<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BSQUARE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Washington 91-1650880
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(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
3633 136th Place S.E., Suite 100, Bellevue, Washington 98006
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(Address of principal executive offices)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-85351
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which Each
to be registered Class is to be Registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
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(Title of Class)
Exhibit Index on Page 4
Page 1 of 4 Pages
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Item 1. Description of Registrant's Securities to be Registered
The description of the registrant's Common Stock, no par value, is
incorporated by reference to the "Description of Capital Stock" section in the
Prospectus contained in the registrant's Registration Statement on Form S-1,
File No. 333-85351, as originally filed with the Securities and Exchange
Commission on August 17, 1999, or as subsequently amended (the "Registration
Statement").
Item 2. Exhibits
The following Exhibits are filed are part of this Registration
Statement:
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
1 Form of Amended and Restated Articles of Incorporation of the
Registrant (filed as Exhibit 3.1(a) to the Registration
Statement)
2 Bylaws and all amendments thereto of the Registrant (filed as
Exhibit 3.2 to the Registration Statement)
</TABLE>
Page 2 of 4 Pages
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: October 15, 1999
BSQUARE CORPORATION,
a Washington corporation
By: /s/ William T. Baxter
-------------------------------------------
William T. Baxter
Chairman of the Board, Chief Executive
Officer and President
Page 3 of 4 Pages
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential Page
Exhibit Description No.
<S> <C> <C>
1 Form of Amended and Restated Articles of Incorporation of --
the Registrant (filed as Exhibit 3.1(a) to the Registration
Statement)
2 Bylaws and all amendments thereto of the Registrant (filed --
as Exhibit 3.2 to the Registration Statement)
</TABLE>
Page 4 of 4 Pages
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EXHIBIT 3.1(a)
FORM OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
BSQUARE CORPORATION
ARTICLE I
NAME
The name of the corporation (the "Corporation") is BSQUARE Corporation.
ARTICLE II
AUTHORIZED SHARES
2.1 AUTHORIZED CAPITAL. The total authorized number of shares of the
Corporation is Sixty Million (60,000,000) shares; Fifty Million (50,000,000)
shares of common stock without par or ascribed value; Ten Million (10,000,000)
shares of preferred stock without par or ascribed value.
2.2 ISSUANCE OF PREFERRED STOCK IN SERIES. The Preferred Stock may be
issued from time to time in one or more series in any manner permitted by law
and the provisions of these Articles of Incorporation, as determined from time
to time by the Board of Directors and stated in the resolution or resolutions
providing for the issuance thereof, prior to the issuance of any shares thereof.
The Board of Directors shall have the authority to fix and determine and to
amend, subject to the provisions hereof, the designations, powers, preferences
and relative, participating, optional or other rights, if any, and
qualifications, limitations or other restrictions of the shares of any series
that is wholly unissued or to be established and the number of shares
constituting any such series. Unless otherwise specifically provided in the
resolution establishing any series, the Board of Directors shall further have
the authority, after the issuance of shares of a series whose number it has
designated, to amend the resolution establishing such series to decrease the
number of shares of that series, but not below the number of shares of such
series then outstanding.
(a) Dividends. The holders of shares of the Preferred Stock shall be
entitled to receive dividends, out of the funds of the Corporation legally
available therefor, at the rate and at the time or times as may be provided by
the Board of Directors in designating a particular series of Preferred Stock.
The holders of the Preferred Stock shall not be entitled to receive any
dividends thereon, unless otherwise provided by the Board of Directors in
designating a particular series of Preferred Stock.
(b) Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
then, before any distribution shall be made to the holders of the Common Stock,
the holders of the Preferred Stock at the time outstanding shall be entitled to
be paid the preferential amount or amounts per share as may be provided by the
Board of Directors in designating a particular series of Preferred Stock, plus
dividends accrued thereon to the date of such payment. In designating a
particular series of Preferred Stock, the Board of Directors may also provide
that such series is senior, on a par with or subordinate in order of priority to
any other existing or later issued series of Preferred Stock in respect of
distribution of amounts upon the liquidation, dissolution or winding up of the
affairs of the Corporation. The holders of the Preferred Stock shall not be
entitled to receive any distributive amounts upon the liquidation, dissolution
or winding up of the affairs of the
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Corporation, unless otherwise provided by the Board of Directors in designating
a particular series of Preferred Stock.
(c) Conversion. Shares of Preferred Stock may be convertible to
shares of Common Stock at such rate and subject to such adjustments as may be
provided by the Board of Directors in designating a particular series of
Preferred Stock.
(d) Redemption. The Preferred Stock may be redeemable in such
amounts, and at such time or times as may be provided by the Board of Directors
in designating a particular series of Preferred Stock. In any event, such
Preferred Stock may be repurchased by the Corporation only to the extent legally
permissible.
(e) Voting Rights. Holders of Preferred Stock shall have such voting
rights as may be provided by the Board of Directors in designating a particular
series of Preferred Stock.
ARTICLE III
DIRECTORS
The Board of Directors shall be set at seven. At the first election of
directors after the Corporation is a Public Company, as defined below, the Board
of Directors shall be divided into three (3) classes, as determined by the Board
of Directors, with said classes to be as equal in number as may be possible,
which classes shall be elected for the terms set forth below:
<TABLE>
<CAPTION>
Class Term
------- -------
<S> <C>
Class 1 1 Year
Class 2 2 Years
Class 3 3 Years
</TABLE>
Thereafter, each Director's term shall be three (3) years, and each Director
shall serve for the term he or she was elected and thereafter until his or her
successor is elected and qualified (or the number of directors is reduced), or
until his or her death, resignation or removal from office. Directors need not
be shareholders of the Corporation or residents of the State of Washington.
Written ballots are not required in the election of Directors. For purposes of
these Articles of Incorporation, the Corporation shall be a "Public Company" at
such time and for so long as it has a class of equity securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, or
any successor statute (the "Exchange Act"), or is otherwise subject to the
reporting requirements of Section 15(d) of the Exchange Act.
Newly created directorships resulting from any increase in the number of
Directors or any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall be filled by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board of Directors. Any Director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or in which the
vacancy occurred and thereafter until such Director's successor shall have been
elected and qualified (or the number of directors is reduced). No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
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ARTICLE IV
PREEMPTIVE RIGHTS
Shareholders of the Corporation shall have no preemptive rights to
acquire additional shares of the Corporation.
ARTICLE V
CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not
exist with respect to shares of stock of the Corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
(a) The capitalized terms in this Article 6 shall have the meanings
set forth in RCW 23B.08.500.
(b) The Corporation shall indemnify and hold harmless each
individual who is or was serving as a Director or officer of the Corporation or
who, while serving as a Director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against any and all Liability incurred with respect to any Proceeding to which
the individual is or is threatened to be made a Party because of such service,
and shall make advances of reasonable Expenses with respect to such Proceeding,
to the fullest extent permitted by law, without regard to the limitations in RCW
23B.08.510 through 23B.08.550; provided, however, that the payment of Expenses
in advance of the final disposition of a Proceeding shall be made upon delivery
to the Corporation of an undertaking, by or on behalf of such Director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such Director or officer is not entitled to be indemnified under this
Article or otherwise; provided further, that no such indemnity shall indemnify
any Director or officer from or on account of (1) acts or omissions of the
Director or officer finally adjudged to be intentional misconduct or a knowing
violation of law; (2) conduct of the Director or officer finally adjudged to be
in violation of RCW 23B.08.310; or (3) any transaction with respect to which it
was finally adjudged that such Director or officer personally received a benefit
in money, property, or services to which the Director or officer was not legally
entitled. Except as provided in Subsection (f) of this Article, the Corporation
shall not indemnify a Director or officer in connection with a Proceeding (or
part thereof) initiated by the Director or officer unless such Proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
(c) The Corporation may purchase and maintain insurance on behalf of
an individual who is or was a director, officer, employee, or agent of the
Corporation or, who, while a director, officer, employee, or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise against Liability asserted against or incurred by
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the individual in that capacity or arising from the individual's status as a
director, officer, employee, or agent, whether or not the Corporation would have
power to indemnify the individual against such Liability under RCW 23B.08.510 or
23B.08.520.
(d) If, after the effective date of this Article 6, the Act is
amended to authorize further indemnification of Directors or officers, then
Directors and officers of the Corporation shall be indemnified to the fullest
extent permitted by the Act as so amended.
(e) To the extent permitted by law, the rights to indemnification
and advance of reasonable Expenses conferred in this Article 6 shall not be
exclusive of any other right which any individual may have or hereafter acquire
under any statute, provision of the Bylaws, agreement, vote of shareholders or
disinterested directors, or otherwise. The right to indemnification conferred in
this Article 6 shall be a contract right upon which each Director or officer
shall be presumed to have relied in determining to serve or to continue to serve
as such. Any amendment to or repeal of this Article 6 shall not adversely affect
any right or protection of a Director or officer of the Corporation for or with
respect to any acts or omissions of such Director or officer occurring prior to
such amendment or repeal.
(f) If a claim under this Article is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, except in the case of a claim for expenses incurred in
defending a proceeding in advance of its final disposition, in which case the
applicable period shall be twenty (20) days, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, to the extent successful in whole or in part, the Director or
officer shall be entitled to be paid also the expense of prosecuting such claim.
Neither the failure of the Corporation (including its Board of Directors, its
shareholders or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification of or reimbursement or
advancement of expenses to the claimant is proper in the circumstances, nor an
actual determination by the Corporation (including its Board of Directors, its
shareholders or independent legal counsel) that the Director or officer is not
entitled to indemnification or to the reimbursement or advancement of expenses,
shall be a defense to the action or create a presumption that the Director or
officer is not so entitled.
(g) If the Corporation indemnifies or advances expenses to a
Director or officer pursuant to this Article 6 in connection with a Proceeding
by or in the right of the Corporation, the Corporation shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders' meeting.
(h) If any provision of this Article 6 or any application thereof
shall be invalid, unenforceable, or contrary to applicable law, the remainder of
this Article 6, and the application of such provisions to individuals or
circumstances other than those as to which it is held invalid, unenforceable, or
contrary to applicable law, shall not be affected thereby.
ARTICLE VII
INTERESTED TRANSACTIONS
(1) No contracts or other transactions between the Corporation and
any other corporation, and no act of the Corporation shall in any way be
affected or invalidated by the fact that any of the directors or shareholders of
the Corporation are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation; and
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(2) Any director or shareholder individually, or any firm of which
any director or shareholder may be a member, may be a party to, or may be
pecuniarily or otherwise interested in, any contracts or transactions of the
Corporation, provided that the fact that he or such firm is so interested shall
be disclosed or shall have been known to the Board of Directors or a majority
thereof.
ARTICLE VIII
SHAREHOLDER ACTIONS BY CONSENT
In accordance with RCW 23B.07.040, any action that may be taken at a
meeting of the Corporation's shareholders may be taken by written consent by the
shareholders holding of record or otherwise entitled to vote in the aggregate
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote on the
action were present and voted. If action is taken by less than unanimous
consent, the Corporation shall give nonconsenting shareholders prior notice of
such action; provided that if the action is of a type that would constitute a
significant business transaction under RCW 23B.19.020(15), notice must be given
no fewer than 20 days prior to the effective date of the action (such prior or
20 day period, a "Notice Period"). Such notice shall include the resolution
approved by the shareholders by written consent and shall be hand delivered or
sent first-class mail to each nonconsenting shareholder at the address on the
books and records of the Corporation. Unless the written consent specifies a
different effective date, the action is effective when consents sufficient to
authorize the action have been delivered to the Corporation and the Notice
Period has been satisfied. If the action is of a type that would entitle
shareholders to exercise dissenters' rights under RCW 23B.13.020(1), then (i)
the notice must comply with RCW 23B.13.220(2), (ii) RCW 23B.13.210 shall not
apply, and (iii) all nonconsenting shareholders are entitled to receive the
notice, demand payment under RCW 23B.13.230 and assert other dissenters' rights
to which they are by law entitled.
ARTICLE IX
REGISTERED OFFICE
The address of the registered office of the Corporation is 1505
Westlake Avenue N., Suite 300, Seattle, Washington, and the name of the
registered agent at such address is Michael J. Erickson.
ARTICLE X
AMENDMENT OF ARTICLES
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
shareholders and directors are subject to this reserved power.
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ARTICLE XI
LIMITATION OF DIRECTOR LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for his or her conduct as a
director on or after the date this Article becomes effective, except for: (i)
acts or omissions that involve intentional misconduct or a knowing violation of
law by the director, (ii) approval of certain distributions or loans in
violation of RCW 23B.08.310, or (iii) any transaction from which the director
will personally receive a benefit in money, property or services to which the
director is not legally entitled. If, after approval by shareholders of this
Article, the Washington Business Corporation Act is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Washington Business
Corporation Act, as so amended. Any amendment to or repeal of this Article shall
not adversely affect any right or protection of a director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
ARTICLE XII
REMOVAL OF DIRECTORS
Any Director or the entire Board of Directors may be removed with or
without cause by the holders of not less than a majority of the shares then
entitled to vote at an election of Directors; provided, however, beginning at
such time and for so long as the Corporation is a Public Company (as defined in
Article III), no Director may be removed without "Cause," as defined below. Such
action may be taken at any regular or special meeting of the shareholders of the
Corporation, or by unanimous written consent in lieu of a meeting, provided that
notice of the proposed removal, which shall include a statement of the charges
alleged against the Director(s) in the event of removal for Cause, shall have
been duly given to the shareholders together with or as a part of the notice of
the meeting.
Where a question of the removal of a Director for Cause is to be presented
for shareholder consideration while the Corporation is a Public Company, an
opportunity must be provided to such Director to present his or her defense to
the shareholders by a statement which must accompany or precede the notice of
the meeting at which removal of such Director for Cause shall be considered.
Under such circumstances the Director involved shall be served with notice of
the meeting at which such action is proposed to be taken together with a
statement of the specific charges and shall be given an opportunity to be
present and to be heard at the meeting at which his or her removal is
considered.
For purposes of this Article XII, "Cause" for removal shall be limited to
(a) action by a Director involving willful malfeasance having a material adverse
effect on the Corporation or (b) a Director being convicted of a felony;
provided that any action by a Director shall not constitute "Cause" if, in good
faith, such Director believed such action to be in or not opposed to the best
interests of the Corporation, or if a Director shall be entitled, under
applicable law or the Articles of Incorporation or Bylaws of the Corporation, to
be indemnified with respect to such action.
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ARTICLE XIII
SPECIAL MEETINGS OF THE SHAREHOLDERS
The Chairman of the Board of Directors, the President of the Corporation
or the Board of Directors may call special meetings of the shareholders for any
purpose. Further, a special meeting of the shareholders shall be held if the
holders of not less than twenty-five percent (25%) of all the votes entitled to
be cast on any issue proposed to be considered at such special meeting have
dated, signed and delivered to the Secretary of the Corporation one or more
written demands for such meeting, describing the purposes for which is to be
held.
DATED: , 1999
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--------------------------------------
William T. Baxter, President and
Chief Executive Officer
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EXHIBIT 3.2
AMENDMENTS TO BYLAWS
August 15, 1998:
Section 2 of Article V of the Company's Bylaws was amended as follows:
Section 2. Annual Meeting. Subject to the foregoing provisions, the date, the
time and location of the annual meeting of the shareholders shall be determined
each year by the Board of Directors. At said annual meeting, directors of the
Corporation shall be elected, reports of the affairs of the Corporation shall be
considered and any other business may be transacted which is within the powers
of the shareholders to transact.
<PAGE> 2
AMENDMENTS TO THE BYLAWS
January 29, 1998:
- - Section 2 of Article II of the Company's Bylaws was amended to increase
the number of directors on the Company's Board of Directors from three
to seven
- - Added Article X, which reads as follows:
ARTICLE X
INDEMNIFICATION
Section 1. Right to Indemnification
Each person who was, is or is threatened to be made a named
party to or is otherwise involved (including, without limitation, as a
witness) in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal (hereinafter a "proceeding"), by reason
of the fact that he or she is or was a Director or officer of the
corporation or, that being or having been such a Director or officer or
an employee 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 or of a partnership, joint
venture, trust, employee benefit plan or other enterprise (hereinafter
an "indemnitee"), whether the basis of a proceeding is alleged action
in an official capacity as such a Director, officer, partner, trustee,
employee or agent 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 expense,
liability and loss (including counsel fees, judgments, fines, ERISA
excise taxes or penalties and amounts to be paid in settlement)
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, officer, partner, trustee,
employee or agent and shall inure to the benefit of the indemnitee's
heirs executors and administrators. Except as provided in Section 2 of
this Article 10 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
Article shall be a contract right.
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Section 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, except that 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
2 shall be as set forth in such amended statutory provision.
Section 3. Advancement of Expenses
The right to indemnification conferred in this Article 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 for such
expenses under this Section 3.
Section 4. Right of Indemnitee to Bring Suit
If a claim under Section 1 or 3 of this Article 10 is not paid
in full by the corporation within sixty 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
twenty 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 prosecuting or defending such suit. The
indemnitee shall be presumed to be entitled to indemnification under
this Article upon submission of a written claim (and, in an action
brought to enforce a claim for an advancement of expenses, where 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.
Section 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 advancement of expenses set forth in this Article
are in lieu of the procedures
<PAGE> 4
required by Section 23B.08.550 or any successor provision of the
Washington Business Corporation Act.
Section 6. Nonexclusivity of Rights
The right to indemnification and the advancement of expenses
conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation or Bylaws of the
corporation, general or specific action of the Board, contract or
otherwise.
Section 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 or other enterprise against any expense, liability or
loss, whether or not the corporation would have the power to indemnify
such person against such expense, liability or loss under the
Washington Business Corporation Act. 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
Article 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 Article.
Section 8. Indemnification of Employees and Agents of the Corporation
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 (i) with
the same scope and effect as the provisions of this Article with
respect to the indemnification and advancement of expenses of Directors
and officers of the corporation; (ii) pursuant to rights granted
pursuant to, or provided by, the Washington Business Corporation Act;
or (iii) otherwise consistent with law.
Section 9. Personal Serving Other Entities
Any person who, while a Director, officer or employee of the
corporation, is or was serving (a) as a Director or officer of another
foreign or domestic corporation of which a majority of the shares
entitled to vote in the election of its Directors is held by the
corporation or (b) as a partner, trustee or otherwise in an executive
or management capacity in a partnership, joint venture, trust or other
enterprise of which the corporation or a wholly owned subsidiary of the
corporation is a general partner or has a majority ownership shall be
deemed to be so serving at the request of the corporation and entitled
to indemnification and advancement of expenses under Sections 1 and 3
of this Article 10.
<PAGE> 5
BYLAWS
OF
BSQUARE CONSULTING, INC.
ARTICLE I.
Place of Business
Section 1. PRINCIPAL LOCATION. The principal office of the corporation
for the transaction of business shall be at such location as the Board of
Directors shall determine from time to time.
Section 2. ADDITIONAL OFFICES. Additional business offices may be
established at such other places as the Board of Directors may from time to time
designate.
ARTICLE II.
Directors
Section 1. INITIAL BOARD OF DIRECTORS. Each member of the Initial Board
of Directors, appointed through the Articles of Incorporation, shall serve until
his death, resignation, until removed, or until a Board of Directors is elected
by the shareholders at the first shareholders meeting.
Section 2. NUMBER. The number of directors shall be not less than one
(1), with the exact number to be fixed from time to time by the Board of
Directors, provided that until otherwise changed by resolution of the Board of
Directors, the number of directors shall be three (3).
Section 3. TERM. The directors shall be elected at the annual meeting
of shareholders and each director shall be elected to serve for a term of one
(1) year; provided that in the event of failure to hold such meeting or to hold
such election at such meeting, the directors may be elected at any special
meeting of the stockholders called for that purpose.
Section 4. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors.
Section 5. NOTICES. Regular meetings of the Board of Directors may be
held without notice of the time, date, location or purpose of the meeting.
Special meetings shall be preceded by at least, two days notice of the time,
date and location of said meeting. Any notice of a meeting required to be given
or which may be given to a director shall be personally served or mailed by
United States Mail, postage prepaid, properly addressed to the last known
address of
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<PAGE> 6
such director and, if mailed, shall be deemed to be given and received three (3)
days following the date of mailing. Any director may waive notice of any
meeting, so long as said waiver is in writing, signed by the director entitled
to notice and delivered to the corporation for inclusion in the minutes of the
corporation. Notwithstanding the foregoing, attendance of a director at a
meeting shall constitute a waiver of notice of such meeting except where the
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened and where said director does not thereafter vote for or assent to any
action taken at the said meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 6. POWERS AND DUTIES. The Board of Directors shall be
responsible for the management of the business of the corporation, and, subject
to the restrictions imposed by law, by the Articles of Incorporation, or by
these Bylaws, may exercise all the powers of the corporation.
Section 7. COMMITTEES. By resolution adopted by a majority of the full
Board of Directors, the Board of Directors may appoint from among its members an
Executive Committee of not less than two nor more than five members, one of whom
shall be the President (who shall be the Chairman of the Executive Committee).
The Board of Directors may also designate one or more of its members as
alternates to serve as a member or members of the Executive Committee in the
absence of a regular member or members. The Executive Committee shall have and
may exercise all the authority of the Board of Directors during the intervals
between meetings of the Board of Directors, except that the Executive Committee
(and other committees) shall not have the authority to (1) declare dividends or
distributions, except according to a general formula or method prescribed by the
Board of Directors, (2) approve or recommend to shareholders actions or
proposals required by this title to be approved by shareholders, (3) fill
vacancies on the Board of Directors or any committee thereof, (4) amend the
Articles of Incorporation, (5) adopt, amend or repeal the Bylaws, (6) authorize
or approve the issuance or reacquisition of shares unless pursuant to general
formula or method specified by the Board of Directors, (7) fix compensation of
any director for serving on the Board of Directors or any committee, (8) approve
a plan of merger, consolidation or exchange of shares not requiring shareholder
approval, or (9) appoint other committees of the Board of Directors.
The Board of Directors may also appoint from among its own members such
other committees as the Board of Directors may determine, which shall in each
case consist of not less than two (2) directors, and which shall have such
powers and duties as shall from time to time be prescribed by the Board.
A majority of the members of any committee may fix its rules of
procedure. All actions by any committee shall be reported to the Board of
Directors at a meeting succeeding such action and shall be subject to revision,
alteration, and approval by the Board of Directors; provided that no rights or
acts of third parties shall be affected by any such revision or alteration.
Members of any committee may participate in a meeting of such committee
by means of a conference telephone or similar communications equipment by means
of which all persons
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participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
Section 8. SALARY. Directors may receive a salary for their services as
directors but any such salary must be approved by unanimous vote of all of the
directors. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity as an officer, agent or
otherwise and receiving compensation therefor so long as the compensation is
approved by the Board of Directors.
Section 9. VACANCY. Any vacancy that occurs in the Board of Directors
may be filled by a majority of the remaining directors or by the shareholders,
and each director so elected shall hold office until his successor is selected
at the next meeting of shareholders held for that purpose.
Section 10. CONSENT AND WAIVER OF NOTICE. Any transactions of the Board
of Directors at any meeting thereof, regardless of how or whether call was made
or notice given, shall be as valid as though transacted at a meeting duly held
after regular call and notice, if a quorum be present, and if, either before or
after the meeting, each of the directors entitled to vote and not present in
person sign a written waiver of notice, or a consent to the holding of such
meeting, or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the Secretary of this corporation and made a part
of the records of the meeting.
Whenever any notice whatsoever is required to be given under the
provisions of these Bylaws, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual giving of such notice.
Any action, which under any provision of these Bylaws might be taken at
a meeting of the directors, may be taken without a meeting if a record or
memorandum thereof be made in writing and signed by all of the directors who
would be entitled to vote at a meeting for such purpose and such record or
memorandum be filed with the Secretary and made a part of the corporate records.
A director who is present at a meeting at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as Secretary
before the adjournment of the meeting or shall forward such dissent by
registered mail to the Secretary immediately after the adjournment.
Section 11. CONFERENCE TELEPHONE CALLS. Members of the Board of
Directors may participate in a meeting of such Board by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
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ARTICLE III.
Officers
Section 1. APPOINTMENT AND QUALIFICATIONS. The officers of this
corporation shall consist of a President, and such other officers as may be
chosen by the Board of Directors. No officer shall execute, acknowledge or
verify any instrument in more than one capacity if such instrument be required
by law or these Bylaws to be executed, acknowledged or verified, as the case may
be, by any two or more officers, except that when all of the issued and
outstanding shares of the corporation is owned by one shareholder, one person
may hold all or any combination of offices and any such one person may execute,
acknowledge or verify any such instrument in more than one capacity.
Section 2. TERMS AND COMPENSATION. The terms of office and the salary
of each of said officers and the manner and time of the payment of such salaries
shall be fixed and determined by the Board of Directors and may be altered by
said Board from time to time, and at any time at its pleasure. Any officer may
be removed at any time by the Board.
ARTICLE IV.
Powers and Duties of Officers
Section 1. PRESIDENT. The powers and duties of the President shall be:
(1) To preside at all meetings of the Board of Directors or of the
shareholders, regular and special.
(2) Except when otherwise directed by the Board of Directors, to
affix the signature of the corporation to all deeds,
conveyances, mortgages, bonds, contracts and other instruments
in writing and other papers that may require the same, to sign
certificates of shares of the corporation; and in general to
supervise and control all of the business affairs of the
corporation. Subject to the direction of the Board of
Directors, the President shall supervise and control all
officers, agents and employees of the corporation. Unless
otherwise directed by the Board of Directors or by law, all
deeds, conveyances, mortgages, bonds, contracts and other
instruments of the corporation need only be signed by the
President and need not be signed by the Secretary or any other
officer of the corporation.
(3) To enforce these Bylaws and perform all of the duties incident
to the office and which are required by law.
Section 2. VICE-PRESIDENT. In case of the absence, disability or death
of the President, the Vice-President of this corporation, if the corporation
shall have a Vice President, shall have such powers and perform such duties as
may be granted or prescribed by the Board of Directors from time to time.
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At all times, the Vice-President shall have the power to countersign
such instruments, if any, as may by law require execution, acknowledgment, or
verification by two officers.
Section 3. SECRETARY. The powers and duties of the Secretary, if the
corporation shall have a Secretary shall be:
(1) To keep full and complete records of the meetings of the Board
of Directors and of the shareholders.
(2) To keep the seal of the corporation and to affix the same to
all instruments which may require it.
(3) To make service and publication of all notices that may be
necessary or proper, without command or direction from anyone.
To transfer upon the books of the corporation any and all shares;
provided, however, that no certificate of shares shall be issued or delivered,
or if issued or delivered, shall have any validity whatsoever, until and unless
it has been signed by the President of the corporation.
(4) Generally to have such powers and perform such duties as
pertain to his office and as may be required by the Board of
Directors.
Section 4. TREASURER. If the corporation shall have a Treasurer, the
Treasurer shall receive all moneys belonging to or paid into the corporation and
give receipts therefor; and shall deposit such moneys, as the treasurer shall be
directed by the Board of Directors, with one or more solvent and reputable banks
to be designated by the Board of Directors; and shall keep full and complete
records of the funds received and the disbursement thereof. The treasurer shall
render to the shareholders at the regular annual meeting thereof, and also to
the Board of Directors at any meeting thereof, or from time to time whenever the
Board of Directors or the President may require, an account of all transactions
as Treasurer and of the financial condition of the corporation, and shall
perform such other duties as may from time to time be prescribed by the Board of
Directors. The treasurer shall exhibit or cause to be exhibited the books of the
corporation to the Board of Directors, or to any committee appointed by the
Board, or to any director on application during business hours, or to any other
person entitled to inspect such books pursuant to pertinent provisions of the
Business Corporation Act of the State of Washington.
At all times, the Treasurer shall have the power to countersign such
instrument, if any, as may by law require execution, acknowledgment, or
verification by two officers.
The Treasurer shall have such powers and perform such duties as pertain
to the office of the treasurer and as may be required by the Board of Directors.
Section 5. OTHER OFFICERS. The Board of Directors may appoint such
other officers as the business of the Corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the Bylaws or as the Board of Directors may from time to time
determine.
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ARTICLE V.
Shareholders
Section 1. PLACE OF MEETING. Notwithstanding anything to the contrary
in these Bylaws, any meeting (whether annual, special or adjourned) of the
stockholders of this corporation may be held at any place within or without the
State of Washington which has been designated therefor by the Board of
Directors.
Section 2. ANNUAL MEETING. Subject to the foregoing provisions, the
annual meeting of the stockholders shall be held at the principal office of the
corporation in the City of Bellevue, State of Washington, at the hour of 9:00
a.m. on 15th day of February in each year, if not a legal holiday, and if a
legal holiday, then on the next succeeding business day not a legal holiday. At
said annual meeting, directors of the corporation shall be elected, reports of
the affairs of the corporation shall be considered and any other business may be
transacted which is within the powers of the stockholders to transact.
The corporation shall notify shareholders of the date, time and place
of each annual meeting and each special meeting of the shareholders. Said notice
shall be given no fewer than 10 nor more than 60 days before the meeting date,
except that notice of a shareholders' meeting to act on an amendment to the
Articles of Incorporation, a plan of merger or share exchange, a proposed sale
of assets pursuant to RCW 23B.12.020, or the dissolution of the corporation
shall be given no fewer than 20 nor more than 60 days before the meeting date.
In the case of a notice of a special meeting of shareholders, the notice shall
also include a description of the purpose or purposes for which the meeting is
called.
Notice of special meetings of stockholders shall be given by written
notice personally served on each shareholder, or deposited in the United States
mail, postage prepaid, and addressed to him at his last known post office
address appearing upon the books of the corporation. Such notice, if mailed,
shall be deemed to be given and received three (3) days following the date of
mailing.
In the event the annual meeting be not held, or the directors be not
elected thereat, the directors may be elected at a special meeting held for that
purpose, and it shall be the duty of the President, the Vice-President, or the
Secretary, upon the demand of any shareholder entitled to vote at such meeting,
to call such special meeting.
Section 3. SPECIAL MEETINGS. Subject to Section (2) of this Article,
special meetings of the shareholders may be called at any time by the President
or by the Board of Directors or by one or more shareholders holding not less
than one-tenth (1/10) of the voting power of the corporation.
Section 4. CONSENT AND WAIVER OF NOTICE. Any transactions of the
shareholders at any meeting thereof, regardless of how or whether call was made
or notice given, shall be as valid as though transacted at a meeting duly held
after regular call and notice, if a quorum be present, either in person or by
proxy, and if, either before or after the meeting, each of the shareholders
entitled to vote and not present in person or by proxy sign a written
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waiver of notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals shall be filed with
the Secretary and made a part of the records of the meeting.
Whenever any notice whatsoever is required to be given under the
provisions of these Bylaws, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the actual giving of such notice.
A shareholder's attendance at a meeting waives objection to lack of
notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting. A shareholder waives objection to consideration of a particular
matter at a meeting that is not within the purpose or purposes described in the
meeting notice unless the shareholder objects to consideration of the matter
when it is presented.
Any action, which under any provisions of these Bylaws might be taken
at a meeting of the shareholders, may be taken without a meeting if a record or
memorandum thereof be made in writing and signed by all of the holders of shares
who would be entitled to vote at a meeting for such purpose and such record or
memorandum be filed with the Secretary and made a part of the corporate records.
The consent shall have the same force and effect as a unanimous vote of
shareholders, and may be stated as such in any articles or document filed with
the Secretary of State.
Section 5. QUORUM, VOTING AND PROXIES. At all meetings of the
shareholders (whether annual, special or adjourned) the presence in person or by
proxy in writing of the holders of a majority of the shares entitled to vote at
that meeting shall constitute a quorum for the transaction of business. Each
share shall entitle the duly qualified and registered holder thereof to one
vote. All proxies shall be in writing subscribed by the party entitled to vote
the number of shares represented thereby, or by his duly authorized attorney,
and no such proxy shall be valid or confer any right or authority to vote or act
thereunder unless such proxy has been offered for filing to, and left with, the
Secretary of the corporation prior to the meeting at which the same is to be
used; provided, however, that in case any meeting of shareholders whatsoever
(whether annual, special or adjourned) shall have been for any cause adjourned,
proxies shall be valid and may be used at such adjourned meeting, which have
been offered for filing to, and left with the Secretary of the corporation prior
to the date upon which said adjourned meeting shall in fact be held.
Once a share is represented at a meeting for any purpose other than
solely to object to holding the meeting or transacting business at the meeting,
it is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment thereof, unless a new record date is or must be set for that
adjourned meeting.
An amendment to the Articles of Incorporation, adding, changing or
reducing a quorum for a voting group greater or lesser than the simple majority
specified above, or adding, changing or reducing a voting requirement from a
simple majority shall be governed by RCW 23B.07.270.
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Section 6. ADJOURNMENTS. Any business which might be transacted at an
annual meeting of the shareholders may be done at a special or at an adjourned
meeting. If no quorum be present at any meeting of the stockholders (whether
annual, special or adjourned) such meeting may be adjourned by those present
from day to day, or from time to time, until such quorum be obtained, such
adjournment and the reasons therefor being recorded in the journal or minutes of
proceedings of the stockholders, and no notice whatsoever need be given of any
such adjourned meeting if the time and place of such meeting be fixed at the
meeting adjourned.
Section 7. CONFERENCE TELEPHONE CALLS. Shareholders may participate in
a meeting of shareholders by means of a conference telephone call or similar
communication equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at a meeting.
ARTICLE VI.
Shares
Section 1. CLASS. The shares of this corporation shall consist of such
classes as may be authorized by the Articles of Incorporation as they may be
amended from time to time.
Section 2. CERTIFICATES. The shares of the corporation shall be
represented by certificates prepared by the Board of Directors and signed by two
officers of the corporation, unless the corporation has only one officer, in
which case certificates for shares shall be signed by said officer. Each
certificate shall be sealed with the seal of the corporation or a facsimile
thereof, if any. The certificates shall be numbered consecutively and in the
order in which they are issued; and a share register shall be maintained in
which shall be entered the name of the person to whom the shares represented by
each certificate are issued, the number and class or series of such shares, and
the date of issue. Each certificate shall state upon the face thereof (i) that
the corporation is organized under the laws of the state of incorporation, (ii)
the name of the person to whom issued, (iii) the number and class of the shares,
and the designation of the series, if any.
Section 3. SUBSCRIPTIONS. Subscriptions to the shares shall be paid at
such times and in such installments as the Board of Directors may determine. If
default be made in the payment of any installment as required by such
resolution, the Board may declare the shares and all previous payments thereon
forfeited for the use of the corporation, if such payment remains in default
twenty (20) days after written notice of the default has been sent to the
subscriber, or in such other manner prescribed by law.
Section 4. SHARE OPTIONS. The corporation may issue rights, options or
warrants for the purchase of shares of the corporation. The Board of Directors
shall determine the terms upon which the rights, options, or warrants are
issued, their form and content, and the consideration for which the shares are
to be issued.
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Section 5. RESTRICTION ON TRANSFER OF SHARES OR OTHER SECURITIES.
(a) The Articles of Incorporation, an agreement among shareholders, or
an agreement between shareholders and the corporation may impose restrictions on
the transfer or registration of transfer of shares. The restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction.
(b) A restriction on the transfer or registration of transfer of shares
is valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized and its existence is noted conspicuously on the front
or back of the certificate or is contained in the information statement. Unless
so noted, a restriction is not enforceable against a person without knowledge of
the restriction.
(c) A restriction on the transfer or registration of transfer of shares
is authorized:
(1) to maintain the corporation's status when it is dependent on
the number or identity of its shareholders;
(2) to preserve exemptions under federal or state securities law;
or
(3) for any other reasonable purpose.
(d) A restriction on the transfer or registration of transfer of shares
may:
(1) obligate the shareholder first to offer the corporation or
other persons (separately, consecutively, or simultaneously) an opportunity to
acquire the restricted shares;
(2) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted shares;
(3) require the corporation, the holders of any class of its
shares, or another person to approve the transfer of the restricted shares, if
the requirement is not manifestly unreasonable; or
(4) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not manifestly
unreasonable.
Section 6. RETURNED CERTIFICATES. All certificates for shares changed
or returned to the corporation for transfer shall be marked by the Secretary
"Cancelled" with the date of cancellation; and the transaction shall be
immediately recorded in the transfer book opposite the memorandum of their
issue. The returned certificates shall be retained by the corporation and filed
with the stock register.
Section 7. LOST CERTIFICATES. Any person claiming a certificate for
shares to be lost or destroyed shall make an affidavit or an affirmation of the
fact and shall advertise the same in such manner as the Board of Directors may
determine; and, if the directors require,
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shall give the corporation a bond of indemnity in form and with sureties
satisfactory to the Board, in an amount to be fixed by the Board whereupon a new
certificate may be issued of the same tenor and for the same number of shares as
the certificate alleged to be lost or destroyed.
ARTICLE VII.
Books and Records
Section 1. This corporation shall keep as permanent records minutes of
all meetings of its shareholders and board of directors, a record of all actions
taken by the shareholders or 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.
Section 2. This corporation shall maintain appropriate accounting
records.
Section 3. This corporation 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.
Section 4. This corporation shall maintain its records in written form
or in another form capable of conversion into written form within a reasonable
time.
Section 5. The corporation shall keep a copy of the following records
at its principal office:
(a) its articles or restated articles of incorporation and all
amendments to them currently in effect;
(b) its bylaws or restated bylaws and all amendments to them currently
in effect;
(c) the minutes of all shareholders' meetings, and records of all
action taken by shareholders' without a meeting, for the past three years;
(d) the financial statements prepared pursuant to RCW 23B.16.200, for
the past three years;
(e) all written communications to shareholders generally within the
past three years;
(f) a list of the names and business addresses of its current directors
and officers; and
(g) its most recent annual report delivered to the secretary of state.
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ARTICLE VIII.
Amendments
These Bylaws may be amended or repealed and new and additional Bylaws
may be made from time to time at any time by the Board of Directors.
ARTICLE IX.
Miscellaneous Provisions
Section 1. INSTRUMENTS IN WRITING. Notwithstanding any other provision
hereof, all checks, drafts and demands for money of the corporation shall be
signed by such officer or officers, agent or agents, as the Board of Directors
may from time to time by resolution designate. No officer, agent or employee of
the corporation shall have the power to bind the corporation by contract or
otherwise unless authorized to do so by the Board of Directors.
Section 2. FISCAL YEAR. The fiscal year of this corporation shall be
set by resolution of the Board of Directors.
KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, being the
Board of Directors of BSQUARE CONSULTING, INC., a Washington corporation,
organized and existing under the laws of the State of Washington, do hereby
certify that the foregoing code of Bylaws was duly adopted by resolution of the
Board of Directors of the corporation on the ___ day of July, 1994.
/s/ ALBERT T. DOSSER
---------------------------------------------
Albert T. Dosser, Director
/s/ PETER R. GREGORY
---------------------------------------------
Peter R. Gregory, Director
/s/ WILLIAM T. BAXTER
---------------------------------------------
William T. Baxter, Director
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