UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 24, 1998
JB OXFORD HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
UTAH 0-16240 95-4099866
(State of incorporation or organization) (I.R.S. Employer
(Commission File Number) Identification No.)
9665 Wilshire Blvd., Suite 300; Beverly Hills, California 90212
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (310) 777-8888
Item 5. Other Events.
On November 24, 1998, the Board of Directors of JB Oxford Holdings, Inc.
(the "Company") approved an amendment to the bylaws of the Company to provide,
among other things, for:
(1) advance notice provisions with respect to shareholder proposals and
nominations. The Company's Amended and Restated Bylaws (the "Bylaws") now
provide that notice by a shareholder of business or nominations for directors to
be brought before an annual meeting of shareholders must be given to the Company
at least 60 and no more than 90 days prior to the meeting; provided that in the
event Rule 14a-8 under the Securities Exchange Act of 1934, as amended, requires
that notice of a shareholder's proposal be received by the Company more than 90
days prior to the meeting, such longer period shall control. The notice must
also contain the information set forth in Article II, Section 12 and Article
III, Section 18 of the Bylaws;
(2) a change in the principal office of the Company to 9655 Wilshire Boulevard,
Beverly Hills, California 90212;
(3) the Board of Directors of the Company to determine the date of the annual
meeting of shareholders, either within or without the State of Utah;
(4) special meetings of the shareholders to be called by the Chairman of the
Board, as well as the President, any Vice-President, the Board of Directors and
one-fifth of the voting power of the Company;
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(5) the record date for shareholders entitled to notice of a meeting shall be
determined by the Board of Directors of the Company and shall be not less than
10 days nor more than 70 days before the meeting date;
(6) the size of the Board of Directors shall be no less than three nor more than
seven and the current Board shall consist of five directors; and
(7) the Board of Directors of the Company may designate committees of the Board
which shall consist of one or more directors of the Company.
A copy of the Bylaws (as amended) are filed herewith as Exhibit 3.1.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
3.1 Amended and Restated Bylaws of JB Oxford Holdings, Inc.,
effective November 24, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JB OXFORD HOLDINGS, INC.
__/s/_James G. Lewis__________
James G. Lewis
President and
Chief Executive Officer
Date: December 2, 1998
EXHIBIT INDEX
Exhibit No. Description
3.1 Amended and Restated Bylaws of JB Oxford Holdings,
Inc., effective November [24], 1998.
AMENDED AND RESTATED BYLAWS OF
JB OXFORD HOLDINGS, INC.
A UTAH CORPORATION
ARTICLE I
OFFICES
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Section 1. PRINCIPAL OFFICES. The principal office for the transaction of
the business of the Corporation is fixed and located at 9665 Wilshire Boulevard,
Beverly Hills, California 90212. The Board of Directors of the Corporation (the
"Board") may change the principal office from one location to another as from
time to time may be necessary or appropriate. Any change of this location shall
be noted by the Secretary on these Amended and Restated Bylaws (the "Bylaws")
opposite this section, or this section may be amended to state the new location.
Section 2. OTHER OFFICES. The Board may, at any time, establish branch or
subordinate offices at any place or places.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of shareholders shall be
held at such date, time and place, either within or without the State of Utah,
as may be designated by resolution of the Board. At this meeting, directors
shall be elected, and any other proper business within the power of the
shareholders may be transacted.
Section 2. SPECIAL MEETINGS. A special shareholders' meeting for any
purpose whatsoever may be called at any time by the Chairman of the Board, the
President, any Vice-President, the Board, or one or more shareholder holding not
less than one-fifth (1/5) of the voting power or the Corporation. The date,
time and place of a special shareholders' meeting shall be determined by the
Board. No business other than that specified in the notice of special meeting
shall be considered at any special meeting.
Section 3. NOTICE OF MEETINGS. Written notices specifying the place, day,
and hour of the meeting and, in the case of a special meeting, the general
nature of the business to be transacted, shall be given not less than ten (10)
days, nor more than sixty (60) days before the date of the meeting. Such notice
must be given personally or by mail or by other means of written communication,
addressed to the shareholder at the address 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 or is given by a shareholder of record
entitled to vote at the meeting, notice is given at the place where the
principal executive office of the corporation is located, or by publication at
least once in a newspaper of general circulation in the county where the
principal executive office is located.
The notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any notice in accordance with the
provisions of this Section executed by the Secretary shall be prima facie
evidence of the giving of notice.
Section 4. WAIVER OF NOTICE. A shareholder may waive notice of any annual
or special meeting by signing a written notice of waiver either before or after
the date of such meeting.
Section 5. QUORUM. The presence in person or by proxy of the holders of
at least fifty-one percent (51%) of the outstanding shares entitled to vote at
any meeting of the 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 shareholders to leave less than a quorum, any action
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taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
Section 6. PROXIES. Every person entitled to vote at a shareholders
meeting of the Corporation, or entitled to execute written consent authorizing
action in lieu of a meeting, may do so either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. No proxy
shall be valid after eleven (11) months from the dated of its execution unless
otherwise provided in the proxy. All proxies, to be valid, must be filed and
recorded with the Secretary of the Corporation at least forty-eight (48) hours
prior to any meeting in which such proxies are to be voted. All questions
attaching or concerning the validity or sufficiency of such proxy shall be
decided by the Inspectors appointed pursuant to Section 8 of this Article and
such decision shall be final.
Section 7. LIST OF SHAREHOLDERS. The Secretary shall prepare, at least
ten (10) days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arrange in alphabetical order and
showing address of each shareholder and the number of shares registered in the
name of each shareholder. Such list shall be open to the examination of any
shareholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at
the place within the city where the meeting is to be held, which place shall be
specified in the Notice of the meeting, or if not so specified, at the place
where the meeting is to be held. The list shall be produced and kept at the
time and place of the meeting during the whole time thereof and may be inspected
by any shareholder present.
Section 8. INSPECTORS. At each meeting of shareholders, the chairman of
the meeting shall appoint one or more inspectors of voting, whose duty it shall
be to receive and count the ballots and make a written report showing the result
of the balloting.
Section 9. VOTING. Except as otherwise provided in the Articles of
Incorporation or by agreement or by the Utah General Corporation Law,
shareholders at the close of business on the record date are entitled to notice
and to vote. The record date for this purpose shall be determined by the Board
and shall be not less than 10 days nor more than 70 days before the meeting or
action requiring a determination of shareholders.
Section 10. ELECTION BY BALLOT. Election for directors need not be by
ballot unless a shareholder demands election by ballot at the meeting and before
the voting begins. The candidates receiving the highest number of votes, up to
the number of directors to be elected, shall be elected.
Section 11. ORDER OF BUSINESS. The order of business at the annual
meeting of the shareholders insofar as possible, and at all other meetings of
shareholders, shall be as follows:
1. Call to order.
2. Proof of notice of meeting.
3. Reading and disposing of any unapproved minutes.
4. Reports of officers.
5. Reports of committees.
6. Election of Directors.
7. Disposition of unfinished business.
8. Disposition of new business.
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9. Adjournment.
Section 12. ADVANCE NOTICE OF SHAREHOLDER PROPOSED BUSINESS. At a meeting
of the shareholders, only such business may be conducted as is properly brought
before the meeting. To be properly brought before a meeting, business must be
either (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board, (ii) otherwise properly brought before the
meeting by or at the direction of the Board, or (iii) otherwise properly brought
before the meeting by a shareholder. In addition to any other applicable
requirements, including any requirements under Rule 14a-8, as amended from time
to time, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), for business to be properly brought before a meeting of the shareholders,
the shareholder must have given timely notice thereof in writing to the
Secretary. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made, whichever occurs
first; and provided further that in the event Rule 14a-8 under the Exchange Act,
requires that notice of a shareholder's proposal be received by the Corporation
more than ninety days prior to the meeting, such longer notice period shall
control. A shareholder's notice to the Secretary must set forth as to each
matter the shareholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and record
address of the shareholder proposing such business, (iii) the class and number
of shares that are beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at a meeting of the shareholders except in accordance with the
procedures set forth in this Section 12 of this Article; provided, however, that
nothing in this Section 12 shall be deemed to preclude discussion by any
shareholder of any business properly brought before such meeting in accordance
with said procedure.
The chairman at a meeting of the shareholders shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 12, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Notwithstanding anything contained in these Bylaws to the contrary, this
Section 12 shall not be altered, amended or repealed except by the Board
pursuant to the Articles of Incorporation or by an affirmative vote of at least
two-thirds of the outstanding shares of all capital stock entitled to vote at a
shareholders' meeting duly called for such purpose.
ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS. Subject to the provisions of the Utah General
Corporation Law, and any limitations in the Articles of Incorporation and these
Bylaws relating to actions required to be approved by the shareholders or by the
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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.
Section 2. ENUMERATION OF DIRECTORS' POWER. Without prejudice to these
general rules, and subject to the same limitation, the Board 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 these Bylaws; fix their
compensation; and require from them security for faithful service.
(b) Change the principal executive office or the principal
business office 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 outside the State of Utah; and designate any
place within or outside the State of Utah for the holding of any shareholders
meeting of meetings, including annual meetings.
(c) Adopt, make, or use a corporate seal; prescribe the forms
of certificates of stock; and alter the form of the seal and certificate.
(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 canceled, or tangible or
intangible property actually received.
(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.
(f) Engage in and/or adopt employment agreements, contracts,
or other employment contracts with independent contractors, companies,
government agencies, or individuals.
Section 3. NUMBER, TENURE, QUALIFICATION AND ELECTIONS. The Board shall
be fixed from time-to-time by resolution of the Board, but shall not be less
than three (3), nor shall it exceed seven (7). At the time of the adoption of
these Bylaws, the Board shall consist of five Directors. Directors need not be
shareholders of the corporation. The number of Directors may be increased
beyond seven (7) only by approval of the outstanding shares of the Corporation.
The Directors of the Corporation shall be elected at the annual meeting of the
shareholders and shall serve until the next succeeding annual meeting and until
their successors have been elected and qualified.
Section 4. VACANCIES. A vacancy or vacancies on the Board shall be deemed
to exist in the event of the death, resignation, or removal of any Director, or
if the Board by resolution declares vacant that office of a Director who has
been declared of unsound mind by an order of court or convicted of a felony, or
if the authorized number of Directors is increased, 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.
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Any Director may resign effective on giving written notice to the Chairman
of the Board, the President, the Secretary, or the Board, unless a 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 may elect a
successor to take office when the resignation becomes effective.
Vacancies on the Board may be filled by a majority of the remaining
Directors, whether or not less than a quorum, or by a sole remaining Director,
except that a vacancy created by the removal of a Director by the vote or
written consent of the shareholders or by court order may be filled only by the
vote of a majority of the shares entitled to vote represented at a duly held
meeting at which a quorum is present, or by the unanimous written consent of the
shareholders of the outstanding shares entitled to vote. The shareholders may
elect a Director or Directors at any time to fill any vacancy or vacancies not
filled by the Directors, 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 a removal of a Director shall require the
written consent of the holders of all outstanding shares entitled to vote.
Each Director so elected shall hold office until the next annual meeting of
the shareholders and until a successor has been elected and qualified.
Section 5. ANNUAL MEETING. Immediately following each annual meeting of
shareholders, the Board 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 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 6. NOTICE OF MEETINGS. Notice need not be given of regular
meetings of the Board, nor is it necessary to give notice of adjourned meetings.
Any written waiver of notice, signed by a director entitled to notice, shall be
deemed equivalent to notice. Attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except when the Director attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the Directors, need be specified in any written
waiver of notice.
Section 7. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular and
special meetings of the Board may be held at any place within or outside the
State of Utah that has been designated from time to time by the Board. In the
absence of such designation, meetings shall be held at the principal executive
office of the Corporation. Any meetings regular or special, may be held by
conference telephone, or similar communication equipment, as 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 8. SPECIAL MEETINGS. Special meetings of the Board for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President, or the Secretary.
Section 9. MAJORITY OR QUORUM. A majority of the authorized number of
Directors constitutes a quorum of the Board for the transaction of business
except as hereinafter provided.
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Section 10. TRANSACTIONS OF BOARD. Except as otherwise provided in the
Articles or these Bylaws, or by law, every act or decision done or made by a
majority of the Directors present at a duly held meeting at which a quorum is
present, is the act of the Board, provided, however, that any meeting at which a
quorum was 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 such meeting.
Section 11. ADJOURNMENT. A majority of Directors present at any meeting,
whether or not a quorum is present, may adjourn the meeting to another time and
place. If the meeting is adjourned for more that twenty-four (24) hours, notice
of the adjournment to another time and place must be given prior to the time of
the adjourned meeting to the Directors who were present at the time of the
adjournment.
Section 12. CONDUCT OF MEETINGS. The Chairman of the Board, or if there
is no such officer, the President, or in his absence, any Director selected by
the Director present shall preside at the meeting of the Board. The Secretary
of the Corporation or, in the Secretary's absence any person appointed by the
presiding officer, shall act as Secretary of the Board.
Section 13. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting, if all members of the
Board shall individually or collectively consent in writing to such action.
Such action by written consent shall have the same force and effect as a
unanimous vote of the Board. Such written consent(s) 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. Nothing herein contained shall 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 such services.
Section 15. APPROVAL OF BONUSES FOR DIRECTORS AND OFFICERS. No bonuses or
share in the earnings or profits of the Corporation shall be paid to any of the
officers, Directors, or employees of the Corporation except in accordance with a
plan duly adopted by the Board in accordance with a meeting duly called and held
for that purpose or as provided in Section 13 of this Article.
Section 16. COMMITTEES. The Board may, by resolution, designate, change
the membership of or terminate the existence of any committee or committees.
Each committee shall consist of one or more of the Directors of the Corporation.
The Board may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the committee,
the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
permitted by the Utah General Corporation Law and to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation.
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Section 17. COMMITTEE RULES. Unless the Board otherwise provides, each
committee designated by the Board may make, alter and repeal rules for the
conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board conducts its business
pursuant to Article III of these Bylaws.
Section 18. SHAREHOLDER NOMINATIONS FOR DIRECTOR CANDIDATES. Except as
may otherwise be provided in the Articles of Incorporation, only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Directors. Nominations of persons for election to the Board may be
made at a meeting of shareholders only (i) by or at the direction of the Board,
(ii) by any nominating committee or person appointed by the Board or (iii) by
any shareholder of record of the Corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set forth in
this Section 18. Such nominations, other than those made by or at the direction
of the Board, must be made pursuant to timely notice in writing to the
Secretary. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public disclosure
of the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the tenth day following the date on which such notice of the date of
the meeting was mailed or such public disclosure was made, whichever occurs
first. Such shareholder's notice to the Secretary must set forth: (i) as to
each person whom the shareholder proposes to nominate for election or re-
election as a Director, (a) the name, age, business address and residence
address of the person, (b) the principal occupation or employment of the person,
(c) the class and number of shares of capital stock of the Corporation that are
beneficially owned by the person, and (d) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of Directors pursuant to Rule 14a, as amended from time to time, under
the Exchange Act; and (ii) as to the shareholder giving the notice, (a) the name
and record address of the shareholder, and (b) the class and number of shares of
capital stock of the Corporation that are beneficially owned by the shareholder.
The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a Director of the Corporation.
No person shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure and, if he should so determine and declare, the defective
nomination shall be disregarded.
Notwithstanding anything contained in these Bylaws to the contrary, this
Section 18 shall not be altered, amended or repealed except by the Board
pursuant to the Articles of Incorporation or by an affirmative vote of at least
two-thirds of the outstanding shares of all capital stock entitled to vote at a
shareholders' meeting duly called for such purpose.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a Chief
Executive Officer, President, a Vice-President, a Secretary, and a Chief
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Financial Officer (Treasurer). The Corporation may also have, at the discretion
of the Board, a Chairman of the Board, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article IV. Any number of
offices may be held by the same person.
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 IV, shall be chosen by the Board, 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 may appoint, and may empower
the President to appoint, such other officers as the business of the Corporation
may require. Each of them shall hold office for such period, have such
authority and perform such duties as are provided in the Bylaws, or as the Board
may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if
any, of an officer under a contract of employment, any officer may be removed,
either with or without cause, by the Board, at any regular or special meeting of
the Board, or, except in case of an officer chosen by the Board, by an officer
upon whom such power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect on the date of receipt of that
notice or at any later time specified in that notice; unless otherwise specified
in that notice. Any resignation is without prejudice to the rights, if any, of
the Corporation under any contract for 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.
Section 6. CHIEF EXECUTIVE OFFICER AND PRESIDENT. Subject to such powers,
if any, as may be given by the Bylaws or Board to other officers of the
Corporation, the Chief Executive Officer and President shall be the general
manager and chief executive officer of the Corporation and shall, subject to the
control of the Board, have general supervision, direction, and control of the
business and the officers of the Corporation. The Chief Executive Officer shall
preside at all meetings of the shareholders. The Chief Executive Officer 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 or the Bylaws. The Board may determine to have one
person serve as Chief Executive Officer and another as President, in which event
the Board shall determine the power of each.
Section 7. VICE-PRESIDENT. In the absence or disability of the President,
the Vice-President designated by the Board shall perform all the duties of the
President, and when so acting shall have all the powers of and be subject to all
of the restrictions upon, the President. The sole duty of the office of Vice-
President of this Corporation shall be to function as a representative of the
President in such case as the President may be absent or disabled. The Vice-
President may, when not acting in the representative capacity of the President,
hold other positions and be assigned other duties within the Corporation.
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Section 8. SECRETARY. The Secretary shall keep or cause to be kept, at
the principal executive office or such other place as the Board 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 Director 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, a the principal executive
office or at the office of the Corporation's transfer agent or registrar, as
determined by resolution of the Board, a record of shareholders, or a duplicate
record of shareholders showing the names of all shareholders and their
addresses, the number 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, 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, and of
committees of the Board required by the Bylaws or by law to be given. The
Secretary shall keep the seal of the Corporation, if one is adopted, in safe and
custody and shall have such other powers and perform such other duties as may be
prescribed by the Board or by the Bylaws.
Section 9. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
(Treasurer) 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 book of accounts shall at all reasonable times be opened to
inspection by any Director.
The Chief Financial Officer shall deposit all monies and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board. He shall disburse the funds of the Corporation as may
be ordered by the Board, shall render to the President and 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 other such duties as may be prescribed by the Board or the
Bylaws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES, AND OTHER AGENTS
Section 1. AGENTS, PROCEEDINGS AND EXPENSES. For the purpose 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, suit or proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal; and
"expenses" include, without limitation, attorneys' fees and any expenses of
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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
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)
by reason of the fact that such person is or was an agent of this Corporation,
against expenses, judgments, fines, 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, or not
opposed to, the best interest 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 pleas 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 lawful. No indemnification shall be made under this Section 2 of
this Article in connection with any other proceeding charging that the agent
derived an improper personal benefit, whether or not involving action in his
official capacity, in which proceeding he is adjudged liable on the basis that
he derived an improper personal benefit.
Section 3. ACTIONS BY THE CORPORATION. This Corporation shall 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 that 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 that person believed
to be in, or not opposed to, the best interest of this Corporation and, in the
case of a criminal proceeding, that person had no reasonable cause to believe
that the person's conduct was unlawful. No indemnification shall be made under
this Section 3 of this Article in respect of any claim, issue or matter as to
which that person shall have been adjudged to be liable to this Corporation
unless and only to the extent that the court in which that action was brought
shall determine upon application that, in view of all the circumstances of the
case, that person is fairly and reasonably entitled to indemnify for the
expenses which the court shall determine.
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 Section 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 Section 2 or 3 of this
Article, by:
(a) A majority vote of a quorum consisting of Directors who
are not parties to the proceeding;
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(b) A majority vote of the shareholders of the votes entitled
to be cast by holders of qualified shares present in person or by proxy at a
meeting;
(c) Special legal counsel; or
(d) 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.
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 (i) a written affirmation of the agent's good faith
belief that the person has met the applicable standard of conduct described in
Section 2 or 3 of this Article and (ii) an 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. A determination must also be made that the facts then known to those
making the determination would not preclude indemnification.
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 to
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(d), in any
circumstance where it appears:
(a) That it would be inconsistent with a provision of the
Articles, 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 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.
ARTICLE VI
STOCK CERTIFICATES
Section 1. FORM. The shares of the Corporation shall be represented by
certificates signed by the President or Vice- President, and the Secretary of
the Corporation. Any or all of such signatures may be facsimile. Each such
certificate shall also state:
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(a) The name of the record holder of the shares represented by
such certificate;
(b) The number of shares represented thereby;
(c) A designation of any class or series or which such
shares are a part;
(d) That the shares have par value of $.0l;
(e) Any restrictions applicable to the shares shall be so
designated in bold type on the face thereof.
Section 2. TRANSFERS. Transfer of shares of the Corporation shall be made
in the manner set forth in the Utah Uniform Commercial Code. The Corporation
shall maintain stock transfer books, and any transfers shall be registered
thereon only on request and surrender of the stock certificate representing the
transferred shares, duly endorsed if transfer is by Power of Attorney, the Power
of Attorney shall be deposited with the Secretary of the Corporation or with the
designated Transfer Agent.
Section 3. LOST, DESTROYED, AND STOLEN CERTIFICATES. No certificate or
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed, stolen, or mutilated except on production
of such evidence and provision of such indemnity to the Corporation as the Board
may prescribe.
ARTICLE VII
CORPORATE ACTIONS
Section 1. CONTRACTS. The Board may authorize any officer or officers, or
any agent or agents of the Corporation, to enter into any contract or to execute
and deliver any instrument in the name of and on behalf of the Corporation, and
such authority may be general or confined to specific instances.
Section 2. LOANS. No loan shall be made by the Corporation to its
officers or Directors. No loan shall be made or contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by resolution of the Board. Such authority may be general or
confined to specific instances.
Section 3. CHECKS, DRAFTS OR ORDERS. All checks, drafts, or other orders
for the payment of money by or to the Corporation and all notes and other
evidence of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner as shall be determined by resolution of the Board.
Section 4. BANK DEPOSITS. All funds of the Corporation not otherwise
employed, shall be deposited to the credit of the Corporation in such banks,
trust companies, or other depositories as the Board may select.
ARTICLE VIII
MISCELLANEOUS
Section 1. ANNUAL REPORT TO SHAREHOLDERS. At the annual meeting of the
shareholders, the Board shall issue an annual report on the Corporation which
shall detail the financial status of the Corporation. Nothing herein shall be
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interpreted as prohibiting the Board from issuing such annual or other periodic
reports to the shareholders of the Corporation as they consider appropriate in
addition to that required herein.
Financial statements and reports shall be prepared from and in accordance
with the books of the Corporation, in conformity with general accepted
accounting principals applied on a consistent basis.
Section 2. INSPECTION OF CORPORATE RECORDS. Any records maintained in the
regular course of business including stock ledger, books of account, and minute
books may be kept by any information storage device if readily convertible into
legible form. Any shareholder of record, in person or by an attorney or agent
who presents proof of such position with bank-guaranteed signature on such
proof, may, upon written demand under oath, stating purpose, inspect for any
proper purpose, the stock ledger, list of shareholders and other books and
records and make copies and extracts of the same. Such copies and extracts
shall be made at the cost of the individual preparing or requesting such
inspection and such inspection shall be during normal business hours and shall
not be made without at least forty-eight (48) hours written notice prior
thereto.
Section 3. INSPECTION OF ARTICLES, OF INCORPORATION AND BYLAWS. The
original or a copy of the Articles of Incorporation and Bylaws of the
Corporation, as amended or otherwise altered to date, and certified by the
Secretary of the Corporation, shall at all times be kept at the principal
executive office of the Corporation. Such Articles and Bylaws shall be open for
inspection to all shareholders of record or holders of voting trust certificates
at all reasonable times during the business hours of the Corporation.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall begin on
the first day of January of each year and end at midnight on the last day of
December of the following year.
Section 5. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions
contained in the Corporation Law of the State of Utah shall govern the
construction of these Bylaws.
Without limiting the foregoing, the masculine gender where used included
the feminine and neuter; the singular number includes the plural, and the plural
number includes the singular; "shall" is mandatory and "may" is permissive; and
"person" includes the Corporation as well as a natural person.
ARTICLE IX
AMENDMENTS TO BYLAWS
These Bylaws may be amended at any time by a majority vote of the Board or
shareholders, except as otherwise provided in Article II, Section 18 and Article
III, Section 16 of these Bylaws and except that any of the following amendments
shall require the approval of three-fourths (3/4) of the Board or then-
outstanding shares:
1. Any amendment reducing the percentage of outstanding shares required
to constitute a quorum for the transaction of business or required to authorize
any shareholder action;
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2. Any amendment reducing the number of Directors required to
constitute a quorum for the transaction of business or required to authorize any
action on the part of the Board;
3. Any amendment increasing or decreasing the number of Directors;
4. Any amendment imposing or eliminating any stock transfer,
restriction or mandatory stock purchase obligations;
5. Any amendment to this section.
CERTIFICATE OF SECRETARY OF ADOPTION BY DIRECTORS
I HEREBY CERTIFY, that I am the duly elected, qualified and acting
Secretary of the above-named Corporation and that the above and foregoing
Amended and Restated Bylaws were adopted as the Bylaws of said Corporation on
the date set forth above by the Directors of said Corporation.
DATED: November 24, 1998 /s/ Scott G. Monson
Scott G. Monson,
SECRETARY
