EXHIBIT 3.70
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BY-LAWS
OF
BENECO ENTERPRISES, INCORPORATED
ARTICLE I
Offices
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Section 1. The principal office of the corporation shall be located in
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Salt Lake City, Utah. The corporation may have such other offices, either within
or without the State of Utah as the Board of Directors may designate or as the
business of the corporation may require from time to time.
The registered office of the corporation required by the laws of the State
of Utah, to be maintained in the State of Utah may be, but need not be
identical, with the principal office of the corporation in the State of Utah and
the address of the registered office may be changed from time to time by the
Board of Directors.
ARTICLE II
Meeting of Stockholders
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Section 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held at the principal office of the corporation, at Salt Lake City, Utah, on the
third Wednesday in September of each year, commencing in 1979, or at such other
times or places as the Board of Directors may from time to time determine.
If the day so designated falls upon a legal holiday, then the meeting shall
be held upon the first business day thereafter. The Secretary shall serve
personally, or by mail a written notice
thereof, not less than ten nor more than fifty days previous to such meeting
addressed to each stockholder at his address as it appears on the stock book;
but at any meeting at which all stockholders shall be present, or of which all
stockholders not present have waived notice in writing, the giving of notice as
above required may be dispensed with.
Section 2. SPECIAL MEETINGS. Special meetings of stockholders other than
those regulated by statute, may be called at any time by a majority of the
Directors. Notice of such meeting stating the purpose of which it is called
shall be served personally or by mail, not less than ten days before the date
set for such meeting. If mailed, it shall be directed to a stockholder at his
address as it appears on the stock book; but at any meeting at which all
stockholders shall be present, or of which stockholders not present have waived
notice in writing, the giving of notice as above described may be dispensed
with. The Board of Directors shall also, in like manner, call a special meeting
of stockholders whenever so requested in writing by stockholders representing
not less than ten percent (10%) of the capital stock of the company entitled to
vote at the meeting. The President may in his discretion call a special meeting
of stockholders upon ten days notice. No business other than that specified in
the call for the meeting, shall be transacted at any meeting of the
stockholders, except upon the unanimous consent of all the stockholders entitled
to notice thereof.
Section 3. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock transfer
books shall be
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closed for the purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall be closed for at least ten
days immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than fifty days and, in case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action, requiring such
determination of shareholders is to be taken. If the stock transfer books are
not closed, and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
Section 4. VOTING. At all meetings of the shareholders of record having
the right to vote, subject to the provisions of Section 3 each stockholder of
the corporation is untitled to one vote for each share of stock having voting
power standing in the name of such stockholder on the books of the company.
Votes may be cast in person or by written authorized proxy.
Section 5. PROXY. Each proxy must be executed in writing by the
stockholder of the corporation or his duly authorized attorney. No proxy shall
be valid after the expiration of eleven months from the date of its execution
unless it shall have specified therein its duration.
Every proxy shall be revocable at the discretion of the person executing it
or of his personal representatives or assigns.
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Section 6. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by such officer, agent or proxy as the
By-Laws of such corporation may prescribe, or, in the absence of such provision,
as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be
voted by him either in person or by proxy without a transfer of such shares into
his name. Shares standing in the name of a trustee may be voted by him either in
person or by proxy, but no trustee shall be entitled to vote shares held by him
without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time.
Section 7. ELECTION OF DIRECTORS. At each election for directors every
shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many persons as
there are directors to be elected and for whose election he has a right to vote.
There shall be no cumulative voting.
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Section 8. QUORUM. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of the stockholders.
If a quorum shall not be present or represented, the stockholders entitled
to a vote thereat, present in person or represented by proxy, shall have power
to adjourn from time to time the meeting until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business or any specified item of business may be transacted
which might have been transacted at the meeting as originally notified.
The number of votes or consents of the holders of any class of stock having
voting power which shall be necessary for the transaction of any business or any
specified item of business at any meeting of stockholders, including amendments
to the Articles of Incorporation, or the giving of any consent, shall be a
majority of the outstanding shares of the corporation entitled to vote,
represented in person or by proxy.
Section 9. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
ARTICLE III
Directors
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Section 1. NUMBER. The affairs and business of this corporation shall be
managed by a Board of Directors. The first Board of Directors shall consist of
three members. Thereafter
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the number of directors may be increased to not more than seven by resolution of
the Board of Directors. Directors need not be stockholders and need not be
residents of the State of Utah.
Section 2. ELECTION. The directors shall be elected at each annual meeting
of the stockholders, but if any such annual meeting is not held, or the
directors are not elected thereat, the directors may be elected at any special
meeting of the stockholders held for that purpose.
Section 3. TERM OF OFFICE. The term of office of each of the Directors
shall be one year, and thereafter until his successor has been elected.
Section 4. DUTIES. The Board of Directors shall have the control and
general management of the affairs and business of the corporation. Such
Directors shall in all cases act as a Board, except as herein provided in
Section 11, regularly convened, by a majority, and they may adopt such rules and
regulations for the conduct of their meetings and the management of the company,
as they may deem proper, not inconsistent with these By-Laws and the laws of the
State of Utah.
Section 5. DIRECTORS' MEETINGS. Regular meetings of the Board of Directors
shall be held immediately following the annual meeting of the stockholders, and
at such other time and place as the Board of Directors may determine. Special
meetings of the Board of Directors may be called by the President at any time,
and shall be called by the President or the Secretary upon the written request
of two directors.
Section 6. NOTICE OF MEETINGS. Notice of meetings, other than the regular
annual meeting shall be given by service upon each Director in person, or by
mailing to him at his last known address, at least three days before the date
therein designated for such meeting, including the day of mailing, of a written
or printed notice thereof specifying the time and place of such meeting, and the
business to be brought before the meeting and no business other than
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that specified in such notice shall be transacted at any special meeting. At any
meeting at which every member of the Board of Directors shall be present,
although held without notice, any business may be transacted which might have
been transacted if the meeting had been duly called.
Any Director may waive notice of any meeting under the provisions of
Article XI. The attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting except where a Director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully convened or called.
Section 7. VOTING. At all meetings of the Board of Directors, each
Director is to have one vote, irrespective of the number of shares of stock that
he may hold. The act of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
Section 8. VACANCIES. Vacancies in the Board occurring between annual
meetings shall be filled for the unexpired portion of the term by a majority of
the remaining Directors.
Section 9. REMOVAL OF DIRECTORS. Any one or more of the Directors may be
removed whether with or without cause, at any time by a vote of the stockholders
holding a majority of the stock, at any special meeting called for that purpose.
Section 10. QUORUM. The number of Directors who shall be present at any
meeting of the Board of Directors in order to constitute a quorum for the
transaction of any business or any specified item of business shall be a
majority.
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The number of votes of Directors that shall be necessary for the
transaction of any business or any specified item of business at any meeting of
the Board of Directors shall be a majority.
If a quorum shall not be present at any meeting of the Board of Directors,
those present may adjourn the meeting from time to time, until a quorum shall be
present.
Section 11. EXECUTIVE COMMITTEE. By resolution of the Board of Directors,
the Directors may designate an executive committee of not less than three
directors, to manage and direct the daily affairs of the corporation. Said
Executive Committee shall have and may exercise all of the authority that is
vested in the Board of Directors as if the Board of Directors were regularly
convened, except that the Executive Committee shall not have authority to amend
these By-Laws.
At all meetings of the Executive Committee, each member of said committee
shall have one vote and the act of a majority of the members present at a
meeting at which a quorum is present shall be the act of the Executive
Committee.
The number of Executive Committee members who shall be present at any
meeting of the Executive Committee in order to constitute a quorum for the
transaction of any business or any specified item of business shall be a
majority.
The number of votes of Executive Committee members that shall be necessary
for the transaction of any business or any specified item of business at any
meeting of the Executive Committee shall be a majority.
Section 12. COMPENSATION. By resolution of the Board of Directors, the
Directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors or a
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stated salary as Director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
Section 13. PRESUMPTION OF ASSENT. A Director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the Secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
ARTICLE IV
Officers
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Section 1. NUMBER. The officers of this corporation shall be: President,
Vice President, Secretary and Treasurer.
Any officer may hold more than one office.
Section 2. ELECTION. All officers of the corporation shall be elected
annually by the Board of Directors at its meeting held immediately after the
meeting of stockholders, and shall hold office for the term of one year or until
their successors are duly elected. Officers need not be members of the Board.
The Board may appoint such other officers, agents and employees as it shall
deem necessary who shall have such authority and shall perform such duties as
from time to time shall be prescribed by the Board.
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Section 3. DUTIES OF OFFICERS. The duties and powers of the officers of
the company shall be as follows:
PRESIDENT
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The President shall preside at all meetings of the Board of Directors and
stockholders.
He shall present at each annual meeting of the stockholders and directors a
report of the condition of the business of the company.
He shall cause to be called regular and special meetings of the
stockholders and directors a report of the condition of the business of the
company. He shall cause to be called regular and special meetings of the
stockholders and directors in accordance with these By-Laws. He shall appoint
and remove, employ and discharge, and fix the compensation of all servants,
agents, employees, and clerks of the corporation other than the duly appointed
officers, subject to the approval of the Board of Directors.
He shall sign and make all contracts and agreements in the name of the
corporation.
He shall see that the books, reports, statements and certificates required
by the statues are properly kept, made and filed according to law.
He shall sign all certificates of stock, notes, drafts or bills of
exchange, warrants or other orders for the payments of money duly drawn by the
Treasurer.
He shall enforce these By-Laws and perform all the duties incident to the
position and office, and which are required by law.
VICE PRESIDENT
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During the absence or inability of the President to render and perform his
duties or exercise his powers, as set forth in these By-Laws or in the acts
under which this corporation is organized, the same shall be performed and
exercised by the Vice President; and when so acting,
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he shall have all the powers and be subject to all the responsibilities hereby
given to or imposed upon such President.
SECRETARY
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The Secretary shall keep the minutes of the meetings of the Board of
Directors and of the stockholders in appropriate books.
He shall give and serve all notices of the corporation.
He shall be custodian of the records and of the seal and affix the latter
when required.
He shall keep the stock and transfer books in the manner prescribed by law,
so as to show at all times the amount of capital stock issued and outstanding,
the manner and the time compensation for the same was paid in, the names of the
owners thereof, alphabetically arranged, the number of shares owned by each, the
time at which each person became such owner, and the amount paid thereon; and
keep such stock and transfer books open daily during the business hours at the
office of the corporation, subject to the inspection of any stockholder of the
corporation, and permit such stockholder to make extracts from said books to the
extent prescribed by law.
He shall sign all certificates of stock.
He shall present to the Board of Directors at their stated meetings all
communications addressed to him officially by the President or any officer or
shareholder of the corporation.
He shall attend to all correspondence and perform all the duties incident
to the office of Secretary.
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TREASURER
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The Treasurer shall have the care and custody of and be responsible for all
the funds and securities of the corporation and deposit all such funds in the
name of the corporation in such bank or banks, trust company or trust companies
or safe deposit vaults as the Board of Directors may designate.
He shall exhibit at all reasonable times his books and accounts to any
Director or stockholder of the company upon application at the office of the
corporation during business hours.
He shall render a statement of the conditions of the finances of the
corporation at each regular meeting of the Board of Directors, and at such other
times as shall be required of him, and a full financial report at the annual
meeting of the stockholders.
He shall keep at the office of the corporation, correct books of account of
all its business and transactions and such other books of account as the Board
of Directors may require.
He shall do and perform all duties appertaining to the office of Treasurer.
Section 4. BOND. The Treasurer shall, if required by the Board of
Directors, give to the corporation such security for the faithful discharge of
his duties as the Board may direct.
Section 5. VACANCIES, HOW FILLED. All vacancies in any office shall be
filled by the Board of Directors without undue delay, at its regular meeting or
at a meeting specially called for that purpose. In the case of the absence of
any officer of the corporation or for any reason that the Board of Directors may
deem sufficient, the Board may, except as specifically otherwise provided in
these By-Laws delegate the powers or duties of such officers to any other
officer or director for the time being, provided a majority of the entire Board
concur therein.
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Section 6. COMPENSATION OF OFFICERS. The officers shall receive such
salary or compensation as may be determined by the Board of Directors.
Section 7. REMOVAL OF OFFICERS. The Board of Directors may remove any
officer, by a majority vote, at any time with or without cause.
ARTICLE V
Certificates of Stock
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Section 1. DESCRIPTION OF STOCK CERTIFICATES. The certificates of stock
shall be numbered and registered in the order in which they are issued. They
shall be bound in a book and shall be issued in consecutive order therefrom, and
in the margin thereof shall be entered the name of the person owning the shares
therein represented, with the number of shares and the date thereof. Such
certificates shall exhibit the holder's name and number of shares. They shall be
signed by the President or Vice President, and countersigned by the Secretary or
Treasurer and sealed with the seal of the corporation.
Section 2. TRANSFER OF STOCK. The stock of the corporation shall be
assignable and transferable on the books of the corporation only by the person
in whose name it appears on said books, his legal representatives or by his duly
authorized agent. In case of transfer by attorney, the power of attorney, duly
executed and acknowledged, shall be deposited with the Secretary. In all cases
of transfer, the former certificate must be surrendered up and cancelled before
a new certificate may be issued. No transfer shall be made upon the books of the
corporation within ten (10) days next preceding the annual meeting of the
shareholders.
Section 3. LOST CERTIFICATES. If a stockholder shall claim to have lost or
destroyed a certificate or certificates of stock issued by the corporation, the
Board of Directors
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may direct at its discretion, a new certificate or certificates be issued, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost or destroyed, and upon the deposit of a bond or other
indemnity in such form and with such sureties if any as the Board may require.
ARTICLE VI
Section 1. SEAL. The seal of the corporation shall be as follows:
ARTICLE VII
Dividends
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Section 1. WHEN DECLARED. The Board of Directors shall by vote declare
dividends from the surplus profits of the corporation whenever, in their
opinion, the condition of the corporation's affairs will render it expedient for
such dividends to be declared.
Section 2. RESERVE. The Board of Directors may set aside out of the net
profits of the corporation available for dividends such sum or sums, before
payment of any dividend, as the Board in their absolute discretion think proper
as a reserve fund, to meet contingencies, or for equalizing dividends, of for
repairing or maintaining any property of the corporation, or for such other
purpose as the Directors shall think conducive to the interests of the
corporation, and they may abolish or modify any such reserve in the manner in
which it was created.
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ARTICLE VIII
Bills, Notes, Etc.
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Section 1. HOW MADE. All bills payable, notes, checks, drafts, warrants or
other negotiable instruments of the corporation shall be made in the name of the
corporation, and shall be signed by any such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
ARTICLE IX
Indemnification
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Section 1. Any person made a party or involved in any civil, criminal or
administrative action, suit, or proceeding by reason of the fact that he or his
testator or intestate is or was director, officer, or employee of the
corporation, or of any corporation which he, the testator, or intestate served
as such at the request of the corporation shall be indemnified by the
corporation against expenses reasonably incurred by him or imposed on him in
connection with or resulting from the defense of such action, suit, or
proceeding and in connection with or resulting from any appeal therein, except
with respect to matters as to which it is adjudged in such action, suit, or
proceeding that such officer, director, or employee was liable to the
corporation, or to such other corporation, for negligence or misconduct in the
performance of his duty. As used herein the term "expense" shall include all
obligations incurred by such person for the payment of money, including without
limitation attorney's fees, judgments, awards, fines, penalties, and amounts
paid in satisfaction of judgment or in settlement of any such action, suit, or
proceeding, except amounts paid to the corporation or such other corporation by
him. A judgment or conviction whether based on plea of guilty or nolo contendre
or its equivalent or
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after trial shall not of itself be deemed an adjudication that such director,
officer, or employee is liable to the corporation, or such other corporation,
for negligence or misconduct in the performance of his duties. Determination of
the rights of such indemnification and the amount thereof may be made at the
option of the person to be indemnified pursuant to procedure set forth from time
to time in the By-Laws, or by any of the following procedures: (a) order of the
court or administrative body or agency having jurisdiction of the action, suit,
or proceeding; (b) resolution adopted by a majority of the quorum of the Board
of Directors of the corporation without counting in such majority a quorum any
directors who have incurred expenses in connection with such action, suit or
proceeding; (c) if there is no quorum of directors who have not incurred
expenses in connection with such action, suit, or proceeding, then by resolution
adopted by a majority of the committee of stockholders and directors who have
not incurred such expenses appointed by the Board of Directors; (d) resolution
adopted by a majority of the quorum of the Directors entitled to vote at any
meeting; or (e) order of any court having jurisdiction over the corporation. Any
such determination that a payment by way of indemnity should be made will be
binding upon the corporation, such right of indemnification shall not be
exclusive of any other right which such directors, officers, and employees of
the corporation and the other persons above-mentioned may have or hereafter
acquire and, without limiting the generality of such statement, they shall be
entitled to their respective rights of indemnification under any By-Laws,
Agreement, vote of stockholders, provision of law, or otherwise as well as their
rights under this article. The provisions of this article shall apply to any
member of any committee appointed by the Board of Directors as fully as though
such person had been a director, officer or employee of the corporation.
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ARTICLE X
Amendments
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Section 1. HOW AMENDED. These By-Laws may be altered, amended, repealed or
added to by the vote of the Board of Directors of this corporation at any
regular meeting of said Board, or at a special meeting of Directors called for
that purpose provided a quorum of the Directors as provided by law and by the
Articles of Incorporation, are present at such regular meeting or special
meeting. These By-Laws and any amendments thereto and new By-Laws added by the
Directors maybe amended, altered or replaced by the stockholders at any annual
or special meeting of the stockholders.
ARTICLE XI
Fiscal Year
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Section 1. The fiscal year shall be the calendar year.
ARTICLE XII
Waiver of Notice
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Section 1. Whenever any notice is required to be given to any shareholder
or director of the corporation under the provisions of the Utah Business
Corporation Act, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
These By-Laws approved and adopted at a meeting of the Board of Directors
of BENECO ELECTRIC, INCORPORATED.
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President
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