taken by a committee of the Board of Directors exercising the
authority of the Board of Directors on behalf of the Corporation;
b. Shall maintain appropriate accounting records;
c. Or its agent shall maintain a record of its shareholders,
in a form that permits preparation of a list of the names and addresses
of all shareholders, in alphabetical order by class of shares showing
the number and class of shares held by each; and
d. Shall keep a copy of the following records at its
principal office:
(1) The Articles of Incorporation and all amendments to
them currently in effect;
(2) The Bylaws and all amendments to them currently in
effect;
(3) The minutes of all shareholders' meetings, and
records of all actions taken by shareholders without a meeting, for the
past three (3) years;
(4) Its financial statements for the past three (3)
years, including balance sheets showing in reasonable detail the
financial condition of the Corporation as of the close of each fiscal
year, and an income statement showing the results of its operations
during each fiscal year prepared on the basis of generally accepted
accounting principles or, if not, prepared on a basis explained therein;
(5) All written communications to shareholders generally
within the past three (3) years;
(6) A list of the names and business addresses of its
current directors and officers; and
(7) Its most recent annual report delivered to the
Secretary of State of Washington.
6.2 COPIES OF RESOLUTIONS. Any person dealing with the
Corporation may rely upon a copy of any of the records of the
proceedings, resolutions, or votes of the Board of Directors or
shareholders, when certified by the Corporate Secretary, an assistant
secretary, or other officer authorized by the Board.
