Kenneth D. Tolliver Susan Fisher Stevens
Joel E. Guthals J. Reuss
Virginia A. Bryan Jeffery A. Hunnes
Kristin L. Omvig
WRIGHT, TOLLIVER and GUTHALS, P.C.
ATTORNEYS AT LAW
Windsor Court
10 North 27th Street
P.O. Box 1977
BILLINGS, MONTANA 59103-1977
Telephone (406) 245-3071
Fax (406) 245-3074
e-mail: [email protected]
August 23, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Re: Big Sky Transportation Co.
Form 8-A Registration
Gentlemen:
On behalf of Big Sky Transportation Co., we transmit for filing a Form 8-A
Registration pursuant to 12(b) of the Securities and Exchange Act of 1934.
This Registration covers the Registrant's 1996 Series Common Stock, no par
value, which is being listed on the Pacific Stock Exchange in order to
implement a Plan of Recapitalization, described in the Registrant's Proxy
Statement which was definitively filed with the Commission on June 5, 1996.
Said shares are to be issued in exchange for the Registrant's existing common
stock, with $.10 par value per share, which is presently listed on the
Pacific Stock Exchange.
The Registrant has requested that the effective date of this Registration be
accelerated upon certification of the Pacific Stock Exchange. It is my
understanding that the Pacific Stock Exchange will contact the Commission no
later than August 26, 1996, and provide the necessary certification.
It is my understanding that the required filing fee of $250 for this
Registration should be charged by the Commission to the Registrant's account
with the Commission.
Should you have any questions or comments about this Registration, please
feel free to contact me.
Yours truly,
/S/ JOEL E. GUTHALS
Joel E. Guthals
JEG:bam
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
BIG SKY TRANSPORTATION CO.
(Exact Name of Registrant as Specified in Its Charter)
Montana 81-0387503
(State of Incorporation or Organization (I.R.S. Employer
Identification No.)
1601 Aviation Place
Billings MT 59105
(Address of Principal Executive Office) 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
1996 Series Common Stock, Pacific Stock Exchange
No par value
Securities to be registered pursuant to Section 12(g) of the Act: None
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
(a) Capital Stock.
Registrant is registering 1,041,360 shares of 1996 Series Common Stock,
no par value. Said shares are being issued in accordance with the
Registrant's Plan of Recapitalization in which the Registrant's existing
$.10 per share par value stock is being exchanged for the 1996 Series Common
Stock, no par value.
Registrant's $.10 par value common stock is presently listed on the
Pacific Stock Exchange. Following the Plan of Recapitalization, the
1996 Series Common Stock will be listed on the Pacific Stock Exchange in
place of the $.10 par value common stock.
The Plan of Recapitalization involves a 1/300 reverse stock split
followed by a 59/1 stock dividend, as more fully described in the proxy
statement which was definitively filed with the SEC on June 5, 1996. The Plan
of Recapitalization was approved at the annual meeting of the shareholders of
the Registrant on July 18, 1996,by a vote of 71.4% of all of the issued and
outstanding stock of the Registrant, being more than a two-thirds majority.
In accordance with the Plan of Reorganization, the Registrant filed
Articles of Amendment to the Articles of Incorporation of Big Sky
Transportation Co. on August 8, 1996, with the Secretary of State of Montana.
Registrant is now authorized to issue 20 million shares of common stock,
without par value, designated 1996 Series Common Stock.
The shares of 1996 Series Common Stock of the Registrant subject to this
Registration are shares exchanged by the Issuer exclusively with existing
securities holders, without commission or remuneration paid for promotional
activities in soliciting the exchange, and accordingly are exempt from
registration under 3(a)(9) of the Securities Act of 1933.
In accordance with SEC Rule 10b-17, the Registrant delivered a
Notification Pursuant to SEC Rule 10b-17 to the National Association of
Securities Dealers on August 9, 1996.
Continental Stock Transfer & Trust Co. has been designated as the
Exchange Agent for the Plan of Recapitalization.
The Registrant has executed a Listing Agreement with the Pacific Stock
Exchange for the 1996 Series Common Stock.
(1) Outline of Rights and Features. The 1996 Series Common Stock
is entitled to receive such dividends as declared by the Registrant's Board
of Directors in accordance with the Montana Business Corporation Act. It has
no special dividend rights. There are no terms of conversion. There are no
sinking fund provisions. There are no redemption provisions. Each share is
entitled to one vote in accordance with the Montana Business Corporations
Act. The Registrant's Articles of Incorporation provide for cumulative
voting for Directors, in which each stockholder accumulates votes for the
election of Directors. There are no classes of 1996 Series Common Stock.
There are no special liquidation rights. There are no preemptive rights.
There is no liability to further calls or to assessments by the Registrant
or for liabilities of the Registrant imposed on stockholders under state
statutes. There is no restriction on alienability of the securities to be
registered. There are no provisions discriminating against any existing or
prospective holder.
(2) Modification of Rights. The rights of holders of 1996 Series
Common Stock may be modified only upon a two-thirds majority vote of the
shareholders in accordance with the Montana Business Corporations Act.
(3) Preferred Stock Features. Not applicable.
(4) Limitation or Qualification of Rights. The 1996 Series Common
Stock, no par value, is to be issued only in exchange for the Registrant's
existing $.10 par value common stock upon delivery of existing stock to the
Exchange Agent. Registrant's existing $.10 par value common stock will be
retired. There are no other limitations or qualifications of the rights of
1996 Series Common Stock. Under its Articles of Incorporation, Registrant is
authorized to issue up to 3,500,000 shares of preferred stock, par value $.10
per share. No shares of preferred stock are outstanding. In the event that
preferred stock is issued, such stock may have superior rights to the 1996
Series Common Stock, depending upon rights and preferences established by the
Board.
(5) Provisions Affecting Change in Control or Extraordinary
Transactions. There are no provisions in the Registrant's charter or bylaws
that would have the effect of delaying, deferring, or preventing a change in
control of the Registrant, or extraordinary corporate transactions involving
the Registrant. The Montana Business Corporations Act imposes two-thirds
majority share voting requirements on extraordinary corporate transactions
and provides for dissenters' rights. Registrant complied with the provisions
of the Montana Business Corporation Act in obtaining approval of the Plan of
Recapitalization and Articles of Amendment to the Articles of Incorporation
through the vote of more than two-thirds of the issued and outstanding shares
of the Registrant's existing common stock and through the notification of all
shareholders of dissenters' rights.
Item 2. Exhibits.
List below all exhibits filed as a part of the Registration Statement:
Exhibit
1.1 Specimen of 1996 Series Common Stock Certificate.
2.1 Registrant's Articles of Incorporation, incorporating amendments.
2.2 Registrant's Amended and Restated Bylaws
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, thereunto duly authorized.
BIG SKY TRANSPORTATION CO.
Dated: August 22, 1996 By /S/ CRAIG DENNEY
Its Secretary
<PAGE>
BIG SKY TRANSPORTATION CO.
EXHIBIT INDEX
to
FORM 8-A
Exhibit
1.1 Specimen of 1996 Series Common Stock Certificate.
2.1 Registrant's Articles of Incorporation, incorporating amendments.
2.2 Registrant's Amended and Restated Bylaws
<PAGE>
(Number) 1966 Series
______ Common Stock
BIGSKY TRANSPORTATION CO. _____
CUSIP 089539 20 9
See reverse for certain definitions
THIS CERTIFIES THAT
is the registered holder(s) of
FULLY PAID AND NON-ASSESSABLE SHARES OF 1996 SERIES COMMON
STOCK,NO PAR VALUE PER SHARE OF
---------- BIGSKY TRANSPORTATION CO. ----------
transferable on the books of the Corporation by the holder hereof in person
or by Attorney upon surrender of this Certificate properly endorsed.
This certificate is not valid unless countersigned by the Transfer Agent and
Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
_________________________ [Corporate Seal] _____________________
Secretary President
Exhibit 1.1 - page 1
<PAGE>
BIGSKY TRANSPORTATION CO.
A statement of the rights, preferences, privileges and restrictions
granted to or imposed upon the respective classes or series of shares of stock
of the Corporation, and upon the holders thereof as established by the
Certificate of Incorporation or by any certificate of determination of
preferences, and the number of shares constituting each series or class and
the designations thereof may be obtained by any stockholder of the
Corporation upon request and without charge from the Secretary of State of
the Corporation at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT ________ Custodian _________
TEN ENT -as tenants by entireties (cust) (Minor)
JT TEN -as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act _________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ____________________ hereby sell, assign and transfer unto
Please insert social security or other
identifying number of assignee
(Please print or typewrite name and address, including zip cod, of assignee)
Shares of the Common Stock represented by the within certificate, and do
hereby irrevocably constitute and appoint_______________ Attorney to transfer
the said stock on the books of the within named Corporation with full power
of substitution in the premises.
Dated
Notice: The signature to this assignment must correspond with the name as
written upon the face of the certificate in every particular without
alteration or enlargement or any change whatever
Signature(s) Guaranteed:
By
The signatures should be guaranteed by an eligible guarantor
institution (Banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15
Exhibit 1.1 - p. 2
<PAGE>
ARTICLES OF INCORPORATION
OF
BIG SKY TRANSPORTATION CO.
INCORPORATING AMENDMENTS
The undersigned, a natural person of legal age, acting as incorporator of
a corporation under the Montana Business Corporation Act, adopts the
following Articles of Incorporation for such corporation:
FIRST:
The name of the corporation is BIG SKY TRANSPORTATION CO.
SECOND:
The period of its duration is perpetual.
THIRD:
The purpose or purposes for which the corporation is organized are:
(a) To operate a commercial common carrier airline passenger and freight
service and to do all things necessary, incident and related thereto.
(b) To exercise all corporate powers and privileges permitted by law,
including the ownership and use and disposition of real estate and personal
property, and the privilege of holding and dealing in securities; and
including further the power to be a promoter, partner, member, associate or
manager of any partnership, joint venture, trust or other enterprise.
(c) To have unlimited power to engage in and to do any lawful act concerning
any or all lawful business for which the corporation may be organized under
the Montana Business Corporation Act.
FOURTH:
The total number of shares which the Corporation shall have authority to
issue is 23,500,000 shares divided into 20,000,000 shares of common stock
without par value and 3,500,000 shares of preferred stock, par value 10 cents
per share. The Corporation shall not have the authority to issue non-voting
securities.
All shares of the Corporation's common stock, par value 10 cents per
share, outstanding as of August 23, 1996, consisting of 5,307,314 shares,
shall be converted, and surrendered for exchange in accordance with the
Corporation's Plan of Recapitalization adopted and approved by the
shareholders of the Corporation on July 18, 1996. As of August 23, 1996,
said issued and outstanding par value 10 cents per share common stock shall
have no further rights as to voting, dividends, or otherwise and may be
utilized only for the purpose of exchanging such shares for common stock
without par value or cash payments in accordance with the Plan of
Recapitalization.
All common shares issued after August 23, 1996, shall be designated 1996
Series Common Stock, without par value.
Holders of the Corporation's common stock, par value 10 cents per share,
shall have a period of two years following August 23, 1996, in which to
present their common stock, par value 10 cents per share, for exchange in
accordance with the Plan of Recapitalization. Any shares of par value
10 cents per share common stock of the Corporation which are not presented
for exchange within two years after August 23, 1996, shall have no further
rights except to be redeemed for the redemption price under and in accordance
with the Plan of Recapitalization upon presentation of such shares. The
Corporation shall establish an escrow fund to be utilized for such
redemptions on August 26, 1998.
Nothing provided in these Articles of Incorporation shall preclude any
employee of the Corporation from owning common or preferred shares of the
Corporation.
FIFTH:
No holder of any shares of the corporation shall have any preemptive
right to purchase, subscribe for, or otherwise acquire any shares of the
corporation of any class now or hereafter authorized, or any securities
exchangeable for or convertible into such shares, or any warrants or other
instruments evidencing rights or options to subscribe for, purchase, or
otherwise acquire such shares.
SIXTH:
Provisions for the regulation of the internal affairs of the corporation
are:
(a) The corporation may purchase its own shares of stock, directly or
indirectly, out of unreserved and unrestricted capital surplus available
therefor;
(b) The Board of Directors of the corporation may, from time to time,
distribute to the shareholders out of capital surplus of the corporation a
portion of its assets, in cash or property without consent or authorization
of the shareholders, but subject to the conditions otherwise imposed by the
Montana Business Corporation Act;
(c) The Board of Directors shall have the power to issue shares of common
stock, preferred stock, bonds, debentures, or other obligations convertible
into shares of any class, or bearing warrants or other evidences of optional
rights to purchase and/or subscribe to shares of any class, upon such terms,
in such manner and under such conditions as may be fixed by resolution of the
Board prior to the issue thereof.
SEVENTH:
The address of the registered office of the corporation is 1601 Aviation
Place, Billings, Montana, 59105, and the name of its registered agent at such
address is Terry D. Marshall.
EIGHTH:
The number of directors constituting the initial Board of Directors of
the corporation is four (4), and the names and addresses of the persons who
are to serve as directors until the first annual meeting of the shareholders
or until their successors are elected and shall qualify are:
NAME ADDRESS
H. V. HOLEMAN 1510 Ninth Street
Billings Montana 59102
JASE O. NORSWORTHY 2005 Poly Drive
Billings Montana 59102
GEORGE H. SELOVER 2804 Orchard Drive
Billings Montana 590102
SEABROOK PATES 1931 Mulberry Drive
Billings Montana 59102
NINTH:
The name and address of the incorporator is:
NAME ADDRESS
ROBERT H. PRIGGE 2230 Ridgeview Drive
Billings Montana 59101
TENTH:
Directors of the corporation shall not be liable to the corporation or
its shareholders, for money damages for any action taken, or any failure to
take any action, as a Director, except for:
(a) The amount of financial benefit received by a Director to which the
Director is not entitled;
(b) An intentional infliction of harm on the corporation or the shareholders;
(c) An unlawful distribution to shareholders; or,
(d) An intentional violation of criminal law.
CERTIFICATE
The undersigned, Secretary of Big Sky Transportation Co., does hereby certify
that the above-stated Articles of Incorporation of Big Sky Transportation Co.
Incorporating Amendments thereto are true and complete and are presently in
full force and effect.
DATED this 22nd day of August, 1996.
/s/ CRAIG DENNEY
Craig Denney, Secretary
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
BIG SKY TRANSPORTATION CO.
a Montana corporation
ARTICLE I. OFFICES
Section 1.1 Principal Offices. The principal office of the corporation
in the State of Montana shall be located in the City of Billings, County of
Yellowstone. The corporation may have such other offices, either within or
without the State of Montana, as the Board of Directors may designate or as
the business of the corporation may require from time to time.
Section 1.2 Registered Office. The registered office of the
corporation shall be located within the State of Montana. The location of
the registered office may be, but need not be, identical with the principal
office in the State of Montana, and the address of the registered office may
be changed from time to time by the Board of Directors. The registered agent
of the corporation in the State of Montana shall have a business office
identical with the corporation's registered office.
ARTICLE II. SHAREHOLDERS
Section 2.1 Annual Shareholder Meeting. The annual meeting of the
shareholders shall be held the third (3rd) Thursday in the month of January
of each year, at the hour of 3:30 P.M., for the purposes of electing
Directors and for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Montana, such meeting shall be held on the next
succeeding business day. If the election of Directors shall not be held on
the day designated herein for any annual meeting of the shareholders, or at
any adjournment thereof, the Board of Directors shall cause the election to
be held at a special meeting of the shareholders as soon thereafter as
possible.
Section 2.2 Special Shareholder Meetings. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice,
may be called by the President or by the Board of Directors, and shall
be called by the President at the request of the holders of not less than
one-tenth (1/10th) of all of the corporation's outstanding votes that are
entitled to be cast on any issue at the meeting.
Section 2.3 Place of Shareholder Meeting. The Board of Directors may
designate any place, either within or without the State of Montana, as the
place of meeting for any annual meeting or for any special meeting called by
the Board of Directors. A waiver of notice signed by all shareholders
entitled to vote at a meeting may designate any place, either within or
without the State of Montana, as the place for the holding of such meeting.
If no designation is made, or if a special meeting be otherwise called, the
place of meeting shall be the principal office of the corporation in the
State of Montana.
Section 2.4 Notice of Shareholder Meeting.
(a) Required Notice. At the direction of the President, the Board of
Directors, or other persons calling the meeting, the Secretary of the
corporation shall deliver written notice of the shareholder meeting to
each record shareholder entitled to vote at the meeting. The Secretary shall
also deliver written notice of the meeting to any other shareholder entitled
by the Montana Business Corporation Act to receive notice of the meeting.
The written notice shall state the date, time and place of any annual or
special shareholder meeting. The Secretary shall deliver the notice, either
personally or by mail, not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Notice shall be deemed to be effective at
the earlier of the following:
(1) the date when the notice was deposited in the United States mail, if
mailed postpaid and correctly addressed to the shareholder at the
shareholder's address as it appears on the corporation's stock transfer
books;
(2) 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;
(3) the date when received; or
(4) the date five (5) days after deposit in the United States mail, if mailed
postpaid and correctly addressed to an address other than that shown in the
corporation's current record of shareholders.
(b) Adjourned Meeting. If the shareholders adjourn any shareholder meeting
to a different date, time, or place, the Secretary need not give notice of
the new date, time and place, if the new date, time, and place is announced
at the meeting before adjournment. But if the Board of Directors fix a new
record date for the adjourned meeting, or must fix one pursuant to
Section 2.5, then the Secretary must give notice, in accordance with the
requirements of paragraph (a) of this Section, to those persons who are
shareholders as of the new record date.
(c) Waiver of Notice. A shareholder entitled to a notice may waive notice of
the meeting, by a writing signed by the shareholder. The shareholder must
send the notice of waiver to the corporation, either before or after the date
and time stated in the notice, for inclusion in the minutes or filing with the
corporate records.
A shareholder's attendance at a meeting:
(1) waives the shareholder's right to object 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.
(2) waives the shareholder's right to object to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
(d) Contents of Notice. Unless required by this Section or by law, the
notice of an annual shareholder meeting need not include a description of the
meeting's purpose or purposes. However the notice of each special
shareholder meeting shall include a description of the meeting's purpose or
purposes.
Regardless of whether the notice is of an annual or special shareholder
meeting, if a purpose of the meeting is for the shareholders to consider
either:
(1) a proposed amendment to the articles of incorporation (including any
restated articles requiring shareholder approval);
(2) a plan of merger or share exchange;
(3) the sale, lease, exchange or other disposition of all, or substantially
all of the corporation's property;
(4) the dissolution of the corporation; or
(5) the removal of a Director,
then the notice must state this purpose and be accompanied, if applicable, by
a copy or summary of the:
(1) articles of amendment;
(2) plan of merger or share exchange; and
(3) transaction for disposition of all the corporation's property.
If the proposed corporate action creates dissenters' rights, then the
notice of the shareholder meeting must state that shareholders are, or may be,
entitled to assert dissenters' rights; in addition, the notice must be
accompanied by a copy of the sections of the Montana Business Corporation Act
governing dissenters' rights.
If the President issues or the Board of Directors authorize the issuance
of shares for promissory notes or for promises to render services in the
future, the corporation shall report in writing to all the shareholders the
number of shares issued or authorized, and the amount of consideration that
the corporation received in the exchange; the Secretary must send this
information with or before the notice of the next shareholder meeting.
Likewise, if the corporation indemnifies or advances expenses to a
Director as defined by the Montana Business Corporation Act the Secretary
shall report this information in writing to all the shareholders with or
before notice of the next shareholder meeting.
Section 2.5 Fixing of Record Date.
(a) Purpose of Fixing a Record Date. The Board of Directors may fix in
advance a date, referred to as the record date, for the purpose of
determining which shareholders, individually or as members of any
voting group, as of a certain date, are entitled to receive notice of a
shareholder meeting. The Board of Directors may also fix this record date
for the purpose of determining which shareholders individually or as
members of any voting group are entitled to vote at any meeting of
shareholders, or to determine which shareholders are entitled to receive
payment of any distribution or dividend, or to determine which shareholders
belong in a group for any other proper purpose. The record date shall not be
more than seventy (70) days prior to the date on which the particular action,
requiring a determination of shareholders, is to be taken.
(b) If No Record Date Is Fixed. If the Board of Directors does not fix a
record date for the purposes described in paragraph (a) of this section, then
the record date for determination of the shareholders shall be at the close
of business on one of the following:
(1) With respect to an annual shareholder meeting or any special shareholder
meeting properly called, the day before the Secretary of the corporation
delivers the first notice to the shareholders;
(2) With respect to a special shareholder meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(3) With respect to the payment of a share dividend, the date the Board
authorized the share dividend;
(4) With respect to actions taken without a meeting pursuant to Section 2.11,
the date the first shareholder signs a consent;
(5) And with respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date the Board
authorizes the distribution.
(c) Fixed Record Dates and Adjournment. When the Board of Directors sets a
record date to determine which shareholders are entitled to vote at any
shareholder meeting, as provided in this section, the determination shall
apply to any adjournment unless the Board of Directors fixes a new record
date. The Board of Directors shall set a new record date if the meeting is
adjourned to a date more than one hundred twenty (120) days after the date
fixed for the original meeting.
Section 2.6 Shareholder Lists. The officer or agent maintaining the
stock transfer books for shares of the corporation shall make available a
complete record of the shareholders entitled to vote at each shareholder
meeting. The record shall include the address of and the number of shares
held by each shareholder. The shareholder list must be available for
inspection by any shareholder, beginning two (2) business days after the
Secretary gives notice of the meeting for which the list was prepared.
The list will continue to be available throughout the meeting. The list
shall be located for inspection at the corporation's principal office or at
a place identified in the meeting notice in the city where the meeting is to
be held.
Section 2.7 Shareholder Quorum and Voting Requirements. A majority of
the outstanding shares of the corporation entitled to vote on a matter,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders for action on that matter. If less than a majority of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the
meeting as originally noticed. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
If a quorum exists, action on a matter (other than the election of
Directors) is approved if the votes cast favoring the action exceed the votes
cast opposing the action, unless the Montana Business Corporation Act
requires a greater number of affirmative votes.
Section 2.8 Proxies. At all meetings of shareholders, a shareholder
may vote in person or by proxy executed in writing by the shareholder or by
his duly authorized attorney in fact. An appointment of a proxy is effective
when received by the Secretary of the corporation before or at the time of
the meeting. No proxy shall be valid after eleven months from the date of
its execution, unless otherwise provided in the proxy.
Every proxy is revocable at the pleasure of the shareholder executing it,
unless the appointment form conspicuously states that it is irrevocable and
the appointment is coupled with an interest. An appointment made
irrevocable herein is revoked when the interest with which it is coupled is
extinguished. Appointments coupled with an interest include the appointment
of:
(a) a pledgee;
(b) a person who purchased or agreed to purchase the shares;
(c) a creditor of the corporation who extended it credit under terms
requiring the appointment;
(d) an employee of the corporation whose employment contract requires the
appointment; or
(e) a party to a voting agreement.
The death or incapacity of a shareholder appointing a proxy does not affect
the right of the corporation to accept the proxy's authority unless notice of
the death or incapacity is received by the Secretary before the proxy
exercises the proxy's authority under the appointment. A shareholder may not
sell his vote or issue a proxy to vote to any person for any sum of money or
anything of value, except as authorized in this Section and by law.
Section 2.9 Voting of Shares. Except as otherwise provided by these
bylaws or the provisions of the Montana Business Corporation Act, each
outstanding share entitled to vote shall be entitled to one vote upon
each matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
Directors of such other corporation are held by the corporation, shall
be voted at any meeting or counted in determining the total number of
outstanding shares at any given time for purposes of any meeting. Provided,
however, the prior sentence shall not limit the power of the corporation
to vote any shares, including its own shares, held by it in a fiduciary
capacity.
Redeemable shares are not entitled to vote after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under a
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 2.10 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver, or proxy appointment
corresponds to the name of a shareholder, the corporation if acting in good
faith is entitled to accept the vote, consent, waiver, or proxy appointment
and give it effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver, or proxy appointment does
not correspond to the name of its shareholder, the corporation if acting in
good faith is nevertheless entitled to accept the vote, consent, waiver, or
proxy appointment and give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the Montana Business
Corporation Act and the name signed purports to be that of an officer or
agent of the entity;
(2) the name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, or proxy appointment;
(3) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment;
(4) the name signed purports to be that of a pledgee, beneficial owner, or
attorney-in-fact of the shareholder and, if the corporation requests,
evidence acceptable to the corporation of the signatory's authority to sign
for the shareholder has been presented with respect to the vote, consent,
waiver or proxy appointment.
(5) two or more persons are the shareholder as co-tenants or fiduciaries and
the name signed purports to be the name of at least one of the co-owners and
the person signing appears to be acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the Secretary or other officer or agent authorized to tabulate
votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
(d) The corporation and its officer or agent who accepts or rejects a vote,
consent, waiver, or proxy appointment in good faith and in accordance with
the standards of this Section are not liable in damages to the shareholder
for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote, consent,
waiver, or proxy appointment under this Section is valid unless a court of
competent jurisdiction determines otherwise.
Section 2.11 Informal Action of Shareholders. The shareholders may act
on any matter generally required or permitted at a shareholder meeting,
without actually meeting, if all shareholders entitled to vote on the subject
matter sign one or more written consents to the action. The shareholders must
deliver the consents to the corporation for inclusion in the minutes or
filing with the corporate records.
Section 2.12 Voting for Directors--Cumulative Voting. In all elections
of Directors, each shareholder shall be entitled to as many votes as shall
equal the number of the shareholder's shares multiplied times the number of
Directors to be elected. The shareholders may cast all such votes for a
single Director or may distribute them among the number to be voted for, any
two or more of them, as the shareholders may desire.
Directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.
ARTICLE III. BOARD OF DIRECTORS
Section 3.1 General Powers. All corporate powers shall be exercised by
or under authority of and the business and affairs of the corporation shall
be managed under the direction of the Board of Directors except as may be
otherwise provided in the Articles of Incorporation or by law.
Section 3.2 Duties of Directors. A Director shall perform his duties
as a Director, including his duties as a member of any committee of the board
upon which he may serve, in good faith, in a manner he reasonably believes to
be in the best interests of the corporation, and with such care as an
ordinarily prudent person in asimilar position would exercise under similar
circumstances. In discharging his duties, a Director is entitled to rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by:
(a) one or more officers or employees of the corporation whom the Director
reasonably believes to be reliable and competent in the matters presented;
(b) attorneys, public accountants, or other persons as to matters that the
Director reasonably believes are within such person's professional or expert
competence; or
(c) a committee of the Board of Directors of which the Director is not a member
if the Director reasonably believes the committee merits confidence.
A Director may not be considered to be acting in good faith if he has knowledge
concerning the matter in question that would cause such reliance otherwise
permitted by this Section to be unwarranted. A Director is not liable for
any action taken as a Director or for any failure to take any action if he
performed the duties of the Director's office in compliance with this Section.
Section 3.3 Number, Tenure and Qualifications of Directors. The Board
of Directors shall consist of not less than four (4) nor more than nine
(9) persons elected by the shareholders. Each director shall hold office
until the next annual meeting of shareholders or until his/her successor shall
have been elected and qualified. It shall not be necessary for any director
to be a resident of the State of Montana or a shareholder of the Corporation.
Section 3.4 Regular Meetings of Board. The Board of Directors shall
hold a regular meeting immediately before and/or after the annual meeting of
shareholders, as the Board shall announce, at the regular meeting place of
the Board. No notice of the meeting other than this Bylaw is required. The
Board of Directors may provide, by resolution, the date, time and place,
either within or without the State of Montana, for the holding of additional
regular meetings without other notice than such resolution. Regular Board of
Director meetings may be held by conference telephone, if convened in
accordance with Section 3.6 below.
Section 3.5 Special Meetings of Board. Special meetings of the Board of
Directors or any committee designated thereby, may be called by or at the
request of the President or any one Director. The person or persons
authorized to call special meetings of the Board of Directors or any committee
designated thereby may fix any place, either within or without the State of
Montana, as the place for holding any special meeting of the Board of
Directors called by them. Special Board of Director meetings may be held by
conference telephone, if convened in accordance with Section 3.6 below.
Section 3.6 Board of Director Meetings by Conference Telephone. Members
of the Board of Directors or any committee designated thereby may participate
in a meeting of such board or committee by means of a conference telephone
or similar communications equipment provided all persons entitled to
participate in the meeting receive proper notice of the telephone meeting
and provided all persons participating in the meeting can hear each other at
the same time. A Director participating in a conference telephone meeting
is deemed present in person at the meeting.
Section 3.7 Notice of Special Director Meetings. The corporation's
Secretary shall give written notice of any special Director meeting at least
two (2) days before the meeting. The notice shall include the meeting
date, time and place. Generally regular meetings do not require notice other
than the notice provided by Section 3.4; however, if the meeting is to be
held by conference telephone, the Secretary must provide instructions for
participating in the telephone meeting. Written notice may be given by
telegraph, teletype, facsimile, mail, private carrier or any other means of
written communciation authorized by the Board. Notice of any Director
meeting shall be deemed to be effective at the earlier of:
(a) when received;
(b) five (5) days after deposited in the United States mail, addressed to the
Director's business office, with postage prepaid; or
(c) 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 Director. Neither the Secretary nor any Director needs to specify in the
notice or waiver of notice the business to be transacted at, or the purpose
of, any special Board meeting.
Section 3.8 Waiver of Notice of Director Meetings. Any Director may
waive notice of any meeting. The waiver must be in writing, signed by the
Director entitled to the notice, and filed with the minutes or corporate
records.
A Director's attendance at a meeting waives the Director's right to
object to lack of notice or defective notice of the meeting; this shall be
true unless the Director, at the beginning of the meeting, or promptly upon
arrival, objects to holding the meeting or transacting business at the
meeting, and does not vote for or assent to action taken at the meeting.
Section 3.9 Director Quorum. A majority of the number of Directors fixed
by Section 3.3 shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than such majority is present
at a meeting, a majority of the Directors present may adjourn the meeting
from time to time without further notice.
Section 3.10 Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the
Board of Directors.
The corporation shall deem a Director to have assented to the action
taken if the Director is present at a meeting of the Board or a committee of
the Board unless:
(a) the Director objects at the beginning of the meeting, or promptly upon
arrival, to holding it or transacting business at the meeting; or
(b) the Director's dissent or abstention from the action taken is entered in
the minutes of the meeting; or
(c) the Director delivers written notice of dissent or abstention to the
presiding officer of the meeting before its adjournment or to the corporation
immediately after adjournment of the meeting.
The right of dissent or abstention is not available to a Director who votes in
favor of the action taken.
Section 3.11 Director Action Without a Meeting. The Directors may act on
any matter generally required or permitted at a Board meeting, without
actually meeting, if: all the Directors take the action, each one signs a
written consent describing the action taken, and the Directors file all the
consents with the records of the corporation. Action taken by consent is
effective when the last Director signs the consent, unless the consent
specifies a different effective date. A signed consent has the effect of a
meeting vote and may be referred to as a meeting vote in any document.
Section 3.12 Removal of Directors. The shareholders may remove one or
more Directors at a meeting called for that purpose if the Secretary has
given notice to all shareholders entitled to vote. The removal may be with
or without cause. If less than the entire Board is to be removed, a Director
may not be removed if (a) the number of votes sufficient to elect him or her
under cumulative voting is voted against his or her removal, or (b) the
number of votes cast for removal is less than two-thirds (2/3rds) of the
number of votes entitled to vote. The entire Board of Directors of the
corporation may be removed only by a vote of the holders of two-thirds
(2/3rds) of the shares entitled to vote.
Section 3.13 Board of Director Vacancies. If a vacancy occurs on the
Board of Directors, including a vacancy resulting from an increase in the
number of Directors, the shareholders may fill the vacancy. During the time
that the shareholders fail or are unable to fill the vacancies, then and until
the shareholders act:
(a) the Board of Directors may fill the vacancy; or
(b) if the Directors remaining in office constitute fewer than a quorum of
the Board, they may fill the vacancy by the affirmative vote of a majority of
all the Directors remaining in office.
If a Director resigns effective at a specific later date, the
shareholders may fill the vacancy, before the vacancy occurs, but the new
Director may not take office until the vacancy actually occurs.
When the shareholders elect a Director to fill a vacancy, the Director's
term expires at the next shareholders' meeting at which shareholders elect
Directors. However, if the Director's term expires prior to the next
shareholders' meeting to elect Directors, the Director shall continue to serve
until the Board of Directors elect and qualify a successor (in accordance
with Section 3.13 (a) & (b)) or until there is a decrease in the number of
Directors.
Section 3.14 Resignation. A Director may resign at any time by
delivering written notification thereof to the President or Secretary of the
corporation. Resignation shall be effective upon delivery unless the notice
specifies a later effective date.
Section 3.15 Compensation. By resolution of the Board of Directors, each
Director may be paid his expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a stated salary as Director or a
fixed sum for attendance at each meeting of the Board of Directors or both.
No such payment shall preclude any Director from serving the corporation in
any other capacity and receiving compensation therefor.
Section 3.16 Liability of Directors. In addition to any other
liabilities, a Director who votes for or assents to any distribution contrary
to law or contrary to any restrictions contained in the Articles of
Incorporation shall, unless he complies with the standard provided in
Section 3.2 for the performance of the duties of Directors, be liable to the
corporation, for the amount of the distribution in excess of the amount of
such distribution which could have been made without a violation of law or
any restrictions in the Articles of Incorporation. Any Director held liable
for an unlawful distribution under this Section 3.16 shall be entitled
to contribution:
(a) from every other Director who voted for or assented to the distribution
and who did not comply with the applicable standards of conduct described in
Section 3.2; and
(b) from each shareholder for the amount the shareholder accepted if the
shareholder knows the distribution was made in violation of the Montana
Business Corporation Act or the Articles of Incorporation.
ARTICLE IV. COMMITTEES
Section 4.1 Executive Committee. The Board of Directors may appoint
from among its members an Executive Committee of not less than two members,
one of whom shall be the President, and shall designate one of such members
as Chairman. The Board may also designate one or more of its members as
alternates to serve as members of the Executive Committee in the absence of
a regular member or members, subject to the limitations of authority outlined
in Section 4.5 below. The Executive Committee shall possess and exercise
all other powers of the Board of Directors during the intervals between
meetings, subject to the limitations of authority outlined in Section 4.5
below.
Section 4.2 Other Committees. The Board of Directors may appoint from
among its own members such 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 of Directors. A majority of the members
of the committee may fix its rules of procedure.
Section 4.3 Selection of Members. To create a committee and appoint
members, the Board must acquire approval by the greater of (1) a majority of
all the Directors in office when the action is taken or (2) the number of
Directors required by Section 3.10 to take action.
Section 4.4 Required Procedures. Sections 3.4 through 3.11 governing
meetings, action without meetings, notice and waiver, quorum and voting
requirements apply to committees and their members. The committees are
subject to all procedural rules governing the operation of the Board itself.
Section 4.5 Authority. Each committee may exercise the specific Board
authority which the Board of Directors confers upon the committee in the
resolution creating the committee. No committee shall have the authority
to:
(a) authorize distributions;
(b) approve or propose to shareholders action that the Montana Business
Corporation Act requires be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of its committees;
(d) amend the Articles of Incorporation;
(e) adopt, amend, or repeal bylaws;
(f) approve a plan of merger not requiring shareholder approval;
(g) authorize or approve reacquisition of shares, except according to a
formula or method prescribed by the Board of Directors; or
(h) authorize or approve the issuance or sale or contract for sale of shares
or determine the designation and relative rights, preferences, and limitations
of a class or series of shares, except that the Board of Directors may
authorize a committee (or a senior executive officer of the corporation) to
do so within limits specifically prescribed by the Board of Directors.
ARTICLE V. OFFICERS
Section 5.1 Number. The officers of the corporation shall be a
President, one or more Vice-Presidents (the number thereof to be determined
by the Board of Directors), a Secretary, and a Treasurer, each of whom shall
be elected by the Board of Directors. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board
of Directors. The same individual may simultaneously hold more than one
office in the corporation.
Section 5.2 Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by the Board of Directors at the first meeting of the Board of Directors
held after each annual meeting of the shareholders. If the election of
officers shall not be held at such meeting, such election shall be held as
soon thereafter as possible. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or until his
death, resignation or removal in the manner provided in Section 5.3 below.
The designation of a specified term does not grant to the officer any
contract rights, and the Board can remove the officer at any time prior to
the termination of such term.
Section 5.3 Removal of Officers. Any officer or agent may be removed by
the Board of Directors with or without cause. Such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election
or appointment of an officer or agent shall not of itself create contract
rights.
Section 5.4 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
Section 5.5 Resignation. Any officer may resign at any time by
delivering written notification thereof to the President or Secretary of the
corporation. Resignation shall become effective upon delivery unless the
notice specifies a later effective date.
Section 5.6 President. The President shall be the principal executive
officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. If for any reason no Chairman or Vice-Chairman
of the Board has been elected or is in attendance, the President shall
preside at all meetings of the shareholders and of the Board of Directors.
He may sign, with the Secretary or any other officer of the corporation
thereunto authorized by the Board of Directors, certificates for shares of
the corporation, and deeds, mortgages, bonds, contracts, or other instruments
which the Board of Directors has authorized to be executed, except in cases
where the signing and execution thereof shall be expressly delegated by the
Board of Directors or by these bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed.
In general the President shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of
Directors from time to time. The President shall vote all shares owned by the
corporation in another corporation, unless the Board of Directors expressly
delegates the authority to vote such shares to some other officer or person.
Section 5.7 Vice-Presidents. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice-President (or in
the event there be more than one Vice-President, the Vice-Presidents
in the order designated at election) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Any Vice-President may sign,
with the Secretary or any other officer of the corporation thereunto
authorized by the Board of Directors, certificates for shares of the
corporation that have been authorized by Board resolution. The
Vice-President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 5.8 Secretary. The Secretary shall:
(a) keep the minutes of the proceedings of the shareholders and of the Board
of Directors in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the provisions of
these bylaws or as required by law;
(c) be custodian of the corporate records and of the seal of the corporation
and see that the seal of the corporation is affixed to all documents the
execution of which on behalf of the corporation under its seal is duly
authorized;
(d) when requested or required, authenticate any records of the corporation;
(e) keep a current register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder;
(f) sign with the President, or a Vice-President, certificates for shares of
the corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors;
(g) have general charge of the stock transfer books of the corporation; and
(h) in general perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the
President or by the Board of Directors.
Section 5.9 Treasurer. The Treasurer shall:
(a) have charge and custody of and be responsible for all funds and
securities of the corporation;
(b) receive and give receipts for moneys due and payable to the corporation
from any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of Article VII of these bylaws;
and
(c) in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the
President or by the Board of Directors.
If required by the Board of Directors, the Treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
Section 5.10 Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries, when authorized by the Board of Directors, may sign
with the President or a Vice-President certificates for shares of the
corporation the issuance of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers, when
authorized by the Board of Directors, shall respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their duties and
as insurance against the misappropriation of funds; in such sums and with
such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties
as shall be assigned to them by the Secretary or the Treasurer, respectively,
or by the President or the Board of Directors.
Section 5.11 Chairman of the Board. The Chairman of the Board, when such
an office is authorized by the Board of Directors, shall, if present,
preside at all meetings of the shareholders and of the Board of Directors,
and shall, in general, perform all duties incident to the office of Chairman
of the Board and such other duties as from time to time may be assigned to
him by the Board of Directors.
Section 5.12 Vice-Chairman of the Board. The Vice-Chairman of the Board,
when such an office is authorized by the Board of Directors, shall, in the
absence of the Chairman of the Board, or in the event of his death, inability
or refusal to act, perform the duties of the Chairman of the Board and such
other duties as from time to time may be assigned to him by the Board of
Directors.
Section 5.13 Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
corporation or serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES
Section 6.1 Indemnification of Directors. The corporation shall
indemnify any individual made a party to a proceeding because he is or was a
Director of the corporation, against liability incurred in the proceeding,
but only if such indemnification is both (i) determined permissible and
(ii) authorized, as defined in subsection (a) of this Section 6.1. (Such
indemnification is further subject to the limitation specified in
subsection(c).)
(a) Determination and Authorization. The corporation shall not indemnify a
Director under Section 6.1 unless:
(1) Determination. A determination has been made in accordance with the
procedures set forth in Montana Business Corporation Act that the Director
met the standard of conduct set forth in subsection (b) below, and
(2) Authorization. Payment has been authorized in accordance with the
procedures set forth in the Montana Business Corporation Act based on a
conclusion that the expenses are reasonable, the corporation has the
financial ability to make the payment, and the financial resources of the
corporation should be devoted to this use rather than some other use by the
corporation.
(b) Standard of Conduct. The individual shall demonstrate that:
(1) the individual acted in good faith; and
(2) the individual reasonably believed:
(i) in acting in an official capacity with the corporation, that the
individual's conduct was in the corporation's best interests;
(ii) in all other cases, that the individual's conduct was at least not
opposed to the corporation's best interests; and
(iii) in the case of any criminal proceeding, that the individual had
no reasonable cause to believe that the conduct was unlawful.
(c) No Indemnification Permitted in Certain Circumstances. The corporation
shall not indemnify an individual under Section 6.1 if:
(1) the individual was adjudged liable to the corporation in a proceeding by
or in the right of the corporation; or
(2) the individual was adjudged liable in any other proceeding charging that
the Director improperly received personal benefit, whether or not the
individual acted in an official capacity.
(d) Indemnification in Derivation Actions Limited. Indemnification permitted
under Section 6.1 in connection with a proceeding by the corporation or in
the right of the corporation is limited to the reasonable expenses incurred
in connection with the proceeding.
Section 6.2 Advance Expenses for Directors. The company shall pay for or
reimburse, in advance of final disposition of the proceeding, the reasonable
expenses incurred by a Director who is a party to a proceeding if:
(a) by following the procedures of the Montana Code Annotated, the Board of
Directors determined that the Director met requirements (c) - (e) listed
below; and
(b) by following the procedures and standards set forth in the Montana Code
Annotated, the Board of Directors authorized an advance payment to a
Director; and
(c) the Director has furnished the corporation with a written affirmation of
the Director's good faith belief that the Director has met the standard of
conduct described in Section 6.1; and
(d) the Director has provided the corporation with a written undertaking,
executed personally or on the Director's behalf, to repay the advance if it
is ultimately determined that the Director did not meet the standard of
conduct; the Director's undertaking must be an unlimited general obligation,
but need not be secured, and the corporation may accept the undertaking
without reference to financial ability to make repayment; and
(e) the Board of Directors determines that the facts then known to it would
not preclude indemnification under Section 6.1 or the Montana Business
Corporation Act.
Section 6.3 Indemnification of Officers, Agents and Employees. The
Board of Directors, by Board resolution, may elect to indemnify and advance
expenses to any officer, employee, or agent of the corporation, who is not
a Director of the corporation, to any extent consistent with public policy.
Section 6.4 Mandatory Indemnification. Notwithstanding any other
provisions of these bylaws, the corporation shall indemnify a Director or
officer who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the Director was a party because he or she
is or was a Director or officer of the corporation, against reasonable
expenses incurred by the Directors or officers in connection with the
proceeding.
ARTICLE VII. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 7.1 Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation,
and such authority may be general or specific.
Section 7.2 Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such
authority may be general or specific.
Section 7.3 Checks and Drafts. All checks, drafts, other orders for the
payment of money, notes or other evidences of indebtedness, issued in the
name of the corporation shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 7.4 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories as the Board
of Directors may select.
ARTICLE VIII. CERTIFICATES FOR SHARES AND THEIR TRANSFERS
Section 8.1 Certificates for Shares.
(a) Content. Certificates representing shares of the corporation shall at
minimum, state on their face:
(1) the name of the corporation;
(2) that the corporation is formed under the laws of Montana;
(3) the name of the person to whom issued; and
(4) for the number and class of shares and the designation of the series, if
any, that the certificate represents.
The Board of Directors shall determine the exact form of the certificate.
The President or Vice President and the Secretary or Assistant Secretary shall
sign the certificates (either manually or by facsimile) and may seal them
with a corporate seal or a facsimile. The Secretary shall consecutively number
or otherwise identify each certificate for shares.
(b) Shareholder List. The Secretary shall maintain a shareholder list in the
corporation's stock transfer books. The list shall include the name and
address of the person to whom the shares represented are issued and the
number of shares.
(c) Transferring Shares. The Secretary shall cancel all certificates that
an individual surrenders to the corporation for transfer. The President and
Secretary shall only issue a new certificate for a like number of shares when
an individual surrenders and cancels the former certificate, except as set
forth in Section 8.4.
Section 8.2 Uncertificated Shares. The Board of Directors of the
corporation may provide by resolution that some or all of any or all classes
and series of its shares shall be uncertificated shares, provided that such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Within a reasonable time
after the issuance or transfer of uncertificated shares, the corporation
shall send to the registered owner thereof a written notice containing the
information required to be set forth or stated on certificates pursuant to
this Section. The rights and obligations of the holders of uncertificated
shares and the rights and obligations of the holders of certificates
representing shares of the same class and series shall be identical.
Section 8.3 Registration of the Transfer of Shares. The corporation
shall register the transfer of shares of the corporation only on the
corporation's stock transfer books. To register a transfer, the record
owner and appropriate persons shall properly endorse the shares and then the
record owner shall surrender the shares to the corporation for cancellation.
The corporation shall deem the person in whose name shares stand on the
books of the corporation to be the owner for all purposes.
Section 8.4 Transfer Agent and Registrar. The Board of Directors shall
have power to appoint one or more transfer agents and registrars for the
transfer and registration of certificates of stock of any class, and
may require that stock certificates shall be countersigned and registered
by one or more of such transfer agents and registrars.
Section 8.5 Lost or Destroyed Certificates. The corporation may issue
a new certificate to replace any certificate theretofore issued by it alleged
to have been lost or destroyed. The Board of Directors may require the owner
of such a certificate or his legal representative to give the corporation a
bond in such sum and with such sureties as the Board of Directors may direct
to indemnify the corporation and transfer agents and registrars, if any,
against claims that may be made on account of the issuance of such new
certificates. A new certificate may be issued without requiring any bond.
ARTICLE IX. FISCAL YEAR
The fiscal year of the corporation shall begin on July 1 and end on
June 30 of each year.
ARTICLE X. DISTRIBUTIONS
The Board of Directors may, from time to time, declare and the
corporation may make distributions on its outstanding shares in the manner,
and upon the terms and conditions provided by law and the Articles of
Incorporation.
ARTICLE XI. CORPORATE SEAL
The Board of Directors may provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "Corporate Seal."
ARTICLE XII. AMENDMENTS
The corporation's Board of Directors may amend or repeal the corporation's
bylaws unless:
(a) the Articles of Incorporation or the Montana Business Corporation Act
reserve this power exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a particular bylaw
provide expressly that the Board of Directors may not amend or repeal that
bylaw; or
(c) the bylaw adopts or amends the quorum or voting requirement for the
shareholders.
In the case described in subsections (a), (b) and (c) hereof, the
shareholders must approve of the amendment or repeal. The adoption or
amendment described in subsection (c) hereof must meet the same quorum
requirement and be adopted by the same vote required to take action under
the quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
The corporation's shareholders may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its Board
of Directors.
ARTICLE XIII. CONSTRUCTION
These bylaws shall apply only to the extent not inconsistent with the
Articles of Incorporation of the corporation, the Montana Business
Corporation Act or other applicable law, and these bylaws shall be construed
in a manner consistent with the terms of the Articles of Incorporation of the
corporation, the Montana Business Corporation Act, and all other applicable
law.
CERTIFICATE
The undersigned, Secretary of Big Sky Transportation Co., does hereby
certify that the said Amended and Restated Bylaws are true and complete and
are presently in full force and effect.
DATED this 22nd day of August, 1996.
/S/ CRAIG DENNEY
Craig Denney, Secretary
