<PAGE>
As filed with the Securities and Exchange Commission on July 14, 1998.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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)
JULY 14, 1997 (JUNE 30, 1997)
IRWIN NATURALS/4HEALTH, INC.
(Exact name of registrant as specified in its charter)
UTAH 0-18160 87-046822
(State of other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
10549 WEST JEFFERSON BLVD.,
CULVER CITY, CA 90232
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (310) 253-5305
4HEALTH, INC., 5485 CONESTOGA COURT, BOULDER, CO 80301
(Former name and former address, if changed since last report)
<PAGE>
IRWIN NATURALS/4HEALTH, INC.
TABLE OF CONTENTS
FOR
CURRENT REPORT ON FORM 8-K
<TABLE>
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Page No.
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Item 1. Change of Control. . . . . . . . . . . . . . . . . . . . . . 3
Item 2. Acquisition or Disposition of Assets . . . . . . . . . . . . 3
Item 5. Other Events . . . . . . . . . . . . . . . . . . . . . . . . 3
Item 7. Financial Statements and Exhibits. . . . . . . . . . . . . . 4
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
<PAGE>
ITEM 1. CHANGE OF CONTROL
On June 30, 1998, pursuant to the terms of the Amended and Restated
Agreement and Plan of Merger dated as of May 22, 1998, among Irwin Naturals,
a California corporation ("IN"), 4Health, Inc., a Utah corporation
("4Health"), and Mr. Klee Irwin, the Chief Executive Officer and a principal
stockholder of IN ("Irwin"), IN was merged with and into 4Health (the
"Merger") and, in connection therewith, the shares of common stock, no par
value, of IN ("IN Common Stock") issued and outstanding immediately prior to
the Merger were converted into the right to receive an aggregate of
15,750,000 shares of common stock, par value $.01 per share, of 4Health
("4Health Common Stock"), with the effect that each share of outstanding IN
Common Stock was converted into 241.37931 shares of 4Health Common Stock.
The holders of 4Health Common Stock prior to the Merger, as a result of the
Merger, hold only approximately 43% of the issued and outstanding common
stock of the surviving corporation (the "Surviving Corporation") and Klee
Irwin and his wife Margarethe Irwin, the sole stockholders of IN, jointly own
approximately 57% of the issued and outstanding common stock of the Surviving
Corporation.
Upon consummation of the Merger, the name of the Surviving
Corporation was changed from "4Health, Inc." to "Irwin Naturals/4Health, Inc."
Immediately prior to the Merger, R. Lindsey Duncan, President and
Chief Executive Officer of 4Health beneficially owned approximately 49% of
the issued and outstanding 4Health Common Stock (including shares which could
be purchased under stock options exercisable within 60 days). Additional
information with respect to the Merger is hereby incorporated by reference to
the Proxy Statement dated June 19, 1998 (the "Proxy Statement") filed with
the Securities and Exchange Commission on June 19, 1998 (File No. 000-18160).
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
See response to Item 1 above for a description of the terms of the
Merger.
4Health was organized in February 1993, and formulated and supplied
nutritional supplements which are available nationwide through an estimated
5,000 health food stores and health care providers. IN was organized in
August 1995 and formulated and distributed nutritional supplements through
health food stores, food, drug and mass retail channels and internationally.
Irwin Naturals/4Health, Inc. intends to continue the businesses of 4Health
and IN much the same as their operations had been conducted prior to the
Merger.
Additional information with respect to the businesses of IN,
4Health and the Surviving Corporation and the Merger is hereby incorporated
by reference to the Proxy Statement.
ITEM 5. OTHER EVENTS
On July 1, 1998, Clarke Keough resigned from the Board of Directors
of Irwin Naturals/4Health, Inc. for personal reasons.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired. The
financial statements required pursuant to subsection (a) of Item 7 are not
included in this initial report on Form 8-K and will be filed on or before
August 28, 1998.
(b) Pro Forma Financial Information. The PRO FORMA financial
information required pursuant to subsection (b) of Item 7 is not included in
this initial report on Form 8-K and will be filed on or before August 28,
1998.
(c) Exhibits. The following materials are filed as exhibits
to this Current Report on Form 8-K:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
2.05 Articles of Merger and Plan of Merger. See Appendix B to the
Proxy Statement.
3.06 Amended Articles of Incorporation of Irwin Naturals/4Health, Inc.
3.07 Amended Bylaws of Irwin Naturals/4Health, Inc.
</TABLE>
<PAGE>
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.
IRWIN NATURALS/4HEALTH, INC.
Date: July 14, 1998 By: /s/Klee Irwin
----------------------
Klee Irwin
President
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
2.05 Articles of Merger and Plan of Merger. See Appendix B
to the Proxy Statement.
3.06 Amended Articles of Incorporation of Irwin
Naturals/4Health, Inc.
3.07 Amended Bylaws of Irwin Naturals/4Health, Inc.
</TABLE>
<PAGE>
AMENDED ARTICLES OF INCORPORATION
OF
IRWIN NATURALS/4HEALTH, INC.
ARTICLE I
NAME
The name of the Corporation shall be: Irwin Naturals/4Health, Inc.
ARTICLE II
PURPOSE
The Corporation is organized to engage in any lawful act or activity for
which a corporation may be organized under the Utah Revised Business Corporation
Act.
ARTICLE III
AUTHORIZED SHARES
The Corporation shall have the authority to issue an aggregate of
55,000,000 shares, of which 5,000,000 shares shall be preferred stock, $0.01 par
value ("Preferred Stock"), and 50,000,000 shares shall be common stock, $0.01
par value ("Common Stock"). Shares of any class of stock may be issued, without
shareholder action, in one or more series as may from time to time be determined
by the board of directors. The board of directors of this Corporation is hereby
expressly granted authority, without shareholder action, and within the limits
set forth in the Utah Revised Business Corporation Act, to:
(a) designate in whole or in part, the preferences, limitations, and
relative rights, of any class of shares before the issuance of any shares
of that class;
(b) create one or more series within a class of shares, fix the number of
shares of each such series, and designate, in whole or part, the
preferences, limitations, and relative rights of the series, all before the
issuance of any shares of that series;
(c) alter or revoke the preferences, limitations, and relative rights
granted to or imposed upon any wholly unissued class of shares or any
wholly unissued series of any class of shares; or
(d) increase or decrease the number of shares constituting any series, the
number of shares of which was originally fixed by the board of directors,
either before or after the issuance of shares of the series; provided that,
the number may not be decreased below the number of shares of the series
then outstanding, or increased above the total number of authorized shares
of the applicable class of shares available for designation as a part of
the series.
The allocation between the classes, or among the series of each class, of
unlimited voting rights and the right to receive the net assets of the
Corporation upon dissolution, shall be as designated by the board of
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directors. All rights accruing to the outstanding shares of the Corporation not
expressly provided for to the contrary herein or in the Corporation's bylaws or
in any amendment hereto or thereto shall be vested in the Common Stock.
Accordingly, unless and until otherwise designated by the board of directors of
the Corporation, and subject to any superior rights as so designated, the Common
Stock shall have unlimited voting rights and be entitled to receive the net
assets of the Corporation upon dissolution.
ARTICLE IV
CONTROL SHARE ACQUISITION AND FAIR PRICE PROVISION
A. No shareholder shall have the right to demand payment for his or her
shares in the event of a control share acquisition as provided in section
61-6-12 of the Utah Revised Business Corporation Act or successor statute of
like tenor, which section shall not be applicable to the Corporation.
B. For the purposes of this Article IV:
(1) A "person" shall mean any individual, firm, corporation, trust,
or other entity.
(2) "Net Assets" shall mean the difference between the aggregate
amount of all assets and the aggregate amount of all liabilities of the
Corporation as they appear on the Corporation's most recent audited
financial statements.
(3) "Voting Stock" means then outstanding shares of stock of all
classes and series of the Corporation entitled to vote in the election of
directors.
(4) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1, 1996.
(5) "Subsidiary" means any corporation of which more than a majority
of any class of equity security is owned, directly or indirectly, by the
Corporation; PROVIDED HOWEVER, that for purposes of the definition of
Interested Stockholder set forth in Paragraph B(7) of this Article IV, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned by the Corporation, by a Subsidiary, or
by the Corporation and one more Subsidiaries.
(6) A person shall be a "Beneficial Owner" of any Voting Stock:
(A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement, or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote or to direct the vote pursuant to any
agreement, arrangement, or understanding; or
(C) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement, or understanding for the
purpose of acquiring, holding, voting, or disposing of any shares of
Voting Stock.
(7) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
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<PAGE>
(A) shall become a Beneficial Owner, directly or indirectly, of
more than 20% of the combined voting power of the then outstanding
Voting Stock at any time after the provisions of this Article IV shall
first become effective; or
(B) shall become an Affiliate of the Corporation at any time
after the provisions of this Article IV shall first become effective,
and at any time within the two-year period immediately prior to the
date in question was the Beneficial Owner, directly or indirectly, of
20% or more of the combined voting power of the then outstanding
Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or a series of transactions
not involving a public offering within the meaning of the Securities
Act of 1933.
(8) "Disinterested Director" means any member of the board of
directors of the Corporation which is unaffiliated with, and not a nominee
of, and Interested Stockholder and was a member of the board of directors
prior to the time that the Interested Stockholder became an Interested
Stockholder and any successor of a Disinterested Director who is
unaffiliated with, and not nominee of, an Interested Stockholder and who is
recommended to succeed a Disinterested Director by a majority of
Disinterested Director then on the board of directors.
(9) "Fair Market Value" means:
(A) in the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on such
Composite Tape, on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principle United States securities
exchange registered under the Securities Exchange Act of 1934, on
which such stock is listed, or if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated
Quotations System or any automated quotation system then in use, or
is no such quotations are available , the fair market value on the
date in question of a share of such stock as determined by a majority
of the Disinterested Directors in good faith; and
(B) in the case of stock of any class of securities not traded
on any securities exchange or in the over-the-counter market or in the
case of property other than cash or stock, the fair market value of
such securities or property on the date in question as determined by a
majority of the Disinterested Directors in good faith.
(10) "Business Combination" means any transaction which is referred to
in any one or more Paragraphs C(1) through (5) below.
(11) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration to be received" as used in Paragraphs
D(2)(A) and (B) shall include the shares of Common Stock and/or the shares
of any other class of outstanding Voting Stock retained by the holders of
such shares.
(12) For the purposes of determining whether a person is an Interested
Stockholder pursuant to Paragraph B(7), the number of the shares of Voting
Stock deemed to be outstanding shall include shares deemed owned through
application of Paragraph B(6)(i) but shall not include
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<PAGE>
any other shares of Voting Stock which may be issuable to other persons
pursuant to any agreement, arrangement, or understanding, or upon exercise
of conversion rights, warrants, or options, or otherwise.
C. In addition to any affirmative vote required by law or any other
Article of these Article of Incorporation, and except as otherwise expressly
provided in Paragraph D of this Article IV:
(1) any merger or consolidation of the Corporation or any Subsidiary
with (i) any Interested Stockholder or (ii) any other corporation (whether
or not itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder of any assets of the Corporation, or of any Subsidiary, having
an aggregate Fair Market Value equal to ten percent (10%) or more of the
Net Assets of the Corporation;
(3) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder in exchange for cash,
securities, or other property (or a combination thereof) having an
aggregate Fair Market Value equal to ten percent (10%) or more of the Net
Assets of the Corporation, other than the issuance of securities by the
Corporation or any Subsidiary upon the conversion of convertible securities
of the Corporation or any Subsidiary which were not acquired from the
Corporation or any Subsidiary by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
(4) the adopting of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
(5) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding stock of any class of
equity or convertible securities of the Corporation or any Subsidiary
directly or indirectly owned by any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least (i) 67% of the
then outstanding shares of Voting Stock, and (ii) a majority of the then
outstanding shares of Voting Stock held by persons who are not Interested
Stockholders or Affiliates or Associates of Interested Stockholder; PROVIDED,
HOWEVER, that the majority vote requirement of this clause (ii) shall not be
applicable if the Business Combination is approved by the affirmative vote of
the holders of note less than 80% of the then outstanding shares of Voting
Stock. The foregoing affirmative vote requirements are hereinafter referred to
as the "Special Vote Requirements." The Special Vote Requirement shall be
applicable notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
D. The provisions of Paragraph C shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law and any other Article of these
Articles of Incorporation, if all of the conditions specified in either of the
following Paragraphs (1) and (2) are met:
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(1) Approval by Disinterested Directors. The Business Combination
shall have been approved by a majority of the Disinterested Directors.
(2) Price and Procedural Requirements. All of the following
conditions shall have been met:
(A) The aggregate amount of the cash and the Fair Market Value,
as of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of
Common Stock and any series of Preferred Stock of the Corporation in
such Business Combination shall be at least equal to the higher of (i)
the higher price paid for any shares (including brokerage commissions
transfer taxes and soliciting dealers' fees) of such class or series
of stock by any person who is an Interested Stockholder, or by any of
his Affiliates or Associates, within the two-year period immediately
prior to the time of the first public announcement of the proposed
Business Combination (the "Announcement Date") or in the transaction
in which such person became an Interested Stockholder, whichever price
is higher; or (ii) the Fair Market Value per share of such class or
series of stock on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher; PROVIDED, HOWEVER, that if
the Interested Stockholder has not previously paid for shares of
series of Preferred Stock or if the highest preferential amount per
share of a series of Preferred Stock to which the holders thereof
would be entitled in the event of any voluntary or involuntary
liquidation, dissolution, or winding up of affairs of the Corporation
(regardless of whether the Business Combination to be consummated
constitutes such as event) is greater than such aggregate amount,
holders of such series of Preferred Stock shall receive an amount for
each such share at least equal to the highest preferential amount
applicable to such series of Preferred Stock. The provisions of this
Paragraph D(2)(A) shall be required to be met with respect to every
class or series of Preferred Stock, whether or not the Interested
Stockholder has previously become the Beneficial Owner of any shares
of a particular class or series of Preferred Stock prior to proposing
the Business Combination. The price paid for any share of any such
class or series of stock shall be the amount of cash plus the Fair
Market Value of any consideration to be received therefor, determined
at the time of payment thereof.
(B) The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the same form
as the Interested Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder has paid for
shares of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of Voting
Stock shall be either cash or the form of consideration used to
acquire the largest number of shares of such class of Voting Stock
previously acquired by it. The price determined in accordance with
Paragraph D(2)(A) above shall be subject to an appropriate adjustment
in the event of any stock dividend, stock split, subdivision,
combination of shares, or similar event.
(C) After such Interested Stockholder has become an Interested
Stockholder and through the date of consummation of such Business
Combination: (i) there shall have been (1) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors, and (2) no failure to
increase such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization, or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Disinterested
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Directors; and (ii) such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Voting Stock, except
as part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(D) After such Interested Stockholder had become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges, or other
financial assistance or any tax credit or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(E) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules, or
regulations) shall be mailed to all stockholders of the Corporation at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statements is required to be
mailed pursuant to such Act or subsequent provisions.)
E. The majority of the Disinterested Directors of the Corporation shall
have the power and duty to determine for the purposes of this Article IV, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine the applicability of the various provisions of this Article IV,
including, (i) whether a person is an Interested Stockholder, (ii) the number of
shares of Voting Stock of which any person is the Beneficial Stockholder, (iii)
whether a person is an Affiliate or Associate of another, (iv) whether the
requirements of Paragraph C(2) have been met with respect to any Business
Combination, and (v) whether the assets which are subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value equal to ten percent (10%) or
more of the Net Assets of the Corporation; and the good faith determination of a
majority of the Disinterested Directors shall be conclusive and binding for all
purposes of this Article IV.
F. Nothing contained in this Article IV shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
G. Notwithstanding any other provision of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation), any proposal to amend or repeal, or adopt any
provisions inconsistent with, this Article IV of these Articles of Incorporation
shall be approved by the affirmative vote of at least (1) 67% of the then
outstanding shares of Voting Stock and (2) a majority of the then outstanding
shares of Voting Stock held by persons who are not Interested Stockholders;
PROVIDED THAT, the majority vote requirement of this clause (2) shall not be
applicable if the proposal is approved by the affirmative vote of not less than
80% of the then outstanding shares of Voting Stock,
ARTICLE V
LIMITATION ON LIABILITY
To the fullest extent permitted by the Utah Revised Business Corporation
Act or any other applicable law as now in effect or as it may hereafter be
amended, a director of the Corporation shall have no personal liability to the
Corporation or its shareholders for monetary damages for any action taken or any
failure to take any action as a director.
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ARTICLE VI
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND OTHERS
To the fullest extent permitted by the Utah Revised Business Corporation
Act or any other applicable law as now in effect or as it may hereafter be
amended, the Corporation shall indemnify directors as set forth in the bylaws.
The Corporation may indemnify officers, employees, fiduciaries, and agents to
the extent provided for in the bylaws or authorized by the board of directors.
ARTICLE VII
BOARD OF DIRECTORS
A. The board of directors shall have authority to exercise all such
powers and to do all such other lawful acts and things which the Corporation or
its stockholders might do, unless prohibited from doing so by applicable laws,
by the Articles of Incorporation or by the Bylaws of the Corporation.
B. Until after June 30, 2003, all of the corporate powers of this
Corporation shall be vested in, and managed by, a board of not less than three
nor more than five directors and, thereafter, such larger or lesser number as
may be determined by the affirmative vote of a majority of the outstanding
shares of voting capital stock then entitled to vote generally in election of
directors, voting together as a single class.
C. The board of directors shall be and is divided into three classes:
Class I, Class II, and Class III, which shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting at which the
director was elected; PROVIDED, HOWEVER, that each initial director in Class I
shall hold office until the annual meeting of stockholders in 2001; each initial
director in Class II shall hold office until the annual meeting of stockholders
in 2000; and each initial director in Class III shall hold office until the
annual meeting of stockholders in 1999. Notwithstanding the foregoing
provisions in this Article VII C., each director shall serve until his successor
is duly elected and qualified or until his death, resignation, or removal.
D. Until after June 30, 2003, the number of directors may be increased or
decreased within the limits above prescribed by the affirmative vote of at least
eighty percent (80%) of the outstanding shares of voting capital stock of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class, and, thereafter, the number of directors may be so
increased or decreased within the limits above prescribed by a majority vote of
the directors. In the event of any increase or decrease in the authorized
number of directors, the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the board of directors
among the three classes of directors so as to maintain such classes as nearly
equal as possible. No decrease in the number of directors constituting the
board of directors shall shorten the term of any incumbent director.
E. Until after June 30, 2003, newly created directorships resulting from
any increase in the number of directors and any vacancies on the board of
directors resulting from death, resignation, disqualification, removal, or other
cause shall be filled by the affirmative vote of at least three quarters of the
remaining directors then in office (and not by stockholders), even though less
than a quorum of the board of directors, from among one or more nominees
designated by the Executive Committee of the board of directors (acting in its
capacity as a nominating committee of the board of directors). Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of director in which there is a vacancy
which is being filed by such elected director.
F. Until after June 30, 2003, directors may be removed from office with
or without cause, upon the affirmative vote of at least eighty percent (80%),
and, thereafter, at least a majority, of
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the outstanding shares of the voting capital stock of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
G. Except as expressly provided herein or in the Bylaws of the
Corporation to the contrary, the board of directors shall have authority to
adopt, amend, or repeal Bylaws, including the right to adopt, amend, or repeal
Bylaws fixing or increasing their compensation, by the affirmative vote of at
least three quarters of the directors then in office.
H. Until after June 30, 2003, any amendment, change, or repeal of this
Article VII or any provision hereof shall require the affirmative vote of the
holders of at least eighty percent (80%), and, thereafter, at least a majority,
of the outstanding shares of the voting capital stock of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
ARTICLE VIII
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office and the name of the
registered agent at that address in the state of Utah is:
Rockwell D. Schjuter
4625 South 2300 East
Salt Lake City, Utah 84117
Either the registered office or the registered agent may be changed in the
manner provided for by law.
ARTICLE IX
INCORPORATOR
The name and address of the incorporator signing these Articles of
Incorporation is as follows:
Rockwell D. Schjuter
2801 South Decker Lake Lane
Salt Lake City, Utah 84119
ARTICLE X
WRITTEN CONSENTS
No action required or permitted to be taken at annual or special meeting of
stockholders of the Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied unless at least three quarters of the incumbent
directors authorize the Corporation to take action upon such written consent.
Upon receipt of such authorization, the consent in writing to such action signed
by stockholders holding at least that portion of the total voting power on the
question which is required by law or these Articles of Incorporation or by the
Bylaws of the Corporation shall be sufficient for the purpose, without the
necessity for a meeting of the stockholders. In order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date by the vote of
at least three quarters of the incumbent directors, which record date shall not
-8-
<PAGE>
precede the date upon which the resolution fixing the record date is adopted by
the board of directors, and which date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the board of
directors. As used herein, the term "incumbent directors" means any directors
who were directors prior to the time that the relevant action is required or
permitted to be taken by the board of directors. Until after June 30, 2003, any
amendment, change, or repeal of this Article X, or any provision hereof shall
require the affirmative vote of the holders of at least eighty percent (80%),
and, thereafter, at least a majority, of the outstanding shares of the voting
capital stock of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class.
-9-
<PAGE>
Bylaws
of
Irwin Naturals/4Health, Inc.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE PAGE
<S> <C> <C>
ARTICLE I OFFICES 4
Section 1.1 Business Office 4
Section 1.2 Registered Office 4
ARTICLE II SHAREHOLDERS 4
Section 2.1 Annual Shareholder Meeting 4
Section 2.2 Special Shareholder Meetings 4
Section 2.3 Place of Shareholder Meetings
Section 2.4 Notice of Shareholder Meetings 5
Section 2.5 Meetings by Telecommunications 6
Section 2.6 Fixing of Record Date 6
Section 2.7 Shareholder list 6
Section 2.8 Shareholder Quorum and Voting Requirements 7
Section 2.9 Increasing Either Quorum or Voting Requirements 7
Section 2.10 Proxies 7
Section 2.11 Voting of Shares 7
Section 2.12 Corporation's Acceptance of Votes 8
Section 2.13 Inspectors of Election 9
Section 2.14 Shareholder Action Without Meeting 9
Section 2.15 Vote Required: Election of Directors 9
Section 2.16 Business at Annual Meeting 10
Section 2.17 Notification of Nominations 10
Section 2.18 Conduct of Meeting 11
Section 2.19 Shareholder's Rights to Inspect Corporate Records 11
Section 2.20 Financial Statements Shall be Furnished to the Shareholders 12
Section 2.21 Dissenters' Rights 12
ARTICLE III BOARD OF DIRECTORS 12
Section 3.1 General Powers 12
Section 3.2 Number, Tenure, and Qualification of Directors 12
Section 3.3 Regular Meetings of the Board of Directors 13
Section 3.4 Special Meetings of the Board of Directors 13
Section 3.5 Notice of, and Waiver of Notice for,
Special Director Meetings 13
Section 3.6 Director Quorum 13
Section 3.7 Directors, Manner of Acting 13
Section 3.8 Establishing a "Supermajority" Quorum of Voting Requirement
for the Board of Directors 14
Section 3.9 Director Action Without a Meeting 14
Section 3.10 Removal of Directors 14
Section 3.11 Board of Director Vacancies 14
Section 3.12 Director Compensation 15
Section 3.13 Director Committees 15
Section 3.14 Executive Committee 16
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
ARTICLE PAGE
<S> <C> <C>
ARTICLE IV OFFICERS 17
Section 4.1 Number of Officers 17
Section 4.2 Appointment and Term of Office 17
Section 4.3 Removal of Officers 17
Section 4.4 Chairman 17
Section 4.5 President 18
Section 4.6 Vice-Presidents 18
Section 4.7 Secretary 18
Section 4.8 Treasurer 18
Section 4.9 Assistant Secretaries and Assistant Treasures 18
Section 4.10 Salaries 19
ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS,
AGENTS, AND EMPLOYEES 19
Section 5.1 Indemnification of Directors 19
Section 5.2 Advance Expenses for Directors 19
Section 5.3 Indemnification of Officers, Agents, and Employees who
are not Directors 19
ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER 19
Section 6.1 Certificates for Shares 19
Section 6.2 Shares Without Certificates 20
Section 6.3 Registration of the Transfer of Shares 20
Section 6.4 Restrictions on Transfer of Shares Permitted 20
Section 6.5 Acquisition of Shares 21
ARTICLE VII DISTRIBUTIONS 22
ARTICLE VIII CORPORATE SEAL 22
ARTICLE IX DIRECTORS CONFLICTING INTEREST
TRANSACTIONS 22
ARTICLE X AMENDMENTS 22
ARTICLE XI FISCAL YEAR 23
CERTIFICATE OF SECRETARY 23
</TABLE>
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<PAGE>
BYLAWS OF
IRWIN NATURALS/4HEALTH, 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, the Chairman of the Board or by the board of
directors and shall be called by the president at the request of the holders
of not less than one- tenth of all outstanding votes of the corporation
entitled to be cast on any issue at the meeting.
Section 2.3 PLACE OF SHAREHOLDER MEETINGS. The board of directors
may designate any place, either within or without the state of Utah, as the
place of meeting for any annual or any special meeting of the shareholders,
unless by written consents, which may be in the form of waivers of notice or
otherwise, a majority of shareholders entitled to vote at the meeting may
designate a different place, either within or without the state of Utah, as
the place for the holding of such meeting. If no designation is made by
either the directors or majority action of the voting shareholders the place
of the meeting shall be the principal office of the corporation.
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<PAGE>
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 shareholders 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 proposes described in the
meeting notice, unless the shareholder objects to considering the matter when
it is presented.
(e) CONTENTS OF NOTICE. The notice of each special shareholder meeting
shall include a description of the purpose or purposes for which the meeting
is called. Except as provided in this section 2.4(e), the articles of
incorporation, or otherwise in the Act, the notice of an annual shareholder
meeting need not include a description of the purpose or purposes for which
the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger of 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.
5
<PAGE>
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 shareholders signs the demands;
(c) With respect to the payment of a share dividend, the date the board
of directors authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article II, section 2.14), the date the first shareholder signs
a consent; and
(e) With respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date the board
authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section 2.6, such
determination shall apply to any adjournment thereof unless the board of
directors fixes a new record date. A new record date must be fixed if the
meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting.
Section 2.7 SHAREHOLDER LIST. The officer or agent having charge of
the stock transfer books for shares of the corporation shall make a complete
record of the shareholders entitled to vote at each meeting of shareholders,
arranged in alphabetical order with the address of and the number of shares
held by each. The list must be arranged by voting group (if such exists, see
Article II, section 2.8) and within each voting group by class or series of
shares. The shareholder list must be available for inspection by any
shareholder, beginning on the earlier of ten days before the meeting for
which the list was prepared or two business days after notice of the meeting
is given for which the list was prepared and continuing through the meeting.
The list shall be available at the corporation's principal office or at a
place identified in the meeting notice in the city where the meeting is to be
held. A shareholder, or his agent or attorney, is entitled, on written
demand, to inspect and , subject to the requirements of section 2.19 of this
Article II and section 16-10a-1602 and 16-10a-1603 of the Act, or any section
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.
6
<PAGE>
Section 2.8 SHAREHOLDER QUORUM AND VOTING REQUIREMENTS. If the
articles of incorporation or the Act provides for voting by a single voting
group on a matter, action on that matter is taken when voted upon by that
voting group.
Shares entitled to vote as a separate voting group may take action on a
matter at a meeting only if a quorum of those shares exists with respect to
that matter. Unless the articles of incorporation, a bylaw adopted pursuant
to section 2.9 of this Article II, or the Act provides otherwise, a majority
of the votes entitled to be cast on the matter by the voting group
constitutes a quorum of that voting group for action on that matter.
If the articles of incorporation or the Act provides for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for
that adjourned meeting.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless
the articles of incorporation, a bylaw adopted pursuant to section 2.9 of
this Article II, or the Act require a greater number of affirmative votes.
Section 2.9 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS. For
purposes of this section 2.9, a "supermajority" quorum is a requirement that
more than a majority of the votes of the voting group be present to
constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of the affirmative
votes of a voting group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend, or delete a bylaw which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the
same quorum requirement and be adopted by the same vote and voting groups
required to take action under the quorum and voting requirement than in
effect or proposed to be adopted, whichever is greater.
A bylaw that fixes a supermajority quorum 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.
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<PAGE>
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 holder 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 corresponds to the name of a shareholder,
the corporation if acting in good faith, is nevertheless entitled to accept
the vote, consent, waiver, or proxy appointment or revocation and give it
effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the Act and the
name signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the shareholder and, if the
corporation requests, evidence of fiduciary status acceptable to the
corporation has been presented with respect to the vote, consent, waiver, or
proxy appointment or revocation;
(3) the name signed purports to be that of receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of
this status acceptable to the corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment or revocation;
(4) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's authority
to sign for the shareholder has been presented with respect to the vote,
consent, waiver, or proxy appointment or revocation; and
(5) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment or revocation if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature or about the signatory's authority
to sign for the shareholder.
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<PAGE>
(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 revocation of a vote,
consent, waiver, or proxy appointment or revocation under 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 appointment in advance of any such meeting by the board of directors,
such inspector shall be appointed for the meeting by the presiding officer. In
the absence of any such appointment, the secretary of the corporation shall act
as the inspector. No candidate for the office of director (whether or not then
a director) shall be appointed as such inspector. Such inspector shall be
responsible for tallying and certifying each vote, whether made in person or by
proxy.
Section 2.14 SHAREHOLDER ACTION WITHOUT MEETING. Any action required
or permitted to be taken at a meeting of the shareholders, except for the
election of directors as set forth in section 2.15 of this Article II, may be
taken without a meeting and without prior notice if one or more consents in
writing, setting forth the action so taken, shall be signed by shareholders
having not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares entitled to
vote with respect to the subject matter thereof are present. Directors may
be elected without a meeting of shareholders by the written consent of the
shareholders holding all of the shares entitled to vote for the election of
directors. Unless the written consents of all shareholders entitled to vote
have been obtained. notice of any shareholder approval without a meeting
shall be given at least ten days before the consummation of the action
authorized by the approval to (i) those shareholders entitled to vote who
have not consented in writing, and (ii) those shareholders not entitled to
vote and to whom the Act requires that notice of the proposed action be
given. If the act to be taken requires that notice be given to nonvoting
shareholders, the corporation shall give the nonvoting shareholders written
notice of the proposed action at least ten days before the action is taken.
The notice shall contain or be accompanied by the same materials 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
approved if the votes cast within the voting group favoring the action exceed
the votes cast within the voting group opposing the action. 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.
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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 the 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 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 Executive Committee of the board of directors or
by any shareholder entitled to vote for the election of directors. Any
shareholder entitled to vote for the election of directors at a meeting may
nominate persons for election as directors only if written notice of such
shareholder's intent to make such nomination is given, either by personal
delivery or by United States mail, postage prepaid, to the secretary of the
corporation not later than (i) with respect to an election to be held at an
annual meeting of shareholders, 90 days in advance of such meeting, and (ii)
with respect to an election to be held at a special meeting of shareholders for
the election of directors, the close of business on the seventh day following
the date on which of such meeting is first given to shareholders. Each such
notice shall set forth:
(a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that such shareholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice;
(c) a description of all arrangements or understandings between such
shareholder and each nominee and 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
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(e) the consent of each nominee to serve as a director of the
corporation if elected.
The chairman of a shareholder meeting may refuse to acknowledge the nomination
of any person not made in compliance with the foregoing procedure.
Section 2.18 CONDUCT OF MEETING. The board of directors of the
corporation shall be entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary, appropriate, or
convenient. Subject to such rules and regulations of the board of directors, if
any, the chairman of the meeting shall have the right and authority to prescribe
such rules, regulations, and procedures and do all such acts as, in the judgment
of such chairman, are necessary, appropriate, or convenient for the proper
conduct of the meeting, including, without limitation, establishing an agenda or
order of business for the meeting, rules and procedures for maintaining order at
the meeting and the safety of those present, limitations on participation in
such meeting to shareholders of record of the corporation and their duly
authorized and constituted proxies, and such other persons as the chairman shall
permit, restrictions on entry to the meeting after the time fixed for the
commencement thereof, limitations on the time allotted to questions or comments
by participants, regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. Unless, and to the
extent, determined by the board of directors or the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Section 2.19 SHAREHOLDER'S RIGHTS TO INSPECT CORPORATE RECORDS.
(a) MINUTES AND ACCOUNTING RECORDS. The corporation shall keep as
permanent records minutes of all meetings of its shareholders and board of
directors, a record of all actions taken by the shareholders or board of
directors without a meeting, and a record of all actions taken by a
committee of the board of directors in place of the board of directors on
behalf of the corporation. The corporation shall maintain appropriate
accounting records.
(b) ABSOLUTE INSPECTION RIGHTS OF RECORDS REQUIRED AT PRINCIPAL
OFFICE. If a shareholder gives the corporation written notice of his
demand at least five business days before the date on which he wishes to
inspect and copy, such shareholder (or his agent or attorney) has the right
to inspect and copy, during regular business hours, any of the following
records, all of which the corporation is required to keep at its principal
office:
(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.
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(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 shareholders describes with
reasonable particularity his purpose and the records he desires to inspect,
and the records are directly connected with his purpose, such shareholder
of the corporation (or his agent or attorney) is entitled to inspect and
copy, during regular business hours at a reasonable location specified by
the corporation, any of the following records of the corporation:
(1) excerpts from minutes of any meeting of the board of
directors, records of any action of a committee of the board of directors
acting on behalf of the corporation, minutes of any meeting of the
shareholders, and records of action taken by the shareholders or board of
directors without a meeting, to the extent not subject to inspection under
paragraph (b) of this section 2.19;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than the
date of the shareholders 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
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. Until
after June 30, 2003, all the corporate powers of this corporation shall be
vested in, and managed by, a board of not less than three nor more than five
directors and, thereafter, such larger or lesser number as may be determined
by the affirmative vote of a majority of the outstanding shares of voting
capital stock then entitled to vote generally in the election of directors,
voting together as a single class. The board of directors shall be and is
divided into three classes: Class I, Class II, and Class III, which shall be
as nearly equal as possible. Each director shall serve for a term ending on
the date of the third annual meeting of stockholders following the annual
meeting at which the director was elected; provided, however, that each
initial director in Class I shall hold office until the annual meeting of
stockholders in 2001; each initial director in Class II shall hold office
until the annual meeting of stockholders in 2000; and each initial director
in Class III shall hold office until the annual meeting of stockholders in
1999. Notwithstanding the foregoing provisions in this Section 3.2, each
director shall serve until his successor is duly elected
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and qualified or until his death, resignation, or removal. At each annual
election, the directors chosen to succeed those whose terms then expire shall
be identified as being of the same class as the directors they succeed and
shall be elected for a term expiring at the third succeeding annual meeting
or thereafter when their respective successors in each case are elected and
have qualified. If the number of directors is changed, any increase or
decrease in directors shall be apportioned among the classes so as to
maintain all classes as nearly equal in number as possible, and any
individual director elected to any class shall hold office for a term which
shall coincide with the term of such class.
Section 3.3 REGULAR MEETINGS OF THE BOARD OF DIRECTORS. A regular
meeting of the board of directors shall be held without other notice than this
bylaw immediately after, and at the same place as, the annual meeting of
shareholders. The board of directors may provide, by resolution, the time and
place for the holding of additional regular meetings without other notice than
such resolution.
Section 3.4 SPECIAL MEETING OF THE BOARD OF DIRECTORS. Special
meetings of the board of directors may be called by or at the request of the
president, the chairman of the board 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
business 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
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delivers written notice of his dissent or abstention to the presiding officer
of the meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not
available to a director who votes in favor of the action taken.
Section 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING
REQUIREMENT FOR THE BOARD OF DIRECTORS. For purposes of this section 3.8, a
"supermajority" quorum is a requirement that requires more than a majority of
the directors in office to constitute a quorum; and a "supermajority" voting
requirement is any requirement that requires the vote of more than a majority
of those directors present at a meeting at which a quorum is present to be
the act of the directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(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 than 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. Where the articles of
incorporation do not preclude the shareholders from filling such vacancy,
during such time that the shareholders fail or are unable to fill such
vacancies, then and until the shareholders act:
(1) the board of directors may fill the vacancy; or
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(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.
A director elected to fill a vacancy created other than by an increase
in the number of directors shall be elected for the unexpired term of such
director's predecessor in office or such lesser period as may be prescribed
by the board of directors. A director elected to fill a vacancy created by
reason of an increase in the number of directors shall be elected for a term
that expires at the next shareholders' meeting at which directors are
elected, unless such vacancy is filled by vote of the shareholders, in which
case the term shall expire on the later of the next annual meeting at which
directors are elected or the term designated for the director at the time of
the creation of the position being filled.
Despite the expiration of a director's term, such director shall
continue to serve until the election and qualification of a successor 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. Except as otherwise provided in
section 3.14 hereof:
(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:
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(1) authorize distribution to shareholders;
(2) approve, or propose to shareholders, action that the Act
requires be approved by shareholder;
(3) fill vacancies on the board of directors or on any of it
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.
Section 3.14 EXECUTIVE COMMITTEE.
(a) Creation. The board of directors shall create an Executive
Committee consisting of three members: the Chairman of the Board, the
president, and one other independent, non-employee Class III director. The
Committee shall have all of the powers of the board when the board is not in
session, except for the right to exercise any of the following powers which
shall only be exercisable by the board:
1. To adopt an annual budget for the Corporation:
2. To issue securities:
3. To sell a material portion of the assets of the Corporation;
4. To change the business of the Corporation:
5. To incur any indebtedness by the Corporation other than trade
payables incurred in the ordinary course;
6. To authorize any merger, consolidation or other business combination
or any recapitalization or reclassification of any class of securities of the
Corporation;
7. To declare or pay dividends in respect of any securities of the
Corporation;
8. To amend the Corporation's Articles of Incorporation or Bylaws; or
9. To authorize any other matter which under applicable law is required
to be determined by the Board of Directors.
(b) Required Procedures. In addition to and in substitution of the
relevant provisions of section 3.13(c), the Executive Committee shall adopt
and comply with the following special procedures;
(i) A meeting of the Executive Committee may be called on
twenty-four (24) hour notice orally (to be followed immediately with written
or facsimile notice) or in a writing personally delivered or sent by
facsimile to each of the members thereof.
(ii) A quorum for the transaction of business by the Executive
Committee at any meeting shall require the presence, in person or by means of
conference telephone call, wherein all the participants can hear each other,
of both the Chairman of the Board and the President, either of whom may
object to the transaction of any business at such meeting, in which case such
meeting shall not be deemed duly convened.
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(c) Review of Decisions. Any decision of the Executive Committee shall
be subject to review and revision by the board of directors at a regular
meeting of the board of directors or at any special meeting convened by the
Chairman of the Board or the President.
(d) Amendment. Until after June 30, 2003, the provisions of this
Section 3.14 may be amended or repealed only upon receipt of the affirmative
vote of at least eighty percent (80%) of the outstanding shares of voting
capital stock of the Corporation then entitled to vote generally on the
election of directors, voting together as a single class, and, thereafter, by
a majority vote of the 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.
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.
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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 an be subject to all the restrictions
upon the president. A vice-president, if any, may sign, with the secretary
or an assistant secretary, certificates for shares of the corporation the
issuance of which has been authorized by resolution of the board of
directors; and shall perform such other duties as from time to time may be
assigned to him by the president or by the board of directors.
Section 4.7 SECRETARY. The secretary shall: (a) keep the minutes of
the proceedings of the shareholders and of the board of directors in one or
more books provided for that purpose; (b) see that all notices are duly given
in accordance with the provisions of these bylaws or as required by law; (c)
be custodian of the corporate records and of any seal of the corporation
and, if there is a seal of the corporation, see that it is affixed to all
documents the execution of which on behalf of the corporation under its seal
is duly authorized; (d) when requested or required, authenticate any records
of the corporation; (e) keep a register of the post office address of each
shareholder which shall be furnished to the secretary by such shareholders;
(f) sign with the president, or a vice-president, certificates for shares of
the corporation, the issuance of which has been authorized by resolution of
the board of directors; (g) have general charge of the stock transfer books
of the corporation; and (h) in general perform all duties incident to the
office of secretary and such other duties as from time to time may be
assigned to him by the president or by the board of directors.
Section 4.8 TREASURER. The treasurer, if any, and in the absence
thereof of the secretary, shall; (a) have charge and custody of and be
responsible for all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by
the board of directors; and (c) in general perform all of the duties incident
to the office of treasurer and such other duties as from time to time may be
assigned to him by the president or by the board of directors. If required
by the board of directors, the treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or sureties as the
board of directors shall determine.
Section 4.9 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Any
assistant secretary, when authorized by the board of directors, may sign with
the president or a vice-president certificates for shares of the corporation
the issuance of which has been authorized by a resolution of the board of
directors. Any assistant treasurer shall, if required by the board of
directors, give bonds for the faithful discharge of his duties in such sums
and with such sureties as the board of directors shall determine. Any
assistant secretary or assistant treasurer, in general, shall perform such
duties as shall be assigned to them by the secretary or the treasurer,
respectively, or by the president or the board of directors.
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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 OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 INDEMNIFICATION OF DIRECTORS. The corporation shall
indemnify any individual made a party to a proceeding because such individual
was a director of the corporation to the extent permitted by and in accordance
with section 16-10a-901, et seq. of the Act or any amendments of successor
sections of like tenor.
Section 5.2 ADVANCE EXPENSES FOR DIRECTORS. To the extent
permitted by section 16-10a-04 of the Act or any section of like tenor as
amended from time to time, the corporation may pay for or reimburse the
reasonable expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding, if:
(a) the director furnishes the corporation a written affirmation of his
good faith belief that he has met the standard of conduct described in the Act;
(b) the director furnishes the corporation a written undertaking, executed
personally or on his behalf, to repay advances if it is ultimately determined
that he did not meet the standard of conduct (which undertaking must be an
unlimited general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment); and
(c) a determination is made that the facts then known to those making the
determination would not preclude indemnification under section 5.1 of this
Article V or section 16-10a-901 through section 16-10a-909 of the Act or similar
sections of like tenor as from time to time amended.
Section 5.3 INDEMNIFICATION OF OFFICERS, AGENTS, AND EMPLOYEES WHO
ARE NOT DIRECTORS. Unless otherwise provided in the articles of incorporation,
the board of directors may authorize the corporation to indemnify and advance
expenses to any officer, employee, or agent of the corporation who is not a
director of the corporation, to the extent permitted by the Act.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 CERTIFICATES FOR SHARES.
(a) CONTENT. Certificates representing shares of the corporation
shall at minimum, state on their face the name of the issuing corporation and
that it is formed under the laws of the state of Utah; the name of the person
to whom issued; and the number and class of shares and the 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 determined for
each series
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(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 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 SHARE'S 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 minimum:
(1) the name of the issuing corporation and that it is organized
under the laws of the
state of Utah;
(2) the name of the person to whom issued; and
(3) the number and class of shares and the designation of the series, if
any, of the issued shares.
If the corporation is authorized to issue different classes of shares or
different series within a class, the written statement shall describe the
designations, relative rights, preferences, and limitations applicable to each
class and the variation in rights, preferences, and limitations determined for
each series (and the authority of the board of directors to determine variations
for future series). Alternatively, each written statement may state
conspicuously that the corporation will furnish the shareholder this information
without charge on request in writing.
Section 6.3 REGISTRATION OF THE TRANSFER OF SHARES. Registration
of the transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation. In order to register a transfer, the record
owner shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the record owner of such shares on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
Section 6.4 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED. The
board of directors (or shareholders) may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire, shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction.
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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) 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 share, if the
requirement is not manifestly unreasonable; and
(d) prohibit the transfer of the restricted shares to designated persons
or classes of persons, if the prohibition is not manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this section 6.4 and such person has knowledge of
the restriction or its existence is noted conspicuously on the front or back of
the certificate or is contained in the written statement required by section 6.2
of this Article VI with regard to shares issued without certificates. Unless so
noted, a restriction is not enforceable against a person without knowledge of
the restriction.
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.
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ARTICLE VII
DISTRIBUTIONS
The corporation may make distributions (including dividends on its
outstanding shares) as authorized by the board of directors and in the manner
and upon the terms and conditions provided by law and in the corporation's
articles of incorporation.
ARTICLE VIII
CORPORATE SEAL
The board of directors may provide for a corporate seal which may have
inscribed thereon any designation including the name of the corporation, Utah as
the state of incorporation, and the words "Corporate Seal."
ARTICLE IX
DIRECTORS CONFLICTING INTEREST TRANSACTIONS
A director's conflicting interest transaction may not be enjoined, be set
aside, or give rise to an award of damages or other sanctions, in a proceeding
by a shareholder or by or in the right of the corporation, solely because the
director, or any person with whom or which the director has a personal,
economic, or other association, has an interest in the transaction, if:
(a) directors' action respecting the transaction was at any time taken in
compliance with section 16-10a-852 of the Act or any section of like tenor as
amended from time to time;
(b) shareholders' action respecting the transaction was at any time taken
in compliance with section 16-10a-853 of the Act or any section of like tenor as
amended from time to time; or
(c) the transaction, judged according to the circumstances at the time of
commitment, is established to have been fair to the corporation.
ARTICLE X
AMENDMENTS
The corporation's board of directors may amend or repeal the corporation's
bylaws unless:
(a) the Act or the articles of incorporation reserve this power
exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a particular
bylaw provide expressly that the board of directors may not amend or repeal that
bylaw; or
(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.
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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 Irwin
Naturals/4Health, 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 unanimous consent dated June 30, 1998 and that
the above and foregoing bylaws are now in full force and effect and supersede
and replace any prior bylaws of the corporation.
DATED this 30th day of June, 1998.
/s/ Dan Martin
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Dan Martin
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