SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-A/A
Amendment No. 3
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PRECISION CASTPARTS CORP.
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(Exact name of registrant as specified in its charter)
Oregon 93-0460598
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(State of incorporation or (IRS Employer Identification No.)
organization)
4600 SE Harney Drive, Portland, Oregon 97206
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(Address of principal executive offices) (zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common stock New York Stock Exchange
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If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A(c)(1),
please check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant
to General Instruction A(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
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Holders of Common Stock are entitled to receive dividends as may from
time to time be declared by the Board of Directors of the Company out of
funds legally available therefor. Holders of Common Stock are entitled to
one vote per share on all matters on which the holders of Common Stock are
entitled to vote and do not have any cumulative voting rights. Holders of
Common Stock have no preemptive, conversion, redemption or sinking fund
rights. In the event of a liquidation, dissolution or winding up of the
Company, holders of Common Stock are entitled to share equally and ratably
in the assets of the Company, if any, remaining after the payment of all
liabilities of the Company and the liquidation preference of any
outstanding class or series of Preferred Stock. The rights, preferences and
privileges of holders of Common Stock are subject to any series of
Preferred Stock that the Company may issue in the future, as described
below. The Company's Restated Articles of Incorporation, as amended, limit
the personal liability of a director to the Company or its shareholders for
monetary damages for conduct as a director, except such limitation does not
apply to (i) any breach of the director's duty of loyalty to the Company or
its shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) any unlawful
distribution or (iv) any transaction from which the director derived an
improper personal benefit.
The Company's Bylaws, as amended, set the number of directors at a
minimum of seven and maximum of twelve and provide for three classes of
directors. Directors serve three-year terms with one class of directors
being elected each year. The Company's Restated Articles of Incorporation,
as amended, require the affirmative vote of 75 percent of the shares
entitled to vote thereon in connection with the removal of any director of
the Company without cause or any amendment to the Articles of Incorporation
relating to such requirement.
The Company's Restated Articles of Incorporation, as amended, require,
in most cases, the affirmative vote of 80 percent of the Company's voting
stock to approve a Business Combination between the Company (or a company
controlled by or under common control with the Company) and any person who
owns 15 percent or more of the Company's voting stock ( a "Substantial
Stockholder") or any Business Combination in which a Substantial
Stockholder has an interest (except proportionately as a stockholder of the
Company). For this purpose, a Business Combination is defined to include
mergers, acquisitions or sales of all or substantially all of the assets of
an entity and other similar arrangements. If there is at such time a
Substantial Stockholder, other than a person who served as a director of
the Company on June 28, 1983 or immediately prior to the time the
Substantial Stockholder in question became a Substantial Stockholder, these
provisions of the Restated Articles of Incorporation may not be amended,
altered, changed or repealed except by the affirmative vote of at least 80
percent of the Company's voting stock.
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Shareholder Rights Plan
On October 31, 1988, the Company adopted a shareholder rights plan
("Rights Plan") and declared a dividend distribution of one right for each
outstanding share of Common Stock, payable to holders of record on
December 16, 1988. Pursuant to the Rights Plan, as amended February 24,
1989, under certain conditions, each right may be exercised to purchase
1/100 of a share of Series A No Par Serial Preferred Stock at a purchase
price of $135, subject to adjustment. The rights will be exercisable only
(i) if a person or group has acquired, or obtained the right to acquire, 20
percent or more of the outstanding shares of Common Stock, (ii) following
the commencement of a tender or exchange offer for 20 percent or more of
the outstanding shares of Common Stock, or (iii) after the Board of
Directors of the Company declares any person who owns more than 10 percent
of the outstanding shares of Common Stock to be an Adverse Person, as
defined in the Rights Plan. Each right will entitle its holder to receive,
upon exercise, Common Stock, (or, in certain circumstances, cash, property
or other security of the Company) having a value equal to two times the
exercise price of the right. If, after a person acquires 20 percent or more
of the outstanding shares of Common Stock, the Company is acquired in a
merger or other business combination in which the Company does not survive
or in which its Common Stock is exchanged, each right will be adjusted to
entitle its holder to receive, upon exercise, common stock of the acquiring
company having a value equal to two times the exercise price of the right.
The rights expire on December 16, 1998 and may be redeemed by the Company
for $.01 per right at any time until a determination is made that any
person is an Adverse Person or 10 days following the time that a person has
acquired 20 percent or more of the outstanding Common Stock, or in
connection with certain transactions approved by the Board of Directors of
the company. The rights to not have voting or dividend rights, and until
they become exercisable, have no dilutive effect on the earnings of the
Company.
Preferred Stock
The Board of Directors has the authority to issue Preferred Stock in
one or more series and to fix the number of shares constituting any such
series and the preferences, limitations and relative rights, including
dividend rights, dividend rate, voting rights, terms of redemption,
redemption price or prices, conversion rights and liquidation preferences
of the shares constituting any series, without any further vote or action
by the shareholders of the Company. The issuance of Preferred Stock by the
Board of Directors could adversely affect the rights of holders of Common
Stock.
The potential issuance of Preferred Stock may have the effect of
delaying or preventing a change in control of the Company, may discourage
bids for the Common Stock at a premium over the market price of the Common
Stock and may adversely affect the market price of, and the voting and
other rights of the holders of, Common Stock. The Company has no plans to
issue shares of Preferred Stock.
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Oregon Control Share and Business Combination Statutes
The Company is subject to the Oregon Control Share Act (the "Control
Share Act"). The Control Share Act generally provides that a person (the
"Acquiror") who acquires voting stock of an Oregon corporation in a
transaction that results in the Acquiror holding more than 20%, 33 1/3% or
50% of the total voting power of the corporation (a "Control Share
Acquisition") cannot vote the shares it acquires in the Control Share
Acquisition ("control shares") unless voting rights are accorded to the
control shares by (i) a majority of each voting group entitled to vote and
(ii) the holders of a majority of the outstanding voting shares, excluding
the control shares held by the Acquiror and shares held by the Company's
officers and inside directors. The term "Acquiror" is broadly defined to
include persons acting as a group.
The Acquiror may, but is not required to, submit to the Company a
statement setting forth certain information about the Acquiror and its
plans with respect to the Company. The statement may also request that the
Company call a special meeting of shareholders to determine whether voting
rights will be accorded to the control shares. If the Acquiror does not
request a special meeting of shareholders, the issue of voting rights of
control shares will be considered at the next annual or special meeting of
shareholders. If the Acquiror's control shares are accorded voting rights
and represent a majority or more of all voting power, shareholders who do
not vote in favor of voting rights for the control shares will have the
right to receive the appraised "fair value" of their shares, which may not
be less than the highest price paid per share by the Acquiror for the
control shares.
The Company is also subject to certain provisions of the Oregon
Business Corporation Act that govern business combinations between
corporations and interested shareholders (the "Business Combination Act").
The Business Combination Act generally provides that if a person or entity
acquires 15% or more of the voting stock of an Oregon corporation (an
"Interested Shareholder"), the corporation and the Interested Shareholder,
or any affiliated entity of the Interested Shareholder, may not engage in
certain business combination transactions for three years following the
date the person became an Interested Shareholder. Business combination
transactions for this purpose include (a) a merger or plan of share
exchange, (b) any sale, lease, mortgage or other disposition of 10% or more
of the assets of the corporation and (c) certain transactions that result
in the issuance of capital stock of the corporation to the Interested
Shareholder. These restrictions do not apply if (i) the Interested
Shareholder, as a result of the transaction in which such person became an
Interested Shareholder, owns at least 85% of the outstanding voting stock
of the corporation (disregarding shares owned by directors who are also
officers and certain employee benefit plans), (ii) the board of directors
approves the share acquisition or business combination before the
Interested Shareholder acquired 15% or more of the corporation's voting
stock or (iii) the board of directors and the holders of at least
two-thirds of the outstanding voting stock of the corporation (disregarding
shares owned by the Interested Shareholder) approve the transaction after
the Interested Shareholder acquires 15% or more of the corporation's voting
stock.
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Item 2. Exhibits
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Exhibit Number Exhibit Title
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3.1 Restated Articles of Incorporation of the Company,
as amended
3.2 Bylaws of the Company, as amended
3.3 Shareholder Rights Plan, as amended (incorporated
by reference to Exhibit 1 to the Registrant's
Current Report on Form 8-K, dated November 9,
1988, and by reference to Exhibit 1 to the
Registrant's Current Report on Form 8- K, dated
March 3, 1989)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
PRECISION CASTPARTS CORP.
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(Registrant)
By: WILLIAM D. LARSSON
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William D. Larsson
Vice President and Chief Financial Officer
Dated: September 26, 1996
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EXHIBIT INDEX
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Sequential
Exhibit Number Exhibit Title Page No.
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3.1 Restated Articles of Incorporation
of the Company, as amended
3.2 Bylaws of the Company, as amended
3.3 Shareholder Rights Plan, as amended
(incorporated by reference to
Exhibit 1 to the Registrant's
Current Report on Form 8-K, dated
November 9, 1988, and by reference
to Exhibit 1 to the Registrant's
Current Report on Form 8-K, dated
March 3, 1989)
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ARTICLES OF AMENDMENT
OF THE
RESTATED ARTICLES OF INCORPORATION
OF
PRECISION CASTPARTS CORP.
Pursuant to ORS 60.437, Precision Castparts Corp. (the "Corporation")
has adopted amendments to its Restated Articles of Incorporation.
1. The name of the Corporation is Precision Castparts Corp.
2. Article II, Section 1 of the Corporation's Restated Articles of
Incorporation shall be amended to read in its entirety as follows:
"1. The aggregate number of shares which the
corporation shall have the authority to issue is one
hundred one million (101,000,000) shares, divided into
one hundred million (100,000,000) shares of Common
Stock, without par value, and one million (1,000,000)
shares of No Par Serial Preferred Stock, without par
value."
3. The foregoing amendment to Article II, Section 1 of the
Corporation's Restated Articles of Incorporation was adopted by the
Corporation's shareholders at the Corporation's annual meeting of
shareholders held August 7, 1996.
4. The foregoing amendment required approval by the holders of at
least a majority of the outstanding shares of Common Stock, voting as a
single class. The designation, number of outstanding shares and number of
votes entitled to be cast were as follows:
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Number of Number of
Outstanding Votes Entitled
Designation Shares to be Cast
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Common Stock 20,569,024 20,569,024
Preferred Stock 0 0
5. The number of votes cast for and against the amendment to Article
II, Section 1 of the Restated Articles of Incorporation were as follows:
Designation For Against
Common Stock 15,814,312 2,737,214
PRECISION CASTPARTS CORP.
By:
-----------------------------------------
William C. McCormick
Chairman of the Board, President and
Chief Executive Officer
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RESTATED ARTICLES OF INCORPORATION
OF
PRECISION CASTPARTS CORP.
ARTICLE I
The name of the corporation is Precision Castparts Corp.
ARTICLE II
1. The aggregate number of shares which the corporation shall have the
authority to issue is fifty-one million (51,000,000) shares, divided into
fifty million (50,000,000) shares of Common Stock, without par value, and
one million (1,000,000) shares of No Par Serial Preferred Stock, without
par value.
2. The preference, limitations and relative rights of the shares of
each class shall be as follows:
(i) No Par Serial Preferred Stock.
(a) Determination of Terms of Class. The corporation's board
of directors is hereby expressly granted authority to determine from
time to time and to the extent permitted by law the preferences,
limitations and relative rights of the No Par Serial Preferred Stock.
(b) Division Into Series. The corporation's board of
directors is hereby expressly granted authority to divide any or all
shares of the corporation's Preferred Stock into series designated
"Series ____ No Par Serial Preferred Stock" (inserting in each case a
distinguishing designation determined by the board of directors for
such series) and to fix and determine from time to time and to the
extent permitted by law the preferences, limitations and relative
rights of the shares of each series. Failure of the board of directors
to specify any preferences and rights in the resolution establishing
any series of the Preferred Stock shall be deemed a denial of any such
preferences and rights so omitted.
(ii) Common Stock. Subject to all the rights and preferences of
the Preferred Stock, the Common Stock shall have the following rights and
limitations:
(a) Dividends. Whenever there shall have been paid or set
aside for payment to the holders of the outstanding shares of
Preferred Stock and to the holders
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of outstanding shares of any other class of stock having preference
over the Common Stock as to the payment of dividends the full amount
of dividends and of sinking fund or purchase fund or other retirement
payments, if any, to which such holders are respectively entitled in
preference to the Common Stock, then dividends may be paid on the
Common Stock and on any class of series of stock entitled to
participate therewith as to dividends, out of any assets legally
available for the payment of dividends, but only when and as declared
by the board of directors, provided that dividends payable in Common
Stock or in any other class of stock ranking as to dividends and
assets subordinate to the Preferred Stock may be paid without regard
to the status of payments to the holders of Preferred Stock or other
classes of stock.
(b) Voting Rights. Holders of Common Stock shall be entitled
to one vote per share on any matter submitted to the shareholders.
(c) Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the corporation, after there shall have
been paid to or set aside for the holders of the shares of Preferred
Stock and any other class of stock having preference over the Common
Stock in the event of liquidation, the full preferential amounts to
which they are respectively entitled, the holders of the Common Stock
and of any class or series of stock entitled to participate therewith,
in whole or in part, as to the distribution of assets, shall be
entitled to receive the remaining assets of the corporation available
for distribution.
3. The preemptive right of shareholders to acquire additional or
treasury shares of stock in this corporation is expressly denied.
4. There is hereby created a series of No Par Serial Preferred Stock
of the corporation with the designation, preferences, limitations and
relative rights as follows:
(i) Designation and Amount. The shares of such series shall be
designated as "Series A No Par Serial Preferred Stock" and the number of
shares constituting such series shall be 200,000.
(ii) Dividends and Distributions.
(a) The holders of shares of Series A No Par Serial
Preferred Stock shall be entitled to receive, when and as declared by
the board of directors, out of funds
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legally available for the purpose, dividends in an amount per share
equal to, 100 (the "Adjustment Number") multiplied by the aggregate
per share amount of all cash dividends, and the Adjustment Number
multiplied by the aggregate per share amount (payable in kind) of all
non- cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on
the Common Stock, without par value, of the corporation (the "Common
Stock") after the first issuance of any share or fraction of a share
of Series A No Par Serial Preferred Stock.
(b) The corporation shall declare a dividend or distribution
on the Series A No Par Serial Preferred Stock as provided in paragraph
(a) above at the same time that it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common
Stock).
(c) Dividends shall not be cumulative. Unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A No
Par Serial Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding.
(iii) Voting Rights. Except as otherwise provided by law, each
share of Series A No Par Serial Preferred Stock shall be entitled to a
number of votes equal to the Adjustment Number on any matter submitted to
the shareholders and the Series A No Par Serial Preferred Stock, any other
series of Preferred Stock and the Common Stock shall vote together as one
class.
(iv) Certain Restrictions.
(a) Whenever dividends or distributions payable on the
Series A No Par Serial Preferred Stock as provided in Section (ii)
have not been declared or paid for any fiscal year, until all such
dividends and distributions for such fiscal year on shares of Series A
No Par Serial Preferred Stock outstanding shall have been declared and
paid in full, the corporation shall not in such fiscal year:
(i) declare or pay dividends on or make any other
distributions on any shares of stock ranking junior or on a
parity (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A No Par Serial Preferred Stock
except
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dividends paid ratably on the Series A No Par Serial Preferred
Stock and all such parity stock on which dividends are payable in
proportion to the total amounts to which the holders of all such
shares are then entitled and dividends or distributions payable
in Common Stock;
(ii) purchase or otherwise acquire for consideration
any shares of Series A No Par Serial Preferred Stock or any
shares of stock ranking on a parity with the Series A No Par
Serial Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the
board of directors) to all holders of such shares upon such terms
as the board of directors, after consideration of the respective
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective
series or classes.
(b) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any
shares of stock of the corporation unless the corporation could, under
paragraph (a) of this Section (iv), purchase or otherwise acquire such
shares at such time and in such manner.
v. Restriction on Issuance of Shares; Reacquired Shares. The
corporation shall not issue any shares of Series A No Par Serial Preferred
Stock except upon exercise of rights (the "Rights") issued pursuant to the
Rights Agreement dated as of October 31, 1988, between the corporation and
First Interstate Bank of Oregon, N.A. (the "Rights Agreement"), a copy of
which is on file with the secretary of the corporation at its principal
executive office and shall be made available to stockholders of record
without charge upon written request. Any shares of Series A No Par Serial
Preferred Stock purchased or otherwise acquired by the corporation in any
manner whatsoever may be restored to the status of authorized but unissued
shares after the acquisition thereof. All such shares shall upon any such
restoration become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
the board of directors, subject to the conditions and restrictions on
issuance set forth herein.
vi. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the corporation,
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no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A No Par Serial Preferred
Stock unless, prior thereto, the holders of shares of Series A No Par
Serial Preferred Stock shall have received the Adjustment Number
multiplied by the per share amount to be distributed to holders of
Common Stock, plus an amount equal to declared and unpaid dividends
and distributions thereon to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full amount of
the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A No Par Serial Preferred
Stock.
(b) In the event that there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
Preferred Stock, if any, which rank on a parity with the Series A No
Par Serial Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences.
vii. Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
the shares of Series A No Par Serial Preferred Stock shall at the same time
be similarly exchanged or changed in an amount per share equal to the
Adjustment Number multiplied by the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be, into
which or for which each share of Common Stock is changed or exchanged.
viii. Anti-Dilution Adjustments to Adjustment Number. In the
event the corporation shall at any time after October 31, 1988 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number for all purposes of this
subparagraph viii of Article II shall be adjusted by multiplying the
Adjustment Number then in effect by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. In the event the
corporation shall at any time after the Rights Declaration Date, fix a
record date for the issuance of rights, options or
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warrants to all holders of Common Stock entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for
or purchase Common Stock or securities convertible into Common Stock at a
price per share of Common Stock (or having a conversion price per share, if
a security convertible into Common Stock) less than the then Current Per
Share Market Price of the Common Stock (as defined in Section 11(d) of the
Rights Agreement) on such record date, then in each such case the
Adjustment Number for all purposes of this Article II(4) shall be adjusted
by multiplying the Adjustment Number then in effect by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible) and the
denominator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common
Stock so to be offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase at such Current
Per Share Market Price (as defined in Section 11(d) of the Rights
Agreement). In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the board of
directors. Common Stock owned by or held for the account of the corporation
shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is
fixed. In the event that such rights, options or warrants are not so
issued, the Adjustment Number shall be readjusted as if such record date
had not been fixed; and to the extent such rights, options or warrants are
issued but not exercised prior to their expiration, the Adjustment Number
shall be readjusted to be the number which would have resulted from the
adjustment provided for in this subparagraph viii if only the rights,
options or warrants that were exercised had been issued.
ix. No Redemption. The shares of Series A No Par Serial Preferred
Stock shall not be redeemable at the option of the corporation or any
holder thereof. Notwithstanding the foregoing sentence, the corporation may
acquire shares of Series A No Par Serial Preferred Stock in any other
manner permitted by law.
x. Amendment. Subsequent to the Distribution Date (as defined in
the Rights Agreement) these Articles of Incorporation shall not be further
amended in any manner which would materially alter or change the
preferences, limitations and relative rights of the Series A No Par Serial
Preferred
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Stock so as to affect them adversely without the affirmative vote of the
holders of a majority of the outstanding shares of Series A No Par Serial
Preferred Stock, voting separately as a class.
xi. Fractional Shares. Series A No Par Serial Preferred Stock may
be issued in fractions of a share in integral multiples of one
one-hundredth of a share, which shall entitle the holder, in proportion to
such holders' fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A No Par Serial Preferred Stock.
ARTICLE III
Vacancies created on the board of directors by reason of an
increase in the number of directors may be filled by affirmative vote of a
majority of the directors holding office at the time the increase is made
effective, provided however, that not more than one such vacancy may be so
filled in any calendar year.
ARTICLE IV
All or any number of the directors of the corporation may be
removed without cause at a meeting of shareholders called expressly for
that purpose, by the vote of the holders of 75 percent of the shares then
entitled to vote at an election of directors. This provision shall not
affect any right of the shareholders to remove a director for cause. This
provision may not be amended, altered, changed or repealed in any respect
unless such action is approved by the affirmative vote of the holders of
not less than 75 percent of the shares then entitled to vote at an election
of directors.
ARTICLE V
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for conduct as a
director; provided that this Article V shall not eliminate the liability of
a director for any act or omission for which such elimination of liability
is not permitted under the Oregon Business Corporation Act. No amendment to
the Oregon Business Corporation Act that further limits the acts or
omissions for which elimination of liability is permitted shall affect the
liability of a director for any act or omission which occurs prior to the
effective date of such amendment.
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ARTICLE VI
The corporation may indemnify to the fullest extent permitted by
law any person who is made, or threatened to be made, a party to an action,
suit or proceeding, whether civil, criminal, administrative, investigative,
or otherwise (including an action, suit or proceeding by or in the right of
the corporation) by reason of the fact that the person is or was a director
or officer of the corporation or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any
employee benefit plan of the corporation, or serves or served at the
request of the corporation as a director or officer, or as a fiduciary of
an employee benefit plan, of another corporation, partnership, joint
venture, trust or other enterprise. This Article shall not be deemed
exclusive of any other provisions for indemnification of directors,
officers and fiduciaries that may be included in any statute, bylaw,
agreement, resolution of shareholders or directors or otherwise, both as to
action in any official capacity and action in another capacity while
holding office.
ARTICLE VII
The corporation's board of directors shall have the power to
amend or repeal any of the bylaws of the corporation or adopt new bylaws.
Any shareholder proposal to amend or repeal any of the bylaws shall require
the affirmative vote of the holders of (i) 75 percent of the votes cast on
the proposal at a meeting of shareholders at which a quorum is present, and
(ii) 51 percent of the shares then entitled to vote at an election of
directors. This provision may not be amended, altered, changed or repealed
in any respect unless such action is approved by the same affirmative vote
set forth in the preceding sentence.
ARTICLE VIII
1. Whether or not a vote of stockholders is otherwise required, the
affirmative vote of the holders of not less than 80 percent of the
outstanding shares of "Voting Stock" (as hereinafter defined) of the
corporation shall be required for the approval or authorization of any
"Business Combination" (as hereinafter defined) with any "Substantial
Shareholder" (as hereinafter defined) or any Business Combination in which
a Substantial Shareholder has an interest (except proportionately as a
stockholder of the corporation); provided, however, that the 80 percent
voting requirement shall not be applicable if either:
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(i) The "Continuing Directors" (as hereinafter defined) of the
corporation by at least a two-thirds vote (a) have expressly approved in
advance the acquisition of the outstanding shares of Voting Stock that
caused such Substantial Shareholder to become a Substantial Shareholder, or
(b) have expressly approved such Business Combination; or
(ii) The cash or fair market value (as determined by at least a
majority of the Continuing Directors) of the property, securities or other
consideration to be received per share by holders of Voting Stock of the
corporation (other than the Substantial Shareholder) in the Business
Combination is not less than the "Highest Per Share Price" or the "Highest
Equivalent Price" (as those terms are hereinafter defined) paid by the
Substantial Shareholder involved in the Business Combination in acquiring
any of its holdings of the corporation's Voting Stock acquired in the last
two years.
2. For purposes of this Article VIII:
(i) The term "Business Combination" shall include, without
limitation, (a) any merger, exchange or consolidation of the corporation,
or any entity controlled by or under common control with the corporation,
with or into any Substantial Shareholder, or any entity controlled by or
under common control with such Substantial Shareholder, (b) any merger,
exchange or consolidation of a Substantial Shareholder, or any entity
controlled by or under common control with such Substantial Shareholder,
with or into the corporation or any entity controlled by or under common
control with the corporation, (c) any sale, lease, exchange, transfer or
other disposition (in one transaction or a series of transactions),
including without limitation a mortgage or any other security device, of
all or any "Substantial Part" (as hereinafter defined) of the property and
assets of the corporation, or any entity controlled by or under common
control with the corporation, to a Substantial Shareholder, or any entity
controlled by or under common control with such Substantial Shareholder,
(d) any purchase, lease, exchange, transfer or other acquisition (in one
transaction or a series of transactions), including without limitation a
mortgage or any other security device, of all or any Substantial Part of
the property and assets of a Substantial Shareholder or any entity
controlled by or under common control with such Substantial Shareholder, by
the corporation, or any entity controlled by or under common control with
the corporation, (e) any recapitalization of the corporation that would
have the effect of increasing the voting power of a Substantial
Shareholder, (f) the issuance, sale, exchange or other disposition of any
securities of the corporation, or of any entity controlled by or under
common control with the corporation, by the
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corporation or by any entity controlled by or under common control with the
corporation, (g) any liquidation, spinoff, splitoff, splitup or dissolution
of the corporation, and (h) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(ii) The term "Substantial Shareholder" shall mean and include
(a) any "Person" (as that term is defined in Section 2(2) of the Securities
Act of 1933, as in effect on May 10, 1983) which, together with its
"Affiliates" (as hereinafter defined) and "Associates" (as hereinafter
defined), "Beneficially Owns" (as defined in Rule 13d-3 of the General
Rules and Regulations under the Securities Exchange Act of 1934 as in
effect at May 10, 1983) in the aggregate 15 percent or more of the
outstanding Voting Stock of the corporation, and (b) any Affiliate or
Associate (other than the corporation or a wholly owned subsidiary of the
corporation) of any such Person. Two or more Persons acting in concert for
the purpose of acquiring, holding or disposing of Voting Stock of the
corporation shall be deemed a "Person."
(iii) Without limitation, any share of Voting Stock of the
corporation that any Substantial Shareholder has the right to acquire at
any time (notwithstanding that Rule 13d-3 deems such shares to be
beneficially owned if such right may be exercised within 60 days) pursuant
to any agreement, contract, arrangement or understanding, or upon exercise
of conversion rights, warrants or options, or otherwise, shall be deemed to
be Beneficially Owned by such Substantial Shareholder and to be outstanding
for purposes of subparagraph (ii) above.
(iv) For the purposes of subparagraph (ii) of paragraph 1 of
Article VIII, the term "other consideration to be received" shall include,
without limitation, Common Stock or other capital stock of the corporation
retained by its existing shareholders, other than any Substantial
Shareholder or other Person who is a party to such Business Combination, in
the event of a Business Combination in which the corporation is the
survivor.
(v) The term "Voting Stock" shall mean all of the outstanding
shares of capital stock of the corporation entitled to vote generally in
the election of directors, considered as one class, and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of the
votes entitled to be cast by such shares.
(vi) The term "Continuing Director" shall mean a director of the
corporation who served as a director on June 28, 1983 or who was a member
of the board of directors of
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the corporation immediately prior to the time that the Substantial
Shareholder involved in a Business Combination became a Substantial
Shareholder.
(vii) A Substantial Shareholder shall be deemed to have acquired
a share of the Voting Stock of the corporation at the time when such
Substantial Shareholder became the Beneficial Owner thereof. With respect
to the shares owned by Affiliates, Associates or other Persons whose
ownership is attributed to a Substantial Shareholder under the foregoing
definition of Substantial Shareholder, if the price paid by such
Substantial Shareholder for such shares is not determinable by a majority
of the Continuing Directors, the price so paid shall be deemed to be the
higher of (a) the price paid upon the acquisition thereof by the Affiliate,
Associate or other Person or (b) the market price of the shares in question
at the time when such Substantial Shareholder became the Beneficial Owner
thereof.
(viii) The terms "Highest Per Share Price" and "Highest
Equivalent Price" as used in this Article VIII shall mean the following: If
there is only one class of capital stock of the corporation issued and
outstanding, the Highest Per Share Price shall mean the highest price that
can be determined to have been paid at any time by the Substantial
Shareholder involved in the Business Combination for any share or shares of
that class of capital stock. If there is more than one class of capital
stock of the corporation issued and outstanding, the Highest Equivalent
Price shall mean, with respect to each class and series of capital stock of
the corporation, the amount determined by a majority of the Continuing
Directors, on whatever basis they believe is appropriate, to be the highest
per share price equivalent to the highest price that can be determined to
have been paid at any time by the Substantial Shareholder for any share or
shares of any class or series of capital stock of the corporation. The
Highest Per Share Price and the Highest Equivalent Price shall include any
brokerage commissions, transfer taxes and soliciting dealers' fees paid by
a Substantial Shareholder with respect to the shares of capital stock of
the corporation acquired by such Substantial Shareholder. In the case of
any Business Combination with a Substantial Shareholder, the Continuing
Directors shall determine the Highest Per Share Price or the Highest
Equivalent Price for each class and series of the capital stock of the
corporation. The Highest Per Share Price and Highest Equivalent Price shall
be appropriately adjusted to reflect the occurrence of any
reclassification, recapitalization, stock split, reverse stock split or
other readjustment in the number of outstanding shares of capital stock of
the corporation, or the declaration of a stock dividend thereon, between
the last date upon which the Substantial Shareholder paid the Highest
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Per Share Price of Highest Equivalent Price and the effective date of the
merger or consolidation or the date of distribution to stockholders of the
corporation of the proceeds from the sale of all or substantially all of
the assets of the corporation.
(ix) The term "Substantial Part" shall mean 15 percent or more of
the fair market value of the total assets of the Person in question, as
reflected on the most recent balance sheet of such Person existing at the
time the stockholders of the corporation would be required to approve or
authorize the Business Combination involving the assets constituting any
such Substantial Part.
(x) The term "Affiliate," used to indicate a relationship with a
specified Person, shall mean a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified.
(xi) The term "Associate," used to indicate a relationship with a
specified Person, shall mean (a) any entity of which such specified Person
is an officer or partner or is, directly or indirectly, the beneficial
owner of 10 percent or more of any class of equity securities, (b) any
trust or other estate in which such specified Person has a substantial
beneficial interest or as to which such specified Person serves as trustee
or in a similar fiduciary capacity, (c) any relative or spouse of such
specified Person, or any relative of such spouse, who has the same home as
such specified Person or who is a director or officer of the corporation or
any of its subsidiaries, and (d) any Person who is a director or officer of
such specified entity or any of its parents or subsidiaries (other than the
corporation or an entity controlled by or under common control with the
corporation).
3. For the purposes of this Article VIII, a majority of the Continuing
Directors shall have the power to make a good faith determination, on the
basis of information known to them, of: (i) the number of shares of Voting
Stock that any Person Beneficially Owns, (ii) whether a Person is an
Affiliate or Associate of another, (iii) whether a Person has an agreement,
contract, arrangement or understanding with another as to the matters
referred to in paragraph (2)(i)(h) or (2)(iii) hereof, (iv) whether the
assets subject to any Business Combination constitute a Substantial Part,
(v) whether any Business Combination is one in which a Substantial
Shareholder has an interest (except proportionately as a stockholder of the
corporation), and (vi) such other matters with respect to which a
determination is required under this Article VIII.
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4. The provisions set forth in this Article VIII may not be amended,
altered, changed or repealed in any respect unless such action is approved
by the affirmative vote of the holders of not less than a majority of the
outstanding shares of Voting Stock (as defined in this Article VIII) of the
corporation at a meeting of the shareholders duly called for the
consideration of such amendment, alteration, change or repeal; provided,
however, that if there is a Substantial Shareholder who is not a Continuing
Director, such action must also be approved by the affirmative vote of the
holders of not less than 80 percent of the outstanding shares of Voting
Stock.
13
BYLAWS
OF
PRECISION CASTPARTS CORP.
(as amended August 2, 1995)
ARTICLE I
SHAREHOLDERS MEETINGS AND VOTING
1.1 Annual Meeting.
(1) The annual meeting of the shareholders shall be held on the
first Wednesday in the month of August in each year, for the purpose of
electing directors and transacting only such other business as is properly
brought before the meeting in accordance with these Bylaws. If the date
fixed for the annual meeting is a legal holiday, the meeting shall be held
on the next succeeding business day. Failure to hold an annual meeting on
the stated date shall not affect the validity of any corporate action.
(2) To be properly brought before the meeting, business must be
either (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b) otherwise
properly brought before a meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
shareholder. In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive office of
the Corporation, not less than 50 days nor more than 75 days prior to the
meeting; provided, however, that in the event that less than 65 days'
notice or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the 15th day following the
day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made, whichever first occurs.
(3) A shareholder's notice to the Secretary shall set forth (a)
one or more matters appropriate for shareholder action that the shareholder
proposes to bring before the meeting, (b) a brief description of the
matters desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (c) the name and record address of
the shareholder, (d) the class and number of shares of the
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Corporation which shareholder owns or is entitled to vote, and (e) any
material interest of the shareholder in such matters.
(4) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance with
the procedure set forth in this Section 1.1; provided, however, that
nothing in this Section 1.1 shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting.
(5) The Chairman shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 1.1, and if he
should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
1.2 Special Meetings. A special meeting of the shareholders shall be
held if called by the Chairman or by the Board of Directors or if requested
by the holders of not less than one-tenth of all votes entitled to be cast
on any issue proposed to be considered at the meeting. A request by
shareholders to hold a special meeting shall be signed, dated and delivered
to the Secretary and shall set forth the information required by Section
1.1(3) of these Bylaws.
1.3 Place of Meetings. Meetings of the shareholders shall be held at
any place in or out of Oregon designated by the Board of Directors. If a
meeting place is not designated by the Board of Directors, the meeting
shall be held at the Corporation's principal office.
1.4 Notice of Meetings. Written or printed notice stating the date,
time and place of the shareholders meeting and, in the case of a special
meeting or a meeting for which special notice is required by law, the
purposes for which the meeting is called shall be mailed by the Corporation
to each shareholder entitled to vote at the meeting and, if required by
law, to any other shareholders entitled to receive notice, at the
shareholder's address shown in the Corporation's record of shareholders,
with postage prepaid, not earlier than 60 days nor less than 10 days before
the meeting date.
1.5 Conduct of Meeting. The officer presiding at any meeting of the
shareholders shall have authority to determine the agenda and order of
business at the meeting and to adopt such rules and regulations as may be
necessary or desirable to promote the fair and efficient conduct of the
business of the meeting.
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1.6 Waiver of Notice. A shareholder may at any time waive any notice
required by law, these Bylaws or the Articles of Incorporation. The waiver
shall be in writing, be signed by the shareholder entitled to the notice
and be delivered to the Corporation for inclusion in the minutes for filing
with the corporate records. A shareholder's attendance at a meeting waives
objection to (i) 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, and (ii) consideration of a
particular matter at the meeting that is not within the purposes described
in the meeting notice, unless the shareholder objects to considering the
matter when it is presented.
1.7 Fixing of Record Date. The Board of Directors may fix a record
date to determine the shareholders entitled to notice of a shareholders
meeting, demand a special meeting, vote, take any other action or receive
payment of any share or cash dividend or other distribution. This date
shall not be earlier than 70 days or, in the case of a meeting, later than
10 days before the meeting or action requiring a determination of
shareholders. The record date for any meeting, vote or other action of the
shareholders shall be the same for all voting groups. If not otherwise
fixed by the Board of Directors, the record date to determine shareholders
entitled to notice of and to vote at an annual or special shareholders
meeting is the close of business on the day before the notice is first
mailed or delivered to shareholders. If not otherwise fixed by the Board of
Directors, the record date to determine shareholders entitled to receive
payment of any share or cash dividend or other distribution is the close of
business on the day the Board of Directors authorizes the share or cash
dividend or other distribution.
1.8 Shareholders List for Meeting. After a record date for a meeting
is fixed, the Corporation shall prepare an alphabetical list of all
shareholders entitled to notice of the shareholders meeting. The list shall
be arranged by voting group and, within each voting group, by class or
series of shares, and it shall show the address of and number of shares
held by each shareholder. The shareholders list shall be available for
inspection by any shareholder, upon proper demand as may be required by
law, beginning two business days after notice of the meeting is given and
continuing through the meeting, at the Corporation's principal office or at
a place identified in the meeting notice in the city where the meeting will
be held. The Corporation shall make the shareholders list available at the
meeting, and any shareholder or the shareholder's agent or attorney shall
be entitled to inspect the list at any time during the meeting or any
adjournment. Refusal or failure to prepare or make available the
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shareholders list does not affect the validity of action taken at the
meeting.
1.9 Quorum; Adjournment.
(1) Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. A majority of the votes entitled to be cast on
the matter by the voting group constitutes a quorum of that voting group
for action on that matter.
(2) A majority of votes represented at the meeting, although less
than a quorum, may adjourn the meeting from time to time to a different
time and place without further notice to any shareholder of any
adjournment. At an adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted at the meeting
originally held.
(3) Once a share is represented for any purpose at a meeting, it
shall be present for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting unless a new record date is or must be
set for the adjourned meeting. A new record date must be set if the meeting
is adjourned to a date more than 120 days after the date fixed for the
original meeting.
1.10 Voting Requirements; Action Without Meeting.
(1) If a quorum exists, action on a matter, other than the
election of directors, by a voting group is approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing
the action, unless a greater number of affirmative votes is required by law
or the Articles of Incorporation. Unless otherwise provided in the Articles
of Incorporation, 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.
(2) Action required or permitted by law to be taken at a
shareholders meeting may be taken without a meeting if the action is taken
by all the shareholders entitled to vote on the action. The action must be
evidenced by one or more written consents describing the action taken,
signed by all the shareholders entitled to vote on the action and delivered
to the Secretary for inclusion in the minutes for filing with the corporate
records. Shareholder action taken by written consent is effective when the
last shareholder signs the consent, unless the consent specifies an earlier
or later effective date.
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1.11 Proxies. A shareholder may vote shares in person or by proxy. A
shareholder may appoint a proxy by signing an appointment form either
personally or by the shareholder's attorney-in-fact. An appointment of a
proxy is effective when received by the Secretary or other officer of the
Corporation authorized to tabulate votes. An appointment is valid for 11
months unless a different period is provided in the appointment form. An
appointment is revocable by the shareholder unless the appointment form
conspicuously states that it is irrevocable and the appointment is coupled
with an interest that has not been extinguished.
1.12 Acquisition of Control Shares. As provided in Section 10, Chapter
820, Oregon Laws 1987 and to the fullest extent permitted by that section,
the Corporation shall be authorized to require a holder of control shares
to sell the control shares to the Corporation for fair value. The term
"control shares" shall have the same meaning as that term has in Chapter
820, Oregon Laws 1987. The procedures for acquisition of control shares
pursuant to this section shall be that the Board of Directors shall
determine the fair value of the control shares and shall give notice to the
holder of the control shares of the fair value and the time at which
payment for the control shares will be available. The Corporation will then
make payment for the control shares against delivery of the shares.
ARTICLE II
BOARD OF DIRECTORS
2.1 Duties of Board of Directors. All corporate powers of the
Corporation shall be exercised by or under the authority of its Board of
Directors; the business and affairs of the Corporation shall be managed
under the direction of its Board of Directors.
2.2 Number, Tenure and Qualification. The number of directors of the
Corporation shall be at least seven (7) and no more than twelve (12).
Within this range, the number of directors shall initially be eleven, and
the number of directors shall be determined from time to time by the Board
of Directors. At the 1983 annual meeting of shareholders, the directors
shall be divided into three classes, as nearly equal in number as possible,
with the term of office of the first class ("Class I") to expire at the
1984 annual meeting of shareholders, the term of office of the second class
("Class II") to expire at the 1985 annual meeting of shareholders and the
term of office of the third class ("Class III") to expire at the 1986
annual meeting of shareholders. At each annual meeting of shareholders
following such initial classification and election, directors elected to
succeed those directors
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whose terms expire shall be elected to serve three-year terms and until
their successors are elected and qualified, so that the term of one class
of directors will expire each year. When the number of directors is changed
pursuant to this Section 2, any newly created directorships, or any
decrease in directorships, shall be so apportioned among the classes so as
to make all classes as nearly equal as possible, provided that no decrease
in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director. Directors need not be residents
of the State of Oregon or shareholders of the Corporation.
2.3 Shareholder Nomination of Directors. Not less than 50 days nor
more than 75 days prior to the date of any annual meeting of shareholders,
any shareholder who intends to make a nomination at the annual meeting
shall deliver a notice to the Secretary of the Corporation setting forth
(a) as to each nominee whom the shareholder proposes to nominate for
election or reelection as a director, (i) the name, age, business address
and residence address of the nominee, (ii) the principal occupation or
employment of the nominee, (iii) the class and number of shares of capital
stock of the Corporation which are beneficially owned by the nominee and
(iv) any other information concerning the nominee that would be required,
under the rules of the Securities and Exchange Commission, in a proxy
statement soliciting proxies for the election of such nominee; and (b) as
to the shareholder giving the notice, (i) the name and record address of
the shareholder and (ii) the class and number of shares of capital stock of
the Corporation which are beneficially owned by the shareholder; provided,
however, that in the event that less than 65 days' notice or prior public
disclosure of the date of the annual meeting is given or made to
shareholders, notice by the shareholder to be timely must be so delivered
not later than the close of business on the 15th day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. Such notice shall include a
signed consent to serve as a director of the Corporation, if elected, of
each such nominee. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve
as a director of the Corporation.
2.4 Regular Meetings. A regular meeting of the Board of Directors
shall be held without notice other than this Bylaw immediately after, and
at the same place as, the annual meeting of shareholders. The Board of
Directors may provide by resolution the time and place for the holding of
additional regular meetings in or out of Oregon without notice other than
the resolution.
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2.5 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chairman or by one-third of the
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix any place in or out of Oregon as the place for
holding any special meeting of the Board of Directors called by them.
2.6 Notice. Notice of the date, time and place of any special meeting
of the Board of Directors shall be given at least 24 hours prior to the
meeting by notice communicated in person, by telephone, telegraph,
teletype, other form of wire or wireless communication, mail or private
carrier. If written, notice shall be effective at the earliest of (a) when
received, (b) five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed postpaid and correctly addressed, or
(c) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested and the receipt is signed by or on
behalf of the addressee. Notice by all other means shall be deemed
effective when received by or on behalf of the director. Notice of any
regular or special meeting need not describe the purposes of the meeting
unless required by law or the Articles of Incorporation.
2.7 Waiver of Notice. A director may at any time waive any notice
required by law, these Bylaws or the Articles of Incorporation. Except as
set forth below, the waiver must be in writing, be signed by the director
entitled to the notice, specify the meeting for which notice is waived and
be filed with the minutes or corporate records. A director's attendance at
or participation in a meeting waives any required notice to the director of
the meeting unless the director at the beginning of the meeting, or
promptly upon the director's arrival, objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or
assent to action taken at the meeting.
2.8 Quorum. A majority of the number of directors set forth in Section
2.2 of these Bylaws shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors. If less than a quorum is
present at a meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice.
2.9 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, unless a different number is provided by law, the Articles of
Incorporation or these Bylaws.
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2.10 Meeting by Telephone Conference; Action Without Meeting.
(1) Directors may participate in a regular or special meeting by,
or conduct the meeting through, use of any means of communications by which
all directors participating may simultaneously hear each other during the
meeting. Participation in a meeting by this means shall constitute presence
in person at the meeting.
(2) Any action that is required or permitted to be taken at a
meeting of the Board of Directors may be taken without a meeting if one or
more written consents describing the action taken are signed by all of the
directors entitled to vote on the matter and included in the minutes or
filed with the corporate records reflecting the action taken. The action
shall be effective when the last director signs the consent, unless the
consent specifies an earlier or later effective date.
2.11 Vacancies. Any vacancy on the Board of Directors, including a
vacancy resulting from an increase in the number of directors, may be
filled by the shareholders, the Board of Directors, the remaining directors
if less than a quorum (by the vote of a majority thereof) or by a sole
remaining director. Not more than one vacancy resulting from an increase in
the number of directors may be filled by the Board of Directors during any
one period between annual meetings of shareholders of the Corporation. Any
vacancy not filled by the directors shall be filled by election at an
annual meeting or at a special meeting of shareholders called for that
purpose. A vacancy that will occur at a specified later date, by reason of
a resignation or otherwise, may be filled before the vacancy occurs, but
the new director may not take office until the vacancy occurs.
2.12 Compensation. By resolution of the Board of Directors, the
directors may be paid reasonable compensation for services as directors and
their expenses of attending meetings of the Board of Directors.
2.13 Presumption of Assent. A director who is present at a meeting of
the Board of Directors or a committee of the Board of Directors shall be
deemed to have assented to the action taken at the meeting unless (a) the
director's dissent or abstention from the action is entered in the minutes
of the meeting, (b) the director delivers a written notice of dissent or
abstention to the action to the presiding officer of the meeting before any
adjournment or to the Corporation immediately after the adjournment of the
meeting or (c) the director objects at the beginning of the meeting or
promptly upon the director's arrival to the holding of the meeting or
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transacting business at the meeting. The right to dissent or abstain is not
available to a director who voted in favor of the action.
2.14 Removal. All or any number of the directors may be removed
without cause at a meeting called expressly for that purpose, by a vote of
the holders of 75 percent of the shares then entitled to vote at an
election of directors. All or any number of the directors may be removed
with cause by the shareholders at a meeting called expressly for that
purpose.
2.15 Resignation. Any director may resign by delivering written notice
to the Board of Directors, its chairperson or the Corporation. Unless the
notice specifies a later effective date, a resignation notice shall be
effective upon the earlier of (a) receipt, (b) five days after its deposit
in the United States mails, if mailed postpaid and correctly addressed, or
(c) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by
addressee. Once delivered, a resignation notice is irrevocable unless
revocation is permitted by the Board of Directors.
ARTICLE III
COMMITTEES OF THE BOARD
3.1 Committees. The Board of Directors may create one or more
committees and appoint members of the Board of Directors to serve on them.
Each committee shall have two or more members. The creation of a committee
and appointment of members to it must be approved by a majority of all
directors in office when the action is taken. Subject to any limitation
imposed by the Board of Directors or by law, each committee may exercise
all the authority of the Board of Directors in the management of the
Corporation. A committee may not take any action that a committee is
prohibited from taking by the Oregon Business Corporation Act.
3.2 Changes of Size and Function. Subject to the provisions of law,
the Board of Directors shall have the power at any time to change the
number of committee members, fill committee vacancies, change any committee
members and change the functions and terminate the existence of a
committee.
3.3 Conduct of Meetings. Each committee shall conduct its meetings in
accordance with the applicable provisions of these Bylaws relating to
meetings and action without meetings of the Board of Directors. Each
committee shall adopt any further rules regarding its conduct, keep minutes
and other records and appoint subcommittees and assistants as it deems
appropriate.
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3.4 Compensation. By resolution of the Board of Directors, committee
members may be paid reasonable compensation for services on committees and
their expenses of attending committee meetings.
ARTICLE IV
OFFICERS
4.1 Number. The officers of the Corporation shall be a President, one
or more Vice Presidents, Secretary and, if desired by the Board of
Directors, a Treasurer. The Chairman of the Board of Directors ("Chairman")
shall also be an officer if designated by the Board of Directors as chief
executive officer, but shall not otherwise be considered to hold an officer
position. Such other officers and assistant officers as may be deemed
necessary may be elected or appointed by the Board of Directors and shall
have such powers and duties as may be prescribed by the Board of Directors.
Any two or more offices may be held by the same person.
4.2 Election and Term of Office. The officers of the Corporation shall
be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after the annual meeting of the shareholders. If
the election of officers shall not be held at the meeting, it shall be held
as soon thereafter as is convenient. Each officer shall hold office until a
successor shall have been duly elected and shall have qualified or until
the officer's death, resignation or removal in the manner hereinafter
provided.
4.3 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment
the best interests of the Corporation would be served thereby, but 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.
4.4 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.
4.5 Chief Executive Officer. The Board of Directors shall designate a
chief executive officer of the Corporation, who may be either the Chairman
or the President. The chief executive officer shall have general
supervision, direction and control of the business and affairs of the
Corporation, subject to the control of the Board of Directors.
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4.6 Chief Operating Officer. The Board of Directors may designate a
chief operating officer of the Corporation, who may be any executive
officer of the Corporation unless the Chairman is designated chief
executive officer, in which case the President shall serve as chief
operating officer. The chief operating officer, if one is designated, shall
have such general supervision, direction and control of the business and
affairs of the Corporation as shall be delegated to the chief operating
officer by the chief executive officer or by the Board of Directors.
4.7 Chief Financial Officer. The Board of Directors may designate a
chief financial officer of the Corporation, who shall be a Vice President
of the Corporation. The chief financial officer, if one is designated,
shall be the principal financial accounting officer of the Corporation and,
if a Treasurer of the Corporation is not separately appointed, shall have
the duties of the Treasurer set forth in Section 4.12 below. The chief
financial officer shall perform such other duties as the Board of Directors
may require.
4.8 Chairman of the Board. The Chairman shall be selected by the Board
of Directors from within its membership and shall preside at all meetings
of shareholders and directors. At the election of the Board of Directors,
the Chairman may also be designated chief executive officer of the
Corporation. The Chairman may execute on behalf of the Corporation all
contracts, agreements, stock certificates and other instruments. The
Chairman shall from time to time report to the Board of Directors all
matters within the Chairman's knowledge affecting the Corporation which
should be brought to the attention of the Board. The Chairman shall perform
such other duties as may be required by the Board of Directors.
4.9 President. The President shall serve as either the chief executive
officer or chief operating officer of the Corporation, as designated by the
Board of Directors, and shall have such general supervision, direction and
control of the business and affairs of the Corporation set forth under
Section 4.5 or 4.6, above, as applicable. The President may execute on
behalf of the Corporation all contracts, agreements, stock certificates and
other instruments. The President shall vote all shares of stock in other
corporations owned by the Corporation, and shall be empowered to execute
proxies, waivers of notice, consents and other instruments in the name of
the Corporation with respect to such stock. In the absence of the Chairman,
or in the event of the Chairman's death, inability or refusal to act, the
President shall perform the duties of the Chairman, and when so acting,
shall have all the powers and be subject to all the restrictions upon the
Chairman. The President shall perform such other duties as may be required
by the Board of Directors.
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4.10 Vice Presidents. In the absence of the President or in the event
of the President's 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 the time of their election, or in the absence of
any designation, then in the order of their 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 shall perform such other duties as may be assigned from time to
time by the Chairman, the President or by the Board of Directors.
4.11 Secretary. The Secretary shall keep the minutes of all meetings
of the directors and shareholders, and shall have custody of the minute
books and other records pertaining to the corporate business. The Secretary
shall countersign all stock certificates and other instruments requiring
the seal of the Corporation and shall perform such other duties as may be
required by the Board of Directors.
4.12 Treasurer. The Treasurer shall keep correct and complete records
of accounts showing the financial condition of the Corporation. The
Treasurer shall be legal custodian of all moneys, notes, securities and
other valuables that may come into the possession of the Corporation. The
Treasurer shall deposit all funds of the Corporation which come into the
Treasurer's hands in depositories which the Board of Directors may
designate. The Treasurer shall pay the funds out only on the check of the
Corporation signed in the manner authorized by the Board of Directors. The
Treasurer shall perform such other duties as the Board of Directors may
require.
4.13 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 because the officer is also a director of the
Corporation.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND OTHER AGENTS
5.1 Directors and Officers. The Corporation shall indemnify its
directors and officers to the fullest extent permitted by the Oregon
Business Corporation Act (Act), as the same exists or may hereafter be
amended (but, in the case of alleged occurrences of actions or omissions
preceding any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than the
Act permitted the Corporation to provide prior to such amendment).
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5.2 Employees and Other Agents. The Corporation shall have power to
indemnify its employees and other agents as set forth in the Act.
5.3 No Presumption of Bad Faith. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere
or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal proceeding, that the person
had reasonable cause to believe that the conduct was unlawful.
5.4 Advances of Expenses. The expenses incurred by a director or
officer in any proceeding shall be paid by the Corporation in advance at
the written request of the director or officer, if the director or officer:
(a) furnishes the Corporation a written affirmation of such
person's good faith belief that such person is entitled to be indemnified
by the Corporation; and
(b) furnishes the Corporation a written undertaking to repay such
advance to the extent that it is ultimately determined by a court that such
person is not entitled to be indemnified by the Corporation. Such advances
shall be made without regard to the person's ability to repay such expenses
and without regard to the person's ultimate entitlement to indemnification
under this Bylaw or otherwise.
5.5 Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances under this Bylaw shall
be deemed to be contractual rights and be effective to the same extent and
as if provided for in a contract between the Corporation and the director
or officer who serves in such capacity at any time while this Bylaw and
relevant provisions of the Act and other applicable law, if any, are in
effect. Any right to indemnification or advances granted by this Bylaw to a
director or officer shall be enforceable by or on behalf of the person
holding such right in any court of competent jurisdiction if (a) the claim
for indemnification or advances is denied, in whole or in part, or (b) no
disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole
or in part, shall be entitled to be paid also the expense of prosecuting a
claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition when the required
affirmation and undertaking have been tendered to the Corporation) that the
claimant has not met the standards of
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conduct which make it permissible under the 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 the claimant is proper in the
circumstances because the claimant has met the applicable standard of
conduct set forth in the Act, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or
its shareholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
5.6 Non-Exclusivity of Rights. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the Articles of
Incorporation, Bylaws, agreement, vote of shareholders or disinterested
Directors or otherwise, both as to action in the person's official capacity
and as to action in another capacity while holding office. The Corporation
is specifically authorized to enter into individual contracts with any or
all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent permitted by the law.
5.7 Survival of Rights. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
5.8 Insurance. To the fullest extent permitted by the Act, the
Corporation, upon approval by the Board of Directors, may purchase
insurance on behalf of any person required or permitted to be indemnified
pursuant to this Bylaw.
5.9 Amendments. Any repeal of this Bylaw shall only be prospective and
no repeal or modification hereof shall adversely affect the rights under
this Bylaw in effect at the time of the alleged occurrence of any action or
omission to act that is the cause of any proceeding against any agent of
the Corporation.
5.10 Savings Clause. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall indemnify each director, officer or other agent to the
fullest extent permitted by any applicable portion of this Bylaw that shall
not have been invalidated, or by any other applicable law.
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5.11 Certain Definitions. For the purposes of this Bylaw, the
following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement and appeal of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(b) The term "expenses" shall be broadly construed and shall
include, without limitation, expense of investigations, judicial or
administrative proceedings or appeals, attorneys' fees and disbursements
and any expenses of establishing a right to indemnification under Section
5.5 of this Bylaw, but shall not include amounts paid in settlement,
judgments or fines.
(c) The term "corporation" shall include, in addition to the
resulting or surviving corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so
that any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Bylaw with
respect to the resulting or surviving corporation as the person would have
with respect to such constituent corporation if its separate existence had
continued.
(d) References to a "director," "officer," "employee," or "agent"
of the Corporation shall include, without limitation, situations where such
person is serving at the request of the Corporation as a director, officer,
employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(e) References to "other enterprises" shall include employee
benefit plans; references to "fines" in the Act shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner the person reasonably believed to be in the interest of the
participants and
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beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the Corporation" as referred
to in this Bylaw.
ARTICLE VI
ISSUANCE OF SHARES
6.1 Adequacy of Consideration. Before the Corporation issues shares,
the Board of Directors shall determine that the consideration received or
to be received for the shares to be issued is adequate. The authorization
by the Board of Directors of the issuance of shares for stated
consideration shall evidence a determination by the Board that such
consideration is adequate.
6.2 Certificates for Shares.
(1) Certificates representing shares of the Corporation shall be
in any form determined by the Board of Directors consistent with the
requirements of the Oregon Business Corporation Act and these Bylaws. The
certificates shall be signed, either manually or in facsimile, by two
officers of the Corporation, at least one of whom shall be the Chairman,
the President or a Vice President, and may be sealed with the seal of the
Corporation, if any, or a facsimile thereof. All certificates for shares
shall be consecutively numbered or otherwise identified. The signatures of
officers upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or any assistant transfer agent or
registered by a registrar, other than the Corporation itself or an employee
of the Corporation.
(2) Every certificate for shares of stock that are subject to any
restriction on transfer or registration of transfer pursuant to the
Articles of Incorporation, the Bylaws, securities laws, a shareholders
agreement or any agreement to which the Corporation is a party shall have
conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of the restriction
and that the Corporation retains a copy of the full text. Every certificate
issued when the Corporation is authorized to issue more than one class or
series within a class of shares shall set forth on its face or back either
(a) a summary of the designations, relative rights, preferences and
limitations of the shares of each class and the variations in rights,
preferences and limitations for each series authorized to be issued and the
authority of the Board of Directors to determine variations for future
series or (b) a statement of the existence of those designations, relative
rights, preferences and limitations and a statement that the
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Corporation will furnish a copy thereof to the holder of the certificate
upon written request and without charge.
(3) All certificates surrendered to the Corporation for transfer
shall be canceled. The Corporation shall not issue a new certificate for
previously issued shares until the former certificate or certificates for
those shares are surrendered and canceled; except that in case of a lost,
destroyed or mutilated certificate, a new certificate may be issued on
terms prescribed by the Board of Directors.
6.3 Transfer Agent and Registrar. The Board of Directors may from time
to time appoint one or more transfer agents and one or more registrars for
the shares of the Corporation, with powers and duties determined by the
Board of Directors.
6.4 Officer Ceasing to Act. If the person who signed a share
certificate, either manually or in facsimile, no longer holds office when
the certificate is issued, the certificate is nevertheless valid.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND OTHER INSTRUMENTS
7.1 Contracts. Except as otherwise provided by law, the Board of
Directors may authorize any officers or agents to execute and deliver any
contract or other instrument in the name of and on behalf of the
Corporation, and this authority may be general or confined to specific
instances.
7.2 Loans. The Corporation shall not borrow money and no evidence of
indebtedness shall be issued in its name unless authorized by the Board of
Directors. This authority may be general or confined to specific instances.
7.3 Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money and notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed in the manner and by the officers
or agents of the Corporation designated by the Board of Directors.
7.4 Deposits. All funds of the Corporation not otherwise employed
shall be deposited to the credit of the Corporation in those banks, trust
companies or other depositaries as the Board of Directors or officers of
the Corporation designated by the Board of Directors select, or be invested
as authorized by the Board of Directors.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Severability. A determination that any provision of these Bylaws
is for any reason inapplicable, invalid, illegal or otherwise ineffective
shall not affect or invalidate any other provision of these Bylaws.
8.2 Amendments. These Bylaws may be amended or repealed and new Bylaws
may be adopted by the Board of Directors or the shareholders of the
Corporation.
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