BYLAWS
OF
ANTENNAS AMERICA, INC.
TABLE OF CONTENTS
ARTICLE I Offices........................................................ 1
ARTICLE II Shareholders................................................... 1
ARTICLE III Board of Directors............................................. 7
ARTICLE IV Officers and Agents............................................ 10
ARTICLE V Stock.......................................................... 13
ARTICLE VI Indemnification of Certain Persons............................. 14
ARTICLE VII Provision of Insurance......................................... 16
ARTICLE VIII Miscellaneous.................................................. 17
Effective: March 25, 1998
BYLAWS
OF
ANTENNAS AMERICA, INC.
ARTICLE I
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Offices
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The principal office of the corporation shall be designated from time to
time by the corporation and may be within or outside of Utah.
The corporation may have such other offices, either within or outside
Utah, as the board of directors may designate or as the business of the
corporation may require from time to time.
The registered office of the corporation required by the Utah Business
Corporation Act to be maintained in Utah may be, but need not be, identical with
the principal office, and the address of the registered office may be changed
from time to time by the board of directors.
ARTICLE II
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Shareholders
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Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held at a time and date fixed by the board of directors of the corporation (or
by the chief executive officer in the absence of action by the board of
directors), for the purpose of electing directors and for the transaction of
such other business as may come before the meeting. If the election of directors
is not held on the day fixed as provided herein for any annual meeting of the
shareholders, or any adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as it may conveniently be held.
A shareholder may apply to the district court in the county in Utah where
the corporation's principal office is located or, if the corporation has no
principal office in Utah, to the district court of the county in which the
corporation's registered office is located to seek an order that a shareholder
meeting be held (i) if an annual meeting was not held within fifteen months
after its last annual meeting, or (ii) if the shareholder participated in a
proper call of or proper demand for a special meeting and notice of the special
meeting was not given within sixty days after the date of the call or the date
the last of the demands necessary to require calling of the meeting was
delivered to the corporation pursuant to ss.16-10a-702(1)(b) of the Utah
Business Corporation Act, or the special meeting was not held in accordance with
the notice.
Section 2. Special Meetings. Unless otherwise prescribed by statute,
special meetings of the shareholders may be called for any purpose by the chief
executive officer or by the board of directors. The chief executive officer
shall call a special meeting of the shareholders if the corporation receives one
or more written demands for the meeting, stating the purpose or purposes for
which it is to be held, signed and dated by holders of shares representing at
least ten percent of all the votes entitled to be cast on any issue proposed to
be considered at the meeting.
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Section 3. Place of Meeting. The board of directors may designate any
place, either within or outside Utah, as the place for any annual meeting or any
special meeting called by the board of directors. A waiver of notice signed by
all shareholders entitled to vote at a meeting may designate any place, either
within or outside Utah, as the place for such meeting. If no designation is
made, or if a special meeting is called other than by the board, the place of
meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting. Written notice stating the place, date, and
time of the meeting shall be given not less than ten nor more than sixty days
before the date of the meeting. The secretary shall be required to give such
notice only to shareholders entitled to vote at the meeting except as otherwise
required by Utah Business Corporation Act.
Notice of a special meeting shall include a description of the purpose or
purposes of the meeting. Notice of an annual meeting need not include a
description of the purpose or purposes of the meeting unless required by the
Utah Business Corporation Act or the corporation's articles of incorporation.
Notice shall be given personally or by mail, private carrier, telegraph,
teletype, electronically transmitted facsimile or other form of wire or wireless
communication by or at the direction of the chief executive officer, the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed and if in a comprehensive
form, such notice shall be deemed to be given and effective when deposited in
the United States mail, properly addressed to the shareholder at his address as
it appears in the corporation's current record of shareholders, with first class
postage prepaid. If notice is given other than by mail, and provided that such
notice is in a comprehensible form, the notice is given and effective on the
date received by the shareholder.
If requested by the person or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporate expense. No notice need be sent
to any shareholder if (i) 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 (ii) 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. In order to be entitled to
receive notice of any meeting, a shareholder shall advise the corporation in
writing of any change in such shareholder's mailing address as shown on the
corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment at the meeting at which the
adjournment is taken. At the adjourned meeting, the corporation may transact any
business which may have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if a new record date is fixed for the
adjourned meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such shareholder. Such waiver shall
be delivered to the corporation for filing with the corporate records. Further,
by attending a meeting either in person or by proxy, a shareholder waives
objection to lack of notice or defective notice of the meeting unless the
shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the shareholder also waives any
objection to consideration at the meeting of a particular matter not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
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Section 5. Fixing of Record Date. For the purpose of determining
shareholders entitled to (i) notice of or vote at any meeting of shareholders or
any adjournment thereof, (ii) receive distributions or share dividends, (iii)
demand a special meeting, or (iv) make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days, and, in case of a meeting of shareholders, not less than
ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed by the
directors, the record date shall be the day before the notice of the meeting is
given to shareholders, or the date on which the resolution of the board of
directors providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this section, 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 120 days after the
date fixed for the original meeting. Unless otherwise specified when the record
date is fixed, the time of day for such determination shall be as of the
corporation's close of business on the record date.
Notwithstanding the above, the record date for determining the
shareholders entitled to take action without a meeting or entitled to be given
notice of action so taken shall be the date a writing upon which the action is
taken is first received by the corporation. The record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of any of the demands pursuant to which the meeting is called.
Section 6. Voting Lists. After a record date is fixed for a shareholders'
meeting, the secretary shall make, at the earlier of ten days before such
meeting or two business days after notice of the meeting has been given, a
complete list of the shareholders entitled to be given notice of such meeting or
any adjournment thereof. The list shall be arranged by voting groups and within
each voting group by class or series of shares, shall be in alphabetical order
within each class or series, and shall show the address of and the number of
shares of each class or series held by each shareholder. For the period
beginning the earlier of ten days prior to the meeting or two business days
after notice of the meeting is given and continuing through the meeting and any
adjournment thereof, this list shall be kept on file at the principal office of
the corporation, or at a place (which shall be identified in the notice) in the
city where the meeting will be held. Such list shall be available for inspection
on written demand by any shareholder (including for the purpose of this Section
6 any holder of voting trust certificates) or the shareholder's agent or
attorney during regular business hours and during the period available for
inspection. The original stock transfer books shall be prima facie evidence as
to who are the shareholders entitled to examine such list or transfer books or
to vote at any meeting of shareholders.
Any shareholder, or the shareholder's agent or attorney may copy the list
during regular business hours and during the period it is available for
inspection, provided (i) the demand is made in good faith and for a purpose
reasonably related to the demanding shareholder's interest as a shareholder,
(ii) the shareholder describes with reasonable particularity the purpose and the
records the shareholder desires to inspect, and (iii) the shareholder pays a
reasonable charge covering the costs of labor and material for such copies, not
to exceed the estimated cost of production and reproduction.
Section 7. Recognition Procedure for Beneficial Owners. The board of
directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth (i) the types of
nominees to which it applies, (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting, (iii) the form of certification and the information to be
contained therein, (iv) if the certification is with respect to a record date,
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the time within which the certification must be received by the corporation, (v)
the period for which the nominee's use of the procedure is effective, and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
Section 8. Quorum and Manner of Acting. A majority of the votes entitled
to be cast on a matter by a voting group represented in person or by proxy shall
constitute a quorum of that voting group for action on the matter. If less than
a majority of such votes are represented at a meeting, a majority of the votes
so represented may adjourn the meeting from time to time without further notice,
for a period not to exceed 120 days for any one adjournment. 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. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, unless the meeting is adjourned and a new record date is set for the
adjourned meeting.
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 within the voting group opposing
the action, unless the vote of a greater number or voting by classes is required
by law or the corporation's articles of incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder may
vote by proxy by signing an appointment form or similar writing, either
personally or by his duly authorized attorney-in-fact. A shareholder may also
appoint a proxy by transmitting or authorizing the transmission of a telegram,
teletype, or other electronic transmission providing a written statement of the
appointment to the proxy, a proxy solicitor, proxy support service organization,
or other person duly authorized by the proxy to receive appointments as agent
for the proxy, or to the corporation. The transmitted appointment shall set
forth or be transmitted with written evidence from which it can be determined
that the shareholder transmitted or authorized the transmission of the
appointment. The proxy appointment form or similar writing shall be filed with
the secretary of the corporation before or at the time of the meeting. The
appointment of a proxy is effective when received by the corporation and is
valid for eleven months unless a longer period is expressly provided in the
appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile, of
an appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to tabulate votes before the proxy exercises his authority under the
appointment, or (ii) other notice of the revocation of the appointment is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. Other notice of
revocation may, in the discretion of the corporation, be deemed to include the
appearance at a shareholders' meeting of the shareholder who granted the proxy
and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless the
appointment is not irrevocable and coupled with an interest and notice of the
death or incapacity is received by the secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his authority under the
appointment.
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The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 11 and any express limitation on the proxy's authority
appearing on the appointment form, the corporation is entitled to accept the
proxy's vote or other action as that of the shareholder making the appointment.
Section 10. Voting of Shares. Each outstanding share, regardless of class,
shall be entitled to one vote, except in the election of directors, and each
fractional share shall be entitled to a corresponding fractional vote on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by the articles of incorporation as permitted by the Utah Business
Corporation Act. Cumulative voting shall not be permitted in the election of
directors or for any other purpose. Each record holder of stock shall be
entitled to vote in the election of directors and shall have as many votes for
each of the shares owned by him as there are directors to be elected and for
whose election he has the right to vote.
At each election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a
finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of redemption
is mailed to the holders 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.
Section 11. Corporation's Acceptance of Votes. 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.
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 to
give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity;
(ii) 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;
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(iii) 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;
(iv) 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;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-tenants or fiduciaries, and the person signing appears to be acting
on behalf of all the co-tenants or fiduciaries; or
(vi) 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 this Section
11.
If shares are registered in the names of two or more persons, whether
fiduciaries, members of a partnership, co-tenants, husband and wife as community
property, voting trustees, persons entitled to vote under a shareholder voting
agreement or otherwise, or if two or more persons, including proxyholders, have
the same fiduciary relationship respecting the same shares, unless the secretary
of the corporation or other officer or agent entitled to tabulate votes is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect:
(i) if only one votes, the act binds all;
(ii) if more than one vote, the act of the majority so voting binds
all;
(iii) if more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately; or
(iv) 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 shall be a majority or even split in
interest.
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.
Neither the corporation nor its officers nor any 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 is
liable in damages for the consequences of the acceptance or rejection.
Section 12. Informal Action by Shareholders. 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 a written consent (or counterparts thereof)
that sets forth the action so taken is received by the corporation and 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. Action taken
under this Section 12 has the same effect as action taken at a meeting of
shareholders and may be so described in any document.
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Action taken pursuant to this Section 12 is not effective unless all
written consents on which the corporation relies for the taking of an action
pursuant to this Section 12 are received by the corporation within a sixty day
period and have not been revoked. Action taken pursuant to this Section 12 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 this Section 12
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 thereto. If any shareholder revokes his
consent as provided for herein prior to what would otherwise be the effective
date, the action proposed in the consent shall be invalid. The record date for
determining shareholders entitled to take action without a meeting is the date
the first shareholder delivers to the corporation a writing upon which the
action is taken.
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 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 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
Business Corporation Act, 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.
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 12 may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the corporation before the effectiveness of the action.
Section 13. Meetings by Telecommunication. Any or all of the shareholders
may participate in an annual or special shareholders' meeting by, or the meeting
may be conducted through the use of, any means of communication by which all
persons participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
Board of Directors
Section 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 its board of directors, except as otherwise
provided in the Utah Business Corporation Act or the corporation's articles of
incorporation.
Section 2. Number, Qualifications and Tenure. The number of directors of
the corporation shall be no less than three or more than nine, as determined by
the board of directors, but no decrease in the number of directors shall have
the effect of shortening the term of any incumbent director. A director shall be
a natural person. A director need not be a resident of Utah or a shareholder of
the corporation.
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Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
following his election and thereafter until his successor shall have been
elected and qualified. Directors shall be removed in the manner provided by the
Utah Business Corporation Act. Any director may be removed by the shareholders
with or without cause, at a meeting called for that purpose. The notice of the
meeting shall state that the purpose or one of the purposes of the meeting is
removal of the director. A director may be removed only if the number of votes
cast in favor of removal exceeds the number of votes cast against removal.
Section 3. Vacancies. Any director may resign at any time by giving
written notice to the corporation. Such resignation shall take effect at the
time the notice is received by the corporation unless the notice specifies a
later effective date. Unless otherwise specified in the notice of resignation,
the corporation's acceptance of such resignation shall not be necessary to make
it effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders at a special meeting called
for that purpose or by the board of directors. A director elected to fill a
vacancy created other than by an increase in the number of directors shall be
elected for the unexpired term of the director's predecessor in office, or for
any lesser period as may be prescribed by the board of directors. If the
directors remaining in office constitute fewer than a quorum of the board, the
directors may fill the vacancy by the affirmative vote of a majority of all
directors remaining in office. If a director is elected to fill a vacancy
created by reason of an increase in the number of directors, then the term of
the director so elected expires at the next shareholders' meeting at which
directors are elected, unless the vacancy is filled by a vote of the
shareholders, in which case the term shall expire on the later of (i) the next
meeting of shareholders at which directors are elected; or (ii) the term
designated for the director at the time of the creation of the position being
filled.
Section 4. Regular Meetings. A regular meeting of the board of directors
shall be held without notice 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, either within or outside Utah, for the holding of additional
regular meetings without other notice.
Section 5. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the chief executive officer or any two
directors. The person or persons authorized to call special meetings of the
board of directors may fix any place, either within or outside Utah, as the
place for holding any special meeting of the board of directors called by them.
Section 6. Notice. Notice of the date, time and place of any special
meeting shall be given to each director at least two days prior to the meeting
by written notice either personally delivered or mailed to each director at his
business address, or by notice transmitted by private courier, telegraph, telex,
electronically transmitted facsimile or other form of wire or wireless
communications. If mailed, such notice shall be deemed to be given and to be
effective on the earlier of (i) five days after such notice is deposited in the
United States mail, properly addressed, with first class postage prepaid, or
(ii) the date shown on the return receipt, if mailed by registered or certified
mail return receipt requested, provided that the return receipt is signed by the
director to whom the notice is addressed. If notice is given by telex,
electronically transmitted facsimile or other similar form of wire or wireless
communication, such notice shall be deemed to be given and to be effective when
sent, and with respect to a telegram, such notice shall be deemed to be given
and to be effective when the telegram is delivered to the telegraph company. If
a director has designated in writing one or more reasonable addresses or
facsimile numbers for delivery of notice to him, notice sent by mail, telegraph,
telex, electronically transmitted facsimile or other form of wire or wireless
communication shall not be deemed to have been given or to be effective unless
sent to such addresses or facsimile numbers, as the case may be.
A director may waive notice of a meeting before or after the time and date
of the meeting by a writing signed by such director. Such waiver shall be
delivered to the corporation for filing with the corporate records, but delivery
and filing are not conditions to the effectiveness of the waiver. Further, a
director's attendance at or participation in a meeting waives any required
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notice to him of the meeting unless at the beginning of the meeting, or promptly
upon the director's 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the number of directors fixed by the
board of directors pursuant to Article III, Section 2 or, if no number is fixed,
a majority of 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.
Section 8. Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
Section 9. Compensation. By resolution of the board of directors, any
director may be paid any one or more of the following: his expenses, if any, of
attendance at meetings, a fixed sum for attendance at each meeting, a stated
salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
Section 10. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors or committee of the board at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless (i) the director objects at the beginning of the
meeting, or promptly upon the director's arrival, to the holding of the meeting
or the transaction of 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 the director's dissent or abstention as to any
specific action taken be entered in the minutes of the meeting, or (iii) the
director causes written notice of his 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 the adjournment of the
meeting. A director may dissent to a specific action at a meeting, while
assenting to others. The right to dissent to a specific action taken at a
meeting of the board of directors or a committee of the board shall not be
available to a director who voted in favor of such action.
Section 11. Committees. By resolution adopted by a majority of all the
directors in office when the action is taken, the board of directors may
designate from among its members an executive committee and one or more other
committees, and appoint one or more members of the board of directors to serve
on them. To the extent provided in the resolution, each committee shall have all
the authority of the board of directors. The committee shall then have full
power within the limits set by the board of directors to adopt any final
resolution setting forth all preferences, limitations and relative rights of
such class or series and to authorize an amendment of the articles of
incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Utah Business
Corporation Act.
Sections 4, 5, 6, 7, 8 and 12 of Article III, which govern meetings,
notice, waiver of notice, quorum, voting requirements and action without a
meeting of the board of directors, shall apply to committees and their members
appointed under this Section 11.
9
Neither the designation of any such committee, the delegation of authority
to such committee, nor any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the board of directors or a
member of the committee in question with his responsibility to conform to the
standard of care set forth in Article III, Section 14 of these bylaws.
Section 12. Informal Action by Directors. Any action required or permitted
to be taken at a meeting of the directors or any committee designated by the
board of directors may be taken without a meeting if a written consent (or
counterparts thereof) that sets forth the action so taken is signed by all of
the directors entitled to vote with respect to the action taken. Such consent
shall have the same effect as action taken at a meeting of directors and may be
described as such in any document. Unless the consent specifies a different
effective date, action taken under this Section 12 is effective at the time the
last director signs a writing describing the action taken, unless, before such
time, any director has revoked that director's consent by a writing signed by
the director and received by the chief executive officer or the secretary of the
corporation.
Section 13. Telephonic Meetings. The board of directors may permit any
director (or any member of a committee designated by the board) to participate
in a regular or special meeting of the board of directors or a committee thereof
through the use of any means of communication by which all directors
participating in the meeting can hear each other during the meeting. A director
participating in a meeting in this manner is deemed to be present in person at
the meeting.
Section 14. Standard of Care. A director shall perform his duties as a
director, including, without limitation, his duties as a member of any committee
of the board, in good faith, in a manner the director reasonably believes to be
in the best interests of the corporation, and with the care an ordinarily
prudent person in a like position would exercise under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated. However, he shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted. A director shall not be liable to the corporation, its
shareholders or any conservator or receiver, or any assignee or
successor-in-interest thereof, for any action taken or any failure to take any
action as a director unless: (i) the director has breached or failed to perform
the duties of the office in compliance with this Section 14; and (ii) the breach
or failure to perform constitutes gross negligence, willful misconduct, or
intentional infliction of harm on the corporation or the shareholders.
The designated persons on whom a director is entitled to rely are (i) one
or more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented, (ii) legal
counsel, public accountant, or other person as to matters the director
reasonably believes to be within such person's professional or expert
competence, or (iii) a committee of the board of directors of which the director
is not a member if the director reasonably believes the committee merits
confidence.
10
ARTICLE IV
----------
Officers and Agents
-------------------
Section 1. General. The officers of the corporation shall be a chairman of
the board, a chief executive officer, a president, one or more vice presidents,
a secretary and a treasurer, each of whom shall be a natural person. One person
may hold more than one office. The board of directors or an officer or officers
authorized by the board may appoint such other officers, assistant officers,
committees and agents, including a chairman of the board, assistant secretaries
and assistant treasurers, as they may consider necessary. Except as expressly
prescribed by these bylaws, the board of directors or the officer or officers
authorized by the board shall from time to time determine the procedure for the
appointment of officers, their authority, duties and their compensation,
provided that the board of directors may change the authority, duties and
compensation of any officer who is not appointed by the board.
Section 2. Appointment and Term of Office. The officers of the corporation
shall be appointed by the board of directors at each annual meeting of the board
held after each annual meeting of the shareholders or as otherwise determined by
the board of directors. If the appointment of officers is not made at such
meeting or if an officer or officers are to be appointed by another officer or
officers of the corporation, such appointments shall be made as determined by
the board of directors or the appointing person or persons. Each officer shall
hold office until the first of the following occurs: his successor shall have
been duly appointed and qualified, his death, his resignation, or his removal in
the manner provided in Section 3.
Section 3. Resignation and Removal. An officer may resign at any time by
giving written notice of resignation to the corporation. The resignation is
effective when the notice is received by the corporation unless the notice
specifies a later effective date.
Any officer or agent may be removed at any time with or without cause by
the board of directors or an officer or officers authorized by the board. Such
removal does not affect the contract rights, if any, with the corporation. An
officer's resignation does not affect the corporation's contract rights, if any,
with the officer. The appointment of an officer or agent shall not in itself
create contract rights.
Section 4. Vacancies. A vacancy in any office, however occurring, may be
filled by the board of directors, or by the officer or officers authorized by
the board, for the unexpired portion of the officer's term. If an officer
resigns and his resignation is made effective at a later date, the board of
directors, or officer or officers authorized by the board, may permit the
officer to remain in office until the effective date and may fill the pending
vacancy before the effective date if the board of directors or officer or
officers authorized by the board provide that the successor shall not take
office until the effective date. In the alternative, the board of directors, or
officer or officers authorized by the board of directors, may remove the officer
at any time prior to the effective date and may fill the resulting vacancy.
Section 5. Chairman Of The Board. The chairman of the board shall preside
at all meetings of the board of directors. The chairman of the board shall not
have the authority to act on behalf of the corporation, or otherwise commit or
bind the corporation, unless specifically authorized by the board of directors
in specific instances.
Section 6. Chief Executive Officer. The chief executive officer shall
preside at all meetings of shareholders. Subject to the direction and
supervision of the board of directors, the chief executive officer shall have
general and active control of its affairs and business and general supervision
of its officers, agents and employees. Unless otherwise directed by the board of
directors, the chief executive officer shall attend in person or by substitute
11
appointed by him, or shall execute on behalf of the corporation written
instruments appointing a proxy or proxies to represent the corporation, at all
meetings of the shareholders of any other corporation in which the corporation
holds any stock. On behalf of the corporation, the chief executive officer may
in person or by substitute or by proxy execute written waivers of notice and
consents with respect to any such meetings. At all such meetings and otherwise,
the chief executive officer, in person or by substitute or proxy, may vote the
stock held by the corporation, execute written consents and other instruments
with respect to such stock, and exercise any and all rights and powers incident
to the ownership of said stock, subject to the instructions, if any, of the
board of directors. The chief executive officer shall have custody of the
treasurer's bond, if any. The chief executive officer shall have such additional
authority and duties as are appropriate and customary for the office of chief
executive officer, except as the same may be expanded or limited by the board of
directors from time to time.
Section 7. President. The president shall be the chief operating officer
of the corporation and shall report to and be subject to the direction and
supervision of the chief executive officer. In the absence of a chief executive
officer, the president shall have the powers and perform the duties of the chief
executive officer.
Section 8. Vice Presidents. The vice presidents shall assist the chief
executive officer and shall perform such duties as may be assigned to them by
the chief executive officer or by the board of directors. In the absence of the
president, the vice president, if any (or, if more than one, the vice presidents
in the order designated by the board of directors, or if the board makes no such
designation, then the vice president designated by the chief executive officer,
or if neither the board nor the chief executive officer makes any such
designation, the senior vice president as determined by first election to that
office), shall have the powers, and perform the duties, of the president.
Section 9. Secretary. The secretary shall (i) prepare and maintain as
permanent records the minutes of the proceedings of the shareholders and the
board of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors or any committee thereof, (ii) see that all
notices are duly given in accordance with the provisions of these bylaws and as
required by law, (iii) serve as custodian of the corporate records and of the
seal of the corporation and affix the seal to all documents when authorized by
the board of directors, (iv) keep at the corporation's registered office or
principal place of business a record containing the names and addresses of all
shareholders in a form that permits preparation of a list of shareholders
arranged by voting group and by class or series of shares within each voting
group, that is alphabetical within each class or series and that shows the
address of, and the number of shares of each class or series held by, each
shareholder, unless such a record shall be kept at the office of the
corporation's transfer agent or registrar, (v) maintain at the corporation's
principal office the originals or copies of the corporation's articles of
incorporation, bylaws, minutes of all shareholders' meetings and records of all
action taken by shareholders without a meeting for the past three years, 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, a list of the names
and business addresses of the current directors and officers, a copy of the
corporation's most recent corporate report filed with the Secretary of State,
and financial statements showing in reasonable detail the corporation's assets
and liabilities and results of operations for the last three years, (vi) have
general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent, (vii) authenticate records of the corporation,
and (viii) 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 by the chief
executive officer or by the board of directors. Assistant secretaries, if any,
shall have the same duties and powers, subject to supervision by the secretary.
The directors and/or shareholders may however respectively designate a person
other than the secretary or assistant secretary to keep the minutes of their
respective meetings.
12
Any books, records, or minutes of the corporation may be in written form
or in any form capable of being converted into written form within a reasonable
time.
Section 10. Treasurer. The treasurer shall be the principal financial
officer of the corporation, shall have the care and custody of all funds,
securities, evidences of indebtedness and other personal property of the
corporation and shall deposit the same in accordance with the instructions of
the board of directors. Subject to the limits imposed by the board of directors,
he shall receive and give receipts and acquittances for money paid in on account
of the corporation, and shall pay out of the corporation's funds on hand all
bills, payrolls and other just debts of the corporation of whatever nature upon
maturity. He shall perform all other duties incident to the office of the
treasurer and, upon request of the board, shall make such reports to it as may
be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of directors or the
chief executive officer. The assistant treasurers, if any, shall have the same
powers and duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account as
required by the Utah Business Corporation Act, prepare and file all local, state
and federal tax returns, prescribe and maintain an adequate system of internal
audit and prepare and furnish to the chief executive officer and the board of
directors statements of account showing the financial position of the
corporation and the results of its operations.
13
ARTICLE V
---------
Stock
-----
Section 1. Certificates. The board of directors shall be authorized to
issue any of its classes of shares with or without certificates. The fact that
the shares are not represented by certificates shall have no effect on the
rights and obligations of shareholders. If the shares are represented by
certificates, such shares shall be represented by consecutively numbered
certificates signed, either manually or by facsimile, in the name of the
corporation by the chief executive officer and one other officer designated by
the board of directors. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is issued, such certificate may nonetheless be issued by
the corporation with the same effect as if he were such officer at the date of
its issue. All certificates shall be consecutively numbered and the names of the
owners, the number of shares, and the date of issue shall be entered on the
books of the corporation. Each certificate representing shares shall state upon
its face:
(i) That the corporation is organized under the laws of
Utah;
(ii) The name of the person to whom issued;
(iii) The number and class of the shares and the designation of the
series, if any, the certificate represents;
(iv) If the corporation is authorized to issue different classes of
shares or different series within a class, a summary on the front or the
back, of the designations, preferences, limitations, and relative rights
applicable to each class, the variations and preferences, limitations, and
relative rights determined for each series, and the authority of the board
of directors to determine variations for any existing or future classes or
series. Alternatively, a conspicuous statement, on the front or the back,
that the corporation will furnish to the shareholder, on request in
writing, and without charge, information concerning the designations,
preferences, limitations, and relative rights applicable to each class,
the variations in preferences, limitations, and relative rights determined
for each series, and the authority of the board of directors to determine
variations for any existing or future classes or series; and
(v) Any restrictions imposed by the corporation upon the transfer of
the shares represented by the certificate.
If shares are not represented by certificates, within a reasonable time
following the issue or transfer of such shares, the corporation shall send the
shareholder a complete written statement of all of the information required to
be provided to holders of uncertificated shares by the Utah Business Corporation
Act.
Section 2. Consideration for Shares. Certificated or uncertificated shares
shall not be issued until the shares represented thereby are fully paid. The
board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed, contracts or arrangements
for services to be performed, or other securities of the corporation. The terms
and conditions of any tangible or intangible property or benefit to be provided
in the future to the corporation, including contracts or arrangements for
services to be performed, shall be set forth in writing. However, the failure to
set forth the terms and conditions in writing does not affect the validity of
the issuance of any shares issued for any consideration, or their status as
fully paid and nonassessable shares.
14
Section 3. Lost Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may in
its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
Section 4. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and the place designated by the board of
directors.
Except as otherwise expressly provided in Article II, Sections 7 and 11,
and except for the assertion of dissenters' rights to the extent provided in
Part 13 of the Utah Business Corporation Act, the corporation shall be entitled
to treat the registered holder of any shares of the corporation as the owner
thereof for all purposes, and the corporation shall not be bound to recognize
any equitable or other claim to, or interest in, such shares or rights deriving
from such shares on the part of any person other than the registered holder,
including, without limitation, any purchaser, assignee or transferee of such
shares or rights deriving from such shares, unless and until such other person
becomes the registered holder of such shares, whether or not the corporation
shall have either actual or constructive notice of the claimed interest of such
other person.
Section 5. Transfer Agent, Registrars and Paying Agents. The board may, at
its discretion, appoint one or more transfer agents, registrars and agents for
making payment upon any class of stock, bond, debenture or other security of the
corporation. Such agents and registrars may be located either within or outside
Utah. They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
ARTICLE VI
----------
Indemnification of Certain Persons
----------------------------------
Section 1. Indemnification. For purposes of Article VI, a "Proper Person"
means any person (including the estate or personal representative of a director)
who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether formal or informal, by reason of
the fact that he is or was a director, officer, employee, fiduciary or agent of
the corporation, or 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.
The corporation shall indemnify any Proper Person against reasonably incurred
expenses (including attorneys' fees), judgments, penalties, fines (including any
excise tax assessed with respect to an employee benefit plan) and amounts paid
in settlement reasonably incurred by him in connection with such action, suit or
proceeding if it is determined by the groups set forth in Section 4 of this
Article that (i) he conducted himself in good faith, (ii) he reasonably believed
that his conduct was in, or not opposed to, the corporation's best interests,
and (iii) in the case of any criminal proceeding, that he had no reasonable
cause to believe his conduct was unlawful.
15
A director's conduct with respect to an employee benefit plan for a
purpose the director 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 in (ii) of this Section 1.
No indemnification shall be made under this Article VI to a Proper Person
with respect to any claim, issue or matter in connection with a proceeding by or
in the right of a corporation in which the Proper Person was adjudged liable to
the corporation or in connection with any other proceeding charging that the
Proper Person derived an improper personal benefit, whether or not involving
action in an official capacity, in which he was adjudged liable on the basis
that he derived an improper personal benefit. Official capacity means, when used
with respect to a director, the office of director and, when used with respect
to any other Proper Person, the office in a corporation held by the officer, or
the employment, fiduciary or agency relationship undertaken by the employee,
fiduciary, or agent on behalf of the corporation. Official capacity does not
include service for any other domestic or foreign corporation or other person or
employee benefit plan. Further, indemnification under this Section in connection
with a proceeding brought by or in the right of the corporation shall be limited
to reasonable expenses, including attorneys' fees, incurred in connection with
the proceeding.
Section 2. Right to Indemnification. The corporation shall indemnify any
Proper Person who was wholly successful, on the merits or otherwise, in defense
of any proceeding, or in the defense of any claim, issue, or matter in the
proceeding, to which he was entitled to indemnification under Section 1 of this
Article VI against expenses (including attorneys' fees) reasonably incurred by
him in connection with the proceeding without the necessity of any action by the
corporation other than the determination in good faith that the defense has been
wholly successful.
Section 3. Effect of Termination of Action. The termination of any action,
suit or proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent is not, of itself, determinative that the
person seeking indemnification did not meet the standards of conduct described
in Section 1 of this Article VI. Entry of a judgment by consent as part of a
settlement shall not be deemed an adjudication of liability, as described in
Section 2 of this Article VI.
Section 4. Groups Authorized to Make Indemnification Determination. Except
where there is a right to indemnification as set forth in Sections 1 or 2 of
this Article VI or where indemnification is ordered by a court in Section 5, any
indemnification shall be made by the corporation only as determined in the
specific case by a proper group that indemnification of the Proper Person is
permissible under the circumstances because he has met the applicable standards
of conduct set forth in Section 1 of this Article VI. This determination shall
be made by (i) the board of directors by a majority vote of those present at a
meeting at which a quorum is present, which quorum shall consist of directors
not parties to the proceeding ("Quorum"); (ii) if a Quorum cannot be obtained,
the determination shall be made by a majority vote of a committee of the board
of directors designated by the board, 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; (iii) by special legal counsel selected by a vote of the board of
directors or the committee in the manner specified in this Section 4 or, if a
Quorum of the full board of directors cannot be obtained and a committee cannot
be designated, by special legal counsel selected by a majority vote of the full
board (including directors who are parties to the action); or (iv) by the
shareholders, by a majority of the votes entitled to be cast by holders of
qualified shares present in person or by proxy at a meeting.
Authorization of indemnification and advance of expenses shall be made in
the same manner as the determination that indemnification or advance of expenses
is permissible except that, if the determination that indemnification or advance
of expenses is permissible is made by special legal counsel, authorization of
indemnification and advance of expenses shall be made by the body that selected
such counsel.
16
Section 5. Court-Ordered Indemnification. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article VI, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If a court determines that the Proper Person is
entitled to indemnification under Section 2 of this Article VI, the court shall
order indemnification including the Proper Person's reasonable expenses incurred
to obtain court-ordered indemnification. If the court determines that such
Proper Person is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not he met the standards of conduct
set forth in Section 1 of this Article VI or was adjudged liable in the
proceeding, the court may order such indemnification as the court deems proper
except that in connection with a proceeding by or in the right of the
corporation in which the Proper Person was adjudged liable to the corporation,
or in connection with any other proceeding charging that the Proper Person
derived an improper personal benefit, whether or not involving action in his
official capacity, in which proceeding he was adjudged liable on the basis that
he derived an improper personal benefit, indemnification shall be limited to
reasonable expenses incurred.
Section 6. Advance of Expenses. Reasonable expenses (including attorneys'
fees) incurred in defending an action, suit or proceeding as described in
Section 1 may be paid by the corporation to any Proper Person in advance of the
final disposition of such action, suit or proceeding upon receipt of (i) a
written affirmation of such Proper Person's good faith belief that he has met
the standards of conduct prescribed by Section 1 of this Article VI, (ii) a
written undertaking, executed personally or on the Proper Person's behalf, to
repay such advances if it is ultimately determined that he did not meet the
prescribed standards of conduct (the undertaking shall be an unlimited general
obligation of the Proper Person but need not be secured and may be accepted
without reference to financial ability to make repayment), and (iii) a
determination is made by the proper group (as described in Section 4 of this
Article VI) that the facts as then known to the group would not preclude
indemnification. Determination and authorization of payments shall be made in
the same manner specified in Section 4 of this Article VI.
Section 7. Additional Indemnification to Certain Persons Other Than
Directors. In addition to the indemnification provided to officers, employees,
fiduciaries or agents because of their status as Proper Persons under this
Article, the corporation may also indemnify and advance expenses to them if they
are not directors of the corporation to a greater extent than is provided in
these bylaws, if not inconsistent with public policy, and if provided for in the
corporation's articles of incorporation, by general or specific action of its
board of directors, or by contract.
Section 8. Witness Expenses. The sections of this Article VI do not limit
the corporation's authority to pay or reimburse expenses incurred by a director
in connection with an appearance as a witness in a proceeding at a time when he
has not been made a named defendant or respondent in the proceeding.
17
ARTICLE VII
-----------
Provision of Insurance
----------------------
By action of the board of directors, notwithstanding any interest of the
directors in the action, the corporation may purchase and maintain insurance, in
such scope and amounts as the board of directors deems appropriate, on behalf of
any 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
in that capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of Article VI or applicable law. Any such insurance may be
procured from any insurance company designated by the board of directors of the
corporation, whether such insurance company is formed under the laws of Utah or
any other jurisdiction of the United States or elsewhere, including any
insurance company in which the corporation has an equity interest or any other
interest, through stock ownership or otherwise.
ARTICLE VIII
------------
Miscellaneous
-------------
Section 1. Seal. The board of directors may adopt a corporate seal, which
shall be circular in form and shall contain the name of the corporation and the
words, "Seal, Utah".
Section 2. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
Section 3. Amendments. The board of directors shall have power, to the
maximum extent permitted by the Utah Business Corporation Act, to make, amend
and repeal the bylaws of the corporation at any regular or special meeting of
the board unless the shareholders, in making, amending or repealing a particular
bylaw, expressly provide that the directors may not amend or repeal such bylaw.
The shareholders also shall have the power to make, amend or repeal the bylaws
of the corporation at any annual meeting or at any special meeting called for
that purpose.
Section 4. Receipt Of Notices By The Corporation. Notices, shareholder
writings consenting to action, and other documents or writings shall be deemed
to have been received by the corporation when they are actually received: (i) at
the registered office of the corporation in Utah; (ii) at the principal office
of the corporation (as that office is designated in the most recent document
filed by the corporation with the secretary of state for Utah designating a
principal office) addressed to the attention of the secretary of the
corporation; (iii) by the secretary of the corporation wherever the secretary
may be found; or; (iv) by any other person authorized from time to time by the
board or directors or the chief executive officer to receive such writings,
wherever such person is found.
Section 5. Gender. The masculine gender is used in these bylaws as a matter
of convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
Section 6. Conflicts. In the event of any irreconcilable conflict between
these bylaws and either the corporation's articles of incorporation or
applicable law, the latter shall control.
Section 7. Definitions. Except as otherwise specifically provided in these
bylaws, all terms used in these bylaws shall have the same definition as in the
Utah Business Corporation Act.
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