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Exhibit 3.4
BYLAWS
OF
TOMAX TECHNOLOGIES INC.
A UTAH CORPORATION
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TABLE OF CONTENTS
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ARTICLE PAGE
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ARTICLE I. OFFICES...................................................................... 1
Section 1.1 Business Office.................................................... 1
Section 1.2 Registered Office.................................................. 1
ARTICLE II. SHAREHOLDERS................................................................ 1
Section 2.1 Annual Shareholder Meeting......................................... 1
Section 2.2 Special Shareholder Meetings....................................... 1
Section 2.3 Place of Shareholder Meetings...................................... 2
Section 2.4 Notice of Shareholder Meetings..................................... 2
Section 2.5 Meetings by Telecommunications..................................... 3
Section 2.6 Fixing of Record Date.............................................. 3
Section 2.7 Shareholder List................................................... 4
Section 2.8 Shareholder Quorum and Voting Requirements......................... 4
Section 2.9 Increasing Either Quorum or Voting Requirements.................... 4
Section 2.10 Proxies............................................................ 5
Section 2.11 Voting of Shares................................................... 5
Section 2.12 Corporation's Acceptance of Votes.................................. 5
Section 2.13 Inspectors of Election............................................. 6
Section 2.14 Shareholder Action Without Meeting................................. 6
Section 2.15 Vote Required; Election of Directors............................... 7
Section 2.16 Business at Annual Meeting......................................... 7
Section 2.17 Notification of Nominations........................................ 8
Section 2.18 Conduct of Meeting................................................. 8
Section 2.19 Shareholder's Rights to Inspect Corporate Records.................. 9
Section 2.20 Financial Statements Shall be Furnished to the Shareholders........ 10
Section 2.21 Dissenters' Rights................................................. 10
ARTICLE III. BOARD OF DIRECTORS......................................................... 10
Section 3.1 General Powers..................................................... 10
Section 3.2 Number, Tenure, and Qualification of Directors..................... 10
Section 3.3 Regular Meetings of the Board of Directors......................... 10
Section 3.4 Special Meetings of the Board of Directors......................... 11
Section 3.5 Notice of, and Waiver of Notice for, Special Director
Meetings........................................................... 11
Section 3.6 Director Quorum.................................................... 11
Section 3.7 Directors, Manner of Acting........................................ 11
Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement........ 12
Section 3.9 Director Action Without a Meeting.................................. 12
Section 3.10 Removal of Directors............................................... 12
Section 3.11 Board of Director Vacancies........................................ 12
Section 3.12 Director Compensation.............................................. 13
Section 3.13 Director Committees................................................ 13
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ARTICLE IV. OFFICERS.................................................................... 14
Section 4.1 Number of Officers................................................. 14
Section 4.2 Appointment and Term of Office..................................... 14
Section 4.3 Removal of Officers................................................ 14
Section 4.4 Chairman........................................................... 15
Section 4.5 President.......................................................... 15
Section 4.6 Vice-Presidents.................................................... 15
Section 4.7 Secretary.......................................................... 15
Section 4.8 Treasurer.......................................................... 15
Section 4.9 Assistant Secretaries and Assistant Treasurers..................... 16
Section 4.10 Salaries........................................................... 16
ARTICLE V. INDEMNIFICATION.............................................................. 16
Section 5.1 Indemnification of Directors....................................... 16
Section 5.2 Advance Expenses for Directors..................................... 16
Section 5.3 Indemnification of Officers, Agents, and Employees Who are
not Directors...................................................... 17
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER.................................. 17
Section 6.1 Certificates for Shares............................................ 17
Section 6.2 Shares Without Certificates........................................ 17
Section 6.3 Registration of the Transfer of Shares............................. 18
Section 6.4 Restrictions on Transfer of Shares Permitted....................... 18
Section 6.5 Acquisition of Shares.............................................. 19
ARTICLE VII. DISTRIBUTIONS.............................................................. 19
ARTICLE VIII. CORPORATE SEAL............................................................ 19
ARTICLE IX. DIRECTORS CONFLICTING INTEREST TRANSACTIONS................................. 19
ARTICLE XI. FISCAL YEAR................................................................. 20
CERTIFICATE OF SECRETARY................................................................. 20
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BYLAWS OF
TOMAX TECHNOLOGIES INC.
ARTICLE I. OFFICES
Section 1.1 Business Office.
The principal office of the corporation shall be located at any place
either within or outside the state of Utah as designated in the corporation's
most current annual report filed with the Utah Division of Corporations and
Commercial Code. The corporation may have such other offices, either within or
without the state of Utah, as the board of directors may designate or as the
business of the corporation may require from time to time. The corporation shall
maintain at its principal office a copy of certain records, as specified in
section 2.19 of Article II.
Section 1.2 Registered Office.
The registered office of the corporation, required by section 16-10a-501
of the Utah Revised Business Corporation Act (the "Act") or any section of like
tenor as from time to time amended shall be located within Utah and may be, but
need not be, identical with the principal office (if located within Utah). The
address of the registered office may be changed from time to time.
ARTICLE II. SHAREHOLDERS
Section 2.1 Annual Shareholder Meeting.
The annual meeting of the shareholders shall be held within 150 days of
the close of the corporation's fiscal year, at a time and date as is determined
by the corporation's board of directors, for the purpose of electing directors
and for the transaction of such other business as may come before the meeting.
If the day fixed for the annual meeting shall be a legal holiday in the state of
Utah, such meeting shall be held on the next succeeding business day.
If the election of directors shall not be held on the day designated
herein for any annual meeting of the shareholders, or at any subsequent
continuation after adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as convenient. The failure to hold an annual or special meeting does not affect
the validity of any corporate action or work a forfeiture or dissolution of the
corporation.
Section 2.2 Special Shareholder Meetings.
Special meetings of the shareholders, for any purpose or purposes
described in the meeting notice, may be called by the president or by the board
of directors and shall be called by the president at the request of the holders
of not less than one-tenth of all outstanding votes of the corporation entitled
to be cast on any issue at the meeting.
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Section 2.3 Place of Shareholder Meetings.
The board of directors may designate any place, either within or without
the state of Utah, as the place of meeting for any annual or any special meeting
of the shareholders, unless by written consents, which may be in the form of
waivers of notice or otherwise, a majority of shareholders entitled to vote at
the meeting may designate a different place, either within or without the state
of Utah, as the place for the holding of such meeting. If no designation is made
by either the directors or majority action of the voting shareholders, the place
of meeting shall be the principal office of the corporation.
Section 2.4 Notice of Shareholder Meetings.
(a) Required Notice. Written notice stating the place, day, and
time of any annual or special shareholder meeting shall be delivered not
less than 10 nor more than 60 days before the date of the meeting,
either in person, by any form of electronic communication, by mail, by
private carrier, or by any other manner provided for in the Act, by or
at the direction of the president, the board of directors, or other
persons calling the meeting, to each shareholder of record, entitled to
vote at such meeting and to any other shareholder entitled by the Act or
the articles of incorporation to receive notice of the meeting. Notice
shall be deemed to be effective at the earlier of: (1) when deposited in
the United States mail, addressed to the shareholder at his address as
it appears on the stock transfer books of the corporation, with postage
thereon prepaid; (2) on the date shown on the return receipt if sent by
registered or certified mail, return receipt requested, and the receipt
is signed by or on behalf of the addressee; (3) when received; or (4)
five days after deposit in the United States mail, if mailed postpaid
and correctly addressed to an address other than that shown in the
corporation's current record of shareholders.
(b) Adjourned Meeting. If any shareholder meeting is adjourned to
a different date, time, or place, notice need not be given of the new
date, time, and place, if the new date, time, and place is announced at
the meeting before adjournment. If a new record date for the adjourned
meeting is, or must be fixed (see section 2.8 of this Article II) or if
the adjournment is for more than 30 days, then notice must be given
pursuant to the requirements of paragraph (a) of this section 2.4, to
those persons who are shareholders as of the new record date.
(c) Waiver of Notice. The shareholder may waive notice of the
meeting (or any notice required by the Act, articles of incorporation,
or bylaws), by a writing signed by the shareholder entitled to the
notice, which is delivered to the corporation (either before or after
the date and time stated in the notice) for inclusion in the minutes or
filing with the corporate records.
(d) Shareholder Attendance. A shareholder's attendance at a
meeting:
(1) waives objection to lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at
the meeting; and
(2) waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder objects
to considering the matter when it is presented.
(e) Contents of Notice. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for which
the meeting is called. Except as provided in this section 2.4(e), the
articles of incorporation, or otherwise in the Act, the notice of an
annual
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shareholder meeting need not include a description of the purpose or
purposes for which the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange, or other disposition of all, or
substantially all of the corporation's property; (4) the dissolution of the
corporation; or (5) the removal of a director, the notice must so state and, to
the extent applicable, be accompanied by a copy or summary of the: (1) articles
of amendment; (2) plan of merger or share exchange; (3) agreement for the
disposition of all or substantially all of the corporation's property; or (4)
the terms of the dissolution. If the proposed corporate action creates
dissenters' rights, the notice must state that shareholders are, or may be
entitled to assert dissenters' rights, and must be accompanied by a copy of the
provisions of the Act governing such rights.
Section 2.5 Meetings by Telecommunications.
Any or all of the shareholders may participate in an annual or special
meeting of shareholders by, or the meeting may be conducted through the use of,
any means of communication by which all persons participating in the meeting can
hear each other during the meeting. A shareholder participating in a meeting by
this means is considered to be present in person at the meeting.
Section 2.6 Fixing of Record Date.
For the purpose of determining shareholders of any voting group entitled
to notice of or to vote at any meeting of shareholders, or shareholders entitled
to receive payment of any distribution or dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date. Such record date shall
not be more than 70 days prior to the meeting of shareholders or the payment of
any distribution or dividend. If no record date is so fixed by the board of
directors for the determination of shareholders entitled to notice of, or to
vote at a meeting of shareholders, or shareholders entitled to receive a share
dividend or distribution, or in order to make a determination of shareholders
for any other proper purpose, the record date for determination of such
shareholders shall be at the close of business on:
(a) With respect to an annual shareholder meeting or any special
shareholder meeting called by the board of directors or any person
specifically authorized by the board of directors or these bylaws to
call a meeting, the day before the first notice is delivered to
shareholders;
(b) With respect to a special shareholders' meeting demanded by
the shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
board of directors authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article II, section 2.14), the date the first shareholder
signs a consent; and
(e) With respect to a distribution to shareholders (other than
one involving a repurchase or reacquisition of shares), the date the
board authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section 2.6, such determination
shall apply to any adjournment thereof unless
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the board of directors fixes a new record date. A new record date must be fixed
if the meeting is adjourned to a date more than 120 days after the date fixed
for the original meeting.
Section 2.7 Shareholder List.
The officer or agent having charge of the stock transfer books for
shares of the corporation shall make a complete record of the shareholders
entitled to vote at each meeting of shareholders, arranged in alphabetical order
with the address of and the number of shares held by each. The list must be
arranged by voting group (if such exists, see Article II, section 2.8) and
within each voting group by class or series of shares. The shareholder list must
be available for inspection by any shareholder, beginning on the earlier of ten
days before the meeting for which the list was prepared or two business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting. The list shall be available at the corporation's
principal office or at a place identified in the meeting notice in the city
where the meeting is to be held. A shareholder, or his agent or attorney, is
entitled, on written demand, to inspect and, subject to the requirements of
section 2.19 of this Article II and sections 16-10a-1602 and 16-10a-1603 of the
Act, or any sections of like tenor as from time to time amended, to inspect and
copy the list during regular business hours, at his expense, during the period
it is available for inspection. The corporation shall maintain the shareholder
list in written form or in another form capable of conversion into written form
within a reasonable time.
Section 2.8 Shareholder Quorum and Voting Requirements.
If the articles of incorporation or the Act provides for voting by a
single voting group on a matter, action on that matter is taken when voted upon
by that voting group.
Shares entitled to vote as a separate voting group may take action on a
matter at a meeting only if a quorum of those shares exists with respect to that
matter. Unless the articles of incorporation, a bylaw adopted pursuant to
section 2.9 of this Article II, or the Act provides otherwise, a majority of the
votes entitled to be cast on the matter by the voting group constitutes a quorum
of that voting group for action on that matter.
If the articles of incorporation or the Act provides for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by another
voting group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation, a bylaw adopted pursuant to section 2.9 of this
Article II, or the Act require a greater number of affirmative votes.
Section 2.9 Increasing Either Quorum or Voting Requirements.
For purposes of this section 2.9, a "supermajority" quorum is a
requirement that more than a majority of the votes of the voting group be
present to constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of the affirmative
votes of a voting group at a meeting.
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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.
Section 2.10 Proxies.
At all meetings of shareholders, a shareholder may vote in person, or
vote by proxy, executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation or other person authorized to tabulate votes before or at the time
of the meeting. No proxy shall be valid after 11 months from the date of its
execution unless otherwise provided in the proxy.
Section 2.11 Voting of Shares.
Unless otherwise provided in the articles of incorporation, each
outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by the corporation, shall be voted
at any meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting; provided, however, the prior
sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 2.12 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to accept the vote,
consent, waiver, or proxy appointment or revocation and give it effect
as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation does not correspond to the name of its
shareholder, the corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver, or proxy appointment or
revocation and give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the Act and
the name signed purports to be that of an officer or agent of the
entity;
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(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment or revocation;
(3) the name signed purports to be that of receiver or
trustee in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the corporation
has been presented with respect to the vote, consent, waiver, or
proxy appointment or revocation;
(4) the name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if
the corporation requests, evidence acceptable to the corporation
of the signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver, or proxy
appointment or revocation; and
(5) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at
least one of the co-owners and the person signing appears to be
acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent,
waiver, or proxy appointment or revocation if the secretary or other
officer or agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature or about
the signatory's authority to sign for the shareholder.
(d) The corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, or proxy appointment or revocation in
good faith and in accordance with the standards of this section are not
liable in damages to the shareholder for the consequences of the
acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a
vote, consent, waiver, or proxy appointment or revocation under this
section 2.12 is valid unless a court of competent jurisdiction
determines otherwise.
Section 2.13 Inspectors of Election.
There shall be appointed at least one inspector of the vote. Such
inspector shall first take and subscribe an oath or affirmation faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. Unless appointed in advance of any such
meeting by the board of directors, such inspector shall be appointed for the
meeting by the presiding officer. In the absence of any such appointment, the
secretary of the corporation shall act as the inspector. No candidate for the
office of director (whether or not then a director) shall be appointed as such
inspector. Such inspector shall be responsible for tallying and certifying each
vote, whether made in person or by proxy.
Section 2.14 Shareholder Action Without Meeting.
Any action required or permitted to be taken at a meeting of the
shareholders, except for the election of directors as set forth in section 2.15
of this Article II, may be taken without a meeting and without prior notice if
one or more consents in writing, setting forth the action so taken, shall be
signed by shareholders having not less than the minimum number of votes that
would be necessary to authorize or take the action at a meeting at which all
shares entitled to vote with respect to the subject matter thereof are present.
Directors may be elected without a meeting of shareholders by the written
consent of
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the shareholders holding all of the shares entitled to vote for the election of
directors. Unless the written consents of all shareholders entitled to vote have
been obtained, notice of any shareholder approval without a meeting shall be
given at least ten days before the consummation of the action authorized by the
approval to (i) those shareholders entitled to vote who have not consented in
writing, and (ii) those shareholders not entitled to vote and to whom the Act
requires that notice of the proposed action be given. If the act to be taken
requires that notice be given to nonvoting shareholders, the corporation shall
give the nonvoting shareholders written notice of the proposed action at least
ten days before the action is taken. The notice shall contain or be accompanied
by the same material that would have been required if a formal meeting had been
called to consider the action. A consent signed under this section 2.14 has the
effect of a meeting vote and may be described as such in any document. The
written consents are only effective if received by the corporation within a 60
day period and not revoked prior to the receipt of the written consent of that
number of shareholders necessary to effectuate such action. Action taken
pursuant to a written consent is effective as of the date the last written
consent necessary to effect the action is received by the corporation, unless
all of the written consents necessary to effect the action specify a later date
as the effective date of the action, in which case the later date shall be the
effective date of the action. If the corporation has received written consents
signed by all shareholders entitled to vote with respect to the action, the
effective date of the action may be any date that is specified in all the
written consents as the effective date of the action. Such consents may be
executed in any number of counterparts or evidenced by any number of instruments
of substantially similar tenor.
Section 2.15 Vote Required; Election of Directors.
The election need not be by ballot unless any shareholder so demands
before the voting begins. Except as otherwise provided by law, the articles of
incorporation, any preferred stock designation, or these bylaws, all matters
other than the election of directors submitted to the shareholders at any
meeting shall be decided by a majority of the votes cast with respect thereto.
At all meetings of the shareholders at which directors are to be elected, except
as otherwise set forth in any stock designation with respect to the right of the
holders of any class or series of stock to elect additional directors under
specified circumstances, directors shall be elected by a plurality of the votes
cast at the meeting.
Section 2.16 Business at Annual Meeting.
At any annual meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or at the
direction of the board of directors or (b) by any shareholder of record of the
corporation who is entitled to vote with respect thereto and who complies with
the notice procedures set forth in this section. For business to be properly
brought before an annual meeting by a shareholder, the shareholder, must have
given timely notice thereof in writing to the secretary of the corporation. To
be timely, a shareholder's notice shall be delivered or mailed to and received
at the principal executive offices of the corporation not less than 30 days
prior to the date of the annual meeting; provided, in the event that less than
40 days' notice of the date of the meeting is given or made to shareholders, to
be timely, a shareholder's notice shall be so received not later than the close
of business on the 10th day following the day on which such notice of the date
of the annual meeting was mailed. A shareholder's notice to the secretary shall
set forth as to each matter such shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder of record proposing such business, (c) the class and number of
shares of the corporation's capital stock that are beneficially owned by such
shareholder, and (d) any material interest of such shareholder in such business.
Notwithstanding anything in these bylaws to the contrary, no business shall be
brought before or conducted at an annual meeting except in accordance with the
provisions of this section. The officer of the corporation or other person
presiding at the annual meeting shall, if the facts so warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with such provisions, and if
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such presiding officer should so determine and declare to the meeting that
business was not properly brought before the meeting in accordance with such
provisions and if such presiding officer should so determine, such presiding
officer shall so declare to the meeting, and any such business so determined to
be not properly brought before the meeting shall not be transacted.
Section 2.17 Notification of Nominations.
Nominations for the election of directors may be made by the board of
directors or by any shareholder entitled to vote for the election of directors.
Any shareholder entitled to vote for the election of directors at a meeting may
nominate persons for election as directors only if written notice of such
shareholder's intent to make such nomination is given, either by personal
delivery or by United States mail, postage prepaid, to the secretary of the
corporation not later than (i) with respect to an election to be held at an
annual meeting of shareholders, 90 days in advance of such meeting, and (ii)
with respect to an election to be held at a special meeting of shareholders for
the election of directors, the close of business on the seventh day following
the date on which notice of such meeting is first given to shareholders. Each
such notice shall set forth:
(a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that such shareholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice;
(c) a description of all arrangements or understandings between such
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
such shareholder;
(d) such other information regarding each nominee proposed by such
shareholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated by the board of
directors; and
(e) the consent of each nominee to serve as a director of the
corporation if elected.
The chairman of a shareholder meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing procedure.
Section 2.18 Conduct of Meeting.
The board of directors of the corporation shall be entitled to make such
rules or regulations for the conduct of meetings of shareholders as it shall
deem necessary, appropriate, or convenient. Subject to such rules and
regulations of the board of directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations, and
procedures and do all such acts as, in the judgment of such chairman, are
necessary, appropriate, or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business for
the meeting, rules and procedures for maintaining order at the meeting and the
safety of those present, limitations on participation in such meeting to
shareholders of record of the corporation and their duly authorized and
constituted proxies, and such other persons as the chairman shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comments by
participants, regulation of the opening and closing of the polls for balloting
on matters which are to be voted on by ballot. Unless, and to the extent,
determined by the board of directors or the
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chairman of the meeting, meetings of shareholders shall not be required to be
held in accordance with rules of parliamentary procedure.
Section 2.19 Shareholder's Rights to Inspect Corporate Records.
(a) Minutes and Accounting Records. The corporation shall keep as
permanent records minutes of all meetings of its shareholders and board
of directors, a record of all actions taken by the shareholders or board
of directors without a meeting, and a record of all actions taken by a
committee of the board of directors in place of the board of directors
on behalf of the corporation. The corporation shall maintain appropriate
accounting records.
(b) Absolute Inspection Rights of Records Required at Principal
Office. If a shareholder gives the corporation written notice of his
demand at least five business days before the date on which he wishes to
inspect and copy, such shareholder (or his agent or attorney) has the
right to inspect and copy, during regular business hours, any of the
following records, all of which the corporation is required to keep at
its principal office:
(1) its articles or restated articles of incorporation and
all amendments to the articles of incorporation currently in
effect;
(2) its bylaws or restated bylaws and all amendments to the
bylaws currently in effect;
(3) the minutes of all shareholders' meetings, and records of
all action taken by shareholders without a meeting, for the past
three years;
(4) all written communications to shareholders within the
past three years;
(5) a list of the names and business addresses of its current
directors and officers;
(6) the most recent annual report of the corporation
delivered to the Utah Division of Corporations and Commercial
Code; and
(7) all financial statements prepared for periods ending
during the last three years that a shareholder could request
under section 2.20.
(c) Conditional Inspection Right. In addition, if a shareholder
gives the corporation a written demand made in good faith and for a
proper purpose at least five business days before the date on which such
shareholder wishes to inspect and copy, such shareholder describes with
reasonable particularity his purpose and the records he desires to
inspect, and the records are directly connected with his purpose, such
shareholder of the corporation (or his agent or attorney) is entitled to
inspect and copy, during regular business hours at a reasonable location
specified by the corporation, any of the following records of the
corporation:
(1) excerpts from minutes of any meeting of the board of
directors, records of any action of a committee of the board of
directors acting on behalf of the corporation, minutes of any
meeting of the shareholders, and records of action taken by the
shareholders or board of directors without a meeting, to the
extent not subject to inspection under paragraph (b) of this
section 2.19;
(2) accounting records of the corporation; and
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(3) the record of shareholders (compiled no earlier than the
date of the shareholder's demand).
(d) Copy Costs. The right to copy records includes, if
reasonable, the right to receive copies made by photographic,
xerographic, or other means. The corporation may impose a reasonable
charge, covering the costs of labor and material (including third-party
costs) for copies of any documents provided to the shareholder. The
charge may not exceed the estimated cost of production or reproduction
of the records.
(e) Shareholder Includes Beneficial Owner. For purposes of this
section 2.19, the term "shareholder" shall include a beneficial owner
whose shares are held in a voting trust or by a nominee on his behalf.
Section 2.20 Financial Statements Shall be Furnished to the
Shareholders.
Upon written request of any shareholder, the corporation shall mail to
such shareholder its most recent annual or quarterly financial statements
showing in reasonable detail its assets and liabilities and the results of its
operations.
Section 2.21 Dissenters' Rights.
Each shareholder shall have the right to dissent from and obtain payment
for such shareholder's shares when so authorized by the Act, the articles of
incorporation, these bylaws, or in a resolution of the board of directors.
ARTICLE III. BOARD OF DIRECTORS
Section 3.1 General Powers.
Unless the articles of incorporation have dispensed with or limited the
authority of the board of directors, all corporate powers shall be exercised by
or under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, the board of directors.
Section 3.2 Number, Tenure, and Qualification of Directors.
Unless permitted by the Act, the authorized number of directors shall be
not less than three. The current number of directors shall be as determined (or
as amended from time to time) by resolution adopted from time to time by either
the shareholders or directors. Each director shall hold office until the next
annual meeting of shareholders or until removed. However, if his term expires,
he shall continue to serve until his successor shall have been elected and
qualified, or until there is a decrease in the number of directors. A decrease
in the number of directors does not shorten an incumbent director's term. Unless
required by the articles of incorporation, directors do not need to be residents
of Utah or shareholders of the corporation.
Section 3.3 Regular Meetings of the Board of Directors.
A regular meeting of the board of directors shall be held without other
notice than this bylaw immediately after, and at the same place as, the annual
meeting of shareholders. The board of directors may provide, by resolution, the
time and place for the holding of additional regular meetings without other
notice than such resolution.
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Section 3.4 Special Meetings of the Board of Directors.
Special meetings of the board of directors may be called by or at the
request of the president or any one director. The person authorized to call
special meetings of the board of directors may fix any place as the place for
holding any special meeting of the board of directors.
Section 3.5 Notice of, and Waiver of Notice for, Special Director
Meetings.
Unless the articles of incorporation provide for a longer or shorter
period, notice of any special director meeting shall be given at least two days
prior thereto either orally, in person, by telephone, by any form of electronic
communication, by mail, by private carrier, or by any other manner provided for
in the Act. Any director may waive notice of any meeting. Except as provided in
the next sentence, the waiver must be in writing, signed by the director
entitled to the notice, and filed with the minutes or corporate records. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business and at the beginning of the
meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting, and does not thereafter vote for or assent
to action taken at the meeting. Unless required by the articles of incorporation
or the Act, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
Section 3.6 Director Quorum.
A majority of the number of directors in office immediately before the
meeting begins shall constitute a quorum for the transaction of business at any
meeting of the board of directors, unless the articles of incorporation require
a greater number.
Any amendment to this quorum requirement is subject to the provisions of
section 3.8 of this Article III.
Section 3.7 Directors, Manner of Acting.
The act of the majority of the directors present at a meeting at which a
quorum is present when the vote is taken shall be the act of the board of
directors unless the articles of incorporation require a greater percentage. Any
amendment which changes the number of directors needed to take action, is
subject to the provisions of section 3.8 of this Article III.
Unless the articles of incorporation provide otherwise, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless: (1) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting business at
the meeting; or (2) his dissent or abstention from the action taken is requested
by such director to be entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
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Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement.
For purposes of this section 3.8, a "supermajority" quorum is a
requirement that requires more than a majority of the directors in office to
constitute a quorum; and a "supermajority" voting requirement is any requirement
that requires the vote of more than a majority of those directors present at a
meeting at which a quorum is present to be the act of the directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders); or
(2) if originally adopted by the board of directors, either by
the shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that fixes a
supermajority quorum or supermajority voting requirement for the board of
directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the
board of directors to adopt, amend, or repeal a bylaw that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 Director Action Without a Meeting.
Unless the articles of incorporation provide otherwise, any action
required or permitted to be taken by the board of directors at a meeting may be
taken without a meeting if all the directors sign a written consent describing
the action taken, and such consent is filed with the records of the corporation.
Action taken by consent is effective when the last director signs the consent,
unless the consent specifies a different effective date. A signed consent has
the effect of a meeting vote and may be described as such in any document. Such
consent may be executed in any number of counterparts, or evidenced by any
number of instruments of substantially similar tenor.
Section 3.10 Removal of Directors.
The shareholders may remove one or more directors at a meeting called
for that purpose if notice has been given that the purpose of the meeting is
such removal. The removal may be with or without cause unless the articles of
incorporation provide that directors may only be removed with cause. If a
director is elected by a voting group of shareholders, only the shareholders of
that voting group may participate in the vote to remove him. If cumulative
voting is authorized, a director may not be removed if the number of votes
sufficient to elect him under cumulative voting is voted against his removal. If
cumulative voting is not authorized, a director may be removed only if the
number of votes cast to remove him exceeds the number of votes cast against such
removal.
Section 3.11 Board of Director Vacancies.
Unless the articles of incorporation provide otherwise, if a vacancy
occurs on the board of directors, including a vacancy resulting from an increase
in the number of directors, the shareholders may fill the vacancy. During such
time that the shareholders fail or are unable to fill such vacancies, then and
until the shareholders act:
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(1) the board of directors may fill the vacancy; or
(2) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative vote
of a majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting group of
shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders. If two or more
directors are elected by the same voting group, only remaining directors elected
by such voting group are entitled to vote to fill the vacancy of a director
elected by the voting group if it is filled by directors.
A vacancy that will occur at a specific later date (by reason of
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualified
or until there is a decrease in the number of directors.
Section 3.12 Director Compensation.
Unless otherwise provided in the articles of incorporation, by
resolution of the board of directors, each director may be paid his expenses, if
any, of attendance at each meeting of the board of directors, and may be paid a
stated salary as director or a fixed sum for attendance at each meeting of the
board of directors or both. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
Section 3.13 Director Committees.
(a) Creation of Committees. Unless the articles of incorporation
provide otherwise, the board of directors may create one or more
committees and appoint members of the board of directors to serve on
them. Each committee must have two or more members, who serve at the
pleasure of the board of directors.
(b) Selection of Members. The creation of a committee and
appointment of members to it must be approved by the greater of (1) a
majority of all the directors in office when the action is taken or (2)
the number of directors required by the articles of incorporation to
take such action (or if not specified in the articles of incorporation,
the number required by section 3.7 of this Article III to take action).
(c) Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and
3.9 of this Article III, which govern meetings, action without meetings,
notice and waiver of notice, quorum and voting requirements of the board
of directors, apply to committees and their members.
(d) Authority. Unless limited by the articles of incorporation,
each committee may exercise those aspects of the authority of the board
of directors which the board of directors confers upon such committee in
the resolution creating the committee; provided, however, a committee
may not:
(1) authorize distributions to shareholders;
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(2) approve, or propose to shareholders, action that the Act
requires be approved by shareholders;
(3) fill vacancies on the board of directors or on any of its
committees;
(4) amend the articles of incorporation pursuant to the
authority of directors to do so granted by section 16-10a-1002 of
the Act or any section of like tenor as from time to time
amended;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder
approval;
(7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of
directors; or
(8) authorize or approve the issuance or sale or contract for
sale of shares or determine the designation and relative rights,
preferences, and limitations of a class or series of shares,
except that the board of directors may authorize a committee (or
a senior executive officer of the corporation) to do so within
limits specifically prescribed by the board of directors.
ARTICLE IV. OFFICERS
Section 4.1 Number of Officers.
The officers of the corporation shall be a president and a secretary,
both of whom shall be appointed by the board of directors. Such other officers
and assistant officers as may be deemed necessary, including any
vice-presidents, may be appointed by the board of directors. If specifically
authorized by the board of directors, an officer may appoint one or more
officers or assistant officers. The same individual may simultaneously hold more
than one office in the corporation.
Section 4.2 Appointment and Term of Office.
The officers of the corporation shall be appointed by the board of
directors for a term as determined by the board of directors. If no term is
specified, such term shall continue until the first meeting of the directors
held after the next annual meeting of shareholders. If the appointment of
officers shall not be made at such meeting, such appointment shall be made as
soon thereafter as is convenient. Each officer shall hold office until his
successor shall have been duly appointed and shall have qualified, until his
death, or until he shall resign or shall have been removed in the manner
provided in section 4.3 of this Article IV.
Section 4.3 Removal of Officers.
Any officer or agent may be removed by the board of directors or an
officer authorized to do so by the board of directors at any time either before
or after the expiration of the designated term, with or without cause. Such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Neither the appointment of an officer nor the designation of a
specified term shall create any contract rights.
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Section 4.4 Chairman.
The board of directors may elect one of their members as chairman who,
if so elected, shall preside at all meetings of the board of directors and shall
be a member of the executive committee, if any. In the absences of a chairman or
if no chairman is elected, the president shall preside at meetings of the board
of directors.
Section 4.5 President.
The president shall be the principal executive officer of the
corporation and, subject to the control of the board of directors, shall in
general supervise and control all of the business and affairs of the
corporation. The president shall, when present, preside at all meetings of the
shareholders and of the board of directors, if the chairman of the board is not
present. The president may sign, with the secretary or any other proper officer
of the corporation thereunto authorized by the board of directors, certificates
for shares of the corporation and deeds, mortgages, bonds, contracts, or other
instruments arising in the normal course of business of the corporation and such
other instruments as may be authorized by the board of directors, except in
cases where the signing and execution thereof shall be expressly delegated by
the board of directors or by these bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
Section 4.6 Vice-Presidents.
If appointed, in the event of the president's death or inability to act,
the vice-president (or in the event there be more than one vice-president, the
executive vice-president or, in the absence of any designation, the senior
vice-president in the order of their appointment) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. A vice-president, if any, may sign,
with the secretary or an assistant secretary, certificates for shares of the
corporation the issuance of which has been authorized by resolution of the board
of directors; and shall perform such other duties as from time to time may be
assigned to him by the president or by the board of directors.
Section 4.7 Secretary.
The secretary shall: (a) keep the minutes of the proceedings of the
shareholders and of the board of directors in one or more books provided for
that purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law; (c) be custodian of the
corporate records and of any seal of the corporation and, if there is a seal of
the corporation, see that it is affixed to all documents the execution of which
on behalf of the corporation under its seal is duly authorized; (d) when
requested or required, authenticate any records of the corporation; (e) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholders; (f) sign with the president, or a
vice-president, certificates for shares of the corporation, the issuance of
which has been authorized by resolution of the board of directors; (g) have
general charge of the stock transfer books of the corporation; and (h) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the president or by the
board of directors.
Section 4.8 Treasurer.
The treasurer, if any, and in the absence thereof, the secretary shall:
(a) have charge and custody of and be responsible for all funds and securities
of the corporation; (b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever, and deposit all such moneys in
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the name of the corporation in such banks, trust companies, or other
depositories as shall be selected by the board of directors; and (c) in general
perform all of the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the president or by the
board of directors. If required by the board of directors, the treasurer shall
give a bond for the faithful discharge of his duties in such sum and with such
surety or sureties as the board of directors shall determine.
Section 4.9 Assistant Secretaries and Assistant Treasurers.
Any assistant secretary, when authorized by the board of directors, may
sign with the president or a vice-president certificates for shares of the
corporation the issuance of which has been authorized by a resolution of the
board of directors. Any assistant treasurer shall, if required by the board of
directors, give bonds for the faithful discharge of his duties in such sums and
with such sureties as the board of directors shall determine. Any assistant
secretary or assistant treasurer, in general, shall perform such duties as shall
be assigned to them by the secretary or the treasurer, respectively, or by the
president or the board of directors.
Section 4.10 Salaries.
The salaries of the officers shall be fixed from time to time by the
board of directors or by a duly authorized officer.
ARTICLE V. INDEMNIFICATION
Section 5.1 Indemnification of Directors.
The corporation shall indemnify any individual made a party to a
proceeding because such individual was a director of the corporation to the
extent permitted by and in accordance with section 16-10a-901, et seq. of the
Act or any amendments of successor sections of like tenor.
Section 5.2 Advance Expenses for Directors.
To the extent permitted by section 16-10a-904 of the Act or any section
of like tenor as amended from time to time, the corporation may pay for or
reimburse the reasonable expenses incurred by a director who is a party to a
proceeding in advance of final disposition of the proceeding, if:
(a) the director furnishes the corporation a written affirmation
of his good faith belief that he has met the standard of conduct
described in the Act;
(b) the director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay advances if it is
ultimately determined that he did not meet the standard of conduct
(which undertaking must be an unlimited general obligation of the
director but need not be secured and may be accepted without reference
to financial ability to make repayment); and
(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification under
section 5.1 of this Article V or section 16-10a-901 through section
16-10a-909 of the Act or similar sections of like tenor as from time to
time amended.
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Section 5.3 Indemnification of Officers, Agents, and Employees Who are
not Directors.
Unless otherwise provided in the articles of incorporation, the board of
directors may authorize the corporation to indemnify and advance expenses to any
officer, employee, or agent of the corporation who is not a director of the
corporation, to the extent permitted by the Act.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 Certificates for Shares.
(a) Content. Certificates representing shares of the corporation
shall at minimum, state on their face the name of the issuing
corporation and that it is formed under the laws of the state of Utah;
the name of the person to whom issued; and the number and class of
shares and the 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 sealed with a corporate seal or a facsimile
thereof. Each certificate for shares shall be consecutively numbered or
otherwise identified.
(b) Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series
within a class, the designations, relative rights, preferences, and
limitations applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future
series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or
back that the corporation will furnish the shareholder this information
without charge on request in writing.
(c) Shareholder List. The name and address of the person to whom
the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the stock transfer books of the
corporation.
(d) Transferring Shares. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall
be issued until the former certificate for a like number of shares shall
have been surrendered and canceled, except that in case of a lost,
destroyed, or mutilated certificate a new one may be issued therefor
upon such terms and indemnity to the corporation as the board of
directors may prescribe.
Section 6.2 Shares Without Certificates.
(a) Issuing Shares Without Certificates. Unless the articles of
incorporation provide otherwise, the board of directors may authorize
the issuance of some or all the shares of any or all of its classes or
series without certificates. The authorization does not affect shares
already represented by certificates until they are surrendered to the
corporation.
(b) Written Statement Required. Within a reasonable time after
the issuance or transfer of shares without certificates, the corporation
shall send the shareholder a written statement containing at minimum:
(1) the name of the issuing corporation and that it is
organized under the laws of the state of Utah;
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(2) the name of the person to whom issued; and
(3) the number and class of shares and the designation of the
series, if any, of the issued shares.
If the corporation is authorized to issue different classes of shares or
different series within a class, the written statement shall describe
the designations, relative rights, preferences, and limitations
applicable to each class and the variation in rights, preferences, and
limitations determined for each series (and the authority of the board
of directors to determine variations for future series). Alternatively,
each written statement may state conspicuously that the corporation will
furnish the shareholder this information without charge on request in
writing.
Section 6.3 Registration of the Transfer of Shares.
Registration of the transfer of shares of the corporation shall be made
only on the stock transfer books of the corporation. In order to register a
transfer, the record owner shall surrender the shares to the corporation for
cancellation, properly endorsed by the appropriate person or persons with
reasonable assurances that the endorsements are genuine and effective. Unless
the corporation has established a procedure by which a beneficial owner of
shares held by a nominee is to be recognized by the corporation as the record
owner of such shares on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
Section 6.4 Restrictions on Transfer of Shares Permitted.
The board of directors (or shareholders) may impose restrictions on the
transfer or registration of transfer of shares (including any security
convertible into, or carrying a right to subscribe for or acquire, shares). A
restriction does not affect shares issued before the restriction was adopted
unless the holders of the shares are parties to the restriction agreement or
voted in favor of the restriction.
A restriction on the transfer or registration of transfer of shares is
authorized:
(a) to maintain the corporation's status when it is dependent on
the number or identity of its shareholders;
(b) to preserve entitlements, benefits, or exemptions under
federal, state, or local law; and
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares may:
(a) obligate the shareholder first to offer the corporation or
other persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted shares;
(c) require the corporation, the holders of any class of its
shares, or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable; and
(d) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not manifestly
unreasonable.
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A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this section 6.4 and such person has knowledge of
the restriction or its existence is noted conspicuously on the front or back of
the certificate or is contained in the written statement required by section 6.2
of this Article VI with regard to shares issued without certificates. Unless so
noted, a restriction is not enforceable against a person without knowledge of
the restriction.
Section 6.5 Acquisition of Shares.
The corporation may acquire its own shares and unless otherwise provided
in the articles of incorporation, the shares so acquired constitute authorized
but unissued shares.
If the articles of incorporation prohibit the reissuance of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired by the corporation, effective upon amendment of the articles of
incorporation, which amendment may be adopted by the shareholders or the board
of directors without shareholder action. The articles of amendment must be
delivered to the Utah Division of Corporations and Commercial Code for filing
and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized by
class and series;
(c) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares; and
(d) if applicable, a statement that the amendment was adopted by
the board of directors without shareholder action and that shareholder
action was not required.
ARTICLE VII. DISTRIBUTIONS
The corporation may make distributions (including dividends on its
outstanding shares) as authorized by the board of directors and in the manner
and upon the terms and conditions provided by law and in the corporation's
articles of incorporation.
ARTICLE VIII. CORPORATE SEAL
The board of directors may provide for a corporate seal which may have
inscribed thereon any designation including the name of the corporation, Utah as
the state of incorporation, and the words "Corporate Seal."
ARTICLE IX. DIRECTORS CONFLICTING INTEREST TRANSACTIONS
A director's conflicting interest transaction may not be enjoined, be
set aside, or give rise to an award of damages or other sanctions, in a
proceeding by a shareholder or by or in the right of the corporation, solely
because the director, or any person with whom or which the director has a
personal, economic, or other association, has an interest in the transaction,
if:
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(a) directors' action respecting the transaction was at any time
taken in compliance with section 16-10a-852 of the Act or any section of
like tenor as amended from time to time;
(b) shareholders' action respecting the transaction was at any
time taken in compliance with section 16-10a-853 of the Act or any
section of like tenor as amended from time to time; or
(c) the transaction, judged according to the circumstances at the
time of commitment, is established to have been fair to the corporation.
ARTICLE X. AMENDMENTS
The corporation's board of directors may amend or repeal the
corporation's bylaws unless:
(a) the Act or the articles of incorporation reserve this power
exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a
supermajority shareholder quorum or voting requirement (as defined in
Article II, section 2.9).
Any amendment which changes the voting or quorum requirement for the
board must comply with Article III, section 3.8, and for the shareholders, must
comply with Article II, section 2.9.
The corporation's shareholders may amend or repeal the corporation's
bylaws even though the bylaws may also be amended or repealed by its board of
directors.
ARTICLE XI. FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors in consultation with the financial and tax advisors of the
corporation.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that such person is the secretary of
Tomax technologies inc., a corporation duly organized and existing under and by
virtue of the laws of the state of Utah; that the above and foregoing bylaws of
said corporation were duly and regularly adopted as such by the board of
directors of said corporation by consent dated February 22, 1999, and that the
above and foregoing bylaws are now in full force and effect and supersede and
replace any prior bylaws of the corporation.
DATED effective February 22, 1999.
/s/ Jaye Olafson
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Jaye Olafson, Secretary
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