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BYLAWS
OF
ULTREXX, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICES.
The Company may locate its principal office within or
without the State of Utah as the Board may determine.
SECTION 2. REGISTERED OFFICE.
The board of directors shall establish and maintain a
registered office within the State of Utah. This may be, but need not be, the
same as the principal or other office, if any, maintained by the Company in
the State of Utah.
SECTION 3. OTHER OFFICES.
The board of directors may at any time establish offices at
any place or places, either in the State of Utah, or without, where the
Corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS.
Meetings of shareholders shall be held at any place within
or outside the State of Utah designated by the board of directors. In the
absence of any such designation, shareholders' meetings shall be held at the
principal executive office of the Corporation.
SECTION 2. ANNUAL MEETING.
The annual meeting of shareholders shall be held each year
on a date and at a time designated by the board of directors. At each annual
meeting, directors shall be elected and any other proper business may be
transacted.
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SECTION 3. SPECIAL MEETING.
A special meeting of the shareholders may be called at any
time by the board of directors, or by an officer, or by one or more
shareholders holding shares in the aggregate entitled to cast not less than
thirty percent (30%) of the votes at that meeting.
SECTION 4. NOTICE OF SHAREHOLDERS' MEETING.
All notices of meetings of shareholders shall be sent or
otherwise given in accordance with Section 5 of this Article II not less than
ten (10) nor more than sixty (60) days before the date of the meeting. The
notice shall specify the place, date and time of the meeting and, in the case
of a special meeting, the general nature of the business transacted.
SECTION 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of shareholders shall be given either
personally or by first-class mail or telegraphic or other written
communication, charges prepaid, addressed to each shareholder entitled to vote
at the address of that shareholder appearing on the books of the Corporation
or given by the shareholder to the Corporation for the purpose of notice. If
no such address appears on the Corporation's books or is given, notice shall
be deemed to have been given if sent to that shareholder by first-class mail
or telegraphic or other written communication to the Corporation's principal
executive office, or if published at least once in a newspaper of general
circulation in the county where that office is located. Notice shall be deemed
to have been given at the earliest of a) the time when delivered personally or
deposited in the mail, b) it is received, c) five days after delivered to a
common carrier for transmission to the recipient, d) on the date shown on the
return receipt if sent by registered or certified mail, return receipt
requested, and the return receipt is signed by or on behalf of the addressee,
e) when actually transmitted by electronic or telegraphic means to the
recipient by the person giving the notice, or f) if by publication, on the
first date of publication.
If notice of two consecutive annual shareholders' meetings,
and all notices of meetings or the taking of action by written consent without
a meeting during the period between the two consecutive meetings, is addressed
to a shareholder at the address of that shareholder appearing on the books of
the Corporation, and is returned to the Corporation by the United States
Postal Service marked to indicate that the United States Postal Service is
unable to deliver the notice to the shareholder at that address, then all
future notices or reports shall be deemed to have been duly given without
further mailing if these shall be available to the shareholder on written
demand of the shareholder at the principal executive office of the corporation
for a period of one year from the date of the giving of the notice; however,
if such a shareholder shall at any time submit a current address, then the
notice requirement shall be deemed reinstated. Likewise, if at least two
payments of dividends or interest on securities are sent by first class mail
in the manner explained above in this paragraph, and returned by the postal
service, also as provided above, then all future notices for any purpose shall
be deemed to have been duly given if they shall be available to the
shareholder at the Corporation's principle executive offices, as provided in
this paragraph.
An affidavit of the mailing or other means of giving any
notice of any shareholders' meeting shall be executed by the secretary,
assistant secretary, or any transfer agent of the Corporation giving the
notice, and shall be filed and maintained in the minute book of the
Corporation.
Whenever these Bylaws require written notice, a written
waiver thereof, signed by the person entitled to notice, whether before or
after the time stated therein, shall constitute the equivalent of notice.
Attendance of a person at any meeting shall constitute waiver of notice of
such meeting, except when the person attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting of lack of notice or defective notice.
Attendance of a meeting also waives objection to consideration of a particular
matter at the meeting that is not within the purposes described in the meeting
notice, unless the shareholder objects to considering the matter when it is
presented.
SECTION 6. QUORUM.
The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum is present may continue to
do business until adjournment, notwithstanding the withdrawal of enough
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shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 7. ADJOURNED MEETING; NOTICE.
Any shareholders' meeting, annual or special, whether or not
a quorum is present, may be adjourned from time to time by the vote of the
majority of the shares represented at that meeting, either in person or by
proxy, but in the absence of a quorum, no other business may be transacted at
that meeting, except as provided in Section 6 of this Article II.
When any meeting of shareholders, either annual or special,
is adjourned to another time or place, notice need not be given of the
adjourned meeting of the time and place are announced at a meeting at which
the adjournment is taken, unless a new record date for the adjourned meeting
is fixed, or unless the adjournment is for more than thirty (30) days from the
date set for the original meeting, in which case the board of directors shall
set a new record date. Notice of any such adjourned meeting, if required,
shall be given to each shareholder of record entitled to vote at the adjourned
meeting in accordance with the provisions of Sections 4 and 5 of this Article
II. At any adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting.
SECTION 8. VOTING.
The shareholders entitled to vote at any meeting of
shareholders shall be determined in accordance with the provisions of Section
11 of this Article II, subject to the provisions of Utah law. The
shareholders' vote may be by voice vote or by ballot; provided, however, that
any election for directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than elections of directors,
any shareholder may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal,
but, if the shareholder fails to specify the number of shares which the
shareholder is voting affirmatively, it will be conclusively presumed that the
shareholder's approving vote is with respect to all shares that the
shareholder is entitled to vote. If a quorum is present (or if a quorum had
been present earlier at the meeting but some shareholders had withdrawn), the
affirmative vote of the majority of the shares represented and voting,
provided such shares voting affirmatively also constitutes a majority of the
number of shares required for a quorum, shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required under
Utah law or by the Articles of Incorporation.
SECTION 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS.
The transactions of any meeting of shareholders, either
annual or special, however called and noticed, and wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present either in person or by proxy, and if, either before or after
the meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to a holding of the
meeting, or an approval of the minutes. The waiver of notice or consent need
not specify either the business to be transacted or the purpose of any annual
or special meeting of shareholders, except that if action is taken or proposed
to be taken for approval of any of those matters specified in the second
paragraph of Section 4 of this Article II, the waiver of notice or consent
shall state the general nature of the proposal. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
SECTION 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action which may be taken at any annual or special
meeting of shareholders may be taken without a meeting and without prior
notice if a consent in writing setting forth the action so taken is signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting at
which all shares entitled to vote on that action were present and voted. In
the case of election of directors, such a consent shall be effective only if
signed by the holders of all outstanding shares entitled to vote for the
election of directors; provided, however, that a director may be elected at
any time to fill a vacancy on the board of directors (other than a vacancy
created by removal of
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a director) that has not been filled by the directors, by the written consent
of the holders of a majority of the outstanding shares entitled to vote for
the election of directors. All such consents shall be filed with the secretary
of the Corporation and shall be maintained in the corporate records. Any
shareholder giving a written consent, or the shareholder's proxy holders, or a
transferee of the shares or a personal representative of the shareholder or
their respective proxy holders, may revoke the consent by a writing received
by the secretary of the Corporation before written consents of the number of
shares required to authorize the proposed action have been filed with the
secretary. A shareholder action taken pursuant to this section is not
effective unless all written consents on which the corporation relies for the
taking of the action are received by the Corporation within a sixty day period
and not revoked in writing, if not irrevocable. Revocations under this section
must be received by the Corporation prior to the effective date of the action.
If the consents of all shareholders entitled to vote have
not been solicited in writing, and if the unanimous written consent of all
such shareholders shall not have been received, the secretary shall give
prompt notice of the corporate action approved by the shareholders without a
meeting. This notice shall be given in the manner specified in Section 5 of
this Article II and shall be given at least ten (10) days before the
consummation of any action authorized by that approval.
SECTION 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS.
For purposes of determining the shareholders entitled to
notice of any meeting or to vote or entitled to give consent to corporate
action without a meeting, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of any such meeting nor more than sixty (60) days before any
such action without a meeting, and in this event only shareholders of record
at the close of business on the date so fixed are entitled to notice and to
vote or to give consents as the case may be, notwithstanding any transfer of
any shares on the books of the corporation after the record date, except as
otherwise provided under Utah law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given
or, if notice is waived at the close of business, on the business day next
preceding the day on which the meeting is held;
(b) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, (i) when no
prior action by the board has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the board has been
taken, shall be at the close of business on the day on which the board adopts
the resolution relating to that action, or the sixtieth (60th) day before the
date of such other action, whichever is later.
SECTION 12. PROXIES.
Every person entitled to vote for directors or on any other
matter shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the
secretary of the Corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, before the vote pursuant to that proxy, by
a writing delivered to the Corporation stating that the proxy is revoked, or
by a subsequent proxy executed by, or attendance at the meeting and voting in
person by, the person executing the proxy; or (ii) written notice of the death
or incapacity of the maker of that proxy is received by the Corporation before
the vote pursuant to that proxy is counted; provided, however, that no proxy
shall be valid after the expiration of eleven (11) months from the date of the
proxy, unless otherwise provided in the proxy. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Utah law.
SECTION 13. INSPECTORS OF ELECTION.
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Before any meeting of shareholders, the board of directors
may appoint any persons other than nominees for office to act as inspectors of
election at the meeting or its adjournment. If no inspectors of election are
so appointed, the chairman of the meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one (1) or three (3). If
inspectors are appointed at a meeting on the request of one or more
shareholders or proxies, the holders of a majority of shares or their proxies
present at the meeting shall determine whether one (1) or three (3) inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and upon the request
of any shareholder or a shareholder's proxy shall, appoint a person to fill
that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
(c) Hear and determine all challenges and questions in any
way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
SECTION 1. POWERS.
Subject to the provisions of Utah law and any limitations in
the Articles of Incorporation relating to action required to be approved by
the shareholders or by the outstanding shares, the business and affairs of the
Corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the board of directors.
Without prejudice to these general powers, and subject to
the same limitations, the directors shall have the power to:
(a) Select and remove all officers, agents, and employees of
the Corporation; prescribe any powers and duties for them that are consistent
with law, with the Articles of Incorporation, and with these Bylaws; fix their
compensation; and require from them security for faithful service;
(b) Change the principal executive office or the principal
business office in the State of Utah from one location to another; cause the
Corporation to be qualified to do business in any other state, territory,
dependency, or country and conduct business within or without the State of
Utah; and designate any place within or without the State of Utah for the
holding of any shareholders' meeting, or meetings, including annual meetings;
(c) Adopt, make, and use a corporate seal; prescribe the
forms of certificates of stock; and alter the form of the seal and
certificates;
(d) Authorize the issuance of shares of stock of the
Corporation on any lawful terms, in consideration of money paid, labor done,
services actually rendered, debts or securities cancelled, or tangible or
intangible property actually received;
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(e) Borrow money and incur indebtedness on behalf of the
Corporation, and cause to be executed and delivered for the Corporation's
purposes, in the Corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
SECTION 2. NUMBER AND QUALIFICATION OF DIRECTORS.
The number of directors shall be no fewer than three (3) and
no more than ten (10) until changed by a duly adopted Amendment to the
Articles of Incorporation or by an Amendment to this Bylaw adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote. The number within this range shall be prescribed by the board of
directors or by a vote or written consent of holders of a majority of the
outstanding shares entitled to vote. Any reduction of the number of directors
to a number less five (5) must be adopted by a vote or written consent of at
least 83-1/3% of the outstanding shares entitled to vote.
No reduction of the authorized number of directors shall
have the effect of removing any director before that director's term of office
expires.
SECTION 3. ELECTION AND TERM OF OFFICE OF DIRECTORS.
Directors shall be elected at each annual meeting of the
shareholders to hold office until the next annual meeting. Each director,
including a director elected to full a vacancy, shall hold office until the
expiration of the term for which elected and until a successor has been
elected and qualified.
SECTION 4. VACANCIES.
A vacancy or vacancies in the board of directors shall be
deemed to exist in the event of the death, resignation, or removal of any
director, or if the board of directors by resolution declares vacant the
office of a director, or if the authorized number of directors is increased,
or if the shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the number of directors to be
voted for at that meeting.
Any director may resign effective on giving written notice
to the chairman of the board, the president, the secretary, or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective.
Vacancies in the board of directors may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director. A vacancy created by the removal of a director by the vote
or written consent of the shareholders may be filled only by the vote of a
majority of the shares entitled to vote represented at a duly held meeting of
shareholders at which a quorum is present. Each director so elected shall hold
office until the next annual meeting of the shareholders and until a successor
has been elected and qualified.
The shareholders may elect a director or directors at any
time to fill any vacancy or vacancies, but any such election by written
consent shall require the consent of a majority of the outstanding shares
entitled to vote, except that filling a vacancy created by removal of a
director shall require the written consent of the holders of all outstanding
shares entitled to vote.
SECTION 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE.
Regular or special meetings of the board of directors may be
held as designated from time to time by resolution of the board. In the
absence of a designation stating a place, regular or special meetings shall be
held at the principal executive office of the Corporation. Any meeting,
regular or special, may be held by conference telephone or similar
communication
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equipment, so long as all directors participating in the meeting can hear one
another, and all such directors shall be deemed to be present in person at the
meeting.
SECTION 6. ANNUAL MEETING.
Immediately following each annual meeting of shareholders,
the board of directors shall hold a regular meeting at the place that the
annual meeting of shareholders was held or at any other place that shall have
been designated by the board of directors, for the purpose of organization,
any desired election of officers, and the transaction of other business.
Notice of this meeting shall not be required.
SECTION 7. OTHER REGULAR MEETINGS.
Other regular meetings of the board of directors shall be
held without call at such time as shall from time to time be fixed by the
board of directors. Such regular meetings may be held without notice.
SECTION 8. SPECIAL MEETINGS.
Special meetings of the board of directors for any purpose
or purposes may be called at any time by the chairman of the board or the
president or any vice president or the secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the Corporation. In case
the notice is mailed, it shall be deposited in the United States mail at least
four (4) days before the time of the holding of the meeting. In case the
notice is delivered personally, or by telephone or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director whom the person giving
the notice has reason to believe will promptly communicate it to the director.
The notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the Corporation.
SECTION 9. QUORUM.
A majority of the prescribed number of directors, or if
there is no prescribed number, the number of directors in office immediately
before the meeting begins shall constitute a quorum for the transaction of
business, except to adjourn as provided in Section 11 of this Article III.
Every act or decision done or made by a majority of the directors present
shall be regarded as the act of the board of directors, subject to the
provisions of Utah law. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required quorum for
that meeting.
SECTION 10. WAIVER OF NOTICE.
A director may waive any notice of a meeting before or after
the date and time of the meeting stated in the notice. Any such waiver must be
in writing, signed by the director entitled to such notice, and delivered to
the corporation for filing. A director's attendance at or participation in a
meeting waives the required notice to such director, unless the director at
the beginning of the meeting, or promptly upon arrival, objects to holding the
meeting or transacting the business of the meeting because of lack of notice
or defective notice, and does not thereafter vote for or assent to action
taken at the meeting. All such waivers, consents, and approvals shall be filed
with the corporate records or made a part of the minutes of the meeting.
SECTION 11. ADJOURNMENT.
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A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
SECTION 12. NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an adjourned meeting
need not be given, unless the meeting is adjourned for more than twenty-four
(24) hours, in which case notice of the time and place shall be given before
the time of the adjourned meeting, in the manner specified in Section 8 of
this Article III, to the directors who were not present at the time of the
adjournment.
SECTION 13. ACTION WITHOUT MEETING.
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, if all members of the board shall
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect of a unanimous vote of
the board of directors. Such written consent or consents shall be filed with
the minutes of the proceedings of the board.
SECTION 14. FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement of expenses,
as may be fixed or determined by resolution of the board of directors. This
Section 14 shall not be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent, employee, or
otherwise, and receiving compensation for those services.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES OF DIRECTORS.
The board of directors may, by resolution designate one or
more committees, each consisting of two or more directors, to serve at the
pleasure of the board. Such resolution must be adopted by a majority of the
prescribed number of directors or a majority of the number of directors in
office at when the action is taken, whichever number is greater. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Any committee, to
the extent provided in the resolution of the board, shall have all the
authority of the board, except with respect to:
(a) the approval of any action which, under Utah law, also
requires shareholders' approval or approval of the outstanding shares;
(b) the filling of vacancies on the board of directors or in
any committee;
(c) the fixing of compensation of the directors for serving
on the board or on any committee;
(e) the amendment or repeal of any resolution of the board
of directors which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the Corporation,
except at a rate or in a periodic amount or within a price range determined by
the board of directors; or
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(g) the appointment of any other committees of the board of
directors or the members of these committees.
SECTION 2. MEETINGS AND ACTION OF COMMITTEES.
Meetings and action of committees shall be governed by, and
held and taken in accordance with the provisions of Article III of these
Bylaws, Section 5 (place of meetings), 7 (regular meetings), 8 (special
meetings and notice), 9 (quorum), 10 (waiver and notice), 11 (adjournment), 12
(notice of adjournment), and 13 (action without meeting), with such changes in
the context of those Bylaws as are necessary to substitute the committee and
its members for the board of directors and its members, except that the time
of regular meetings of committees may be determined either by resolution of
the board of directors or by resolution of the committee; special meetings of
committees may also be called by resolution of the board of directors; and
notice of special meetings of committees shall also be given to all alternate
members who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
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ARTICLE V
OFFICERS
SECTION 1. OFFICERS.
The officers of the Company shall consist of such officers
as the Board may designate and elect from time to time, consistent with the
Company's Articles of Incorporation and these Bylaws. The same person may hold
at the same time any two or more offices.
SECTION 2. ELECTION OF OFFICERS.
The officers of the Corporation, except such officers as may
be appointed in accordance with the provisions of Section 3 or Section 5 of
this Article V, shall be chosen by the board of directors, and each shall
serve at the pleasure of the board, subject to the rights, if any, of an
officer under any contract of employment.
SECTION 3. SUBORDINATE OFFICERS.
The board of directors may appoint, and may empower the
president to appoint, such other officers as the business of the Corporation
may require, each of whom shall hold office for such period, have such
authority and perform such duties as are provided in the Bylaws or as the
board of directors may from time to time determine.
SECTION 4. REMOVAL AND RESIGNATION OF OFFICER.
Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with or without
cause, by the board of directors, at any regular or special meeting of the
board, or, except in case of an officer chosen by the board of directors, by
any officer upon whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving written notice
to the Corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in the notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to
which the officer is a party.
SECTION 5. VACANCIES IN OFFICES.
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to that office.
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SECTION 6. CHAIRMAN OF THE BOARD.
The chairman of the board, if such an officer be elected,
shall, if present, preside at meetings of the board of directors and exercise
and perform such other powers and duties as may be from time to time assigned
to him by the board of directors or prescribed by the Bylaws. If there is no
president, the chairman of the board shall in addition be the chief executive
officer of the Corporation and shall have the powers and duties prescribed in
Section 7 of this Article V.
SECTION 7. PRESIDENT.
Subject to such supervisory powers, if any, as may be given
by the Bylaws or the board of directors to the chairman of the board, if there
be such an officer, the president shall be the general manager and chief
executive officer of the Corporation and shall, subject to the control of the
board of directors, have general supervision, direction, and control of the
business and the officers of the Corporation. He shall preside at all meetings
of the shareholders and, in the absence of the chairman of the board, or if
there be none, at all meetings of the board of directors. He shall have the
general powers and duties of management usually vested in the office of
president of a Corporation, and shall have such other powers and duties as may
be prescribed by the board of directors or the Bylaws.
SECTION 8. VICE PRESIDENTS.
In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the board of directors
or, if not ranked, a vice president designated by the board of directors,
shall perform all 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.
The vice presidents shall have such other powers and perform such other duties
as from time to time may be prescribed for them respectively by the board of
directors or the Bylaws, and the president, or the chairman of the board if
there is no president.
SECTION 9. SECRETARY.
The secretary shall keep or cause to be kept, at the
principal executive office or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the
names of those present at directors' meetings or committee meetings, the
number of shares present or represented at shareholders' meetings, and the
proceedings.
The secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the Corporation's transfer
agent or registrar, as determined by resolution of the board of directors, a
share register, or a duplicate share register, showing the names of all
shareholders and their addresses, the number and classes of shares held by
each, the number and date of certificates issued for the same, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary or assistant secretary, or if they are absent
or unable to act or refuse to act, any other officer of the corporation shall
give, or cause to be given, notice of all meetings of the shareholders, of the
board of directors and of committees of the board of directors, required by
the Bylaws or by law to be given. The secretary shall keep the seal of the
Corporation, if one be adopted, in safe custody and shall have such other
powers and perform such other duties as may be prescribed by the board of
directors or by the Bylaws.
SECTION 10. CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings, and shares. The books of account shall at
all reasonable times be open to inspection by any director.
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The chief financial officer shall deposit all moneys and
other valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the board of directors. He shall disburse
the funds of the Corporation as may be ordered by the board of directors,
whenever they request it, an account of all of his transactions as chief
financial officer and of the financial condition of the Corporation, and shall
have other powers and perform such other duties as may be prescribed by the
board of directors or the Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND OTHER AGENTS
SECTION 1. AGENTS, PROCEEDINGS, AND EXPENSES.
For the purposes of this Article, "agent" means any person
who is or was a director, officer, employee, or other agent of this
Corporation, or is or was serving at the request of this Corporation as a
director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic corporation
which was a predecessor corporation of this Corporation or of another
enterprise at the request of such predecessor corporation; "proceeding" means
any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal; and
"expenses" includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under Section 4 or Section 5(c) of
this Article.
SECTION 2. ACTIONS OTHER THAN BY THE CORPORATION.
This Corporation shall have power to indemnify any person
who was or is a party, or is threatened to be made a party, to any proceeding
(other than an action by or in the right of this Corporation to procure a
judgment in its favor) by reason of the fact that such person is or was an
agent of this Corporation, against expense, judgments, finds, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if that person acted in good faith and in a manner that person
reasonably believed to be in the best interests of this Corporation, and, in
the case of a criminal proceeding, had no reasonable cause to believe the
conduct of that person was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to
be in the best interest of this Corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
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SECTION 3. ACTIONS BY THE CORPORATION.
This Corporation shall have power to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action by or in the right of this Corporation to procure
a judgment in its favor by reason of the fact that the person is or was an
agent of this Corporation, against expenses actually and reasonably incurred
by that person in connection with the defense or settlement of that action if
that person acted in good faith, in a manner that person believed to be in the
best interests of this Corporation and with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under
similar circumstances. No indemnification shall be made under this Section 3:
(a) In respect to any claim, issue or matter as to which
that person shall have been adjudged to be liable to this Corporation in the
performance of that person's duty to this Corporation, unless and only to the
extent that the court in which the proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
that person is fairly and reasonably entitled to indemnity for the expenses
which the court shall determine.
(b) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; and
(c) Of expenses incurred in defending a threatened or
pending action that is settled or otherwise disposed of with or without court
approval.
SECTION 4. SUCCESSFUL DEFENSE BY AGENT.
To the extent that an agent of this Corporation has been
successful on the merits in defense of any proceeding referred to in Sections
2 or 3 of this Article, or in defense of any claim, issue, or matter therein,
the agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
SECTION 5. REQUIRED APPROVAL.
Except as provided in Section 4 of this Article, any
indemnification under this Article shall be made by this Corporation only if
authorized in the specific case on a determination that indemnification of the
agent is proper in the circumstances because the agent has met the applicable
standard of conduct set forth in Sections 2 or 3 of this Article, by:
(a) By the board of directors by a majority vote of those
present at a meeting at which a quorum is present, provided that directors, if
any, who are parties to the proceeding shall not be counted for purposes of
satisfying the quorum;
(b) Approval by the affirmative vote of a majority of the
shares of this Corporation entitled to vote represented at a duly held meeting
at which a quorum is present or by the written consent of the holders of a
majority of the outstanding shares entitled to vote. For this purpose, the
shares owned by the person to be indemnified shall not be considered
outstanding or entitled to vote thereon;
(c) The court in which the proceeding is or was pending, on
application made by this Corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by this
Corporation;
(d) By special legal counsel selected by the board of
directors as in (a) above; or
(e) By any other means provided for under Utah law.
SECTION 6. ADVANCE OF EXPENSES.
Expenses incurred in defending any proceeding may be
advanced by this Corporation before the final disposition of the proceeding on
receipt of a) a written statement by the agent affirming his or her good faith
belief that he or she has met the
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applicable standard of conduct specified in the Revised Business Corporation
Act of Utah, and b) has furnished to the Corporation a written undertaking by
or on behalf of the agent to repay the amount of the advance unless it shall
be determined ultimately that the agent is entitled to be indemnified as
authorized in this Article, and c) a determination is made, as provided in
Section 5 above, that the facts then known would not preclude indemnification
under Utah law.
SECTION 7. OTHER CONTRACTUAL RIGHTS.
Nothing contained in this Article shall affect any right to
indemnification to which persons other than directors and officers of this
Corporation or any subsidiary hereof may be entitled by contract or otherwise.
SECTION 8. LIMITATIONS.
No indemnification or advance shall be made under this
Article, except as provided in Section 4 or Section 5(c), in any circumstance
where it appears:
(a) That it would be inconsistent with a provision of the
articles of incorporation, a resolution of the shareholders, or an agreement
in effect at the time of the accrual of the alleged cause of action asserted
in the proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
SECTION 9. INSURANCE.
Upon and in the event of a determination by the board of
directors of this Corporation to purchase such insurance, this Corporation
shall purchase and maintain insurance on behalf of any agent of the
Corporation against any liability asserted against or incurred by the agent in
such capacity or arising out of the agent's status as such whether or not this
Corporation would have the power to indemnify the agent against that liability
under the provisions of this section.
SECTION 10. FIDUCIARIES OF CORPORATE EMPLOYEE BENEFIT PLAN.
This Article does not apply to any proceeding against any
trustee, investment manager, or other fiduciary of an employee benefit plan in
that person's capacity as such, even though that person may also be an agent
of the corporation as defined in Section 1 of this Article. This Corporation
shall have the power to indemnify, and to purchase and maintain insurance on
behalf of, any such trustee, investment manager, or other fiduciary of any
pension, profit-sharing, share bonus, share purchase, share option, savings,
thrift and other retirement, incentive, and benefit plan, trust, and other
provision for any or all of the directors, officers, and employees of the
Corporation or any of its subsidiary or affiliated corporations, and to
indemnify and purchase and maintain insurance on behalf of any fiduciary of
such plans, trusts, or provisions. Nothing contained in this Article shall
limit any right to indemnification to which such a trustee, investment
manager, or other fiduciary may be entitled by contract or otherwise, which
shall be enforceable to the extent permitted by applicable law other than this
Article.
ARTICLE VII
RECORDS AND REPORTS
SECTION 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The Corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, if either be
appointed and as determined by resolution of the board of directors, a record
of its shareholders in a form that permits preparation of a list of
shareholders that is (a) arranged by voting group and within each voting group
by class or series of
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shares, (b) that is in alphabetical order within each class or series; and (c)
that shows the address of an the number of shares of each class and series
held by each shareholder.
Any shareholder of the Corporation may (i) inspect and copy
the records of shareholders' names and addresses and shareholdings during
usual business hours on five (5) business days' prior written demand on the
Corporation. Any shareholder may obtain from the transfer agent of the
Corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the shareholders' names and addresses,
who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the shareholder after the date of
demand. This list shall be made available to any such shareholder or
shareholders by the transfer agent on or before the later of five (5) days
after the demand is received or the date specified in the demand as the date
as of which the list is to be compiled. The record of shareholders shall also
be open to inspection on the written demand of any shareholder or holder of a
voting trust certificate, at any time during usual business hours, for a
purpose reasonably related to the holder's interests as a shareholder or as
the holder of a voting trust certificate. Any inspection and copying under
this Section 1 may be made in person or by an agent or attorney of the
shareholder or holder of a voting trust certificate making the demand.
SECTION 2. MAINTENANCE AND INSPECTION OF BYLAWS.
The Corporation shall keep at its principal executive
office, or if its principal executive office is not in the State of Utah, at
its principal business office in Utah, the original or a copy of the Bylaws as
amended to date, which shall be open to inspection by the shareholders or
directors at all reasonable times during office hours. If the principal
executive office of the Corporation is outside the State of Utah and the
Corporation has no principal business office in this State, the secretary
shall, upon the written request of any shareholder, furnish to that
shareholder a copy of the Bylaws as amended to date.
SECTION 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS.
The Corporation shall keep a copy of the following records
at its principle office. These include (a) its Articles of Incorporation
currently in effect, (b) its Bylaws currently in effect, (c) the minutes of
all shareholders' meetings, and records of all action taken by shareholders
without a meeting, for the past three years, (d) all written communications
within the past three years to shareholders as a group or to the holders of
any class or series of shares as a group, (e) a list of the names and business
addresses of its current officers and directors, (f) its most recent annual
report, and (g) all quarterly, transitional, or annual financial reports for
the last three years.
In addition to the above records, any shareholder shall also
have the right to inspect and copy, during regular business hours at a
reasonable location specified by the Corporotion, upon providing the required
notice, any of the following records. These include (a) excerpts from minutes
of any meeting or records of any action taken by the board of directors or by
a committee of the board, (b) excerpts from the minutes of any meeting of the
shareholders, and (c) records of any action taken by shareholder without a
meeting.
The records specified above in this Section 3 shall be open
to inspection upon the written demand five (5) business days in advance by any
shareholder or holder of a voting trust certificate, at any reasonable time
during usual business hours when the demand is made in good faith, for a
proper purpose, and the records are reasonably related to such proper purpose.
The inspection may be made in person or by an agent or attorney, and shall
include the right to copy and make extracts. These rights of inspection shall
extend to the records of each subsidiary corporation of the Corporation.
SECTION 4. INSPECTION BY DIRECTORS.
Every director shall have the absolute right at any
reasonable time to inspect all books, records, and documents of every kind and
the physical properties of the Corporation and each of its subsidiary
corporations. This inspection by a director may be made in person or by an
agent or attorney and the right of inspection includes the right to copy and
make extracts of documents.
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SECTION 5. ANNUAL REPORT TO SHAREHOLDERS.
Unless required by law, the Corporation need not send an
annual report to its shareholders, but nothing herein shall be interpreted as
prohibiting the board of directors from issuing annual or other periodic
reports to the shareholders of the Corporation as they consider appropriate.
SECTION 6. FINANCIAL STATEMENTS.
A copy of any annual financial statement and any income
statement of the Corporation for each quarterly period of each fiscal year,
and any accompanying balance sheet of the Corporation as of the end of each
such period, that has been prepared by the Corporation shall be kept on file
in the principal executive office of the Corporation for twelve (12) months
and each such statement shall be exhibited at all reasonable times to any
shareholder demanding an examination of any such statement or a copy shall be
mailed to any such shareholder.
If a shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of stock of the
Corporation makes a written request to the Corporation for an income statement
of the Corporation for the three-month, six-month or nine-month period of the
then current fiscal year ended more than thirty (30) days before the date of
the request, and a balance sheet of the Corporation as of the end of that
period, the chief financial officer shall cause that statement to be prepared,
if not already prepared, and shall deliver personally or mail that statement
or statements to the person making the request within thirty (30) days after
the receipt of the request. If the Corporation has not sent to the
shareholders its annual report for the last fiscal year, this report, if any,
shall likewise be delivered or mailed to the shareholder or shareholders
within thirty (30) days after the request.
The Corporation shall also, on the written request of any
shareholder, mail to the shareholder a copy of the last annual, semi-annual,
or quarterly income statement which it has prepared, and a balance sheet as of
the end of that period.
The quarterly income statements and balance sheets referred
to in this section shall be accompanied by the report, if any, of any
independent accountants engaged by the Corporation or the certificate of an
authorized officer of the Corporation that the financial statements were
prepared without audit from the books and records of the Corporation.
SECTION 7. ANNUAL STATEMENT OF GENERAL INFORMATION.
The Corporation shall submit an annual report to the Utah
Division of Corporations and Commercial Code on the prescribed form each year
no later than the end of the second calendar month following the calendar
month in which the report form is mailed by the division.
ARTICLE VIII
GENERAL CORPORATE MATTERS
SECTION 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
For purposes of determining the shareholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights or entitled to exercise any rights in respect of any other lawful
action (other than action by shareholders by written consent without a
meeting), the board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) days nor less than ten (10) days before any
such action, and in that case only shareholders of record at the close of
business on the date so fixed are entitled to receive the dividend,
distribution, or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date so fixed, except as otherwise provided in
Utah law.
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If the board of directors does not so fix a record date, the
record date for determining shareholders for any such purpose shall be at the
close of business on the day on which the board adopts the applicable
resolution or the sixtieth.
SECTION 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS.
All checks, drafts, or other orders for payment of money,
notes, or other evidences of indebtedness, issued in the name of or payable to
the Corporation, shall be signed or endorsed by such person or persons and in
such manner as, from time to time, shall be determined by resolution of the
board of directors.
SECTION 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED.
The board of directors, except as otherwise provided in
these Bylaws, may authorize any officer or officers, agent or agents, to enter
into any contract or re-execute any instrument in the name of and on behalf of
the Corporation, and this authority may be general or confined to specific
instances; and, unless so authorized or ratified by the board of directors or
within the agency power of an officer, no officer, agent, or employee shall
have any power or authority to bind the Corporation by any contract or
engagement or to pledge its credit or to render it liable for any purpose or
for any amount.
SECTION 4. CERTIFICATE FOR SHARES.
The board of directors shall have the authority to determine
which, if any, shares in the Corporation shall be represented by certificates.
The board of directors may authorize the issuance of certificates for shares
that are fully or partly paid, provided that in the latter case, these
certificates shall state the amount of the consideration to be paid for them
and the amount paid. If the shares are subject to restrictions upon transfer,
the restriction or restrictions shall also appear on the certificate. If the
Corporation is authorized to issue different classes of shares or different
series within a class, the designations, preferences, limitations, and
relative rights applicable to each class or series and the authority of the
board of directors to determine variations for any existing or future class or
series must be summarized on the front or back of each certificate.
Alternatively, each certificate may state that the Corporation will furnish
this information free of charge upon request in writing. All certificates
shall be signed in the name of the Corporation by the chairman of the board or
vice chairman of the board or the president or vice president and by the chief
financial officer or an assistant treasurer or the secretary or any assistant
secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. All shares shall bear the seal of the Corporation.
The seal and any or all of the signatures on the certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on a certificate shall have ceased to be
that officer, transfer agent, or registrar before that certificate is issued,
it may be issued by the Corporation with the same effect as if that person
were an officer, transfer agent, or registrar at the date of issue.
SECTION 5. LOST CERTIFICATES.
Except as provided in this Section 5, no new certificates
for shares shall be issued to replace an old certificate unless the latter is
surrendered to the Corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen, or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the board may require,
including provision for indemnification of the Corporation secured by a bond
or other adequate security sufficient to protect the Corporation against any
claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft, or destruction of the certificate or the
issuance of the replacement certificate.
SECTION 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chairman of the board, the president, or any vice
president, or any other person authorized by resolution of the board of
directors or by any of the foregoing designated officers, is authorized to
vote on behalf of the Corporation any and all
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shares of any other corporation or corporations, foreign or domestic, standing
in the name of the Corporation. The authority granted to these officers to
vote or represent on behalf of the Corporation any and all shares held by the
Corporation in any other corporation or corporations may be exercised by any
of these officers in person or by any person authorized to do so by a proxy
duly executed by these officers.
SECTION 7. EMPLOYEE STOCK PURCHASE PLANS.
The Corporation may, upon terms and conditions herein
authorized, provide and carry out an employee stock purchase plan or plans
providing for the issue and sale, or for the granting of options for the
purchase, of its unissued shares, or of issued shares purchased or to be
purchased or acquired, to shareholders or employees of the Corporation or of
any subsidiary or to a trustee on their behalf. Such plan may provide for such
consideration as may be fixed therein, for the payment of such shares in
installments or at one time and for aiding any such employees in paying for
such shares by compensation for services or otherwise. Any such plan before
becoming effective must be approved or authorized by the board of directors of
the Corporation.
Such plan may include, among other things, provisions
determining or providing for the determination by the board of directors, or
any committee thereof designated by the board of directors, of:
(a) eligibility of employees (including officers and
directors) and shareholders to participate therein,
(b) the number and class of shares which may be subscribed
for or for which options may be granted under the plan,
(c) the time and method of payment therefor, shall be issued
or sold,
(d) the price or prices at which such shares shall be issued
or sold,
(e) whether or not title to the shares shall be reserved to
the Corporation until full payment thereof,
(f) the effect of the death of a shareholder or an employee
participating in the plan or termination of his employment, including whether
there shall be any option or obligation on the part of the Corporation to
repurchase the shares thereupon,
(g) restrictions, if any, upon the transfer of the shares,
and the time limits, and termination of the plan,
(h) termination, continuation or adjustments of the rights
of participating employees and shareholders upon the happening of specified
contingencies, including increase or decrease in the number or issued shares
of the class covered by the plan without receipt of consideration by the
Corporation or any exchange of shares of such class for stock or securities of
another corporation pursuant to a reorganization or merger, consolidation or
dissolution of the Corporation,
(i) amendment, termination, interpretation and
administration of such plan by the board or any committee thereof designated
by the board of directors, and
(j) any other matters, not repugnant to law, as may be
included in the plan as approved or authorized by the board of directors or
any such committee.
SECTION 8. CONSTRUCTION AND DEFINITIONS.
Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in Utah law shall govern
the construction of these Bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and natural
person.
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ARTICLE IX
AMENDMENTS
Subject to the provisions of the Certificate of
Incorporation, the Shareholders or the Board may amend or repeal these Bylaws
at any meeting.
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