SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 30, 1996
PACIFIC AEROSPACE & ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
Washington 0-26088 91-1744587
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation or
organization)
434 Olds Station Road, Wenatchee, WA 98801
(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number,
including area code: (509) 664-8000
PCT HOLDINGS, INC.
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
Effective as of November 30, 1996, PCT Holdings, Inc., a Nevada
corporation ("PCTH"), merged into Pacific Aerospace & Electronics, Inc., a
Washington corporation(the "Company"), in order to effect a change in
PCTH's domicile from Nevada to Washington (the "Reincorporation Merger"),
with the Company as the surviving entity. Prior to the Reincorporation
Merger, the Company was a wholly-owned subsidiary of PCTH, organized for
the purpose of reincorporating PCTH in Washington. Immediately prior to the
Reincorporation Merger, the Company had no assets or liabilities.
The Reincorporation Merger was approved by the shareholders of PCTH at
the 1996 annual meeting of shareholders, for which proxies were solicited
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as
amended.
Upon the effectiveness of the Reincorporation Merger, the directors
and executive officers of PCTH became the directors and executive officers
of the Company. The Company's business, mailing address, principal
executive offices and telephone number are the same as those of PCTH.
Upon the effectiveness of the Reincorporation Merger, each outstanding
share of the $.001 par value common stock of PCTH was automatically
converted into one share of the $.001 par value common stock of the Company
(the "Common Stock"), and each of the warrants to purchase common stock of
PCTH sold in PCTH's registered public offering in July 1996 was
automatically converted into warrants to purchase the Common Stock (the
"Warrants"). It will not be necessary for shareholders or warrantholders of
the Company to exchange their existing certificates. The Common Stock sold
in PCTH's registered public offering in July 1996 and the Warrants continue
to be traded on the Nasdaq National Market System, after the
Reincorporation Merger, under the symbols "PCTH" and "PCTHW", respectively.
<PAGE>
Item 7. Financial Statements and Exhibits
A. Financial Statements
--------------------
None required.
B. Exhibits
--------
The following are filed as exhibits to this Current Report:
2.1 Agreement and Plan of Merger between PCT Holdings, Inc.
and Pacific Aerospace & Electronics, Inc. dated
November 25, 1996.
3.4 Articles of Incorporation of Pacific Aerospace & Electronics,
Inc., as filed on September 20, 1996, with the Secretary of
State of the State of Washington.
3.5 Articles of Merger of PCT Holdings, Inc. into Pacific
Aerospace & Electronics, Inc. filed with the Nevada Secretary
of State effective as of 11:59 p.m. PST on November 30, 1996.
3.6 Articles of Merger of PCT Holdings, Inc. with and into
Pacific Aerospace & Electronics, Inc. filed with the Washington
Secretary of State effective as of 11:59 p.m. PST on
November 30, 1996.
3.7 Bylaws of Pacific Aerospace & Electronics, Inc.
4.1 Form of specimen certificate for the Common Stock.
4.2 Form of specimen certificate for the Warrants.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
PACIFIC AEROSPACE & ELECTRONICS, INC.
(Successor Issuer to PCT Holdings, Inc.)
By: /s/ DONALD A. WRIGHT
----------------------------
Donald A. Wright
President and Chief Executive Officer
(Principal Executive Officer)
Dated: December 12, 1996
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
2.1 Agreement and Plan of Merger between PCT Holdings, Inc. and Pacific
Aerospace & Electronics, Inc. dated November 25, 1996.
3.4 Articles of Incorporation of Pacific Aerospace & Electronics, Inc.,
as filed on September 20, 1996, with the Secretary of State of the
State of Washington.
3.5 Articles of Merger of PCT Holdings, Inc. into Pacific Aerospace &
Electronics, Inc. filed with the Nevada Secretary of State effective
as of 11:59 p.m. PST on November 30, 1996.
3.6 Articles of Merger of PCT Holdings, Inc. with and into Pacific
Aerospace & Electronics, Inc. filed with the Washington Secretary
of State effective as of 11:59 p.m. PST on November 30, 1996.
3.7 Bylaws of Pacific Aerospace & Electronics, Inc.
4.1 Form of specimen certificate for the Common Stock.
4.2 Form of specimen certificate for the Warrants.
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated November-25, 1996, between PCT
Holdings, Inc., a Nevada corporation (the "Merging Corporation"), and
Pacific Aerospace & Electronics, Inc., a Washington corporation (the
"Surviving Corporation"). The Merging Corporation and the Surviving
Corporation are sometimes referred to collectively as the "Constituent
Corporations."
WHEREAS, the shareholders and Board of Directors of each of the
Constituent Corporations have deemed it advisable and for the mutual
benefit of the Constituent Corporations and their respective shareholders
that the Merging Corporation be merged into the Surviving Corporation
pursuant to the provisions of the Washington Business Corporation Act,
Title 23B of the Revised Code of Washington and the Nevada General
Corporation Law (the "Merger").
NOW, THEREFORE, in accordance with the laws of the states of
Washington and Nevada, the Constituent Corporations agree that, subject to
the following terms and conditions, (i) the Merging Corporation shall be
merged into the Surviving Corporation, (ii) the Surviving Corporation shall
continue to be governed by the laws of the State of Washington, and (iii)
the terms and conditions of the Merger, and the mode of carrying them into
effect, shall be as follows:
1. Constituent Corporations. The name of the Merging Corporation is
PCT Holdings, Inc. The Merging Corporation is a corporation organized under
and governed by the laws of Nevada. The address of its principal place of
business is 434 Olds Station Road, Wenatchee, Washington 98801. The name of
the Surviving Corporation is Pacific Aerospace & Electronics, Inc. The
Surviving Corporation is a corporation organized under and governed by the
laws of Washington. The address of its principal place of business is 434
Olds Station Road, Wenatchee, Washington 98801.
2. Merger; Conversion of Shares. On the effective date of the Merger,
(i) the Merging Corporation shall be merged with and into the Surviving
Corporation, (ii) each outstanding share of common stock of the Merging
Corporation, solely by virtue of the Merger and without any further action
on the part of the Constituent Corporations or their shareholders, shall be
changed into one share of common stock of the Surviving Corporation, and
(iii) each of the outstanding shares of common stock of the Surviving
Corporation shall be automatically canceled and returned to the status of
authorized but unissued shares.
3. Options and Warrants. On the effective date of the Merger, each
outstanding and unexercised option or warrant to purchase common stock of
the Merging Corporation shall become an option or warrant, respectively, to
purchase common stock of the Surviving Corporation, on the basis of one
share of common stock of the Surviving Corporation for each share of common
stock of the Merging Corporation issuable pursuant to any such option or
warrant of the Merging Corporation and otherwise on the same terms and
conditions and at the same exercise price per share as provided in any such
option or warrant.
<PAGE>
4. Effect of Merger. The effect of the Merger shall be as provided by
the applicable provisions of the laws of Washington and Nevada. Without
limiting the generality of the foregoing, and subject thereto, on the
effective date, the separate existence of the Merging Corporation shall
cease, and the Merging Corporation shall be merged in accordance with the
provisions of this Agreement with and into the Surviving Corporation, which
shall possess all the properties and assets, and all the rights,
privileges, powers, immunities and franchises, of whatever nature and
description, and shall be subject to all restrictions, disabilities, duties
and liabilities of each of the Constituent Corporations; and all such
things shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any
real estate or other property, or any interest therein, vested by deed or
otherwise in either of the Constituent Corporations, shall be vested in the
Surviving Corporation without reversion or impairment.
5. Articles of Incorporation. The Articles of Incorporation of the
Surviving Corporation shall remain unchanged.
6. Effective Date. The effective date of the merger shall be the date
on which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Articles of Merger, have been duly
filed by the Constituent Corporations in the office of the Washington
Secretary of State pursuant to Section 23B.11.050 of the Washington
Business Corporation Act and the office of the Nevada Secretary of State
pursuant to Section 92A.200 of the Nevada General Corporation Law, or at
such time thereafter as is provided in such Articles of Merger.
7. Abandonment. At any time before the effective date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either the Merging
Corporation or the Surviving Corporation or both, notwithstanding the
approval of this Agreement by the shareholders of the Merging Corporation
or by the sole stockholder of the Surviving Corporation, or by both.
8. Amendment. At any time before or after approval by the shareholders
of the Constituent Corporations, this Agreement may be amended in any
manner (except that any of the principal terms may not be amended without
the approval of the shareholders of the Constituent Corporations), as may
be determined in the judgment of the respective Boards of Directors of the
Constituent Corporations to be necessary, desirable or expedient in order
to clarify the intention of the parties thereto or to effect or facilitate
the purpose and intent of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Merger to be duly executed on the date first above written.
"MERGING CORPORATION" "SURVIVING CORPORATION"
PCT HOLDINGS, INC. PACIFIC AEROSPACE &
ELECTRONICS, INC.
By /s/ Donald A. Wright By /s/ Donald A. Wright
------------------------------ --------------------------
Donald A. Wright, President Donald A. Wright, President
ARTICLES OF INCORPORATION
OF
PACIFIC AEROSPACE & ELECTRONICS, INC.
ARTICLE I
Name
The name of this Corporation is Pacific Aerospace & Electronics, Inc.
ARTICLE II
Capital Stock
A. Authorized Capital. This Corporation is authorized to issue a total
of one hundred five million (105,000,000) shares, $.001 par value per
share, consisting of one hundred million (100,000,000) shares to be
designated "Common Stock" and five million (5,000,000) shares to be
designated "Preferred Stock." Subject to any rights expressly granted to
Preferred Stock issued pursuant to Paragraph B of this Article, the Common
Stock shall have all the rights ordinarily associated with common shares,
including but not limited to general voting rights, general rights to
dividends, and liquidation rights. The Preferred Stock shall have the
rights and preferences described in Paragraph B of this Article or in any
resolution of the Board of Directors adopted pursuant to Paragraph B.
B. 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 these Articles of Incorporation, as determined from time to time by
the Board of Directors and stated in the resolution or resolutions
providing for its issuance, prior to the issuance of any shares thereof.
The Board of Directors shall have the authority to fix and determine,
subject to the provisions hereof, the rights and preferences of the shares
of any series so established. Unless otherwise provided in the resolution
establishing a series of shares of Preferred Stock, prior to the issuance
of any shares of a series so established or to be established, the Board of
Directors may by resolution amend the relative rights and preferences of
the shares of such series, and, after the issuance of shares of a series
whose number has been designated by the Board of Directors, the resolution
establishing the series may be amended by the Board of Directors to
decrease (but not below the number of shares of such series then
outstanding) the number of shares of that series.
<PAGE>
ARTICLE III
No Preemptive Rights
Except as may otherwise be provided by the Board of Directors, no
holder of any shares of this Corporation shall have any preemptive right to
purchase, subscribe for or otherwise acquire any securities of this
Corporation of any class or kind now or hereafter authorized.
ARTICLE IV
Number of Directors
This Corporation shall have at least one director, the actual number
to be fixed in accordance with the Bylaws.
ARTICLE V
No Cumulative Voting
There shall be no cumulative voting of shares in this Corporation.
ARTICLE VI
Shareholder Voting on Significant Corporate Action
Any corporate action for which the Washington Business Corporation
Act, as then in effect, would otherwise require approval by either a
two-thirds vote of the shareholders of this Corporation or by a two-thirds
vote of one or more voting groups shall be deemed approved by the
shareholders or the voting group(s) if it is approved by the affirmative
vote of the holders of a majority of shares entitled to vote or, if
approval by voting groups is required, by the holders of a majority of
shares within each voting group entitled to vote separately.
Notwithstanding this Article, effect shall be given to any other provision
of these Articles that specifically requires a greater vote for approval of
any particular corporate action.
ARTICLE VII
Limitation on Director Liability
To the fullest extent permitted by Washington law, a director of this
Corporation shall not be liable to the Corporation or its shareholders for
monetary damages for his or her conduct as a director. Any amendment to or
repeal of this Article shall not adversely affect any right of a director
of this Corporation hereunder with respect to any acts or omissions of the
director occurring prior to amendment or repeal.
<PAGE>
ARTICLE VIII
Indemnification of Directors
To the fullest extent permitted by its Bylaws and Washington law, this
Corporation is authorized to indemnify any of its directors and officers.
The Board of Directors shall be entitled to determine the terms of
indemnification, including advance of expenses, and to give effect thereto
through the adoption of Bylaws, approval of agreements, or by any other
manner approved by the Board of Directors. Any amendment to or repeal of
this Article shall not adversely affect any right of an individual with
respect to any right to indemnification arising prior to such amendment or
repeal.
ARTICLE IX
Registered Office and Registered Agent
A. The first registered agent of this Corporation in the State of
Washington is JGB Service Corporation.
B. The street address of the first registered agent at the registered
office of this Corporation in the State of Washington is One Union Square,
Suite 3600, 600 University Street, Seattle, WA 98101.
ARTICLE X
Incorporator
The name and address of the incorporator are as follows:
Donald A. Wright
434 Olds Station Road
Wenatchee, WA 98801
DATED: September 16, 1996. /s/ Donald A. Wright
------------------------
Donald A. Wright
Incorporator
<PAGE>
CONSENT TO APPOINTMENT AS REGISTERED AGENT
The undersigned hereby consents to serve as registered agent for
Pacific Aerospace & Electronics, Inc. in the State of Washington.
DATED this 17th day of September, 1996.
JGB SERVICE CORPORATION
By /s/ Marishka Marten
-------------------------
Marishka Marten
Its Assistant Secretary
Address of Registered Agent:
One Union Square, Suite 3600
600 University Street
Seattle, WA 98101
Exhibit 3.5
ARTICLES OF MERGER OF
PCT HOLDINGS, INC.
INTO
PACIFIC AEROSPACE & ELECTRONICS, INC.
Pursuant to Nev. Rev. Stat. ss.92A.200, the undersigned corporation
hereby submits the following Articles of Merger for filing with the Nevada
Secretary of State, for the purpose of merging PCT HOLDINGS, INC., a Nevada
corporation (the "Merging Corporation"), with and into PACIFIC AEROSPACE &
ELECTRONICS, INC., a Washington corporation (the "Surviving Corporation").
The Merging Corporation and the Surviving Corporation are sometimes
referred to collectively as the "Constituent Corporations."
1. The Agreement and Plan of Merger between the Surviving Corporation and
the Merging Corporation is attached as Exhibit A and is incorporated
herein by this reference.
2. Pursuant to Nev. Rev. Stat. ss.92A.190(a), the Merger is permitted under
Washington law, the Surviving Corporation's state of incorporation,
and the Surviving Corporation has complied with Washington law in
effecting the Merger.
3. Pursuant to Nev. Rev. Stat. ss.92A.190(c), the Nevada Secretary of State
may send copies of process received by it for either of the
Constituent Corporations to the Surviving Corporation at 434 Olds
Station Road, Wenatchee, Washington 98801.
4. Pursuant to Nev. Rev. Stat. ss.92A.200(2), the Agreement and Plan of
Merger has been adopted by the Board of Directors of each of the
Constituent Corporations.
5. Pursuant to Nev. Rev. Stat. ss.92A.200(4)(a), the sole shareholder of
the Surviving Corporation approved and adopted the Agreement and Plan
of Merger by a written consent dated November 25, 1996.
6. Pursuant to Nev. Rev. Stat.ss.92A.200(4)(b), the Agreement and Plan of
Merger was approved and adopted by vote of the shareholders of the
Merging Corporation on November 12, 1996. The Merging Corporation has
only one class of stock. The total number of votes entitled to be cast
by the shareholders of the Merging Corporation was 9,728,309. Votes
cast in favor of the Agreement and Plan of Merger totaled 5,141,774,
and votes against the Agreement and Plan of Merger totaled 2,710. The
number of votes cast in favor of the Agreement and Plan of Merger was
sufficient to constitute approval and adoption of the Agreement and
Plan of Merger by the shareholders of the Merging Corporation.
7. Pursuant to Nev. Rev. Stat. ss.92A.200(5), the Articles of Incorporation
of the Surviving Corporation are attached as Exhibit B and are
incorporated herein by this reference.
8. Pursuant to Nev. Rev. Stat. ss.92A.240, the Merger shall be effective at
11:59 p.m., Pacific Standard Time, on November 30, 1996.
<PAGE>
Executed on November 25, 1996.
PACIFIC AEROSPACE & ELECTRONICS, INC.
By: /s/ Donald A. Wright
---------------------------------
Donald A. Wright
Its: President
By: /s/ Sheryl A. Symonds
--------------------------------
Sheryl A. Symonds
Its: Secretary
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On November 25, 1996, before me personally appeared DONALD A. WRIGHT,
to me known to be the PRESIDENT of PACIFIC AEROSPACE & ELECTRONICS, INC.,
the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument and that the seal
affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Marishka T. Omundson-Marten
-------------------------------
Name (Printed):Marishka T. Omundson-Marten
---------------------------
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle
-------
My appointment expires: 8-28-97.
---------
<PAGE>
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On November 25, 1996, before me personally appeared SHERYL A. SYMONDS,
to me known to be the SECRETARY of PACIFIC AEROSPACE & ELECTRONICS, INC.,
the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument and that the seal
affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Marishka T. Omundson-Marten
-------------------------------
Name (Printed):Marishka T. Omundson-Marten
---------------------------
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle
-------
My appointment expires: 8-28-97.
---------
ARTICLES OF MERGER
OF
PCT HOLDINGS, INC.
WITH AND INTO
PACIFIC AEROSPACE & ELECTRONICS, INC.
Pursuant to RCW 23B.11.050, the undersigned President of PCT Holdings,
Inc., a Nevada corporation, and the undersigned President of Pacific
Aerospace & Electronics, Inc., a Washington corporation, certify as
follows:
1. The Agreement and Plan of Merger governing the merger of PCT Holdings,
Inc. with and into Pacific Aerospace & Electronics, Inc. is attached
hereto as Exhibit A and is incorporated herein by this reference.
2. A. On November 12, 1996, the shareholders of PCT Holdings, Inc. entitled
to vote approved and adopted the Agreement and Plan of Merger,
pursuant to RCW 23B.11.070 and applicable Nevada law.
B. By a written consent dated November 25, 1996, the sole shareholder
of Pacific Aerospace & Electronics, Inc. approved and adopted the
Agreement and Plan of Merger, pursuant to RCW 23B.11.030.
3. These Articles of Merger shall be effective at 11:59 p.m., Pacific
Standard Time, on November 30, 1996.
IN WITNESS WHEREOF, the undersigned officers have executed these Articles
of Merger in an official and authorized capacity under penalty of perjury on
November 25, 1996.
PCT HOLDINGS, INC.
By: /s/ Donald A. Wright
------------------------------
Donald A. Wright
Its: President
PACIFIC AEROSPACE & ELECTRONICS, INC.
By: /s/ Donald A. Wright
-------------------------------
Donald A. Wright
Its: President
Exhibit 3.7
BYLAWS
OF
PACIFIC AEROSPACE & ELECTRONICS, INC.
SECTION 1.
SHAREHOLDERS AND SHAREHOLDERS' MEETINGS
1.1 Annual Meeting. The annual meeting of the shareholders of this
corporation (the "Corporation") for the election of directors and for the
transaction of such other business as may properly come before the meeting
shall be held each year at the principal office of the Corporation, or at
some other place either within or without the State of Washington as
designated by the Board of Directors, on the day and at the time specified
in Exhibit A, which is attached hereto and incorporated herein by this
reference, or on such other day and time as may be set by the Board of
Directors. If the specified day is a Sunday or a legal holiday, then the
meeting will take place on the next business day at the same time or on
such other day and time as may be set by the Board of Directors.
1.2 Special Meetings. Special meetings of the shareholders for any
purpose or purposes may be called at any time by the Board of Directors,
the Chairman of the Board, the President, a majority of the Board of
Directors, or any shareholder or shareholders holding in the aggregate
one-tenth of the voting power of all votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting. The meetings
shall be held at such time and place as the Board of Directors may
prescribe, or, if not held upon the request of the Board of Directors, at
such time and place as may be established by the President or by the
Secretary in the President's absence. Only business within the purpose or
purposes described in the meeting notice may be conducted.
1.3 Notice of Meetings. Written notice of the place, date and time of
the annual shareholders' meeting and written notice of the place, date,
time and purpose or purposes of special shareholders' meetings shall be
delivered not less than 10 (or, if required by Washington law, 20) or more
than 60 days before the date of the meeting, either personally, by
facsimile, or by mail, or in any other manner approved by law, by or at the
direction of the President or the Secretary, to each shareholder of record
entitled to notice of such meeting. Mailed notices shall be deemed to be
delivered when deposited in the mail, first-class postage prepaid,
correctly addressed to the shareholder's address shown in the Corporation's
current record of shareholders.
1.4 Waiver of Notice. Except where expressly prohibited by law or the
Articles of Incorporation, notice of the place, date, time and purpose or
purposes of any shareholders' meeting may be waived in a signed writing
delivered to the Corporation by any shareholder at any time, either before
or after the meeting. Attendance at the meeting in person or by proxy
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
<PAGE>
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
1.5 Shareholders' Action Without a Meeting. The shareholders may take
any action without a meeting that they could properly take at a meeting, if
one or more written consents setting forth the action so taken are signed
by all of the shareholders entitled to vote with respect to the subject
matter and are delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. If required by Washington law, all
nonvoting shareholders must be given written notice of the proposed action
at least ten days before the action is taken, unless such notice is waived
in a manner consistent with these Bylaws. Actions taken under this section
are effective when all consents are in the possession of the Corporation,
unless otherwise specified in the consent. A shareholder may withdraw
consent only by delivering a written notice of withdrawal to the
Corporation prior to the time that all consents are in the possession of
the Corporation.
1.6 Telephone Meetings. Shareholders may participate in a meeting of
shareholders by means of a conference telephone or any similar
communications equipment that enables all persons participating in the
meeting to hear each other during the meeting. Participation by such means
shall constitute presence in person at a meeting.
1.7 List of Shareholders. At least ten days before any shareholders'
meeting, the Secretary of the Corporation or the agent having charge of the
stock transfer books of the Corporation shall have compiled a complete list
of the shareholders entitled to notice of a shareholders' meeting, arranged
in alphabetical order and by voting group, with the address of each
shareholder and the number, class, and series, if any, of shares owned by
each.
1.8 Quorum and Voting. The presence in person or by proxy of the
holders of a majority of the votes entitled to be cast on a matter at a
meeting shall constitute a quorum of shareholders for that matter. If a
quorum exists, action on a matter shall be approved by a voting group if
the votes cast within a voting group favoring the action exceed the votes
cast within the voting group opposing the action, unless a greater number
of affirmative votes is required by the Articles of Incorporation or by
law. If the Articles of Incorporation or Washington law provide for voting
by two or more voting groups on a matter, action on a matter is taken only
when voted upon by each of those voting groups counted separately. Action
may be taken by one voting group on a matter even though no action is taken
by another voting group.
1.9 Adjourned Meetings. If a shareholders' meeting is adjourned to a
different place, date or time, whether for failure to achieve a quorum or
otherwise, notice need not be given of the new place, date or time if the
new place, date or time is announced at the meeting before adjournment.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in these Bylaws, that determination
shall apply to any adjournment thereof, unless Washington law requires
fixing a new record date. If Washington law requires that a new record date
be set for the adjourned meeting, notice of the adjourned meeting must be
given to shareholders as of the new record date. Any business may be
transacted at an adjourned meeting that could have been transacted at the
meeting as originally called.
1.10 Proxies. A shareholder may appoint a proxy to vote or otherwise
act for the shareholder by signing an appointment form, either personally
or by an agent. No appointment
<PAGE>
shall be valid after 11 months from the date of its execution unless the
appointment form expressly so provides. An appointment of a proxy is revocable
unless the appointment is coupled with an interest. No revocation shall be
effective until written notice thereof has actually been received by the
Secretary of the Corporation or any other person authorized to tabulate votes.
SECTION 2.
BOARD OF DIRECTORS
2.1 Number and Qualification. The business affairs and property of
the Corporation shall be managed under the direction of a Board of
Directors, the number of members of which is set forth in Exhibit A. The
Board of Directors may increase or decrease this number by resolution. A
decrease in the number of directors shall not shorten the term of an
incumbent director.
2.2 Election - Term of Office. The directors shall be elected by the
shareholders at each annual shareholders' meeting or at a special
shareholders' meeting called for such purpose. Despite the expiration of a
director's term, the director continues to serve until his or her successor
is elected and qualified or until there is a decrease in the authorized
number of directors.
2.3 Vacancies. Except as otherwise provided by law, vacancies in the
Board of Directors, whether caused by resignation, death, retirement,
disqualification, removal, increase in the number of directors, or
otherwise, may be filled for the remainder of the term by the Board of
Directors, by the shareholders, or, if the directors in office constitute
less than a quorum of the Board of Directors, by an affirmative vote of a
majority of the remaining directors. The term of a director elected to fill
a vacancy expires at the next shareholders' meeting at which directors are
elected. A vacancy that will occur at a specific later date may be filled
before the vacancy occurs, but the new director may not take office until
the vacancy occurs.
2.4 Quorum and Voting. At any meeting of the Board of Directors, the
presence in person (including presence by electronic means such as a
telephone conference call) of a majority of the number of directors
presently in office shall constitute a quorum for the transaction of
business. Notwithstanding the foregoing, in no case shall a quorum be less
than one-third of the authorized number of directors. If a quorum is
present at the time of a vote, the affirmative vote of a majority of the
directors present at the time of the vote shall be the act of the Board of
Directors and of the Corporation except as may be otherwise specifically
provided by the Articles of Incorporation, by these Bylaws, or by law. A
director who is present at a meeting of the Board of Directors when action
is taken is deemed to have assented to the action taken unless: (a) the
director objects at the beginning of the meeting, or promptly upon his or
her arrival, to holding it or to transacting business at the meeting; (b)
the director's dissent or abstention from the action taken is entered in
the minutes of the meeting; or (c) the director delivers written notice of
his or her dissent or abstention to the presiding officer of the meeting
before its adjournment or to the Corporation within a reasonable time after
adjournment of the meeting. The right of dissent or abstention is not
available to a director who votes in favor of the action taken.
2.5 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place, date and time as shall from time to time be
fixed by resolution of the Board.
<PAGE>
2.6 Special Meetings. Special meetings of the Board of Directors may
be held at any place and at any time and may be called by the Chairman of
the Board, the President, Vice President, Secretary or Treasurer, or any
two or more directors.
2.7 Notice of Meetings. Unless the Articles of Incorporation provide
otherwise, any regular meeting of the Board of Directors may be held
without notice of the date, time, place, or purpose of the meeting. Any
special meeting of the Board of Directors must be preceded by at least two
days' notice of the date, time, and place of the meeting, but not of its
purpose, unless the Articles of Incorporation or these Bylaws require
otherwise. Notice may be given personally, by facsimile, by mail, or in any
other manner allowed by law. Oral notice shall be sufficient only if a
written record of such notice is included in the Corporation's minute book.
Notice shall be deemed effective at the earliest of: (a) receipt; (b)
delivery to the proper address or telephone number of the director as shown
in the Corporation's records; or (c) five days after its deposit in the
United States mail, as evidenced by the postmark, if correctly addressed
and mailed with first-class postage prepaid. Notice of any meeting of the
Board of Directors may be waived by any director at any time, by a signed
writing, delivered to the Corporation for inclusion in the minutes, either
before or after the meeting. Attendance or participation by a director at a
meeting shall constitute a waiver of any required notice of the meeting
unless the director promptly objects to holding the meeting or to the
transaction of any business on the grounds that the meeting was not
lawfully convened and the director does not thereafter vote for or assent
to action taken at the meeting.
2.8 Directors' Action Without A Meeting. The Board of Directors or a
committee thereof may take any action without a meeting that it could
properly take at a meeting if one or more written consents setting forth
the action are signed by all of the directors, or all of the members of the
committee, as the case may be, either before or after the action is taken,
and if the consents are delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Such action shall be
effective upon the signing of a consent by the last director to sign,
unless the consent specifies a later effective date.
2.9 Committees of the Board of Directors. The Board of Directors, by
resolutions adopted by a majority of the members of the Board of Directors
in office, may create from among its members one or more committees and
shall appoint the members thereof. Each such committee must have two or
more members, who shall be directors and who shall serve at the pleasure of
the Board of Directors. Each committee of the Board of Directors may
exercise the authority of the Board of Directors to the extent provided in
its enabling resolution and any pertinent subsequent resolutions adopted in
like manner, provided that the authority of each such committee shall be
subject to applicable law. Each committee of the Board of Directors shall
keep regular minutes of its proceedings and shall report to the Board of
Directors when requested to do so.
2.10 Telephone Meetings. Members of the Board of Directors or of any
committee appointed by the Board of Directors may participate in a meeting of
the Board of Directors or committee by means of a conference telephone or
similar communications equipment that enables all persons participating in the
meeting to hear each other during the meeting. Participation by such means
shall constitute presence in person at a meeting.
<PAGE>
2.11 Compensation of Directors. The Board of Directors may fix the
compensation of directors as such and may authorize the reimbursement of
their expenses.
SECTION 3.
OFFICERS
3.1 Officers Enumerated - Election. The officers of the Corporation
shall consist of such officers and assistant officers as may be designated
by resolution of the Board of Directors. The officers may include a
Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer, and any assistant officers. The officers shall hold
office at the pleasure of the Board of Directors. Unless otherwise
restricted by the Board of Directors, the President may appoint any
assistant officer, the Secretary may appoint one or more Assistant
Secretaries, and the Treasurer may appoint one or more Assistant
Treasurers; provided that any such appointments shall be recorded in
writing in the corporate records.
3.2 Qualifications. None of the officers of the Corporation need be a
director. Any two or more corporate offices may be held by the same
person.
3.3 Duties of the Officers. Unless otherwise prescribed by the Board
of Directors, the duties of the officers shall be as follows:
Chairman of the Board. The Chairman of the Board, if one is
elected, shall preside at meetings of the Board of Directors and of the
shareholders, shall be responsible for carrying out the plans and directives
of the Board of Directors, and shall report to and consult with the Board of
Directors. The Chairman of the Board shall have such other powers and duties
as the Board of Directors may from time to time prescribe.
Chief Executive Officer. The Chief Executive Officer shall be
the chief executive officer of the Corporation and shall exercise the usual
powers pertaining to such office. The Chief Executive Officer shall be in
general charge of the business and affairs of the Corporation, subject to
control by the Board of Directors. The Chief Executive Officer shall report
to and consult with the Board of Directors and shall have such other powers
and duties as the Board of Directors may from time to time prescribe.
President. The President shall exercise the usual executive
powers pertaining to the office of President. In the absence of a Chairman of
the Board, the President shall preside at meetings of the Board of Directors
and of the shareholders, perform the other duties of the Chairman of the Board
prescribed in this section, and shall have such other powers and duties as the
Board of Directors may from time to time designate. In addition, if there is
no Secretary in office, the President shall perform the duties of the
Secretary.
Vice President. Each Vice President shall perform such duties
as the Board of Directors may from time to time designate. In addition, the
Vice President, or if there is more than one, the most senior Vice President
available, shall act as President in the absence or disability of the
President.
Secretary. The Secretary shall be responsible for and shall
keep, personally or with the assistance of others, records of the proceedings
of the directors and shareholders;
<PAGE>
authenticate records of the Corporation; attest all certificates of stock in
the name of the Corporation; keep the corporate seal, if any, and affix the
same to, or cause a facsimile thereof to be printed on, certificates of stock
and other proper documents; keep a record of the issuance of certificates of
stock and the transfers of the same, or cause such a record to be kept; and
perform such other duties as the Board of Directors may from time to time
designate.
Treasurer. The Treasurer shall have the care and custody of,
and be responsible for, all funds and securities of the Corporation and shall
cause to be kept regular books of account. The Treasurer shall cause to be
deposited all funds and other valuable effects in the name of the Corporation
in such depositories as may be designated by the Board of Directors. In
general, the Treasurer shall perform all of the duties incident to the office
of Treasurer, and such other duties as from time to time may be assigned by
the Board of Directors.
Assistant Officers. Assistant officers may consist of one or
more Assistant Vice Presidents, one or more Assistant Secretaries, and one or
more Assistant Treasurers. Each assistant officer shall perform those duties
assigned to him or her from time to time by the Board of Directors, the
President, or the officer who appointed him or her.
3.4 Vacancies. Vacancies in any office arising from any cause may be
filled by the Board of Directors at any regular or special meeting.
3.5 Removal. Any officer or agent may be removed by action of the
Board of Directors with or without cause, but any removal shall be without
prejudice to the contract rights, if any, of the person removed. Election
or appointment of an officer or agent shall not of itself create any
contract rights.
SECTION 4.
SHARES AND CERTIFICATES OF SHARES
4.1 Share Certificates. Share certificates shall be issued in
numerical order, and each shareholder shall be entitled to a certificate
signed by the President or a Vice President, and attested by the Secretary
or an Assistant Secretary. Share certificates may be sealed with the
corporate seal, if any. Facsimiles of the signatures and seal may be used
as permitted by law. Every share certificate shall state:
(a) the name of the Corporation;
(b) that the Corporation is organized under the laws of the State
of Washington;
(c) the name of the person to whom the share certificate is issued;
(d) the number, class and series (if any) of shares that the
certificate represents; and
(e) if the Corporation is authorized to issue shares of more than
one class or series, that upon written request and without
charge, the Corporation will furnish any shareholder with a
full statement of the designations, preferences, limitations
and elative rights of the shares of each class or
<PAGE>
series, and the authority of the Board of Directors to determine
variations for future series.
4.2 Consideration for Shares. Shares of the Corporation may be issued
for such consideration as shall be determined by the Board of Directors to be
adequate. The consideration for the issuance of shares may be paid in whole
or in part in cash, or in any tangible or intangible property or benefit to
the Corporation, including but not limited to promissory notes, services
performed, contracts for services to be performed, or other securities of the
Corporation. Establishment by the Board of Directors of the amount of
consideration received or to be received for shares of the Corporation shall
be deemed to be a determination that the consideration so established is
adequate.
4.3 Transfers. Shares may be transferred by delivery of the certificate,
accompanied either by an assignment in writing on the back of the certificate,
or by a written power of attorney to sell, assign and transfer the same,
signed by the record holder of the certificate. Except as otherwise
specifically provided in these Bylaws, no shares of stock shall be transferred
on the books of the Corporation until the outstanding certificate therefor has
been surrendered to the Corporation.
4.4 Loss or Destruction of Certificates. In the event of the loss or
destruction of any certificate, a new certificate may be issued in lieu
thereof upon satisfactory proof of such loss or destruction, and upon the
giving of security against loss to the Corporation by bond, indemnity or
otherwise, to the extent deemed necessary by the Board of Directors, the
Secretary, or the Treasurer.
4.5 Fixing Record Date. The Board of Directors may fix in advance a date
as the record date for determining shareholders entitled: (i) to notice of or
to vote at any shareholders' meeting or any adjournment thereof; (ii) to
receive payment of any share dividend; or (iii) to receive payment of any
distribution. The Board of Directors may in addition fix record dates with
respect to any allotment of rights or conversion or exchange of any securities
by their terms, or for any other proper purpose, as determined by the Board of
Directors and by law. The record date shall be not more than 70 days and, in
case of a meeting of shareholders, not less than 10 days (or such longer
period as may be required by Washington law or applicable federal securities
law or the rules of any exchange or automated quotation system on which shares
of the Corporation are listed or quoted) prior to the date on which the
particular action requiring determination of shareholders is to be taken. If
no record date is fixed for determining the shareholders entitled to notice
of or to vote at a meeting of shareholders, the record date shall be the date
before the day on which notice of the meeting is mailed. If no record date
is fixed for the determination of shareholders entitled to a distribution
(other than one involving a purchase, redemption, or other acquisition of the
Corporation's own shares), the record date shall be the date on which the
Board adopted the resolution declaring the distribution. If no record date
is fixed for determining shareholders entitled to a share dividend, the record
date shall be the date on which the Board of Directors authorized the dividend.
<PAGE>
SECTION 5.
BOOKS, RECORDS AND REPORTS
5.1 Records of Corporate Meetings, Accounting Records and Share
Registers. The Corporation shall keep, as permanent records, minutes of all
meetings of the Board of Directors and shareholders, and all actions taken
taken without a meeting, and all actions taken by a committee exercising the
authority of the Board of Directors. The Corporation or its agent shall
maintain, in a form that permits preparation of a list, a list of the names
and addresses of its shareholders, in alphabetical order by class of shares,
and the number, class, and series, if any, of shares held by each. The
Corporation shall also maintain appropriate accounting records, and at its
principal place of business shall keep copies of: (a) its Articles of
Incorporation or restated Articles of Incorporation and all amendments in
effect; (b) its Bylaws or restated Bylaws and all amendments in effect; (c)
minutes of all shareholders' meetings and records of all actions taken without
meetings for the past three years; (d) the year-end balance sheets and income
statements for the past three fiscal years, prepared as required by Washington
law; (e) all written communications to shareholders generally in the past
three years; (f) a list of the names and business addresses of its current
officers and directors; and (g) its most recent annual report to the Secretary
of State.
5.2 Copies of Corporate Records. Any person dealing with the Corporation
may rely upon a copy of any of the records of the proceedings, resolutions,
or votes of the Board of Directors or shareholders, when certified by the
Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary.
5.3 Examination of Records. A shareholder shall have the right to
inspect and copy, during regular business hours at the principal office of
the Corporation, in person or by his or her attorney or agent, the corporate
records referred to in the last sentence of Section 5.1 of these Bylaws if
the shareholder gives the Corporation written notice of the demand at least
five business days before the date on which the shareholder wishes to make
such inspection. In addition, if a shareholder's demand is made in good faith
and for a proper purpose, a shareholder may inspect and copy, during regular
business hours at a reasonable location specified by the Corporation, excerpts
from minutes of any meeting of the Board of Directors, records of any action
of a committee of the Board of Directors, records of actions taken by the
Board of Directors without a meeting, minutes of shareholders' meetings held
or records of action taken by shareholders without a meeting not within the
past three years, accounting records of the Corporation, or the record of
shareholders; provided that the shareholder shall have made a demand
describing with reasonable particularity the shareholder's purpose and the
records the shareholder desires to inspect, and provided further that the
records are directly connected to the shareholder's purpose. This section
shall not affect any right of shareholders to inspect records of the
Corporation that may be otherwise granted to the shareholders by law.
5.4 Financial Statements. Not later than four months after the end of
each fiscal year, or in any event prior to its annual meeting of shareholders,
the Corporation shall prepare a balance sheet and income statement in
accordance with Washington law. The Corporation shall furnish a copy of each
to any shareholder upon written request.
<PAGE>
SECTION 6.
FISCAL YEAR
The fiscal year of the Corporation shall be as set forth in Exhibit A.
SECTION 7.
CORPORATE SEAL
The corporate seal of the Corporation, if any, shall be in the form
shown on Exhibit A.
SECTION 8.
MISCELLANEOUS PROCEDURAL PROVISIONS
The Board of Directors may adopt rules of procedure to govern any
meetings of shareholders or directors to the extent not inconsistent with law,
the Corporation's Articles of Incorporation, or these Bylaws, as they are in
effect from time to time. In the absence of any rules of procedure adopted
by the Board of Directors, the chairman of the meeting shall make all
decisions regarding the procedures for any meeting.
SECTION 9.
AMENDMENT OF BYLAWS
The Board of Directors is expressly authorized to make, alter and repeal
the Bylaws of the Corporation, subject to the power of the shareholders of
the Corporation to change or repeal the Bylaws.
SECTION 10.
INDEMNIFICATION OF DIRECTORS AND OTHERS
10.1 Grant of Indemnification. Subject to Section 10.2, each person who
was or is made a party or is threatened to be made a party to or is involved
(including, without limitation, as a witness) in any threatened, pending,
or completed action, suit or proceeding, whether formal or informal, civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or officer of the
Corporation or who, while a director or officer of the Corporation, is or
was serving at the request of the Corporation as a director, officer,
employee or agent of this or another corporation or of a partnership, joint
venture, trust, other enterprise, or employee benefit plan, whether the
basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by applicable law, as then in
effect, against all expense, liability and loss (including attorneys' fees,
costs, judgments, fines, ERISA excise taxes or penalties and amounts to be
paid in settlement) reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as to a
person who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors and administrators.
10.2 Limitations on Indemnification. Notwithstanding Section 10.1, no
indemnification shall be provided hereunder to any such person to the
extent that such indemnification would be
<PAGE>
prohibited by the Washington Business Corporation Act or other applicable
law as then in effect, nor, except as provided in Section 10.4 with respect
to proceedings seeking to enforce rights to indemnification, shall the
Corporation indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person except where
such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation.
10.3 Advancement of Expenses. The right to indemnification conferred in
this section shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition, except where the Board of Directors shall have adopted a
resolution expressly disapproving such advancement of expenses. Such an
advancement of expenses shall be made upon delivery to the Corporation of
an undertaking, by or on behalf of the claimant, 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 claimant is not
entitled to be indemnified for such expenses under this Section 10.3.
10.4 Right to Enforce Indemnification. If a claim under Section 10.1 is
not paid in full by the Corporation within 60 days after a written claim has
been received by the Corporation, or if a claim for expenses incurred in
defending a proceeding in advance of its final disposition authorized under
Section 10.3 is not paid within 20 days after a written claim has been
received by the Corporation, 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 claimant shall be
entitled to be paid also the expense of prosecuting such claim. The
claimant shall be presumed to be entitled to indemnification hereunder upon
submission of a written claim (and, in an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition, 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 claimant is so entitled. It shall be a
defense to any such action (other than an action with respect to expenses
authorized under Section 10.3) that the claimant has not met the standards
of conduct which make it permissible hereunder or under the Washington
Business Corporation Act for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) 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 because he or she has met the applicable standard of
conduct set forth herein or in the Washington Business Corporation Act nor
(except as provided in Section 10.3) an actual determination by the
Corporation (including its Board of Directors, independent legal counsel,
or its shareholders) that the claimant 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 claimant is not so entitled.
10.5 Nonexclusivity. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final
disposition conferred in this section shall be valid to the extent consistent
with Washington law.
10.6 Indemnification of Employees and Agents. The Corporation may, by
action of its Board of Directors from time to time, provide indemnification
and pay expenses in advance of the final disposition of a proceeding to
employees and agents of the Corporation on the same terms and with the same
scope and effect as the provisions of this section with respect to the
<PAGE>
indemnification and advancement of expenses of directors and officers of the
Corporation or pursuant to rights granted pursuant to, or provided by,
the Washington Business Corporation Act or on such other terms as the Board
may deem proper.
10.7 Insurance and Other Security. The Corporation may maintain
insurance, at its expense, to protect itself and any individual who is or was
a director, officer, employee or agent of the Corporation or another
Corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against or incurred by the individual in that capacity or
arising from his or her status as an officer, director, agent, or employee,
whether or not the Corporation would have the power to indemnify such person
against the same liability under the Washington Business Corporation Act.
The Corporation may enter into contracts with any director or officer of the
Corporation in furtherance of the provisions of this section and may create a
trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may
be necessary to effect indemnification as provided in this section.
10.8 Amendment or Modification. This section may be altered or amended
at any time as provided in these Bylaws, but no such amendment shall have the
effect of diminishing the rights of any person who is or was an officer or
director as to any acts or omissions taken or omitted to be taken prior to
the effective date of such amendment.
10.9 Effect of Section. The rights conferred by this section shall be
deemed to be contract rights between the Corporation and each person who is
or was a director or officer. The Corporation expressly intends each such
person to rely on the rights conferred hereby in performing his or her
respective duties on behalf of the Corporation.
SECTION 11.
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Unless otherwise restricted by the Board of Directors, the Chairman,
President, and any Vice President of the Corporation are each authorized to
vote, represent and exercise on behalf of the Corporation all rights incident
to any and all shares of other corporations standing in the name of the
Corporation. This authority may be exercised by such officers either in
person or by a duly executed proxy or power of attorney.
<PAGE>
EXHIBIT A
Section 1.1. Date and time of annual shareholders' meeting: First Tuesday
in November at 10:00 a.m.
Section 2.1. Number of members of Board of Directors, unless and until
changed by resolution of the Board of Directors: One
Section 6. Fiscal year: June 1 through May 31
Section 7. Corporate Seal: As imprinted on this page.
Date Bylaws Adopted: September 20, 1996
Exhibit 4.1
[Form of the Face of the Common Stock Certificate]
NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT
[LOGO]
NUMBER 100,000,000 Authorized Shares of Common SHARES
Stock
- -------- Par Value:$.001 per share -------
5,000,000 Authorized Shares of Preferred
Stock
Par Value:$.001 per share
PACIFIC AEROSPACE & ELECTRONICS, INC.
Organized under the laws of the State of Washington
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF COMMON
SHARES OF
PACIFIC AEROSPACE & ELECTRONICS, INC.
transferrable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this certificate property endorsed. This
certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/ Sheryl A. Symonds [SEAL] /s/ Donald A. Wright
- --------------------------- -------------------------
Secretary President
INTERWEST TRANSFER CO. INC. P.O. BOX 17136/ SALT LAKE CITY UTAH 84117
COUNTERSIGNED & REGISTERED ___________________________________________________
COUNTERSIGNED Transfer Agent - Authorized Signature
<PAGE>
[Form of the Reverse of the Common Stock Certificate]
NOTICE: Signature must be guaranteed by a firm which is a member of a
registered national stock exchange, or by a bank (other than a
saving bank), or a trust company. 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 the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
Survivorship and not as tenants Act ________________________
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 code, of assignee.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Shares of the capital 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
Exhibit 4.2
[Form of the Face of the Warrant Certificate]
VOID AFTER 5 P.M. MOUNTAIN TIME ON JULY 15, 2001
WARRANTS TO PURCHASE COMMON STOCK
W_____ _________ Warrants
PACIFIC AEROSPACE & ELECTRONICS, INC.
CUSIP 693758 11 2
THIS CERTIFIES THAT
or registered assigns, is the registered holder of the number of Warrants
("Warrants") set forth above. Each Warrant entitles the holder thereof to
purchase from Pacific Aerospace & Electronics, Inc. , a Washington
corporation ("Company"), subject to the terms and conditions set forth
hereinafter and in the Warrant Agreement hereinafter more fully described
("Warrant Agreement"), one fully paid and nonassessable share of common
stock, $0.001 par value, of the Company ("Common Stock") upon presentation
and surrender of this Warrant Certificate, with the Election to Purchase on
the reverse side of this Warrant Certificate filled in, together with
payment of the Exercise Price (as defined in the Warrant Agreement) and any
applicable taxes, paid either in cash, by wire transfer of good funds or by
certified or official bank check, payable in lawful money of the United
States of America to the order of the Company, at any time prior to 5:00
P.M., Mountain time, on July 15, 2001 or, if such Warrant is redeemed as
provided in the Warrant Agreement, at any time prior to the effective time
of such redemption, at the stock transfer office in Holladay, Utah, of
Interwest Transfer Co., Inc., warrant agent of the Company ("Warrant
Agent"), or at the designated office of its successor warrant agent or, if
there be no successor warrant agent, at the corporate offices of the
Company.
Each Warrant initially entitles the holder to purchase one share of
Common Stock for $4.6875, subject to certain adjustments, including, if the
Company's audited fiscal 1997 net income (adjusted to exclude any expense
relating to the vesting of any employee options or warrants) does not
exceed $1,500,000, a one-time downward adjustment of the Exercise Price to
(i) $3.90625 if such net income is $800,000 to $1,500,000, (ii) $3.125 such
net income is $500,000 to $799,999, or (iii) $2.34375 if such net income is
less than $500,000. The number and kind of securities or other property for
which the Warrants are exercisable are subject to further adjustment in
certain events, such as mergers, splits, stock dividends, recapitalizations
and the like, to prevent dilution, as described in the Warrant Agreement.
The Company may redeem any or all outstanding and unexercised Warrants
at any time upon 30 days' notice, at a price equal to $0.25 per Warrant, if
the Daily Price (as defined below) has equaled or exceeded 200% of the
then-current Exercise Price of the Warrants for 20 consecutive trading days
immediately preceding the date of notice of such redemption. The
<PAGE>
term "Daily Price" means, for any relevant day, the closing bid price on that
day as reported by the principal exchange or quotation system on which prices
for the Common Stock are reported. All Warrants not previously exercised or
redeemed will expire on July 15, 2001.
This Warrant Certificate is subject to all of the terms, provisions and
conditions of the Warrant Agreement, dated as of July 1, 1996, between the
Company and the Warrant Agent ("Warrant Agreement"). The registered holder
of this Warrant Certificate consents to all of such terms, provisions and
conditions by acceptance of this Warrant Certificate. The Warrant Agreement
is incorporated herein by reference and made a part hereof, and reference
is made to the Warrant Agreement for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Warrant
Agent, the Company and the holders of the Warrant Certificates. Copies of
the Warrant Agreement are available for inspection at the stock transfer
office of the Warrant Agent or may be obtained upon written request
addressed to the Company at 434 Olds Station Road, Wenatchee, Washington
98801, Attention: President.
The Company shall not be required upon the exercise of the Warrants
evidenced by this Warrant Certificate to issue fractions of Warrants,
Common Stock or other securities, but shall have the option to issue
fractions of Warrants, Common Stock or other securities or to make
adjustment therefor in cash on the basis of the current market value of any
fractional interest as provided in the Warrant Agreement.
In certain cases, the sale of securities by the Company upon exercise
of Warrants would violate the securities laws of the United States, certain
states thereof or other jurisdictions. The Company has agreed to use all
commercially reasonable efforts to cause a registration statement to
continue to be effective during the term of the Warrants with respect to
such sales under the Securities Act of 1933, as amended, and to take such
action under the laws of various states as may be required to cause the
sale of securities upon exercise to be lawful. However, the Company will
not be required to honor the exercise of Warrants if, in the opinion of the
Board of Directors of the Company, upon advice of counsel, the sale of
securities upon such exercise would be unlawful. In certain cases, the
Company may, but is not required to, purchase Warrants submitted for
exercise for a cash price equal to the difference between the market price
of the securities obtainable upon such exercise and the exercise price of
such Warrants.
This Warrant Certificate, with or without other Warrant Certificates,
upon proper surrender to the Warrant Agent, any successor warrant agent or,
in the absence of any successor warrant agent, at the corporate offices of the
Company, may be exchanged for another Warrant Certificate or Warrant
Certificates evidencing in the aggregate the same number of Warrants as the
Warrant Certificate or Warrant Certificates so surrendered. If the Warrants
evidenced by this Warrant Certificate shall be exercised in part, the
holder hereof shall be entitled to receive upon surrender hereof another
Warrant Certificate or Warrant Certificates evidencing the number of
Warrants not so exercised.
No holder of this Warrant Certificate, as such, shall be entitled to
vote, receive dividends or be deemed the holder of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise
hereof for any purpose whatever. Nothing contained in the Warrant Agreement
or herein may be construed to confer upon the holder of this Warrant
Certificate, as such, any of the rights of a stockholder of the Company,
any right
<PAGE>
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, any right to give or withhold consent
to any corporate action (whether at any meeting of stockholders or by
giving or withholding consent to any merger, recapitalization, issuance of
stock, reclassification of stock, change of par value or change of stock to
no par value, consolidation, conveyance or otherwise) or any right to
receive notice of meetings or other actions affecting stockholders (except
as provided in the Warrant Agreement). No holder of this Warrant
Certificate shall have any right to receive dividends or subscription
rights or any other rights that any stockholders of the Company may have
until the Warrants evidenced by this Warrant Certificate shall have been
exercised and the Common Stock purchasable upon the exercise thereof shall
have become deliverable as provided in the Warrant Agreement.
If this Warrant Certificate is surrendered for exercise within any
period during which the transfer books for the Company's Common Stock or
other class of stock purchasable upon the exercise of the Warrants evidenced
by this Warrant Certificate are closed for any purpose, the Company shall not
be required to deliver certificates for shares of Common Stock purchasable
upon such transfer until the date of the reopening of said transfer books.
Every holder of this Warrant Certificate by accepting the same consents
and agrees with the Company, the Warrant Agent, and with every other holder of
a Warrant Certificate that:
(a) this Warrant Certificate is transferable on the transfer books of
the Warrant Agent only upon the terms and conditions set forth in the Warrant
Agreement, and
(b) the Company and the Warrant Agent may deem and treat the person in
whose name this Warrant Certificate is registered as the absolute owner hereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company or the Warrant Agent) for all purposes whatever,
and neither the Company nor the Warrant Agent shall be affected by any notice
to the contrary.
The Company shall not be required to issue or deliver any certificate for
shares of Common Stock or other securities upon the exercise of Warrants
evidenced by this Warrant Certificate until any tax which may be payable in
respect thereof by the holder of this Warrant Certificate pursuant to the
Warrant Agreement shall have been paid, such tax being payable by the holder
of this Warrant Certificate at the time of surrender.
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Warrant Agent.
<PAGE>
WITNESS the facsimile signature of a duly authorized officer of the
Company.
Dated: July 15, 1996.
PACIFIC AEROSPACE & ELECTRONICS, INC.
[SEAL]
By: /s/ Donald A. Wright
----------------------------------
President
INTERWEST TRANSFER CO. INC. P.O. BOX 17136/ SALT LAKE CITY UTAH 84117
COUNTERSIGNED & REGISTERED ___________________________________________________
COUNTERSIGNED Transfer Agent - Authorized Signature
<PAGE>
[Form of the Reverse of the Warrant Certificate]
ELECTION TO PURCHASE
[To be executed by the Registered Holder to exercise Warrants]
The undersigned Registered Holder hereby irrevocably elects to exercise
the right, represented by this Warrant Certificate, to purchase shares
and herewith tenders payment for such shares in cash or by a certified or
official bank check payable to the order of the Company or has made a wire
transfer to the Company of good funds in the amount of ______________________
and in accordance with the terms hereof. The undersigned requests that a
certificate for such shares be registered in the name of ______________________
__________________ whose address is __________________________________________
and that such certificate be delivered to ____________________________________
whose address is _____________________________________________________________.
If said number of shares is less than all of the shares purchasable
hereunder, the undersigned requests that a new Warrant Certificate
representing Warrants to purchase the remaining balance of the shares be
registered in the name of ____________________________________________________
whose address is _____________________________________________________________
and that such certificate be delivered to ____________________________________
- -------------------------------------------.
Dated:________________________ Signature___________________________________
(Signature must conform in all
respects to name of Registered
Holder as it appears on the face
of the Warrant Certificate.)
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
Signature Guaranteed:
<PAGE>
ASSIGNMENT
(To be executed by the Registered Holder to transfer Warrants)
FOR VALUE RECEIVED, the undersigned Registered Holder hereby sells,
assigns and transfers unto
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Please print name and address of assignee)
____________________________________ of the Warrants evidenced by this Warrant
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ____________________________________
as Attorney to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: __________________________ Signature __________________________________
(Signature must conform in all
respects to name of Registered
Holder as it appears on the face
of the Warrant Certificate.)
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
Signature Guaranteed:
