Attached files
Exhibit 3.2
BYLAWS OF
TECHNISCAN, INC.
OCTOBER 9, 2009
BYLAWS OF
TECHNISCAN, INC.
TABLE OF CONTENTS
Article I Purposes |
1 | |||
Section 1.01. Purpose |
1 | |||
Article II Offices |
1 | |||
Section 2.01. Offices |
1 | |||
Section 2.02. Registered Office |
1 | |||
Article III Stockholders |
1 | |||
Section 3.01. Annual Meeting |
1 | |||
Section 3.02. Special Meeting |
1 | |||
Section 3.03. Place of Meetings |
1 | |||
Section 3.04. Action Without a Meeting |
2 | |||
(a) Action by Written Consent |
2 | |||
(b) Notice of Action |
2 | |||
(c) Withdrawal of Consent |
2 | |||
(d) Effective Date of Action |
2 | |||
(e) Record Date |
2 | |||
Section 3.05. Notice of Meeting |
3 | |||
(a) Notice Required |
3 | |||
(b) Exception to Notice Requirement |
3 | |||
(c) Contents of Notice |
3 | |||
(d) Waiver of Notice |
4 | |||
(e) Waiver by Attendance |
4 | |||
Section 3.06. Record Date for Meetings and Other Actions |
4 | |||
(a) Fixing of Record Date |
4 | |||
(b) Default Record Date |
4 | |||
(c) Adjournment |
4 | |||
Section 3.07. Record Date of Dividends and Other Distributions |
4 | |||
Section 3.08. Meetings by Telecommunication |
4 | |||
Section 3.09. Voting Lists |
5 | |||
(a) Requirements for Voting List |
5 | |||
(b) Inspection of Voting List Prior to a Meeting |
5 | |||
(c) Inspection of Voting List at the Meeting |
5 | |||
(d) Effect on Meeting |
5 | |||
Section 3.10. Proxies |
5 | |||
Section 3.11. Voting Entitlement of Shares |
6 | |||
Section 3.12. Quorum |
6 | |||
Section 3.13. Vote Required to take Action for Other than Election of Directors |
6 | |||
Section 3.14. Voting for Directors |
6 |
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Section 3.15. Conduct of Meetings |
6 | |||
Section 3.16. Advance Notice Provisions for Business to be Transacted at Annual
Meeting |
6 | |||
Section 3.17. Advance Notice Provisions for Election of Directors |
8 | |||
Article IV Board of Directors |
9 | |||
Section 4.01. General Powers |
9 | |||
Section 4.02. Number |
9 | |||
Section 4.03. Term |
9 | |||
Section 4.04. Qualifications |
9 | |||
Section 4.05. Resignation |
9 | |||
Section 4.06. Removal |
9 | |||
(a) Stockholders Right to Remove Directors |
9 | |||
(b) Notice Requirement |
9 | |||
(c) Vote Required |
9 | |||
Section 4.07. Vacancies |
9 | |||
Section 4.08. Compensation |
10 | |||
Section 4.09. Regular Meetings |
10 | |||
Section 4.10. Special Meetings |
10 | |||
Section 4.11. Action Without a Meeting |
10 | |||
Section 4.12. Notice of Special Meetings |
10 | |||
Section 4.13. Waiver of Notice |
10 | |||
(a) Written Waiver |
10 | |||
(b) Waiver by Attendance |
11 | |||
Section 4.14. Quorum |
11 | |||
Section 4.15. Manner of Acting |
11 | |||
Section 4.16. Meetings by Telecommunication |
11 | |||
Section 4.17. Presumption of Assent |
11 | |||
Article V Committees |
11 | |||
Section 5.01. Creation of Committees |
11 | |||
Section 5.02. Membership |
12 | |||
Section 5.03. Notice, Etc. |
12 | |||
Section 5.04. Authority |
12 | |||
Section 5.05. Executive Committee |
12 | |||
Article VI Officers |
12 | |||
Section 6.01. Number |
12 | |||
Section 6.02. Appointment and Term of Office |
12 | |||
Section 6.03. Removal |
12 | |||
Section 6.04. Resignation |
13 | |||
Section 6.05. Vacancies |
13 | |||
Section 6.06. The President |
13 | |||
Section 6.07. The Vice President |
13 | |||
Section 6.08. The Secretary |
13 | |||
Section 6.09. The Treasurer |
14 | |||
Section 6.10. Assistant Secretaries and Assistant Treasurers |
14 |
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Section 6.11. Compensation |
14 | |||
Article VII Certificates for Shares and Their Transfer |
14 | |||
Section 7.01. Certificates for Shares |
14 | |||
(a) Stock Certificates |
14 | |||
(b) Signatures |
14 | |||
(c) Stockholder Register |
15 | |||
Section 7.02. Transfers of Stock |
15 | |||
Section 7.03. Regulations |
15 | |||
Section 7.04. Transfer Agent |
15 | |||
Section 7.05. Lost, Stolen, Destroyed, and Mutilated Certificates |
15 | |||
Section 7.06. Legends |
15 | |||
Article VIII Contracts, Loans, Checks and Deposits |
15 | |||
Section 8.01. Contracts |
15 | |||
Section 8.02. Loans |
16 | |||
Section 8.03. Checks, Drafts, etc. |
16 | |||
Section 8.04. Deposits |
16 | |||
Article IX Miscellaneous |
16 | |||
Section 9.01. Seal |
16 | |||
Section 9.02. Indemnification of Employees and Others |
16 | |||
Section 9.03. Fiscal Year |
16 | |||
Section 9.04. Dividends |
16 | |||
Section 9.05. Voting of Stock in Other Corporations |
16 | |||
Section 9.06. Amendments |
16 |
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BYLAWS OF
TECHNISCAN, INC.
Article I Purposes
Section 1.01. Purpose. This corporation is organized for any and all lawful purposes for which corporations
may be organized under the General Corporation Law of the State of Delaware, as amended
(DGCL). The corporation shall have and exercise all powers necessary or convenient for
the carrying out of any or all of the purposes for which it is organized.
Article II Offices
Section 2.01. Offices. The principal office of the corporation may be located at any place, either in or
outside the State of Utah, as determined by the board of directors. The corporation may have such
other offices, either in or outside the State of Utah, as the board of directors may designate or
as the business of the corporation may require from time to time.
Section 2.02. Registered Office. The registered office of the corporation shall be located in the State of
Delaware, and in any other state as may be required by law, and may be, but need not be, identical
with the corporations principal office. The address of the registered office may be changed from
time to time.
Article III Stockholders
Section 3.01. Annual Meeting. The corporation shall hold an annual meeting of stockholders at such time,
date and place as the board of directors shall determine, for the purpose of electing directors and
for the transaction of such other business as may come before the meeting.
Section 3.02. Special Meeting. The corporation shall hold a special meeting of the stockholders:
(a) on call of its board of directors, the chairman of the board of directors or the
president; or
(b) if the holders of shares representing at least ten percent (10%) of all the votes
entitled to be cast on any issue that is proposed to be considered at a special meeting
sign, date and deliver to the corporations secretary one or more written demands for the
meeting, stating the purpose or purposes for which it is to be held.
Section 3.03. Place of Meetings. The board of directors may designate any place, either in or outside the
State of Utah, as the place at which any annual or special meeting is to be held. If no designation
is made, the meeting shall be held at the corporations principal office.
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Section 3.04. Action Without a Meeting.
(a) Action by Written Consent. Any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting and without prior notice if one or more consents in
writing, setting forth the action so taken, are signed by the holders of outstanding shares 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 thereon were present and voted.
(b) Notice of Action. Unless the written consents of all stockholders entitled to vote have been
obtained, notice of any stockholder approval without a meeting shall be given at least ten (10)
days before the consummation of the action authorized by the approval to:
(i) those stockholders entitled to vote who have not consented in writing; and
(ii) those stockholders not entitled to vote and to whom the DGCL requires that notice
of the proposed action be given.
The notice must contain or be accompanied by the same material that, under the DGCL and these
Bylaws, would have been required to be sent in a notice of meeting at which the proposed action
would have been submitted to the stockholders for action.
(c) Withdrawal of Consent. Any stockholder giving a written consent, or the stockholders
proxyholder, or a transferee of the shares or a personal representative of the stockholder or their
respective proxyholder, may revoke the consent by a signed writing describing the action and
stating that the stockholders prior consent is revoked, if the writing is received by the
corporation prior to the effectiveness of the action.
(d) Effective Date of Action. An action taken pursuant to this Section 3.04 is not effective
unless all written consents on which the corporation relies for the taking of an action pursuant to
subsection (a) are received by the corporation within a sixty (60) day period and not revoked
pursuant to subsection (c). Action taken pursuant to this Section 3.04 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 as contemplated by subsection (a) signed by all
stockholders 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.
(e) Record Date. If not otherwise determined under Section 3.06 of these Bylaws, the record date
for determining stockholders entitled to take action without a meeting or entitled to be given
notice under subsection (b) of action so taken is the date the first stockholder delivers to the
corporation a writing upon which the action is taken pursuant to subsection (a).
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Section 3.05. Notice of Meeting.
(a) Notice Required. The corporation shall give notice to stockholders of the date, time and
place of each annual and special stockholders meeting no fewer than ten (10) nor more than sixty
(60) days before the meeting date. Notice shall be deemed effective at the earlier of (i) when
deposited in the United States mail, addressed to the stockholder at his or her address as it
appears on the stock transfer books of the corporation, with postage thereon prepaid; (ii) 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; (iii) when received; or (iv) five (5)
days after deposit in the United States mail, if mailed postpaid and correctly addressed to an
address other than that shown in the corporations current record of stockholders.
(b) Exception to Notice Requirement. Notwithstanding any requirement in these Bylaws or elsewhere
that notice be given, the corporation shall not be required to give notice to any stockholder to
whom:
(a) a notice of two (2) consecutive annual meetings, and all notices of meetings during
the period between the two (2) consecutive annual meetings, have been mailed, addressed to
the stockholder at the stockholders address as shown on the corporations records, and have
been returned undeliverable; or
(b) at least two (2) payments, if sent by first class mail, of dividends or interest on
securities during a twelve (12) month period, have been mailed, addressed to the stockholder
at the stockholders address as shown on the records of the corporation, and have been
returned undeliverable.
(c) Contents of Notice.
(a) The notice of every stockholders meeting must state the place, day and time of the
meeting.
(b) Notice of an annual meeting need not include a description of the purpose or
purposes for which the meeting is called, except for those matters specified by law or these
Bylaws for which specific notice must be given.
(c) Notice of a special meeting must include a description of the purpose or purposes
for which the meeting is called.
(d) If a purpose of any stockholder meeting is to consider either (i) a proposed
amendment of the Certificate of Incorporation (including any restated Certificate requiring
stockholder approval); (ii) a plan of merger or share exchange; (iii) the sale, lease,
exchange or other disposition of all, or substantially all of the corporations property;
(iv) the dissolution of the corporation; or (v) the removal of a director, the notice must
so state and be accompanied by, respectively, a copy or summary of the (1) amendment; (2)
plan of merger or share exchange; and (3) a description of the transaction involving the
disposition of all or substantially all the corporations property. If the proposed
corporate action creates appraisal rights under the
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DGCL, the notice must state that stockholders are, or may be, entitled to assert
appraisal rights, and must be accompanied by a copy of Section 262 of the DGCL.
(d) Waiver of Notice. A stockholder may waive any notice required by these Bylaws, before or after
the date and time stated in the notice as the date or time when any action will occur or has
occurred. The waiver must be in writing, be signed by the stockholder entitled to the notice, and
be delivered to the corporation for inclusion in the minutes or filing with the corporate records.
(e) Waiver by Attendance. A stockholders attendance at a meeting:
(a) waives objection to lack of notice or defective notice of the meeting, unless the
stockholder at the beginning of the meeting objects to holding the meeting or transacting
business at the meeting because of lack of notice or defective notice; and
(b) in the case of a special meeting, waives objection to consideration of a particular
matter at the meeting that is not within the purposes described in the meeting notice,
unless the stockholder objects to considering the matter when it is presented.
Section 3.06. Record Date for Meetings and Other Actions.
(a) Fixing of Record Date. The board of directors by resolution may fix a record date in order to
determine the stockholders entitled to receive notice of a stockholders meeting, and to determine
the stockholders who are entitled to take action without a meeting, to demand a special meeting, to
vote, or to take any other action. Such record date may not be more than seventy (70) days before
the meeting or action requiring the determination of stockholders.
(b) Default Record Date. If the board of directors does not fix a record date, the record date
for determining stockholders entitled to notice of and to vote at an annual or special
stockholders meeting is the close of business on the date before the first notice is delivered to
stockholders.
(c) Adjournment. A determination of stockholders entitled to notice of or to vote at a
stockholders meeting is effective for any adjournment of the meeting unless the board of directors
fixes a new record date, which it must do if the meeting is adjourned to a date more than one
hundred twenty (120) days after the date fixed for the original meeting.
Section 3.07. Record Date of Dividends and Other Distributions. The board of directors may fix a future date
as the record date for determining stockholders entitled to dividends and other distributions,
other than one involving a purchase, redemption, or other acquisition of the corporations shares.
If the board of directors does not fix a record date, the record date is the date the board of
directors authorizes the distribution.
Section 3.08. Meetings by Telecommunication. Stockholders may participate in a meeting by, or the meeting
may be conducted through the use of, conference telephone or similar means of communication by
which all persons participating in the meeting can hear one another
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during the meeting. A stockholder participating in a meeting by this means is considered to be
present at the meeting.
Section 3.09. Voting Lists.
(a) Requirements for Voting List. After fixing a record date for a stockholders meeting, the
corporation shall prepare a list of the names of all its stockholders who are entitled to be given
notice of the meeting. The list must be arranged by voting group, and within each voting group by
class or series of shares. The list must be alphabetical within each class or series and must show
the address of, and the number of shares held by, each stockholder.
(b) Inspection of Voting List Prior to a Meeting. The stockholders list must be available for
inspection by any stockholder, beginning on the earlier of ten (10) days before the meeting for
which the list was prepared or two (2) business days after notice of the meeting is given and
continuing through the meeting and any meeting adjournments, at: (i) the corporations principal
office or at a place identified in the meeting notice in the city in which the meeting will be
held: or (ii) on a reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting..
(c) Inspection of Voting List at the Meeting. The corporation shall make the stockholders list
available at the meeting, and any stockholder, or any stockholders agent or attorney is entitled
to inspect the list at any time during the meeting or any adjournment, for any purpose germane to
the meeting.
(d) Effect on Meeting. The corporations refusal or failure to prepare or make available the
stockholders list does not affect the validity of action taken at the meeting.
Section 3.10. Proxies.
Each shareholder entitled to vote at any meeting of shareholders may authorize another person or
persons to act for such shareholder by a proxy which is in writing or transmitted as permitted by
law, including, without limitation, electronically, via telegram, internet, interactive voice
response system, or other means of electronic transmission executed or authorized by such
shareholder or such shareholders attorney-in-fact, but no proxy shall be voted after three (3)
years from its date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the secretary of the meeting at or prior to the time designated in the order of
business for so delivering such proxies. Any proxy transmitted electronically shall set forth
information from which it can be determined by the secretary of the meeting that such electronic
transmission was authorized by the shareholder. When a quorum is present at any meeting, the vote
of the holders of a majority of the voting power of the issued and outstanding stock of the
corporation entitled to vote thereon, present and voting, in person or represented by proxy, shall
decide any question brought before such meeting, unless the question is one upon which by express
provision of statute or of the Articles of Incorporation or of these Bylaws, a different vote is
required, in which case such express provision shall govern and control the decision of such
question. Unless required by statute, or determined by the chairman of the meeting to be
advisable, the vote on any question need not be by ballot. On a vote by ballot, each ballot shall
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be signed by the shareholder voting, or by such shareholders proxy, if there be such proxy, and
shall state the number of shares voted and the number of votes to which each share is entitled.
Section 3.11. Voting Entitlement of Shares. Each outstanding share entitled to vote is entitled to one (1)
vote upon each matter submitted to a vote at a meeting of stockholders.
Section 3.12. Quorum. Shares entitled to vote at a meeting may take action on a matter at a meeting only if
a quorum of those shares exists with respect to that matter. A majority of the votes entitled to be
cast on a matter constitutes a quorum for action on that matter. Once a quorum is present, it shall
be deemed to continue 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.
Section 3.13. Vote Required to take Action for Other than Election of Directors. If a quorum exists, action
on a matter, other than the election of directors, is approved if the votes cast favoring the
action exceed the votes cast opposing the action, except where a greater number of affirmative
votes is otherwise required by law.
Section 3.14. Voting for Directors. At each election of directors undertaken in accordance with these
Bylaws, every stockholder entitled to vote at the election has the right to cast, in person, or by
proxy, all of the votes to which the stockholders shares are entitled for as many persons as there
are directors to be elected and for whose election the stockholder has the right to vote, provided
such person is eligible for election as a director of the corporation. Stockholders shall not have
a right to cumulate their votes for the election of directors.
Section 3.15. Conduct of Meetings. The board of directors may adopt by resolution such rules and regulations
for the conduct of meetings of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations adopted by the board of directors, the chair of any
meeting of stockholders shall have the right and authority to prescribe such rules, regulations and
procedures and to all such acts as, in the judgment of the chair, are appropriate for the conduct
of the meeting. Such rules, regulations and procedures, whether adopted by the board of directors
or prescribed by the chair, may include, without limitation, the following: (a) the establishment
of 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 attendance at or participation in the
meeting to stockholders of record, their duly authorized and constituted proxies or such other
persons as the chair of the meeting shall determine, (d) restrictions on entry to the meeting after
the time fixed for commencement thereof, and (e) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the board of directors or the
chair of the meeting, meetings of stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure.
Section 3.16. Advance Notice Provisions for Business to be Transacted at Annual Meeting.
No business may be transacted at an annual meeting of shareholders, other than business that
is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the
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direction of the board of directors (or any duly authorized committee thereof); (b) otherwise
properly brought before the annual meeting by or at the direction of the board of directors (or any
duly authorized committee thereof); or (c) otherwise properly brought before the annual meeting by
any stockholder of the corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 3.16 and on the record date for the determination of
stockholders entitled to vote at such annual meeting; and (ii) who complies with the notice
procedures set forth in this Section 3.16.
In addition to any other applicable requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the corporation not less than ninety (90) days nor
more than one hundred twenty (120) days prior to the date of the anniversary of the previous years
annual meeting; provided, however, that in the event the annual meeting is scheduled to be held on
a date more than thirty (30) days prior to or delayed by more than sixty (60) days after such
anniversary date, notice by the stockholder in order to be timely must be so received not earlier
than one hundred twenty (120) days prior to such annual meeting, and not later than the later of
the close of business ninety (90) days prior to such annual meeting or the tenth (10th) day
following the day on which notice of the date of such annual meeting was mailed or public
disclosure of the date of such annual meeting was made.
To be in proper written form, a stockholders notice to the Secretary must set forth as to
each matter such stockholder 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 record address of such stockholder; (c) the class
or series and number of shares of capital stock of the corporation which are owned beneficially or
of record by such stockholder; (d) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in connection with the proposal
of such business by such stockholder and any material interest of such stockholder in such
business; and (e) a representation that such stockholder intends to appear in person or by proxy at
the annual meting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders except business brought
before the annual meeting in accordance with the procedures set forth in this Section 3.16;
provided, however, that, once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 3.16 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in accordance with the
foregoing procedures, the chairman shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be transacted.
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Section 3.17. Advance Notice Provisions for Election of Directors.
Only persons who are nominated in accordance with the following procedures shall be eligible
for election as directors of the corporation. Nominations of persons for election to the board of
directors may be made at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors as provided under this Section 3.17, (a)
by or at the direction of the board of directors (or any duly authorized committee thereof); or (b)
by any stockholder of the corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 3.17 and on the record date for the determination of
stockholders entitled to vote at such meeting; and (ii) who complies with the notice procedures set
forth in this Section 3.17.
In addition to any other applicable requirements, for a nomination to be made by a stockholder
such stockholder must have given timely notice thereof in proper written form to the Secretary of
the corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the corporation: (a) in the case of an annual
meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the
date of the anniversary of the previous years annual meeting; provided, however, that in the event
the annual meeting is scheduled to be held on a date more than thirty (30) days prior to or delayed
by more than sixty (60) days after such anniversary date, notice by the stockholder in order to be
timely must be so received not earlier than one hundred twenty (120) days prior to such annual
meeting, and not later than the later of the close of business ninety (90) days prior to such
annual meeting or the tenth (10th) day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was made, whichever
occurs first; and (b) in the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the tenth (10th) day following the day
on which notice of the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever occurs first.
To be in proper written form, a stockholders notice to the Secretary must set forth: (a) as
to each person whom the stockholder proposes to nominate for election as a director (i) the name,
age, business address and residence address of the person; (ii) the principal occupation or
employment of the person; (iii) the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by the person; and (iv) any other information
relating to the person that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of directors pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended (the Exchange Act), and
the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice
(i) the name and record address of such stockholder; (ii) the class or series and number of shares
of capital stock of the corporation which are owned beneficially or of record by such stockholder;
(iii) a description of all arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder; (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons named in its notice;
and (v) any other information relating to such
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stockholder that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of directors pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth in this Section 3.17. If the chairman of the meeting
determines that a nomination was not made in accordance with the foregoing procedures, the chairman
shall declare to the meeting that the nomination was defective and such defective nomination shall
be disregarded.
Article IV Board of Directors
Section 4.01. General Powers. The business and affairs of the corporation shall be managed under the
direction of its board of directors.
Section 4.02. Number. The number of directors of the corporation shall be not less than five (5) nor more
than seven (7), with the exact number of directors within such parameters to be set by resolution
of the board of directors from time to time; provided that no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director.
Section 4.03. Term. The terms of the directors expire at the next annual stockholders meeting following
their election. Despite the expiration of a directors term, the director shall continue to serve
until the election and qualification of a successor or until there is a decrease in the number of
directors, or until such directors earlier death, resignation or removal from office.
Section 4.04. Qualifications. Directors need not be stockholders of the corporation.
Section 4.05. Resignation. Any director of the corporation may resign at any time by giving written notice
to the corporation. A resignation is effective when the notice is received by the corporation
unless the notice specifies a later effective date.
Section 4.06. Removal.
(a) Stockholders Right to Remove Directors. The stockholders may remove one or more directors
with or without cause. A director may be removed only at a meeting called for that purpose.
(b) Notice Requirement. The notice of the meeting at which a director is to be removed must state
that the purpose, or one of the purposes, of the meeting is to remove the director.
(c) Vote Required. A director may be removed only if the number of votes cast to remove the
director exceeds the number of votes cast against removal.
Section 4.07. Vacancies. Any vacancy occurring among the directors, including a vacancy resulting from an
increase in the number of directors, may be filled by the affirmative
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vote of a majority of the remaining directors, although less than a quorum, or by the
stockholders. A director elected to fill a vacancy shall be elected for the unexpired term of his
or her predecessor in office.
Section 4.08. Compensation. By resolution of the board of directors, the directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors, and may be paid a fixed
sum for attendance at each meeting of the board of directors or stated salaries as directors. No
such payment shall preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 4.09. Regular Meetings. By resolution, the board of directors may determine the time and place,
either within or without the State of Utah, for the holding of regular meetings without other
notice than such resolution.
Section 4.10. Special Meetings. Special meetings of the board of directors may be called by or at the
request of the chairman of the board, the president or any two (2) directors. The person or persons
authorized to call special meetings of the board of directors may fix any place, either within or
without the State of Utah, as the place for holding any special meeting of the board of directors
called by them.
Section 4.11. Action Without a Meeting. Any action required or permitted to be taken at a meeting of the
board of directors may be taken without a meeting if a consent in writing, setting forth the action
so taken, is signed by all of the directors. Such consent has the same force and effect as a
unanimous vote of the directors. Action taken under this provision is effective at the time the
last director signs a writing describing the action taken, unless, prior to that time, any director
has revoked a consent by a writing signed by the director and received by the secretary or any
other person authorized by the Bylaws or the board of directors to receive the revocation, or
unless the consent specifies a different effective time.
Section 4.12. Notice of Special Meetings. Notice of any special meeting shall be given at least two (2) days
prior to the date of the meeting. Notice must be in writing unless oral notice is reasonable under
the circumstances. Notice may be communicated in person, by any form of electronic communication,
or by mail or private carrier. The notice need not describe the purpose of the special meeting,
unless otherwise required by law or these Bylaws. Notice shall be effective at the earliest of the
following:
(a) when received;
(b) two (2) days after it is mailed;
(c) 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.
Section 4.13. Waiver of Notice.
(a) Written Waiver. Any director may waive notice of any meeting before or after the date and time
of the meeting stated in the notice. Except as provided in subsection (b),
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below, the waiver must be in writing and signed by the director entitled to notice. The waiver
shall be delivered to the corporation for filing with the corporate records, but delivery and
filing are not conditions to its effectiveness.
(b) Waiver by Attendance. The attendance of a director at or participation in a meeting waives any
required notice to the director of the meeting unless the director at the beginning of the meeting,
or promptly upon the directors arrival, objects to the holding of the meeting or the transacting
of business at the meeting because of lack of notice or defective notice, and does not thereafter
vote for or assent to action taken at the meeting.
Section 4.14. Quorum. A majority of the number of directors fixed by Section 4.02 of these Bylaws
constitutes a quorum for the transaction of business at any meeting of the board of directors.
Section 4.15. Manner of Acting. The act of a majority of the directors present at a meeting at which a
quorum is present is the act of the board of directors. Voting by proxy is not permitted.
Section 4.16. Meetings by Telecommunication. The board of directors may permit any or all directors to
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 hear each other during the meeting.
A director participating in a meeting by this means is considered present in person at the meeting.
Section 4.17. Presumption of Assent. A director of the corporation who is present at a meeting of the board
of directors at which action on any corporate matter is taken is presumed to have assented to the
action taken unless:
(a) the director objects at the beginning of the meeting, or promptly upon arrival, to
holding the meeting or transacting business at the meeting and does not thereafter vote for
or assent to any action taken at the meeting;
(b) the director contemporaneously requests that his dissent or abstention as to any
specific action be entered into the minutes of the meeting; or
(c) the director causes written notice of a dissent or abstention as to any specific
action to be received by the presiding officer of the meeting before adjournment of the
meeting or by the corporation promptly after adjournment of the meeting.
The right of dissent under this Section as to a specific action shall not be available to a
director who votes in favor of the action taken.
Article V Committees
Section 5.01. Creation of Committees. The board of directors by resolution adopted by a majority of the
directors may appoint such committees from time to time, either standing or ad
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hoc,-as it deems necessary or appropriate, including but not limited to an executive committee
as described in Section 5.05 below.
Section 5.02. Membership. Each committee shall consist of not less than two (2) directors, who shall serve
at the pleasure of the board of directors.
Section 5.03. Notice, Etc. Sections 4.09 through 4.16 of these Bylaws, which govern meetings, actions
without meetings, notice, waiver of notice, and quorum and voting requirements of the board of
directors, shall apply to committees and their members, as well.
Section 5.04. Authority. Each committee shall have and may exercise all the authority specified in the
resolution by which it is created, except that no committee shall have any authority to adopt a
plan of merger or consolidation, to recommend to the stockholders the sale, lease or other
disposition of all or substantially all of the property or assets of the corporation other than in
the usual and regular course of its business, to recommend to the stockholders a voluntary
dissolution of the corporation, or to amend the Bylaws of the corporation.
Section 5.05. Executive Committee. The executive committee of the board of directors, if created pursuant to
Section 5.01 of these Bylaws, shall consist of two (2) or more directors. When the board of
directors is not in session, the executive committee shall have and may exercise all of the
authority of the board of directors except to the extent, if any, that such authority shall be
limited by the resolution appointing the executive committee, and except as limited by Section 5.04
of these Bylaws.
Article VI Officers
Section 6.01. Number. The corporation shall have such officers as may be determined by the board of
directors, and may include a president, a vice president, a secretary, and a treasurer, each of
whom shall be appointed by the board of directors. One or more additional vice presidents (the
number to be determined by the board of directors) and such other officers and assistant officers
and agents as may be deemed necessary may also be appointed by the board of directors. The board of
directors may delegate to any officer of the corporation or any committee of the board of directors
the power to appoint, remove and prescribe the duties of such other officers, assistant officers,
agents and employees. Any two (2) or more offices may be held by the same person.
Section 6.02. Appointment and Term of Office. The officers of the corporation shall be appointed by the
board of directors or by any officer to whom or committee of the board of directors to which the
power of appointment has been delegated. Each officer shall. hold office until such officers
successor has been appointed or until such officers death or until such officer shall resign or
shall have been removed in the manner provided below. The appointment of an officer shall not
itself create any contract rights with the corporation.
Section 6.03. Removal. Any officer, assistant, agent or employee may be removed, with or without cause, at
any time by the board of directors, or by any officer to whom or committee of the board of
directors to which such power of removal has been delegated, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
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Section 6.04. Resignation. An officer may resign at any time by giving written notice of resignation to the
corporation. A resignation of an officer is effective when it is received by the corporation,
unless the notice specifies a later effective date. An officers resignation does not affect the
corporations contract rights, if any, with the officer.
Section 6.05. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification
or otherwise, may be filled by the board of directors or by any officer to whom or committee of the
board of directors to which such power has been delegated.
Section 6.06. The President. The president, unless otherwise specified by the board of directors, shall be
the chief executive officer of the corporation and, under the direction of the board of directors,
shall in general supervise and control all the business and affairs of the corporation. The
president shall, when present, preside at all meetings of the stockholders and, in the absence of
the chair of the board, at meetings of the board of directors. The president may hire, prescribe
the duties of, and fire employees, and may delegate such authority in whole or in part to any other
officer or employee. 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 any deeds, mortgages, bonds, contracts, or other instruments which the board of
directors has authorized to be executed, except in cases where the signing and execution thereof
shall be expressly delegated by the board of directors or by these Bylaws to some other officer or
agent of the corporation, or shall be required by law to be otherwise signed or executed; and in
general shall perform all duties incident to the office of president and such other duties as may
be prescribed by the board of directors from time to time.
Section 6.07. The Vice President. In the absence of the president, or in the event of the presidents
death, inability or refusal to act, the vice president (or in the event there is more than one vice
president, the vice presidents in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the president. Any vice president may sign, with the secretary or an assistant secretary,
certificates for shares of the corporation; and shall perform such other duties as from time to
time may be assigned to him or her by the president or by the board of directors.
Section 6.08. The Secretary. The secretary shall (a) keep the minutes of the stockholders and of the board
of directors meetings 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 the seal of the corporation and affix such seal to
documents when authorized; (d) keep a register of the address of each stockholder which shall be
furnished to the secretary by such stockholder; (e) sign with the president, or a vice president,
certificates for shares of the corporation, the issuance of which shall have been authorized by
resolution of the board of directors; (f) have general charge of the stock transfer books of the
corporation; (g) maintain the records required under Section 16-10a-1601 of the DGCL, 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 or her by the president or by the board of directors. In the absence
of a secretary and any assistant secretaries, the president shall perform these duties.
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Section 6.09. The Treasurer. If required by the board of directors, the treasurer shall give a bond for the
faithful discharge of his or her duties in such sum and with such surety or sureties as the board
of directors shall determine. He or she shall: (a) have charge and custody of and be responsible
for all funds and securities of the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit all such moneys in the name of
the corporation in such banks, trust companies or other depositaries as shall be selected in
accordance with the provisions of Section 8.04 of these Bylaws; 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 or her by the president or by the board of directors. In the absence of a
treasurer, the secretary shall perform such duties.
Section 6.10. Assistant Secretaries and Assistant Treasurers. The assistant secretaries, when authorized by
the board of directors, may sign with the president or a vice president certificates for shares of
the corporation, the issuance of which shall have been authorized by a resolution of the board of
directors. The assistant treasurers shall respectively, if required by the board of directors, give
bonds for the faithful discharge of their duties in such sums and with such sureties as the board
of directors shall determine. The assistant secretaries and assistant treasurers, in general, shall
perform such duties as shall be assigned to them by the secretary or the treasurer, respectively,
or by the president or the board of directors.
Section 6.11. Compensation. The compensation of the officers shall be fixed from time to time by the board
of directors and no officer shall be prevented from receiving such compensation by reason of the
fact that he or she is also a director of the corporation.
Article VII Certificates for Shares and Their Transfer
Section 7.01. Certificates for Shares.
(a) Stock Certificates. The board of directors may issue stock certificates, or may
provide by resolution or resolutions that some or all of any or all classes or series of stock of
the corporation shall be uncertificated shares of stock. Notwithstanding the adoption of such a
resolution by the board of directors, every holder of stock represented by a certificate and, upon
request, every holder of uncertificated shares shall be entitled to have a certificate, signed by,
or in the name of the corporation by, the Chief Executive Officer or the President and by the Chief
Financial Officer, the Treasurer or the Secretary of the corporation, certifying the number of
shares owned by him or her in the corporation. Any request by a holder for a certificate shall be
in writing and directed to the Secretary of the corporation.
(b) Signatures. Each certificate shall be signed by the president or a vice president and by the
secretary or an assistant secretary, or by such other officers as may be designated from time to
time by the board of directors. Any or all of the signatures on the certificates may be a copy,
engraved or printed. In case any officer, transfer agent or registrar who has signed, or whose
copied signature has been placed upon, any such certificate, shall cease to hold such office or
position before the certificate is issued, the certificate may nevertheless be issued by the
corporation with the same effect as if the person who signed the certificate, or whose copied
signature has been placed on the certificate, still held such office or position at the date of
issue.
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(c) Stockholder Register. A record shall be kept of the names and addresses of the persons and
entities owning the capital stock of the corporation, the number and class and series of shares
represented by each stock certificate, and the date thereof, and when cancelled, the date of
cancellation. Every certificate surrendered to the corporation for exchange or transfer must be
cancelled, and no new certificate or certificates may be issued in exchange for any existing
certificate until the existing certificate has been cancelled, except in cases provided for in
Section 7.05.
Section 7.02. Transfers of Stock. Transfers of shares of stock of the corporation shall be made only on the
books of the corporation by the registered holder of such shares, or by such holders attorney as
authorized by a power of attorney duly executed and filed with the secretary, or with a transfer
clerk or a transfer agent appointed as provided in Section 7.04, and upon surrender of the
certificate or certificates representing such shares properly endorsed for transfer. The person in
whose name shares of stock stand on the books of the corporation shall be deemed the owner of such
shares for all purposes as regards the corporation. Whenever any transfer of shares is made for
collateral security, and not absolutely, such fact shall be indicated in the entry of transfer if,
when the certificate or certificates are presented to the corporation for transfer, both the
transferor and the transferee request the corporation to do so.
Section 7.03. Regulations. The board of directors may make such rules and regulations as it deems expedient,
not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates
representing shares of the corporations capital stock.
Section 7.04. Transfer Agent. The board of directors may appoint, or authorize any officer or officers to
appoint, one or more transfer agents and one or more registrars, and may require all certificates
for stock to bear the signature or signatures of any of them.
Section 7.05. Lost, Stolen, Destroyed, and Mutilated Certificates. If any stock certificate is lost, stolen,
destroyed, or mutilated, the corporation may issue another certificate in its place upon proof of
such loss, theft, destruction, or mutilation and upon receipt by the corporation of a bond of
indemnity in such form and for such amount as the board of directors may direct; provided, however,
that a new certificate may be issued without requiring any bond when the board of directors
determines that it is proper.
Section 7.06. Legends. Each stock certificate shall contain such legend or other statements as may be
required by the DGCL, state securities laws, federal securities laws, and any agreement between the
corporation and the applicable stockholder. Failure to comply with the requirements of this Section
7.06 shall not affect the validity of any certificate of stock which is otherwise issued in
accordance with the provisions of this Article VII.
Article VIII Contracts, Loans, Checks and Deposits
Section 8.01. Contracts. The board of directors may authorize any officer or officers, or agent or agents,
to enter into any contract or execute and deliver any instrument in the name of and on behalf of
the corporation, and such authority may be general or confined to specific instances.
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Section 8.02. Loans. No loans may be contracted on behalf of the corporation and no promissory notes or
other evidences of indebtedness may be issued in its name unless authorized by a resolution of the
board of directors. Such authority may be general or confined to specific instances. No loan may be
made by the corporation secured by its unissued shares.
Section 8.03. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation, shall be signed by such
officer or officers, or agent or agents, of the corporation as may from time to time be determined
by resolution of the board of directors.
Section 8.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to
time to the credit of the corporation in such banks, trust companies or other depositaries as the
board of directors may select.
Article IX Miscellaneous
Section 9.01. Seal. The board of directors may provide a corporate seal, which shall be in the form of a
circle and shall bear the name of the corporation and words and figures showing that the
corporation was incorporated in the State of Utah and the year of incorporation.
Section 9.02. Indemnification of Employees and Others. The corporation may indemnify and advance expenses
to an employee, fiduciary, or agent of the corporation, whether or not they are a director or
officer of the corporation, to the fullest extent permitted by law and if provided for by specific
action of the board of directors, or contract.
Section 9.03. Fiscal Year. Unless otherwise specified by the board of directors, the fiscal year of the
corporation shall end on the last day of December 31st in each year.
Section 9.04. Dividends. The board of directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and conditions provided by he
DGCL and the corporations Certificate of Incorporation.
Section 9.05. Voting of Stock in Other Corporations. Unless otherwise ordered by the board of directors, the
president and each vice president shall have full power and authority on behalf of the corporation
to attend any meeting of stockholders of any corporation in which the corporation may hold stock,
to vote the stock held by the corporation, to exercise on behalf of the corporation at any such
meeting any and all of the rights and powers incident to the ownership of such stock, and to
execute and deliver on behalf of the corporation proxies and consents in connection with the
exercise by the corporation of the rights and powers incident to the ownership of such stock. The
board of directors may, from time to time, confer like powers upon any other person or persons.
Section 9.06. Amendments. These Bylaws, or any provision hereof, may be altered, amended or repealed, and
new Bylaws may be made: (a) by the board of directors; or (b) by the stockholders, in accordance
with the Certificate of Incorporation and the DGCL. Any Bylaws made or altered by the stockholders
may be altered or repealed by either the board of directors or the stockholders.
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