INTERNATIONAL MARKETING DYNAMICS, INC.
(A Utah Corporation)
CORPORATE INFORMATION STATEMENT
Bylaws
RESTATED
BYLAWS
OF
TWO DOG NET, INC.
ARTICLE I
OFFICES
Section 1.01 Location of Offices. The corporation may maintain such
offices within or without the state of Utah as the board of directors may from
time to time designate or require.
Section 1.02 Principal Office. The address of the principal office of
the corporation shall be at the address of the Registered office of the
corporation as so designated in the office of the Lieutenant Governor/Secretary
of State of the state of incorporation, or at such other address as the board of
directors shall from time to time determine.
ARTICLE II
SHAREHOLDERS
Section 2.01 Annual Meeting. The annual meeting of the stockholders
shall be held on the second Tuesday of the third month following the anniversary
of incorporation or at such other time designated by the board of directors and
as is provided for in the notice of the meeting; provided, that whenever such
date falls on a legal holiday, the meeting shall be held on the next succeeding
business day, beginning with the year following the filing of the articles of
incorporation, for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the election of directors
shall not be held on the day designated herein for the annual meeting of the
stockholders, or at any adjournment thereof, the board of directors shall cause
the election to be held at a special meeting of the stockholders as soon
thereafter as may be convenient.
Section 2.02 Special Meetings. Special meetings of the stockholders may
be called at any time by the chairman of the board, the president, or by the
board of directors, or in their absence or disability, by any vice president,
and shall be immediately called by the president or, in his absence or
disability, by a vice president or by the secretary on the written request of
the holders of not less than one-tenth of all the shares entitled to vote at the
meeting, such written request to state the purpose or purposes of the meeting
and to be delivered to the president, each vice-president, or secretary. In case
of failure to call such meeting within 20 days after such request, such
shareholder or shareholders may call the same.
Section 2.03 Place of Meetings. The board of directors may designate any
place, either within or without the state of incorporation, as the place of
meeting for any annual meeting or for any special meeting called by the board of
directors. A waiver of notice signed by all stockholders entitled to vote at a
meeting may designate any place, either within or without the state of
incorporation, as the place for the holding of such meeting. If no designation
is made, or if a special meeting be otherwise called, the place of meeting shall
be at the principal office of the corporation.
Section 2.04 Notice of Meetings. The secretary or assistant secretary,
if any, shall cause notice of the time, place, and purpose or purposes of all
meetings of the shareholders (whether annual or special), to be mailed at least
ten days, but not more than 50 days, prior to the meeting, to each shareholder
of record entitled to vote.
Section 2.05 Waiver of Notice. Any stockholder may waive notice of any
meeting of shareholders (however called or noticed, whether or not called or
noticed and whether before, during, or after the meeting), by signing a written
waiver of notice or a consent to the holding of such meeting, or an approval of
the minutes thereof. Attendance at a meeting, in person or by proxy, shall
constitute waiver of all defects of call or notice regardless of
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whether waiver, consent, or approval is signed or any objections are made. All
such waivers, consents, or approvals shall be made a part of the minutes of the
meeting.
Section 2.06 Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any annual meeting of
shareholders or any adjournment thereof, or shareholder 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 share transfer books shall be closed, for the purpose of determining
shareholders entitled to notice of or to vote at such meeting, but not for a
period exceeding fifty (50) days. If the share transfer books are closed for the
purpose of determining shareholders entitled to notice of or to vote at such
meeting, such books shall be closed for at least ten (10) days immediately
preceding such meeting.
In lieu of closing the share 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 (50) and, in case
of a meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action requiring such determination of shareholders is to
be taken. If the share 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 or 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. Failure
to comply with this section shall not affect the validity of any action taken at
a meeting of shareholders.
Section 2.07 Voting Lists. The officer or agent of the corporation
having charge of the share transfer books for shares of the corporation shall
make, at least ten (10) days before each meeting of shareholders, a complete
list of the shareholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, with the address of, and the number of
shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the registered office of the corporation and
shall be subject to inspection by any shareholder during the whole time of the
meeting. The original share transfer book shall be prima facia evidence as to
the shareholders who are entitled to examine such list or transfer books, or to
vote at any meeting of shareholders.
Section 2.08 Quorum. One-half of the total voting power of the
outstanding shares of the corporation entitled to vote, represent in person or
by proxy, shall constitute a quorum at a meeting of the shareholders. If a
quorum is present, the affirmative vote of the majority of the voting power
represented by shares at the meeting and entitled to vote on the subject shall
constitute action by the shareholders, unless the vote of a greater number or
voting by classes is required by the laws of the state of incorporation of the
corporation or the articles of incorporation. If less than one-half of the
outstanding voting power is represented at a meeting, a majority of the voting
power represented by shares so present may adjourn the meeting from time to time
without further notice. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed.
Section 2.09 Voting of Shares. Each outstanding share of the corporation
entitled to vote shall be entitled to one vote on each matter submitted to vote
at a meeting of shareholders, except to the extent that the voting rights of the
shares of any class or series of stock are determined and specified as greater
or lesser than one vote per share in the manner provided by the articles of
incorporation.
Section 2.10 Proxies. At each meeting of the shareholders, each
shareholder entitled to vote shall be entitled to vote in person or by proxy;
provided, however, that the right to vote by proxy shall exist only in case the
instrument authorizing such proxy to act shall have been executed in writing by
the registered holder or holders of such shares, as the case may be, as shown on
the share transfer of the corporation or by his attorney thereunto duly
authorized in writing. Such instrument authorizing a proxy to act shall be
delivered at the beginning of such meeting to the secretary of the corporation
or to such other officer or person who may, in the absence of the secretary, be
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acting as secretary of the meeting. In the event that any such instrument shall
designate two or more persons to act as proxies, a majority of such persons
present at the meeting, or if only one be present, that one shall (unless the
instrument shall otherwise provide) have all of the powers conferred by the
instrument on all persons so designated. Persons holding stock in a fiduciary
capacity shall be entitled to vote the shares so held and the persons whose
shares are pledged shall be entitled to vote, unless in the transfer by the
pledge or on the books of the corporation he shall have expressly empowered the
pledgee to vote thereon, in which case the pledgee, or his proxy, may represent
such shares and vote thereon.
Section 2.11 Written Consent to Action by Stockholders. 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
Section 3.01 General Powers. The property, affairs, and business of the
corporation shall be managed by its board of directors. The board of directors
may exercise all the powers of the corporation whether derived from law or the
articles of incorporation, except such powers as are by statute, by the articles
of incorporation or by these Bylaws, vested solely in the shareholders of the
corporation.
Section 3.02 Number, Term, and Qualifications. The board of directors
shall consist of three to nine persons. Increases or decreases to said number
may be made, within the numbers authorized by the articles of incorporation, as
the board of directors shall from time to time determine by amendment to these
Bylaws. An increase or a decrease in the number of the board of directors may
also be had upon amendment to these Bylaws by a majority vote of all of the
shareholders, and the number of directors to be so increased or decreased shall
be fixed upon a majority vote of all of the shareholders of the corporation.
Each director shall hold office until the next annual meeting of shareholders of
the corporation and until his successor shall have been elected and shall have
qualified. Directors need not be residents of the state of incorporation or
shareholders of the corporation.
Section 3.03 Classification of Directors. In lieu of electing the entire
number of directors annually, the board of directors may provide that the
directors be divided into either two or three classes, each class to be as
nearly equal in number as possible, the term of office of the directors of the
first class to expire at the first annual meeting of shareholders after their
election, that of the second class to expire at the second annual meeting after
their election, and that of the third class, if any, to expire at the third
annual meeting after their election. At each annual meeting after such
classification the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the second succeeding annual meeting, if there be two classes, or until the
third succeeding annual meeting if there be three classes.
Section 3.04 Regular Meetings. A regular meeting of the board of
directors shall be held without other notice than this bylaw immediately
following, and at the same place as, the annual meeting of shareholders. The
board of directors may provide by resolution the time and place, either within
or without the state of incorporation, for the holding of additional regular
meetings without other notice than such resolution.
Section 3.05 Special Meetings. Special meetings of the board of
directors may be called by or at the request of the president, vice president,
or any to directors. The person or persons authorized to call special meetings
of the board of directors may fix any place, either within or without the state
of incorporation, as the place for holding any special meeting of the board of
directors called by them.
Section 3.06 Meetings by Telephone Conference Call. Members of the board
of directors may participate in a meeting of the board of directors or a
committee of the board of directors by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear
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each other, and participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
Section 3.07 Notice. Notice of any special meeting shall be given at
least ten (10) days prior thereto by written notice delivered personally or
mailed to each director at his regular business address or residence, or by
telegram. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail so addressed, with postage thereon prepaid. If notice
be given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Any director may waive notice of
any meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting solely for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 3.08 Quorum. A majority of the number of directors shall
constitute a quorum for the transaction of business at any meeting of the board
of directors, but if less than a majority is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Section 3.09 Manner of Acting. 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, and the individual directors shall have no power as such.
Section 3.10 Vacancies and Newly created Directorship. If any vacancies
shall occur in the board of directors by reason of death, resignation or
otherwise, or if the number of directors shall be increased, the directors then
in office shall continue to act and such vacancies or newly created
directorships shall be filled by a vote of the directors then in office, though
less than a quorum, in any way approved by the meeting. Any directorship to be
filled by reason of removal of one or more directors by the shareholders may be
filled by election by the shareholders at the meeting at which the director or
directors are removed.
Section 3.11 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, and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 3.12 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, 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 or certified 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.
Section 3.13 Resignations. A director may resign at any time by
delivering a written resignation to either the president, a vice president, the
secretary, or assistant secretary, if any. The resignation shall become
effective on its acceptance by the board of directors; provided, that if the
board has not acted thereon within ten days from the date presented, the
resignation shall be deemed accepted.
Section 3.14 Written Consent to Action by Directors. Any action required
to be taken at a meeting of the directors of the corporation or any other action
which may be taken at a meeting of the directors or of a committee, may be taken
without a meeting, if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors, or all of the members of the committee,
as the case may be. Such consent shall have the same legal effect as a unanimous
vote of all the directors or members of the committee.
Section 3.15 Removal. At a meeting expressly called for that purpose,
one or more directors may be removed by a vote of a majority of the shares of
outstanding stock of the corporation entitled to vote at an election of
directors.
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ARTICLE IV
OFFICERS
Section 4.01 Number. The officers of the corporation shall be a
president, one or more vice-presidents, as shall be determined by resolution of
the board of directors, a secretary, a treasurer, and such other officers as may
be appointed by the board of directors. The board of directors may elect, but
shall not be required to elect, a chairman of the board and the board of
directors may appoint a general manager.
Section 4.02 Election, Term of Office, and Qualifications. The officers
shall be chosen by the board of directors annually at its annual meeting. In the
event of failure to choose officers at an annual meeting of the board of
directors, officers may be chosen at any regular or special meeting of the board
of directors. Each such officer (whether chosen at an annual meeting of the
board of directors to fill a vacancy or otherwise) shall hold his office until
the next ensuing annual meeting of the board of directors and until his
successor shall have been chosen and qualified, or until his death, or until his
resignation or removal in the manner provided in these Bylaws. Any one person
may hold any two or more of such offices, except that the president shall not
also be the secretary. No person holding two or more offices shall act in or
execute any instrument in the capacity of more than one office. The chairman of
the board, if any, shall be and remain director of the corporation during the
term of his office. No other officer need be a director.
Section 4.03 Subordinate Officers, Etc. The board of directors from time
to time may appoint such other officers or agents as it may deem advisable, each
of whom shall have such title, hold office for such period, have such authority,
and perform such duties as the board of directors from time to time may
determine. The board of directors from time to time may delegate to any officer
or agent the power to appoint any such subordinate officer or agents and to
prescribe their respective titles, terms of office, authorities, and duties.
Subordinate officers need not be shareholders or directors.
Section 4.04 Resignations. Any officer may resign at any time by
delivering a written resignation to the board of directors, the president, or
the secretary. Unless otherwise specified therein, such resignation shall take
effect on delivery.
Section 4.05 Removal. Any officer may be removed from office at any
special meeting of the board of directors called for that purpose or at a
regular meeting, by vote of a majority of the directors, with or without cause.
Any officer or agent appointed in accordance with the provisions of section 4.03
hereof may also be removed, either with or without cause, by any officer on whom
such power of removal shall have been conferred by the board of directors.
Section 4.06 Vacancies and Newly Created Offices. If any vacancy shall
occur in any office by reason of death, resignation, removal, disqualification,
or any other cause, or if a new office shall be created, then such vacancies or
new created offices may be filled by the board of directors at any regular or
special meeting.
Section 4.07 The Chairman of the Board. The chairman of the board, if
there be such an officer, shall have the following powers and duties.
(a) He shall preside at all shareholders' meetings;
(b) He shall preside at all meetings of the board of directors;
and
(c) He shall be a member of the executive committee, if any.
Section 4.08 The President. The president shall have the following
powers and duties:
(a) If no general manager has been appointed, he shall be the
chief executive officer of the
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corporation, and, subject to the direction of the board of directors,
shall have general charge of the business, affairs, and property of the
corporation and general supervision over its officers, employees, and
agents;
(b) If no chairman of the board has been chosen, or is such
officer is absent or disabled, he shall preside at meetings of the
stockholders and board of directors;
(c) He shall be a member of the executive committee, if any;
(d) He shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been
authorized by the board of directors; and
(e) He shall have all power and shall perform all duties
normally incident to the office of a president of a corporation, and
shall exercise such other powers and perform such other duties as from
time to time may be assigned to him by the board of directors.
Section 4.09 The Vice Presidents. The board of directors may, from time
to time, designate and elect one or more vice presidents, one of whom may be
designated to serve as executive vice president. Each vice president shall have
such powers and perform such duties as from time to time may be assigned to him
by the board of directors or the president. At the request or in the absence or
disability of the president, the executive vice president or, in the absence or
disability of the executive vice president, the vice president designated by the
board of directors or (in the absence of such designation by the board of
directors) by the president, the senior vice president, may perform all the
duties of the president, and when so acting, shall have all the powers of, and
be subject to all the restrictions upon, the president.
Section 4.10 The Secretary. The secretary shall have the following
powers and duties:
(a) He shall keep or cause to be kept a record of all of the
proceedings of the meetings of the shareholders and of the board or
directors in books provided for that purpose;
(b) He shall cause all notices to be duly given in accordance
with the provisions of these Bylaws and as required by statute;
(c) He shall be the custodian of the records and of the seal of
the corporation, and shall cause such seal (or a facsimile thereof) to
be affixed to all certificates representing shares of the corporation
prior to the issuance thereof and to all instruments, the execution of
which on behalf of the corporation under its seal shall have been duly
authorized in accordance with these Bylaws, and when so affixed, he may
attest the same;
(d) He shall assume that the books, reports, statements,
certificates, and other documents and records required by statute are
properly kept and filed;
(e) He shall have charge of the share books of the corporation
and cause the share transfer books to be kept in such manner as to show
at any time the amount of the shares of the corporation of each class
issued and outstanding, the manner in which and the time when such stock
was paid for, the names alphabetically arranged and the addresses of the
holders of record thereof, the number of shares held by each holder and
time when each became such holder or record, and he shall exhibit at all
reasonable times to any director, upon application, the original or
duplicate share register. He shall cause the share book referred to in
section 6.04 hereof to be kept and exhibited at the principal office of
the corporation, or at such other place as the board of directors shall
determine, in the manner and for the purposes provided in such section;
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(f) He shall be empowered to sign certificates representing
shares of the corporation, the issuance of which shall have been
authorized by the board of directors; and
(g) He shall perform in general all duties incident to the
office of secretary and such other duties as are given to him by these
Bylaws or as from time to time may be assigned to him by the board of
directors or the president.
Section 4.11 The Treasurer. The treasurer shall have the following
powers and duties:
(a) He shall have charge and supervision over and be responsible
for the monies, securities, receipts, and disbursements of the
corporation;
(b) He shall cause the monies and other valuable effects of the
corporation to be deposited in the name and to the credit of the
corporation in such banks or trust companies or with such banks or other
depositories as shall be selected in accordance with section 5.03
hereof;
(c) He shall cause the monies of the corporation to be disbursed
by checks or drafts (signed as provided in section 5.04 hereof) drawn on
the authorized depositories of the corporation, and cause to be taken
and preserved property vouchers for all monies disbursed;
(d) He shall render to the board of directors or the president,
whenever requested, a statement of the financial condition of the
corporation and of all of this transactions as treasurer, and render a
full financial report at the annual meeting of the stockholders, if
called upon to do so;
(e) He shall cause to be kept correct books of account of all
the business and transactions of the corporation and exhibit such books
to any director on request during business hours;
(f) He shall be empowered from time to time to require from all
officers or agents of the corporation reports or statements given such
information as he may desire with respect to any and all financial
transactions of the corporation; and
(g) He shall perform in general all duties incident to the
office of treasurer and such other duties as are given to him by these
Bylaws or as from time to time may be assigned to him by the board of
directors or the president.
Section 4.12 General Manager. The board of directors may employ and
appoint a general manager who may, or may not, be one of the officers or
directors of the corporation. The general manager, if any shall have the
following powers and duties:
(a) He shall be the chief executive officer of the corporation
and, subject to the directions of the board of directors, shall have
general charge of the business affairs and property of the corporation
and general supervision over its officers, employees, and agents;
(b) He shall be charged with the exclusive management of the
business of the corporation and of all of its dealings, but at all times
subject to the control of the board of directors;
(c) Subject to the approval of the board of directors or the
executive committee, if any, he shall employ all employees of the
corporation, or delegate such employment to subordinate officers, and
shall have authority to discharge any person so employed; and
(d) He shall make a report to the president and directors as
often as required, setting forth the results of the operations under his
charge, together with suggestions looking toward improvement and
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betterment of the condition of the corporation, and shall perform such
other duties as the board of directors may require.
Section 4.13 Salaries. The salaries and other compensation of the
officers of the corporation shall be fixed from time to time by the board of
directors, except that the board of directors may delegate to any person or
group of persons the power to fix the salaries or other compensation of any
subordinate officers or agents appointed in accordance with the provisions of
section 4.03 hereof. No officer shall be prevented from receiving any such
salary or compensation by reason of the fact that he is also a director of the
corporation.
Section 4.14 Surety Bonds. In case the board of directors shall so
require, any officer or agent of the corporation shall execute to the
corporation a bond in such sums and with such surety or sureties as the board of
directors may direct, conditioned upon the faithful performance of his duties to
the corporation, including responsibility for negligence and for the accounting
of all property, monies, or securities of the corporation which may come into
his hands.
IV
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
Section 5.01 Execution of Instruments. Subject to any limitation
contained in the articles of incorporation or these Bylaws, the president or any
vice president or the general manager, if any, may, in the name and on behalf of
the corporation, execute and deliver any contract or other instrument authorized
in writing by the board of directors. The board of directors may, subject to any
limitation contained in the articles of incorporation or in these Bylaws,
authorize in writing any officer or agent to execute and delivery any contract
or other instrument in the name and on behalf of the corporation, any such
authorization may be general or confined to specific instances.
Section 5.02 Loans. No loans or advances shall be contracted on behalf
of the corporation, no negotiable paper or other evidence of its obligation
under any loan or advance shall be issued in its name, and no property of the
corporation shall be mortgaged, pledged, hypothecated, transferred, or conveyed
as security for the payment of any loan, advance, indebtedness, or liability of
the corporation, unless and except as authorized by the board of directors. Any
such authorization may be general or confined to specific instances.
Section 5.03 Deposits. All monies of the corporation not otherwise
employed shall be deposited from time to time to its credit in such banks and or
trust companies or with such bankers or other depositories as the board of
directors may select, or as from time to time may be selected by any officer or
agent authorized to do so by the board of directors.
Section 5.04 Checks, Drafts, Etc. All notes, drafts, acceptances,
checks, endorsements, and, subject to the provisions of these Bylaws, evidences
of indebtedness of the corporation, shall be signed by such officer or officers
or such agent or agents of the corporation and in such manner as the board of
directors from time to time may determine. Endorsements for deposit to the
credit of the corporation in any of its duly authorized depositories shall be in
such manner as the board of directors from time to time may determine.
Section 5.05 Bonds and Debentures. Every bond or debenture issued by the
corporation shall be evidenced by an appropriate instrument which shall be
signed by the president or a vice president and by the secretary and sealed with
the seal of the corporation. The seal may be a facsimile, engraved or printed.
Where such bond or debenture is authenticated with the manual signature of an
authorized officer of the corporation or other trustee designated by the
indenture of trust or other agreement under which such security is issued, the
signature of any of the corporation's officers named thereon may be a facsimile.
In case any officer who signed, or whose facsimile signature has been used on
any such bond or debenture, should cease to be an officer of the corporation for
any reason before the same has been delivered by the corporation, such bond or
debenture may nevertheless be
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adopted by the corporation and issued and delivered as through the person who
signed it or whose facsimile signature has been used thereon had not ceased to
be such officer.
Section 5.06 Sale, Transfer, Etc. of Securities. Sales, transfers,
endorsements, and assignments of stocks, bonds, and other securities owned by or
standing in the name of the corporation, and the execution and delivery on
behalf of the corporation of any and all instruments in writing incident to any
such sale, transfer, endorsement, or assignment, shall be effected by the
president, or by any vice president, together with the secretary, or by any
officer or agent thereunto authorized by the board of directors.
Section 5.07 Proxies. Proxies to vote with respect to shares of other
corporations owned by or standing in the name of the corporation shall be
executed and delivered on behalf of the corporation by the president or any vice
president and the secretary or assistant secretary of the corporation, or by any
officer or agent thereunder authorized by the board of directors.
ARTICLE VI
CAPITAL SHARES
Section 6.01 Share Certificates. Every holder of shares in the
corporation shall be entitled to have a certificate, signed by the president or
any vice president and the secretary or assistant secretary, and sealed with the
seal (which may be a facsimile, engraved or printed) of the corporation,
certifying the number and kind, class or series of shares owned by him in the
corporation provided, however, that where such a certificate is countersigned by
(a) a transfer agent or an assistant transfer agent, or (b) registered by a
registrar, the signature of any such president, vice president, secretary, or
assistant secretary may be a facsimile. In case any officer who shall have
signed, or whose facsimile signature or signatures shall have been used on any
such certificate, shall cease to be such officer of the corporation, for any
reason, before the delivery of such certificate by the corporation, such
certificate may nevertheless be adopted by the corporation and be issued and
delivered as though the person who signed it, or whose facsimile signature or
signatures shall have been used thereon, has not ceased to be such officer.
Certificates representing shares of the corporation shall be in such form as
provided by the statutes of the state of incorporation. There shall be entered
on the share books of the corporation at the time of issuance of each share, the
number of the certificate issued, the name and address of the person owning the
shares represented thereby, the number and kind, class or series of such shares,
and the date of issuance thereof. Every certificate exchanged or returned to the
corporation shall be marked "Canceled" with the date of cancellation.
Section 6.02 Transfer of Shares. Transfers of shares of the corporation
shall be made on the books of the corporation by the holder of record thereof,
or by his attorney thereunto duly authorized by a power of attorney duly
executed in writing and filed with the Secretary of the corporation or any of
its transfer agents, and on surrender of the certificate or certificates,
properly endorsed or accompanied by proper instruments of transfer, representing
such shares. Except as provided by law, the corporation and transfer agents and
registrars, if any, shall be entitled to treat the holder of record of any stock
as the absolute owner thereof for all purposes, and accordingly shall not be
bound to recognize any legal, equitable, or other claim to or interest in such
shares on the part of any other person whether or not it or they shall have
express or other notice thereof.
Section 6.03 Regulations. Subject to the provisions of this section VI
and of the articles of incorporation, the board of directors may make such rules
and regulations as they may deem expedient concerning the issuance, transfer,
redemption, and registration of certificates for shares of the corporation.
Section 6.04 Maintenance of Stock Ledger at Principal Place of Business.
A share book (or books where more than one kind, class, or series of stock is
outstanding) shall be kept at the principal place of business of the
corporation, or at such other place as the board of directors shall determine,
containing the names, alphabetically arranged, of original shareholders of the
corporation, their addresses, their interest, the amount paid on their shares,
and all transfers thereof and the number and class of shares held by each. Such
share books shall
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at all reasonable hours be subject to inspection by persons entitled by law to
inspect the same.
Section 6.05 Transfer Agents and Registrars. The board of directors may
appoint one or more transfer agents and one or more registrars with respect to
the certificates representing shares of the corporation, and may require all
such certificates to bear the signature of either or both. The board of
directors may from time to time define the respective duties of such transfer
agents and registrars. No certificate for shares shall be valid until
countersigned by a transfer agent, if at the date appearing thereon the
corporation had a transfer agent for such shares, and until registered by a
registrar, if at such date the corporation had a registrar for such shares.
Section 6.06 Closing of Transfer Books and Fixing of Record Date.
(a) The board of directors shall have power to close the share
books of the corporation for a period of not to exceed 50 days preceding
the date of any meeting of shareholders, or the date for payment of any
dividend, or the date for the allotment of rights, or capital shares
shall go into effect, or a date in connection with obtaining the consent
of shareholders for any purpose.
(b) In lieu of closing the share transfer books as aforesaid,
the board of directors may fix in advance a date, not exceeding 50 days
preceding the date of any meeting of shareholders, or the date for the
payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital shares shall
go into effect, or a date in connection with obtaining any such consent,
as a record date for the determination of the shareholders entitled to a
notice of, and to vote at, any such meeting and any adjournment thereof,
or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such
consent.
(c) If the share transfer books shall be closed or a record date
set for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for, or
such record date shall be, at least ten (10) days immediately preceding
such meeting.
Section 6.07 Lost or Destroyed Certificates. The corporation may issue a
new certificate for shares of the corporation in place of any certificate
theretofore issued by it, alleged to have been lost or destroyed, and the board
of directors may, in its discretion, require the owner of the lost or destroyed
certificate or his legal representatives, to give the corporation a bond in such
form and amount as the board of directors may direct, and with such surety or
sureties as may be satisfactory to the board, to indemnify the corporation and
its transfer agents and registrars, if any, against any claims that may be made
against it or any such transfer agent or registrar on account of the issuance of
such new certificate. A new certificate may be issued without requiring any
bond when, in the judgment of the board of directors, it is proper to do so.
Section 6.08 No Limitation on Voting Rights; Limitation on Dissenter's
Rights. To the extent permissible under the applicable law of any jurisdiction
to which the corporation may become subject by reason of the conduct of
business, the ownership of assets, the residence of shareholders, the location
of offices or facilities, or any other item, the corporation elects not to be
governed by the provisions of any statute that (i) limits, restricts, modified,
suspends, terminates, or otherwise affects the rights of any shareholder to cast
one vote for each share of common stock registered in the name of such
shareholder on the books of the corporation, without regard to whether such
shares were acquired directly from the corporation or from any other person and
without regard to whether such shareholder has the power to exercise or direct
the exercise of voting power over any specific fraction of the shares of common
stock of the corporation issued and outstanding or (ii) grants to any
shareholder the right to have his stock redeemed or purchased by the corporation
or any other shareholder on the acquisition by any person or group of persons of
shares of the corporation. In particular, to the extent permitted under the laws
of the state of incorporation, the corporation elects not to be governed by any
such provision, including the provisions of the Utah Control Share Acquisition
Act, section 61-6-1 et seq., of the Utah Code Annotated, as amended, or any
statute of similar effect or tenor.
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ARTICLE VII
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 7.01 How Constituted. The board of directors may designate an
executive committee and such other committees as the board of directors may deem
appropriate, each of which committees shall consist of two or more directors.
Members of the executive committee and of any such other committees shall be
designated annually at the annual meeting of the board of directors; provided,
however, that at any time the board of directors may abolish or reconstitute the
executive committee or any other committee. Each member of the executive
committee and of any other committee shall hold office until his successor shall
have been designated or until his resignation or removal in the manner provided
in these Bylaws.
Section 7.02 Powers. During the intervals between meetings of the board
of directors, 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, except for the power to fill vacancies in the board of directors or
to amend these Bylaws, and except for such powers as by law may not be delegated
by the board of directors to an executive committee.
Section 7.03 Proceedings. The executive committee, and such other
committees as may be designated hereunder by the board of directors, may fix its
own presiding and recording officer or officers, and may meet at such place or
places, at such time or times and on such notice (or without notice) as it shall
determine from time to time. It will keep a record of its proceedings and shall
report such proceedings to the board of directors at the meeting of the board of
directors next following.
Section 7.04 Quorum and Manner of Acting. At all meetings of the
executive committee, and of such other committees as may be designated hereunder
by the board of directors, the presence of members constituting a majority of
the total authorized membership of the committee shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the act
of a majority of the members present at any meeting at which a quorum is present
shall be the act of such committee. The members of the executive committee, and
of such other committees as may be designated hereunder by the board of
directors, shall act only as a committee and the individual members thereof
shall have no powers as such.
Section 7.05 Resignations. Any member of the executive committee, and of
such other committees as may be designated hereunder by the board of directors,
may resign at any time by delivering a written resignation to either the
president, the secretary, or assistant secretary, or to the presiding officer of
the committee of which he is a member, if any shall have been appointed and
shall be in office. Unless otherwise specified herein, such resignation shall
take effect on delivery.
Section 7.06 Removal. The board of directors may at any time remove any
member of the executive committee or of any other committee designated by it
hereunder either for or without cause.
Section 7.07 Vacancies. If any vacancies shall occur in the executive
committee or of any other committee designated by the board of directors
hereunder, by reason of disqualification, death, resignation, removal, or
otherwise, the remaining members shall, until the filling of such vacancy,
constitute the then total authorized membership of the committee and, provided
that two or more members are remaining, continue to act. Such vacancy may be
filled at any meeting of the board of directors.
Section 7.08 Compensation. The board of directors may allow a fixed sum
and expenses of attendance to any member of the executive committee, or of any
other committee designated by it hereunder, who is not an active salaried
employee of the corporation for attendance at each meeting of said committee.
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ARTICLE VIII
INDEMNIFICATION, INSURANCE, AND
OFFICER AND DIRECTOR CONTRACTS
Section 8.01 Indemnification: Third Party Actions. The corporation shall
have the power to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action, or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee, or agent 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, against expenses (including attorneys'
fees) judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or proceeding, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit, or 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 action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
Section 8.02 Indemnification: Corporate Actions. The corporation shall
have the power to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee, or agent 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, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue, or matter as to which such a person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation, unless and only to the extent that the court in which the action or
suit was brought shall determine on application that, despite the adjudication
of liability but in view of all circumstances of the case, the person is fairly
and reasonably entitled to indemnity for such expenses as the court deems
proper.
Section 8.03 Determination. To the extent that a director, officer,
employee, or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in section
8.01 and 8.02 hereof, or in defense of any claim, issue, or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith. Any other indemnification
under section 8.01 and 8.02 hereof, shall be made by the corporation upon a
determination that indemnification of the officer, director, employee, or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in sections 8.01 and 8.02 hereof. Such determination shall be
made either (i) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit, or
proceeding; or (ii) by independent legal counsel on a written opinion; or (iii)
by the shareholders by a majority vote of a quorum of shareholders at any
meeting duly called for such purpose.
Section 8.04 General Indemnification. The indemnification provided by
this section shall not be deemed exclusive of any other indemnification granted
under any provision of any statute, in the corporation's articles of
incorporation, these Bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent, and shall
inure to the benefit of the heirs and legal representatives of such a person.
Section 8.05 Advances. Expenses incurred in defending a civil or
criminal action, suit, or proceeding
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as contemplated in this section may be paid by the corporation in advance of the
final disposition of such action, suit, or proceeding upon a majority vote of a
quorum of the board of directors and upon receipt of an undertaking by or on
behalf of the director, officers, employee, or agent to repay such amount or
amounts unless it is ultimately determined that he is to be indemnified by the
corporation as authorized by this section.
Section 8.06 Scope of Indemnification. The indemnification authorized by
this section shall apply to all present and future directors, officers,
employees, and agents of the corporation and shall continue as to such persons
who cease to be directors, officers, employees, or agents of the corporation,
and shall inure to the benefit of the heirs, executors, and administrators of
all such persons and shall be in addition to all other indemnification permitted
by law.
Section 8.07 Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, employee, or agent
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 against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against any
such liability and under the laws of the state of incorporation, as the same may
hereafter be amended or modified.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors.
ARTICLE X
DIVIDENDS
The board of directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and on
the terms and conditions provided by the articles of incorporation and these
Bylaws.
ARTICLE XI
AMENDMENTS
All Bylaws of the corporation, whether adopted by the board of directors
or the shareholders, shall be subject to amendment, alteration, or repeal, and
new Bylaws may be made, except that:
(a) No Bylaws adopted or amended by the shareholders shall be
altered or repealed by the board of directors.
(b) No Bylaws shall be adopted by the board of directors which
shall require more than a majority of the voting shares for a quorum at
a meeting of shareholders, or more than a majority of the votes cast to
constitute action by the shareholders, except where higher percentages
are required by law; provided, however that (i) if any Bylaw regulating
an impending election of directors is adopted or amended or repealed by
the board of directors, there shall be set forth in the notice of the
next meeting of shareholders for the election of directors, the Bylaws
so adopted or amended or repealed, together with a concise statement of
the changes made; and (ii) no amendment, alteration or repeal of this
section XI shall be made except by the shareholders.
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