AMENDED AND RESTATED BYLAWS OF
BEVERLY HILLS LTD., INC.
ARTICLE I -- PURPOSES
SECTION 1.01 Purpose. This corporation is organized for any and all lawful
purposes for which corporations may be organized under the Utah Revised Business
Corporation Act, as amended, as set forth in the corporation's Articles of
Incorporation.
ARTICLE II -- OFFICES
SECTION 2.01 Offices. The principal office of the corporation may be located at
any place, either in or outside the State of Utah, as designated in the
corporation's most current Annual Report filed with the Utah Division of
Corporations and Commercial Code. The corporation may have such other offices,
either in or outside 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
corporation shall maintain at its principal office a copy of certain records, as
specified in Section 16-10a-1601 of the Utah Revised Business Corporation Act.
SECTION 2.02 Registered Office. The registered office of the corporation,
required by Section 16-10a-501 of the Utah Revised Business Corporation Act,
shall be located in the State of Utah and may be, but need not be, identical
with the corporation's principal office (if located in the State of Utah). The
address of the registered office may be changed from time to time.
ARTICLE III -- SHAREHOLDERS
SECTION 3.01 Annual Meeting. The corporation shall hold an annual meeting of
shareholders at such time, date and place as the board of directors shall
determine, for the purpose of electing directors and for the transaction of such
other business as may come before the meeting.
SECTION 3.02 Special Meeting. The corporation shall hold a special meeting of
the shareholders:
(i) on call of its board of directors or the chairman of the board of
directors; or
(ii) if the holders of shares representing at least ten percent (10%) of
all the votes entitled to be cast on any issue that is proposed to be
considered at a special meeting sign, date and deliver to the
corporation's secretary one or more written demands for the meeting,
stating the purpose or purposes for which it is to be held.
SECTION 3.03 Place of Meetings. The board of directors may designate any place,
either in or outside the State of Utah, as the place at which any annual or
special meeting is to be held. If no designation is made, the meeting shall be
held at the corporation's principal office.
SECTION 3.04 Action Without a Meeting.
(a) Action by Written Consent. Any action required or permitted to be taken
at a meeting of the shareholders may be taken without a meeting and without
prior notice if one or more consents in writing, setting forth the action so
taken, are signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote thereon were present and
voted.
(b) Notice of Action. Unless the written consents of all shareholders
entitled to vote have been obtained, notice of any shareholder approval without
a meeting shall be given at least ten (10) days before the consummation of the
action authorized by the approval to:
(i) those shareholders entitled to vote who have not consented in writing;
and
(ii) those shareholders not entitled to vote and to whom the Utah Revised
Business Corporation Act requires that notice of the proposed action
be given.
The notice must contain or be accompanied by the same material that, under
the Utah Revised Business Corporation Act and these Bylaws, would have been
required to be sent in a notice of meeting at which the proposed action would
have been submitted to the shareholders for action.
(c) Withdrawal of Consent. Any shareholder giving a written consent or the
shareholder's proxyholder, or a transferee of the shares or a personal
representative of the shareholder or their respective proxyholder, may revoke
the consent by a signed writing describing the action and stating that the
shareholder's prior consent is revoked, if the writing is received by the
corporation prior to the effectiveness of the action.
(d) Effective Date of Action. An action taken pursuant to this Section 3.04
is not effective unless all written consents on which the corporation relies for
the taking of an action pursuant to subsection (a) are received by the
corporation within a sixty (60) day period and not revoked pursuant to
subsection (c). Action taken pursuant to this Section 3.04 is effective as of
the date the last written consent necessary to effect the action is received by
the corporation, unless all of the written consents necessary to effect the
action specify a later date as the effective date of the action, in which case
the later date shall be the effective date of the action. If the corporation has
received written consents as contemplated by subsection (a) signed by all
shareholders entitled to vote with respect to the action, the effective date of
the action may be any date that is specified in all the written consents as the
effective date of the action.
(e) Election of Directors. Notwithstanding subsection (a), directors may
not be elected by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors.
(f) Record Date. If not otherwise determined under Section 3.06 of these
Bylaws, the record date for determining shareholders entitled to take action
without a meeting or entitled to
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be given notice under subsection (b) of action so taken is the date the first
shareholder delivers to the corporation a writing upon which the action is taken
pursuant to subsection (a).
SECTION 3.05 Notice of Meeting.
(a) Notice Required. The corporation shall give notice to shareholders of
the date, time and place of each annual and special shareholders' meeting no
fewer than ten (10) nor more than sixty (60) days before the meeting date.
Notice shall be deemed effective at the earlier of (i) when deposited in the
United States mail, addressed to the shareholder at his or her address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid; (ii) on the date shown on the return receipt if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the addressee; (iii) when received; or (iv) five (5) days after
deposit in the United States mail mailed postpaid and correctly addressed to an
address other than that shown in the corporation's current record of
shareholders.
(b) Exception to Notice Requirement. Notwithstanding any requirement in
these Bylaws or elsewhere that notice be given, the corporation shall not be
required to give notice to any shareholder to whom:
(i) a notice of two (2) consecutive annual meetings, and all notices
of meetings during the period between the two (2) consecutive
annual meetings, have been mailed, addressed to the shareholder
at the shareholder's address as shown on the corporation's
records, and have been returned undeliverable; or
(ii) at least two (2) payments, if sent by first class mail, of
dividends or interest on securities during a twelve (12) month
period, have been mailed, addressed to the shareholder at the
shareholder's address as shown on the records of the corporation,
and have been returned undeliverable.
(c) Contents of Notice.
(i) The notice of every shareholders' meeting must state the place,
day and time of the meeting.
(ii) Notice of an annual meeting need not include a description of the
purpose or purposes for which the meeting is called, except for
those matters specified by law or these Bylaws for which specific
notice must be given.
(iii) Notice of a special meeting must include a description of the
purpose or purposes for which the meeting is called.
(iv) If a purpose of any shareholder meeting is to consider either (1)
a proposed amendment of the Articles of Incorporation (including
any restated Articles requiring shareholder approval); (2) a plan
of merger or share exchange; (3) the sale, lease, exchange or
other disposition of all, or substantially all of the
corporation's property; (4) the dissolution of the corporation;
or (5) the removal of a director, the notice must so state and
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be accompanied by respectively a copy or summary of the (1)
amendment; (2) plan of merger or share exchange; and (3) a
description of the transaction involving the disposition of all
or substantially all the corporation's property. If the proposed
corporate action creates dissenters' rights under Part 13 of the
Utah Revised Business Corporation Act, the notice must state that
shareholders are, or may be, entitled to assert dissenters'
rights, and must be accompanied by a copy of such Part 13.
(d) Waiver of Notice. A shareholder may waive any notice required by these
Bylaws, before or after the date and time stated in the notice as the date or
time when any action will occur or has occurred. The waiver must be in writing,
be signed by the shareholder entitled to the notice, and be delivered to the
corporation for inclusion in the minutes or filing with the corporate records.
(e) Waiver by Attendance. A shareholder's attendance at a meeting:
(i) waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business at the
meeting because of lack of notice or defective notice; and
(ii) in the case of a special meeting, waives objection to
consideration of a particular matter at the meeting that is not
within the purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is
presented.
SECTION 3.06 Record Date for Meetings and Other Actions.
(a) Fixing of Record Date. The board of directors by resolution may fix a
record date in order to determine the shareholders entitled to receive notice of
a shareholders' meeting, and to determine the shareholders who are entitled to
take action without a meeting, to demand a special meeting, to vote, or to take
any other action. Such record date may not be more than seventy (70) days before
the meeting or action requiring the determination of shareholders.
(b) Default Record Date. If the board of directors does not fix a record
date, the record date for determining shareholders entitled to notice of and to
vote at an annual or special shareholders' meeting is the close of business on
the date before the first notice is delivered to shareholders.
(c) Adjournment. A determination of shareholders entitled to notice of or
to vote at a shareholders' meeting is effective for any adjournment of the
meeting unless the board of directors fixes a new record date, which it must do
if the meeting is adjourned to a date more than one hundred twenty (120) days
after the date fixed for the original meeting,
SECTION 3.07 Record Date of Dividends and Other Distributions. The board of
directors may fix a future date as the record date for determining shareholders
entitled to dividends and other distributions, other than one involving a
purchase, redemption, or other acquisition of the
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corporation's shares. If the board of directors does not fix a record date, the
record date is the date the board of directors authorizes the distribution.
SECTION 3.08 Meetings by Telecommunication. Shareholders may participate in a
meeting by, or the meeting may be conducted through the use of, conference
telephone or similar means of communication by which all persons participating
in the meeting can hear one another during the meeting. A shareholder
participating in a meeting by this means is considered to be present at the
meeting.
SECTION 3.09 Voting Lists.
(a) Requirements for Voting List. After fixing a record date for a
shareholders' meeting, the corporation shall prepare a list of the names of all
its shareholders who are entitled to be given notice of the meeting. The list
must be arranged by voting group, and within each voting group by class or
series of shares. The list must be alphabetical within each class or series and
must show the address of, and the number of shares held by, each shareholder.
(b) Inspection of Voting List Prior to a Meeting. The shareholders' list
must be available for inspection by any shareholder, beginning on the earlier of
ten (10) days before the meeting for which the list was prepared or two (2)
business days after notice of the meeting is given and continuing through the
meeting and any meeting adjournments, at the corporation's principal office of
at a place identified in the meeting notice in the city in which the meeting
will be held.
(c) Inspection of Voting List at the Meeting. The corporation shall make
the shareholders' list available at the meeting, and any shareholder, or any
shareholder's agent or attorney is entitled to inspect the list at any time
during the meeting or any adjournment, for any purpose germane to the meeting.
d) Effect on Meeting. The corporation's refusal or failure to prepare or
make available the shareholders' list does not affect the validity of action
taken at the meeting.
SECTION 3.10 Proxies.
(a) Manner of Voting. At all meetings of shareholders, a shareholder may
vote his or her shares in person or by proxy.
(b) Appointment of Proxy. A shareholder may appoint a proxy by signing an
appointment form, either personally or by the shareholder's attorney in fact.
(c) Effective Date. A proxy is effective when received by the corporation.
(d) Term. A proxy is valid for eleven (11) months unless a longer period is
expressly provided in the appointment form.
(e) Revocation. An appointment of a proxy is revocable by the shareholder,
and is revoked upon the death or incapacity of the shareholder (upon receipt of
notice of either event by the secretary or other officer or agent authorized to
tabulate votes before the proxy exercises the
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authority under the appointment), unless the appointment form conspicuously
states that it is irrevocable and the appointment is coupled with an interest.
SECTION 3.11 Voting Entitlement of Shares. Each outstanding share is entitled to
vote is entitled to one (1) vote upon each matter submitted to a vote at a
meeting of shareholders.
SECTION 3.12 Quorum. Shares entitled to vote at a meeting may take action on a
matter at a meeting only if a quorum of those shares exists with respect to that
matter. A majority of the votes entitled to be cast on a matter constitutes a
quorum for action on that matter. Once a quorum is present, it shall be deemed
to continue for the remainder of the meeting and for any adjournment of that
meeting, unless a new record date is or must be set for that adjourned meeting.
SECTION 3.13 Vote Required to Take Action for Other than Election of Directors.
If a quorum exists, action on a matter, other than the election of directors, is
approved if the votes cast favoring the action exceed the votes cast opposing
the action, except where a greater number of affirmative votes is otherwise
required by law.
SECTION 3.14 Voting for Directors.
(a) Manner of Voting. At each election of directors, every shareholder
entitled to vote at the election has the right to cast, in person, or by proxy,
all of the votes to which the shareholders shares are entitled for as many
persons as there are directors to be elected and for whose election the
shareholder has the right to vote. Shareholders shall not have a right to
cumulate their votes for the election of directors.
(b) Vote Required. Directors are elected by a plurality of the votes cast
by the shares entitled to vote in the election, at a meeting of shareholders at
which a quorum is present.
SECTION 3.15 Conduct of Meetings. The board of directors may adopt by resolution
such rules and regulations for the conduct of meetings of shareholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations adopted by the board of directors, the chair of any meeting of
shareholders shall have the right and authority to prescribe such rules,
regulations and procedures and to all such acts as, in the judgment of the
chair, are appropriate for the conduct of the meeting. Such rules, regulations
and procedures, whether adopted by the board of directors or prescribed by the
chair, may include, without limitation, the following: (a) the establishment of
an agenda or order of business for the meeting, (b) rules and procedures for
maintaining order at the meeting and the safety of those present, (c)
limitations on attendance at or participation in the meeting to shareholders of
record, their duly authorized and constituted proxies or such other persons as
the chair of the meeting shall determine, (d) restrictions on entry to the
meeting after the time fixed for commencement thereof, and (e) limitations on
the time allotted to questions or comments by participants. Unless and to the
extent determined by the board of directors or the chair of the meeting,
meetings of shareholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
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ARTICLE IV -- BOARD OF DIRECTORS
SECTION 4.01 General Powers. The business and affairs of the corporation shall
be managed under the direction of its board of directors.
SECTION 4.02 Number. The number of directors of the corporation shall be not
less than three (3) nor more than ten (10), with the exact number of directors
within such parameters to be set by resolution of the board of directors from
time to time; provided that no decrease in the number of directors shall have
the effect of shortening the term of any incumbent director.
SECTION 4.03 Chair. One (1) director may be designated by a majority of the full
board of directors as chair of the board. The chair of the board shall preside
at all meetings of the board of directors.
SECTION 4.04 Election. The directors shall be elected at each annual meeting of
the shareholders. If the directors are not elected at an annual meeting, or if
an annual meeting is not held, then the directors may be elected at any special
meeting of the shareholders held for that purpose.
SECTION 4.05 Term. The terms of the initial directors of the corporation expire
at the first shareholders' meeting at which directors are elected. The terms of
all other directors expire at the next annual shareholders' meeting following
their election. Despite the expiration of a director's term, the director shall
continue to serve until the election and qualification of a successor or until
there is a decrease in the number of directors, or until such director's earlier
death, resignation or removal from office.
SECTION 4.06 Qualifications. Directors need not be residents of the State of
Utah or shareholders of the corporation.
SECTION 4.07 Resignation. Any director of the corporation may resign at any time
by giving written notice to the corporation. A resignation is effective when the
notice is received by the corporation unless the notice specifies a later
effective date.
SECTION 4.08 Removal.
(a) Shareholders' Right to Remove Directors. The shareholders may remove
one or more directors with or without cause. A director may be removed only at a
meeting called for that purpose.
(b) Notice Requirement. The notice of the meeting at which a director is to
be removed must state that the purpose, or one of the purposes, of the meeting
is to remove the director.
(c) Vote Required. A director may be removed only if the number of votes
cast to remove the director exceeds the number of votes cast against removal.
SECTION 4.09 Vacancies. Any vacancy occurring among the directors, including a
vacancy resulting from an increase in the number of directors, may be filled by
the affirmative vote of a
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majority of the remaining directors, although less than a quorum, or by the
shareholders. A director elected to fill a vacancy shall be elected for the
unexpired term of his or her predecessor in office.
SECTION 4.10 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 stated salaries as directors. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be paid like compensation (including their expenses) for
attending committee meetings.
SECTION 4.11 Regular Meetings. By resolution, the board of directors may
determine the time and place, either within or without the State of Utah, for
the holding of regular meetings without other notice than such resolution.
SECTION 4.12 Special Meetings. Special meetings of the board of directors may be
called by or at the request of the chairman of the board or fifty percent (50%)
or more of the 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 Utah as the place for holding any special meeting of the board of
directors called by them.
SECTION 4.13 Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the board of directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all of the
directors. Such consent has the same force and effect as a unanimous vote of the
directors. Action taken under this provision is effective at the time the last
director signs a writing describing the action taken, unless, prior to that
time, any director has revoked a consent by a writing signed by the director and
received by the secretary or any other person authorized by the Bylaws or the
board of directors to receive the revocation, or unless the consent specifies a
different effective time.
SECTION 4.14 Notice of Special Meetings. Notice of any special meeting shall be
given at least one (1) day prior to the date of the meeting. Notice must be in
writing unless oral notice is reasonable under the circumstances. Notice may be
communicated in person, by any form of electronic communication or by mail or
private carrier. The notice need not describe the purpose of the special
meeting, unless otherwise required by law or these Bylaws. Notice will
conclusively be deemed to have been given and shall be effective when personally
delivered (by private carrier or otherwise); or if given by mail, on the fifth
day after being sent by first class, registered or certified mail; or if given
by telecopy, facsimile or other electronic means, when confirmation of
transmission is indicated by the sender's machine or device.
SECTION 4.15 Waiver of Notice.
(a) Written Waiver. Any director may waive notice of any meeting before or
after the date and time of the meeting stated in the notice. Except as provided
in subsection (b) below, the waiver must be in writing and signed by the
director entitled to notice. The waiver shall be delivered to the corporation
for filing with the corporate records, but delivery and filing are not
conditions to its effectiveness.
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(b) Waiver by Attendance. The attendance of a director at or participation
in a meeting waives any required notice to the director of the meeting unless
the director at the beginning of the meeting, or promptly upon the director's
arrival, objects to the holding of the meeting or the transacting of business at
the meeting because of lack of notice or defective notice, and does not
thereafter vote for or assent to action taken at the meeting.
SECTION 4.16 Quorum. A majority of the number of directors fixed by Section 4.02
of these Bylaws constitutes a quorum for the transaction of business at any
meeting of the board of directors.
SECTION 4.17 Manner of Acting. The act of a majority of the directors present at
a meeting at which a quorum is present is the act of the board of directors.
Voting by proxy is not permitted.
SECTION 4.18 Meetings by Telecommunication. The board of directors may permit
any or all directors to participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of communication by which all
directors participating may hear each other during the meeting. A director
participating in a meeting by this means is considered present in person at the
meeting.
SECTION 4.19 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 is presumed to have assented to the action taken unless:
(i) the director objects at the beginning of the meeting, or promptly
upon arrival, to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to any
action taken at the meeting;
(ii) the director contemporaneously requests that his dissent or
abstention as to any specific action be entered into the minutes
of the meeting; or
(iii) the director causes written notice of a dissent or abstention as
to any specific action to be received by the presiding officer of
the meeting before adjournment of the meeting or by the
corporation promptly after adjournment of the meeting.
The right of dissent under this Section as to a specific action shall not
be available to a director who votes in favor of the action taken.
ARTICLE V -- COMMITTEES
SECTION 5.01 Creation of Committees. The board of directors by resolution
adopted by a majority of the number of directors fixed by Section 4.02 of these
Bylaws may appoint such committees from time to time, either standing or ad hoc,
as it deems necessary or appropriate, including but not limited to an executive
committee as described in Section 5.05 below.
SECTION 5.02 Membership. Each committee shall consist of not less than two (2)
directors, who shall serve at the pleasure of the board of directors.
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SECTION 5.03 Notice, Etc. Sections 4.08 through 4.16 of these Bylaws, which
govern meetings, actions without meetings, notice, waiver of notice, and quorum
and voting requirements of the board of directors, shall apply to committees and
their members, as well.
SECTION 5.04 Authority. Each committee shall have and may exercise all the
authority specified in the resolution by which it is created, except that no
committee shall have any authority to adopt a plan of merger or consolidation,
to recommend to the shareholders the sale, lease or other disposition of all or
substantially all of the property or as of the corporation other than in the
usual and regular course of its business, to recommend to the shareholders a
voluntary dissolution of the corporation, or to amend the Bylaws of the
corporation.
SECTION 5.05 Executive Committee. The executive committee of the board of
directors, if created pursuant to Section 5.01 of these Bylaws, shall consist of
two (2) or more directors. When the board of directors is not in session, the
executive committee shall have and may exercise all of the authority of the
board of directors except to the extent, if any, that such authority shall be
limited by the resolution appointing the executive committee, and except as
limited by Section 5.04 of these Bylaws.
ARTICLE VI -- OFFICERS
SECTION 6.01 Number. The corporation shall have such officers as may be
determined by the board of directors, and may include a president, a vice
president, a secretary, and a treasurer, each of whom shall be appointed by the
board of directors. One or more additional vice presidents (the number to be
determined by the board of directors) and such other officers and assistant
officers and agents as may be deemed necessary may also be appointed by the
board of directors. The board of directors may delegate to any officer of the
corporation or any committee of the board of directors the power to appoint
remove and prescribe the duties of such other officers, assistant officers,
agents and employees. Any two (2) or more offices may be held by the same
person.
SECTION 6.02 Appointment and Term of Office. The officers of the corporation
shall be appointed by the board of directors or by any officer to whom or
committee of the board of directors to which the power of appointment has been
delegated. Each officer shall hold office until such officer's successor has
been appointed or until such officer's death or until such officer shall resign
or shall have been removed in the manner provided below. The appointment of an
officer shall not itself create any contract rights with the corporation.
SECTION 6.03 Removal. Any officer, assistant, agent or employee may be removed,
with or without cause, at any time by the board of directors, or by any officer
to whom or committee of the board of directors to which such power of removal
has been delegated but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
SECTION 6.04 Resignation. An officer may resign at any time by giving written
notice of resignation to the corporation. A resignation of an officer is
effective when it is received by the corporation, unless the notice specifies a
later effective date. An officer's resignation does not affect the corporation's
contract rights, if any, with the officer.
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SECTION 6.05 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the board of directors
or by any officer to whom or committee of the board of directors to which such
power has been delegated.
SECTION 6.06 The Chairman of the Board. The chairman of the board, unless
otherwise specified by the board of directors, shall be the chief executive
officer of the corporation and, under the direction of the board of directors,
shall in general supervise and control all the business and affairs of the
corporation. The chairman of the board shall, when present, preside at all
meetings of the shareholders and at meetings of the board of directors. The
chairman of the board may hire, prescribe the duties of, and fire employees, and
may delegate such authority in whole or in part to any other officer or
employee. The chairman of the board may sign, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation, and any deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and, in general, shall perform all
duties incident to the office of chief executive officer and such other duties
as may be prescribed by the board of directors from time to time.
SECTION 6.07 The President. The president is the chief operating officer of the
corporation and has, subject to the direction of the chairman of the board, if
any, general supervision, direction and control of the day-to-day operations of
the business and officers of the corporation. The president has the general
powers and duties as may be prescribed by the board of directors. The president
may sign, with the secretary or any other proper officer of the corporation
thereunto authorized by the board of directors, certificates for shares of the
corporation, and any deeds, mortgages, bonds, contracts, or other instruments
which the board of directors has authorized to be executed, except in cases
where the signing and execution thereof shall be expressly delegated by the
board of directors or by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed. In
the absence of a chairman of the board, or if there is no chairman of the board,
the president shall, in addition, be the chief executive officer of the
corporation and shall have the powers and duties described in Section 6.06
herein.
SECTION 6.08 The Vice President. In the absence of the president, or in the
event of the president's death, inability or refusal to act, the vice president
(or in the event there is more than one vice president, the vice presidents in
the order designated by the board of directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. Any vice president may sign, with
the secretary or an assistant secretary, certificates for shares of the
corporation; and shall perform such other duties as from time to time may be
assigned to him or her by the president or by the board of directors.
SECTION 6.09 The Secretary. The secretary shall (a) keep the minutes of the
shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and affix such
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seal to documents when authorized; (d) keep a register of the address of each
shareholder which shall be furnished to the secretary by such shareholder; (e)
sign with the chairman of the board, president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the board of directors; (f) have general charge
of the stock transfer books of the corporation; (g) maintain the records
required under Section 16-10a-1601 of the Utah Revised Business Corporation Act;
and (h) in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him or her by the
president or by the board of directors. In the absence of a secretary and any
assistant secretaries, the president shall perform these duties.
SECTION 6.10 The Treasurer. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the board of directors shall determine. He
or she shall: (a) have charge and custody of and be responsible for all funds
and securities of the corporation; (b) receive and give receipts for moneys due
and payable to the corporation from any source whatsoever, and deposit all such
moneys in the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of Section
8.04 of these Bylaws; and (c) in general, perform all of the duties incident to
the office of treasurer and such other duties as from time to time may be
assigned to him or her by the president or by the board of directors. In the
absence of a treasurer, the secretary shall perform such duties.
SECTION 6.11 Assistant Secretaries and Assistant Treasurers. The assistant
secretaries, when authorized by the board of directors, may sign with the
chairman of the board, president or a vice president certificates for shares of
the corporation, the issuance of which shall have been authorized by a
resolution of the board of directors. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine. The assistant secretaries and assistant treasurer, in
general, shall perform such duties as shall be assigned to them by the secretary
or the treasurer, respectively, or by the president or the board of directors.
SECTION 6.12 Compensation. The compensation of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such compensation by reason of the fact that he or she is also a
director of the corporation.
ARTICLE VII -- CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 7.01 Certificates for Shares.
(a) Shareholder's Right to a Certificate; Contents. Shares may but need not
be represented by certificates. Unless required by law, the rights and
obligations of shareholders are not affected by whether or not their shares are
represented by certificates. Notwithstanding anything herein to the contrary,
every owner of shares of stock of the corporation may request to have a
certificate or certificate, in a form approved by the board of directors,
certifying the number and class and series of shares of the stock of the
corporation owned by such shareholder. Such certificates shall be consecutively
numbered in the order in which they are issued.
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(b) Signatures. Each certificate shall be signed by the chairman of the
board or the president or a vice president and by the secretary or an assistant
secretary, or by such other officers as may be designated from time to time by
the board of directors. Any or all of the signatures on the certificates may be
a facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, any such certificate, shall
cease to hold such office or position before the certificate is issued, the
certificate may nevertheless be issued by the corporation with the same effect
as if the person who signed the certificate, or whose facsimile signature has
been placed on the certificate, still held such office or position at the date
of issue.
(c) Shareholder Register. A record shall be kept of the names and addresses
of the persons and entities owning the capital stock of the corporation, the
number and class and series of shares represented by each stock certificate, and
the date thereof, and when canceled, the date of cancellation. Every certificate
surrendered to the corporation for exchange or transfer must be canceled, and no
new certificate or certificates may be issued in exchange for any existing
certificate until the existing certificate has been canceled, except in cases
provided for in Section 7.05.
SECTION 7.02 Transfers of Stock. Transfers of shares of stock of the corporation
shall be made only on the books of the corporation by the registered holder of
such shares, or by such holder's attorney as authorized by a power of attorney
duly executed and filed with the secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 7.04, upon surrender of the
certificate or certificates representing such shares properly endorsed for
transfer or when proper instructions with respect to the transfer of
uncertificated shares are received by the transfer agent appointed as provided
in Section 7.04. The person in whose name shares of stock stand on the books of
the corporation shall be deemed the owner of such shares for all purposes as
regards the corporation. Whenever any transfer of shares is made for collateral
security, and not absolutely, such fact shall be indicated in the entry of
transfer if, when the certificate or certificates are presented to the
corporation for transfer, both the transferor and the transferee request the
corporation to do so.
SECTION 7.03 Regulations. The board of directors may make such rules and
regulations as it deems expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates representing
shares of the corporation's capital stock.
SECTION 7.04 Transfer Agent. The board of directors may appoint, or authorize
any officer or officers to appoint, one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
SECTION 7.05 Lost, Stolen, Destroyed, and Mutilated Certificates. If any stock
certificate is lost, stolen, destroyed, or mutilated, the corporation may issue
another certificate in its place upon proof of such loss, theft, destruction, or
mutilation and upon receipt by the corporation of a bond of indemnity in such
form and for such amount as the board of directors may direct; provided,
however, that a new certificate may be issued without requiring any bond when
the board of directors determines that it is proper.
SECTION 7.06 Legends. Each stock certificate shall contain such legend or other
statements as may be required by the Utah Revised Business Corporation Act, the
Utah Uniform Securities
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Act, the federal securities laws, and any agreement between the corporation and
the applicable shareholder. Failure to comply with the requirements of this
Section 7.06 shall not affect the validity of any certificate of stock which is
otherwise issued in accordance with the provisions of this Article VII.
ARTICLE VIII -- CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 8.01 Contracts. The board of directors may authorize any officer or
officers, or agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 8.02 Loans. No loans may be contracted on behalf of the corporation and
no promissory notes or other evidences of indebtedness may be issued in its name
unless authorized by a resolution of the board of directors. Such authority may
be general or confined to specific instances. No loan may be made by the
corporation secured by its unissued shares.
SECTION 8.03 Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, or agent or
agents, of the corporation as may from time to time be determined by resolution
of the board of directors.
SECTION 8.04 Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as the board of directors may select.
ARTICLE IX -- DIVIDENDS
SECTION 9.01 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 upon the terms and conditions provided by law and the corporation's Articles
of Incorporation.
ARTICLE X -- INDEMNIFICATION
SECTION 10.01 Definitions. As used in this Article X:
(a) "Corporation" includes any domestic or foreign entity that is a
predecessor of the corporation by reason of a merger or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
(b) "Director" means an individual who is or was a director of the
corporation or an individual who, while a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee fiduciary, or agent of another corporation or other person or of an
employee benefit plan. A director is considered to be serving an employee
benefit plan at the corporation's request if his or her duties to the
corporation also impose duties on, or otherwise involve services by, him or her
to the plan or to participants in or beneficiaries
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of the plan. "Director" includes, unless the context requires otherwise, the
estate or personal representative of a director.
(c) "Expenses" include counsel fees.
(d) "Liability" means the obligation incurred with respect to a proceeding
to pay a judgment, settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan), or reasonable expenses.
(e) "Officer," "employee," fiduciary," and "agent" include any person who,
while serving the indicated relationship to the corporation, is or was serving
at the corporation's request as a director, officer, partner, trustee, employee,
fiduciary, or agent of another corporation or other person or of an employee
benefit plan. An officer, employee, fiduciary, or agent is considered to be
serving an employee benefit plan at the corporation's request if the person's
duties to the corporation also impose duties on, or otherwise involve services
by, that person to the plan or participants in, or beneficiaries of the plan.
Unless the context requires otherwise, such terms include the estates or
personal representatives of such persons.
(f) "Official capacity" means:
(i) when used with respect to a director, the office of director in
the corporation; and
(ii) when used with respect to a person other than a director, as
contemplated in Section 10.07, the office in the corporation held
by the officer of the employment, fiduciary, or agency
relationship undertaken by him or her on behalf of the
corporation,
"Official capacity" does not include service for any other corporation,
other person, or employee benefit plan.
(g) "Party" includes an individual who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
(h) "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal.
SECTION 10.02 Authority to Indemnify Directors.
(a) Except as provided in Subsection 10.02(d), the corporation shall
indemnify an individual made a party to a proceeding because he or she is or was
a director, against liability incurred in the proceeding if:
(i) his or her conduct was in good faith; and
(ii) he or she reasonably believed that his or her conduct was in, or
not opposed to, the corporation's best interests; and
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(iii) in the case of any criminal proceeding, he or she had no
reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to any employee benefit plan for a
purpose he or she reasonably believed to be in or not opposed to the interests
of the participants in and beneficiaries of the plan is conduct that satisfies
the requirement of Subsection 10.02(a)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(d) The corporation may not indemnify a director under this section:
(i) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(ii) in connection with any other proceeding charging that the
director derived an improper personal benefit, whether or not
involving action in his or her official capacity, in which
proceeding he or she was adjudged liable on the basis that he or
she derived an improper personal benefit.
(e) Indemnification permitted under this Section 10.02 in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
SECTION 10.03 Mandatory Indemnification of Directors. The corporation shall
indemnify a director who was successful, on the merits or otherwise, in the
defense of any proceeding, or in the defense of any claim, issue, or matter in
the proceeding, to which he or she was a party because he or she is or was a
director of the corporation, against reasonable expenses incurred by him or her
in connection with the proceeding or claim with respect to which he or she has
been successful.
SECTION 10.04 Advance of Expenses for Directors.
(a) The corporation shall pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(i) the director furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the
applicable standard of conduct described in Section 10.02;
(ii) the director furnishes to the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance
if it is ultimately determined that he or she did not meet the
standard of conduct; and
(iii) a determination is made that the facts then known to those
making the determination would not preclude indemnification under
this part.
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(b) The undertaking required by Subsection 10.04(a)(ii) must be an
unlimited general obligation of the director but need not be secured and shall
be accepted without reference to financial ability to make repayment.
(c) Determination of payments under this section shall be made in the
manner specified in Section 10.06.
SECTION 10.05 Court-Ordered Indemnification of Director. A director of the
corporation who is or was a party to a proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court, after giving any notice
the court considers necessary, may order indemnification in the following
manner:
(a) if the court determines that the director is entitled to mandatory
indemnification, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; and
(b) if the court determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director met the applicable standard of conduct set forth in Section
10.02 or was adjudged liable as described in Subsection 10.02(d), the court may
order indemnification as the court determines to be proper, except that the
indemnification with respect to any proceeding in which liability has been
adjudged in the circumstances described in Subsection 10.02(d) is limited to
reasonable expenses incurred.
SECTION 10.06 Determination of Indemnification of Directors.
(a) A corporation may not advance expenses to a director under Section
10.04 until after the written affirmation and undertaking required by Subsection
10.04(a)(ii) are received and the determination required by Subsection
10.04(a)(iii) has been made.
(b) The determinations required by Subsection 10.06(a) shall be made:
(i) by the board of directors by a majority vote of those present at
a meeting at which a quorum is present, and only those directors
not parties to the proceeding shall be counted in satisfying the
quorum; or
(ii) If a quorum cannot be obtained as contemplated in Subsection
10.06(b)(i), by a majority vote of a committee of the board of
directors designated by the board of directors, which committee
shall consist of two or more directors not parties to the
proceeding, except that directors who are parties to the
proceeding may participate in the designation of directors for
the committee; or
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(iii) by special legal counsel:
(1) selected by the board of directors or its committee in the
manner prescribed in Subsections 10.06(b)(i) and (ii); or
(2) if a quorum of the board of directors cannot be obtained
under Subsection 10.06(b)(i) and a committee cannot be
designated under Subsection 10.06(b)(ii), selected by a
majority vote of the full board of directors, in which
selection directors who are parties to the proceeding may
participate; or
(iv) by the shareholders, by a majority of the votes entitled to be
cast by holders of qualified shares (as defined in the Utah
Revised Business Corporation Act) present in person or by proxy
at a meeting.
(c) A majority of the votes entitled to be cast by the holders of all
qualified shares constitutes a quorum for purposes of action that complies with
this section. Shareholders' action that otherwise complies with this section is
not affected by the presence of holders, or the voting, of shares that are not
qualified shares.
SECTION 10.07 Indemnification of Officers, Employees, Fiduciaries, and Agents.
(a) an officer of the corporation is entitled to mandatory indemnification
under Section 10.03, and is entitled to apply for court-ordered indemnification
under Section 10.05, in each case to the same extent as a director;
(b) the corporation shall indemnify and advance expenses to an officer,
employee, fiduciary, or agent of the corporation to the same extent as to a
director; and
(c) the corporation may also indemnify and advance expenses to an officer,
employee, fiduciary, or agent who is not a director to a greater extent, if not
inconsistent with public policy and if provided for by specific action of the
board of directors, or contract.
SECTION 10.08 Insurance. The corporation may purchase and maintain liability
insurance on behalf of a person who is or was a director, officer, employee,
fiduciary, or agent of the corporation, or who, while serving as a director,
officer, employee, fiduciary, or agent of the corporation, is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee, fiduciary, or agent of another foreign or domestic corporation or
other person, or of an employee benefit plan, against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, fiduciary, or agent, whether or not the
corporation would have power to indemnify him or her against the same liability
under Sections 10.02, 10.03 or 10.07. Insurance may be procured from any
insurance company designated by the board of directors, whether the insurance
company is formed under the laws of this state or any other jurisdiction of the
United States or elsewhere, including any insurance company in which the
corporation has an equity or any other interest through stock ownership or
otherwise.
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SECTION 10.09 Limits on Directors' Liability. Pursuant to the corporation's
Articles of Incorporation, and to the fullest extent permitted by the Utah
Revised Business Corporation Act, as the same exists or may hereafter be
amended, no director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for any action taken or any
failure to take any action, as a director.
SECTION 10.10 Savings Clause. If this Article or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each officer and director as to
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether internal or external,
including without limitation a grand jury proceeding and an action or suit
brought by or in the right of the corporation, to the full extent permitted by
any applicable portion of this Article that shall not have been invalidated, or
by any other applicable law.
ARTICLE XI -- MISCELLANEOUS
SECTION 11.01 Seal. The board of directors may provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the corporation and
words and figures showing that the corporation was incorporated in the State of
Utah and the year of incorporation.
SECTION 11.02 Amendments. These Bylaws, or any of them may be altered, amended
or repealed, and new Bylaws may be made, (i) by the board of directors, by vote
of a majority of the directors then in office, acting at any meeting of the
board of directors, or (ii) by the shareholders, by vote of a majority of a
quorum of the shareholders, at any annual meeting of shareholders, without
previous notice, or at any special meeting of shareholders, provided that notice
of such proposed amendment, modification, repeal or adoption is given in the
notice of special meeting. Except as otherwise provided in the corporation's
Articles of Incorporation, any Bylaws made or altered by the shareholders may be
altered or repealed by either the board of directors or the shareholders.
SECTION 11.03 Fiscal Year. Unless otherwise specified by the board of directors,
the fiscal year of the corporation shall end on the 31st day of December in each
year.
SECTION 11.04 Voting of Stock in Other Corporations. Unless otherwise ordered by
the board of directors, the chairman of the board, the president and each vice
president shall have full power and authority on behalf of the corporation to
attend any meeting of shareholders of any corporation in which the corporation
may hold stock, to vote the stock held by the corporation, to exercise on behalf
of the corporation at any such meeting any and all of the rights and powers
incident to the ownership of such stock, and to execute and deliver on behalf of
the corporation proxies and consents in connection with the exercise by the
corporation of the rights and powers incident to the ownership of such stock.
The board of directors may, from time to time, confer like powers upon any other
person or persons.
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