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Exhibit 3.16
BYLAWS
OF
HUNTSMAN PREPARATORY, INC.
a Utah corporation
1996
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TABLE OF CONTENTS
Article 1 OFFICES.................................................................................................1
Section 1.1. Business Offices...................................................................1
Section 1.2. Registered Office..................................................................1
Article 2 SHAREHOLDERS............................................................................................1
Section 2.1. Annual Shareholder Meeting.........................................................1
Section 2.2. Special Shareholder Meetings.......................................................1
Section 2.3. Place of Shareholder Meetings......................................................2
Section 2.4. Notice of Shareholder Meeting......................................................2
Section 2.5. Fixing of Record Date..............................................................3
Section 2.6. Shareholder List...................................................................4
Section 2.7. Shareholder Quorum and Voting Requirements.........................................4
Section 2.8. Proxies............................................................................5
Section 2.9. Voting of Shares...................................................................5
Section 2.10. Corporation's Acceptance of Votes..................................................5
Section 2.11. Informal Action by Shareholders....................................................7
Section 2.12. Waiver of Notice...................................................................8
Section 2.13. Voting for Directors...............................................................8
Section 2.14. Rights of Shareholders to Inspect Corporate Records................................8
Section 2.15. Furnishing Financial Statements to a Shareholder..................................10
Section 2.16. Information Respecting Shares.....................................................10
Article 3 BOARD OF DIRECTORS.....................................................................................10
Section 3.1. General Powers....................................................................10
Section 3.2. Number, Tenure and Qualifications of Directors....................................11
Section 3.3. Regular Meetings of the Board of Directors........................................11
Section 3.4. Special Meetings of the Board of Directors........................................11
Section 3.5. Notice and Waiver of Notice of Special Director Meetings..........................11
Section 3.6. Quorum of Directors...............................................................12
Section 3.7. Manner of Acting..................................................................12
Section 3.8. Director Action By Written Consent................................................13
Section 3.9. Resignation of Directors..........................................................13
Section 3.10. Removal of Directors..............................................................13
Section 3.11. Board of Director Vacancies.......................................................13
Section 3.12. Director Compensation.............................................................14
Section 3.13. Director Committees...............................................................14
Section 3.14. Director's Rights to Inspect Corporate Records....................................14
Article 4 EXECUTIVE COMMITTEE AND OTHER COMMITTEES...............................................................15
Section 4.1. Creation of Committees............................................................15
Section 4.2. Approval of Committees and Members................................................16
Section 4.3. Required Procedures...............................................................16
Section 4.4. Authority.........................................................................16
Section 4.5. Authority of Executive Committee..................................................16
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Section 4.6. Compensation......................................................................16
Article 5 OFFICERS...............................................................................................17
Section 5.1. Officers..........................................................................17
Section 5.2. Appointment and Term of Office....................................................17
Section 5.3. Resignation of Officers...........................................................17
Section 5.4. Removal of Officers...............................................................17
Section 5.5. The Chairman of the Board.........................................................17
Section 5.6. The Vice Chairman.................................................................18
Section 5.7. Chief Executive Officer...........................................................18
Section 5.8. President.........................................................................18
Section 5.9. Vice Presidents...................................................................19
Section 5.10. Secretary.........................................................................19
Section 5.11. Treasurer.........................................................................20
Section 5.12. Assistant Secretaries and Assistant Treasurers....................................20
Section 5.13. General Manager...................................................................20
Section 5.14. Salaries..........................................................................21
Section 5.15. Surety Bonds......................................................................21
Article 6 LIMITATION OF LIABILITY AND INDEMNIFICATION............................................................21
Section 6.1. Limitation of Liability of Directors..............................................21
Section 6.2. Indemnification of Directors......................................................22
Section 6.3. Advance Payment of Expenses.......................................................22
Section 6.4. Indemnification of Officers, Employees, Fiduciaries, and Agents...................23
Section 6.5. Insurance.........................................................................23
Article 7 EXECUTION OF INSTRUMENTS, BORROWING OF MONEY AND DEPOSIT OF CORPORATE FUNDS............................23
Section 7.1. Execution of Instruments..........................................................23
Section 7.2. Loans.............................................................................24
Section 7.3. Deposits..........................................................................24
Section 7.4. Checks, Drafts, etc...............................................................24
Section 7.5. Bonds and Debentures..............................................................24
Section 7.6. Sale, Transfer, etc. of Securities................................................25
Section 7.7. Proxies...........................................................................25
Article 8 CERTIFICATES FOR SHARES AND THEIR TRANSFER.............................................................25
Section 8.1. Certificates for Shares...........................................................25
Section 8.2. Shares Without Certificates.......................................................26
Section 8.3. Registration of Transfer of Shares................................................26
Section 8.4. Transfer Agents and Registrars....................................................26
Section 8.5. Restrictions on Transfer of Shares Permitted......................................26
Section 8.6. Acquisition of Shares.............................................................27
Section 8.7. Lost or Destroyed Certificates....................................................28
Article 9 DISTRIBUTIONS..........................................................................................28
Section 9.1. Distributions.....................................................................28
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Article 10 CORPORATE SEAL........................................................................................28
Section 10.1. Corporate Seal....................................................................28
Article 11 FISCAL YEAR...........................................................................................29
Section 11.1. Fiscal Year.......................................................................29
Article 12 AMENDMENTS............................................................................................29
Section 12.1. Amendments........................................................................29
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BYLAWS
OF
HUNTSMAN PREPARATORY, INC.
ARTICLE 1
OFFICES
SECTION 1.1. BUSINESS OFFICES.
The principal office of Huntsman Preparatory, Inc. (the "Corporation")
shall be located at any place either within or outside the State of Utah, as
designated in the Corporation's Articles of Incorporation or the Corporation's
most recent annual report on file with the Utah Department of Commerce, Division
of Corporations and Commercial Code (the "Division") providing such information.
The Corporation may have such other offices, either within 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 those records specified in Section 2.14 of Article II
of these Bylaws. (16-10a-102(24))*
SECTION 1.2. REGISTERED OFFICE.
The registered office of the Corporation required by the Utah Revised
Business Corporation Act shall be located within the State of Utah. The address
of the registered office may be changed from time to time. (16-10a-501 and
16-10a-502)
ARTICLE 2
SHAREHOLDERS
SECTION 2.1. ANNUAL SHAREHOLDER MEETING.
An annual meeting of the shareholders shall be held each year on the
date, at the time, and at the place, fixed by the Board of Directors. The annual
meeting shall be held for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. (16-10a-701)
SECTION 2.2. SPECIAL SHAREHOLDER MEETINGS.
Special meetings of the shareholders may be called, for any purposes
described in the notice of the meeting, by the President, or by the Board of
Directors and shall be called by the President at the request of the holder(s)
of not less than one-tenth of all outstanding votes of the Corporation entitled
to be cast on any issue at the meeting. (16-10a-702)
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* Citations in parentheses are to Utah Code Annotated. These citations are for
reference only and shall not constitute a part of these bylaws.
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SECTION 2.3. PLACE OF SHAREHOLDER MEETINGS.
The Board of Directors may designate any place, either within or
outside the State of Utah, as the place for any annual meeting of the
shareholders. The President, the Board of Directors or the shareholder(s)
authorized by these Bylaws to request a meeting, as the case may be, may
designate any place, either within or outside the State of Utah, as the place
for any special meeting of the shareholders called by such person or group. If
no designation is made regarding the place of the meeting, the meeting shall be
held at the principal office of the Corporation. (16-10a-701(2) and
16-10a-702(3))
SECTION 2.4. NOTICE OF SHAREHOLDER MEETING.
(a) Required Notice. Written notice stating the place, day, and
hour of any annual or special shareholder meeting shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the person or group
calling the meeting, to each shareholder of record entitled to vote at such
meeting, and to any other shareholder entitled by the Utah Revised Business
Corporation Act or the Corporation's Articles of Incorporation to receive notice
of the meeting. Notice shall be deemed to be effective when mailed.
(b) Notice Not Required. Notice shall not be required to be given
to any shareholder to whom:
(1) A notice of two consecutive annual meetings, and all
notices of meetings or of the taking of action by written consent
without a meeting during the period between the two consecutive annual
meetings, 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; or
(2) at least two payments, if sent by first class mail, of
dividends or interest on securities during a twelve 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.
If a shareholder to whom notice is not required to be given
delivers to the Corporation a written notice setting forth the shareholder's
current address, or if another address for the shareholder is otherwise made
known to the Corporation, the requirement that notice be given to the
shareholder is reinstated.
(16-10a-103 and 16-10a-705)
(c) Adjourned Meeting. If any shareholder meeting is adjourned to
a different date, time, or place, notice need not be given of the new date,
time, or place, if the new date, time, or place is announced at the meeting
before adjournment. However, if the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date for the adjourned meeting is
or must be fixed (see Section 2.5 of these Bylaws), then notice must be given
pursuant to the requirements of paragraph (a) of this Section 2.4 to
shareholders of record who are entitled to vote at the meeting. (16-10a-705(4))
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(d) Contents of Notice. Notice of any special meeting of the
shareholders shall include a description of the purpose or purposes for which
the meeting is called. Except as provided in this paragraph (d) of Section 2.4,
in the Articles of Incorporation, or in the Utah Revised Business Corporation
Act, notice of an annual meeting of the shareholders need not include a
description of the purpose or purposes for which the meeting is called.
(16-10a-705(2), (3))
(e) Waiver of Notice of Meeting. Any shareholder may waive notice
of a meeting by a writing signed by the shareholder which is delivered to the
Corporation (either before or after the date and time stated in the notice as
the date or time when any action will occur or has occurred) for inclusion in
the minutes or filing with the Corporation's records. (16-10a-706)
(f) Effect of Attendance at Meeting. A shareholder's attendance at
a meeting:
(1) 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;
and
(2) waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the
matter when it is presented. (16-10a-706)
SECTION 2.5. FIXING OF RECORD DATE.
For the purpose of determining the shareholders of any voting group
entitled to notice of or to vote at any meeting of the shareholders, or the
shareholders entitled to take action without a meeting or to demand a special
meeting, or the shareholders entitled to receive payment of any distribution or
dividend, or in order to make a determination of the shareholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date. Such record date shall not be more than seventy (70) days prior to the
date on which the particular action, requiring such determination of the
shareholders, is to be taken. If no record date is so fixed by the Board of
Directors, the record date shall be at the close of business on the following
dates:
(a) Annual and Special Meetings. With respect to an annual meeting
of the shareholders or any special meeting of the shareholders called by the
President, the Board of Directors or the shareholder(s) authorized by these
Bylaws to request a meeting, the day before the first notice is delivered to
shareholders. (16-10a-707(2))
(b) Meeting Demanded by Shareholders. With respect to a special
shareholder meeting demanded by the shareholders pursuant to the Utah Revised
Business Corporation Act, the earliest date of any of the demands pursuant to
which the meeting is called, or sixty (60) days prior to the date the first of
the written demands is received by the Corporation, whichever is later.
(16-10a-702(1)(b), (2))
(c) Action Without a Meeting. With respect to actions taken in
writing without a meeting (pursuant to Section 2.11 of these Bylaws), the date
the first shareholder delivers to the Corporation a signed written consent upon
which the action is taken. (16-10a-704(6))
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(d) Distributions. With respect to a distribution to the
shareholders (other than one involving a repurchase or reacquisition of shares),
the date the Board of Directors authorizes the distribution. (16-10a-640(2))
(e) Share Dividend. With respect to the payment of a share
dividend, the date the Board of Directors authorizes the share dividend.
(16-10a-623(3))
When a determination of the shareholders entitled to vote at
any meeting of the shareholders has been made as provided in this Section 2.5,
such determination shall apply to any adjournment thereof 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. (16-10a-707)
SECTION 2.6. SHAREHOLDER LIST.
The Secretary shall make a complete record of the shareholders entitled
to vote at each meeting of shareholders, arranged in alphabetical order within
each class or series, with the address of and the number of shares held by each.
If voting groups exist (see Section 2.7 of these Bylaws), the list must be
arranged by voting group, and within each voting group by class or series of
shares. The shareholder 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 adjournments. The list shall
be available at the Corporation's principal office or at a place identified in
the notice of the meeting in the city where the meeting is to be held. A
shareholder, his agent, or attorney is entitled on written demand to inspect
and, subject to the requirements of Section 2.14 of these Bylaws, to inspect and
copy the list during regular business hours and during the period it is
available for inspection. The Corporation shall maintain the shareholder list in
written form or in another form capable of conversion into written form within a
reasonable time. (16-10a-720)
SECTION 2.7. SHAREHOLDER QUORUM AND VOTING REQUIREMENTS.
(a) Quorum. Unless the Articles of Incorporation, a Bylaw adopted
by the shareholders pursuant to the Utah Revised Business Corporation Act, or
the Utah Revised Business Corporation Act provides otherwise, a majority of the
votes entitled to be cast on the matter by the voting group constitutes a quorum
of that voting group for action on that matter. (16-10a-725(1))
(b) Approval of Actions. If a quorum exists, action on a matter
(other than the election of directors) by a voting group is approved if the
votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Articles of Incorporation, a Bylaw adopted by
the shareholders pursuant to the Utah Revised Business Corporation Act, or the
Utah Revised Business Corporation Act requires a greater number of affirmative
votes. (16-10a-725(3))
(c) Single Voting Group. If the Articles of Incorporation or the
Utah Revised Business Corporation Act provides for voting by a single voting
group on a matter, action on that matter is taken when approved by that voting
group. (16-10-726(1))
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(d) Voting Groups. Shares entitled to vote as a separate voting
group may take action on a matter at a meeting only if a quorum of those shares
exists with respect to that matter. (16-10a-725(1)) If the Articles of
Incorporation or the Utah Revised Business Corporation Act provides for voting
by two or more voting groups on a matter, action on that matter is taken only
when approved by each of those voting groups counted separately. One voting
group may vote on a matter even though another voting group entitled to vote on
the matter has not voted. (16-10a-726(2))
(e) Effect of Representation. Once a share is represented for any
purpose at a meeting, including the purpose of determining that a quorum exists,
it is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting, unless a new record date is or must be set
for that adjourned meeting. (16-10a-725(2))
SECTION 2.8. PROXIES.
At all meetings of the shareholders, a shareholder may vote in person
or by a proxy executed in any lawful manner. Such proxy shall be filed with the
Corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution unless otherwise provided in the
proxy.
(16-10a-722)
SECTION 2.9. VOTING OF SHARES.
(a) Votes per Share. Unless otherwise provided in the Articles of
Incorporation, each outstanding share entitled to vote shall be entitled to one
vote, and each fractional share shall be entitled to a corresponding fractional
vote, upon each matter submitted to a vote at a meeting of shareholders.
(16-10a-721(1))
(b) Restriction on Shares Held by Controlled Corporation. Except
as provided by specific court order, no shares of the Corporation held by
another corporation, if a majority of the shares entitled to vote for the
election of directors of such other corporation are held by the Corporation,
shall be voted at any meeting of the Corporation or counted in determining the
total number of outstanding shares at any given time for purposes of any
meeting. However, the power of the Corporation to vote any shares, including its
own shares, held by it in a fiduciary capacity is not hereby limited.
(16-10a-721.(2), (3))
(c) Redeemable Shares. Redeemable shares are not entitled to be
voted after notice of redemption is mailed to the holders thereof and a sum
sufficient to redeem the shares has been deposited with a bank, trust company,
or other financial institution under an irrevocable obligation to pay the
holders the redemption price on surrender of the shares. (16-10a-721(4))
SECTION 2.10. CORPORATION'S ACCEPTANCE OF VOTES.
(a) Corresponding Name. If the name signed on a vote, consent,
waiver, proxy appointment, or proxy appointment revocation corresponds to the
name of a shareholder, the Corporation, if acting in good faith, is entitled to
accept the vote, consent, waiver, proxy appointment, or proxy appointment
revocation and give it effect as the act of the shareholder. (16-10a-724(1))
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(b) Name does not Correspond. If the name signed on a vote,
consent, waiver, proxy appointment, or proxy appointment revocation does not
correspond to the name of a shareholder, the Corporation, if acting in good
faith, is nevertheless entitled to accept the vote, consent, waiver, proxy
appointment, or proxy appointment revocation and give it effect as the act of
the shareholder if:
(1) The shareholder is an entity as defined in the Utah
Revised Business Corporation Act and the name signed purports to be
that of an officer or agent of the entity;
(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the shareholder and, if
the Corporation requests, evidence of fiduciary status acceptable to
the Corporation has been presented with respect to the vote, consent,
waiver, proxy appointment, or proxy appointment revocation;
(3) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation has
been presented with respect to the vote, consent, waiver, proxy
appointment, or proxy appointment revocation;
(4) the name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the shareholder has been presented
with respect to the vote, consent, waiver, proxy appointment, or proxy
appointment revocation;
(5) two or more persons are the shareholder as cotenants or
fiduciaries and the name signed purports to be the name of at least one
of the cotenants or fiduciaries and the person signing appears to be
acting on behalf of all the cotenants or fiduciaries; or
(6) the acceptance of the vote, consent, waiver, proxy
appointment, or proxy appointment revocation is otherwise proper under
rules established by the Corporation that are not inconsistent with the
provisions of this Section 2.10. (16-10a-724(2))
(c) Shares owned by Two or More Persons. If shares of the
Corporation are registered in the names of two or more persons, or if two or
more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary is given written notice to the contrary and furnished with
a copy of the instrument creating the relationship, their acts with respect to
voting shall have the following effect:
(1) If only one votes, the act binds all;
(2) if more than one vote, the act of the majority so voting
binds all;
(3) if more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately; and
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(4) if the instrument so filed or the registration of the
shares shows that any tenancy is held in unequal interests, a majority
or even split for the purpose of this Section 2.10 shall be a majority
or even split in interest. (16-10a-724(3))
(d) Rejection. The Corporation is entitled to reject a vote,
consent, waiver, proxy appointment, or proxy appointment revocation if the
Secretary or other officer or agent authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the validity of the signature on it
or about the signatory's authority to sign for the shareholder. (16-10a-724(4))
(e) No Liability. The Corporation and its officer or agent who
accepts or rejects a vote, consent, waiver, proxy appointment, or proxy
appointment revocation in good faith and in accordance with the standards of
this Section 2.10 are not liable in damages to the shareholder for the
consequences of the acceptance or rejection. (16-10a-724(5))
(f) Validity. Corporate action based on the acceptance or
rejection of a vote, consent, waiver, proxy appointment, or proxy appointment
revocation under this Section 2.10 is valid unless a court of competent
jurisdiction determines otherwise. (16-10a-724(6))
SECTION 2.11. INFORMAL ACTION BY SHAREHOLDERS.
(a) Written Consent. Unless otherwise provided in the Articles of
Incorporation, any action which may be taken at any annual or special meeting of
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
necessary to authorize or take the action at a meeting at which all shares
entitled to vote thereon were present and voted. (16-10a-704(1))
(b) Notice Requirements. Unless written consents of all
shareholders entitled to vote have been obtained, the Corporation shall give
notice of any shareholder approval without a meeting at least ten (10) days
before the consummation of the action authorized by the approval to:
(1) Those shareholders entitled to vote who have not consented
in writing;
(2) those shareholders not entitled to vote and to whom the
Utah Revised Business Corporation Act requires notice be given.
Such notice shall contain or be accompanied by the same
material that would have been required if a formal meeting had been called to
consider the action. (16-10a-704(2))
(c) Revocation. Any shareholder giving a written consent, or the
shareholders' 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. (16-10a-704(3))
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(d) Effective Date. Action taken pursuant to this Section 2.11 is
not effective unless all written consents on which the Corporation relies for
the taking of action are received by the Corporation within a sixty (60) day
period and are not revoked. Action thus taken is effective as of the date the
last written consent necessary to effect the action is received by the
Corporation, unless all the written consents necessary to effect the action
specify a later date as the effective date of action. If the Corporation has
received written consents 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. The
writing may be received by the Corporation by electronically transmitted
facsimile or other form of communication providing the Corporation with a
complete copy thereof, including a copy of the signature. (16-10a-704(4))
(e) Election of Directors. Notwithstanding paragraph (a) of this
Section 2.11, directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of
directors. (16-10a-704(5))
(f) Effect of Action Without a Meeting. Action taken under this
Section 2.11 has the same effect as action taken at a meeting of shareholders
and may be so described in any document. (16-10a-704(7))
SECTION 2.12. WAIVER OF NOTICE.
A shareholder may waive any notice required by the Utah Revised
Business Corporation Act, the Corporation's Articles of Incorporation or these
Bylaws. Such a waiver may be made before or after the date and time stated in
the notice as the date or time when any action will occur or has occurred. Such
a waiver must be in a writing signed by the shareholder and must be delivered to
the Corporation for inclusion in the minutes of the relevant meeting of the
shareholders or in the Corporation's records. (16-10a-706(1))
SECTION 2.13. VOTING FOR DIRECTORS.
At each election of directors, unless otherwise provided in the
Articles of Incorporation or the Utah Revised Business Corporation Act, every
shareholder entitled to vote at the election has the right to vote, in person or
by proxy, all of the votes to which the shareholder's 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. Unless otherwise provided in the Articles of
Incorporation or the Utah Revised Business Corporation Act, directors are
elected by a plurality of the votes cast by the shares entitled to be voted in
the election, at a meeting at which a quorum is present. (16-10a-728(1), (2))
SECTION 2.14. RIGHTS OF SHAREHOLDERS TO INSPECT CORPORATE RECORDS.
(a) Minutes and Accounting Records. The Corporation shall keep, as
permanent records, minutes of all meetings of its shareholders and Board of
Directors, a record of all actions taken by its shareholders or Board of
Directors without a meeting, a record of all actions taken on behalf of the
Corporation by a committee of the Board of Directors in place of the Board of
Directors, and a record of all waivers of notices of meetings of its
shareholders, meetings of the
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Board of Directors, or any meetings of committees of the Board of Directors. The
Corporation shall maintain appropriate accounting records. (16-10a-1601(1), (2))
(b) Absolute Inspection Rights. If a shareholder gives the
Corporation written notice of the shareholder's demand at least five (5)
business days before the date on which the shareholder wishes to inspect and
copy, a shareholder (or the shareholder's agent or attorney) has the right to
inspect and copy, during regular business hours, any of the following records,
all of which the Corporation is required to keep at its principal office:
(1) The Corporation's Articles of Incorporation currently in
effect;
(2) the Corporation's Bylaws currently in effect;
(3) the minutes of all shareholders' meetings, and records of
all action taken by shareholders without a meeting, for the past three
years;
(4) all written communications within the past three years to
shareholders as a group or to the holders of any class or series of
shares as a group;
(5) a list of the names and business addresses of the
Corporation's current officers and directors; and
(6) the Corporation's most recent annual report delivered to
the Division;
(7) all financial statements prepared for periods ending
during the last three years that a shareholder could request pursuant
to Section 16-10a-1605 of the Utah Revised Business Corporation Act.
(16-10a-1601(5) and 16-10a-1602(1))
(c) Conditional Inspection Rights. If a shareholder gives the
Corporation a written demand made in good faith and for a proper purpose at
least five business days before the date on which the shareholder wishes to
inspect and copy, the shareholder describes with reasonable particularity the
shareholder's purpose and the records the shareholder desires to inspect, and
the records are directly connected with the shareholder's purpose, the
shareholder (or the shareholder's agent or attorney) is entitled to inspect and
copy, during regular business hours at a reasonable location specified by the
Corporation, any of the following records of the Corporation:
(1) Excerpts from:
(i) Minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors
while acting on behalf of the Corporation in place of the
Board of Directors;
(ii) minutes of any meeting of the shareholders;
(iii) records of action taken by the shareholders
without a meeting; and
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(iv) waivers of notices of any meeting of the
shareholders, of any meeting of the Board of Directors, or of
any meeting of a committee of the Board of Directors;
(2) accounting records of the Corporation; and
(3) the record of the Corporation's shareholders referred to
in Section 16-10a-1601(3) of the Utah Revised Business Corporation Act.
(16-10a-1602(2)).
(d) Copy Costs. The right to copy records includes, if reasonable,
the right to receive copies made by photographic, xerographic, or other means.
The Corporation may impose a reasonable charge, payable in advance, covering the
costs of labor and material, for copies of any documents provided to a
shareholder. The charge may not exceed the estimated cost of production or
reproduction of the records. (16-10a-1603)
(e) Shareholder Includes Beneficial Owner. For purposes of this
Section 2.14, the term "shareholder" shall include a beneficial owner whose
shares are held in a voting trust and any other beneficial owner who establishes
beneficial ownership. (16-10a-1602(4)(b))
SECTION 2.15. FURNISHING FINANCIAL STATEMENTS TO A SHAREHOLDER.
Upon the written request of any shareholder, the Corporation shall mail
to the shareholder its most recent annual or quarterly financial statements
showing in reasonable detail its assets and liabilities and the results of its
operations. (16-10a-1605)
SECTION 2.16. INFORMATION RESPECTING SHARES.
Upon the written request of any shareholder, the Corporation, at its
own expense, shall mail to the shareholder information respecting the
designations, preferences, limitations, and relative rights applicable to each
class of shares, the variations determined for each series, and the authority of
the Board of Directors to determine variations for any existing or future class
or series. The Corporation may comply by mailing the shareholder a copy of its
Articles of Incorporation containing such information. (16-10a-1606)
ARTICLE 3
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS.
All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be managed under the
direction of, the Board of Directors, subject to any limitation set forth in the
Articles of Incorporation or in any agreement authorized by Section 16-10a-732
of the Utah Revised Business Corporation Act. (16-10a-801)
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SECTION 3.2. NUMBER, TENURE AND QUALIFICATIONS OF DIRECTORS.
(a) Number. The number of directors of the Corporation shall be not less
than three (3) (unless the number of shareholders entitled to vote for the
directors of the Corporation is less than three (3), then the number of
directors may be equal to or greater than the number of such shareholders) nor
more than nine (9). The number of directors may be fixed or changed within the
range specified in this Section 3.2 by the shareholders or the Board of
Directors, but no decrease may shorten the term of any incumbent director.
(16-10a-803(1),(2))
(b) Tenure. Each director shall hold office until the next annual meeting
of shareholders or until removed. However, if a director's term expires, the
director shall continue to serve until the director's successor shall have been
elected and qualified, or until there is a decrease in the number of directors.
(16-10a-805)
(c) Qualifications. Directors need not be residents of the State of Utah or
shareholders of the Corporation unless the Articles of Incorporation so
prescribe. (16-10a-802)
SECTION 3.3. REGULAR MEETINGS OF THE BOARD OF DIRECTORS.
A regular meeting of the Board of Directors shall be held without other
notice than provided by this Section 3.3 immediately after, and at the same
place as, the annual meeting of shareholders. The Board of Directors may
provide, by resolution, the time and place for the holding of additional regular
meetings without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS OF THE BOARD OF DIRECTORS.
Special meetings of the Board of Directors may be called by or at the
request of the President, a Vice President or any two (2) directors, who may fix
any place, either within or outside the State of Utah, as the place for holding
the meeting.
SECTION 3.5. NOTICE AND WAIVER OF NOTICE OF SPECIAL DIRECTOR MEETINGS.
(a) Notice. Unless the Articles of Incorporation provide for a
longer or shorter period, special meetings of the Board of Directors must be
preceded by at least two (2) days notice of the date, time, and place of the
meeting. (16-10a-822(2)) Notice may be communicated in person, by telephone, by
any form of electronic communication, or by mail or private carrier.
(16-10a-103(2)) At the written request of any director, notice of any special
meeting of the Board of Directors shall be given to such director by facsimile
or telex, as the case may be, at the number designated in writing by such
director from time to time.
(b) Effective Date. Notice of any meeting of the Board of
Directors shall be deemed to be effective at the earliest of the following: (1)
when received; (2) five (5) days after it is mailed; or (3) 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 director.
(16-10a-103(5)).
(c) Waiver of Notice. A director may waive notice of any meeting.
Except as provided in this Section 3.5, the waiver must be in writing and signed
by the director entitled to
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the 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. (16-10a-823(1))
(d) Effect of Attendance. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except when a
director attends a meeting for the express purpose of objecting to the
transaction of any business and at the beginning of the meeting, or promptly
upon arrival, the director objects to holding the meeting or transacting
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.
(16-10a-823(2))
SECTION 3.6. QUORUM OF DIRECTORS.
A majority of the number of directors prescribed by resolution (or if
no number is prescribed, the number in office immediately before the meeting
begins) shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors, unless the Articles of Incorporation require a
greater number. (16-10a-824(1)(b))
SECTION 3.7. MANNER OF ACTING.
(a) Action by Majority. If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present is the act of the
Board of Directors, unless the Corporation's Articles of Incorporation or the
Utah Revised Business Corporation Act requires the vote of a greater number of
directors. (16-10a-824(3))
(b) Telephonic Meetings. Unless the Articles of Incorporation
provide otherwise, any or all directors may 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 simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting. (16-10a-820(2))
(c) Effect of Presence at Meeting. A director who is present at a
meeting of the Board of Directors when corporate action is taken is considered
to have assented to the action taken, unless:
(1) The director objects at the beginning of the meeting, or
promptly upon arrival, to holding it or transacting business at the
meeting;
(2) the director contemporaneously requests his dissent or
abstention as to any specific action to be entered into the minutes of
the meeting; or
(3) 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 its adjournment or by the Corporation
promptly after adjournment of the meeting. (16-10a-824(4))
(d) Right of Dissent or Abstention. The right of dissent or
abstention as to a specific action is not available to a director who votes in
favor of the action taken. (16-10a-824(5)).
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SECTION 3.8. DIRECTOR ACTION BY WRITTEN CONSENT.
Unless the Articles of Incorporation or the Utah Revised Business
Corporation Act provide otherwise, any action required or permitted to be taken
by the Board of Directors at a meeting may be taken without a meeting if all the
directors consent to the action in writing. Action is taken by written consent
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. Action taken by written
consent is effective when the last director signs the consent, unless the Board
of Directors establishes a different effective date. Action taken by written
consent has the same effect as action taken at a meeting of directors and may be
described as such in any document. (16-10a-821)
SECTION 3.9. RESIGNATION OF DIRECTORS.
A director may resign at any time by giving a written notice of
resignation to the Corporation. A resignation of a director is effective when
the notice is received by the Corporation unless the notice specifies a later
effective date. A director who resigns may deliver a statement of his
resignation pursuant to Section 16-10a-1608 of the Utah Revised Business
Corporation Act to the Division for filing. (16-10a-807)
SECTION 3.10. REMOVAL OF DIRECTORS.
The shareholders may remove one or more directors at a meeting called
for that purpose if notice has been given that a purpose of the meeting is such
removal. The removal may be with or without cause, unless the Articles of
Incorporation provide that directors may only be removed with cause. If a
director is elected by a voting group of shareholders, only the shareholders of
that voting group may participate in the vote to remove the director. If
cumulative voting is in effect, a director may not be removed if the number of
votes sufficient to elect the director under cumulative voting is voted against
the director's removal. If cumulative voting is not in effect, a director may be
removed only if the number of votes cast to remove the director exceeds the
number of votes cast against removal of the director. (16-10a-808)
SECTION 3.11. BOARD OF DIRECTOR VACANCIES.
(a) Vacancies. Unless the Articles of Incorporation provide
otherwise, if a vacancy occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of directors:
(1) The shareholders may fill the vacancy;
(2) the Board of Directors may fill the vacancy; or
(3) if the directors remaining in office constitute fewer than
a quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
(16-10a-810(1))
(b) Rights of Voting Groups. Unless the Articles of Incorporation
provide otherwise, if the vacant office was held by a director elected by a
voting group of shareholders:
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(1) If one or more directors were elected by the same voting
group, only they are entitled to vote to fill the vacancy if it is
filled by the directors; and
(2) only the holders of shares of that voting group are
entitled to vote to fill the vacancy if it is filled by the
shareholders. (16-10a-810(2))
(c) Election of Director Prior to Vacancy. A vacancy that will
occur at a specific later date, because of a resignation effective at a later
date, may be filled before the vacancy occurs, but the new director may not take
office until the vacancy occurs. (16-10a-810(3))
(d) Effect of Expiration of Term. If a director's term expires,
the director shall continue to serve until the director's successor is elected
and qualified or until there is a decrease in the number of directors. The term
of a director elected to fill a vacancy expires at the next shareholders'
meeting at which directors are elected. (16-10a-805(5))
SECTION 3.12. DIRECTOR COMPENSATION.
Unless otherwise provided in the Articles of Incorporation, by
resolution of the Board of Directors, each director may be paid his expenses, if
any, of attendance at each meeting of the Board of Directors, and may be paid a
stated salary as a director or a fixed sum for attendance at each meeting of the
Board of Directors or both. No such payment shall preclude any director from
serving the Corporation in any capacity and receiving compensation therefor.
SECTION 3.13. DIRECTOR COMMITTEES.
Committees of the Board of Directors may be established in accordance
with Article 4 of these Bylaws.
SECTION 3.14. DIRECTOR'S RIGHTS TO INSPECT CORPORATE RECORDS.
(a) Absolute Inspection Rights. If a director gives the
Corporation written notice of the director's demand at least five (5) business
days before the date on which the director wishes to inspect and copy, the
director (or the director's agent or attorney) has the right to inspect and
copy, during regular business hours, any of the following records, all of which
the Corporation is required to keep at its principal office:
(1) The Corporation's Articles of Incorporation currently in
effect;
(2) the Corporation's Bylaws currently in effect;
(3) the minutes of all shareholders' meetings, and records of
all action taken by shareholders without a meeting, for the past three
years;
(4) all written communications within the past three years to
shareholders as a group or to the holders of any class or series of
shares as a group;
(5) a list of the names and business addresses of the
Corporation's current officers and directors;
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(6) the Corporation's most recent annual report delivered to
the Division; and
(7) all financial statements prepared for periods ending
during the last three years that a shareholder could request.
(16-10a-1601(5) and 16-10a-1602(1))
(b) Conditional Inspection Rights. In addition, if a director
gives the Corporation a written demand made in good faith and for a proper
purpose at least five business days before the date on which the director wishes
to inspect and copy, the director describes with reasonable particularity the
director's purpose and the records the director desires to inspect, and the
records are directly connected with the director's purpose, the director (or the
director's agent or attorney) is entitled to inspect and copy, during regular
business hours at a reasonable location specified by the Corporation, any of the
following records of the Corporation:
(1) Excerpts from:
(i) Minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors
while acting on behalf of the Corporation in place of the
Board of Directors;
(ii) minutes of any meeting of the shareholders;
(iii) records of action taken by the shareholders
without a meeting; and
(iv) waivers of notices of any meeting of the
shareholders, of any meeting of the Board of Directors, or of
any meeting of a committee of the Board of Directors;
(2) accounting records of the Corporation; and
(3) the record of the Corporation's shareholders referred to
in Section 16-10a-1601(3) of the Utah Revised Business Corporation Act.
(16-10a-1602(2))
(c) Copy Costs. The right to copy records includes, if reasonable,
the right to receive copies made by photographic, xerographic, or other means.
The Corporation may impose a reasonable charge, payable in advance, covering the
costs of labor and material, for copies of any documents provided to the
director. The charge may not exceed the estimated cost of production or
reproduction of the records. (16-10a-1603)
ARTICLE 4
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
SECTION 4.1. CREATION OF COMMITTEES.
Unless the Articles of Incorporation provide otherwise, the Board of
Directors may create an Executive Committee and such other committees as it may
deem appropriate and appoint
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members of the Board of Directors to serve on such committees. Each committee
must have two (2) or more members, one of whom shall be the Chairman of the
Board, if there be such an officer, and one of whom shall be the President of
the Corporation. (16-10a-825(1))
SECTION 4.2. APPROVAL OF COMMITTEES AND MEMBERS.
The creation of a committee and appointment of members to it must be
approved by the greater of:
(1) A majority of all the directors in office when the action
is taken; or
(2) the number of directors required by the Articles of
Incorporation to take such action, or, if not specified in the Articles
of Incorporation, the number required by Section 3.7 of these Bylaws to
take action. (16-10a-825(2))
SECTION 4.3. REQUIRED PROCEDURES.
Sections 3.4 through 3.10 of these Bylaws, which govern procedures
applicable to the Board of Directors, also apply to committees and their
members. (16-10a-825(3))
SECTION 4.4. AUTHORITY.
Unless limited by the Articles of Incorporation or the Utah Revised
Business Corporation Act, each committee may exercise those aspects of the
authority of the Board of Directors which the Board of Directors confers upon
such committee in the resolution creating the committee. (16-10a-825(4))
SECTION 4.5. AUTHORITY OF EXECUTIVE COMMITTEE.
The Executive Committee shall have, and may exercise all powers of the
Board of Directors with respect to the management of the business and affairs of
the Corporation during the intervals between the meetings of the Board of
Directors. Provided, however, the Executive Committee shall not have the power
to fill vacancies on the Board of Directors or to amend these Bylaws.
SECTION 4.6. COMPENSATION.
Unless otherwise provided in the Articles of Incorporation, the Board
of Directors may provide for the payment of a fixed sum and/or expenses of
attendance to any member of a committee for attendance at each meeting of such
committee. Provided, however, no such payments shall be made to committee
members who are salaried employees of the Corporation.
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ARTICLE 5
OFFICERS
SECTION 5.1. OFFICERS.
The officers of the Corporation shall be a President, one or more Vice
Presidents, a Secretary, and a Treasurer, each of whom shall be appointed by the
Board of Directors. The Board of Directors may appoint, but shall not be
required to appoint, a Chairman of the Board, one or more Vice Chairman and a
Chief Executive Officer. Such other officers and assistant officers as may be
deemed necessary, including any Vice Presidents, may be appointed by the Board
of Directors. If specifically authorized by the Board of Directors, an officer
may appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the Corporation. (16-10a-830)
SECTION 5.2. APPOINTMENT AND TERM OF OFFICE.
The officers of the Corporation shall be appointed by the Board of
Directors for such term as is determined by the Board of Directors. If no term
is specified, each officer shall hold office until the officer resigns, dies, is
removed in the manner provided in Section 5.4 of these Bylaws, or until the
first meeting of the directors held after the next annual meeting of the
shareholders. If the appointment of officers shall not be made at such meeting,
such appointment shall be made as soon thereafter as is convenient. If a vacancy
shall occur in any office, or if a new office shall be created, the Board of
Directors may appoint an officer or officers to fill such a vacancy or new
office, and such appointment shall be for the term determined by the Board of
Directors. Each officer shall hold office until his successor shall have been
duly appointed. (16-10a-830)
The designation of a specified term does not grant to the officer any
contract rights, and the Board of Directors may remove the officer at any time
prior to the end of such term. (16-10a-833)
SECTION 5.3. RESIGNATION OF OFFICERS.
Any officer may resign at any time by giving written notice of
resignation to the Corporation. (16-10a-832(1))
SECTION 5.4. REMOVAL OF OFFICERS.
Any officer or agent may be removed by the Board of Directors at any
time, with or without cause. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Appointment of an officer or
agent shall not of itself create contract rights. (16-10a-832)
SECTION 5.5. THE CHAIRMAN OF THE BOARD.
The Chairman of the Board, if there be such an officer, shall have the
following powers and duties:
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(a) To be the senior officer of the Corporation and, in addition
to the duties specified in this Section 5.5, to perform such duties as may be
assigned to him by the Board of Directors;
(b) to preside at all meetings of the shareholders of the
Corporation;
(c) to preside at all meetings of the Board of Directors;
(d) to be a member of the Executive Committee, if any.
(16-10a-831)
SECTION 5.6. THE VICE CHAIRMAN.
The Board of Directors may from time to time, designate and appoint one
or more Vice Chairmen. Each Vice Chairman shall have such powers and perform
such duties as may from time to time be assigned to him by the Board of
Directors or by the Chairman of the Board. At the request or in the absence or
disability of the Chairman of the Board, the Vice Chairman, if there be such an
officer, may perform all the duties of the Chairman of the Board and when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the Chairman of the Board.
SECTION 5.7. CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer, if there be such an officer, shall be the
principal executive officer of the Corporation and, subject to the control of
the Board of Directors, in general, shall supervise and control all of the
business and affairs of the Corporation. If neither a Chairman of the Board nor
a Vice Chairman has been appointed, or in their absence, the Chief Executive
Officer, when present, shall preside at all meetings of the shareholders and of
the Board of Directors. The Chief Executive Officer may sign, with the Secretary
or any other proper officer of the Corporation authorized by the Board of
Directors, certificates for shares of the Corporation, the issuance of which
shall have been authorized by a resolution of the Board of Directors, and deeds,
mortgages, bonds, contracts, or other instruments, 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. (16-10a-831)
SECTION 5.8. PRESIDENT.
The President shall be an executive officer of the Corporation, and, if
there be no Chief Executive Officer, shall be the principal executive officer of
the Corporation and, subject to the control of the Board of Directors, in
general, shall supervise and control all of the business and affairs of the
Corporation. In the absence of the Chief Executive Officer or in the event of
his death, inability, or refusal to act, the President shall perform the duties
of the Chief Executive Officer, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Chief Executive Officer. In the
absence of the Chairman of the Board, the Vice Chairman and the Chief Executive
Officer, the President, when present, shall preside at all meetings of the
shareholders and of the Board of Directors. The President may sign, with the
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Secretary or any other proper officer of the Corporation authorized by the Board
of Directors, certificates for shares of the Corporation, the issuance of which
shall have been authorized by a resolution of the Board of Directors, and deeds,
mortgages, bonds, contracts, or other instruments, 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 President and such other
duties as may be prescribed by the Chief Executive Officer or the Board of
Directors from time to time. (16-10a-831)
SECTION 5.9. VICE PRESIDENTS.
In the absence of the President or in the event of his death,
inability, or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated at the time
of their election, or in the absence of any designation, then in the order of
their appointment) 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. If there is no Vice President, then the Treasurer shall perform
such duties of the President. Any Vice President may sign, with the Secretary or
an Assistant Secretary, certificates for shares of the Corporation the issuance
of which have been authorized by resolution of the Board of Directors; and shall
perform such other duties as from time to time may be assigned to him or her by
the Chief Executive Officer, the President or by the Board of Directors.
(16-10a-831)
SECTION 5.10. SECRETARY.
The Secretary shall have the following powers and duties:
(a) to keep the minutes of the proceedings of the shareholders and
of the Board of Directors and the other records and information of the
Corporation required to be kept, in one or more books provided for that purpose;
(b) to see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law;
(c) to be custodian of the corporate records and of any seal of
the Corporation;
(d) when requested or required, to authenticate any records of the
Corporation;
(e) to keep a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder;
(f) to sign with the Chief Executive Officer, the 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;
(g) to have general charge of the stock transfer books of the
Corporation; and
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(h) in general, to 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 Chief Executive Officer, the President or by the Board of Directors.
(16-10a-830 and 16-10a-831)
SECTION 5.11. TREASURER.
The Treasurer shall have the following powers and duties:
(a) to have charge and custody of and be responsible for all funds
and securities of the Corporation;
(b) to 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 depositaries as
shall be selected by the Board of Directors;
(c) in general, to 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 Chief Executive Officer, the President or by the Board of
Directors; and
(d) if required by the Board of Directors, to 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. (16-10a-831)
SECTION 5.12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The Assistant Secretaries, when authorized by the Board of Directors,
may sign, with the 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, if required by the Board of
Directors, shall 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 Treasurers, in general, shall perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chief Executive Officer, the President or the Board of
Directors. (16-10a-831)
SECTION 5.13. GENERAL MANAGER.
The Chief Executive Officer, the President or the Board of Directors
(or the Executive Committee, if any) may appoint a General Manager who may, or
may not, be one of the officers or Directors of the Corporation. The General
Manager shall have the following powers and duties:
(a) If so designated by the Board of Directors, the General
Manager may be an executive officer of the Corporation.
(b) If so directed by the Chief Executive Officer, the President,
or the Board of Directors (or the Executive Committee, if any), the General
Manager may have management of the business of the Corporation and its dealings
and, if so directed, may have general charge of the business affairs and
property of the Corporation, general supervision over its employees and
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agents; provided, however, the General Manager shall be at all times subject to
the control of the Chief Executive Officer, the President or the Board of
Directors (or the Executive Committee, if any).
(c) If so directed by the Chief Executive Officer, the President,
or the Board of Directors (or the Executive Committee, if any), the General
Manager may employ all employees of the Corporation, or delegate such employment
to subordinate officers or division chiefs, and shall have authority to
discharge any person so employed.
(d) The General Manager shall make a report to the Chief Executive
Officer, the. President and the Board of Directors quarterly, or more often if
required to do so, setting forth the result of the operations under his charge,
together with suggestions looking to the improvement and betterment of the
condition of the Corporation, and to perform such other duties as the Board of
Directors shall require.
SECTION 5.14. SALARIES.
The salaries of the officers shall be fixed from time to time by the
Board of Directors; provided, however, 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 5.2 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 5.15. SURETY BONDS.
In the event 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 for all property,
monies, or securities of the Corporation which may come into his hands.
ARTICLE 6
LIMITATION OF LIABILITY AND INDEMNIFICATION
SECTION 6.1. LIMITATION OF LIABILITY OF DIRECTORS.
Directors shall not be liable to the Corporation or its shareholders
for monetary damages for any action taken or any failure to take any action, as
a director, except liability for:
(a) the amount of a financial benefit received by a director to
which he is not entitled;
(b) an intentional infliction of harm on the Corporation or its
shareholders;
(c) a violation of Section 16-10a-842 of the Utah Revised Business
Corporation Act;
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(d) an intentional violation of criminal law. (16-10a-841(1))
SECTION 6.2. INDEMNIFICATION OF DIRECTORS.
Unless otherwise provided in the Articles of Incorporation, the
Corporation shall indemnify any individual made a party to a proceeding because
the individual is or was a director of the Corporation against liability
incurred in the proceeding. Provided, however, the Corporation shall only
indemnify an individual if it has authorized the indemnification in accordance
with Section 16-10a-906(4) of the Utah Revised Business Corporation Act and a
determination has been made in accordance with the procedures set forth in
Section 16-10a-906(2) of the Utah Revised Business Corporation Act that
indemnification is in accordance with the following requirements:
(a) Standard of Conduct. The Corporation shall determine that:
(1) The individual's conduct was in good faith;
(2) the individual reasonably believed that his or her conduct
was in, or not opposed to, the Corporation's best interests; and
(3) in the case of any criminal proceeding, the individual had
no reasonable cause to believe that his or her conduct was unlawful.
(16-10a-902(1))
(b) No Indemnification in Certain Circumstances. The Corporation
shall not indemnify an individual under this Section 6.2:
(1) In connection with a proceeding by or in the right of the
Corporation in which the individual was adjudged liable to the
Corporation; or
(2) in connection with any other proceeding charging that the
individual derived an improper personal benefit, whether or not
involving action in the individual's official capacity, in which
proceeding he or she was adjudged liable on the basis that he or she
derived an improper personal benefit. (16-10a-902(4))
(c) Indemnification in Derivative Actions Limited. Indemnification
permitted under this Section 6.2 in connection with a proceeding by or in the
right of the Corporation is limited to reasonable expenses incurred in
connection with the proceeding. (16-10a-902(5))
SECTION 6.3. ADVANCE PAYMENT OF EXPENSES.
Unless otherwise provided in the Articles of Incorporation, the
Corporation may pay for or reimburse in advance of final disposition of any
proceeding the reasonable expenses incurred by an individual who is a party to a
proceeding because he or she is or was a director of the Corporation if (i) in
accordance with the procedures and standards set forth in Section 16-10a-906(4)
of the Utah Revised Business Corporation Act, an authorization of payment is
made, and (ii) in accordance with the procedures of Section 16-10a-906(2) of the
Utah Revised Business Corporation Act, a determination is made that the
following has occurred:
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(a) Written Affirmation. The individual has furnished to the
Corporation a written affirmation of the individual's good faith belief that the
individual has met the standard of conduct described in Section 6.2 of these
Bylaws.
(b) Written Undertaking. The individual has furnished to the
Corporation a written undertaking, executed personally or on the individual's
behalf, to repay the advance if it is ultimately determined that the individual
did not meet the standard of conduct (which undertaking must be an unlimited
general obligation of the individual but need not be secured and may be accepted
without reference to financial ability to make repayment).
(c) Factual Determination. A determination has been made that the
facts then known to those making the determination would not preclude
indemnification under Section 6.2 of these Bylaws or Part 9 of the Utah Revised
Business Corporation Act. (16-10a-904)
SECTION 6.4. INDEMNIFICATION OF OFFICERS, EMPLOYEES, FIDUCIARIES, AND
AGENTS.
Unless otherwise provided in the Articles of Incorporation, the
Corporation shall indemnify and advance expenses to any individual made a party
to a proceeding because the individual is or was an officer, employee,
fiduciary, or agent of the Corporation to the same extent as to an individual
made a party to a proceeding because the individual is or was a director of the
Corporation, or to a greater extent, if not inconsistent with public policy, if
provided for by general or specific action of the Board of Directors.
(16-10a-907)
SECTION 6.5. 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 16-10a-902,
16-10a-903, or 16-10a-907 of the Utah Revised Business Corporation Act.
Insurance may be procured from any insurance company designated by the Board of
Directors, whether the insurance company is formed under the laws of the State
of Utah 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. (16-10a-908)
ARTICLE 7
EXECUTION OF INSTRUMENTS, BORROWING
OF MONEY AND DEPOSIT OF CORPORATE FUNDS
SECTION 7.1. EXECUTION OF INSTRUMENTS.
Subject to any limitation contained in the Utah Revised Business
Corporation Act, the Articles of Incorporation or these Bylaws, and subject to
any limitations that may be imposed by
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the Board of Directors, the Chief Executive Officer, President, any Vice
President or the Secretary, in the name and on behalf of the Corporation, may
execute and deliver any contract or other instrument. Subject to any limitation
contained in the Utah Revised Business Corporation Act, the Articles of
Incorporation or these Bylaws, the Board of Directors may authorize in writing
any other officer or agent to execute and deliver 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 7.2. LOANS.
No loan or advance 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 7.3. DEPOSITS.
All monies of the Corporation not otherwise employed shall be deposited
from time to time to its credit in such banks 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 7.4. 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 7.5. BONDS AND DEBENTURES.
Every bond or debenture issued by the Corporation shall be evidenced by
an appropriate instrument which shall be signed by the Chief Executive Officer,
President or a Vice President and by the Secretary. 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, shall 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 adopted by the Corporation and issued and delivered as though
the person who signed it or whose facsimile signature has been used thereon had
not ceased to be such officer.
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