þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Oregon | 93-0816972 | |
(State of Incorporation) | (I.R.S. Employer Identification No.) |
One Centerpointe Drive, Suite 200, Lake Oswego, OR | 97035 | |
(Address of principal executive offices) | (Zip Code) |
Autostack Company, LLC
|
Oregon | 3743 | 93-0981840 | |||||
Greenbrier-Concarril, LLC
|
Oregon | 3743 | 93-1262344 | |||||
Greenbrier Leasing Company, LLC
|
Oregon | 3743 | 31-0789836 | |||||
Greenbrier Leasing, L.P.
|
Oregon | 3743 | 91-1960693 | |||||
Greenbrier Leasing Limited Partner, LLC
|
Oregon | 3743 | 93-1266038 | |||||
Greenbrier Management Services, LLC
|
Oregon | 3743 | 93-1266040 | |||||
Greenbrier Railcar, LLC
|
Oregon | 3743 | 93-0971066 | |||||
Gunderson, LLC
|
Oregon | 3743 | 93-0180205 | |||||
Gunderson Marine, LLC
|
Oregon | 3743 | 93-1127982 | |||||
Gunderson Rail Services, LLC
|
Oregon | 3743 | 93-1123815 | |||||
Gunderson Specialty Products, LLC
|
Oregon | 3743 | 93-0180205 |
The Greenbrier Companies, Inc.
One Centerpointe Drive, Suite 200 |
Autostack Company, LLC
One Centerpointe Drive, Suite 200 |
Greenbrier Concarril, LLC
One Centerpointe Drive, Suite 200 |
Greenbrier Leasing Company,
LLC One Centerpointe Drive, Suite 200 |
|||
Lake Oswego, Oregon
97035-8612 (503) 684-7000 Greenbrier Leasing, L.P. One Centerpointe Drive, Suite 200 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 Greenbrier Leasing Limited Partner, LLC One Centerpointe Drive, Suite 200 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 Greenbrier Management Services, LLC One Centerpointe Drive, Suite 200 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 Greenbrier Railcar, LLC One Centerpointe Drive, Suite 200 |
|||
Lake Oswego, Oregon
97035-8612 (503) 684-7000 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 |
Lake Oswego, Oregon
97035-8612 (503) 684-7000 |
|||
Gunderson, LLC
4350 NW Front Avenue Portland, Oregon 97210 (503) 972-5700 |
Gunderson Marine, LLC
4350 NW Front Avenue Portland, Oregon 97210 (503) 972-5700 |
Gunderson Rail Services, LLC
One Centerpointe Drive, Suite 200 Lake Oswego, Oregon 97035-8612 (503) 684-7000 |
Gunderson Specialty Products,
LLC 4350 NW Front Avenue Portland, Oregon 97210 (503) 972-5700 |
February 28, | August 31, | |||||||
2006 | 2005 | |||||||
Assets
|
||||||||
Cash and cash equivalents
|
$ | 51,665 | $ | 73,204 | ||||
Restricted cash
|
1,535 | 93 | ||||||
Accounts and notes receivable
|
102,167 | 122,957 | ||||||
Inventories
|
118,644 | 121,698 | ||||||
Railcars held for sale
|
83,211 | 59,421 | ||||||
Equipment on operating leases
|
250,974 | 183,155 | ||||||
Investment in direct finance leases
|
5,361 | 9,974 | ||||||
Property, plant and equipment
|
76,873 | 73,203 | ||||||
Other
|
28,411 | 27,502 | ||||||
|
||||||||
|
$ | 718,841 | $ | 671,207 | ||||
|
||||||||
|
||||||||
Liabilities and Stockholders Equity
|
||||||||
Revolving notes
|
$ | 18,099 | $ | 12,453 | ||||
Accounts payable and accrued liabilities
|
172,020 | 195,258 | ||||||
Participation
|
10,701 | 21,900 | ||||||
Deferred income taxes
|
35,340 | 31,629 | ||||||
Deferred revenue
|
9,931 | 6,910 | ||||||
Notes payable
|
270,494 | 214,635 | ||||||
|
||||||||
Subordinated debt
|
6,111 | 8,617 | ||||||
|
||||||||
Subsidiary shares subject to mandatory redemption
|
| 3,746 | ||||||
|
||||||||
Commitments and contingencies (Note 11)
|
| | ||||||
|
||||||||
Stockholders equity:
|
||||||||
Preferred stock without par value; 25,000
shares authorized; none outstanding
|
| | ||||||
Common stock without par value; 50,000 shares
authorized; 15,840 and 15,479 shares
outstanding at February 28, 2006 and August
31, 2005
|
16 | 15 | ||||||
Additional paid-in capital
|
67,689 | 62,768 | ||||||
Retained earnings
|
128,070 | 113,987 | ||||||
Accumulated other comprehensive income (loss)
|
370 | (711 | ) | |||||
|
||||||||
|
196,145 | 176,059 | ||||||
|
||||||||
|
||||||||
|
$ | 718,841 | $ | 671,207 | ||||
|
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
(In thousands, except per share amounts, unaudited)
Three Months Ended
Six Months Ended
February 28,
February 28,
2006
2005
2006
2005
$
208,922
$
233,808
$
373,518
$
434,205
27,292
21,105
49,058
38,756
236,214
254,913
422,576
472,961
185,360
217,796
328,391
400,658
10,671
10,570
21,109
20,950
196,031
228,366
349,500
421,608
40,183
26,547
73,076
51,353
17,260
14,044
32,944
26,116
7,012
4,295
11,442
7,355
24,272
18,339
44,386
33,471
15,911
8,208
28,690
17,882
(7,466
)
(3,397
)
(12,400
)
(6,951
)
8,445
4,811
16,290
10,931
118
(9
)
290
(739
)
$
8,563
$
4,802
$
16,580
$
10,192
$
0.55
$
0.32
$
1.06
$
0.68
$
0.54
$
0.31
$
1.04
$
0.66
15,655
14,954
15,583
14,924
15,911
15,573
15,880
15,542
Table of Contents
(In thousands, unaudited)
Six Months Ended
February 28,
2006
2005
$
16,580
$
10,192
3,741
(587
)
1,299
1,488
12,756
10,693
(2,812
)
(3,518
)
48
901
21,693
(49,217
)
5,248
4,471
(47,856
)
8,238
(953
)
(717
)
(25,068
)
(18,069
)
(11,199
)
(16,055
)
3,158
1,679
(23,365
)
(50,501
)
1,317
3,285
8,793
20,005
216
(34
)
8,435
(1,442
)
662
(61,624
)
(34,844
)
(52,740
)
(2,491
)
5,108
63,001
60,000
(4,276
)
(8,907
)
(2,507
)
(4,369
)
(2,495
)
(1,793
)
3,622
652
(4,636
)
54,816
48,584
(250
)
4,361
(21,539
)
(47
)
73,204
12,110
$
51,665
$
12,063
$
11,843
$
5,395
$
12,963
$
4,784
$
23,954
$
$
$
(19,051
)
19,529
7,957
$
$
8,435
Table of Contents
(Unaudited)
Table of Contents
Proforma
Six Months Ended
February 28,
2005
$
527,849
$
9,315
$
0.62
$
0.60
February 28, 2006
August 31, 2005
$
37,645
$
33,653
84,644
91,637
(3,645
)
(3,592
)
$
118,644
$
121,698
Three Months Ended
Six Months Ended
February 28,
February 28,
2006
2005
2006
2005
$
14,942
$
13,718
$
15,037
$
12,691
(1,011
)
939
(85
)
1,956
(2,337
)
(705
)
(3,398
)
(1,777
)
266
29
306
1,111
168
168
$
11,860
$
14,149
$
11,860
$
14,149
Table of Contents
February 28,
August 31,
2006
2005
$
235,000
$
175,000
35,430
39,479
64
156
$
270,494
$
214,635
Table of Contents
Year Ending August 31
,
$
8,839
4,437
3,892
4,078
5,247
244,001
$
270,494
Three Months Ended
Six Months Ended
February 28,
February 28,
2006
2005
2006
2005
$
8,563
$
4,802
$
16,580
$
10,192
(767
)
(1,763
)
(2,018
)
(2,716
)
698
1,649
1,621
7,502
851
804
1,478
3,268
$
9,345
$
5,492
$
17,661
$
18,246
Unrealized Gains
Foreign Currency
Accumulated Other
(Losses) on Derivative
Translation
Comprehensive Income
Financial Instruments
Adjustment
(Loss)
$
1,241
$
(1,952
)
$
(711
)
(397
)
1,478
1,081
$
844
$
(474
)
$
370
Table of Contents
Three Months Ended
Six Months Ended
February 28,
February 28,
2006
2005
2006
2005
15,655
14,954
15,583
14,924
256
619
297
618
15,911
15,573
15,880
15,542
Three Months
Six Months
Ended
Ended
February 28, 2005
$
4,802
$
10,192
(35
)
(83
)
$
4,767
$
10,109
$
0.32
$
0.68
$
0.32
$
0.68
$
0.31
$
0.66
$
0.31
$
0.65
(1)
Compensation expense was determined based on the Black-Scholes-Merton option pricing
model which was developed to estimate the value of publicly traded options. Greenbriers
options are not publicly traded.
Table of Contents
Three Months Ended
Six Months Ended
February 28,
February 28,
2006
2005
2006
2005
$
227,127
$
254,299
$
457,521
$
455,236
34,307
23,647
59,981
45,124
(25,220
)
(23,033
)
(94,926
)
(27,399
)
$
236,214
$
254,913
$
422,576
$
472,961
$
23,562
$
16,012
$
45,127
$
33,547
16,621
10,535
27,949
17,806
$
40,183
$
26,547
$
73,076
$
51,353
Table of Contents
Table of Contents
Table of Contents
Table of Contents
February 28, 2006
(In thousands, unaudited)
Table of Contents
Condensed Consolidated Statement of Operations
For the three months ended February 28, 2006
(In thousands, unaudited)
Combined
Combined
Non-
Guarantor
Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
11,250
$
132,813
$
57,968
$
6,891
$
208,922
1,668
26,869
(1,245
)
27,292
12,918
159,682
57,968
5,646
236,214
10,260
113,290
55,433
6,377
185,360
10,687
(16
)
10,671
10,260
123,977
55,433
6,361
196,031
2,658
35,705
2,535
(715
)
40,183
4,202
10,499
2,559
17,260
6,107
1,859
434
(1,388
)
7,012
10,309
12,358
2,993
(1,388
)
24,272
(7,651
)
23,347
(458
)
673
15,911
3,139
(9,863
)
(475
)
(267
)
(7,466
)
(4,512
)
13,484
(933
)
406
8,445
21
(21
)
13,075
118
(13,075
)
118
$
8,563
$
13,623
$
(933
)
$
(12,690
)
$
8,563
Table of Contents
Condensed Consolidated Statement of Operations
For the six months ended February 28, 2006
(In thousands, unaudited)
Combined
Combined
Non-
Guarantor
Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
11,250
$
262,930
$
133,144
$
(33,806
)
$
373,518
2,656
48,374
(1,972
)
49,058
13,906
311,304
133,144
(35,778
)
422,576
10,207
225,163
126,222
(33,201
)
328,391
21,142
(33
)
21,109
10,207
246,305
126,222
(33,234
)
349,500
3,699
64,999
6,922
(2,544
)
73,076
8,338
20,364
4,242
32,944
10,510
2,804
513
(2,385
)
11,442
18,848
23,168
4,755
(2,385
)
44,386
(15,149
)
41,831
2,167
(159
)
28,690
6,062
(17,364
)
(1,166
)
68
(12,400
)
(9,087
)
24,467
1,001
(91
)
16,290
(24
)
24
25,667
290
(25,667
)
290
$
16,580
$
24,733
$
1,001
$
(25,734
)
$
16,580
Table of Contents
Condensed Consolidated Statement of Cash Flows
For the six months ended February 28, 2006
(In thousands, unaudited)
Combined
Combined
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
16,580
$
24,733
$
1,001
$
(25,734
)
$
16,580
408
4,134
(734
)
(67
)
3,741
1,299
1,299
341
10,826
1,621
(32
)
12,756
(2,808
)
(4
)
(2,812
)
58
16
(26
)
48
(22,063
)
46,716
(2,792
)
(168
)
21,693
324
4,924
5,248
(49,134
)
1,180
98
(47,856
)
(59,335
)
27,942
137
30,303
(953
)
(18,501
)
1,326
(8,019
)
126
(25,068
)
(11,199
)
(11,199
)
(78
)
593
2,643
3,158
(81,349
)
53,511
(23
)
4,496
(23,365
)
1,317
1,317
8,793
8,793
216
216
(1,442
)
(1,442
)
(60,090
)
(1,633
)
99
(61,624
)
(49,764
)
(3,075
)
99
(52,740
)
5,108
5,108
60,000
60,000
(560
)
(3,265
)
(451
)
(4,276
)
(2,507
)
(2,507
)
(2,495
)
(2,495
)
3,622
3,622
(4,636
)
(4,636
)
60,567
(5,772
)
4,657
(4,636
)
54,816
19
66
(335
)
(250
)
(20,763
)
(1,959
)
1,224
(41
)
(21,539
)
66,760
2,053
4,350
41
73,204
$
45,997
$
94
$
5,574
$
$
51,665
Table of Contents
Condensed Consolidated Balance Sheet
August 31, 2005
(In thousands)
Table of Contents
Condensed Consolidated Statement of Operations
For the three months ended February 28, 2005
(In thousands)
Combined
Combined
Non-
Guarantor
Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
27,436
$
127,794
$
85,549
$
(6,971
)
$
233,808
1
21,422
(318
)
21,105
27,437
149,216
85,549
(7,289
)
254,913
25,776
117,797
81,000
(6,777
)
217,796
10,588
(18
)
10,570
25,776
128,385
81,000
(6,795
)
228,366
1,661
20,831
4,549
(494
)
26,547
3,854
8,002
2,188
14,044
900
2,084
2,030
(719
)
4,295
4,754
10,086
4,218
(719
)
18,339
(3,093
)
10,745
331
225
8,208
1,248
(4,719
)
162
(88
)
(3,397
)
(1,845
)
6,026
493
137
4,811
3
(3
)
6,647
(9
)
(6,647
)
(9
)
$
4,802
$
6,020
$
493
$
(6,513
)
$
4,802
Table of Contents
Condensed Consolidated Statement of Operations
For the six months ended February 28, 2005
(In thousands)
Combined
Combined
Non-
Guarantor
Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
40,610
$
223,665
$
176,934
$
(7,004
)
$
434,205
317
39,321
(882
)
38,756
40,927
262,986
176,934
(7,886
)
472,961
38,001
202,527
166,907
(6,777
)
400,658
20,987
(37
)
20,950
38,001
223,514
166,907
(6,814
)
421,608
2,926
39,472
10,027
(1,072
)
51,353
6,616
14,924
4,576
26,116
1,671
3,888
3,111
(1,315
)
7,355
8,287
18,812
7,687
(1,315
)
33,471
(5,361
)
20,660
2,340
243
17,882
2,338
(8,895
)
(301
)
(93
)
(6,951
)
(3,023
)
11,765
2,039
150
10,931
3
(3
)
13,215
(89
)
(13,865
)
(739
)
$
10,192
$
11,679
$
2,039
$
(13,718
)
$
10,192
Table of Contents
Condensed Consolidated Statement of Cash Flows
For the six months ended February 28, 2005
(In thousands)
Combined
Combined
Non-
Guarantor
Guarantor
Parent
Subsidiaries
Subsidiaries
Eliminations
Consolidated
$
10,192
$
11,679
$
2,039
$
(13,718
)
$
10,192
1,851
(2,399
)
(132
)
93
(587
)
1,488
1,488
39
9,393
1,297
(36
)
10,693
(3,160
)
(358
)
(3,518
)
35
864
2
901
11,525
(63,563
)
2,705
116
(49,217
)
8,562
(4,091
)
4,471
7,262
824
152
8,238
(13,545
)
(1,447
)
410
13,865
(717
)
(11,173
)
13,116
(19,896
)
(116
)
(18,069
)
(16,055
)
(16,055
)
1,552
41
86
1,679
1,929
(36,536
)
(15,894
)
(50,501
)
3,285
3,285
20,005
20,005
(34
)
(34
)
8,435
8,435
662
662
(33,375
)
(1,469
)
(34,844
)
(1,684
)
(807
)
(2,491
)
45,750
17,251
63,001
(515
)
(7,919
)
(473
)
(8,907
)
(4,369
)
(4,369
)
(1,793
)
(1,793
)
652
652
(1,656
)
33,462
16,778
48,584
(273
)
1,160
3,474
4,361
(3,598
)
3,551
(47
)
10,454
1,656
12,110
$
$
6,856
$
5,207
$
$
12,063
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
availability of financing sources and borrowing base for working capital, other business development activities,
capital spending and railcar warehousing activities;
ability to renew or obtain sufficient lines of credit and performance guarantees on acceptable terms;
ability to utilize beneficial tax strategies;
ability to grow our railcar services and lease fleet and management services business;
ability to obtain sales contracts which contain provisions for the escalation of prices due to increased costs of
materials and components;
ability to obtain adequate certification and licensing of products; and
Table of Contents
short- and long-term revenue and earnings effects of the above items.
a delay or failure of acquired businesses, products or services to compete successfully;
decreases in carrying value of assets due to impairment;
severance or other costs or charges associated with lay-offs, shutdowns, or reducing the size and scope of operations;
changes in future maintenance requirements;
effects of local statutory accounting conventions on compliance with covenants in certain loan agreements;
domestic and global business conditions and growth or reduction in the surface transportation industry;
actual future costs and the availability of materials and a trained workforce;
ability to maintain good relationships with third party labor providers or collective bargaining units;
availability of subcontractors;
ability to adequately pass through steel price increases, scrap surcharges and other commodity price fluctuations and
their related impact on railcar demand and margin;
changes in product mix and the mix between the manufacturing and leasing & services segments;
ability to deliver railcars in accordance with customer specifications;
labor disputes, energy shortages or operating difficulties that might disrupt manufacturing operations or the flow of
cargo;
production difficulties and product delivery delays as a result of, among other matters, changing technologies or
non-performance of partners, subcontractors or suppliers;
ability to obtain suitable contracts for railcars held for sale;
lower than anticipated residual values for leased equipment;
discovery of defects in manufactured railcars resulting in increased warranty costs or litigation;
resolution or outcome of investigations or pending litigation;
the ability to consummate expected sales;
delays in receipt of orders, risks that contracts may be canceled during their term or not renewed and that customers
may not purchase as much equipment under the contracts as anticipated;
financial condition of principal customers;
market acceptance of products;
ability to determine and obtain adequate levels of insurance at acceptable rates;
competitive factors, including introduction of competitive products, price pressures, limited customer base and
competitiveness of our manufacturing facilities and products;
industry over-capacity and our manufacturing capacity utilization;
continued industry demand at current and anticipated levels for railcar products;
domestic and global political, regulatory or economic conditions including such matters as terrorism, war, embargoes or
quotas;
ability to adjust to the cyclical nature of the railcar industry;
cost overrun or delays in completion of the expansion of the marine facility;
the effects of car hire deprescription on leasing revenue;
changes in interest rates;
actions by various regulatory agencies;
changes in fuel and/or energy prices;
availability and price of essential raw materials, specialties or components, including steel castings, to permit
manufacture of units on order;
ability to replace lease revenue and earnings from maturing and terminating leases with revenue and earnings from
additions to the lease fleet, lease renewals and management services; and
financial impacts from currency fluctuations in our worldwide operations.
Table of Contents
Table of Contents
Table of Contents
(a)
List of Exhibits:
Articles of Incorporation the Company
Articles of Merger amending the Articles of Incorporation of the Company
Bylaws of the Company, as amended January 11, 2006
Certification pursuant to Rule 13 (a) 14 (a)
Certification pursuant to Rule 13 (a) 14 (a)
Certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Table of Contents
THE GREENBRIER COMPANIES, INC.
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Senior Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
Table of Contents
AUTOSTACK COMPANY LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Chief Executive Officer and Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GREENBRIER-CONCARRIL, LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Chairman of the Board of Directors
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Director
Director
Table of Contents
GREENBRIER LEASING COMPANY, LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Chief Executive Officer and Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GREENBRIER LEASING, L.P.
Dated: April 5, 2006
By: Greenbrier Management Services LLC
General Partner
By: Greenbrier Leasing Company LLC
Sole Member and Manager
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Principal Executive Officer
Principal Financial and Accounting Officer
Table of Contents
GREENBRIER LEASING LIMITED
PARTNER, LLC
Dated: April 5, 2006
By: Greenbrier Leasing Company LLC
Sole Member and Manager
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Principal Executive Officer
Principal Financial and Accounting Officer
Table of Contents
GREENBRIER MANAGEMENT SERVICES LLC
Dated: April 5, 2006
By: Greenbrier Leasing Company LLC
Sole Member and Manager
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Principal Executive Officer
Principal Financial and Accounting Officer
Table of Contents
GREENBRIER RAILCAR LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GUNDERSON LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GUNDERSON MARINE LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GUNDERSON RAIL SERVICES LLC
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Manager
(Principal Executive Officer)
Vice President
(Principal Financial and Accounting Officer)
Table of Contents
GUNDERSON SPECIALTY PRODUCTS LLC
Dated: April 5, 2006
By: Gunderson LLC, Sole Member and Sole Manager
By:
/s/ Joseph K. Wilsted
Joseph K. Wilsted
Vice President
Signature
Title
Principal Executive Officer
Principal Financial and Accounting Officer
Exhibit 3.1
STATE OF OREGON
CORPORATION DIVISION
255 Capitol St. NE, Suite 151
Salem, Oregon 97310-1327
Submit the Original
and One True Copy
(831.115) $50
Registry No. 318756-93
ARTICLES OF INCORPORATION
Business Corporation
ARTICLE 1
The name of the corporation is Greenbrier Oregon, Inc.
ARTICLE 2
The registered office of the corporation is located at 1600 Pioneer Tower, 888 SW Fifth Avenue, in the City of Portland, County of Multnomah, State of Oregon. The name of its registered agent at that address is TT Administrative Services, LLC.
ARTICLE 3
The name and address of the incorporator is Sherrill A. Corbett, Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, Oregon 97204-2099.
ARTICLE 4
The mailing address to which notices may be mailed is TT Administrative Services, LLC, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, Oregon 97204-2099.
ARTICLE 5
The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the Oregon Business Corporation Act.
ARTICLE 6
Section 1. Authorized Capital Stock. The corporation is authorized to issue two classes of stock to be designated, respectively, "Preferred Stock" and "Common Stock." The total number of shares which the corporation is authorized to issue is 75,000,000 shares, of which 25,000,000 shares shall be Preferred Stock, without par value, and 50,000,000 shares shall
ARTICLES OF INCORPORATION - 1
be Common Stock, without par value. Of the 25,000,000 shares of authorized Preferred Stock, 200,000 shares shall be designated as Series A Participating Preferred Stock.
Section 2. Preferred Stock. The Board of Directors is expressly vested with authority to adopt a resolution or resolutions providing for the issuance of Preferred Stock from time to time in one or more series. The Board of Directors is expressly authorized to fix, state and express, in the resolution or resolutions providing for the issuance of any wholly unissued series of Preferred Stock, the preferences, limitations and relative rights including, without limitation:
(a) the rate of dividends upon which and the times at which dividends on shares of such series shall be payable and the preference, if any, which such dividends shall have relative to dividends on shares of any other class or classes or any other series of stock of the corporation;
(b) whether such dividends shall be cumulative or noncumulative, and if cumulative, the date or dates from which dividends on shares of such series shall be cumulative;
(c) the voting rights, if any, to be provided for shares of such series;
(d) the rights and preferences, if any, which the holders of shares of such series shall have in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the corporation;
(e) the rights, if any, which the holders of shares of such series shall have to convert such shares into or exchange such shares for securities or other property of the corporation and the terms and conditions, including price and rate of exchange of such conversion or exchange;
(f) the redemption (including sinking fund provisions), if any, for shares of such series; and
(g) such other powers, rights, designations, preferences, qualifications, limitations and restrictions as the Board of Directors may desire to so fix.
If upon any voluntary or involuntary liquidation, dissolution or winding up of the corporation, the assets available for distribution to holders of shares of a series of Preferred Stock shall be insufficient to pay such holders the full preferential amount to which they are entitled, such assets shall be distributed ratably among the shares of such series of Preferred Stock in proportion to the full amounts which would be payable on such shares if all amounts payable thereon were paid in full.
Section 3. Common Stock. The holders of Common Stock shall be entitled to one vote per share on each matter to be voted upon by the corporation's shareholders. Except as otherwise required by law, or pursuant to the terms of any series of Preferred Stock, all series of Preferred Stock (upon which voting rights shall have been conferred) and the Common Stock shall vote together as a single class or voting group on any matter submitted to a vote of
ARTICLES OF INCORPORATION - 2
shareholders. Shares of Common Stock shall not have cumulative voting rights with respect to any matter.
Section 4. Series A Participating Preferred Stock.
Subsection 1. Designation and Amount. There shall be a series of Preferred Stock of the corporation which shall be designated as "Series A Participating Preferred Stock, without par value" (the "Series A Preferred Stock"), and the number of shares constituting such series shall be 200,000. Such number of shares may be increased or decreased by the Board of Directors without shareholder action; provided, however, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the shares outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities issued by the corporation.
Subsection 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of shares of Common
Stock, without par value ("Common Stock") of the corporation and of any other
junior stock which may be outstanding, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for the
purpose, (i) quarterly dividends payable in cash on the last day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 per share ($.01 per one one-hundredth of a
share), or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock, and
(ii) subject to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date in an
amount per share equal to 100 times the aggregate per share amount of all
noncash 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 since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the corporation
shall at any time after July 26, 2004 (the "Rights Declaration Date"), declare
or pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock are entitled under clauses (i)(b) or (ii) of
the preceding sentence shall be adjusted by multiplying such amount 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.
ARTICLES OF INCORPORATION - 3
(B) The corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in Subsection 2(A) immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share ($.01 per one one-hundredth of a share) on the Series A Preferred Stock shall nevertheless be payable, out of funds legally available for such purpose, on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue and be cumulative from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall cumulate but shall not bear interest. Dividends paid on the shares of Series A 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. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 30 days prior to the date fixed for the payment thereof.
Subsection 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes (and each one one-hundredth of a share of Series A Preferred Stock shall entitle the holder thereof to one vote) on all matters submitted to a vote of the shareholders of the corporation. In the event the corporation shall at any time after the Rights Declaration Date declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number 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.
(B) Except as otherwise provided in these Articles of Incorporation or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of the shareholders of the corporation.
ARTICLES OF INCORPORATION - 4
(C) Except as otherwise provided in these Articles of Incorporation or by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required for taking any corporate action.
Subsection 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the corporation shall not:
(i) declare or pay dividends on, make any other distributions on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, provided that the corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any share of stock ranking on a parity with the Series A 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 annual 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 Subsection 4(A), purchase or otherwise acquire such shares at such time and in such manner.
Subsection 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. The corporation shall take all such action as is necessary so that all such shares shall after their cancellation become authorized but unissued
ARTICLES OF INCORPORATION - 5
shares of Preferred Stock, without designation as to series, and may be reissued as part of a new series of Preferred Stock to be created by Articles of Amendment adopted by the Board of Directors without shareholder action, subject to the conditions and restrictions on issuance set forth herein.
Subsection 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the corporation, no distribution shall be made (A) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received the higher of (i) $1.00 per share ($.01 per one one-hundredth of a share), plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, or (ii) an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of Common Stock; nor shall any distribution be made (B) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the corporation shall at any time after the Rights Declaration Date declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock are entitled under clause (A)(ii) of the preceding sentence shall be adjusted by multiplying such amount 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.
Subsection 7. 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, or otherwise changed, then in any such case the shares of Series A Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times 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. In the event the corporation shall at any time after the Rights Declaration Date declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount 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.
ARTICLES OF INCORPORATION - 6
Subsection 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable. Notwithstanding the foregoing, the corporation may acquire shares of Series A Preferred Stock in any other manner permitted by law or these Articles of Incorporation.
Subsection 9. Rank. Unless otherwise provided in these Articles of Incorporation or an amendment thereof relating to a subsequent series of Preferred Stock of the corporation, the Series A Preferred Stock shall rank junior to all other series of the corporation's Preferred Stock as to the payment of dividends and the distribution of assets on liquidation, dissolution or winding up, and senior to the Common Stock of the corporation.
Subsection 10. Amendment. These Articles of Incorporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least a majority of the outstanding shares of Series A Preferred Stock, voting separately as a class.
Subsection 11. Fractional Shares. Series A Preferred Stock may be issued in one-hundredths of a share or other fractions of a share which shall entitle the holder, in proportion to such holder's 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 Preferred Stock.
ARTICLE 7
The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and shareholders:
(a) Except as otherwise provided in these Articles of Incorporation or the Bylaws of the corporation relating to the rights of the holders of any series of Preferred Stock, voting separately by group or series, to elect additional directors under specified circumstances, the number of directors of the corporation shall be as fixed from time to time by or pursuant to the Bylaws of the corporation. The directors, other than those who may be elected by the holders of any series of Preferred Stock, voting separately by group or series, shall be classified, with respect to the time for which they severally hold office, into three classes, Class I, Class II and Class III, which shall be as nearly equal in number as possible, and shall be adjusted from time to time in the discretion of the President of the corporation to maintain such proportionality. The directors shall initially be classified into classes by the President of the corporation. Each initial director in Class I shall hold office for a term expiring at the 2007 annual meeting of shareholders, each initial director in Class II shall hold office initially for a term expiring at the 2008 annual meeting of shareholders, and each initial director in Class III shall hold office for a term expiring at the 2009 annual meeting of shareholders. Notwithstanding the foregoing provisions of this ARTICLE 7, each director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal. At each annual meeting of shareholders commencing with the 2007 annual meeting, the successors to the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of shareholders held in the third year following
ARTICLES OF INCORPORATION - 7
the year of their election and until their successors have been duly elected and qualified or until their earlier death, resignation or removal. Election of directors need not be by written ballot unless provided by the Bylaws of the corporation.
(b) Except as otherwise provided in these Articles of Incorporation or the Bylaws of the corporation relating to the rights of the holders of any series of Preferred Stock, voting separately by class or series, to elect directors under specified circumstances, any director or directors may only be removed from office at any time with cause by the affirmative vote of not less than a majority of the total number of votes of the then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as single class. Unless previously filled by the vote of at least a majority of the total number of outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class, any vacancy in the Board of Directors resulting from any such removal may be filled by the Board of Directors, or if the Directors remaining in office constitute less than a quorum then such vacancies may be filled by a vote of a majority of the directors then in office, and any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall have been elected and qualified or until their earlier death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number of directors, the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board of Directors among the three classes of directors so as to maintain such classes as nearly equal in number as possible. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
(d) Notwithstanding the foregoing, whenever the holders of any one or more class or series of Preferred Stock issued by the corporation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of shareholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of these Articles of Incorporation applicable thereto, as the same may be amended from time-to-time, and such directors so elected shall not be divided into classes pursuant to this ARTICLE 7 unless expressly provided by such terms.
(e) Special meetings of shareholders of the corporation for any purpose or purposes may be called at any time by a majority of the Board of Directors, the President of the corporation or the holders of not less than 25 percent of all votes entitled to be cast on the matters to be considered at such meeting.
(f) In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, repeal, alter, amend or rescind the Bylaws of the corporation. In addition, the Bylaws of the corporation may be adopted, repealed, altered, amended, or rescinded by the affirmative vote of the holders of not less than a majority of the outstanding shares of capital stock of the corporation entitled to vote thereon, voting together as a single class.
ARTICLES OF INCORPORATION - 8
ARTICLE 8
No director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability, to the extent provided by applicable law, for (i) any breach of the director's duty of loyalty to the corporation or its shareholders, (ii) any acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) any unlawful distribution under ORS 60.367, or (iv) any transaction from which the director derived an improper personal benefit. If the Oregon Business Corporation Act is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Oregon Business Corporation Act, as so amended. This ARTICLE 8 shall not eliminate or limit the liability of a director for any act or omission which occurred prior to the effective date of its adoption. Any repeal or modification of this ARTICLE 8 by the shareholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.
ARTICLE 9
The Board of Directors of the corporation may provide, pursuant to Bylaws or other actions or agreements, that the corporation shall indemnify to the fullest extent permitted by the Oregon Business Corporation Act, as in effect at the time of the determination, any person who is made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (including any 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, officer, employee or agent of the corporation, or any of its subsidiaries, or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974, as amended, with respect to any employee benefit plan of the corporation or any of its subsidiaries, or serves or served at the request of the corporation, or any of its subsidiaries, as a director, officer, employee or agent, or as a fiduciary of an employee benefit plan, of another corporation, partnership, joint venture, trust or other enterprise. The rights of indemnification provided in this ARTICLE 9 shall be in addition to any rights to which any such person may otherwise be entitled under any future amendment to these Articles of Incorporation or under any bylaw, agreement, statute, policy of insurance, vote of shareholders or board of directors, or otherwise, which exists at or subsequent to the time such person incurs or becomes subject to such liability and expense.
ARTICLE 10
The corporation reserves the right at any time and from time to time to amend, alter, rescind or repeal any provisions contained herein; and other provisions authorized by the laws of the State of Oregon at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon shareholders, directors or any other persons whomsoever by or pursuant to these Articles of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article.
ARTICLES OF INCORPORATION - 9
ARTICLE 11
Notwithstanding any other provisions of these Articles of Incorporation, other than ARTICLE 10, or the Bylaws of the corporation, the affirmative vote of the holders of not less than fifty-five percent (55%) of the total number of votes of the then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal, or to adopt any provision inconsistent with the purpose or intent of, ARTICLE 7, ARTICLE 8, ARTICLE 9, ARTICLE 10 and ARTICLE 11 of these Articles of Incorporation.
DATED: October 24, 2005 /s/ Sherrill A. Corbett ---------------------------------------- Sherrill A. Corbett, Incorporator |
Person to contact about this filing:
Sherrill A. Corbett
Telephone - 503/802-2049
ARTICLES OF INCORPORATION - 10
Exhibit 3.2
Phone: (503) 986-2200
Fax: (503) 378-4381 ARTICLES OF MERGER
CHECK THE APPROPRIATE BOX BELOW:
Secretary of State [X] MULTI ENTITY MERGER Corporation Division (Complete only 1, 2, 3, 4, 10, 11) 255 Capitol St. NE, Suite 151 Salem, OR 97310-1327 [ ] FOR PARENT AND 90% OWNED SUBSIDIARY WITHOUT FilinginOregon.com SHAREHOLDER APPROVAL (Complete only 5, 6, 7, 8, 9, 10, 11) |
SURVIVOR
REGISTRY NUMBER: 318756-93
In keeping with Oregon Statute 192.410-192.595, the information on the application is public record.
We must release this information to all parties upon request and it may be posted on our website. For office use only
Please Type or Print Legibly in BLACK Ink. Attach Additional Sheet if necessary.
1) NAMES AND TYPES OF THE ENTITIES PROPOSING TO MERGE
NAME TYPE REGISTRY NUMBER ---- ---- --------------- Greenbrier Oregon, Inc. Oregon 318756-93 The Greenbrier Companies, Inc. Delaware 018477-22 |
2) NAME AND TYPE OF THE SURVIVING ENTITY Greenbrier Oregon, Inc., an Oregon corporation
[X] Check here if there is a name change in this plan of merger.
3) A COPY OF THE PLAN OF MERGER IS ATTACHED. See ORS 60.481(2)
4) THE PLAN OF MERGER WAS DULY AUTHORIZED AND APPROVED BY EACH ENTITY THAT IS A PARTY TO THE MERGER.
[X] A copy of the vote required by each entity is attached.
FOR PARENT AND 90% OWNED SUBSIDIARY WITHOUT SHAREHOLDER APPROVAL
5) NAME OF PARENT CORPORATION ________________________________________________
Oregon Registry Number ____________________________________________________
6) NAME OF SUBSIDIARY CORPORATION ____________________________________________
Oregon Registry Number ____________________________________________________
7) NAME OF SURVIVING CORPORATION _____________________________________________
8) COPY OF PLAN
[ ] A copy of the plan of merger setting forth the manner and basis of converting shares of the subsidiary into shares, obligations, or other securities of the parent corporation or any other corporation or into cash or other property is attached.
9) CHECK THE APPROPRIATE BOX
[ ] A copy of the plan of merger or summary was mailed to each shareholder of record of the subsidiary corporation on or before ________________ Date
[ ] The mailing of a copy of the plan or summary was waived by all outstanding shares.
10) EXECUTION
Signature Printed Name Title --------- ------------ ----- /s/ William A. Furman William A. Furman President and CEO ----------------------------------- |
11) CONTACT NAME DAYTIME PHONE NUMBER
Michael J. Millender (503) 802-2164
Attachment to Articles of Merger (Oregon)
GREENBRIER OREGON, INC., AN OREGON CORPORATION
The sole shareholder of Greenbrier Oregon, Inc., an Oregon corporation, duly authorized and approved the Agreement and Plan of Merger by written consent dated December 21, 2005.
Number of Votes Total Number of Number of Entitled to be Total Number of Votes Cast Outstanding Cast by Each Votes Cast FOR AGAINST the Designation Shares Voting Group The Merger Merger ----------- ----------- --------------- --------------- --------------- Common Stock 1 1 1 0 |
THE GREENBRIER COMPANIES, INC., A DELAWARE CORPORATION
The stockholders of The Greenbrier Companies, Inc., a Delaware corporation, duly authorized and approved the Agreement and Plan of Merger at the annual meeting of stockholders, held January 10, 2006, as follows:
Number of Votes Total Number of Number of Entitled to be Total Number of Votes Cast Outstanding Cast by Each Votes Cast FOR AGAINST the Designation Shares Voting Group The Merger Merger ----------- ----------- --------------- --------------- --------------- Common Stock 14,943,102 14,943,102 10,286,395 272,441 |
AGREEMENT AND PLAN OF MERGER
DATE: January 10, 2006
AMONG: GREENBRIER OREGON, INC., an Oregon corporation ("Greenbrier Oregon")
AND: THE GREENBRIER COMPANIES, INC., a Delaware corporation
("Greenbrier Delaware")
RECITALS
A. The Board of Directors and shareholders of Greenbrier Oregon and the Board of Directors and stockholders of Greenbrier Delaware have determined that it is in the best interests of each entity and their respective shareholders/stockholders to merge Greenbrier Delaware with and into Greenbrier Oregon, pursuant to this agreement ("Merger Agreement").
B. The parties intend that Greenbrier Oregon shall be the surviving corporation in such merger and that such merger shall constitute a tax-free reorganization under Section 368 of the Internal Revenue Code.
AGREEMENT
The parties agree as follows:
1. MERGER OF GREENBRIER DELAWARE WITH AND INTO GREENBRIER OREGON. At and upon
the Effective Time:
1.1 Merger. Greenbrier Delaware shall be merged with and into Greenbrier Oregon (the "Merger"), and Greenbrier Oregon shall survive as a corporation continuing to operate under the name "The Greenbrier Companies, Inc." (the "Surviving Corporation"), organized under and governed by the laws of the state of Oregon. The separate existence of Greenbrier Delaware shall cease.
1.2 Vesting of Assets. All of the property, rights, privileges, powers, franchises, patents, trademarks, trade names, licenses, registrations and other assets, tangible and intangible, of Greenbrier Delaware shall be transferred to, vested in, devolve upon and become part of the assets of the Surviving Corporation, without further act or deed.
1.3 Assumption of Liabilities. Greenbrier Oregon shall assume and be liable for all of the liabilities and obligations of Greenbrier Delaware.
1.4 Effective Time. The Merger shall become effective at 11:59 p.m. Pacific Time on February 28, 2006 upon filing the documents in accordance with the Delaware General Corporation Law and the Oregon Business Corporation Act.
2. ARTICLES OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS. At and upon the
Effective Time:
2.1 Articles of Incorporation. The Articles of Incorporation of Greenbrier Oregon in effect immediately prior to the Effective Time shall be the Articles of Incorporation of the Surviving Corporation. At the Effective Time, such Articles of Incorporation shall automatically be amended to change the name of the Surviving Corporation to The Greenbrier Companies, Inc.
2.2 Bylaws. The Bylaws of Greenbrier Oregon in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation.
2.3 Directors; Officers. Those persons who are the directors of Greenbrier Delaware immediately prior to the Effective Time shall become the directors of the Surviving Corporation. Those directors in Classes I, II and III of Greenbrier Delaware immediately prior to the Effective Time shall become the directors in Classes I, II and III, respectively, of the Surviving Company and shall hold office in each case through the expiration of their terms as such terms would have been with Greenbrier Delaware until their successors are elected and qualify or their prior resignation, removal or death. Those persons who are officers of Greenbrier Delaware immediately prior to the Effective Time shall become the officers of the Surviving Corporation, and they shall hold office in each case at the pleasure of the Board of Directors of the Surviving Corporation.
2.4 Committees. Those persons who are members of committees of the Board of Directors of Greenbrier Delaware immediately prior to the Effective Time shall become members of the corresponding committees of the Board of Directors of the Surviving Corporation, and they shall hold office in each case at the pleasure of the Board of Directors of the Surviving Corporation. The Charters of each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee of the Board of Directors of Greenbrier Delaware, as amended, shall be the Charters of the corresponding committees of the Surviving Corporation at the Effective Time, and shall remain in effect until modified or rescinded.
3. EXCHANGE OF SHARES. At and upon the Effective Time:
3.1 Shares of Greenbrier Oregon. By virtue of the Merger and without any action on the part of the holder, the single share of Common Stock, without par value, of Greenbrier Oregon issued to Greenbrier Delaware and currently outstanding shall be cancelled and returned to the status of authorized but unissued.
3.2 Shares of Greenbrier Delaware. Each share of Common Stock, par value $0.001, of Greenbrier Delaware that is issued and outstanding immediately prior to the Effective Time shall be converted into one share of fully paid, non-assessable, issued and outstanding Common Stock, without par value, of the Surviving Corporation.
3.3 Stock Certificates. All of the outstanding certificates, which prior to the Effective Time represented shares of Common Stock of Greenbrier Delaware, shall be deemed for all purposes to evidence ownership of and to represent shares of Common Stock of Greenbrier Oregon into which the shares of Greenbrier Delaware represented by such certificates have been
converted as herein provided. The registered holder on the books and records of Greenbrier Oregon or its transfer agent of any such outstanding stock certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to Greenbrier Oregon or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividend and other distributions upon, the shares of Greenbrier Oregon evidenced by such outstanding certificate as above provided. The officers, directors, employees, stock transfer agents and registrars of the Surviving Corporation shall, after the Effective Time, continue to honor and process certificates issued by Greenbrier Delaware with the same effect as if such certificates represented shares of Greenbrier Oregon.
3.4 Certain Options and Plans. Greenbrier Oregon will assume and continue all of Greenbrier Delaware's stock incentive and purchase option plans (the "Plans and Programs"), including but not limited to its 1994 Stock Incentive Plan, 2004 Employee Stock Purchase Plan, Stock Incentive Plan - 2000, 2005 Stock Incentive Plan and Dividend Reinvestment Plan. The outstanding and unexercised portions of all options and rights to buy Common Stock of Greenbrier Delaware shall become options or rights for the same number of shares of Greenbrier Oregon Common Stock with no other changes in the terms and conditions of such options or rights, including exercise prices, and effective as of the Effective Time, Greenbrier Oregon hereby assumes the outstanding and unexercised portions of such options and rights and the obligations of Greenbrier Delaware with respect thereto. At the Effective Time, Greenbrier Oregon shall, and does hereby, assume and agree to perform all of the rights and responsibilities of Greenbrier Delaware under all of such Plans and Programs (and agreements relating thereto) and under the James-Furman Supplemental 1994 Stock Option Plan.
3.5 Other Employee Benefit Plans. Greenbrier Oregon will assume all obligations of Greenbrier Delaware under any and all employee benefit plans in effect as of the Effective Time or with respect to which employee rights or accrued benefits are outstanding as of the Effective Time.
4. GENERAL PROVISIONS.
4.1 Further Assurances. From time to time, as and when required by Greenbrier Oregon or by its successors and assigns, there shall be executed and delivered on behalf of Greenbrier Delaware such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action as shall be appropriate or necessary in order to vest or perfect, or to conform of record or otherwise, in Greenbrier Oregon the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises, and authority of Greenbrier Delaware, and otherwise to carry out the purposes of this Merger Agreement, and the officers and directors of Greenbrier Oregon are fully authorized in the name of and on behalf of Greenbrier Delaware or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.
4.2 Amendment. At any time before or after approval by the shareholders of Greenbrier Delaware, this Merger Agreement may be amended in any manner (except that Sections 3.1 and 3.2 and any of the other principal terms hereof may not be amended without the approval of the shareholders of Greenbrier Delaware) as may be determined in the judgment of the respective Boards of Directors of Greenbrier Delaware and Greenbrier Oregon to be
necessary, desirable or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the purposes and intent of this Merger Agreement.
4.3 Abandonment. At any time before the Effective Time, this Merger Agreement may be terminated and the Merger may be abandoned by the Board of Directors of either Greenbrier Delaware or Greenbrier Oregon or both, notwithstanding the approval of this Merger Agreement by the stockholders of Greenbrier Delaware and the shareholders of Greenbrier Oregon.
4.4 Counterparts. In order to facilitate the filing and recording of this Merger Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in their corporate names by their respective authorized officers.
THE GREENBRIER COMPANIES, INC.,
a Delaware corporation
By /s/ William A. Furman ------------------------------------- Title: President |
GREENBRIER OREGON, INC.,
an Oregon corporation
By /s/ William A. Furman ------------------------------------- Title: President |
Exhibit 3.3
THE GREENBRIER COMPANIES, INC.
an Oregon Corporation
BYLAWS
(as amended, January 11, 2006)
THE GREENBRIER COMPANIES, INC.
an Oregon corporation
BYLAWS
TABLE OF CONTENTS
PAGE ---- Article I. Corporate Offices............................................. 4 Section 1. Registered Office......................................... 4 Section 2. Other Offices............................................. 4 Article II. Shareholders' Meetings....................................... 4 Section 1. Place of Meetings......................................... 4 Section 2. Annual Meeting............................................ 4 Section 3. Special Meetings.......................................... 4 Section 4. Notice of Meetings........................................ 5 Section 5. Quorum.................................................... 5 Section 6. Voting.................................................... 5 Section 7. Adjournment and Notice of Adjourned Meetings.............. 6 Section 8. List of Shareholders Entitled to Vote..................... 6 Section 9. Order of Business......................................... 6 Section 10. Inspectors................................................ 7 Section 11. Actions by Unanimous Written Consent...................... 8 Article III. Directors................................................... 8 Section 1. Number and Term of Office................................. 8 Section 2. Powers.................................................... 8 Section 3. Vacancies................................................. 8 Section 4. Resignation............................................... 9 Section 5. Removal................................................... 9 Section 6. Nomination of Directors................................... 9 Section 7. Meetings.................................................. 10 Section 8. Actions of Board of Directors............................. 10 Section 9. Meetings by Means of Conference Telephone................. 11 Section 10. Quorum.................................................... 11 Section 11. Committees................................................ 11 Section 12. Fees and Compensation..................................... 13 Section 13. Organization.............................................. 13 Section 14. Interested Directors...................................... 13 Section 15. Emeritus or Advisory Directors............................ 14 Article IV. Officers..................................................... 15 Section 1. General................................................... 15 Section 2. Duties of Officers........................................ 15 Section 3. Other Officers............................................ 16 |
Section 4. Resignations.............................................. 16 Article V. Stock......................................................... 16 Section 1. Form and Content of Certificates; Uncertificated Shares... 16 Section 2. Lost Certificates......................................... 17 Section 3. Transfers................................................. 17 Section 4. Record Date............................................... 17 Section 5. Registered Shareholders................................... 18 Article VI. Notices...................................................... 18 Section 1. Notices................................................... 18 Section 2. Waivers of Notice......................................... 18 Article VII. General Provisions.......................................... 18 Section 1. Dividends................................................. 18 Section 2. Fiscal Year............................................... 19 Section 3. Corporate Seal............................................ 19 Section 4. Disbursements............................................. 19 Article VIII. Indemnification............................................ 19 Section 1. Directors and Officers.................................... 19 Section 2. Employees and Other Agents................................ 20 Section 3. Good Faith................................................ 20 Section 4. Advances of Expenses...................................... 21 Section 5. Enforcement............................................... 21 Section 6. Non Exclusivity Rights.................................... 22 Section 7. Survival of Rights........................................ 22 Section 8. Insurance................................................. 22 Section 9. Amendments................................................ 22 Section 10. Savings Clause............................................ 23 Section 11. Certain Definitions....................................... 23 Section 12. Notification and Defense of Claim......................... 24 Section 13. Exclusions................................................ 25 Section 14. Subrogation............................................... 25 Article IX. Amendments................................................... 25 |
THE GREENBRIER COMPANIES, INC.
AN OREGON CORPORATION
BYLAWS
ARTICLE I. CORPORATE OFFICES
SECTION 1. REGISTERED OFFICE.
The registered office of the corporation in the State of Oregon shall be in the City of Portland, County of Multnomah.
SECTION 2. OTHER OFFICES.
The corporation shall also have and maintain an office or principal place of business in Lake Oswego, Oregon, and may also have offices at such other places, within and without the State of Oregon, as the Board of Directors may from time to time determine or the business of the corporation may require.
ARTICLE II. SHAREHOLDERS' MEETINGS
SECTION 1. PLACE OF MEETINGS.
Meetings of the shareholders of the corporation shall be held at such place, either within or without the State of Oregon, as may be designated from time to time by the Board of Directors, or, in the absence of a designation by the Board of Directors, by the President, and stated in the notice of meeting. The Board of Directors may postpone and reschedule any annual or special meeting of the shareholders from the date previously scheduled by the Board of Directors.
SECTION 2. ANNUAL MEETING.
The annual meeting of the shareholders of the corporation shall be held on the second Tuesday in January of each year at such time as may be designated from time to time by the Board of Directors for the purposes of election of Directors and transaction of such other business as may lawfully come before the meeting. The Board of Directors from time to time may change the date of the annual meeting by amendment to these Bylaws.
SECTION 3. SPECIAL MEETINGS.
Special meetings of shareholders of the corporation for any purpose or purposes may be called at any time by a majority of the Board of Directors, the President of the corporation or the holders of not less than 25 percent of all votes entitled to be cast on the matters to be considered at such meeting, who must sign, date and deliver to the Secretary of the corporation one or more written demands for the meeting describing the purpose or purposes for
which it is to be held. Special meetings of the shareholders of the corporation may not be called by any other person or persons.
SECTION 4. NOTICE OF MEETINGS.
Except as otherwise provided by law, written notice of each meeting of shareholders shall be given not less than ten nor more than 60 days before the date of the meeting to each shareholder entitled to vote at such meeting, such notice to specify the date, time, place and purpose or purposes of the meeting. Notice of the date, time, place and purpose of any meeting of shareholders may be waived in writing, signed by the person entitled to notice thereof, and delivered to the corporation either before or after such meeting, and shall be deemed waived by any shareholder by his or her attendance at the meeting in person or by proxy, except when the shareholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any shareholder so waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.
SECTION 5. QUORUM.
Except as otherwise provided by law, the presence, in person or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business at any annual or special meeting of the shareholders. Any shares, the voting of which at such meeting has been enjoined, or which for any reason cannot be lawfully voted at such meeting, shall not be counted to determine a quorum at such meeting. In the absence of a quorum any meeting of shareholders may be adjourned, from time to time, by vote of the holders of a majority of the shares represented thereat, in person or by proxy, but no other business shall be transacted at such meeting. The shareholders present at a duly called or convened meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
SECTION 6. VOTING.
Except as otherwise provided by law, the Articles of Incorporation or these Bylaws, the affirmative vote of the holders of a majority of the shares of stock present in person or represented by proxy at a duly called meeting at which a quorum is present and entitled to vote on the subject matter and which has actually been voted shall be the act of the shareholders and all such acts shall be valid and binding upon the corporation. For the purpose of determining those shareholders entitled to vote at any meeting of the shareholders, except as otherwise provided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided in these Bylaws, shall be entitled to vote at any meeting of shareholders. Every person entitled to vote shall have the right to do so either in person or by an agent or agents authorized by a written proxy executed by such person or his or her duly authorized agent, which proxy shall be filed with the Secretary at or before the meeting at which it is to be used. An agent so appointed need not be a shareholder. No proxy shall be voted on after 11 months following its date of creation unless the proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the corporation presiding at a meeting of the shareholders, in his or her discretion, may determine whether any votes cast at such meeting shall be cast by written ballot.
SECTION 7. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS.
Any meeting of shareholders, whether annual or special, may be adjourned from time to time by the vote of the holders of a majority of the shares represented at the meeting, either in person or by proxy. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At an adjourned meeting the shareholders may transact any business which might have been transacted at the original meeting. If the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, the Board of Directors shall fix a new record date in accordance with Section 60.221 of Oregon Revised Statutes (or any successor provision). If, upon adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.
SECTION 8. LIST OF SHAREHOLDERS ENTITLED TO VOTE.
After fixing a record date for a meeting, the Secretary shall cause to be prepared a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order and by voting groups and classes or series within each voting group, showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane to the meeting, during ordinary business hours, beginning two business days after notice of the meeting is given and continuing through the meeting either at the corporation's principal office or at the place identified in the meeting notice in the city where the meeting will be held. The list shall be produced and kept at the time and place of meeting during the whole time thereof, and may be inspected by any shareholder, shareholder's agent or attorney who is present.
SECTION 9. ORDER OF BUSINESS.
(a) The President, or such other officer of the corporation as shall
be designated by the Board of Directors, shall call meetings of the shareholders
to order and shall act as presiding officer thereof. Unless otherwise determined
by the Board of Directors prior to the meeting, the presiding officer shall also
have the authority in his or her sole discretion to regulate the conduct of any
such meeting, including, without limitation, by imposing restrictions on the
persons (other than shareholders of the corporation or their proxies) who may
attend such meeting, by ascertaining whether any shareholder or his or her proxy
may be excluded from such meeting based upon any determination by the presiding
officer, in his or her discretion, that any such person has disrupted or is
likely to disrupt the proceedings thereat, and by determining the circumstances
in which any person may make a statement or ask questions at such meeting. The
presiding officer shall exercise his or her discretion in accordance with
Section 60.209 of Oregon Revised Statutes (or any successor provision).
(b) No business may be transacted at an annual meeting of shareholders other than business that is (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting by any shareholder of the corporation (A) who is a shareholder of record on the date of the giving of notice for such meeting and on the record date for the determination of shareholders entitled to vote at such meeting and (B) who complies with the notice procedures in this Section 9.
(c) In addition to any other applicable requirements, including, without limitation, requirements relating to solicitations of proxies under the Securities Exchange Act of 1934, as amended, for business to be properly brought before an annual meeting of shareholders by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a shareholder's notice must be received by the Secretary at the principal executive offices of the corporation not less than 120 calendar days prior to the date that the corporation's proxy statement for the annual meeting of shareholders was released to shareholders in the previous year. To be in proper written form, a shareholder's notice to the Secretary must set forth as to each matter such shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such shareholder, (iii) the class or series and number of shares of capital stock of the corporation which are owned beneficially or of record by such shareholder, (iv) a description of all arrangements or understandings between such shareholder and any other person or persons (including their names) in connection with the proposal of such business by such shareholder and any material interest of such shareholder in such business, and (v) a representation that such shareholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
(d) No business shall be conducted at any annual meeting of shareholders except business brought before such meeting in accordance with the procedures set forth in this Section 9; provided, however, that unless limited by the procedural rules adopted by the meeting or established by the presiding officer, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 9 shall be deemed to preclude discussion by any shareholder of any such business. If the presiding officer of an annual meeting determines that business was not properly brought before such meeting in accordance with the procedures in this Section 9, the presiding officer shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
SECTION 10. INSPECTORS.
The President shall, in advance of any meeting of shareholders, appoint one or more inspectors of election to act at the meeting in accordance with applicable law and to make a written report thereof.
SECTION 11. ACTIONS BY UNANIMOUS WRITTEN CONSENT.
Any action required or permitted to be taken at any meeting of the shareholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of all of the outstanding stock of the corporation entitled to vote and shall be delivered to the corporation by delivery to the corporation for inclusion in the minutes or filing with the corporate records. Every written consent shall bear the date of signature of each shareholder who signs the consent and such actions shall be effective when the last shareholder signs the consent, unless the consent specifies an earlier or later effective date. Delivery to the corporation shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE III. DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE.
The number of Directors which shall constitute the whole of the Board of Directors shall be eight. Except as provided in the Articles of Incorporation or Section 3 of this Article III, Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy and entitled to vote on the election of directors at the annual meeting of shareholders in each year and shall hold office until the third annual meeting following their election and until their successors shall be duly elected and qualified. The Directors, other than those, if any, who may be elected by the holders of any series of Preferred Stock, which series shall be entitled to separately elect one or more directors, shall be classified with respect to the time for which they severally hold office in accordance with the Articles of Incorporation.
SECTION 2. POWERS.
The Board of Directors shall exercise all corporate powers and manage the business and affairs of the corporation, except as may be otherwise provided by law or by the Articles of Incorporation.
SECTION 3. VACANCIES.
Unless previously filled by the holders of at least a majority of the shares of capital stock of the corporation entitled to vote for the election of directors, vacancies and newly created directorships resulting from any increase in the authorized number of Directors may be filled by the Board of Directors or, if the Directors remaining in office constitute less than a quorum, then such vacancies may be filled by a majority of the Directors then in office, or by a sole remaining Director, and each Director so elected shall hold office until his or her successor is elected at the next shareholders' meetings at which Directors are elected. A vacancy in the Board of Directors shall be deemed to exist under this Section 3 in the case of the death, removal or resignation of any Director, or if the shareholders fail at any meeting of shareholders at which Directors are to be elected to elect the number of Directors then constituting the whole Board of Directors. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
SECTION 4. RESIGNATION.
Any Director may resign at any time by delivering a written resignation to the Board of Directors, its chairperson or the corporation. Such resignation may specify whether it will be effective as specified in ORS 60.034 or a later date as specified in the written notice. Unless otherwise specified in the notice of resignation, the acceptance of such resignation shall not be necessary to make it effective. When one or more Directors shall resign from the Board of Directors, effective at a future date, a majority of the Directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold office for the unexpired portion of the term of the Director whose place shall be vacated and until his or her successor shall have been duly elected and qualified.
SECTION 5. REMOVAL.
Except as otherwise provided in the Articles of Incorporation or these Bylaws relating to the rights of the holders of any series of Preferred Stock, voting separately by class or series, to elect directors under specified circumstances, any Director or Directors may only be removed from office with cause at a meeting at which a quorum is present and which is called for the purpose of removing the Director or Directors, if the meeting notice stated that a purpose of the meeting is the removal of the Director or Directors and if the number of votes cast to remove the Director or Directors exceeds the number of votes cast against removal of the Director or Directors.
SECTION 6. NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the procedures in this Section 6 shall be eligible for election as Directors. If the presiding officer at an annual meeting of the shareholders determines that a nomination was not made in accordance with the procedures set forth in this Section 6, the presiding officer shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. Nominations of persons for election to the Board of Directors may be made at any annual meeting of shareholders (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the corporation (A) who is a shareholder of record on the date of the giving of notice provided for in this Section 6 and on the record date for the determination of shareholders entitled to vote at such meeting and (B) who complies with the notice procedures in this Section 6. In addition to any other applicable requirements, for a nomination to be made by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary.
(b) To be timely, a shareholder's notice must be received by the Secretary at the principal executive offices of the corporation not less than 120 calendar days prior to the date that the corporation's proxy statement for the annual meeting of shareholders was released to shareholders in the previous year.
(c) To be in proper written form, a shareholder's notice to the Secretary must (i) set forth as to each person whom the shareholder proposes to nominate for election as a
director (A) the name, age, business address and residence address of the nominee, (B) the principal occupation or employment of the nominee, (C) the class or series and number of shares of capital stock of the corporation which are owned beneficially or of record by the nominee, and (D) any other information relating to the nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder; and (ii) set forth as to the shareholder giving the notice (A) the name and record address of such shareholder, (B) the class or series and number of shares of capital stock of the corporation which are owned beneficially or of record by such shareholder, (C) a description of all arrangements or understandings between such shareholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination or nominations are to be made by such shareholder, (D) a representation that such shareholder intends to appear in person or by proxy at the annual meeting to nominate the persons named in the notice and (E) any other information relating to such shareholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a signed written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
SECTION 7. MEETINGS.
The Board of Directors may hold meetings, both regular and special, either within or without the State of Oregon. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the President or any two directors. Notice of special meetings stating the place, date and hour of the meeting shall be given to each director either by mail or by telephone, telegram, electronic mail, hand delivery or facsimile transmission not less than 48 hours before the date of the meeting. The transaction of all business at any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the Directors not present shall sign a written waiver of notice, or a consent to holding such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
SECTION 8. ACTIONS OF BOARD OF DIRECTORS.
Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
SECTION 9. MEETINGS BY MEANS OF CONFERENCE TELEPHONE.
Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can simultaneously hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
SECTION 10. QUORUM.
A quorum of the Board of Directors shall consist of a majority of the number of Directors fixed from time to time in accordance with these Bylaws; provided, however, at any meeting whether a quorum be present or otherwise, a majority of the Directors present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice other than by announcement at the meeting. At each meeting of the Board of Directors at which a quorum is present all questions and business shall be determined by a vote of a majority of the Directors present, unless a different vote be required by law.
SECTION 11. COMMITTEES.
(a) Appointment. The Board of Directors may, by resolution or resolutions passed by a majority of the whole Board of Directors, from time to time appoint such committees as may be permitted by law. Committees appointed by the Board of Directors shall consist of two or more members of the Board of Directors, and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees. The Board of Directors may adopt committee charters, further defining the duties and responsibilities of one or more committees. In no event shall a committee have the power or authority to:
(i) Authorize distributions by the corporation, except according to a formula or method, or within limits, prescribed by the Board of Directors;
(ii) Approve or propose to shareholders actions that the Oregon Business Corporation Act requires to be approved by shareholders;
(iii) Fill vacancies on the Board of Directors or on any of its committees; or
(iv) Adopt, amend or repeal these Bylaws.
(b) Executive Committee. The Board of Directors may appoint an Executive Committee to consist of two or more members of the Board of Directors. Subject to Section 11(a), the Executive Committee shall have, and may exercise, all powers of the Board of Directors in the management of the business and affairs of the corporation.
(c) Audit Committee. An Audit Committee of the corporation, composed of at least two members of the Board of Directors, none of whom shall be an affiliate of the corporation or an officer or employee of the corporation or any of its subsidiaries, shall be
appointed at the annual meeting of the Board of Directors. Directors who are appointed to the Audit Committee shall be free of any relationship that, in the opinion of the Board of Directors, would interfere with the exercise of independent judgment as a committee member. Any vacancy in the Audit Committee shall be filled by a majority vote of the Board of Directors. A majority of the members of the Audit Committee shall constitute a quorum and a majority of the quorum shall be required to adopt or approve any matters. The duties of the Audit Committee shall include, in addition to such other duties as may be specified from time to time by resolution of the Board of Directors or an Audit Committee Charter, the following:
(i) review and make recommendations to the Board of Directors with respect to the engagement or discharge of the corporation's independent auditors and the terms of the engagement;
(ii) review the policies and procedures of the corporation and management with respect to maintaining the corporation's books and records; and
(iii) review with the independent auditors, upon completion of their audit, the results of the auditing engagement and any other recommendations the auditors may have with respect to the corporation's financial, accounting or auditing systems.
The Audit Committee is authorized to employ such experts and personnel, including those who are already employed or engaged by the corporation, as the Audit Committee may deem to be reasonably necessary to enable it to ably perform its duties and satisfy its responsibilities.
(d) Compensation Committee. A Compensation Committee of the corporation, composed of at least two members of the Board of Directors, shall be appointed at the annual meeting of the Board of Directors. Directors who are appointed to the Compensation Committee may not be active or retired officers or employees of the corporation or of any of its subsidiaries. The duties of the Compensation Committee shall include, in addition to such other duties as may be specified by resolution of the Board of Directors from time to time, the following:
(i) consider and make recommendations to the Board of Directors regarding salaries and bonuses for elected officers of the corporation, and prepare such reports with respect thereto as may be required by law;
(ii) consider, review and grant stock options, stock appreciation rights and other securities under the corporation's stock option and stock incentive plans, and administer such plans; and
(iii) consider matters of director compensation, benefits and other forms of remuneration.
The Compensation Committee is authorized to employ such experts and personnel, including those who are already employed or engaged by the corporation, as the Compensation Committee
may deem to be reasonably necessary to enable it to ably perform its duties and satisfy its responsibilities.
(e) Term. The members of all committees of the Board of Directors shall serve as such members at the pleasure of the Board of Directors. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
(f) Meetings. Unless the Board of Directors shall otherwise provide, each committee of the Board of Directors may prescribe its own rules for calling and holding meetings and its method of procedure and shall keep a written record of all actions taken by the committee.
SECTION 12. FEES AND COMPENSATION.
Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors, including, without limitation, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor.
SECTION 13. ORGANIZATION.
At every meeting of the Directors, the Chairman of the Board of Directors or, if the Chairman of the Board of Directors is absent, the President, or, in the absence of any such officer, a chairman of the meeting chosen by a majority of the Directors present, shall preside over the meeting. The Secretary, or in his or her absence, an Assistant Secretary directed to do so by the presiding officer, shall act as secretary of the meeting.
SECTION 14. INTERESTED DIRECTORS.
Any contract or other transaction or determination between the corporation and one or more of its Directors, or between the corporation and another party in which one or more of its Directors are interested, shall be valid notwithstanding the presence or participation of such Director or Directors in a meeting of the Board of Directors, or any committee thereof, which acts upon or in reference to such contract, transaction or determination, if the material facts as to such Director's or Directors' relationship or interest as to the contract, other transaction or determination shall be disclosed or known to the Board of Directors or committee and it shall in
good faith authorize or approve such contract, transaction or determination by a vote of a majority of the disinterested Directors. If a majority of disinterested Directors vote to authorize, approve or ratify the transaction, a quorum is present for the purposes of this Section 14; provided, however, that no transaction under this Section may be authorized, approved or ratified by a single Board member. Such interested Director or Directors shall not be entitled to vote on such contract, transaction or determination, and shall not be counted among the Directors present for purposes of determining the number of Directors constituting the majority necessary to carry such vote. If not authorized or approved by a majority of the disinterested Directors as provided above, such contract, transaction or determination shall nevertheless be valid if the material facts as to such Director's or Directors' relationship or interest and as to the contract, other transaction or determination shall be disclosed or known to the shareholders entitled to vote thereon and such contract, transaction or determination shall be specifically approved in good faith by vote of the holders of a majority of a quorum of such shares. Such interested Director or Directors shall not be disqualified from voting in their capacity as shareholders for ratification or approval of such contract, transaction or determination. Notwithstanding the foregoing, a transaction not approved by a majority of disinterested directors or a majority of a quorum of shareholders, is not voidable if such a transaction was fair to the corporation. This Section 14 shall not invalidate any contract, transaction or determination which would otherwise be valid under applicable law.
SECTION 15. EMERITUS OR ADVISORY DIRECTORS.(SECTION ADDED MARCH 2006)
(a) Qualification and Appointment. The Board of Directors may, from time to time, appoint one or more individuals (including individuals who were former members of the Board of Directors) to serve as Emeritus or Advisory Members of the Board of Directors of the corporation. Shareholders of the corporation shall have no right to elect Emeritus or Advisory Directors.
(b) Term. Each Emeritus or Advisory Member of the Board of Directors shall serve until his or her death, resignation, retirement or removal. Emeritus or Advisory Members of the Board of Directors may be removed without cause by a majority vote of the members of the Board of Directors.
(c) Participation in Board Meetings. Upon invitation by the Board of Directors, any individual appointed as an Emeritus or Advisory Member of the Board of Directors may, but shall not be required to, attend meetings of the Board of Directors. An Emeritus or Advisory Member of the Board of Directors may participate in any discussions at such meetings; provided, however, that such individual shall not be counted in determining a quorum, vote or initiate any actions to be voted on at any meeting of the Board of Directors.
(d) Duties and Liabilities. Emeritus or Advisory Members of the Board of Directors shall be available to the Board of Directors and the corporation for counsel. It shall be the duty of the Emeritus or Advisory Members of the Board of Directors to serve as goodwill ambassadors of the corporation, but such individuals shall not have any responsibility or be subject to any liability imposed upon a member of the Board of Directors or in any manner otherwise be deemed to be a member of the Board of Directors of the corporation.
(e) Compensation. Emeritus or Advisory Members of the Board of Directors will be entitled to receive fees and reimbursement for expenses of meeting attendance, and to participate in the long-term incentive programs offered to Directors, as recommended by the Board and approved by the Compensation Committee of the Board of Directors.
(f) Other Directors. References in these Bylaws to Directors of the corporation will not include Emeritus or Advisory Members of the Board of Directors, except for Article VIII, Indemnification.
ARTICLE IV. OFFICERS
SECTION 1. GENERAL.
The officers of the corporation shall be the Chairman of the Board of Directors, the President, one or more Vice Presidents, and the Secretary, all of whom shall be elected at the annual meeting of the Board of Directors. The Board of Directors may also appoint one or more Assistant Secretaries, and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one time unless specifically prohibited by law. The salaries and other compensation of officers of the corporation shall be fixed by or in the manner designated by the Board of Directors. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected and qualified, unless sooner removed. Subject to Section 4 below and to the terms of any contract of employment between the corporation and such officer, any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors.
SECTION 2. DUTIES OF OFFICERS.
(a) Chairman of the Board of Directors. The Chairman of the Board of Directors shall preside at meetings of the Board of Directors and shall perform such additional duties and have such additional powers as the Board of Directors may designate from time to time.
(b) President. The President shall be the chief executive officer of the corporation. The President shall, subject to the control of the Board of Directors, have general supervision of the business of the corporation, shall be responsible for preparing the agenda for all meetings of the Board of Directors and of the shareholders, and shall perform other duties commonly incident to his or her office. The President shall preside at all meetings of the shareholders. The President shall have the power, either in person or by proxy, to vote all voting securities held by the corporation of any other corporation or entity, and to execute, on behalf of the corporation, such agreements, contracts and instruments, including, without limitation, negotiable instruments, as shall be necessary or appropriate in furtherance of the conduct of the corporation's normal business activities. The President shall also perform such other duties and have such other powers as the Board of Directors may designate from time to time.
(c) Vice Presidents. The Vice Presidents, in the order of their seniority, as designated by the Board of Directors, may assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
(d) Secretary. The Secretary shall attend all meetings of the shareholders and of the Board of Directors, and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the shareholders, of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties given him or her in these Bylaws and other duties commonly incident to such office and shall also perform such other duties and have such other powers as the Board of Directors may designate from time to time. The President may direct any Assistant Secretary to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to his or her office and shall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
SECTION 3. OTHER OFFICERS.
Such other officers as the Board of Directors may designate shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the corporation the power to choose such other officers and to prescribe their respective duties and powers.
SECTION 4. RESIGNATIONS.
Any officer may resign at any time by giving written notice to the corporation. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective.
ARTICLE V. STOCK
SECTION 1. FORM AND CONTENT OF CERTIFICATES; UNCERTIFICATED SHARES.
Shares of the stock of the corporation shall be represented by certificates in such form as is consistent with the Articles of Incorporation and applicable law; provided, however, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by or in the name of the corporation by the Chairman of the
Board of Directors, or the President or any Vice President and by the Secretary or Assistant Secretary of the corporation representing the number of shares registered in certificate form. Such certificates shall set forth the number of shares owned by the holder in the corporation as well as the class or series of such shares and such other information as may be required by law. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Each certificate shall state upon the face or back thereof, in full or in summary, all of the designations, preferences, limitations, restrictions on transfer and relative rights of the shares authorized to be issued, or shall contain the corporation's undertaking to furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 2. LOST CERTIFICATES.
A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent to the issuance of a new certificate or certificates, that the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFERS.
Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and upon the surrender of a properly endorsed certificate or certificates for a like number of shares.
SECTION 4. RECORD DATE.
In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 70 nor less than ten days before the date of such meeting, nor more than 70 days prior to any other action. If no record date is fixed by the Board of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the day next preceding the day on which notice of such meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5. REGISTERED SHAREHOLDERS.
The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI. NOTICES
SECTION 1. NOTICES.
Whenever written notice is required by law, the Articles of Incorporation or these Bylaws to be given to any director, member of a committee or shareholder, such notice may be given by mail, addressed to such person, at his or her address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given and effective at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, facsimile, telex, cable or electronic means, and shall be deemed given when so sent, provided that the manner of any electronic transmission has been authorized by the director or by the shareholder, who must provide such authorization in writing.
SECTION 2. WAIVERS OF NOTICE.
Whenever any notice is required by law, the Articles of Incorporation or these Bylaws to be given to any director, member of a committee or shareholder, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII. GENERAL PROVISIONS
SECTION 1. DIVIDENDS.
Dividends upon the capital stock of the corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting and may be paid in cash, in property, or in shares of the capital stock of the corporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in its discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall deem conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
SECTION 2. FISCAL YEAR.
The fiscal year of the corporation shall extend from September 1 until August 31 of the following calendar year.
SECTION 3. CORPORATE SEAL.
Unless otherwise required by law, a seal shall not be required in order to give effect to any act of the corporation. The corporate seal, if any, shall consist of a die bearing the name of the corporation and the inscription, "Corporate Seal-Oregon." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 4. DISBURSEMENTS.
All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
ARTICLE VIII. INDEMNIFICATION
SECTION 1. DIRECTORS AND OFFICERS.
(a) Indemnity in Third-Party Proceedings. The corporation shall
indemnify its Directors and officers in accordance with the provisions of this
Section 1(a) if the Director or officer was or is a party to, or is threatened
to be made a party to, any proceeding (other than a proceeding by or in the
right of the corporation to procure a judgment in its favor), against all
expenses, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by the Director or officer in connection with such
proceeding if the Director or officer acted in good faith and in a manner the
Director or officer reasonably believed was in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, the Director or officer, in addition, had no reasonable cause to
believe that the Director's or officer's conduct was unlawful; provided,
however, that the Director or officer shall not be entitled to indemnification
under this Section 1(a): (i) in connection with any proceeding charging improper
personal benefit to the Director or officer in which the Director or officer is
adjudged liable on the basis that personal benefit was improperly received by
the Director or officer unless and only to the extent that the court conducting
such proceeding or any other court of competent jurisdiction determines upon
application that, despite the adjudication of liability, the Director or officer
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, or (ii) in connection with any proceeding (or part thereof)
initiated by such person or any proceeding by such person against the
corporation or its Directors, officers, employees or other agents unless (A)
such indemnification is expressly required to be made by law, (B) the proceeding
was authorized by the Board of Directors, or (C) such indemnification is
provided by the corporation, in its sole discretion, pursuant to the powers
vested in the corporation under the Oregon Business Corporation Act.
(b) Indemnity in Proceedings by or in the Right of the Corporation. The corporation shall indemnify its Directors and officers in accordance with the provisions of this
Section 1(b) if the Director or officer was or is a party to, or is threatened to be made a party to, any proceeding by or in the right of the corporation to procure a judgment in its favor, against all expenses actually and reasonably incurred by the Director or officer in connection with the defense or settlement of such proceeding if the Director or officer acted in good faith and in a manner the Director or officer reasonably believed was in or not opposed to the best interests of the corporation; provided, however, that the Director or officer shall not be entitled to indemnification under this Section 1(b): (i) in connection with any proceeding in which the Director or officer has been adjudged liable to the corporation unless and only to the extent that the court conducting such proceeding determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Director or officer is fairly and reasonably entitled to indemnification for such expenses as such court shall deem proper, or (ii) in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors, officers, employees or other agents unless (A) such indemnification is expressly required to be made by law, (B) the proceeding was authorized by the Board of Directors, or (C) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Oregon Business Corporation Act.
SECTION 2. EMPLOYEES AND OTHER AGENTS.
The corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the corporation similar to those conferred in this Article VIII to Directors and officers of the corporation.
SECTION 3. GOOD FAITH.
(a) For purposes of any determination under this Article VIII, a Director or officer shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding to have had no reasonable cause to believe that his or her conduct was unlawful, if his or her action is based on information, opinions, reports and statements, including financial statements and other financial data, in each case prepared or presented by:
(i) one or more officers or employees of the corporation whom the Director or officer reasonably believed to be reliable and competent in the matters presented;
(ii) legal counsel, independent accountants or other persons as to matters which the Director or officer reasonably believed to be within such person's professional or expert competence;
(iii) with respect to a Director, a committee of the Board upon which such Director does not serve, as to matters within such committee's designated authority, which committee the Director reasonably believes to merit confidence; or
(iv) so long as, in each case, the Director or executive officer acts without knowledge that would cause such reliance to be unwarranted.
(b) 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 he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, that he had reasonable cause to believe that his or her conduct was unlawful.
(c) The provisions of this Section 3 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth by the Oregon Business Corporation Act.
SECTION 4. ADVANCES OF EXPENSES.
The corporation shall pay the expenses incurred by its Directors or officers in any proceeding (other than a proceeding brought for an accounting of profits made from the purchase and sale by the Director or officer of securities of the corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provision of any state statutory law or common law) in advance of the final disposition of the proceeding at the written request of the Director or officer, if the Director or officer: (a) furnishes the corporation a written affirmation of the Director's or officer's good faith belief that the Director or officer is entitled to be indemnified under this Article VIII, and (b) furnishes the corporation a written undertaking to repay the advance to the extent that it is ultimately determined that the Director or officer is not entitled to be indemnified by the corporation. Such undertaking shall be an unlimited general obligation of the Director or officer but need not be secured. Advances pursuant to this Section 4 shall be made no later than 10 days after receipt by the corporation of the affirmation and undertaking described in clauses (a) and (b) above, and shall be made without regard to the Director's or officer's ability to repay the amount advanced and without regard to the Director's or officer's ultimate entitlement to indemnification under this Article VIII. The corporation may establish a trust, escrow account or other secured funding source for the payment of advances made and to be made pursuant to this Section 4 or of other liability incurred by the Director or officer in connection with any proceeding.
SECTION 5. ENFORCEMENT.
Without the necessity of entering into an express contract, all rights to indemnification and advances to Directors and officers under this Article VIII 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. Any Director or officer may enforce any right to indemnification or advances under this Article VIII in any court of competent jurisdiction if: (a) the corporation denies the claim for indemnification or advances, in whole or in part, or (b) the corporation does not dispose of such claim within 45 days of request therefor. It shall be a defense to any such enforcement action (other than an action brought to enforce a claim for advancement of expenses pursuant to, and in compliance with, Section 1 of this Article
VIII) that the Director or officer is not entitled to indemnification under this Article VIII. The corporation may contest the Director or officer's entitlement to advancement of expenses pursuant to Section 4 of this Article VIII if the corporation in good faith believes that the Director or officer did not meet the standard of conduct set forth in Sections 60.357 and 60.391 of Oregon Revised Statutes with respect to the subject matter of the proceeding. The burden of proving by clear and convincing evidence that indemnification or advancement is not appropriate shall be on the corporation. Neither the failure of the corporation (including its Board of Directors or independent legal counsel) to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because the Director or officer has met the applicable standard of conduct nor an actual determination by the corporation (including its Board of Directors or independent legal counsel) that indemnification is improper because the Director or officer has not met such applicable standard of conduct, shall be asserted as a defense to the action or create a presumption that the Director or officer is not entitled to indemnification under this Article VIII or otherwise. The Director's or officer's expenses incurred in connection with successfully establishing such person's right to indemnification or advances, in whole or in part, in any proceeding shall also be paid or reimbursed by the corporation.
SECTION 6. NON-EXCLUSIVITY RIGHTS.
The rights conferred on any person by this Article VIII 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 his or her 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 not prohibited by the Oregon Business Corporation Act.
SECTION 7. SURVIVAL OF RIGHTS.
The rights conferred on any person by this Article VIII 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 a person.
SECTION 8. INSURANCE.
To the fullest extent permitted by the Oregon Business Corporation Act, the corporation may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Article VIII.
SECTION 9. AMENDMENTS.
Any repeal or modification of this Article VIII shall only be prospective and shall not affect the rights under this Article VIII 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 Director, officer, employee or agent of the corporation.
SECTION 10. SAVINGS CLAUSE.
If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each Director and officer to the full extent not prohibited by any applicable portion of this Article VIII that shall not have been invalidated, or by any other applicable law.
SECTION 11. CERTAIN DEFINITIONS.
For the purposes of this Article VIII, the following definitions shall apply:
(a) The term "proceeding" shall include any threatened, pending or completed action, suit or proceeding, whether brought in the right of the corporation or otherwise, and whether of a civil, criminal, administrative or investigative nature, in which the Director or officer of the corporation may be or may have been involved as a party, witness or otherwise, by reason of the fact that the Director or officer is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Article VIII.
(b) The term "expenses" includes, without limitation thereto, expenses of investigations, judicial or administrative proceedings or appeals, attorney, accountant and other professional fees and disbursements and any expenses of establishing a right to indemnification under this Article VIII, but shall not include amounts paid in settlement by the Director or officer or the amount of judgments or fines against the Director or officer.
(c) References to "other enterprise" include, without limitation, employee benefit plans; references to "fines" include, without limitation, any excise taxes assessed on a person with respect to any employee benefit plan; references to "serving at the request of the corporation" include, without limitation, any service as a director, officer, employee or agent which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or its beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and 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 Article VIII.
(d) References to "the corporation" shall include, in addition to the resulting 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, and employees or agents, so that any person who is or was a director, officer or employee 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 this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
(e) The meaning of the phrase "to the fullest extent permitted by law" shall include, but not be limited to: (i) to the fullest extent authorized or permitted by any amendments to or replacements of the Oregon Business Corporation Act adopted after the date of this Article VIII that increase the extent to which a corporation may indemnify its directors and officers, and (ii) to the fullest extent permitted by the provision of the Oregon Business Corporation Act that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the Oregon Business Corporation Act.
SECTION 12. NOTIFICATION AND DEFENSE OF CLAIM.
As a condition precedent to indemnification under this Article VIII, not later than 30 days after receipt by the Director or officer of notice of the commencement of any proceeding the Director or officer shall, if a claim in respect of the proceeding is to be made against the corporation under this Article VIII, notify the corporation in writing of the commencement of the proceeding. The failure to properly notify the corporation shall not relieve the corporation from any liability which it may have to the Director or officer otherwise than under this Article VIII. With respect to any proceeding as to which the Director or officer so notifies the corporation of the commencement:
(a) The corporation shall be entitled to participate in the proceeding at its own expense.
(b) Except as otherwise provided in this Section 12, the corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense of the proceeding, with legal counsel reasonably satisfactory to the Director or officer. The Director or officer shall have the right to use separate legal counsel in the proceeding, but the corporation shall not be liable to the Director or officer under this Article VIII for the fees and expenses of separate legal counsel incurred after notice from the corporation of its assumption of the defense, unless (i) the Director or officer reasonably concludes that there may be a conflict of interest between the corporation and the Director or officer in the conduct of the defense of the proceeding, or (ii) the corporation does not use legal counsel to assume the defense of such proceeding. The corporation shall not be entitled to assume the defense of any proceeding brought by or on behalf of the corporation or as to which the Director or officer has made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to indemnification from the corporation, including the Director or officer seeking indemnification, are parties to any proceeding, the corporation may require the Director or officer to use the same legal counsel as the other parties. The Director or officer shall have the right to use separate legal counsel in the proceeding, but the corporation shall not be liable to the Director or officer under this Article VIII for the fees and expenses of separate legal counsel incurred after notice from the corporation of the requirement to use the same legal counsel as the other parties, unless the Director or officer reasonably concludes that there may be a conflict of interest between the Director or officer and any of the other parties required by the corporation to be represented by the same legal counsel.
(d) The corporation shall not be liable to indemnify the Director or officer under this Article VIII for any amounts paid in settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld. The Director or officer shall permit the corporation to settle any proceeding that the corporation assumes the defense of, except that the corporation shall not settle any action or claim in any manner that would impose any penalty or limitation on the Director or officer without such person's written consent.
SECTION 13. EXCLUSIONS.
Notwithstanding any provision in this Article VIII, the corporation
shall not be obligated under this Article VIII to make any indemnification or
advancement of expenses in connection with any claim made against any Director
or officer: (a) for which payment is required to be made to or on behalf of the
Director or officer under any insurance policy, except with respect to any
excess amount to which the Director or officer is entitled under this Article
VIII beyond the amount of payment under such insurance policy; (b) if a court
having jurisdiction in the matter finally determines that such indemnification
is not lawful under any applicable statute or public policy; (c) in any suit,
action, claim or litigation, civil, criminal, administrative or otherwise, which
arises out of the Director's or officer's individual interests and not by reason
of the fact that he or she served as a Director or officer of the corporation;
(d) in connection with any proceeding (or part of any proceeding) initiated by
the Director or officer, or any proceeding by the Director or officer against
the corporation or its directors, officers, employees or other persons entitled
to be indemnified by the corporation, unless: (i) the corporation is expressly
required by law to make the indemnification; (ii) the proceeding was authorized
by the Board of Directors of the corporation; or (iii) the Director or officer
initiated the proceeding pursuant to Section 5 of this Article VIII and the
Director or officer is successful in whole or in part in such proceeding; or (e)
for an accounting of profits made from the purchase and sale by the Director or
officer of securities of the corporation within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provision of any
state statutory law or common law.
SECTION 14. SUBROGATION.
In the event of payment under this Article VIII, the corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Director or officer. The Director or officer shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the corporation effectively to bring suit to enforce such rights.
ARTICLE IX. AMENDMENTS
These Bylaws may be amended, repealed, altered or rescinded by the Board of Directors or by the affirmative vote of the holders of not less than a majority of the outstanding shares of capital stock of the corporation entitled to vote thereon, voting together as a single class.
007774\00018\680054 V001
THE GREENBRIER COMPANIES, INC.
EXHIBIT 31.1
CERTIFICATIONS
I, William A. Furman, certify that:
1. I have reviewed this quarterly report on Form 10-Q of The Greenbrier Companies, Inc. for the quarterly period ended February 28, 2006;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on such evaluation; and
(d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: April 5, 2006 /s/ William A. Furman ------------------------------------- William A. Furman, President and Chief Executive Officer, Director |
THE GREENBRIER COMPANIES, INC.
EXHIBIT 31.2
CERTIFICATIONS (cont'd)
I, Joseph K. Wilsted, certify that:
1. I have reviewed this quarterly report on Form 10-Q of The Greenbrier Companies, Inc. for the quarterly period ended February 28, 2006;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on such evaluation; and
(d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: April 5, 2006 /s/ Joseph K. Wilsted ------------------------------------- Joseph K. Wilsted Senior Vice President and Chief Financial Officer |
THE GREENBRIER COMPANIES, INC.
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of The Greenbrier Companies, Inc.
(the "Company") on Form 10-Q for the quarterly period ended February 28, 2006 as
filed with the Securities and Exchange Commission on the date therein specified
(the "Report"), I, William A. Furman, President and Chief Executive Officer of
the Company, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date April 5, 2006
/s/ William A. Furman ------------------------------------- William A. Furman President and Chief Executive Officer |
THE GREENBRIER COMPANIES, INC.
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of The Greenbrier Companies, Inc. (the "Company") on Form 10-Q for the quarterly period ended February 28, 2006 as filed with the Securities and Exchange Commission on the date therein specified (the "Report"), I, Joseph K. Wilsted, Senior Vice President and Chief Financial Officer of the Company, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: April 5, 2006 /s/ Joseph K. Wilsted ------------------------------------- Joseph K. Wilsted Senior Vice President and Chief Financial Officer |