SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT Pursuant
to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 7, 2002
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PARK CITY GROUP, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Nevada
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(State of Other Jurisdiction of Incorporation)
0003718 11-2050317
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(Commission File Number) (IRS Employer Identification No.)
333 Main Street # 300; P.O. Box 5000; Park City, UT 84060
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(Address of Principal Executive Offices) (Zip Code)
435-649-2221
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(Registrant's Telephone Number)
Fields Technologies, Inc.
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(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Items.
On August 7, 2002 Fields Technologies, Inc. issued the press release which is
attached hereto as Exhibit 1 and which is incorporated herein by this reference.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements. Not Applicable.
(b) Pro Forma Financial Information. Not Applicable.
(c) Exhibits.
1 Fields Technologies, Inc. press release, dated August
7, 2002.
2 Articles of Incorporation of Park City Group
3 By Laws of Park City Group
4 Plan & Agreement of Merger between Park City Group (a
Nevada Corporation) and Fields Technologies, Inc. (a
Delaware Corporation)
5 Articles of Merger of Fields Technologies, Inck. (a
Delaware Corporation) and park City Group, Inc. (A
Nevada Corporation)
6 Certificate of Ownership and Merger; Fields
Technologies, Inc. (a Delaware Corporation) Into Park
City Group, Inc. (a Nevada Corporation)
7 Agreement and Plan of Merger Between Park City Group,
Inc. (a Nevada Corporation) and Fields Technologies,
Inc. (a Delaware Corporation)
SIGNATURES
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.
Fields Technologies, Inc.
Date: August 7, 2002
By: /s/ Barbara J. Ray
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Barbara J. Ray, Chief Financial Officer
Exhibit 1
Fields Technologies Changes Name to Park City Group, Inc.
Company's Stock Symbol Changed to Reflect New Name
PARK CITY, UTAH - August 7, 2002, - Fields Technologies, Inc. (OTCBB: FLDT)
changed its name today from Fields Technologies, Inc. to Park City Group, Inc
and reincorporated in Nevada. Park City Group will continue to trade under FLDT
symbol until August 8, 2002. This is designed to help familiarize the financial
community with the new name, after which Park City Group will trade under the
symbol PKCY. "Electing to use the name of Fields Technologies' wholly owned
subsidiary only makes sense, " commented Park City Group CEO and President
Randall K. Fields. "Our customers and the retail market industry recognize the
Park City Group name and associate it with the quality software solutions and
consulting services we have been providing. We have been marketing ActionManager
over the past 14 years, our Fresh Market Manager for the last 2 years and
believe that changing the company's name to one that is already highly
recognizable and well regarded provides the necessary link between the company
and it products."
About Park City Group, Inc.
Park City Group is a leading provider of software and consulting services for
business productivity. The company uniquely leverages its expertise in retail
operations management and state-of-the-art, patented technologies to simplify
the planning and execution of complex processes, deliver timely, relevant and
"action-able" information and improve its customers' profitability by putting
the "best manager" in every store. To date, the company has sold to or installed
its software solutions in over 52,000 customer locations. For additional
information, please contact Park City Group at 800.835.8824, info@parkcity.com
(e-mail), or visit the corporate website at www.parkcity.com .
Securities Exchange Act of 1934
This release is comprised of inter-related information that must be interpreted
in the context of all the information provided; accordingly, care should be
exercised not to consider portions of this release out of context. This release
is provided in compliance with Commission Regulation FD and contains certain
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933 and Section 21B of the Securities Exchange Act of 1934. Any
statements that express or involve discussions with respect to predictions,
expectations, beliefs, plans, projections, objectives, goals, assumption or
future events or performance are not statements of historical fact and may be
"forward-looking statements." Forward looking statements are based on
expectations, estimates and projections at the time the statements are made that
involve a number of risks and uncertainties which could cause actual results or
events to differ materially from those presently anticipated. Forward looking
statements in this action may be identified through the use of words such as
"expects", "will", "anticipates", "estimates", "believes", or statements
indicating certain actions "may", "could", or "might" occur. Such statements
reflect the current views of Park City Group, Inc., with respect to future
events and are subject to certain assumptions, including those described in this
release. Should one or more of the underlying assumptions prove incorrect,
actual results may vary materially from those described herein as anticipated,
believed or expected. Park City Group does not intend to update these
forward-looking statements prior to announcement of quarterly or annual results.
# # # #
Exhibit 2
ARTICLES OF INCORPORATION
OF
PARK CITY GROUP, INC.
The undersigned incorporator hereby forms a corporation pursuant to the
General Corporation Law of the State of Nevada. (Chapter 78 of Nevada Revised
Statutes ("NRS")).
ARTICLE I
CORPORATE NAME
The name of the Corporation is PARK CITY GROUP, INC.
ARTICLE II
REGISTERED OFFICE
The registered office of the Corporation in the State of Nevada is
Corporation Trust Company of Nevada, 1 East First Street, Reno, Nevada, County
of Washoe. The registered agent in charge thereof at such address is The
Corporation Trust Company.
ARTICLE III
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE IV
GENERAL PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Nevada".
ARTICLE V
CAPITAL STOCK
The total number of shares of all classes of capital stock that the
Corporation has the authority to issue is 330,000,000 shares that are divided
into two classes as follows:(1) 30,000,000 shares of Preferred Stock (Preferred
Stock) $.01 par value per share, and (2) 300,000,000 shares of Common Stock
(Common Stock) $.01 par value per share. This Corporation is authorized to issue
two classes of shares. Except as may be otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock has one vote in
respect of each share of stock held by him or record on the books of the
corporation on all matters voted upon by the Stockholders.
The Board of Directors may determine the preferences, limitations and
relative rights, to the extent permitted by the Nevada Revised Statutes, of any
class of shares of Preferred Stock before the issuance of any shares of that
class, or of one or more series within a class before the issuance of any shares
of that series. Each class or series shall be appropriately designated by a
distinguishing designation prior to the issuance of any shares thereof. The
Preferred Stock of all series shall have preferences, limitations and relative
rights identical with those of other shares of the same series and, except to
the extent otherwise provided in the description of the series, with those
shares of the series of the same class
ARTICLE VI
DIRECTORS
The business and affairs of the Corporation shall be managed by or
under the direction of the board of directors, which initially shall consist of
one director. The number of directors comprising the board of directors shall be
fixed upon resolution of the board of directors and may be increased or
decreased from time to time in the manner provided in the by-laws of the
Corporation; except that, at no time shall there by less than one (1) director.
The names, addresses and categories of the initial member of the board of
directors is Randy K. Fields, 333 Main Street, #300, Park City, UT 84060.
ARTICLE VII
INCORPORATOR
The name and mailing address of the incorporator of the Company is A.
O. Headman, Jr., 525 East 100 South, Fifth Floor, Salt Lake City, UT 84102.
ARTICLE VIII
NON-ASSESSABILITY
Shares of the Corporation shall not be subject to assessment for
payment of the debts of the Corporation.
ARTICLE IX
BYLAWS
The Board of Directors shall have the power to make, adopt, amend, or
repeal the Bylaws of the Corporation.
ARTICLE X
AMENDMENT OF ARTICLES OF INCORPORATION
In the event the board of directors of the Corporation determines that
it is in the Corporation's best interest to amend these Articles of
Incorporation, the board of directors shall adopt a resolution setting forth the
proposed amendment and declaring its advisability and submit the matter to the
stockholders entitled to vote thereon for the consideration thereof in
accordance with the provisions of the NRS and these Articles of Incorporation.
In the resolution setting forth the proposed amendment, the board of directors
may insert a provision allowing the board of directors to later abandon the
amendment, without concurrence by the stockholders, after the amendment has
received stockholder approval but before the amendment is filed with the Nevada
Secretary of State.
ARTICLE XI
LIMITATION OF LIABILITY OF DIRECTORS AND OFFICERS
A director or officer of the Corporation shall not be personally liable
to the Corporation or its stockholders for damages for breach of fiduciary duty
as a director or officer, except for: (1) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law; or (2) the payment
of dividends in violation of NRS 78.300. Any repeal or modification of the
provisions of this Article XI by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director or officer of the Corporation with respect to any act or
omission occurring prior to the effective date of such repeal or modification.
If the Nevada Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors or officers, then the
liability of a director or officer of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Nevada Corporation Law.
In the event that any of the provisions of this Article XI (including
any provision within a single sentence) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions are severable and shall remain enforceable to the fullest extent
permitted by law.
ARTICLE XII
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by the
provisions of ss.78.7502 of the Nevada Revised Statutes, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under the Bylaw, agreement,
vote of stockholders, or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
The undersigned, for the purpose of forming a corporation under the
laws of the State of Nevada, does make, file, and record this certificate, and
does certify that the facts stated herein are true; and has executed these
Articles of Incorporation.
DATED this 5th day of June, 2002.
/s/ A. O. Headman, Jr.
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A. O. Headman, Jr.
STATE OF UTAH )
) ss.
COUNTY OF SALT LAKE )
On the 5th day of June 2002, personally appeared before me
A. O. Headman, Jr., who being by me first duly sworn, declared that he is the
person who signed the foregoing documents as an incorporator and that the
statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5th day
of June 2002.
/s/ Diana C. Barwald
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NOTARY PUBLIC
Residing at Salt Lake City
My Commission expires:
1/12/03
Exhibit 3
BYLAWS OF PARK CITY GROUP, INC.
TABLE OF CONTENTS
ARTICLE I. OFFICES........................................................1
ss. 1.1 Business Office.........................................1
ss. 1.2. Registered Office.......................................1
ARTICLE II. SHAREHOLDERS..................................................1
ss. 2.1. Annual Shareholder Meeting..............................1
ss. 2.2. Special Shareholder Meetings............................1
ss. 2.3. Place of Shareholder Meeting............................1
ss. 2.4. Notice of Shareholder Meeting...........................1
ss. 2.5. Fixing of Record Date...................................3
ss. 2.6. Shareholder List........................................3
ss. 2.7. Shareholder Quorum and Voting Requirements..............4
ss. 2.8. Proxies.................................................4
ss. 2.9. Voting of Shares........................................4
ss. 2.10. Corporation's Acceptance of Votes.......................5
ss. 2.11. Action Without Meeting by Written Consent...............6
ss. 2.12 Voting for Directors....................................6
ss. 2.13 Shareholder's Rights to Inspect Corporate Records.......6
ss. 2.14. Dissenters' Rights......................................8
ARTICLE III. BOARD OF DIRECTORS...........................................8
ss. 3.1. General Powers..........................................8
ss. 3.2. Number, Tenure, and Qualifications of Directors.........8
ss. 3.3. Nomination by Stockholders..............................8
ss. 3.4. Regular Meetings of the Board of Directors..............8
ss. 3.5. Special Meetings of the Board of Directors..............8
ss. 3.6. Notice of, and Waiver of Notice for, Special
Director Meeting........................................9
ss. 3.7. Director Quorum.........................................9
ss. 3.8. Directors' Manner of Acting.............................9
ss. 3.9. Director Action Without a Meeting.......................9
ss. 3.10. Removal of Directors...................................10
ss. 3.11. Board of Director Vacancies............................10
ss. 3.12. Director Compensation..................................10
ss. 3.13. Director Committees....................................10
ARTICLE IV. OFFICERS.....................................................11
ss. 4.1. Number of Officers.....................................11
ss. 4.2. Appointment and Term of Office.........................11
ss. 4.3. Removal of Officers....................................11
ss. 4.4. President..............................................12
ss. 4.5. The Vice-Presidents....................................12
ss. 4.6. The Secretary..........................................12
ss. 4.7. The Treasurer..........................................12
ss. 4.8. Assistant Secretaries and Assistant Treasurers.........13
ss. 4.9. Salaries...............................................13
ss. 4.10. Corporate Bank Accounts................................13
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES.......................................................13
ss. 5.1. Indemnification of Officers and Directors..............13
ss. 5.2. Indemnification of Employees and Agents................14
ss. 5.3. Non-Exclusive..........................................15
ss. 5.4. Insurance..............................................15
ss. 5.5. Advance Expenses for Directors.........................15
ARTICLE VI. CERTIFICATE FOR SHARES AND THEIR TRANSFER....................16
ss. 6.1. Certificates for Shares................................16
ss. 6.2. Shares Without Certificates............................16
ss. 6.3. Registration of the Transfer of Shares.................17
ss. 6.4. Restrictions on Transfer of Shares Permitted...........17
ss. 6.5. Acquisition of Shares..................................18
ss. 6.6. Lost, Stolen or Destroyed Certificates.................18
ARTICLE VII. DISTRIBUTIONS...............................................18
ss. 7.1. Distributions..........................................18
ARTICLE VIII. GENERAL PROVISIONS.........................................18
ss. 8.1. Corporate Seal.........................................18
ss. 8.2. Fiscal Year............................................19
ss. 8.3. Evidence of Authority..................................19
ss. 8.4. Articles of Incorporation..............................19
ss. 8.5. Pronouns...............................................19
ARTICLE IX. EMERGENCY BYLAWS.............................................19
ss. 9.1. Emergency Bylaws.......................................19
ARTICLE X. AMENDMENTS....................................................20
ss. 10.1. Amendments.............................................20
BYLAWS OF PARK CITY GROUP, INC.
ARTICLE I. OFFICES
ss. 1.1. Business Office. The Principal office of the corporation shall
be located at any place either within or outside the State of Nevada as
designated in the corporation's most current Annual Report filed with the
Secretary of State of the State of Nevada. The corporation may have such other
offices, either within or without the State of Nevada 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 ss. 2.13 of Article II.
ss. 1.2. Registered Office. The registered office of the corporation,
required by ss. 78.090, Nevada Revised Statutes, shall be located within the
State of Nevada and may be, but need not be, identical with the principal office
of the corporation. The address of the registered office may be changed from
time to time.
ARTICLE II. SHAREHOLDERS
ss. 2.1. Annual Shareholder Meeting. The annual meeting of the
shareholders shall be held at such time and on such date as shall be fixed by
the Board of Directors, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting.
ss. 2.2. Special Shareholder Meetings. Special meetings of the
shareholders, for any purpose or purposes, described in the notice of meeting,
may be called by the president, or by the Board of Directors or by the Chairman
of 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.
ss. 2.3. Place of Shareholder Meeting. The Board of Directors may
designate any place, either within or outside of the State of Nevada as the
place of meeting for any Annual or any Special Meeting of the Shareholders.
ss. 2.4. Notice of Shareholder Meeting.
A. Required Notice. Written notice stating the place, day and
hour 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 personally
or by mail, 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 Nevada Revised
Statutes 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) 5 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 and such new date is within thirty (30) days from the
originally scheduled meeting date. If a new record date for the adjourned
meeting is, or must be fixed then notice must be given pursuant to the
requirements of paragraph (a) of this ' 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. A
shareholder's attendance at a meeting:
1. waives objection to lack of notice or defective
notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the
meeting or transacting business at the meeting;
2. waives objection to consideration of a particular
matter at the meeting that is not within the purpose
or purposes described in the meeting notice, unless
the shareholder objects to considering the matter
when it is presented.
D. Contents of Notice. The notice of each Special Meeting of
Shareholders shall include a description of the purpose or purposes for which
the meeting is called. Except as provided in this ss. 2.4(d), or as provided in
the corporation's Articles of Incorporation, or otherwise in the Nevada Revised
Statutes, 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 or share
exchange; (3) the sale, lease, exchange or other disposition of all, or
substantially all of the corporation's property; (4) the dissolution of the
corporation; or (5) the removal of a director, the notice must so state and be
accompanied by respectively a copy or summary of the: (1) Articles of Amendment;
(2) Plan of Merger or Share Exchange; or (3) transaction for disposition of all
the corporation's property. If the proposed corporate action created 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 Nevada
Revised Statues dealing with dissenters= rights. If the corporation issues, or
authorizes the issuance of shares for promissory notes or for promises to render
services in the future, the corporation shall report in writing to all the
shareholders the number of shares authorized or issued, and the consideration
received with or before the notice of the next shareholder meeting. Likewise, if
the corporation indemnifies or advances expenses to a director, this shall be
reported to all the shareholders with or before notice of the next shareholder's
meeting.
ss. 2.5. 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 60 days prior to the date on which
the meeting or the particular action, requiring such determination of
shareholders is to be taken. If no record date is so fixed by the Board 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, the record date for determination of such shareholders shall be at
the close of business on:
1. 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 or these Bylaws to call a meeting, the day
before the first notice is delivered to shareholders;
2. With respect to a Special Shareholder's Meeting
demanded by the shareholders, the date the first
shareholder signs the demand;
3. With respect to the payment of a share dividend, the
date the board authorizes the share dividend;
4. With respect to actions taken in writing without a
meeting (pursuant to Article II,ss. 2.11), the date
the first shareholder signs a consent;
5. And 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, such determination shall
apply to any adjournment thereof unless the Board of Directors fixes a new
record date which it must do if the meeting is adjourned to a date more than 120
days after the date fixed for the original meeting.
ss. 2.6. 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 thereof,
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
Art. II. ss. 2.7) and within each voting group by class or series of shares. The
shareholder list must be available for inspection by any shareholder, beginning
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 in 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, his agent, or attorney
is entitled on written demand to inspect and, subject to the requirements of ss.
2.13 of this Article II, to copy the list during regular business hours and 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.
ss. 2.7. Shareholder Quorum and Voting Requirements. If the Articles of
Incorporation or the Nevada Revised Business Corporation 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, the Bylaws, or the Nevada Revised
Business Corporation Act provide 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 Nevada Corporation Act provide
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.
ss. 2.8. Proxies. At all meetings of shareholders, a shareholder may
vote in person, or by a proxy which is executed in writing by the shareholder or
which is executed 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. A shareholder may appoint a proxy by transmitting or authorizing the
transmission of a telegram, teletype, telecopy or other electronic transmission.
ss. 2.9. Voting of Shares. Unless otherwise provided in the Articles of
Incorporation, each outstanding share shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by the corporation, shall be voted
at any meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting. Provided, however, the prior
sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
ss. 2.10. Corporation's Acceptance of Votes.
A. If the name signed on a vote, consent, waiver, or proxy
appointment 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 and give it effect as the act of the shareholder.
B. If the name signed on a vote, consent, waiver, or proxy
appointment does not correspond to the name of its shareholder, the corporation,
if acting in good faith, is nevertheless entitled to accept the vote, consent,
waiver, or proxy appointment and give it effect as the act of the shareholder
if:
1. the shareholder is an entity 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;
3. the name signed purports to be that of a 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;
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
5. two or more persons are the shareholder as co-tenants
or fiduciaries and the name signed purports to be the
name of at lease 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 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 on it or about the signatory's
authority to sign for the shareholder.
D. The corporation and its officer or agent who accepts or
rejects a vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this section, are not liable in damages to the
shareholder for the consequences of the acceptance or rejection.
E. Corporate action based on the acceptance or rejection of a
vote, consent, waiver, or proxy appointment under this section is valid unless a
court of competent jurisdiction determines otherwise.
ss. 2.11. Action Without Meeting by Written Consent. Any action
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting if one or more consents in writing, setting forth the action,
shall be 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. If written consents of less than all the shareholders have been obtained,
notice of such shareholder approval by written consent shall be given at least
ten (10) days before the consummation of the action authorized by such written
consent to those shareholders entitled to vote who have not consented in writing
and to any non-voting shareholders. Such notice shall contain or be accompanied
by the same material that would have been required if a formal meeting had been
called to consider the action. A consent signed under this section has the
effect of a vote at a meeting and may be described as such in any document.
ss. 2.12. Voting for Directors. Unless otherwise provided in the
Articles of Incorporation, directors are elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at which a
quorum is present. Shareholders do not have a right to cumulate their votes.
ss. 2.13. 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. The corporation shall maintain appropriate accounting
records.
B. Absolute Inspection Rights of Records Required at Principal
Office. If he gives the corporation written notice of his demand at least five
business days before the date on which he wishes to inspect and copy, a
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 them currently in effect;
2. its Bylaws or Restated Bylaws and all amendments to
them currently in effect;
3. resolutions adopted by its Board of Directors
creating one or more classes or series of shares, and
fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those
resolutions are outstanding;
4. the minutes of all shareholders' meetings, and
records of all action taken by shareholders without a
meeting, for the past three years;
5. all written communications to shareholders generally
within the past three years, including the financial
statements furnished for the past three years to the
shareholders;
6. a list of the names and business addresses of its
current directors and officers; and
7. its most recent Annual Report delivered to the
Secretary of State.
C. Conditional Inspection. In addition, if he 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 he wishes to inspect and copy,
in which he describes with reasonable particularity his purpose and the records
he desires to inspect, and the records are directly connected with his purpose,
a 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 the Board of
Directors or a committee of the Board of Directors on
behalf of the corporation, minutes of any meeting of
the shareholders, and records of action taken by the
shareholders or Board of Directors and without a
meeting, to the extent not subject to inspection
under paragraph A of this ss. 2.13.
2. accounting records of the corporation; and
3. the record of shareholders (compiled no earlier than
the date of the shareholder's demand).
D. Copy Costs. The right to copy records includes, if
reasonable, the right to receive copies made by photographic, xerographic, or
other means. The corporation may impose a reasonable charge, covering the costs
of labor and material, 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
thisss. 2.13, the terms "shareholder" shall include a beneficial owner whose
shares are held in a voting trust or by a nominee on his behalf.
ss. 2.14. Dissenters' Rights. Each shareholder shall have the right to
dissent from and obtain payment for his shares when so authorized by the Nevada
Revised Statutes, Articles of Incorporation, these Bylaws, or in a resolution of
the Board of Directors.
ARTICLE III. BOARD OF DIRECTORS
ss. 3.1. General Powers. 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.
ss. 3.2. Number, Tenure, and Qualifications of Directors. In the event
that there is only one shareholder of the Corporation, that shareholder may
determine the number of directors of the Company. In the event there are more
than three shareholders, the number of directors which shall constitute the
whole Board of Directors shall be determined by resolution of the stockholders
or the resolution of the Board of Directors, but in no event shall be less than
three. The number of directors may be decreased at any time either by the
shareholders or by a majority of the directors then in office, but only to
eliminate vacancies existing by reason of the death, resignation, removal or
expiration of the term of one or more directors. Each director shall hold office
until the next annual meeting of shareholders or until removed. However, if his
term expires, he shall continue to serve until his successor shall have been
elected and qualified or until there is a decrease in the number of directors.
Directors need not be residents of the State of Nevada or shareholders of the
corporation.
ss. 3.3 Nomination by Stockholders. No stockholder shall be permitted
to nominate a candidate for election as a director at any annual meeting, unless
such stockholder shall provide in writing, not later than one hundred twenty
days before the first anniversary of the preceding annual meeting of the
stockholder to the Nominating Committee of the board of directors or, in the
absence of such committee, to the secretary of the corporation, information
about such candidate which, were such candidate a nominee for the board of
directors from whom the corporation solicited proxies, would be required to be
disclosed in the proxy materials pursuant to which such proxies would be
solicited as set forth in Items 7-8 of Schedule 14A promulgated by the
Securities and Exchange Commission, or any successor provisions.
ss. 3.4. 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 addition regular meetings without other notice than such resolution.
Any such regular meeting may be held by telephone.
ss. 3.5. Special Meetings of the Board of Directors. Special meetings
of the Board of Directors may be called by or at the request of the President or
any one director. The person authorized to call Special Meetings of the Board of
Directors may fix any place, (but only within the county where this corporation
has its principal office) as the place for holding any Special Meeting of the
Board of Directors, or such meeting may be held by telephone.
ss. 3.6. Notice of, and Waiver of Notice for, Special Director Meeting.
Notice of any special director meeting shall be given at least two days
previously thereto either orally or in writing. If mailed, notice of any
director meeting shall be deemed to be effective at the earlier of: (1) when
received; (2) five days after deposited in the United States mail, addressed to
the director's business office, with postage thereon prepaid; or (3) 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 director.
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 abstain to action
taken at the meeting. Unless required by the Articles of Incorporation, 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.
ss. 3.7. Director Quorum. A majority of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors.
ss. 3.8. 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 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 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 entered
in the minutes of the meeting; or (3) he delivers written notice of his dissent
or abstention to the presiding officer of the meeting before its adjournment or
to the corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
ss. 3.9. Director Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee of the Board of Directors may be taken without a meeting, if all
members of the Board of Directors or committee, as the case may be, consent to
the action in writing, and the written consents are filed with the minutes of
proceedings of the Board of Directors or committee.
ss. 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 a
purpose of the meeting is such removal. The removal may be with or without
cause. A director may be removed only if the number of votes cast to remove him
exceeds the number of votes cast not to remove him.
ss. 3.11. Board of Director Vacancies. If a vacancy occurs on the Board
of Directors, including a vacancy resulting from an increase in the number of
directors:
(1) the shareholders may fill the vacancy;
(2) the Board of Directors may fill the vacancy; or
(3) 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.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualifies
or until there is a decrease in the number of directors.
ss. 3.12. Director Compensation. Unless otherwise provided 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 capacity and receiving compensation therefor.
ss. 3.13. Director Committees.
A. Creation of Committees. 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 a majority of all the directors
in office when the action is taken.
C. Required Procedures. Sections 3.4, 3.5, 3.6, 3.7, and 3.8
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. Each committee may exercise those aspects of the
authority of the Board of Directors which the Board of Directors confers upon
such committee in the resolution creating the committee. Provided, however, a
committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the
Nevada Revised Statutes requires to be approved by
shareholders;
(3) fill vacancies on the Board of Directors or on any of
its committees;
(4) adopt, amend, or repeal Bylaws;
(5) approve a plan of merger not requiring shareholder
approval;
(6) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the
Board of Directors; or
(7) authorize or approve the issuance or sale or contract
for sale of shares or determine the designation and
relative rights, preferences, and limitations of a
class or series of shares, except that the board of
directors may authorize a committee (or a senior
executive officer of the corporation) to do so within
limits specifically prescribed by the Board of
Directors.
ARTICLE IV. OFFICERS AND CORPORATE BANK ACCOUNTS
ss. 4.1. Number of Officers. The officers of the corporation shall be a
President, a Secretary, and a Treasurer, each 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.
ss. 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. (The designation of a specified term
grants to the officer no contract rights, and the board can remove the officer
at any time prior to the termination of such term.) If no term is specified, an
officer shall hold office until he resigns, dies, or until he is removed in the
manner provided in ss. 4.3 of this Article IV.
ss. 4.3. Removal of Officers. Any officer or agent may be removed by
the Board of Directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
ss. 4.4. 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. He shall, when present, preside at all meetings of the shareholders
and of the Board of Directors. He may sign, with the Secretary or any other
proper officer of the corporation authorized by the Board of Directors,
certificates for shares of the corporation and 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.
ss. 4.5. The Vice-Presidents. If appointed, in the absence of the
President or in the event of his death, inability or refusal to act, the
Vice-President (or in the event there be 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 appointment) shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. (If there
is no Vice-President, then the Treasurer shall perform such duties of the
President.) Any Vice-President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the corporation the issuance of which have
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.
ss. 4.6. The Secretary. The Secretary shall: (a) keep the minutes of
the proceedings of the shareholders and of the Board of Directors in one or more
minute 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 shareholder; (f) 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; (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.
ss. 4.7. The Treasurer. The Treasurer 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.
ss. 4.8. 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. The Assistant Treasurers shall respectively, if required 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.
ss. 4.9. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors.
ss. 4.10. Corporate Bank Accounts. The Corporation shall establish such
savings, checking and other bank accounts as deemed necessary or prudent by the
Board of Directors.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS,
AGENTS AND EMPLOYEES
ss. 5.1. Indemnification of Officers and Directors,. The corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the court in which such action or suit was brought shall
determine that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
To the extent that a person who is a director or officer of the
corporation, or who is a director or officer of another corporation,
partnership, joint venture, trust or other enterprise in which he is serving at
the request of the corporation, has been successful in the merits or otherwise
in defense of any action, suit or proceeding referred to in this Article V, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys fees) actually and reasonably incurred by
him in connection therewith.
Any indemnification under this Article V (unless ordered by a court)
shall be made by the corporation only upon determination that indemnification of
the director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in this Article V. Such determination
shall be made (a) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceedings, or (b) if such a quorum is not attainable, or, even if attainable a
quorum of disinterested directors so directs, by independent legal counsel and a
written opinion, or (c) by the stockholders.
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the board of directors upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article IX.
ss. 5.2. Indemnification of Employees and Agents Persons who are not
directors or officers of the corporation but who are employees or agents of the
corporation or who are serving at the request of the corporation as employees or
agents of another corporation, partnership, joint venture, trust or enterprise
may be indemnified to the extent authorized at any time or from time to time by
the board of the corporation, upon a determination that indemnification of the
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct this Article V.
Such determination shall be made (a) by the board by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders.
ss. 5.3. Non-Exclusive. The indemnification provided by this Article V
shall not be deemed exclusive of any other rights to which any person is
indemnified, may be entitled under any agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in some other capacity while holding such office, and
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
For the purposes of this Article V, references to "the corporation"
include in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its officers, directors and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IX with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
The invalidity or enforceability of any provision of this Article V
shall not effect the validity or enforceability of any other provision hereof.
ss. 5.4. Insurance. The board of directors may cause the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, or as its representative in a partnership, joint venture,
trust or other enterprise against any liability asserted against such person and
incurred in any such capacity or arising out of such status, whether or not the
corporation would have the power to indemnify such person.
ss. 5.5. Advance Expenses for Directors. If a determination is made,
following the procedures of the Nevada Revised Statutes that the director has
met the following requirements; and if an authorization of payment is made,
following the procedures and standards set forth in the Nevada Revised Statutes,
then unless otherwise provided in the Articles of Incorporation, the company
shall 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:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has met
the standard of conduct described in ss. 5.1 of this
Article V.
(2) the director furnishes the corporation a written
undertaking, executed personally or on his belief, to
repay the advance if it is ultimately determined that
he did not meet the standard of conduct (which
undertaking must be in unlimited general obligation
of the director but need not be secured and may be
accepted without reference to financial ability to
make repayment); and
(3) a determination is made that the facts then known to
those making the determination would not preclude
indemnification under ss. 5.1 of this Article V or
under the Nevada Revised Statutes.
ARTICLE VI. CERTIFICATE FOR SHARES AND THEIR TRANSFER
ss. 6.1. Certificates for Shares.
A. Content. Certificates representing shares of the
corporation shall at minimum, state on their face the name of the corporation
and that it is formed under the laws of Nevada; 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 designation, relative rights, preferences, and limitations applicable
to each class and the variations in rights, preferences, and limitations
determined for each series (and the authority of the Board of Directors to
determine variations for future series) must be summarized on the front or back
of each certificate. Alternatively, each certificate may state conspicuously on
its front or back that the corporation will furnish the shareholder this
information on request in writing and without charge.
C. Shareholder List. The name and address of the person to
whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the stock transfer books of the corporation.
D. Transferring Shares. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and canceled, except that in case of a lost, destroyed, or mutilated
certificate a new one may be issued therefor upon such terms and indemnity to
the corporation as the Board of Directors may prescribe.
ss. 6.2. Shares Without Certificates.
A. Issuing Shares Without Certificates. Unless the Articles of
Incorporation provide otherwise, the Board of Directors may authorize the issue
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. Information Statement Required. Within a reasonable time
after the issue or transfer of shares without certificates, the corporation
shall send the shareholder a written statement containing at minimum:
(1) the name of the issuing corporation and that it is
organized under the law of the state of Nevada;
(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).
ss. 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 owner, the person in whose name
the shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
ss. 6.4. Restrictions on Transfer of Shares Permitted. The Board of
Directors (or shareholders) may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction. A restriction on the transfer or registration of transfer of shares
may be authorized:
(1) to maintain the corporation's status when it is
dependent on the number or identity of its
shareholders'
(2) to preserve exemptions under federal or state
securities law;
(3) for any other reasonable purpose.
A restriction on the transfer or registration of transfer or shares
may:
(1) obligate the shareholder first to offer the
corporation or other persons (separately,
consecutively, or simultaneously) an opportunity to
acquire the restricted shares;
(2) obligate the corporation or other persons
(separately, consecutively, or simultaneously) to
acquire the restricted shares;
(3) require the corporation, the holders or any class of
its shares, or another person to approve the transfer
of the restricted shares, if the requirement is not
manifestly unreasonable;
(4) 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 resignation 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 and its existence is noted
conspicuously on the front or back of the certificate or is contained in the
information statement required by ss. 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.
ss. 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.
ss. 6..6. Lost, Stolen or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost or destroyed.
ARTICLE VII. DISTRIBUTIONS
ss. 7.1. Distributions. The Board of Directors may authorize, and the
corporation may make, distributions (including dividends on its outstanding
shares) in the manner and upon the terms and conditions provided by law and in
the corporation's Articles of Incorporation.
ARTICLE VIII. GENERAL PROVISIONS
ss. 8.1. Corporate Seal. The Board of Directors may provide for a
corporate seal which may be circular in form and have inscribed thereon any
designation including the name of the corporation, Nevada as the state of
incorporation, and the words "Corporate Seal". The corporation shall not be
required to have a corporate seal.
ss. 8.2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
ss. 8.3. Evidence of Authority. A certificate by the Secretary, or an
Assistant Secretary, or a temporary secretary, as to any action taken by the
shareholders, directors, a committee or any officer of representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
ss. 8.4. Articles of Incorporation. All references in these Bylaws to
the Articles of Incorporation shall be deemed to refer to the Articles of
Incorporation of the Corporation, as amended and in effect from time to time.
ss. 8.5. Pronouns. All pronouns used in these Bylaws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
ARTICLE IX. EMERGENCY BYLAWS
ss. 9.1. Emergency Bylaws. Unless the Articles of Incorporation provide
otherwise, the following provisions of this Article IX, ss. 9.1 "Emergency
Bylaws" shall be effective during an emergency which is defined as when a quorum
of the corporation's directors cannot be readily assembled because of some
catastrophic event. During such emergency:
A. Notice of Board Meetings. Any one member of the Board of
Directors or any one of the following officers; President, any Vice-President,
Secretary, or Treasurer, may call a meeting of the Board of Directors. Notice of
such meeting need be given only to those directors whom it is practicable to
reach, and may be given in any practical manner, including by publication and
radio. Such notice shall be given at least six hours prior to commencement of
the meeting.
B. Temporary Directors and Quorum. One or more officers of the
corporation present at the emergency board meeting, may be deemed to de
directors for the meeting, in order of rank and within the same rank in order of
seniority as is necessary to achieve a quorum. In the event that less than
quorum (as determined by Article III, ss. 3.6) of the directors are present
(including any officers who are to serve as directors for the meeting), those
directors present (including the officers serving as directors) shall constitute
a quorum.
C. Actions Permitted to Be Taken. The board as constituted in
paragraph (b), and after notice as set forth in paragraph (a) may:
(1) Officers' Powers. Prescribe emergency powers to any
officer of the corporation;
(2) Delegation of Any Power. Delegate to any officer or
director, any of the powers of the Board of
Directors;
(3) Lines of Succession. Designate lines of succession of
officers and agents, in the event that any of them
are unable to discharge their duties;
(4) Relocate Principal Place of Business. Relocate the
principal place of business, or designate successive
or simultaneous principal places of business;
(5) All Other Action. Take any other action, convenient,
helpful, or necessary to carry on the business of the
corporation.
ARTICLE X. AMENDMENTS
ss. 10.1. Amendments. The corporation's Board of Directors may amend or
repeal the corporation's Bylaws unless:
(1) the Articles of Incorporation or the Nevada Revised
Statutes reserve this power
exclusively to the shareholders in whole or part; or
(2) 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
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.
ADOPTED THIS 5th day of June 2002.
/s/ Randy K. Fields
-------------------------------
Randy K. Fields, CEO/President
CERTIFICATE OF SECRETARY
KNOW ALL MEN BY THESE PRESENTS: That the undersigned does hereby
certify that the undersigned is the secretary of the aforesaid Corporation, duly
organized and existing under and by virtue of the laws of the State of Nevada;
that the above and foregoing Bylaws of said Corporation were duly and regularly
adopted as such by the board of directors of said Corporation.
DATED this 5th day of June 2002.
/s/ Barbara Ray
--------------------------
Barbara Ray, Secretary
Exhibit 4
PLAN AND AGREEMENT OF MERGER
BETWEEN
PARK CITY GROUP, INC.
(a Nevada corporation)
and
FIELDS TECHNOLOGIES, INC.
(a Delaware corporation)
This Plan and Agreement of Merger made and entered into this 9th day of
May 2002, by and between Park City Group, Inc., a Nevada corporation (herein
sometimes referred to as the "Nevada Corporation" or "Surviving Corporation"),
and Fields Technologies, Inc., a Delaware corporation (herein sometimes referred
to as the "Delaware Corporation"), said corporations hereinafter sometimes
referred to jointly as the "Constituent Corporations."
RECITALS
The Nevada Corporation is a corporation organized and existing under
the laws of the State of Nevada, its Articles of Incorporation having been filed
in the office of the Secretary of State of the State of Nevada on or about May
15, 2002, and is governed by the provisions of Chapter 78 of the Nevada Revised
Statutes ("NRS").
The total number of shares of common stock, which the Nevada
Corporation has authority to issue, is 300,000,000 of which 500 shares are now
issued and outstanding, all of which are owned by the Delaware Corporation.
The sole purpose of the merger agreed to herein is to change the
domicile of the Delaware Corporation to the State of Nevada.
The Delaware Corporation is a corporation organized and existing under
the laws of the State of Delaware, its Certificate of Incorporation having been
filed in the office of the Secretary of State of the State of Delaware on the
8th day of December 1964, and a Certificate of Incorporation having been issued
by said Secretary of State on that date, and Delaware, and is governed by the
provisions of Title 8 of the Delaware General Corporation Law ("DGCL");
The total number of shares of common stock, which the Delaware
Corporation has authority to issue, is 300,000,000 of which 162,509,898 shares
are presently issued and outstanding and entitled to vote on the Plan and
Agreement of Merger.
The respective Boards of Directors of the Nevada Corporation and the
Delaware Corporation have determined that, for the purpose of effecting the
reincorporation of the Delaware Corporation in the State of Nevada, it is
advisable, to the advantage of and in the best interests of the Delaware
Corporation and its stockholders that the Delaware Corporation merge with and
into Nevada Corporation upon the terms and subject to the conditions herein
provided.
There are no dissenting stockholders rights as a result of the Merger
under the NRS or DGCL.
The respective Boards of Directors of the Delaware Corporation and the
Nevada Corporation and the stockholder of the Nevada Corporation have adopted
and approved this Agreement, and the Board of Directors of the Delaware
Corporation approved this Agreement and has directed that this Agreement be
submitted to the stockholders of the Delaware Corporation for their
consideration;
NOW THEREFORE, in consideration of the premises and of the agreements,
covenants and provisions hereinafter contained, the Nevada Corporation and the
Delaware Corporation, by their respective Boards of Directors have agreed and do
hereby agree as follows:
ARTICLE I
The address of both the Delaware Corporation and the Nevada Corporation
is 1333 Main Street, Park City, UT 84060. Subject to the approval of the
stockholders of the Delaware Corporation in accordance with the DGCL, the
Delaware Corporation and the Nevada Corporation shall be merged into a single
corporation, in accordance with applicable provisions of the laws of the State
of Delaware and of the State of Nevada, by the Delaware Corporation merging into
the Nevada Corporation, which shall be the Surviving Corporation. Such merger
shall be effective a the time Articles of Merger are filed in the State of
Nevada and a Certificate of Ownership and Merger are filed in the State of
Delaware.
ARTICLE II
Upon the merger becoming effective as provided by the applicable laws
of the State of Delaware and of the State of Nevada (the time when the merger
shall so become effective being sometimes herein referred to as the "Effective
Date of the merger") the following shall occur:
1. The two Constituent Corporations shall be a single corporation,
which shall be the Nevada Corporation as the surviving corporation, and the
separate existence of the Delaware Corporation shall cease except to the extent
provided by the laws of the State of Delaware applicable to a corporation after
its merger into another corporation.
2. The Nevada Corporation shall thereupon and thereafter possess all
the rights, privileges, immunities and franchises, of a public or a private
nature, of each of the Constituent Corporations. All property, real or personal,
and all debts due on whatever account, including subscriptions to shares, and
all other choses in action, and all and every other interest of, or belonging
to, or due to each of the Constituent Corporations, shall be taken and deemed to
be vested in the Surviving Corporation without further act or deed; and the
title to all real estate, or any interest therein, vested in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the merger.
3. The Nevada Corporation shall thenceforth be responsible and liable
for all of the liabilities and obligations of each of the Constituent
Corporations. Any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
merger had not taken place, or the Surviving Corporation may be substituted in
its place, and neither the rights of creditors nor any liens upon the property
of either of the Constituent Corporations shall be impaired by the merger.
4. The aggregate amount of the net assets of the Constituent
Corporations, which was available for the payment of dividends immediately prior
to the merger, to the extent that the value thereof is not transferred to stated
capital by the issuance of shares or otherwise, shall continue to be available
for the payment of dividends by the Surviving Corporation.
5. The Bylaws of the Nevada Corporation as existing and constituted
immediately prior to the effective date of merger shall be and constitute the
bylaws of the Surviving Corporation.
6. The directors and officers of the Surviving Corporation shall, at
the effective date of the merger be as follows:
Randall K. Fields Chairman/CEO/President/Director
Barbara J. Ray Chief Financial Officer/ Secretary
Thomas W. Wilson, Jr. Director
Bernard F. Brennan Director
Terry R. Peets Director
Edward C. Dymtryk Director
William R. Jones Director
ARTICLE III
The Articles of Incorporation of the Nevada Corporation, as filed in
the office of the Secretary of State of the State of Nevada, shall constitute
the Articles of Incorporation of the Surviving Corporation, until further
amended in the manner provided by law.
ARTICLE IV
The manner and basis of converting the shares of each of the
Constituent Corporations into shares of the Surviving Corporation is as follows:
1. The 500 shares of stock of the Nevada Corporation now owned and held
by the Delaware Corporation shall be canceled and no shares of stock of the
Nevada Corporation shall be issued in respect thereto, and the capital of the
Nevada Corporation shall be deemed to be reduced by the amount of Five Hundred
Dollars ($500) the amount represented by said 500 shares of stock.
2. Upon the Effective Date and by virtue of the Merger and without any
action on the part of the holders thereof: (i) each outstanding share of common
stock, par value $0.01 per share of the Delaware Corporation (the "Common
Stock") immediately prior to the Effective Date will be converted into one (1)
share of common stock, par value $0.01 per share of the Nevada Corporation (the
"the Nevada Corporation Common Stock"); and (ii) each outstanding option,
warrant or other securities convertible into shares of the Delaware
Corporation's Common Stock will be automatically assumed by the Nevada
Corporation and will be converted into the right to acquire an equal number of
shares of the Nevada Corporation Common Stock, under the same terms and
conditions as the original options, warrants and securities convertible of the
Delaware Corporation.
ARTICLE V
The Delaware Corporation shall pay all expenses of carrying this Plan
and Agreement of Merger into effect and accomplishing the merger herein provided
for.
ARTICLE VI
If at any time the Surviving Corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable to
vest in the Surviving Corporation the title to any property or rights of the
Delaware Corporation, the proper officers and directors of the Delaware
Corporation shall, and will execute and make all such proper assignments and
assurances in law and do all things necessary or proper to thus vest such
property or rights in the Surviving Corporation, and otherwise to carry out the
purposes of this Plan and Agreement of Merger.
ARTICLE VII
This Plan and Agreement of Merger has been, or will be, submitted to
and approved by the shareholders of each of the Constituent Corporations, as
provided by law, and shall take effect upon the filing of Articles of Merger
with the Secretary of State of the State of Nevada. Anything herein or elsewhere
to the contrary notwithstanding, this Plan and Agreement of Merger may be
abandoned by either of the Constituent Corporations by an appropriate resolution
of its board of directors at any time prior to its approval or adoption by the
shareholders and stockholders thereof, or by the mutual consent of the
Constituent Corporations evidenced by appropriate resolutions of their
respective boards of directors, at any time prior to the effective date of the
merger.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to conflict of laws
principles.
IN WITNESS WHEREOF, the Nevada Corporation and the Delaware
Corporation, pursuant to the approval and authority duly given by resolutions
adopted by their respective boards of directors and shareholders have caused
this Plan and Agreement of Merger to be executed by the President of each party
hereto.
Fields Technologies, Inc. Park City Group, Inc.
a Delaware corporation a Nevada corporation
By /s/ Randall K. Fields By /s/ Randall K. Fields
------------------------ ---------------------
Randall K. Fields, President Randall Fields, President
Exhibit 5
ARTICLES OF MERGER
OF
FIELDS TECHNOLOGIES, INC.
a Delaware Corporation into
PARK CITY GROUP, INC.
a Nevada Corporation
Pursuant to the provisions of Section 78.461 of the Nevada Revised
Statutes, Fields Technologies, Inc., a Delaware Corporation (hereafter the
"Delaware Corporation"), and Park City Group, Inc., a Nevada Corporation
(hereafter the "Nevada" or "Surviving Corporation"), adopt the following
Articles of Merger for the purpose of merging the Delaware Corporation into the
Nevada Corporation. At the effective time of the merger (i) the Delaware
Corporation will merge (the "Merger") into the Nevada Corporation; and (ii)
shares of the common stock of the Delaware Corporation will be converted into
shares of the Nevada Corporation all upon the terms and conditions set forth
herein.
1) The laws of the State of Delaware and the State of Nevada, the
states under which the Delaware Corporation and the Nevada Corporation are
organized, permit the Merger.
2) The Nevada Corporation shall be surviving corporation and it is to
be governed by the laws of the State of Nevada.
3) The Agreement and Plan of Merger was adopted by the Boards of
Directors of the Delaware Corporation and the Nevada Corporation and was
submitted by the Board of Directors of the Delaware Corporation to the
stockholders of the Delaware Corporation pursuant to the General Corporation Law
of the State of Delaware and the Nevada Corporation pursuant to the Nevada
Revised Statutes.
4) As to each of the undersigned Corporations, the designation and
number of outstanding shares of each class entitled to vote as a class on the
Agreement and Plan of Merger are as follows:
Voting Number of
Name of Group Shares Votes Entitled
Corporation Designation Outstanding To Be Cast
----------- ----------- ----------- --------------
Nevada Corporation common stock 500 500
Delaware Corporation common stock 162,509,898 162,509,898
5) As to each of the undersigned Corporations, the total number of
shares voted for and against the Agreement and Plan of Merger, respectively and
as to each class entitled to vote thereon are as follows:
Voting
Name of Group Total Total
Corporation Designation Voted For Voted Against
----------- ----------- --------- --------------
Nevada Corporation common stock 500 -0-
Delaware Corporation common stock 109,402,667 -0-
The number of votes cast for the Plan by the stockholders of all
classes of both the Nevada Corporation and the Delaware Corporation was
sufficient for approval by the stockholders of both of the constituent
corporations.
6) The completed executed Agreement and Plan of Merger is attached
hereto and is on file at the place of business of the Surviving Corporation at
333 Main Street, Suite 300, Park City, UT 84060 and a copy of the Plan will be
furnished by the Surviving Corporation on request, without cost, to any
stockholder of the Surviving Corporation or any corporation who was a party to
this Merger.
7) The Nevada Corporation (the Surviving Corporation) hereby authorizes
service of process on it by registered or certified mail, return receipt
requested, in connection with any proceeding to enforce any obligations or
rights of dissenting shareholders of the Delaware Corporation or in connection
with any proceeding based on a cause of action arising with respect to the
Delaware Corporation.
8) The Nevada Corporation will promptly pay to the dissenting
shareholders of the Delaware Corporation the amount, if any, to which they are
entitled to under the provisions of the Delaware General Corporation Law with
respect to the rights of dissenting shareholders.
Dated: July 25, 2002
FIELDS TECHNOLOGIES, INC. PARK CITY GROUP, INC.
a Delaware corporation a Nevada corporation
By: /s/ Randall K. Fields By: /s/ Randall K. Fields
------------------------- ----------------------
Randall K. Fields Randall K. Fields
President President
STATE OF UTAH )
: ss
COUNTY OF SALT LAKE )
Subscribed and sworn to before me this 25 day of July , 2001
/s/ E.G. Perry
--------------------
Notary Public
My Commission expires: 3/4/03
Residing at: Salt Lake City
I, the undersigned Secretary of Park City Group, Inc., hereby execute
above set forth Articles of Merger between Fields Technologies, Inc., a Delaware
Corporation, and Park City Group, Inc. on the 25TH day of July, 2002.
/s/ Barbara Ray
---------------------------
Barbara Ray, Secretary
STATE OF UTAH )
: ss
COUNTY OF SALT LAKE )
Subscribed and sworn to before me this 25 day of July, 2002
/S/ E.G. Perry
----------------------
Notary Public
My Commission expires: 3/4/03
Residing at: Salt Lake City
Exhibit 6
CERTIFICATE OF OWNERSHIP AND MERGER
FIELDS TECHNOLOGIES, INC.
A DELAWARE CORPORATION
INTO
PARK CITY GROUP, INC.
A NEVADA CORPORATION
(Pursuant to the General Corporation Law of the State of Delaware)
Certificate of Ownership and Merger dated July 25, 2002, executed by
Fields Technologies, Inc., a Delaware corporation, hereinafter referred to as
the "Delaware Corporation," and Park City Group, Inc., a Nevada corporation,
hereinafter referred to as the "Nevada Corporation" and/or "Surviving
Corporation".
The Nevada Corporation and the Delaware Corporation do hereby certify:
1. The Nevada Corporation Organized Pursuant to Nevada Law. The Nevada
Corporation was organized pursuant to the Corporation Law of the State of Nevada
on June 5, 2002, which law permits the merger of a Nevada corporation with a
corporation organized under the laws of another state.
2. The Delaware Corporation Organized Pursuant to Delaware Law. The
Delaware Corporation was organized pursuant to the Corporation Law of the State
of Delaware on December 8, 1964, which law permits the merger of a Delaware
corporation with a corporation organized under the laws of another state.
3. Ownership of the Nevada Corporation Shares. The Delaware Corporation
owns all of the issued and outstanding shares of the Nevada Corporation.
4. Director Approval and Resolutions of the Delaware Corporation. On
May 8, 2002, the directors of the Delaware Corporation duly adopted, by the
unanimous written consent of its members, filed with the minutes of the board,
the following resolutions:
RESOLVED, that the Delaware Corporation shall, subject to stockholder
approval, merge itself into the Nevada Corporation, its wholly owned subsidiary
which assumes all of the obligations of the Delaware Corporation.
RESOLVED, that the merger shall be effective upon filing Articles of
Merger with the Secretary of State of the State of Nevada and a Certificate of
Ownership and Merger with the Secretary of State of Delaware.
RESOLVED, that the terms and conditions of the merger are as set forth
in the Agreement and Plan of Merger attached hereto and by this reference made a
part hereof.
RESOLVED, that the proper officers of the Delaware Corporation be, and
they hereby are, directed to make and execute a Certificate of Ownership and
Merger setting forth a copy of the resolutions to merge itself into the Nevada
Corporation and to cause the same to be filed with the Secretary of State of
Delaware and a certified copy recorded in the Office of the Recorder of deeds of
New Castle County and to do all acts and things whatsoever, whether within or
without the State of Delaware, which may be necessary or proper to effect said
merger.
5. Stockholder Consent. On May 8, 2002, the holders of a majority of
the outstanding shares of the Delaware Corporation that were entitled to vote,
approved the Plan and Agreement of Merger in accordance with the requirements of
the Delaware General Corporation Law.
6. Separate Existence; Surviving Corporation. At the effective time of
the merger, the separate existence of the Delaware Corporation shall cease and
the Delaware Corporation shall be merged in accordance with the applicable
provision of the Revised Nevada Business Corporations Act and the General
Corporation Law of Delaware, into the Nevada Corporation, which shall be the
Surviving Corporation.
7. Governing Law. The laws which are to govern the Surviving
Corporation, the Nevada Corporation, are the laws of the State of Nevada. The
Articles of Incorporation of the Nevada Corporation shall be the Articles of
Incorporation of the Surviving Corporation, the Nevada Corporation, until the
same shall be altered or amended in accordance with the laws of the State of
Nevada.
8. Directors and Officers. The directors and officers of the Surviving
Corporation shall, at the effective date of the merger, be as follows:
Randall K. Fields, CEO, President, Chairman of the Board of Directors.
Edward C. Dmytryk, Director
Thomas W. Wilson, Director
Bernard F. Brennan, Director
William R. Jones, Director
Terry R. Peets, Director
Stephen Weinroth, Director
Barbara J. Ray, Chief Financial Officer, Secretary
9. Effect of Merger. The merger shall be effective at such time as this
Certificate of Merger is filed with the office of the Secretary of State of
Delaware and Articles of Merger are filed with the office of the Secretary of
State of Nevada. At the effective time of the merger, the Surviving Corporation,
the Nevada Corporation, shall retain or succeed to, without other transfer, and
shall possess and enjoy all rights, privileges, immunities, powers, purposes,
and franchises and be subject to all the restrictions, disabilities and duties
of each corporation. All property, both real and personal, tangible, and
intangible and all debts due to either corporation shall be vested in the
Surviving Corporation. All debts, liabilities, and duties of either corporation
shall be the responsibility of and enforceable against the Surviving Corporation
as if said debts, liabilities, and duties had been incurred or contracted by the
Surviving Corporation.
10. Address for Service of Process. The Surviving Corporation hereby
appoints the Secretary of State as its agent to accept service of process in any
suit or proceeding and agrees that it may be served in process in the State of
Delaware in any proceeding for the enforcement of any obligation of the Delaware
or the Nevada corporation. Copies of such process shall be mailed to Fields
Technologies, Inc., 333 South Main Street, P.O. Box 5000, Park City, Utah 84060.
IN WITNESS WHEREOF, this Certificate has been signed by each of the
Corporations, which are the parties hereto this _25th_ day of July, 2000.
Randall K. Fields hereby affirms and acknowledges, under penalties of perjury,
that this Certificate of Ownership and Merger is the act and deed of Fields
Technologies, Inc. and Park City Group, Inc., respectively, and the facts stated
herein are true.
Fields Technologies, Inc. Park City Group, Inc.
a Delaware corporation a Nevada corporation
By /s/ Randall K. Fields By /s/ Randall K. Fields
----------------------------- -----------------------------
Randall K. Fields President Randall K. Fields, President
Exhibit 7
AGREEMENT AND PLAN OF MERGER
BETWEEN
PARK CITY GROUP, INC.
(a Nevada corporation)
and
FIELDS TECHNOLOGIES, INC.
(a Delaware corporation)
This Agreement and Plan of Merger ("Agreement") made and entered into
this 25th day of July 2002, by and between Park City Group, Inc., a Nevada
corporation (herein sometimes referred to as the "Nevada Corporation" or
"Surviving Corporation"), and Fields Technologies, Inc., a Delaware corporation
(herein sometimes referred to as the "Delaware Corporation"), said corporations
hereinafter sometimes referred to jointly as the "Constituent Corporations."
RECITALS
The Nevada Corporation is a corporation organized and existing under
the laws of the State of Nevada, its Articles of Incorporation having been filed
in the office of the Secretary of State of the State of Nevada on or about June
5, 2002, and is governed by the provisions of Chapter 78 of the Nevada Revised
Statutes ("NRS"). The total number of shares of common stock, which the Nevada
Corporation has authority to issue, is 300,000,000 of which 500 shares are now
issued and outstanding, all of which are owned by the Delaware Corporation.
The sole purpose of the merger agreed to herein is to change the
domicile of the Delaware Corporation to the State of Nevada.
The Delaware Corporation is a corporation organized and existing under
the laws of the State of Delaware, its Certificate of Incorporation having been
filed in the office of the Secretary of State of the State of Delaware on the
8th day of December 1964, and a Certificate of Incorporation having been issued
by said Secretary of State on that date, and Delaware, and is governed by the
provisions of Title 8 of the Delaware General Corporation Law ("DGCL"); The
total number of shares of common stock, which the Delaware Corporation has
authority to issue, is 300,000,000 of which 162,509,898 shares are presently
issued and outstanding and entitled to vote on the Agreement.
The respective Boards of Directors of the Nevada Corporation and the
Delaware Corporation have determined that, for the purpose of effecting the
reincorporation of the Delaware Corporation in the State of Nevada, it is
advisable, to the advantage of and in the best interests of the Delaware
Corporation and its stockholders that the Delaware Corporation merge with and
into Nevada Corporation upon the terms and subject to the conditions herein
provided.
There are no dissenting stockholders rights as a result of the Merger
under the NRS or DGCL.
The respective Boards of Directors of the Delaware Corporation and the
Nevada Corporation and the stockholder of the Nevada Corporation have adopted
and approved this Agreement, and the Board of Directors of the Delaware
Corporation approved this Agreement and directed that this Agreement be
submitted to the stockholders of the Delaware Corporation for their
consideration. The holders of a majority of the issued and outstanding shares of
the Delaware corporation's common stock, approved and adopted this Agreement by
written consent in lieu of a Meeting of Stockholders, in accordance with the
DGCL.
NOW THEREFORE, in consideration of the premises and of the agreements,
covenants and provisions hereinafter contained, the Nevada Corporation and the
Delaware Corporation, by their respective Boards of Directors have agreed and do
hereby agree as follows:
ARTICLE I
The address of both the Delaware Corporation and the Nevada Corporation
is 333 Main Street, Suite 300, Park City, UT 84060. In accordance with the DGCL,
the Delaware Corporation and the Nevada Corporation shall be merged into a
single corporation, in accordance with applicable provisions of the laws of the
State of Delaware and of the State of Nevada, by the Delaware Corporation
merging into the Nevada Corporation, which shall be the Surviving Corporation.
Such merger shall be effective a the time Articles of Merger are filed in the
State of Nevada and a Certificate of Ownership and Merger are filed in the State
of Delaware.
ARTICLE II
Upon the merger becoming effective as provided by the applicable laws
of the State of Delaware and of the State of Nevada (the time when the merger
shall so become effective being sometimes herein referred to as the "Effective
Date of the merger") the following shall occur:
1. The two Constituent Corporations shall be a single corporation,
which shall be the Nevada Corporation as the surviving corporation, and the
separate existence of the Delaware Corporation shall cease except to the extent
provided by the laws of the State of Delaware applicable to a corporation after
its merger into another corporation.
2. The Nevada Corporation shall thereupon and thereafter possess all
the rights, privileges, immunities and franchises, of a public or a private
nature, of each of the Constituent Corporations. All property, real or personal,
and all debts due on whatever account, including subscriptions to shares, and
all other choses in action, and all and every other interest of, or belonging
to, or due to each of the Constituent Corporations, shall be taken and deemed to
be vested in the Surviving Corporation without further act or deed; and the
title to all real estate, or any interest therein, vested in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the merger.
3. The Nevada Corporation shall thenceforth be responsible and liable
for all of the liabilities and obligations of each of the Constituent
Corporations. Any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
merger had not taken place, or the Surviving Corporation may be substituted in
its place, and neither the rights of creditors nor any liens upon the property
of either of the Constituent Corporations shall be impaired by the merger.
4. The aggregate amount of the net assets of the Constituent
Corporations, which was available for the payment of dividends immediately prior
to the merger, to the extent that the value thereof is not transferred to stated
capital by the issuance of shares or otherwise, shall continue to be available
for the payment of dividends by the Surviving Corporation.
5. The Bylaws of the Nevada Corporation as existing and constituted
immediately prior to the effective date of merger shall be and constitute the
bylaws of the Surviving Corporation.
6. The directors and officers of the Surviving Corporation shall, at
the effective date of the merger be as follows:
Randall Fields Chairman/CEO/President/Director
Barbara Ray Chief Financial Officer/ Treasurer
Edward Clissold Secretary
Thomas Wilson Director
Bernard Brennan Director
Terry Peets Director
Edward Dymtryk Director
Stephen D. Weinroth Director
ARTICLE III
The Articles of Incorporation of the Nevada Corporation, as filed in
the office of the Secretary of State of the State of Nevada, shall constitute
the Articles of Incorporation of the Surviving Corporation, until further
amended in the manner provided by law.
ARTICLE IV
The manner and basis of converting the shares of each of the
Constituent Corporations into shares of the Surviving Corporation is as follows:
1. The 500 shares of stock of the Nevada Corporation now owned and held
by the Delaware Corporation shall be canceled and no shares of stock of the
Nevada Corporation shall be issued in respect thereto, and the capital of the
Nevada Corporation shall be deemed to be reduced by the amount of Five Hundred
Dollars ($500) the amount represented by said 500 shares of stock.
2. Upon the Effective Date and by virtue of the merger and ithout any
action on the part of the holders thereof: (i) each outstanding share of common
stock, par value $0.01 per share of the Delaware Corporation (the "Common
Stock") immediately prior to the Effective Date will be converted into one (1)
share of common stock, par value $0.01 per share of the Nevada Corporation (the
"the Nevada Corporation Common Stock"); and (ii) each outstanding option,
warrant or other securities convertible into shares of the Delaware
Corporation's Common Stock will be automatically assumed by the Nevada
Corporation and will be converted into the right to acquire an equal number of
shares of the Nevada Corporation Common Stock, under the same terms and
conditions as the original options, warrants and securities convertible of the
Delaware Corporation.
ARTICLE V
The Delaware Corporation shall pay all expenses of carrying this
Agreement into effect and accomplishing the merger herein provided for.
ARTICLE VI
If at any time the Surviving Corporation shall consider or be advised
that any further assignment or assurance in law is necessary or desirable to
vest in the Surviving Corporation the title to any property or rights of the
Delaware Corporation, the proper officers and directors of the Delaware
Corporation shall, and will execute and make all such proper assignments and
assurances in law and do all things necessary or proper to thus vest such
property or rights in the Surviving Corporation, and otherwise to carry out the
purposes of this Agreement.
ARTICLE VII
This Agreement has been submitted to and approved by the stockholders
of each of the Constituent Corporations, as provided by law, and shall take
effect upon the filing of Articles of Merger with the Secretary of State of the
State of Nevada and a Certificate of Ownership and Merger with the Secretary of
State of the State of Delaware. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be abandoned by either of the Constituent
Corporations by an appropriate resolution of its board of directors at any time
prior to its approval or adoption by the stockholders thereof, or by the mutual
consent of the Constituent Corporations evidenced by appropriate resolutions of
their respective boards of directors, at any time prior to the effective date of
the merger.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to conflict of laws
principles.
IN WITNESS WHEREOF, the Nevada Corporation and the Delaware
Corporation, pursuant to the approval and authority duly given by resolutions
adopted by their respective boards of directors and stockholders have caused
this Agreement to be executed by the President of each party hereto.
Fields Technologies, Inc. Park City Group, Inc.
a Delaware corporation a Nevada corporation
By /s/ Randall K. Fields By /s/ Randall K. Fields
---------------------------- ------------------------
Randall Fields, President Randall Fields, President