Exhibit 2.2
BYLAWS OF
CLIFTON MINING COMPANY
ARTICLE I OFFICES
Section 1.1 Business Office. The principal office of the corporation
shall be located at any place either within or outside the state of Utah as
designated in the corporation's most current annual report filed with the Utah
Division of Corporations and Commercial Code. The corporation may have such
other offices, either within or without the state of Utah, as the board of
directors may designate or as the business of the corporation may require from
time to time. The corporation shall maintain at its principal office a copy of
certain records, as specified in section 2.19 of Article II.
Section 1.2 Registered Office. The registered office of the
corporation, required by section 16-l0a-501 of the Utah Revised Business
Corporation Act (the "Act") or any section of like tenor as from time to time
amended shall be located within Utah and may be, but need not be, identical with
the principal office (if located within Utah). The address of the registered
office may be changed from time to time.
ARTICLE II
SHAREHOLDERS
Section 2.1 Annual Shareholder Meeting. The annual meeting of the
shareholders shall be held within 150 days of the close of the corporation's
fiscal year, at a time and date as is determined by the corporation's 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 day fixed for the annual
meeting shall be a legal holiday in the state of Utah, such meeting shall be
held on the next succeeding business day.
If the election of directors shall not be held on the day designated
herein for any annual meeting of the shareholders, or at any subsequent
continuation after adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as convenient. The failure to hold an annual or special meeting does not affect
the validity of any corporate action or work a forfeiture or dissolution of the
corporation.
Section 2.2 Special Shareholder Meetings. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice, may
be called by the president or by the board of directors and shall be called by
the president at the request of the holders of not less than one- tenth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
Section 2.3 Place of Shareholder Meetings. The board of directors may
designate any place, either within or without the state of Utah, as the place of
meeting for any annual or any special meeting of the shareholders, unless by
written consents, which may be in the form of waivers of notice or otherwise, a
majority of shareholders entitled to vote at the meeting may designate a
different place, either within or without the state of Utah, as the place for
the holding of such meeting. If no designation is made by either the directors
or majority action of the voting shareholders, the place of meeting shall be the
principal office of the corporation.
Section 2.4 Notice of Shareholder Meetings.
(a) Required Notice. Written notice stating the place, day,
and time of any annual or special shareholder meeting shall be
delivered not less than 10 nor more than 60 days before the date of the
meeting, either in person, by any form of electronic communication, by
mail, by private carrier, or by any other manner provided for in the
Act, by or at the direction of the president, the board of directors,
or other persons calling the meeting, to each shareholder of record,
entitled to vote at such meeting and to any other shareholder entitled
by the Act or the articles of incorporation to receive notice of the
meeting. Notice shall be deemed to be effective at the earlier of: (1)
when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid; (2) on the date shown on the
return receipt if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee;
(3) when received; or (4) five days after deposit in the United States
mail, if mailed postpaid and correctly addressed to an address other
than that shown in the corporation's current record of shareholders.
(b) 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, and place, if the new date, time, and place is
announced at the meeting before adjournment. If a new record date for
the adjourned meeting is, or must be fixed (see section 2.8 of this
Article II) or if the adjournment is for more than 30 days, then notice
must be given pursuant to the requirements of paragraph (a) of this
section 2.4, to those persons who are shareholders as of the new record
date.
(c) Waiver of Notice. The shareholder may waive notice of the
meeting (or any notice required by the Act, articles of incorporation,
or bylaws), by a writing signed by the shareholder entitled to the
notice, which is delivered to the corporation (either before or after
the date and time stated in the notice) for inclusion in the minutes or
filing with the corporate records.
(d) Shareholder Attendance. 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.
(e) Contents of Notice. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for
which the meeting is called. Except as provided in this section 2.4(e),
the articles of incorporation, or otherwise in the Act, the notice of
an annual shareholder meeting need not include a description of the
purpose or purposes for which the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange, or other disposition of all, or
substantially all of the corporation's property; (4) the dissolution of the
corporation; or (5) the removal of a director, the notice must so state and, to
the extent applicable, be accompanied by a copy or summary of the: (1) articles
of amendment; (2) plan of merger or share exchange; (3) agreement for the
disposition of all or substantially all of the corporation's property; or (4)
the terms of the dissolution. If the proposed corporate action creates
dissenters' rights, the notice must state that shareholders are, or may be
entitled to assert dissenters' rights, and must be accompanied by a copy of the
provisions of the Act governing such rights.
Section 2.5 Meetings by Telecommunications. Any or all of the
shareholders may participate in an annual or special meeting of shareholders by,
or the meeting may be conducted through the use of, any means of communication
by which all persons participating in the meeting can hear each other during the
meeting. A shareholder participating in a meeting by this means is considered to
be present in person at the meeting.
Section 2.6 Fixing of Record Date. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders, or shareholders entitled to receive payment of any distribution
or dividend, or in order to make a determination of 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 70 days prior to the meeting of
shareholders or the payment of any distribution or dividend. If no record date
is so fixed by the board of directors for the determination of shareholders
entitled to notice of, or to vote at a meeting of shareholders, or shareholders
entitled to receive a share dividend or distribution, or in order to make a
determination of shareholders for any other proper purpose, the record date for
determination of such shareholders shall be at the close of business on:
(a) With respect to an annual shareholder meeting or any
special shareholder meeting called by the board of directors or any
person specifically authorized by the board of directors or these
bylaws to call a meeting, the day before the first notice is delivered
to shareholders;
(b) With respect to a special shareholders' meeting demanded
by the shareholders, the date the first shareholder signs the demand;
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(c) With respect to the payment of a share dividend, the date
the board of directors authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article II, section 2.14), the date the first shareholder
signs a consent; and
(e) With respect to a distribution to shareholders (other than
one involving a repurchase or reacquisition of shares), the date the
board authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section 2.6, such determination
shall apply to any adjournment thereof unless the board of directors fixes a new
record date. A new record date must be fixed if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
Section 2.7 Shareholder List. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make a complete record
of the shareholders entitled to vote at each meeting of shareholders, arranged
in alphabetical order with the address of and the number of shares held by each.
The list must be arranged by voting group (if such exists, see Article II,
section 2.8) 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 days before the meeting for which the list was prepared or
two business days after notice of the meeting is given for which the list was
prepared and continuing through the meeting. The list shall be available at the
corporation's principal office or at a place identified in the meeting notice in
the city where the meeting is to be held. A shareholder, or his agent or
attorney, is entitled, on written demand, to inspect and, subject to the
requirements of section 2.19 of this Article II and sections 16-10a-1602 and
16-10a-1603 of the Act, or any sections of like tenor as from time to time
amended, to inspect and copy the list during regular business hours, at his
expense, 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.
Section 2.8 Shareholder Quorum and Voting Requirements. If the articles
of incorporation or the Act provides for voting by a single voting group on a
matter, action on that matter is taken when voted upon by that voting group.
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. Unless the articles of incorporation, a bylaw adopted pursuant to
section 2.9 of this Article II, or the 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.
If the articles of incorporation or the Act provides for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by another
voting group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, 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.
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 pursuant to section 2.9 of this
Article II, or the Act require a greater number of affirmative votes.
Section 2.9 Increasing Either Quorum or Voting Requirements. For
purposes of this section 2.9, a "supermajority" quorum is a requirement that
more than a majority of the votes of the voting group be present to constitute a
quorum; and a "supermajority" voting requirement is any requirement that
requires the vote of more than a majority of the affirmative votes of a voting
group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend, or delete a bylaw which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the same
quorum requirement and be adopted by the same vote and voting groups required to
take action under the quorum and voting requirement then in effect or proposed
to be adopted, whichever is greater.
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A bylaw that fixes a supermajority quorum or voting requirement for
shareholders may not be adopted, amended, or repealed by the board of directors.
Section 2.10 Proxies. At all meetings of shareholders, a shareholder
may vote in person, or vote by proxy, executed in writing by the shareholder or
by his duly authorized attorney-in-fact. Such proxy shall be filed with the
secretary of the corporation or other person authorized to tabulate votes before
or at the time of the meeting. No proxy shall be valid after 11 months from the
date of its execution unless otherwise provided in the proxy.
Section 2.11 Voting of Shares. Unless otherwise provided in the
articles of incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
Except as provided by specific court order, no shares 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 or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting; provided, however, the prior
sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote 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 2.12 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to accept the vote,
consent, waiver, or proxy appointment or revocation and give it effect
as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation does not correspond to the name of its
shareholder, the corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver, or proxy appointment or
revocation and give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the
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, or proxy
appointment or revocation;
(3) the name signed purports to be that of 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, or proxy appointment or 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, or proxy appointment or revocation; and
(5) 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-owners and the person
signing appears to be acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent,
waiver, or proxy appointment or 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 or
about the signatory's authority to sign for the shareholder.
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(d) The corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, or proxy appointment or revocation in
good faith and in accordance with the standards of this section are not
liable in damages to the shareholder for the consequences of the
acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a
vote, consent, waiver, or proxy appointment or revocation under this
section 2.12 is valid unless a court of competent jurisdiction
determines otherwise.
Section 2.13 Inspectors of Election. There shall be appointed at least
one inspector of the vote. Such inspector shall first take and subscribe an oath
or affirmation faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. Unless
appointed in advance of any such meeting by the board of directors, such
inspector shall be appointed for the meeting by the presiding officer. In the
absence of any such appointment, the secretary of the corporation shall act as
the inspector. No candidate for the office of director (whether or not then a
director) shall be appointed as such inspector. Such inspector shall be
responsible for tallying and certifying each vote, whether made in person or by
proxy.
Section 2.14 Shareholder Action Without Meeting. Any action required or
permitted to be taken at a meeting of the shareholders, except for the election
of directors as set forth in section 2.15 of this Article II, may be taken
without a meeting and without prior notice if one or more consents in writing,
setting forth the action so taken, shall be signed by shareholders 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 with respect
to the subject matter thereof are present. Directors may be elected without a
meeting of shareholders by the written consent of the shareholders holding all
of the shares entitled to vote for the election of directors. 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 Act requires that notice of
the proposed action be given. If the act to be taken requires that notice be
given to nonvoting shareholders, the corporation shall give the nonvoting
shareholders written notice of the proposed action at least ten days before the
action is taken. The 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. A consent signed under this section 2.14 has the effect of a meeting
vote and may be described as such in any document. The written consents are only
effective if received by the corporation within a 60 day period and not revoked
prior to the receipt of the written consent of that number of shareholders
necessary to effectuate such action. Action taken pursuant to a written consent
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 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. Such consents may be executed in any number of counterparts
or evidenced by any number of instruments of substantially similar tenor.
Section 2.15 Vote Required: Election of Directors. The election need
not be by ballot unless any shareholder so demands before the voting begins.
Except as otherwise provided by law, the articles of incorporation, any
preferred stock designation, or these bylaws, all matters other than the
election of directors submitted to the shareholders at any meeting shall be
decided by a majority of the votes cast with respect thereto. At all meetings of
the shareholders at which directors are to be elected, except as otherwise set
forth in any stock designation with respect to the right of the holders of any
class or series of stock to elect additional directors under specified
circumstances, directors shall be elected by a plurality of the votes cast at
the meeting.
Section 2.16 Business at Annual Meeting. At any annual meeting of the
shareholders, only such business shall be conducted as shall have been brought
before the meeting (a) by or at the direction of the board of directors or (b)
by any shareholder of record of the corporation who is entitled to vote with
respect thereto and who complies with the notice procedures set forth in this
section. For business to be properly brought before an annual meeting by a
shareholder, the shareholder, must have given timely notice thereof in writing
to the secretary of the corporation. To be timely, a shareholder's notice shall
be delivered or mailed to and received at the principal executive offices of the
corporation not less than 30 days prior to the date of the annual meeting;
provided, in the event that less than 40 days' notice of the date of the meeting
is given or made to shareholders, to be timely, a shareholder's notice shall be
so received not later than the close of business on the 10th day following the
day on which such notice of the date of the annual meeting was mailed. A
shareholder's notice to the secretary shall set forth as to each matter such
shareholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the corporation's books, of the shareholder of record proposing
such business, (c) the class and number of shares of the corporation's capital
stock that are beneficially owned by such shareholder, and (d) any material
interest of such shareholder in such business. Notwithstanding anything in these
bylaws to the contrary, no business shall be brought before or conducted at an
annual meeting except in accordance with the provisions of this section. The
officer of the corporation or other person presiding at the annual meeting
shall, if the facts so warrant, determine and declare to the meeting that
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business was not properly brought before the meeting in accordance with such
provisions, and if such presiding officer should so determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with such provisions and if such presiding officer should so determine, such
presiding officer shall so declare to the meeting, and any such business so
determined to be not properly brought before the meeting shall not be
transacted.
Section 2.17 Notification of Nominations. Nominations for the election
of directors may be made by the board of directors or by any shareholder
entitled to vote for the election of directors. Any shareholder entitled to vote
for the election of directors at a meeting may nominate persons for election as
directors only if written notice of such shareholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the secretary of the corporation not later than (i) with
respect to an election to be held at an annual meeting of shareholders, 90 days
in advance of such meeting, and (ii) with respect to an election to be held at a
special meeting of shareholders for the election of directors, the close of
business on the seventh day following the date on which of such meeting is first
given to shareholders. Each such notice shall set forth:
(a) the name and address of the shareholder who intends to
make the nomination and of the person or persons to be nominated;
(b) a representation that such shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice;
(c) a description of all arrangements or understandings
between such shareholder and each nominee and nay other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such shareholder;
(d) such other information regarding each nominee proposed by
such shareholder as would have been required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended to be
nominated by the board of directors; and
(e) the consent of each nominee to serve as a director of the
corporation if elected.
The chairman of a shareholder meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing procedure.
Section 2.18 Conduct of Meeting. The board of directors of the
corporation shall be entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary, appropriate, or
convenient. Subject to such rules and regulations of the board of directors, if
any, the chairman of the meeting shall have the right and authority to prescribe
such rules, regulations, and procedures and do all such acts as, in the judgment
of such chairman, are necessary, appropriate, or convenient for the proper
conduct of the meeting, including, without limitation, establishing an agenda or
order of business for the meeting, rules and procedures for maintaining order at
the meeting and the safety of those present, limitations on participation in
such meeting to shareholders of record of the corporation and their duly
authorized and constituted proxies, and such other persons as the chairman shall
permit, restrictions on entry to the meeting after the time fixed for the
commencement thereof, limitations on the time allotted to questions or comments
by participants, regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. Unless, and to the
extent, determined by the board of directors or the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Section 2.19 Shareholder's Rights 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 the shareholders
or board of directors without a meeting, and 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. The corporation shall maintain
appropriate accounting records.
(b) Absolute Inspection Rights of Records Required at
Principal Office. If a shareholder gives the corporation written notice
of his demand at least five business days before the date on which he
wishes to inspect and copy, such shareholder (or his 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:
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(1) its articles or restated articles of
incorporation and all amendments to the articles of
incorporation currently in effect;
(2) its bylaws or restated bylaws and all amendments
to the 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 to shareholders within
the past three years;
(5) a list of the names and business addresses of its
current directors and officers;
(6) the most recent annual report of the corporation
delivered to the Utah Division of Corporations and Commercial
Code; and
(7) all financial statements prepared for periods
ending during the last three years that a shareholder could
request under section 2.20.
(c) Conditional Inspection Right. In addition, 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 such shareholder wishes to inspect and copy, such shareholder
describes with reasonable particularity his purpose and the records he
desires to inspect, and the records are directly connected with his
purpose, such shareholder of the corporation (or his 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 minutes of any meeting of the board
of directors, records of any action of a committee of the
board of directors acting on behalf of the corporation,
minutes of any meeting of the shareholders, and records of
action taken by the shareholders or board of directors without
a meeting, to the extent not subject to inspection under
paragraph (b) of this section 2.19;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier
than the date of the shareholder's demand).
(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, covering the costs of labor and material (including third-party
costs) for copies of any documents provided to the shareholder. The
charge may not exceed the estimated cost of production or reproduction
of the records.
(e). Shareholder Includes Beneficial Owner. For purposes of
this section 2.19, the term "shareholder" shall include a beneficial
owner whose shares are held in a voting trust or by a nominee on his
behalf.
Section 2.20 Financial Statements Shall be Furnished to the
Shareholders. Upon written request of any shareholder, the corporation shall
mail to such shareholder its most recent annual or quarterly financial
statements showing in reasonable detail its assets and liabilities and the
results of its operations.
Section 2.21 Dissenters' Rights. Each shareholder shall have the right
to dissent from and obtain payment for such shareholder's shares when so
authorized by the Act, the articles of incorporation, these bylaws, or in a
resolution of the board of directors.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. Unless the articles of incorporation have
dispensed with or limited the authority of the board of directors, 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.
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Section 3.2 Number. Tenure. and Qualification of Directors. Unless
permitted by the Act, the authorized number of directors shall be not less than
three. The current number of directors shall be as determined (or as amended
from time to time) by resolution adopted from time to time by either the
shareholders or directors. Each director shall hold office until the next annual
meeting of shareholders or until removed. However, if his term expires, he shall
continue to serve until his successor shall have been elected and qualified, or
until there is a decrease in the number of directors. A decrease in the number
of directors does not shorten an incumbent director's term. Unless required by
the articles of incorporation, directors do not need to be residents of Utah or
shareholders of the corporation.
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 this
bylaw 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 or any one director. The person authorized to call special meetings of
the board of directors may fix any place as the place for holding any special
meeting of the board of directors.
Section 3.5 Notice of. and Waiver of Notice for. Special Director
Meetings. Unless the articles of incorporation provide for a longer or shorter
period, notice of any special director meeting shall be given at least two days
prior thereto either orally, in person, by telephone, by any form of electronic
communication, by mail, by private carrier, or by any other manner provided for
in the Act. Any director may waive notice of any meeting. Except as provided in
the next sentence, the waiver must be in writing, signed by the director
entitled to the notice, and filed with the minutes or corporate records. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business and at the beginning of the
meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting, and does not thereafter vote for or assent
to action taken at the meeting. Unless required by the articles of incorporation
or the Act, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
Section 3.6 Director Quorum. A majority of the number of directors 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.
Any amendment to this quorum requirement is subject to the provisions
of section 3.8 of this Article III.
Section 3.7 Directors. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present when the vote is
taken shall be the act of the board of directors unless the articles of
incorporation require a greater percentage. Any amendment which changes the
number of directors needed to take action, is subject to the provisions of
section 3.8 of this Article III.
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.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless: (1) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting business at
the meeting; or (2) his dissent or abstention from the action taken is requested
by such director to be entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement
for the Board of Directors. For purposes of this section 3.8, a "supermajority"
quorum is a requirement that requires more than a majority of the directors in
office to constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of those directors
present at a meeting at which a quorum is present to be the act of the
directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
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(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders); or
(2) if originally adopted by the board of directors, either by
the shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that fixes a
supermajority quorum or supermajority voting requirement for the board of
directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the
board of directors to adopt, amend, or repeal a bylaw that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 Director Action Without a Meeting. Unless the articles of
incorporation 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 sign a written consent describing the action taken, and such consent
is filed with the records of the corporation. Action taken by consent is
effective when the last director signs the consent, unless the consent specifies
a different effective date. A signed consent has the effect of a meeting vote
and may be described as such in any document. Such consent may be executed in
any number of counterparts, or evidenced by any number of instruments of
substantially similar tenor.
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 the 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 him. If cumulative voting is authorized, a director may not be
removed if the number of votes sufficient to elect him under cumulative voting
is voted against his removal. If cumulative voting is not authorized, a director
may be removed only if the number of votes cast to remove him exceeds the number
of votes cast against such removal.
Section 3.11 Board of Director 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, the
shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies, then and until the shareholders act:
(1) the board of directors may fill the vacancy; or
(2) 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.
If the vacant office was held by a director elected by a voting group
of shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders. If two or more
directors are elected by the same voting group, only remaining directors elected
by such voting group are entitled to vote to fill the vacancy of a director
elected by the voting group if it is filled by directors.
A vacancy that will occur at a specific later date (by reason of
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.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualified
or until there is a decrease in the number of directors.
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 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 other
capacity and receiving compensation therefor.
Section 3.13 Director Committees.
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(a) Creation of Committees. Unless the articles of
incorporation provide otherwise, the board of directors may create one
or more committees and appoint members of the board of directors to
serve on them. Each committee must have two or more members, who serve
at the pleasure of the board of directors.
(b) Selection of 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 this Article III to take action).
(c) Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and
3.9 of this Article III, which govern meetings, action without
meetings, notice and waiver of notice, quorum and voting requirements
of the board of directors, apply to committees and their members.
(d) Authority. Unless limited by the articles of
incorporation, 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;
provided, however, a committee may not:
(1) authorize distributions to shareholders;
(2) approve, or propose to shareholders, action that
the Act requires be approved by shareholders;
(3) fill vacancies on the board of directors or on
any of its committees;
(4) amend the articles of incorporation pursuant to
the authority of directors to do so granted by section
16-10a-1002 of the Act or any section of like tenor as from
time to time amended;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring
shareholder approval;
(7) authorize or approve reacquisition of shares,
except according to a formula or method prescribed by the
board of directors; or
(8) authorize or approve the issuance or sale or
contract for sale of shares or determine the designation and
relative rights, preferences, and limitations of a class or
series of shares, except that the board of directors may
authorize a committee (or a senior executive officer of the
corporation) to do so within limits specifically prescribed by
the board of directors.
ARTICLE IV
OFFICERS
Section 4.1 Number of Officers. The officers of the corporation shall
be a president and a secretary, both of whom shall be appointed by the board of
directors. 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.
Section 4.2 Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. If no term is specified, such term shall
continue until the first meeting of the directors held after the next annual
meeting of shareholders. If the appointment of officers shall not be made at
such meeting, such appointment shall be made as soon thereafter as is
convenient. Each officer shall hold office until his successor shall have been
duly appointed and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner provided in section 4.3 of this
Article IV.
Section 4.3 Removal of Officers. Any officer or agent may be removed by
the board of directors or an officer authorized to do so by the board of
directors at any time either before or after the expiration of the designated
term, with or without cause. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Neither the appointment of an
officer nor the designation of a specified term shall create any contract
rights.
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Section 4.4 Chairman, The board of directors may elect one of their
members as chairman who, if so elected, shall preside at all meetings of the
board of directors and shall be a member of the executive committee, if any. In
the absences of a chairman or if no chairman is elected, the president shall
preside at meetings of the board of directors.
Section 4.5 President. The president shall be the principal executive
officer of the corporation and, subject to the control of the board of
directors, shall in general supervise and control all of the business and
affairs of the corporation. The president shall, when present, preside at all
meetings of the shareholders and of the board of directors, if the chairman of
the board is not present. The president may sign, with the secretary or any
other proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments arising in the normal course of business
of the corporation and such other instruments as may be authorized by the board
of directors, 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 board of
directors from time to time.
Section 4.6 Vice-Presidents,. If appointed, in the event of the
president's death or inability to act, the vice-president (or in the event there
be more than one vice-president, the executive vice-president or, in the absence
of any designation, the senior vice-president 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. A
vice-president, if any, may sign, with the secretary or an assistant secretary,
certificates for shares of the corporation the issuance of which has 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 by the president or by the
board of directors.
Section 4.7 Secretary. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the board of directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; (c) be
custodian of the corporate records and of any seal of the corporation and, if
there is a seal of the corporation, see that it is affixed to all documents the
execution of which on behalf of the corporation under its seal is duly
authorized; (d) when requested or required, authenticate any records of the
corporation; (e) keep a register of the post office address of each shareholder
which shall be furnished to the secretary by such shareholders; (f) sign with
the president, or a vice-president, certificates for shares of the corporation,
the issuance of which has been authorized by resolution of the board of
directors; (g) have general charge of the stock transfer books of the
corporation; and (h) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
Section 4.8 Treasurer. The treasurer, if any, and in the absence
thereof of the secretary, shall: (a) have charge and custody of and be
responsible for all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies, or other depositories as shall be selected by the board
of directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the president or by the board of directors. If required by the board
of directors, the treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the board of directors
shall determine.
Section 4.9 Assistant Secretaries and Assistant Treasurers. Any
assistant secretary, 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 has been authorized by a resolution of the board of directors.
Any assistant treasurer shall, if required by the board of directors, give bonds
for the faithful discharge of his duties in such sums and with such sureties as
the board of directors shall determine. Any assistant secretary or assistant
treasurer, in general, shall perform such duties as shall be assigned to them by
the secretary or the treasurer, respectively, or by the president or the board
of directors.
Section 4.10 Salaries. The salaries of the officers shall be fixed from
time to time by the board of directors or by a duly authorized officer.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 Indemnification of Directors. The corporation shall
indemnify any individual made a party to a proceeding because such individual
was a director of the corporation to the extent permitted by and in accordance
with section 16-10a-901, et seq. of the Act or any amendments of successor
sections of like tenor.
Section 5.2 Advance Expenses for Directors. To the extent permitted by
section 16-10a-904 of the Act or any section of like tenor as amended from time
to time, the corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding, if:
(a) the director furnishes the corporation a written
affirmation of his good faith belief that he has met the standard of
conduct described in the Act;
(b) the director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay advances if
it is ultimately determined that he did not meet the standard of
conduct (which undertaking must be an unlimited general obligation of
the director but need not be secured and may be accepted without
reference to financial ability to make repayment); and
(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under
section 5.1 of this Article V or section 16-10a-901 through section
16-10a-909 of the Act or similar sections of like tenor as from time to
time amended.
Section 5.3 Indemnification of Officers. Agents. and Employees Who are
not Directors. Unless otherwise provided in the articles of incorporation, the
board of directors may authorize the corporation to indemnify and advance
expenses to any officer, employee, or agent of the corporation who is not a
director of the corporation, to the extent permitted by the Act.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 Certificates for Shares.
(a) Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the
issuing corporation and that it is formed under the laws of the state
of Utah; the name of the person to whom issued; and the number and
class of shares and the designations of the series, if any, the
certificate represents; and be in such form as determined by the board
of directors. Such certificates shall be signed (either manually or by
facsimile) by the president or a vice-president and by the secretary or
an assistant secretary and may be sealed with a corporate seal or a
facsimile thereof. Each certificate for shares shall be consecutively
numbered or otherwise identified.
(b) Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series
within a class, the designations, relative rights, preferences, and
limitations applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future
series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or
back that the corporation will furnish the shareholder this information
without charge on request in writing.
(c) Shareholder List. The name and address of the person to
whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books
of the corporation.
(d) Transferring Shares. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall
be issued until the former certificate for a like number of shares
shall have been surrendered and canceled, except that in case of a
lost, destroyed, or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the corporation as the board
of directors may prescribe.
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Section 6.2 Shares Without Certificates.
(a) Issuing Shares Without Certificates. Unless the articles
of incorporation provide otherwise, the board of directors may
authorize the issuance of some or all the shares of any or all of its
classes or series without certificates. The authorization does not
affect shares already represented by certificates until they are
surrendered to the corporation.
(b) Written Statement Required. Within a reasonable time after
the issuance or transfer of shares without certificates, the
corporation shall send the shareholder a written statement containing
at minimum:
(1) the name of the issuing corporation and that it
is organized under the laws of the state of Utah;
(2) the name of the person to whom issued; and
(3) the number and class of shares and the
designation of the series, if any, of the issued shares.
If the corporation is authorized to issue different classes of shares
or different series within a class, the written statement shall
describe the designations, relative rights, preferences, and
limitations applicable to each class and the variation in rights,
preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future
series). Alternatively, each written statement may state conspicuously
that the corporation will furnish the shareholder this information
without charge on request in writing.
Section 6.3 Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the record owner of such shares on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
Section 6.4 Restrictions on Transfer of Shares Permitted. The board of
directors (or shareholders) may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire, shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction.
A restriction on the transfer or registration of transfer of shares is
authorized:
(a) to maintain the corporation's status when it is dependent
on the number or identity of its shareholders;
(b) to preserve entitlements, benefits, or exemptions under
federal, state, or local law; and
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares
may:
(a) obligate the shareholder first to offer the corporation or
other persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted shares;
(c) require the corporation, the holders of any class of its
shares, or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable; and
(d) prohibit the transfer of the restricted shares to
designated persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this section 6.4 and such person has knowledge of
the restriction or its existence is noted conspicuously on the front or back of
the certificate or is contained in the written statement required by section 6.2
of this Article VI with regard to shares issued without certificates. Unless so
noted, a restriction is not enforceable against a person without knowledge of
the restriction.
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Section 6.5 Acquisition of Shares. The corporation may acquire its own
shares and unless otherwise provided in the articles of incorporation, the
shares so acquired constitute authorized but unissued shares.
If the articles of incorporation prohibit the reissuance of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired by the corporation, effective upon amendment of the articles of
incorporation, which amendment may be adopted by the shareholders or the board
of directors without shareholder action. The articles of amendment must be
delivered to the Utah Division of Corporations and Commercial Code for filing
and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized
by class and series;
(c) the total number of authorized shares, itemized by class
and series, remaining after reduction of the shares; and
(d) if applicable, a statement that the amendment was adopted
by the board of directors without shareholder action and that
shareholder action was not required.
ARTICLE VII
DISTRIBUTIONS
The corporation may make distributions (including dividends on its
outstanding shares) as authorized by the board of directors and in the manner
and upon the terms and conditions provided by law and in the corporation's
articles of incorporation.
ARTICLE VIII
CORPORATE SEAL
The board of directors may provide for a corporate seal which may have
inscribed thereon any designation including the name of the corporation, Utah as
the state of incorporation, and the words "Corporate Seal."
ARTICLE IX
DIRECTORS CONFLICTING INTEREST TRANSACTIONS
A director's conflicting interest transaction may not be enjoined, be
set aside, or give rise to an award of damages or other sanctions, in a
proceeding by a shareholder or by or in the right of the corporation, solely
because the director, or any person with whom or which the director has a
personal, economic, or other association, has an interest in the transaction,
if:
(a) directors' action respecting the transaction was at any
time taken in compliance with section 16-10a-852 of the Act or any
section of like tenor as amended from time to time;
(b) shareholders' action respecting the transaction was at any
time taken in compliance with section 16-10a-853 of the Act or any
section of like tenor as amended from time to time; or
(c) the transaction, judged according to the circumstances at
the time of commitment, is established to have been fair to the
corporation.
ARTICLE X
AMENDMENTS
The corporation's board of directors may amend or repeal the
corporation's bylaws unless:
(a) the Act or the articles of incorporation reserve this
power exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw; or
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(c) the bylaw either establishes, amends, or deletes, a
supermajority shareholder quorum or voting requirement (as defined in
Article II, section 2.9).
Any amendment which changes the voting or quorum requirement for the
board must comply with Article III, section 3.8, and for the shareholders, must
comply with Article II, section 2.9.
The corporation's shareholders may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its board of
directors.
ARTICLE XI
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors in consultation with the financial and tax advisors of the
corporation.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that such person is the secretary
of Clifton Mining Company, a corporation duly organized and existing under and
by virtue of the laws of the state of Utah; that the above and foregoing bylaws
of said corporation were duly and regularly adopted as such by the board of
directors of said corporation by unanimous consent dated June 11, 1993, and that
the above and foregoing bylaws are now in full force and effect and supersede
and replace any prior bylaws of the corporation.
DATED this 11th day of June, 1993.
/s/ Scott S. Moeller
---------------------------------
Scott S. Moeller, Secretary
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