ARTICLES OF MERGER
OF
TERRA SYSTEMS, INC. WITH AND INTO
TERRA MERGER SUBSIDIARY, INC.
The undersigned natural person, being at least eighteen years
of age, acting on behalf of a corporation under the Utah Revised
Business Corporation Act, adopts the following Articles of Merger
for such corporation:
ARTICLE I
Under the plan and agreement of merger, Terra Systems, Inc.,
a Utah corporation, will merge with and into Terra Merger
Subsidiary, Inc., a Utah corporation, which is a wholly-owned
subsidiary of Xullux, Inc., a Utah corporation. Terra Merger
Subsidiary, Inc. shall be the corporation surviving the merger.
The terms and conditions of the merger are set forth in the
attached "Merger Agreement Among Xullux, Inc., Terra Merger
Subsidiary, Inc., and Terra Systems, Inc."
ARTICLE II
The plan of merger was submitted to the sole shareholder of
Terra Merger Subsidiary, Inc. by the board of directors in
accordance with the provision of the Utah Revised Business
Corporation Act, and the total number of undisputed votes cast for
the plan was one. This number was sufficient for approval.
The undersigned declares that the facts herein stated are true
as of May 10, 1996.
TERRA MERGER SUBSIDIARY, INC.
/s/ Wayne Hanson
BY: Wayne Hanson, President
LETTER OF INTENT
I
This 10th day of April , 1996, Terra Systems, Inc., a
Utah corporation ("Terra") and XULLUX, Inc., a Utah corporation
("XUL") hereby express their intent to carry out the transaction
described herein. This Letter of Intent serves to outline the
principal terms of a proposed reorganization by Terra and XUL. This
proposal is conditioned upon a completion of an investigation of
the feasibility of the businesses to be reorganized and the
negotiation and execution of a definitive agreement.
1. Reorganization. Terra and XUL will enter into a plan and
agreement of reorganization (the "Agreement"). Both parties will
decide during the due diligence process which reorganization format
will be the best structure for this transaction. The transaction
(the "Reorganization")will be structured to qualify as a tax free
reorganization under the provisions of 368(a) of the Internal
Revenue Code of 1986. Following closing of the Reorganization the
surviving business will change its name to better reflect its
business.
2. Exchange Ratio. Pursuant to the Agreement the
shareholders of Terra will be issued a number of shares equal to
approximately ninety-four percent (94%) of the issued and
outstanding shares of XUL and the existing shareholders of XUL will
own approximately six percent (6%) of the issued and outstanding
shares of XUL. Dal Bagley will return for cancellation 4,000,000
shares of XUL common stock registered in his name.
3. Restricted Shares. All shares issued to shareholders of
Terra in connection with the Reorganization will be issued pursuant
to an exemption from the registration requirements of the
Securities Act of 1933 and will be restricted. Such shares will
bear a restrictive legend and available for transfer only upon
compliance with applicable law.
4. Further Documentation. As soon as practicable, Terra and
XUL shall cause to be prepared the Agreement pursuant to which
parties shall enter into a binding contract with the intent
expressed in this Letter of Intent and to set forth such other
representations, warranties, covenants and agreements as may be
agreed upon by all parties.
5. Shareholders Meetings. A meeting of the shareholders of
Terra shall be held to approval and adopt a plan of reorganization.
XUL represents that it is not required and does not intend to seek
the approval of shareholders.
6. Access to Information. From the date of this Letter of
Intent to the date of execution of the Agreement and to the date of
closing of such Agreement, XUL and Terra shall during normal
business hours, allow access by each other to books, records,
properties, management, auditors and such other information as may
be pertinent to the corporation requesting such information. Each
party will cooperate fully with all due diligence investigations
performed by the other party. Subject to the necessity of
performing adequate due diligence, the parties will endeavor to
interrupt the day-to-day business of each other only to the extent
reasonably necessary to obtain necessary information.
7. Anticipated Conditions. In addition to approval of the
Reorganization by Terra's shareholders and XUL's board of
directors, it is anticipated that the Reorganization will be
subject to the following conditions:
(a) The Reorganization shall be documented in a manner
acceptable to each party and its counsel. Officers of XUL and
Terra will sign and deliver certificates warranting the
representations set out in the definitive Reorganization
Agreement. The certificate from the officers of XUL will be
as to best knowledge except for the period February 17, 1995
to the current date for which period the certificate shall be
unqualified.
(b) Any required waivers or consent from lenders,
secured parties or other third parties shall have been
obtained.
(c) There shall have been no material adverse change in
any party's business or financial condition and each party's
business shall have continued to have been conducted in its
ordinary course, and neither party will enter into or consent
to any extraordinary transactions or issue securities without
the other party's written consent.
(d) Each party shall have been afforded an opportunity
to make a reasonable investigation of each other party's
business and financial condition and the results of such
investigation shall be acceptable to each party.
8. Expense of Merger. Each party hereto shall pay all of its
costs associated with the Reorganization and other matters
discussed herein unless such costs are expressly assumed by the
other party in writing.
9. Public Announcement. After execution of this Letter of
Intent, the parties may issue public announcements disclosing the
terms of this Letter of Intent and the transaction contemplated by
this Letter of Intent. The public announcements shall be approved
by both Terra and XUL prior to its issuance.
10. Absence of Contract. Except as to paragraphs 8 and 9, it
is understood that this letter is not a contract and merely
represents the parties understanding with respect to the proposed
Reorganization of XUL and Terra, is not binding on either party,
does not contain all matters upon which agreement must be reached
in order for the Reorganization to be consummated and creates no
right in favor of either party. A binding commitment with respect
to the Reorganization will result only from the execution of a
definitive agreement, subject to the conditions expressed therein.
No person, firm, or corporation, whether a party to this Letter of
Intent or otherwise, may take any action or refrain from taking
action to its or their detriment in reliance upon this instrument.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Letter of Intent to be executed on the day and year first above
written.
TERRA:
Terra Systems, Inc., a Utah
corporation
/s/ Wayne Hanson
By : Wayne Hanson, President
XUL :
XULLUX, Inc., a Utah corporation
/s/ Ray Lutz
By: Ray Lutz, President
UNANIMOUS CONSENT OF THE
BOARD OF DIRECTORS OF
TERRA MERGER SUBSIDIARY, INC.
The undersigned, being all of the directors of Terra Merger
Subsidiary, Inc., do hereby unanimously adopt the following resolution:
RESOLVED, that the Company shall recommend to its
shareholder that the Company execute, deliver and perform the
Merger Agreement Among Xullux, Inc., Terra Merger Subsidiary,
Inc. and Terra Systems, Inc.: and
FURTHER RESOLVED, that the officers of the Company are
hereby authorized and directed to execute all documents and
take all actions necessary to accomplish the foregoing.
DATED this 8th day of May, 1996.
/s/ Wayne G. Hanson
By: Wayne G. Hanson, President
UNANIMOUS CONSENT OF THE
SHAREHOLDERS OF
TERRA SYSTEMS, INC.
The undersigned, being all of the shareholders of Terra
Systems, Inc., do hereby unanimously adopt the following
resolutions:
RESOLVED, that the attached Merger Agreement among
Xullux, Inc., Terra Merger Subsidiary, Inc. and Terra Systems,
Inc. is hereby approved.
This resolution may be executed in multiple counterparts
which when combined to contain the signatures of all the
shareholders shall constitute the approved action of the
shareholders.
DATED this 1st day of May, 1996.
____/s/_____________
Leonard Kent Harmon
___/s/______________
Glade Stringer
___/s/______________
Wayne G. Ranson
__/s/_______________
Leonard Howe
___/s/______________
Valgene Blackburn
___/s/______________
Howard H. Hucks
___/s/______________
Alan Summerhays
___/s/______________
Clayton Timothy
___/s/______________
Dale Snyder
BOARD OF DIRECTORS OF
TERRA MERGER SUBSIDIARY, INC.
The undersigned, being all of the directors of Terra Merger
Subsidiary, Inc., do hereby unanimously adopt the following resolution:
RESOLVED, that the Company shall recommend to its
shareholder that the Company execute, deliver and perform the
Merger Agreement Among Xullux, Inc., Terra Merger Subsidiary,
Inc. and Terra Systems, Inc.: and
FURTHER RESOLVED, that the officers of the Company are
hereby authorized and directed to execute all documents and
take all actions necessary to accomplish the foregoing.
DATED this 1st day of May, 1996.
_/s/________________
Kent Harmon
___/s/______________
Glade Stringer
___/s/______________
Wayne G. Ranson
.
TABLE OF CONTENTS
Page
MERGER AGREEMENT ............................... 1
1. Definitions ................................ 1
2. Basic Transaction............................. 3
(a) The Merger ............................. 3
(b) The Closing.......................... 3
(c) Actions at the Closing...................... 3
(d) Effect of Merger......................... 3
(i) General........................... 3
(ii Articles of Incorporation.................. 3
)
(ii Bylaws........................... 4
i)
(iv Directors and Officers................... 4
)
(v) Conversion of Terra Shares.................. 4
(vi Cancellation of Shares.................... 4
)
(e) Closing of Transfer Records..................... 4
3. Representations and Warranties of Xul................... 4
(a) Organization, Qualification, and Corporate 4
Power...........
(b) Capitalization.......................... 4
(c) Authorization of Transaction.................... 5
(d) Noncontravention.......................... 5
(e) Securities Filings........................ 5
(f) Financial Statements........................ 5
(g) Events Subsequent to Most Recent Fiscal Quarter 5
End..........
(h) Undisclosed Liabilities....................... 5
(i) Brokers' Fees........................... 5
(j) Disclosure............................ 5
4. Representations and Warranties of 6
Terra....................
(a) Organization, Qualification, and Corporate 6
Power.............
(b) Capitalization.......................... 7
(c) Authorization of Transaction.................... 7
(d) Noncontravention.......................... 7
(e) Events Subsequent to Most Recent Fiscal Quarter 7
End..........
(f) Undisclosed Liabilities....................... 7
(g) Brokers' Fees........................... 8
(h) Disclosure............................ 8
5. Covenants............................... 8
(a) General.............................. 8
(b) Notices and Consents....................... 8
(c) Regulatory Matters and Approvals................. 8
(i) Utah Revised Corporation Act.................. 8
(d) Operation of Business...................... 8
(e) Full Access........................... 9
(f) Notice of Developments..................... 9
6. Conditions to Obligation to Close..................... 9
(a) Conditions to Obligation of Xul and the Merger 9
Subsidiary........
(b) Conditions to Obligation of 10
Terra...................
7. Termination............................. 11
(a) Termination of Agreement..................... 11
(b) Effect of Termination....................... 12
8. Miscellaneous............................ 12
(a) Survival............................. 12
(b) Press Releases and Public 12
Announcements................
(c) No Third-Party Beneficiaries.................... 13
(d) Entire Agreement.......................... 13
(e) Succession and Assignment...................... 13
(f) Counterparts............................ 13
(g) Headings........................... 13
(h) Notices............................. 13
(i) Governing Law.......................... 14
(j) Amendments and Waivers..................... 14
(k) Severability.......................... 14
(1) Expenses........................... 14
(m) Construction........................... 14
(n) Incorporation of Exhibits and 15
Schedules.................
LIST OF EXHIBITS................................ 16
A. Articles of Merger.
B. Amended Articles of Incorporation of Xullux, Inc.
C. Amendment to the Bylaws of Xullux, Inc.
D. A true and correct list of the shareholders of Xullux,
Inc.
E. A true and correct list of the shareholders of Terra.
MERGER AGREEMENT
Agreement entered into on May 1,1996, by and among Xullux, Inc, a Utah
corporation ("Xul"), Terra Merger Subsidiary, a Utah corporation which is a
wholly-owned Subsidiary of Xul (the "Merger Subsidiary"), and Terra Systems,
Inc. aUtahcorporation ("Terra"). Xul, the Merger Subsidiary, and Terra are
referred tocollectivelyherein as the "Parties."
This Agreement contemplates a transaction in
which Xul will acquire all of the outstanding capital
stock of Terra in exchange for shares of Xul through a
reverse subsidiary merger of Terra with and into the
Merger Subsidiary.
Now, therefore, in consideration of the premises
and the mutual promises herein made, and in
consideration of the representations, warranties, and
covenants herein contained, the Parties agree as
follows.
1 Definitions.
.
"Articles of Merger" has the meaning set forth in 2(c)
below.
"Closing" has the meaning set forth in 2(b) below.
"Closing Date" has the meaning set forth in 2(b) below.
"Confidential Information " means any information
concerning the businesses and affairs of Terra that is not
already generally available to
the public.
"Disclosure Schedule" has the meaning set forth in 3
and 4 below.
"Effective Time" has the meaning set forth in 2(d)(i)
below.
"GAAP" means United States generally accepted accounting
principles as in effect
from time to time.
"Knowledge" means actual knowledge.
"Merger" has the meaning set forth in 2(a) below.
"Merger Subsidiary " has the meaning set forth in the
preface above.
"Most Recent Fiscal Quarter End" means December 31,
1995.
"Ordinary Course of Business" means the ordinary course
of business consistent with past custom and practice
(including with respect to quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person " means an individual, a partnership, a
corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated
organization, or a governmental
entity (or any department, agency, or political subdivision
thereof).
"Public Report" has the meaning set forth in 3(e)
below.
"Requisite Stockholder Approval" means the affirmative
vote of the holders of a majority of Terra Shares in
favor of this Agreement and the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Exchange Act" means the Securities Exchange
Act of 1934, as amended.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, or other security interest, other
than (a) mechanic's, materialman's, and similar liens,
(b) liens for taxes not yet due and payable or for taxes
that the taxpayer is contesting in good faith through
appropriate proceedings, (c) purchase money liens and
liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary
Course of Business and not incurred in connection with the
borrowing of money.
"Special Meeting" has the meaning set forth in
5(c)(i) below.
"Subsidiary " means any corporation with respect to
which a specified Person (or a Subsidiary thereof)
owns a majority of the common stock or has
the power to vote or direct the voting of sufficient
securities to elect a majority of the directors.
"Surviving Corporation" has the meaning set forth in
2(a) below.
"Terra" has the meaning set forth in the preface above.
"Terra Share" means any share of the Common Stock,
$0.001 par value per share of
Terra.
"Terra Stockholder" means any Person who or which holds
any Terra Shares.
"Xul" has the meaning set forth in the preface above.
"Xul Shares" means any share of the Common Stock, $.001
par value per share, of Xul.
2. Basic Transaction.
(a) The Merger. On and subject to the terms
and conditions of this Agreement, Terra will
merge with and into the Merger Subsidiary (the
"Merger") at the Effective Time.
The Merger Subsidiary shall be the corporation
surviving the Merger (the "Surviving Corporation").
(b) The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall
take place at the offices of Hunter & Brown,
One Utah Center,201 South Main Street, Suite 1300,
Salt Lake City, Utah, 84111, commencing at 9:00 a.m.
local time on the second business day following the
satisfaction or waiver of all conditions to
the obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to
actions the respective Parties will take at the Closing itself)
or such other date as the Parties may mutually determine (the
"Closing Date"); provided, however, that the Closing Date
shall be no earlier than May 1, 1996.
(c) Actions at the Closing. At the Closing, (i)
Terra will deliver to Xul and the Merger Subsidiary the various
certificates, instruments, and documents referred to in
6(a) below, (ii) Xul and the Merger Subsidiary will deliver
to Terra the various certificates, instruments, and documents
referred to in 6(b) below, (iii) Terra and the Merger Subsidiary
will file with the Division of Corporations and Commercial Code
of the State of Utah Articles of Merger in the form attached
hereto as Exhibit A (the "Articles of Merger"), and (iv) Xul
will deliver to Terra shares of Xul common stock in the manner
provided below in this 2.
(d) Effect of Merger.
(i) General. The Merger shall become
effective at the time (the "Effective Time") Terra and the
Merger Subsidiary file the Articles of Merger with the Division
of Corporations and Commercial Code of the state of Utah.
The Merger shall have the effect set forth in the Utah Revised
Business Corporation Act. The Surviving Corporation may, at any
time after the Effective Time, take any action (including executing
and delivering any document) in the name and on behalf of either
Terra or the Merger Subsidiary in order to carry out and effectuate
transactions contemplated by this Agreement.
(ii) Articles of Incorporation. The Articles of Incorporation
of Xul shall be amended and restated in the manner set out in Exhibit
B including a change of name to Terra Systems, Inc.
(iii) Bylaws. The Bylaws of Xul shall be amended
and restated at and as of the Effective Time in the manner
set out in Exhibit C.
(iv) Directors and Officers. The directors and
officers of Terra shall become the directors and officers of
Xul at and as of the Effective Time (retaining their
respective positions and terms of office).
(v) Conversion of Terra Shares. At and as of the
Effective Time, each Terra Share shall be converted into one
share of Xul common stock, par value $0.001. No Terra
Share shall be deemed to be outstanding or to have
any rights other than those set forth above in this 2(d)(v)
after the Effective Time.
(vi) Cancellation of Shares. At the Closing, Edward
Dallin Bagley ("Bagley") shall in consideration of $1 return
to Xul, for cancellation, certificates registered in his
name representing 4,000,000 shares of Xul's common stock.
(e) Closing of Transfer Records. After close of business
on the Closing Date, transfers of Terra Shares outstanding prior
to the Effective Time shall not be made on the stock transfer
books of the Surviving Corporation.
3. Representations and Warranties of Xul. Xul represents
and warrants to Terra and its shareholders that the statements
contained in this 3 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing
Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this 3),
except as set forth in the disclosure schedule accompanying this
Agreement and initialed by the Parties (the "Disclosure
Schedule"). The Disclosure Schedule will be delivered by Xul no
later than seven days prior to the Closing Date and will be
arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this 3.
(a) Organization, Qualification, and Corporate Power. Xul
and the Merger Subsidiary are corporations duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. Xul is duly authorized to
cop-duct business and is in good standing under the laws of each
jurisdiction where such qualification is required, except where
the lack of such qualification would not have a material adverse
effect on the financial condition of Xul taken as a whole or on
the ability of the Parties to consummate the transactions
contemplated by this Agreement. Xul has full corporate power and
authority to carry on the businesses in which it is engaged and
to own and use the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of Xul
consists of 50,000,000 shares of common stock, par value $0.001, of
which 6,960,000 shares are issued and outstanding. All of the
issued and outstanding Xul Shares have been duly authorized and are
validly issued, fully paid, and nonassessable. There are no
outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or oilier
contracts or commitments that could require Xul to issue, sell, or
otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to Xul.
Attached as Exhibit D is a true and correct list of the
shareholders of Xul.
(c) Authorization of Transaction. Xul has full power and
authority (including fall corporate power and authority) to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of Xul, enforceable in accordance with its
terms and conditions.
(d) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Xul is subject
or any provision of the charter or bylaws of Xul or (ii) conflict
with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or
other arrangement to which Xul is a party or by which it is bound
or to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets);
other than in connection with the provisions of the Utah Revised
Business Corporation Act, the Securities Exchange Act, the
Securities Act, and the state securities laws, Xul does not need
to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
(e) Securities Filings. Xul has made all filings with the
SEC or Utah Securities Division that it has been required to make
under the Securities Act, the Securities Exchange Act and the
laws of the state of Utah (collectively the "Public Reports").
Each of the Public Reports has complied with the Securities Act,
the Securities Exchange Act and the laws of the state of Utah in
all material respects. None of the Public Reports, as of their
respective dates, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements made therein, in light of the circumstances
under which they were made, not misleading. Xul has delivered to
Terra a correct and complete copy of each Public Report (together
with all exhibits and schedules thereto and as amended to date).
(f) Financial Statements.Xul hereby delivers the following
financial statements to Terra:
Audited financial statements dated as of and for the
period ended September 30, 1995, and unaudited
financial statements as of and for the period ended
December 31, 1995.
Those financial statements (including the related
notes and schedules) have been prepared inaccordance
with GAAP applied on a consistent basis throughout the
periods covered thereby and present fairly the
financial condition of Xul as of the indicated dates
and the results of operations of Xul for the indicated
periods are correct and complete in all respects, and
are consistent with the books and records of Xul;
provided, however, that the interim statements are
subject to normal year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Quarter End.
Since the Most Recent Fiscal Quarter End, there has not been any
material adverse change in the business, financial condition,
operations, results of operations, or future prospects of Xul.
(h) Undisclosed Liabilities. Xul has no liability (whether
known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due),
including any liability for taxes, except for (i) liabilities set
forth on the face of the balance sheet dated as of the Most
Recent Fiscal Quarter End (rather than in any notes thereto) and
(ii) liabilities which have arisen after the Most Recent Fiscal
Quarter End in the Ordinary Course of Business (none of which
results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law).
(i) Brokers' Fees. Xul has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this
Agreement.
(j) Disclosure. The disclosures Xul has made to Terra
regarding Xul do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances
under which they will be made, not misleading.
4. Representations and Warranties of Terra. Terra
represents and warrants to Xul that the statements contained in
this 4 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this 4),
except as set forth in the Disclosure Schedule. The Disclosure
Schedule will be delivered by Terra no later than seven days
prior to the Closing Date and will be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained
in this 4.
(a) Organization, Qualification, and Corporate Power. Terra
is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation.
Terra is duly authorized to conduct business and is in good
standing, under the laws of each jurisdiction where such
qualification is required, except where the lack of such
qualification would not have a material adverse effect on the
financial condition of Terra taken as a whole or on the ability
of the Parties to consummate the transactions contemplatedby this
Agreement. Terra has full corporate power and authority to carry
on the businesses in which it is engaged and to own and use the
properties owned and used by it.
(b) Capitalization.The entire authorized capital stock of Terra
consists of 50,000,000 shares of common stock, par value $0.001, of
which 48,000,000 shares are issued and outstanding. All of the
issued and outstanding Terra Shares have been duly authorized and
are validly issued, fully paid, and non assessable. There are no
outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require Terra to issue, sell,
or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to
Terra. Attached as Exhibit E is a true and correct list of the
shareholders of Terra.
(c) Authorization of Transaction. Terry has full power and
authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of Terra, enforceable in accordance with its
terms and conditions.
(d) Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any constitution, statue,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which Terra is subject or any provision of the
charter or bylaws of Terra or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which Terra is
a party or by which it is bound or to which any of its assets is
subject (or result in the imposition of any Security Interest upon
any of its assets); other than in connection with the provisions of
the Utah Revised Business Corporation Act, the Securities Exchange
Act, the Securities Act, and the state securities laws, Terra does
not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
(e) Events Subsequent to Most Recent Fiscal Quarter End. Since
the Most Recent Fiscal Quarter End, there has not been any material
adverse change in the business, financial condition, results of
operations, or future prospects of Terra.
(f) Undisclosed Liabilities. Terra has no liability (whether
known or unknown, whether asserted or unasserted, whether absolute
or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any
liability for taxes, except for (i) liabilities set forth on the
face of the balance sheet dated as of the Most Recent Fiscal
Quarter End (rather than any notes thereto) and (ii) liabilities
which have arisen after the Most Recent Fiscal Quarter End in the
Ordinary Course of Business (none of which results from, arises out
of, relates to, is in the nature of, or was caused by any breach of
contract, breach of warranty, tort, infringement, or violation of
law).
(g) Brokers' Fees. Terra has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
(h) Disclosure. The disclosures Terra has made to Xul regarding
Terra do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they will be made, not misleading.
5. Covenants. The Parties agree as follows with respect to the
period from and after the execution of this Agreement.
(a) General. Each of the Parties will use its best efforts to
take all action and to do all things necessary in order to
consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in 6 below).
(b) Notices and Consents. Each of the Parties will give any
notices to third parties, and will use its best efforts to obtain
any third party consents, that the other party may request in order
to consummate the transactions contemplated hereby.
(c) Regulatory Matters and Approvals. Each of the Parties will
give any notices to, make any filings with, and use its best
efforts to obtain any authorizations, consents, and approvals of
governments and governmental agencies in connection with the
matters referred to above. Without limiting the generality of the
foregoing:
(i) Utah Revised Corporation Act. Terra will call a
special meeting of its stockholders (the "Special
Meeting") as soon as practicable in order that the
stockholders may consider and vote upon the adoption of
this Agreement and the approval of the Merger in
accordance with the Utah Revised Corporation Act.
(d) Operation of Business. Xul will not (and will not cause or
permit any of its Subsidiaries to) engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course
of Business. Without limiting the generality of the foregoing:
None of Xul and its Subsidiaries will authorize or effect
any change in its charter or bylaws;
(ii) none of Xul and its Subsidiaries will grant any
options, warrants, or other rights to purchase or
obtain any of its capital stock or issue, sell, or
otherwise dispose of any of its capital stock (except
upon the conversion or exercise of options, warrants,
and other rights currently outstanding.);
(iii) none of Xul and its Subsidiaries will declare,
set aside, or pay any dividend or distribution with
respect to its capital stock;
(iv) none of Xul and its Subsidiaries will issue any
note, bond, or other debt security or create, incur,
assume, or guarantee any indebtedness for borrowed
money or capitalized lease obligation outside the
Ordinary Course of Business;
(v) none of Xul and its Subsidiaries will impose any
Security interest upon
any of its assets outside the Ordinary Course of
Business;
(vi) none of Xul and its Subsidiaries will make any
capital investment in, make any loan to, or acquire the
securities or assets of any other Person; and
(vii) none of Xul and its Subsidiaries will commit to
any of the foregoing.
(e) Full Access. Each of the Parties hereto will permit
representatives of the other Parties to have full access at all
reasonable times, and in a manner so as not to interfere with
normal business operations, to all premises, properties, personnel,
books, records (including tax records), contracts, and documents of
or pertaining to them. Each of athe Parties will treat and hold as
such any Confidential information it receives from any of athe
other Parties in the course of the reviews contemplated by this
5(3), will not use any of the Confidential Information except in
connection with this Agreement, and , if this Agreement is
terminated for any reason whatsoever agrees to return to the other
Parties all tangible embodiments (and all copies) thereof which are
in its possession.
(f) Notice of Developments. Each Party will give prompt written
notice to the others of any material adverse development causing a
breach of any of its own representations and warranties in 3 and
4 above. No disclosure by any party pursuant to this 5(h),
however, shall be deemed to amend or supplement the Disclosure
Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of Xul and the Merger Subsidiary.
The obligation of each of Xul and the Merger Subsidiary to
consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in 3 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) Terra shall have performed and complied with all of
its covenants hereunder in all material respects through
the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling,
or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause
any of the transactions contemplated by this Agreement to
be rescinded following consummation, (C) affect adversely
the right of Xul to own the capital stock of the
Surviving Corporation and its Subsidiaries, or (D) affect
adversely the right of the Surviving Corporation and its
Subsidiaries to own its assets and to operate its
businesses (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect).
(iv) Terra shall have delivered to Xul and the Merger Subsidiary
a certificate to the effect that each of the conditions specified
above in 6(a)(i)-(v) is satisfied in all respects;
(v) all actions to be taken by Terra in connection with
consummation of the other transactions contemplated hereby and all
certificates, opinion, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Xul and the Merger
Subsidiary; and
(vi) the President and Secretary of Terra shall each deliver to
Xul a certificate which states that to the best of each of their
knowledge the representations and warranties of Terra are true and
correct.
Xul and Merger Subsidiary may waive any condition specified in
this 6(a) if they execute a writing so stating at or prior to
the Closing.
(b) Conditions to Obligation of Terra The obligation of
Terra to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the
following conditions:
(i) the representations and warranties set forth in 3 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) each of Xul and the Merger Subsidiary shall have performed
and complied with all of its covenants hereunder in all material
respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling
or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause
any of the transactions contemplated by this Agreement to
be rescinded following consummation, (C) affect adversely
the right of Xul to own the capital stock of the
Surviving Corporation and to control the Surviving
Corporation and its Subsidiaries, or (D) affect adversely
the right of any of the Surviving Corporation and its
Subsidiaries to own its assets and to operate its
businesses (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(iv) each of Xul and the Merger Subsidiary shall have
delivered to Terra a certificate to the effect that each
of the conditions specified above in 6(b)(i)-(vii) is
satisfied in all respects;
(v) this Agreement and the Merger shall have received
the Requisite Stockholder Approval;
(vi.) all actions to be taken by Xul and the Merger
subsidiary in connection with consummation of the
transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to Terra;
(vii) all directors and officers of Xul shall deliver
resignations form office; and
(viii) the President and Secretary of Xul shall each
deliver to Terra a certificate which states that to the
best of each of their knowledge the representations and
warranties of Xul are true and correct.
Terra may waive any condition specified in this 6(b) if it
executes a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. Any of the Parties may terminate
this Agreement with the prior authorization of its board of
directors (whether before or after stockholder approval) as
provided below.
(i) the Parties may terminate this Agreement by mutual
written consent at
any time prior to the Effective Time;
(ii) Xul and the Merger Subsidiary may terminate this
Agreement by giving written notice to Terra at any time
prior to the Effective Time (A) in the even Terra has
breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Xul or
the Merger subsidiary has notified Terra of the breach, and
the breach has continued without cure for a period of 30
days after the notice of breach or (B) if the Closing shall
not have occurred on or before 30 days after the date of
this Agreement, by reason of the failure of any condition
precedent under 6(a) hereof (unless the failure results
primarily from Xul or the Merger Subsidiary breaching any
representation, warranty, or covenant contained in this
Agreement);
(iii) Terra may terminate this Agreement by giving written
notice to Xul and the Merger Subsidiary at any time prior to
the Effective time (A) in the event Xul or the Merger
Subsidiary has breached any material representation,
warranty, or covenant contained in this Agreement in any
material respect, Terra has notified Xul and the Merger
subsidiary of the breach, and the breach has continued
without cure for a period of 30 days after the notice of
the breach or (B) if the Closing shall not have occurred on
or before 30 days after the date of this Agreement,. Be
reason of the failure of any condition precedent under
6(b) hereof (unless the failure results primarily from Terra
breaching any representation, warranty, or covenant
contained in this Agreement);
(iv) any Party may terminate this Agreement by giving written
notice to the other Parties at any time after the Special Meeting
in the event this Agreement and the Merger fail to receive the
Requisite Stockholder Approval.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to 7(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any
other Party (except for any liability of any Party then in breach);
provided, however, that the confidentiality provisions contained in
5(e) above shall survive any such termination.
8. Miscellaneous.
(a) Survival. The representations and warranties will
survive the Effective Time for a period of one year.
(b) Press Releases and Public Announcements. No Party
shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the
prior written approval of the other Parties; provided, however,
that any Party may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its best efforts to advise the
other Party prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted assigns;
provided, however, that the provisions in 2 above concerning
issuance of Xul shares to Terra Stockholders are intended for the
benefit of Terra Stockholders.
(d) Entire Agreement. This Agreement (including the
documents incorporated by reference herein) constitutes the
entire agreement among the Parties and Supersedes any prior
understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they related in any way
to the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein
and their respective successors and permitted assigns. No Party
may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of
the other parties.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
(g) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice,
request, demand, claim or other communication hereunder shall be
deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set
forth below:
If to Terra: Copy to:
Wayne Hanson
P.O. Box 238
Payson, Utah 84651
If to Xul: Copy to:
Mr. E. Dallin Bagley
8 Shadow Wood Lane
Sandy, Utah 84092
If to the Merger Subsidiary: Copy to:
Mr. E. Dallin Bagley
8 Shadow Wood Lane
Sandy, Utah 84092
Any Party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at
the address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner
herein set forth.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Utah without giving effect to any choice or conflict of law
provision or rule (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Utah.
(j) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective
Time with the prior authorization of their respective boards of
directors; provided, however, that any amendment effected
subsequent to stockholder approval will be subject ot the
restrictions contained in the Utah Revised Corporation Act. No
amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by all of the
Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the term or
provision in any other situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless
the context otherwise requires. The word "including" shall mean
including without limitation.
(n) Incorporation of Exhibits and Schedules. The
Exhibits and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on [as of] the date first above written.
XULLUX, INC.
/s/_Ray Lutz_________________
By:_Ray Lutz, President________
TERRA MERGER SUBSIDIARY
/s/_Wayn Hanson____________
By: Wayne Hanson, President_
TERRA SYSTEMS, INC.
/s/ Wayn Hanson__
By: Wayn Hanson, President___
ARTICLES OF MERGER
OF
TERRA SYSTEMS, INC. WITH AND INTO
TERRA MERGER SUBSIDIARY, INC.
The undersigned natural person, being at lease eighteen
years of age, acting on behalf of a corporation under the Utah
Revised Business Corporation Act, adopts the following Articles
of Merger for such corporation:
ARTICLE I
Under the plan and agreement of merger, Terra Systems, Inc.,
a Utah corporation, will merge with and into Terra Merger
Subsidiary, inc., a Utah corporation, which is a wholly-owned
subsidiary of Xullux, Inc., a Utah corporation. Terra Merger
Subsidiary, Inc. shall be corporation surviving the merger.
The terms and conditions of the merger are set forth in the
attached "Merger Agreement Among Xullux, Inc., Terra Merger
Subsidiary, Inc., and Terra Systems, Inc."
ARTICLE II
The plan of merger was submitted to the sole shareholder of
Terra Merger Subsidiary, Inc. by the board of directors in
accordance with the provision of the Utah Revised Business
Corporation act, and the total number of undisputed votes cast
for the plan was one. This number was sufficient for approval.
The undersigned declares that the facts herein stated are true as
of May _____, 1996.
TERRA MERGER SUBSIDIARY, INC.
By:_______________________________
Its:______________________________
__
ARTICLES OF MERGER
OF
TERRA SYSTEMS, INC. WITH AND INTO
TERRA MERGER SUBSIDIARY, INC.
The undersigned natural person, being at lease eighteen
years of age, acting on behalf of a corporation under the Utah
Revised Business Corporation Act, adopts the following Articles
of Merger for such corporation:
ARTICLE I
Under the plan and agreement of merger, Terra Systems, Inc.,
a Utah corporation, will merge with and into Terra Merger
Subsidiary, inc., a Utah corporation, which is a wholly-owned
subsidiary of Xullux, Inc., a Utah corporation. Terra Merger
Subsidiary, Inc. shall be corporation surviving the merger.
The terms and conditions of the merger are set forth in the
attached "Merger Agreement Among Xullux, Inc., Terra Merger
Subsidiary, Inc., and Terra Systems, Inc."
ARTICLE II
The plan of merger was submitted to the sole shareholder of
Terra Merger Subsidiary, Inc. by the board of directors in
accordance with the provision of the Utah Revised Business
Corporation act, and the total number of undisputed votes cast
for the plan was one. This number was sufficient for approval.
The undersigned declares that the facts herein stated are true as
of May _____, 1996.
TERRA SYSTEMS, INC.
Fka XULLIX, INC.
By:_______________________________
Its:______________________________
__
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TERRA SYSTEMS, INC. FORMERLY KNOWN AS XULLUX, INC.
ARTICLE I
The name of this corporation is Terra Systems, Inc.
ARTICLE II
The purpose for which the Company is organized is to conduct
any lawful act, activities, and pursuits for which a corporation
may be organized under the Utah Revised Business Corporation Act.
Its duration shall be perpetual.
ARTICLE III
The corporation is authorized to issue one class of shares,
to be designated common stock. The total number of shares of
common stock that this corporation is authorized to issue is
100,000,000. The common stock shall have a par value of $0.001
per share. The common stock shall have unlimited voting rights
as provided in the Utah Revised Business Corporation Act and
shall be entitled to receive the net assets of the corporation
upon dissolution.
ARTICLE IV
To the fullest extent permitted by the Utah Revised Business
Corporation Act or any other applicable law as now in effect or
as it may hereafter be amended, a director of this corporation
shall not be personally liable to the corporation or its
shareholders for monetary damages for any action taken or any
failure to take any action as a director.
The undersigned declares that the facts herein stated are true as
of May _____, 1996.
TERRA MERGER SUBSIDIARY, INC.
By:_______________________________
Its:______________________________
__
ARTICLES OF RESTATEMENT
Pursuant to Section 16-10a-1007 of the Utah Revised Business
Corporation Act. The undersigned Corporation adopts the following
Articles of Restatement:
FIRST: The Corporation was formerly known as Xullux, Inc.
The corporation is now known as Terra Systems, Inc.
SECOND: The text of the Restated Articles of Incorporation
are attached and incorporated by this reference.
THIRD: Restated Articles of Incorporation were adopted
__________________, 1996.
FOURTH: The number of shares of Common stock issued and
outstanding and entitled to vote on said Restated Articles of
Incorporation was __________________ issued and
___________________ outstanding. ___________________ shares were
indisputably represented at the Meeting of Shareholders.
FIFTH: _____________ shares voted for said amendment and
restatement, and___________ shares voted against said amendment
and restatement.
These Restated Articles of Incorporation supersede the
original Articles of Incorporation and all amendments thereto.
Neither any amendment no appeal of this Article IV, nor the
adoption of any provision in these Articles of Incorporation
inconsistent with this Article IV, shall eliminate or reduce the
effect of this Article IV in respect of any matter occurring, or
any cause of action, suit, or claim that, but for this Article
IV, would accrue or arise, prior to such amendment, repeal, or
adoption of an inconsistent provision.
REVISED BYLAWS
OF
TERRA SYSTEMS, INC.
(FORMERLY KNOWN AS XULLUX, INC.)
TO BE ADOPTED FOLLOWING THE MERGER OF TERRA SYSTEMS, INC.
WITH AND INTO TERRA MERGER SUSIDIARY, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I NAME, REGISTERED OFFICE, AND REGISTERED
AGENT
1. Name............................... 1
1
1. Business Office........................... 1
2
1. Registered Office........................... 1
3
ARTICLE II SHAREHOLDERS
2. Annual Shareholder Meetings...................... 1
1
2. Special Shareholder Meetings...................... 2
2
2. Place of Shareholder Meeting.................... 2
3
2. Notice of Shareholder Meeting..................... 2
4
2. Fixing of Record Date......................... 4
5
2. Shareholder List......................... 5
6
2. Shareholder Quorum and Voting 5
7 Requirements...............
2. Increasing Either Quorum or Voting 6
8 Requirements.............
2. Proxies............................... 6
9
2. Voting of Shares........................... 7
10
2. Corporation's Acceptance of 7
11 Votes....................
2. Informal Action by Shareholders.................... 8
12
2. Voting For Directors......................... 9
13
2. Shareholder's Right to Inspect Corporate 9
14 Records............
2. Financial Statements shall be Furnished to the
15
Shareholders............................ 10
2. Dissenter's Rights.......................... 11
16
ARTICLE III BOARD OF DIRECTORS
3. General Powers........................... 11
1
3. Number, Tenure, and Qualifications of 11
2 Directors.............
3. Regular Meetings of the Board of 12
3 Directors................
3. Special Meetings........................... 12
4
3. Notice of, and waiver of Notice for, Special 12
5 Director Meetings..........................
3. Director Quorum......................... 13
6
3. Directors, Manner of Acting........................ 13
7
3. Establishing a "Supermajority " Quorum or Voting
8
Requirement for the Board of 14
Directors..................
3. Director Action Without a 14
9 Meeting...................
3. Removal of Directors.......................... 15
10
3. Board of Director Vacancies........................ 15
11
3. Director Compensation.......................... 15
12
3. Director Committees.......................... 16
13
3. Chairman............................ 17
14
ARTICLE IV OFFICERS
4. Number of Officers.......................... 17
1
4. Appointment and Term of Office.................... 17
2
4. Removal of Officers......................... 17
3
4. President.............................. 18
4
4. The Vice-Presidents......................... 18
5
4. The Secretary............................. 18
6
4. The Treasurer............................. 19
7
4. Assistant Secretaries and Assistant 19
8 Treasurers.................
4. Salaries.............................. 20
9
4. Other Officers............................ 20
10
4. Surety Bonds.............................. 20
11
ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS,
AGENTS, AND EMPLOYEES
5. Indemnification of Directors....................... 20
1
5. Advance Expenses for Directors.................... 21
2
5. Indemnification of Officers, Agents and
3
Employees Who Are Not Directors................... 22
ARTICLE V1 CERTIFICATES FOR SHARES AND THEIR TRANSFER
6. Certificates for Shares......................... 22
1
6. Shares Without Certificates....................... 23
2
6. Registration of the Transfer of 23
3 Shares...................
6. Restriction on Transfer of Shares 23
4 Permitted.................
6. Acquisition of Shares......................... 24
5
6. Lost or Destroyed Certificates..................... 25
6
ARTICLE VII DISTRIBUTIONS
7. Distributions............................ 25
1
ARTICLE VIII CORPORATE SEAL
8. Corporate Seal............................ 25
1
ARTICLE IX CONTRACTS, LOANS, CHECKS AND DEPOSITS
9. Contracts.............................. 25
1
9. Loans................................. 26
2
9. Deposits............................... 26
3
9. Checks and Drafts............................ 26
4
9. Bonds and Debentures........................ 26
5
ARTICLE X EMERGENCY BYLAWS
10 Emergency Bylaws.......................... 26
.1
ARTICLE XI AMENDMENTS
11 Amendments............................ 27
.1
ARTICLE XII EXEMPTION FROM CONTROL SHARES ACQUISITION 28
ACT
REVISED BYLAWS OF
TERRA SYSTEMS, INC.
ARTICLE I
NAME, OFFICES AND REGISTERED AGENT
1.1 Name.
The name of this corporation is Terra Systems, Inc.
1.2 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 company's most recent document on
file with the Utah Department of Commerce, Division of
Corporations and Commercial Code (the "Division") providing
information regarding the principal office of the
corporation. 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 2.14 of Article II of these
bylaws.
1.3 Registered Office.
The registered office of the corporation, required by
Section 501 of the Utah Revised Business Corporation Act
(the "Act") shall be located within Utah. The address of the
registered office may be changed from time to time.
ARTICLE II
SHAREHOLDERS
2.1 Annual Shareholder Meeting.
The annual meeting of the shareholders shall be held on
the 1st day of May, in each year, beginning with the year
1997, at the hour of 10:00 o'clock a.m., or at such other
time on such other day within such month as shall be fixed
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 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.
Failure to hold an annual meeting shall not work a
forfeiture or dissolution of the corporation.
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.
2.3 Place of Shareholder Meeting.
The board of directors may designate any place for any
annual or special meeting of the shareholders, unless a
majority of the shareholders entitled to vote at the meeting
agree by written consents (which may be in the form of
waiver of notice or otherwise) to another location, which
may be either within or without the State of Utah. If no
designation is made, the place of meeting shall be the
principal office of the corporation.
2.4 Notice of Shareholder Meeting.
(a) Required notice.
Written notice stating the place, day and hour of
any annual or special shareholder meeting shall be
delivered not less than 10 nor more than 60 days before
the date of the meeting, either personally or by mail,
by or at the direction of the president, the board of
directors, or other persons calling the meeting, to
each shareholder of record, 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. But if a new record date for the
adjourned meeting is, or must be fixed then notice must
be given pursuant to the requirements of paragraph (a)
of this 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.
A shareholders'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;
(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.
(d) Contents of Notice.
The notice of each special shareholder meeting
shall include a description of the purposes for
which the meeting is called. Except as provided
in this 2-4(d), or as provided in the
corporation's articles, 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 be accompanied by
respectively a copy or summary of the:
(1) Articles of amendment;
(2) Plan of merger or share exchange;
and
(3) Transaction for disposition of all
the corporation's property.
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 Part 13 of the Act. If the
corporation issues, or authorizes the issuance of shares for
promissory notes of for promises to render services in the
future, the corporation shall report in writing to all the
shareholders the number of shares authorized or issued, and
the consideration received with or before the notice of the
next shareholder meeting. Likewise, if the corporation
indemnifies or advances expenses to a director, this shall
be reported to all the shareholders with or before notice of
the next shareholder's meeting.
2.5 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 date on which the particular action, requiring
such determination of shareholders, is to be taken. If no
record date is so fixed by the board 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, 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 or any person specifically authorized by the
board or these bylaws to call a meeting, the day
before the first notice is delivered to
shareholders;
(b) With respect to a special shareholder's meeting
demanded by the shareholders, the date the first
shareholder signs the demand;
(c) With respect to the payment of a share dividend,
the date the board authorizes the share dividend;
(d) With respect to actions taken in writing without a
meeting (pursuant to Article II, 2.12), the date
the first shareholder signs a consent;
(e) And 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, 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.
2.6 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 thereof, 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, 2.6) and within each voting group
by class or series of shares. The shareholder list must be
available for inspection by any shareholder, beginning 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, his
agent, or attorney is entitled on written demand to inspect
and, subject to the requirements of 2.13 of this Article
II, to copy the list during regular business hours and 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.
2.7 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 or the Act provide
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 provide 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 or the Act require a
greater number of affirmative votes.
2.8 Increasing Either Quorum or Voting Requirements.
For purposes of this 2.8 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.
A bylaw that fixes a supermajority quorum or voting
requirement for shareholders may not be adopted, amended, or
repealed by the board of directors.
2.9 Proxies.
At all meetings of shareholders, a shareholder may vote
in person, or vote by proxy which is executed in writing, by
the shareholder or which is executed 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.
2.10 Voting of Shares.
Unless otherwise provided in the articles, 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.
2.11 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver, or
proxy appointment 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 and give it effect as
the act of the shareholders.
(b) If the name signed on a vote, consent, waiver, or
proxy appointment 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 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;
(3) The name signed purports to be that of a
receiver or trustee in bankruptcy of the
shareholder and, if the corporation requests,
evidence of this status acceptable to the
corporation has been presented with respect
to the vote, consent, waiver, or proxy
appointment;
(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;
(5) Two or more persons are the shareholder as
co-tenants or fiduciaries and the named
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 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.
(d) The corporation and its officer or agent who
accepts or rejects a vote, consent, waiver, or
proxy appointment 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 under this section is valid unless a
court of competent jurisdiction determines
otherwise.
2.12 Informal Action by Shareholders.
Any action required or permitted to be taken at a
meeting of the shareholders may be taken without a meeting
if one or more consents in writing, setting forth the action
so taken, shall be signed by the holders of outstanding
shares having no less than the minimum number of votes that
would be necessary to authorize or take the action and are
entitled to vote with respect to the subject matter thereof
and are delivered to the corporation for inclusion in the
minute book. If the act to be taken requires that notice be
given to non-voting shareholders, the corporation shall give
the non-voting shareholders written notice of the proposed
action at least 10 days before the action is taken, which
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 has the effect of a meeting vote and may be
described as such in any document.
2.13 Voting for Directors.
Unless otherwise provided in the articles of
incorporation, directors are elected by a plurality of the
votes cast by the shares entitled to vote in the election at
a meeting at which a quorum is present.
2.14 Shareholder's Right to Inspect Corporate Records.
(a) Minutes and Accounting Records. The corporation
shall keep as permanent records minutes of all
meetings of its shareholders or 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 he gives the corporation
written notice of his demand at least five
business days before the date on which he wishes
to inspect and copy, a 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:
(1) Its articles or restated articles of
incorporation and all amendments to them
currently in effect;
(2) Its bylaws or restated bylaws and all
amendments to them currently in effect;
(3) Resolutions adopted by its board of directors
creating one or more classes or series of
shares, and fixing their relative rights,
preferences, and limitations, if shares
issued pursuant to those resolutions are
outstanding;
(4) The minutes of all shareholders' meetings,
and records of all action taken by
shareholders without a meeting, for the past
three years;
(5) All written communications to shareholders
generally within the past three years,
including the financial statement furnished
for the past three years to the shareholders.
(6) A list of the names and business addresses of
its current directors and officers; and
(7) Its most recent annual report delivered to
the Secretary of State.
(c) Conditional Inspection Right. In addition, if he
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 he wishes
to inspect and copy, he describes with reasonable
particularity his purpose and the records he
desires to inspect, and the records are directly
connected with his purpose, a shareholder of a
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 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 (a) of this 2.13;
(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, 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 2.14, the term "shareholder"
shall include a beneficial owner whose shares are
held in a voting trust or by a nominee on his
behalf.
2.15 Financial Statements Shall be Furnished to the
Shareholders.
(a) The corporation shall furnish its shareholders
annual financial statements, which may be
consolidated or combined statements of the
corporation and one or more of its subsidiaries,
as appropriate, that include a balance sheet as of
the end of the fiscal year, an income statement
for that year, and a statement of changes in
shareholders' equity for the year unless that
information appears elsewhere in the financial
statements. If financial statements are prepared
for the corporation on the basis of generally
accepted accounting principles, the annual
financial statements for the shareholders also
must be prepared on that basis.
(b) If the annual financial statements are reported
upon by a public accountant, his report must
accompany them. If not, the statements must be
accompanied by a statement of the president or the
person responsible for the corporation's
accounting records:
(1) Stating his reasonable belief whether the
statements were prepared on the basis of
generally accepted accounting principles and,
if not, describing the basis of preparation;
and
(2) Describing any respects in which the
statements were not prepared on a basis of
accounting consistent with the statements
prepared for the preceding year.
(c) A corporation shall mail the annual financial
statements to each shareholder within 120 days
after the close of each fiscal year. Thereafter,
on written request from a shareholder who was not
mailed the statements, the corporation shall mail
him the latest financial statements.
2.16 Dissenter's Rights.
Each shareholder shall have the right to dissent from
and obtain payment for his shares when so authorized by the
Act, articles of incorporation, these bylaws, or in a
resolution of the board of directors.
ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers.
Unless the articles of incorporation have dispensed
with or limited the authority of the board of directors by
describing who will perform some or all of the duties of a
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.
3.2 Number, Tenure, and Qualifications of Directors.
Unless otherwise provided in the articles of
incorporation, the number of directors of the corporation
shall be not less than three (3) nor more than seven (7)
until this bylaw is amended, the number of directors shall
be five (5). 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 with his
successor shall have been elected and qualified or until
there is a decrease in the number of directors. Directors
need not be residents of the State of Utah or shareholders
of the corporation unless so required by the articles of
incorporation.
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.
(If so permitted by 3.7, any such regular meeting may be
held by telephone.)
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, only within the
county where this corporation has its principal office as
the place for holding any special meeting of the board of
directors, or if permitted by 3.7, such meeting may be
held by telephone.
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 previously thereto
either orally or in writing. If mailed, notice of any
director meeting shall be deemed to be effective at the
earlier of:
(1) When received;
(2) Five days after deposited in the United States
mail, addressed to the director's business office,
with postage thereon prepaid; or
(3) The date shown on the return receipt if sent by
registered or certified mail, return receipt
requested, and the receipt is signed by or on
behalf of the director
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,
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.
3.6 Director Quorum.
If bylaw 3.2 establishes a fixed board size, a
majority of the number of directors shall constitute a
quorum for the transaction of business at any meeting of the
board of directors, unless the articles require a greater
number.
If bylaw 3.2 permits a variable-range size board (a
board size set by resolution within a given range), a
majority of the number of directors prescribed by
resolution, (or if no number is prescribed the number in
office immediately before the meeting begins) shall
constitute a quorum for the transaction of business at any
meeting of the board of directors, unless the articles
require a greater number.
Any amendment to this quorum requirement is subject to
the provisions of 3.8 of this Article III.
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 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 of 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
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.
3.8 Establishing a "Supermajority" Quorum or Voting
Requirement for the Board of Directors.
For purposes of this 3.8, a "supermajority" quorum is
a requirement that more than a majority of the directors in
office 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:
(1) If originally adopted by the shareholders, only by
the shareholders (unless otherwise provided by the
shareholders).
(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 voce 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.
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 take the action, each one signs a written
consent describing the action taken, and the consents are
filed with the records of the corporation. Action taken by
consents 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.
3.10 Removal of Directors.
The shareholders may remove one or more directors at a
meeting called for that purpose if notice has been given
that a purpose of the meeting is such removal. The removal
may be with or without cause unless the articles 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 not authorized,
a director may be removed only 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 not to remove
him.
3.11 Board of Director Vacancies.
Unless the articles of incorporation provided
otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number
of directors:
(1) The shareholders may fill the vacancy;
(2) The board of directors may fill the vacancy; or
(3) If the directors remaining in office constitute fewer
than a quorum of the board, they may fill the vacancy
by the affirmative vote of a majority of all the
directors remaining in office.
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.
A vacancy that will occur at a specific later date
(by reason of a resignation effective at a later date) may
be filled before the vacancy occurs but the new director may
not take office until the vacancy occurs.
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 qualifies or
until there is a decrease in the number of directors.
3.12 Director Compensation.
Unless otherwise provided in the articles, 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
capacity and receiving compensation therefore.
3.13 Director Committees.
(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
the numbers required by 3.7 of this Article
III to take action).
(c) Required Procedures. 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;
(2) Approve or propose to shareholders action
that the Utah Revised Business Corporation
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 10.02 of the Utah Revised
Business Corporation Act;
(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.
3.14 Chairman.
The board of directors may elect from its own number a
chairman of the board, who shall preside at all meetings of
the board of directors, and shall perform such other duties
as may be prescribed from time to time by the board of
directors.
ARTICLE IV
OFFICERS
4.1 Number of Officers.
The officers of the corporation shall be a president,
a secretary, and a treasurer, each 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.
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. (The designation of a specified term grants to
the officer no contract rights, and the board can remove the
officer at any time prior to the termination of such term).
If no term is specified, they shall hold office until they
resign, die, or until they are removed in the manner
provided in 4.3 of this Article IV.
4.3 Removal of Officers.
Any officer or agent may be removed by the board of
directors at any time, with or without cause. Such removal
shall be without prejudice to the contract rights, if any,
of the person so removed. Appointment of an officer or
agent shall not of itself create contract rights
4.4 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. He shall, when
present, preside at all meetings of the shareholders and of
the board of directors. He 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 which the board of directors
has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated
by the board of directors or by these bylaws to some other
officer or agent of the corporation, or shall be required by
law to be otherwise signed or executed; and in general shall
perform all duties incident to the office of president and
such other duties as may be prescribed by the board of
directors from time to time.
4.5 The Vice-Presidents.
If appointed, in the absence of the president or in the
event of his death, inability or refusal to act, the
vice-president (or in the event there be more than one vice
presidency, the vice-presidents in the order designated at
the time of their election, or in the absence of any
designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the president.) Any vice-president may
sign, with the secretary or an assistant secretary,
certificates for shares of the corporation the issuance of
which have been authorized by resolution of the board of
directors; and shall perform such other duties as from time
to time may be assigned to him by the president or by the
board of directors.
4.6 The 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 shareholder;
(f) Sign with the president, or a vice-president,
certificates for shares of the corporation, the
issuance of which shall have been authorized by
resolution of the board of directors;
(g) 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 rnay be assigned to him by the
president or by the board of directors.
4.7 The Treasurer.
The treasurer 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 depositaries 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.
4.8 Assistant Secretaries and Assistant Treasurers.
The assistant secretaries, when authorized by the board
of directors, may sign with the president or a
vice-president certificates for shares of the corporation
the issuance of which shall have been authorized by a
resolution of the board of directors. The assistant
treasurers shall respectively, if required by the board of
directors, give bonds for the faithful discharge of their
duties in such sums and with such sureties as the board of
directors shall determine. The assistant secretaries and
assistant treasurers, 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.
4.9 Salaries.
The salaries of the officers shall be fixed from time
to time by the board of directors.
4.10 Other Officers.
Other officers may be elected by the board of directors
and shall perform such duties and have such powers as may be
assigned to them by the board of directors.
4.11 Surety Bonds.
If the board of directors shall so require, any officer
or agent of the Corporation shall execute to the corporation
a bond in such funds and with such surety or sureties as the
board of directors may direct.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS,
AND EMPLOYEES
5.1 Indemnification of Directors.
Unless otherwise provided in the articles, the
corporation shall indemnify any individual made a party to a
proceeding because he is or was a director of the
corporation, against liability incurred in the proceeding,
but only if the corporation has authorized the payment in
accordance with Section 906 of the Act and a determination
has been made in accordance with the procedures set forth in
Section 906(2) of the Act that the director met the
standards of conduct in paragraph (a), (b) and (c) below.
(a) Standard of Conduct. The individual shall
demonstrate that:
(1) He conducted himself in good faith; and
(2) He reasonably believed:
(i) In the case of conduct in his official
capacity with the corporation, that his
conduct was in its best interests;
(ii) In all other cases, that his conduct was
at least not opposed to its best
interests; and
(iii) In the case of any criminal
proceeding, he had no reasonable cause
to believe his conduct was unlawful.
(b) No Indemnification Permitted in Certain
Circumstances. The corporation shall not
indemnify a director under this 5.1 of Article
V:
(i) In connection with a proceeding by or in
the right of the corporation which the
director was adjudged liable to the
corporation; or
(ii) In connection with any other proceeding
charging improper personal benefit to
him, whether or not involving action in
his official capacity, in which he was
adjudged liable on the basis that
personal benefit was improperly received
by him.
(c) Indemnification in Derivative Actions Limited.
Indemnification permitted under this 5.1 of
Article V in connection with a proceeding by or in
the right of the corporation is limited to
reasonable expenses incurred in connection with
the proceeding.
5.2 Advance Expenses for Directors.
If a determination is made, following the procedures of
Section 906 that the director has met the following
requirements; and if an authorization of Payment is made,
following the procedures and standards set forth in Section
906 of the Act then unless otherwise provided in the
articles of incorporation, the company shall pay for or
reimburse the reasonable expenses incurred by a director who
is a party to a proceeding in advance of final disposition
of the proceeding, if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has
meet the standard of conduct described in 5.1 of
this Article V;
(2) The director furnishes the corporation a written
undertaking, executed personally or on his behalf,
to repay the advance 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 w
financial ability to make repayment); and
(3) A determination is made that the facts then known
to those making the determination would not
preclude indemnification under 5.1 of this
Article V or the Act.
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 indemnify and
advance expenses to any officer, employee, or agent of the
corporation, who is not a director of the corporation, to
any extent consistent with public policy, as determined by
the general or specific action of the board of directors.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
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 Utah; the name of the
person to whom issued; and the number and class of
shares and the designation 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 scaled 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 on request in writing
and without charge.
(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.
6.2 Shares Without Certificates.
(a) Issuing Shares Without Certificates. Unless the
articles of incorporation provide otherwise, the
board of directors may authorize the issue 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) Information Statement Required. Within a
reasonable time after the issue 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 law of this state;
(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 valuation in rights, preferences, and
limitations determined for each series (and the authority of
the board of directors to determine variations for future
series).
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 owner, the person in
whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof
for all purposes.
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 may be authorized:
(1) To maintain the corporation's status when it is
dependent on the number or identity of its
shareholders;
(2) To preserve exemptions under federal or state
securities law;
(3) For any other reasonable purpose. A restriction on
the transfer or registration of transfer of shares
may;
(4) Obligate the shareholder first to offer the
corporation or other persons (separately,
consecutively, or simultaneously) an opportunity
to acquire the restricted shares;
(5) Obligate the corporation or other persons
(separately, consecutively, or simultaneously) to
acquire the restricted shares;
(6) Require the corporation, the holders or any class
of its shares, or another person to approve the
transfer of the restricted shares, if the
requirement is not manifestly unreasonable;
(7) 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 and its existence is noted
conspicuously on the front or back of the certificate or is
contained in the information statement required by 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.
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
reissue of acquired shares, the number of unauthorized
shares is reduced by the number of shares acquired,
effective upon amendment of the articles of incorporation,
which amendment shall be adopted by the shareholders or the
board of directors without shareholder action. The articles
of amendment must be delivered to the Secretary of State and
must set forth:
(1) The name of the corporation;
(2) The reduction in the number of authorized shares,
itemized by class and series; and
(3) The total number of authorized shares, itemized by
class and series, remaining after reduction of the
shares.
6.6 Lost or Destroyed Certificates.
The board of directors may direct a new certificate to
be issued to replace any certificate heretofore issued by
the corporation and alleged to have been lost or destroyed
if the owner makes an affidavit that the certificate is lost
or destroyed. The board of directors may, at its discretion,
require the owner of such certificate or has legal
representative to give the corporation a bond in such sum
and with such sureties as the board of directors may direct
to indemnify the corporation and transfers, agents and
registrars, if any, against claims that may be made on
account of the issuance of such new certificates. A new
certificate may be issued with declaring any bond.
ARTICLE VII
DISTRIBUTIONS
7.1 Distributions.
The board of directors may authorize, and the
corporation may make, distributions (including dividends on
its outstanding shares) in the manner and upon the terms and
conditions provided by law and in the corporation's articles
of incorporation.
ARTICLE VIII
CORPORATE SEAL
8.1 Corporate Seal.
The board of directors may provide a corporate seal
which may be circular in form and have inscribed thereon any
designation including the name of the corporation, State of
Utah as the state of incorporation, and the words "Corporate
Seal."
ARTICLE IX
CONTRACTS, LOANS, CHECKS AND DEPOSIT
9.1 Contracts.
The board of directors may authorize any officer(s), or
agent(s), to enter into any contract or execute and deliver
any instrument in the name and on behalf of the corporation,
and such authority may be either general or confined to
specific instances.
9.2 Loans.
No loan or advances shall be contracted on behalf of
the corporation, no negotiable paper or other evidence of
its obligation under any loan or advance shall be issued in
its name, and no property of the corporation shall be
mortgaged, pledged, hypothecated, or transferred as security
for the payment of any loan, advance, indebtedness, or
liability of the corporation unless and except as authorized
by the board of directors. Any such authorization may be
either general confined to specific instances.
9.3 Deposits.
All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the
corporation in such banks, trust companies, or other
depositories as the board of directors may select, or as may
be selected by an officer or agent so authorized by the
board of directors.
9.4 Checks and Drafts.
All notes, drafts, acceptances, checks, endorsements,
and evidences of indebtedness of the corporation shall be
signed by the president and by the treasurer of the
corporation and in such manner as the board of directors
from time to time may determine. Endorsements for deposit to
the credit of the corporation in any of its duly authorized
depositories shall be made in such manner as the board of
directors from time to time may determine.
9.5 Bonds and Debentures.
Every bond or debenture issued by the corporation shall
be evidenced by an appropriate instrument which shall be
signed by the president or a vice-president and by the
treasurer or by the secretary and the seal of the
corporation may, but need not, be affixed thereto.
ARTICLE X
EMERGENCY BYLAWS
10.1 Emergency Bylaws.
Unless the articles of incorporation provide otherwise,
the following provisions of this Article IX, 9.1
"Emergency Bylaws" shall be effective during an emergency
which is defined as when a quorum of the corporation's
directors cannot be readily assembled because of some
catastrophic event. During such emergency:
(a) Notice of Board Meetings. Any one member of the
board of directors or any one of the following
officers: president, vice-president, secretary, or
treasurer, may call a meeting of the board of
directors. Notice of such meeting need be given
only to those directors whom it is practicable to
reach, and may be given in any practical manner,
including by publication and radio. Such notice
shall be given at least six hours prior to
commencement of the meeting.
(b) Temporary Directors and Quorum. One or more
officers of the corporation present at the
emergency board meeting, as is necessary to
achieve a quorum, shall be considered to be
directors for the meeting, and shall so serve in
order of rank, and within the same rank, in order
of seniority. In the event that less than a quorum
(as determined by Article M, 3.6) of the
directors are present (including the officers
serving as directors) shall constitute a quorum.
(c) Actions Permitted to be Taken. The board as
constituted in paragraph (b), and after notice as
set forth in paragraph (a) may:
(1) Officers' Powers. Prescribe emergency posers
to any officer of the corporation;
(2) Delegation Of Any Power. Delegate to any
officer or director, any of the powers of the
board of directors;
(3) Lines of Succession. Designate lines of
succession of officers and agents, in the
event that any of them are unable to
discharge their duties;
(4) Relocate Principal Place of Business.
Relocate the principal place of business, or
designate successive or simultaneous
principal places of business;
(5) All Other Action. Take any other action,
convenient, helpful, or necessary to carry on
the business of the corporation.
ARTICLE XI
AMENDMENTS
11.1 Amendments.
The corporation's board of directors may amend or
repeal the corporation's bylaws
unless:
(1) The articles of incorporation or the Act reserve
this power exclusively to the shareholders in
whole or part; or
(2) 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
(3) The bylaw either establishes, amends, or deletes,
a supermajority shareholder quorum or voting
requirement (as defined in 2.7 of Article II).
Any amendment which changes the voting or quorum
requirement for the board must comply with Article III,
3.8, and for the shareholders, must comply with Article II,
2.8.
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 XII
EXEMPTION FROM CONTROL SHARES ACQUISITION ACT
The provisions of the Control Shares Acquisition Act as
set out in 61-6-1 et. Seq. as amended or any replacement
Act shall not apply to control share acquisitions of shares
of this Corporation.
I certify That the foregoing Bylaws of Terra Systems,
Inc., a Utah corporation, and that the same remain in effect
unchanged to the present date.
DATED:This 31st day of May, 1996.
/s/ Leonard K. Harmon
By: Leonard K. Harmon, Secretary
SHAREHOLDER REPORT FOR XULLUX, INC.
Total Shares Outstanding:
------------------------
N/A N/A CERT CERT REGULAR REGU RESTRI RESTRI
LAR CTED CTED
ACCOUNTS SHARE NUMBE SHARES NUMBER SHAR NUMBER SHARES
S R ES
------ ----- ------- ------ ---- ------ ------
ACTIVE 134 69600 233 6960000 207 3019 26 665800
00 91 9
TOTAL 139 234
---------------------------------------------------------------------
Comprehensive
Shareholder Listing:
-------------------
ACCOU ACCOU CERTIFI CERTIF DATE DATE DATE
NT NT CATE ICATE
NAME AND ADDRESS SHARE NUMBE NUMBER SHARES ISSU STOPPE RESTRI
S R ED D CTED
---------------- ---- ----- ------ ------ ---- ------ ------
AACAP
TONIA ACKERMAN
JTTEN
2107 SOUTH 745
EAST
MIDVALE UT 20 729- SL 20 9/21
84047 00010 000707 /87
0
RENE ACKERMAN &
TONIA ACKERMAN
JTTEN
2107 SOUTH 745
EAST
MIDVALE UT 100 729- SL 100 3/8/
84047 00646 001022 89
0
DOMINIC JR ALBO
5458 COTTONWOOD
CLUB DRIVE
SALT LAKE CITY 100 729- SL 100 9/25
UT 84117 03073 000708 /87
0
DENNIS ALLEN
12359 SOUTH 800
EAST
DRAPER UT 84020 4667 729- SL 4667 12/2
03293 001065 7/89
0
DONALD ALLRED
1716 EAST MINDEN
DRIVE
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84121 03473 000101 84
0
AMERICAN PENSION
SERV
G CHRISTOFFERSON 120 729- SL 120 3/6/
03670 000105 84
0
AMERICAN PENSION
SERV
M CHRISTOFFERSON 120 729- SL 120 3/6/
03671 000104 84
0
M DARNELL ANDRUS
11800 SOUTH 520
EAST
DRAPER UT 84020 40 729- SL 40 3/6/
04224 000109 84
0
EDWARD DALLIN 40000 729- SL 400000 7/12
BAGLEY 00 07542 001200 0 /95
5
EDWARD BRYAN 200 729- SL 200 3/6/ 7/12/9
BAGLEY 07543 000129 84 5
0
BECKY BAILEY
1008 PLATINUM
SANDY UT 84070 30 729- SL 30 8/10
07582 000444 /84
0
BETHERS LIVING
TRUST
GLEN J BETHERS
TTEE
1085 NORTH 1100
WEST
PROVO UT 84604 20 729- SL 20 3/22
09233 001023 /89
0
SCOTT BLOTTER
225 EAST 600
NORTH
LOGAN UT 84321 20 729- SL 20 11/2
10006 000529 9/84
0
LANE BOWEN 80 729- SL 80 3/6/
10384 000115 84
0
PAUL BOWEN 100 729- SL 100 12/1 12/10/
10385 000554 0/84 84
0
STEPHEN M
BROCKBANK
2017 PHEASANT
CIRCLE
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84121 10896 000119 94
0
BRUCE BROWN 1000 729- SL 1000 12/1 12/10/
11011 000553 0/84 84
0
NEWELL K BROWN 100 729- SL 100 7/22
11014 000660 /85
0
MARY J BRUNKER
1754 WEST 1300
NORTH #10
SALT LAKE CITY 46000 729- SL 20000 8/10
UT 84116 11274 001075 /91
0
SL 20000 8/10
001076 /91
SL 5000 3/4/
001086 92
SL 500 3/4/
001087 92
SL 500 3/4/
001088 92
CORRINE BURTON
1393 EAST 12400
SOUTH
DRAPER UT 84020 40 729- SL 40 5/22
11783 000431 /84
0
STEVEN E 80 729- SL 80 3/6/
BUTTERFIELD 11906 000116 84
0
CECIL BYNUM &
MARLEEN BYNUM
9621 NORTH 29TH
STREET
PHOENIX AZ 20 729- SL 20 4/12
85026 12143 000409 /84
0
JOHN B CAIRO
1890 ALLA PANNA
WAY
SANDY UT 89092 80 729- SL 80 3/6/
12374 000139 84
0
PETTY CAMPBELL
720 EAST GABLE
STREET
MIDVALE UT 120 729- SL 120 3/6/
84047 12704 000140 84
0
RICHARD CARTER
50 MT BETHEL
ROAD
WARREN NJ 07060 3500 729- SL 3500 6/14 6/14/8
13084 000591 /85 5
0
CEDE & CO
PO BOX 20
BOWLING GREEN
STATION
NEW YORK NY 110 729- SL 20 1/31
10274 13330 000566 /85
0
SL 90 2/18
000719 /88
C E I B 40 729- SL 40 3/6/
CHERRINGTON 13873 000167 84
0
BRENT CONDELLONE
PO BOX 59
HOUSTON TX 20 729- SL 20 5/5/
65483 15306 001024 89
0
COLLEEN CONWAY
6027 SOUTH 1280
EAST
SALT LAKE CITY 2000 729- SL 400 3/6/
UT 84121 15403 000156 84
0
SL 400 3/6/
000157 84
SL 400 3/6/
000158 84
SL 400 3/6/
000159 84
SL 400 3/6/
000160 84
ANTHONY A
COSTANZA
2230 WEST 13400
SOUTH
RIVERTON UT 40 729- SL 40 3/6/
84065 15771 000145 84
0
COVEY & COMPANY
INC
115 SOUTH MAIN
STREET
SALT LAKE CITY 76 729- SL 50 5/17
UT 84111 15820 000430 /85
0
SL 6 6/4/
000437 84
SL 20 6/4/
000438 85
RANDY
DANJONOVICH
1160 EAST 13400
SOUTH
DRAPER UT 84020 20 729- SL 20 3/3/
17266 000690 87
0
DILN
WEST 525 SECOND
AVENUE
SPOKANE WA 20 729- SL 20 12/3
99204 18550 000531 /84
0
LORAN D DIXON
PO BOX 413
DRAPER UT 84020 80 729- SL 80 3/6/
18694 000170 84
0
LAREE DUDDING &
DARR DUDDING
JTTEN
9527 EAST
GALVESTON
CHANDLER AZ 30 729- SL 30 11/2
85224 19434 001013 1/88
0
VERN
FENSTERMAKER &
ANNA V
FENSTERMARKER
1401 LUCK LANE
SALT LAKE CITY 140 729- SL 140 1/21
UT 84106 27798 000140 /89
0
BOYD F
FITZGERALD
483 EAST 12300
SOUTH
DRAPER UT 84020 80 729- SL 80 7/19
28442 000442 /84
0
MIKE FITZGERALD
791 CARNATION
DRIVE
SANDY UT 84070 200 729- SL 200 3/6/
28444 000191 84
0
FRANK D FOSTER
1581 WEST 3300
SOUTH
WEST VALLEY CITY 80 729- SL 80 3/6/
UT 84119 28983 000194 84
0
MICHAEL J FOSTER
&
NELLY FOSTER
1023 EAST 5205
SOUTH
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84117 28984 000195 84
0
RICHARD FOX &
RAMON FOX JTTEN
3830 CORAL REEF
WWAY
LAS VEGAS NV 10 729- SL 10 8/20
89110 29106 000625 /85
0
LAWRENCE FULLER
765 EAST
BASELINE
MESA AZ 85204 40 729- SL 40 10/2
29634 000642 9/85
0
JAN FULLMER
564 SOUTH 490
WEST
OREM UT 84058 1000 729- SL 1000 12/1 12/10/
29654 000552 0/84 84
0
WILLIAM
GERGERDING
2531 CAMPUS
DRIVE
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84121 30839 000197 84
0
R KELLEY GIBBS
5178 PARADISE
DRIVE #100
COSTE MADERA CA 31000 729- SL 24800 12/1 12/11/
94925 31096 000684 1/86 86
0
SL 6200 12/1 12/11/
000685 1/86 86
GERTRUDE GIBSON
11940 SOUTH 1462
WEST
RIVERTON UT 40 729- SL 40 3/6/
84065 31123 000231 84
0
RICHARD A GIBSON
11940 SOUTH 1462
WEST
RIVERTON UT 640 729- SL 200 3/6/
84065 31156 000218 84
0
SL 200 3/6/
000219 84
SL 200 3/6/
000221 84
SL 40 3/6/
000230 84
BRUCE GILES
ROUTE BOX 7
MORGAN UT 84050 880 729- SL 200 3/6/
31321 000213 84
0
SL 200 3/6/
000214 84
SL 200 3/6/
000215 84
SL 200 3/6/
000216 84
SL 80 3/6/
000217 84
STEVEN A
GOODSELL
4014 AURA DRIVE
SALT LAKE CITY 120 729- SL 120 3/6/
UT 84124 32046 000198 84
0
JAY JOHN
GRAINGER
1110 EAST 4800
SOUTH
SALT LAKE CITY 40 729- SL 40 3/6/
UT 84117 32394 000199 84
0
A CORPORATION
416 EAST 2300
SOUTH
DRAPER UT 84020 5000 729- SL 5000 12/2
33030 001066 7/89
0
LOUIS A
GUILLAUME &
GERTRUDE
GUILLAUME JTTEN
757 SAN DIEGO
AVENUE
SUNNYVALLE CA 100 729- SL 100 11/1
94086 33114 0010112 4/88
0
CRAIG F GUNNELL
% 3514 SOUTH
WEST TEMPLE
SALT LAKE CITY 40 729- SL 40 3/6/
UT 84094 33172 000398 84
0
ELNORA S GUNNELL
BOX 728
DRAPER UT 84020 80 729- SL 80 3/6/
33176 00399 84
1
RUEL GUNNELL 31600 729- SL 5000 3/22 3/22/8
33176 000001 /84 4
0
SL 5000 3/22 3/22/8
000002 /84 4
SL 1000 3/22 3/22/8
000003 /84 4
SL 9300 10/1
001008 /88
SL 9300 10/1
001009 /88
SL 2000 1/10
001070 /90
RUEL J GUNNELL
BOX 728
DRAPER UT 84020 80 729- SL 80 3/6/
33176 000399 84
1
JAMES HABERSTRO 80 729- SL 80 3/6/
33684 000232 84
0
CYNTHIA J HARDEN
1906 SIR JAMES
DRIVE
SALT LAKE CITY 1000 729- SL 500 3/4/
UT 84116 34573 001091 92
0
SL 500 3/4/
001092 92
BEVERLY P
HARTWELL
556 EAST 11450
SOUTH
DRAPER UT 84020 200 729- SL 200 3/6/
34951 000249 92
0
DORR HATCH SR &
NORMA HATCH 40 729- SL 40 3/6/
35023 000672 92
0
DAVID HAWK
7273 SNOHOMISH
STREET
BOISE ID 83709 80 729- SL 80 6/13
35103 000592 /85
0
MARK HARRON 60 729- SL 60 6/11
35864 000678 /86
0
LYNN A HOLT
10041 SOUTH 1700
WEST
SOUTH JORDAN UT 80 729- SL 80 3/6/
84065 37164 000245 84
0
VICKIE JAMISON 1000 729- SL 1000 12/1
45756 000551 0/84
0
DAUNE S JENSEN
AM PLAZA III
#460
47 WEST 200
SOUTH
SALT LAKE CITY 200 729- SL 200 3/6/
UT 84101 46124 000257 84
0
JAY S JESSOP 40 729- SL 40 3/6/
46226 000261 84
0
SCOTT JESSOP
8236 SOUTH 100
EAST
SANDY UT 84070 100 729- SL 100 3/6/
46226 000259 84
0
DONALD O JEX
10490 SOUTH 10TH
WEST
SOUTH JORDAN UT 800 729- SL 200 3/6/
84065 46710 000264 84
0
SL 200 3/6/
000265 84
SL 200 3/6/
000266 84
SL 160 3/21
000401 /84
SL 40 3/21
000402 /84
JOHNCO
480 EAST 400
SOUTH
SALT LAKE CITY 100 729- SL 40 11/1
UT 84111 46710 000523 9/84
0
SL 40 11/1
000524 9/84
SL 20 11/1
000528 9/84
CHRIS JOHNSON 18 729- SL 18 4/8/
46752 000577 85
0
JOSEPH JOHNSON &
GADRON JOHNSON
4430 SOUTH 4173
WEST
WEST VALLEY CITY 20 729- SL 20 11/1
UT 84119 46754 001010 1/88
0
RONALD J JOHNSON
1829 SEVERN
DRIVE
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84117 46896 000256 84
0
REED H JONES
1331 SOUTH 1425
EAST
BOUNTIFUL UT 80 729- SL 80 3/6/
84010 47153 000262 84
0
JEFF JUDKINS &
MARY K JUDKINS
JTTEN
3471 SOUTH 3570
EAST
SALT LAKE CITY 30 729- SL 30 9/9/
UT 84109 47594 000631 85
0
GORDON KADOLPH &
SHARON KADOLPH
JTTEN
209 ROBISON
PRESCOTT AZ 100 729- SL 100 8/24
86301 48153 000632 /84
0
SYED KHADERI
1374 OLD MISSION
ROAD
SANDY UT 84092 20 729- SL 20 8/24
49116 000448 /84
0
ORLLO KIDD
STAR ROUTE
DECLO IS 83323 30 729- SL 30 6/13
49165 000594 /85
0
GARY A KOLMAN
1027 SOUTH 620
EAST
MURRAY UT 84107 80 729- SL 80 3/6/
50153 000269 84
0
KENT V LARSEN 80 729- SL 80 3/6/
51514 000278 84
0
TODD LARSEN 80 729- SL 80 3/6/
51516 000277 84
0
0 80 729- SL 80 3/6/
51516 000279 84
5
DELINDA LEWIS
646 EAST 1700
SOUTH #5
SALT LAKE CITY 40 729- SL 40 4/25
UT 84105 52366 001103 /92
0
DONALD G LEWIS
3541 SOUTH
IDLEWILD ROAD
SALT LAKE CITY 70 729- SL 70 4/25
UT 84124 52366 001103 /92
0
LOIS J LUTZ
1075 TENTH
AVENUE
SALT LAKE CITY 1000 729- SL 500 4/25
UT 84103-2824 53744 001101 /92
0
SL 500 4/25
001102 /92
R A LUTZ
1065 29TH STREET
OGDEN UT 84403- 3820 729- SL 3820 9/26
0436 53746 0001097 /89
0
RAYMOND LUTZ 25500 729- SL 50000 8/6/ 8/6/88
00 53746 001001 88
2
SL 500000 10/1 10/1/8
001003 /88 8
SL 500000 10/1 10/1/8
001004 /88 8
SL 300000 10/1 10/1/8
001005 /88 8
SL 500000 12/1 12/10/
001016 0/88 88
SL 500000 12/1 12/10/
001017 0/88 88
SL 200000 12/1 12/10/
001018 0/88 88
SUZANNE LUTZ
375 TENTH AVENUE
SALT LAKE CITY 51000 729- SL 10000 11/1
UT 84103-2824 53747 001083 6/91
0
SL 20000 11/1
001084 6/91
SL 20000 11/1
001085 6/91
SL 500 3/4/
001089 92
SL 500 3/4/
001090 92
SUE MATLOCK 18 729- SL 18 4/8/
55046 000576 85
0
DONALD F MC 11000 729- SL 5000 3/22 3/22/8
CORMICK 55523 000004 /84 4
0
SL 5000 3/22 3/22/8
000005 /84 4
SL 1000 3/22 3/22/8
000006 /84 4
GEORGE MCDONALD
CUST
MICHAEL MCDONALD
UGMA/UT
3656 MACINTOSH
LANE
SALT LAKE CITY 1200 729- SL 400 3/6/
UT 84121 55754 000384 84
0
SL 400 3/6/
000385 84
SL 400 3/6/
000386 84
JEAN MC DOUGAL 20 729- SL 20 3/3/
55579 000691 87
40
MYLER LIVING
TRUST
A TRUST
1966 E JOHN
STONE DRIVE
SANDY UT 84092 15750 729- SL 3750 12/4
59460 000682 /86
0
SL 12000 10/1
001006 /86
NATIONAL
FINANCIAL
SERVICES
BROADWAY
NEW YORK NY 10 729- SL 10 10/1
10006 59830 000453 2/84
0
LOUIS G NELSON
P O BOX 301
DRAPER UT 84010 80 729- SL 80 3/6/
60214 000300 84
0
LAVERN J NORTH
1303 WEST 5050
SOUTH
SALT LAKE CITY 120 729- SL 120 3/6/
UT 84123 61204 000298 85
0
NOYES & COMPANY
DAVID A
208 SOUTH
LASALLE STREET
CHICAGO IL 20 729- SL 20 4/16
60604 61330 000694 /87
0
OPCO
OLSEN PAYNE
175 SOUTH WEST
TEMPLE #690
SALT LAKE CITY 200 729- SL 200 1/19
UT 84101 66080 000686 /87
0
OTRA CLEARING
INC
A CORPORATION
116 MARYLAND
STREET #120
GLENDALE CA 20 729- SL 20 12/6
91206 67050 001014 /84
0
PACIFIC &
COMPANY
P O BOX 7877
SAN FRANSISCO CA 20 729- SL 20 11/1
94120 68750 000651 8/85
0
SAMUEL J PARK
2794 ST MARYS
WAY
SALT LAKE CITY 15500 729- SL 15500 5/23 5/23/8
UT 84108 69074 000433 /84 4
0
ARMOND PERRI
1351 ANESBURY
CIRCLE
SALT LAKE CITY 120 729- SL 120 3/6/
UT 84121 69950 000307 84
5
ARMOND PERRI &
JEAN PERRI JTTEN
6949 SOUTH 825 200 729- SL 100 8/16
EAST 84047 69950 001072 /91
7
729- SL 100 8/16
69950 101072 /91
7
JOHN M PERRI
10148 HAYTEBURY
SANDY UT 84092 40 729- SL 40 3/6/
69954 000309 84
0
DOUGLAS POWELSON
6288 VAN COTT
ROAD
SALT LAKE CITY 15500 729- SL 15500 5/23 5/23/8
UT 84121 71523 000434 /84 4
0
DON ROBINSON
3337 SOUTH MAIN
STREET
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84115 75173 000312 84
0
CHARLES SALLEE
4238 SOUTH
DERBYSHIRE COURT
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84123 76953 000324 84
0
PAUL SCHOENFELD
50 MT BETHEL
ROAD
WARREN NJ 07060 3500 729- SL 3500 6/14 6/14/8
77435 000590 /85 5
0
SECURITIES
SETTLEMENT
PO BOX 659
BOWLING GREEN
STATION
NEW YORK NY 30 729- SL 20 6/15
10004 77940 000722 /88
0
SL 10 6/15
000723 /88
A C SEYMOUR
TRUSTEE
FOR C F 10909 729- SL 10909 6/14 6/14/8
BENNINGHOFF III 78201 000588 /85 5
0
SHEARSON LEHMAN
HUTTON
ONE WESTERN
UNION INTL PLAZA
NEW YORK NY 464 729- SL 20 7/29
10004 78410 000602 /85
0
SL 20 7/29
000603 /85
SL 20 7/29
000604 /85
SL 20 7/29
000605 /85
SL 20 7/29
000606 /85
SL 20 7/29
000607 /85
SL 20 7/29
000608 /85
SL 20 7/29
000609 /85
SL 20 7/29
000610 /85
SL 20 7/29
000611 /85
SL 20 7/29
000612 /85
SL 2 7/29
000613 /85
SL 2 7/29
000614 /85
SL 2 7/29
000615 /85
SL 2 7/29
000616 /85
SL 2 7/29
000617 /85
SL 2 7/29
000618 /85
SL 2 7/29
000619 /85
SL 230 4/25
000721 /88
ELAINE SHEPERD 36 729- SL 36 4/8/
78493 000575 85
0
BLAIR T SIMMONS 60 729- SL 60 6/13
79122 000596 /85
0
SMITH BARNEY
HARRIS
1 WEST 34TH
STREET
NEW YORK NY 70 729- SL 70 11/1
10001 79920 001082 6/91
0
CONSTANCE M
SMITH
5960 OAKHILL
DRIVE
SALT LAKE CITY 80 729- SL 80 12/1
UT 84121 79943 10015 2/88
0
LYNNE E SMITH
7015 WEST 9600
NORTH
LEHI UT 84043 80 729- SL 80 3/6/
80034 000336 84
0
WALTER SONDRUP 20 729- SL 20 11/9
AGENCY INC 80390 001080 /91
0
RICHARD J
SORENSON
2835 EAST 3600
SOUTH ST
SALT LAKE CITY 1000 729- SL 500 3/4/
UT 84109 80436 001093 92
0
SL 500 3/4/
001094 92
GLENN L STEADMAN
47 CRAWFORD
PLACE
SANDY UT 84070 800 729- SL 200 3/6/
81153 000354 84
0
SL 200 3/6/
000355 84
SL 200 3/6/
000356 84
SL 200 3/6/
000357 84
DALTON K
STICKLEY
1126 EST COUNTRY WOOD
CIRCLE # 2
MIDVALE UT 200 729- SL 80 3/6/
84047 81603 000327 84
0
SL 120 11/1
001011 4/88
JORDAN STREBECK
9810 S 15TH ST
GILBERT AZ 84 729- SL 40 3/6/
85234 81924 000349 84
0
SL 44 10/2
000640 8/85
ALAN SUMMERHAYS 6821 729- SL 3000 1/1/ 1/1/88
82211 001007 88
0
SL 3821 11/1
001054 /89
BRENT SUMMERHAYS
&
MICKEY
SUMMERHAYS
238 DAVID AVENUE
NAMPA ID 86651 240 729- SL 120 3/6/
82212 000339 84
0
SL 120 6/13
000595 /85
CHRIS R
SUMMERHAYS
2450 1/2
FOOTHILL BLVD
SALT LAKE CITY 500 729- SL 500 12/2
UT 84109 82213 001068 7/89
0
JEFF SUMMERHAYS
&
6 EAST 12300
SOUTH
DRAPER UT 84020 2500 729- SL 2500 12/2
82214 001067 7/89
0
APORN
SURINTRAMONT
701 BALBOA
CHAMPAIGN IL 20 729- SL 20 7/19
61820 82261 000598 /85
0
JIM SWAYDAN
1140 CALIFORNIA
AVENUE
SALT LAKE CITY 80 729- SL 80 3/6/
UT 84104 82504 000326 84
0
ROBERT TERRY
157 SOUTH 18TH
AVENUE
POCATELLO ID 20 729- SL 20 6/13
83201 83786 000593 /85
0
DENNIS M TRAYNER
8642 TRACY DRIVE
SANDY UT 84092 80 729- SL 80 3/6/
85243 000362 84
0
US CLEARING CORP
26 BROADWAY
NEW YORK NY 20 729- SL 20 9/5/
10004-1798 88850 001200 95
0
VALLEY BANK TTEE
LAMONT DAY
P O BOX 450
SALT LAKE CITY 250 729- SL 250 5/1/
UT 84110 89540 000424 84
0
VINABA & COMPANY 480 729- SL 480 10/1
89560 0001038 7/89
0
WESCAP
P O BOX 11268
SALT LAKE CITY 20 729- SL 20 12/1
UT 84147 93130 000661 6/85
0
WILCO
PO BOX 11587
SALT LAKE CITY 13074 729- SL 20 4/12
UT 84147 7 94010 000408 /84
0
SL 100 11/1
000505 /84
SL 200 12/3
000535 /84
SL 1000 12/4
000541 /84
SL 400 12/4
000543 /84
SL 20 12/4
000548 /84
SL 120 2/25
000570 /85
SL 60 2/25
000572 /85
SL 240 5/2/
000584 85
SL 10000 11/3
001055 /89
SL 10000 11/3
001056 /89
SL 10000 11/3
001057 /89
SL 10000 11/3
001058 /89
SL 10000 12/1
001061 5/89
SL 10000 12/1
001062 5/89
SL 10000 12/1
001063 5/89
SL 10000 12/1
001064 5/89
SL 7333 12/2
001069 7/89
SL 4900 8/16
001073 /91
SL 11544 10/9
001077 /91
SL 4880 11/9
001081 /91
SL 5000 3/4/
001097 92
SL 5000 3/4/
001098 92
SL 5000 3/4/
001099 92
SL 4930 4/25
001104 /92
GEORGE ZEVITAS
7410 SW 82ND
STREET
MIAMI FL 33143 20 729- SL 20 4/20
98663 000720 /88
0
69600 696000
00 0
69600 696000
00 0
0 0
ARTICLES OF INCORPORATION
OF
TERRA MERGER SUBSIDIARY, INC.
The undersigned natural person, being at least eighteen
years of age, acting as incorporator of a corporation under
the Utah Revised Business Corporation Act, adopts the
following Articles of Incorporation for such corporation:
ARTICLE I
The name of this corporation is Terra Merger
Subsidiary, Inc.
ARTICLE II
The purpose for which the Company is organized is to
conduct any lawful act, activities and pursuits for which a
corporation may be organized under the Utah Revised Business
Corporation Act. Its duration shall be perpetual.
ARTICLE III
The corporation is authorized to issue one class of
shares, to be designated common stock. The total number of
shares of common stock that this corporation is authorized
to issue is Fifty Thousand (50,000). The common stock
shall have a par value of one cent ($.01) per share. The
common stock shall have unlimited voting rights as provided
in the Utah Revised Business Corporation Act and shall be
entitled to receive the net assets of the corporation upon
dissolution.
ARTICLE IV
The street address of the initial registered office of
the corporation is 5912 West 11600 South, Payson, Utah,
84651. The name of the corporation's initial registered
agent at that office is Wayne Hanson. The signature of
this registered agent is set forth on the signature page of
these Articles of Incorporation.
ARTICLE V
To the fullest extent permitted by the Utah Revised
Business Corporation Act or any other applicable law as now
in effect or as it may hereafter be amended, a director of
this corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for any
action taken or any failure to take any action as a
director.
Neither any amendment nor appeal of this Article V,
nor the adoption of any provision in these Articles of
Incorporation inconsistent with this Article V, shall
eliminate or reduce the effect of this Article V in respect
of any matter occurring, or any cause of action, suit or
claim that, but for this Article V, would accrue or arise,
prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE VI
The name and address of the incorporator is:
Wayne Hanson
5912 West 11600 South
Payson, Utah 84651
DATED this 29th day of April, 1996.
_/s/_____________________
Wayne Hanson, Incorporator
The undersigned hereby accepts and acknowledges
appointment as the initial registered agent of the
corporation named above, and confirms that the undersigned
meets the requirements of Section 501 of the Utah Revised
Business Corporation Act.
/s/_____________________
Wayne Hanson, Registered Agent
BEFORE MERGER
UNANIMOUS CONSENT OF THE
SHAREHOLDERS OF
TERRA SYSTEMS, INC.
The undersigned, being all of the shareholders of Terra
Systems, Inc., do hereby unanimously adopt the following
resolutions:
RESOLVED, that the attached Merger Agreement among
Xullux, Inc., Terra Merger Subsidiary, Inc. and Terra
Systems, Inc. is hereby approved.
This resolution may be executed in multiple
counterparts which when combined to contain the
signatures of all the shareholders shall constitute the
approved action of the shareholders.
DATED this __17__ day of May, 1996.
/s/_________________
____
Leonard Kent Harmon
/s/_________________
_____
Glade Stringer
/s/_________________
_____
Wayne G. Hanson
/s/_________________
_____
Leonard Howe
/s/_________________
____
Valgene Blackburn
/s/_____________
Howard H. Hucks
/s/______________
Alan Summerhays
/s/_______________
Clayton Timothy
/s/______________
Dale Snyder
UNANIMOUS CONSENT OF THE
BOARD OF DIRECTORS OF
TERRA SYSTEMS, INC.
The undersigned, being all of the directors of Terra
Systems, Inc., do hereby unanimously adopt the following
resolutions:
RESOLVED, that the Company shall acquire the
equipment and other personal property described in
attachments to the Bills of Sale attached hereto and
shall issue to the owners thereof promissory notes in
the amounts, and in the form, attached; and
FURTHER RESOLVED, that any officer of the Company
is hereby empowered and directed to execute the
promissory notes and other documents necessary to
accomplish the acquisition of the above-mentioned
personal property and the issuance of debt instruments
in consideration therefor.
DATED this __1st__ day of May, 1996.
/s/_______________
Leonard Kent Harmon
/s/_________________
_____
Glade Stringer
/s/_________________
_____
Wayne G. Hanson
UNANIMOUS CONSENT OF THE
BOARD OF DIRECTORS OF
TERRA SYSTEMS, INC.
The undersigned, being all of the directors of Terra
Systems, Inc., do hereby unanimously adopt the following
resolutions:
RESOLVED, that the Company shall recommend to the
shareholders that the Company execute, deliver and
perform the Merger Agreement Among Xullux, Inc., Terra
Merger Subsidiary, Inc. and Terra Systems, Inc.; and
FURTHER RESOLVED, that the officer of the Company
are hereby authorized and directed to execute all
documents necessary to accomplish the acquisition of
the above-mentioned personal property and take all
actions necessary to accomplish the foregoing.
DATED this __1st__ day of May, 1996.
/s/_______________
Kent Harmon
/s/_________________
_____
Glade Stringer
/s/_________________
_____
Wayne Hanson
