usbio_def14c.htm
SECURITIES
AND EXCHANGE COMMISSION
INFORMATION
STATEMENT
SCHEDULE
14C
(RULE
14C-101)
SCHEDULE
14C INFORMATION
INFORMATION
STATEMENT PURSUANT TO SECTION 14(c)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Check the
appropriate box:
[ ]
Preliminary Information Statement
[ ]
Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[X]
Definitive Information Statement
US
BIODEFENSE, INC.
(Name of
Registrant As Specified in Its Charter)
Payment
of Filing Fee (Check the appropriate box):
[X] No
fee required.
[ ] Fee
computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title
of each class of securities to which transaction applies:
(2)
Aggregate number of securities to which transaction applies:
(3) Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which filing fee is calculated
and state how it was determined):
(4)
Proposed maximum aggregate value of transaction:
(5) Total
fee paid:
[ ] Fee
paid previously with preliminary materials.
[ ] Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
(1)
Amount Previously Paid:
(2) Form,
Schedule or Registration Statement No.:
(3)
Filing Party:
US
BIODEFENSE, INC.
300 State
St. East, Suite 226
Oldsmar,
Florida 34677
(727)
417-7807
To Our Stockholders:
The
purpose of this letter is to inform you that we intend to amend our Amended and
Restated Articles of Incorporation, as amended, to:
1. amend
Article First to change our name to "Elysium Internet, Inc.;"
2. amend
Article Fifth to increase the authorized number of shares of common stock from
140,000,000 to 250,000,000;
3. amend
Article Sixth to remove the reference to the rights of holders of preferred
stock and to add the meeting and notice requirement for removal of a director by
stockholders;
4. amend
Article Eighth to remove the super majority vote requirement to amend Articles
Sixth, Seventh, Eighth and Ninth;
5. delete
Article Ninth in its entirety; and
6. amend
Article Eleventh to fully reflect the requirements for indemnification under the
Utah Revised Business Corporation Act.
WE
ARE NOT ASKING FOR YOUR PROXYAND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
Because
the written consent of a super majority of stockholders satisfies any applicable
stockholder voting requirement of the Utah Revised Business Corporation Act, our
Amended and Restated Articles of Incorporation, as amended, and our By-Laws we
are not asking for a proxy and you are not requested to send one.
The
accompanying Information Statement is for information purposes only and explains
the terms of the restatement of our Amended and Restated Articles of
Incorporation, as amended. Please read the accompanying Information Statement
carefully.
By Order
of the Board of Directors,
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May
22, 2008
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By:
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/s/
Scott
Gallagher
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Scott
Gallagher
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Chief
Executive Officer
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US
BIODEFENSE, INC.
300 State
St. East, Suite 226
Oldsmar,
Florida 34677
(727)
417-7807
INFORMATION
STATEMENT
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
We intend
to amend our Amended and Restated Articles of Incorporation, as amended,
to:
1. amend
Article First to change our name to "Elysium Internet, Inc.;"
2. amend
Article Fifth to increase the authorized number of shares of common stock from
140,000,000 to 250,000,000;
3. amend
Article Sixth to remove the reference to the rights of holders of preferred
stock and to add the meeting and notice requirement for removal of a director by
stockholders;
4. amend
Article Eighth to remove the super majority vote requirement to amend Articles
Sixth, Seventh, Eighth and Ninth;
5. delete
Article Ninth in its entirety; and
6. amend
Article Eleventh to fully reflect the requirements for indemnification under the
Utah Revised Business Corporation Act.
VOTING
INFORMATION
Only
stockholders of record at the close of business on May 5, 2008 are entitled to
notice of and to vote the shares of common stock, $0.001 par value, of the
Company held by them on the Record Date. As of May 5, 2008, 13,074,075 were
issued and outstanding and there were 653 stockholders of record. There was no
other class of voting securities outstanding on the record date. Each share of
common stock held by a stockholder entitles such stockholder to one vote on each
matter that is voted upon at the Meeting or any adjournments
thereof.
On May 5,
2008, a majority of votes representing 76.5% of shares entitled to vote executed
a written consent in favor of the actions listed above.
This
consent satisfies the stockholder approval requirement for the proposed actions.
Pursuant to Rule 14c-2 under the Securities Exchange Act of 1934, as amended,
the actions will not be adopted until a date at least 20 days after the date on
which this Information Statement has been mailed to stockholders. We anticipate
that the action contemplated herein will be effected on or about the close of
business on June 12, 2008.
CHANGE
IN CONTROL
Effective
January 10, 2008, we experienced a change in control as the result of a series
of transactions. Effective on that date, we executed an employment agreement
with Scott Gallagher pursuant to which he became our Chairman of the Board of
Directors and Chief Executive Officer. Simultaneously, our former Chairman,
David Chin, resigned as an officer and director of the corporation. Also
effective of that date, Mr. Gallagher and a Company controlled by him, 221 Fund,
LLC acquired 95.6% of our outstanding common stock. As a result of these
transactions Mr. Gallagher assumed control of our Company.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth certain information concerning the beneficial
ownership of our outstanding classes of stock as of May 5, 2008, by each person
known by us to be (i) the beneficial owner of more than 5% of the outstanding
shares of common stock, (ii) each current director and nominee, (iii) each of
the executive officers who were serving as executive officers at the end of the
November 30, 2007 fiscal year and (iv) all of our directors and current
executive officers as a group. Unless otherwise indicated below, to our
knowledge, all persons listed below have sole voting and investment power with
respect to their shares of common stock except to the extent that authority is
shared by spouses under applicable law.
The
calculation of percentage ownership for each listed beneficial owner is based
upon the number of shares of common stock issued and outstanding on May 5, 2008,
plus shares of common stock subject to options, warrants and conversion rights
held by such person on May 5, 2008, and exercisable or convertible within 60
days thereafter.
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Name
and Address of Beneficial Owner (1)
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Common
Shares Beneficially Owned
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Percent
of Class (2)
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Scott
Gallagher (3)
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10,000,000
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76.5%
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221
Fund, LLC
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5,000,000
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38.2%
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David
Chin (4)
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400,000
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3.1%
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Scott
McBride
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0
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*
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David
Rasmussen
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0
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*
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All
Directors and Executive Officers as a group (3 persons)
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10,000,000
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76.5%
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* Less
than 1%
(1)
Unless otherwise stated, the address of each beneficial owner is 300 State
Street East, Suite 226, Oldsmar, FL 34677.
(2) The
number of shares of common stock issued and outstanding on May 5, 2008, was
13,074,075 shares.
(3) Mr.
Gallagher owns 5,000,000 shares of common stock directly and 5,000,000 shares of
common stock indirectly through 221 Fund, LLC, of which Mr. Gallagher serves as
the Chief Investment Officer. The shares were purchased on January 10, 2008 for
total consideration of $300,000.
(4) Mr.
Chin resigned as our Chief Executive Officer and Chairman of the Board of
Directors on January 10, 2008. Mr. Chin's address is 375 South 6th Avenue, City
of Industry, CA 91746.
AMENDMENT TO AMENDED AND RESTATED ARTICLES OF
INCORPORATION, AS AMENDED, TO CHANGE OUR NAME TO “ELYSIUM INTERNET,
INC.”
REASON
FOR THE NAME CHANGE
We began
doing business under the name US Biodefense, Inc. on July 21, 2007. Effective
January 10, 2008, we experienced a change in control as the result of a series
of transactions. Effective on that date, we executed an employment agreement
with Scott Gallagher pursuant to which he became our Chairman of the Board of
Directors and Chief Executive Officer. Simultaneously, our former Chairman,
David Chin, resigned as an officer and director of our company, leaving Mr.
Gallagher as our sole director. Also effective as of that date, Mr. Gallagher
and a Company controlled by him, 221 Fund, LLC acquired 95.6% of our outstanding
common stock, and as a result of these transactions Mr. Gallagher assumed
control of our company. On the same date, we changed our business direction and
began doing business as “Internet Holdings” to focus on acquiring direct
navigation Internet domain names that could be developed into profitable
business ventures. On April 4, 2008, we acquired 100% of the shares of Elysium
Internet, Inc., a direct navigation Internet media company, in exchange for
stock and a note to FTS Group, Inc. We believe the name "Elysium Internet, Inc."
will reflect the business on which we are currently focused.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a majority
of the outstanding shares of our common stock executed a written consent,
authorizing us to amend and restate our Amended and Restated Articles of
Incorporation, as amended, to change our name to "Elysium Internet, Inc." The
form of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code. The currently outstanding stock
certificates evidencing shares of our common stock bearing the name "US
Biodefense, Inc." will continue to be valid and represent shares of our common
stock following the name change. In the future, new certificates will be issued
bearing our new name, but this will not affect the validity of your current
stock certificates.
AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED, TO AMEND
ARTICLE FIFTH TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK TO
250,000,000.
REASON
FOR THE AMENDMENT TO ARTICLE FIFTH
Our
Amended and Restated Articles of Incorporation, as amended, currently authorize
us to issue 140,000,000 shares of common stock. As of May 5, 2008, we had
13,074,075 shares of common stock issued and outstanding. We believe it is in
the best interests of our stockholders to increase our authorized shares of
common stock so that we can efficiently continue to grow our operations. An
increase in the authorized number of shares of common stock will enable us to
take advantage of various potential business opportunities through the issuance
of our securities, including, without limitation, issuing stock dividends to
existing stockholders, providing equity incentives to employees, officers or
directors, establishing certain strategic relationships with other companies and
expanding our business through acquisitions. We do not currently have any plans
for acquisitions.
DESCRIPTION
OF COMMON STOCK
The
additional shares of common stock to be authorized for issuance will possess
rights identical to the currently authorized common stock. The holders of common
stock are entitled to one vote for each share held of record on all matters to
be voted on by the stockholders. All voting is on a non-cumulative basis. The
stockholders of common stock do not have any preemptive rights. The amendment to
authorize the issuance of additional shares of common stock will not have any
effect on the par value of the common stock. Nevertheless, the issuance of such
additionally authorized shares of common stock would affect the voting rights of
our current stockholders because there would be an increase in the number of
outstanding shares entitled to vote on corporate matters, including the election
of directors, if and when any such shares of common stock are issued in the
future. The issuance of additional shares will have the effect of diluting the
earnings per share or book value per share of the outstanding shares of common
stock or the stock ownership or voting rights of a stockholder.
POTENTIAL
ANTI-TAKEOVER EFFECTS OF THE AMENDMENT TO INCREASE AUTHORIZED
SHARES
The
increase in the number of authorized shares of common stock and the subsequent
issuance of all or a portion of those shares could have the effect of delaying
or preventing a change of control without further action by the stockholders.
Subject to applicable law and stock exchange requirements, we could issue shares
of authorized and unissued common stock in one or more transactions that would
make a change of control more difficult and therefore less likely. Any issuance
of additional shares could have the effect of diluting the earnings per share
and book value per share of the outstanding shares of common stock or the stock
ownership and voting rights of a person seeking to obtain control of our
company.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a majority
of the outstanding shares of our common stock executed a written consent,
authorizing us to amend and restate our Amended and Restated Articles of
Incorporation, as amended, to amend Article Fifth, as described above. The form
of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code.
AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED, TO AMEND
ARTICLE SIXTH TO DELETE THE REFERENCE TO THE RIGHTS OF HOLDERS OF PREFERRED
STOCK AND TO ADD MEETING AND NOTICE REQUIREMENTS FOR REMOVAL OF DIRECTORS BY
STOCKHOLDERS.
REASON
FOR THE AMENDMENT TO ARTICLE SIXTH
Article
Sixth of our Amended and Restated Articles of Incorporation, as amended,
provides for the election and removal of directors. Article Sixth includes a
provision that the election and removal of directors is subject to the rights of
holders of our preferred stock. We have not designated any series of preferred
stock, and authority to appoint, elect or remove directors resides with our
Board of Directors or our stockholders, as provided for in the Utah Revised
Business Corporation Act. We believe the removal of the reference to the rights
of holders of preferred stock clarifies the authority of our Board of Directors
and our common stockholders to appoint, elect and remove directors consistent
with state law.
Further,
we propose to add the following language to Article Sixth, Section D, “A
director may be removed by the stockholders only at a meeting called for the
purpose of removing the director, and the meeting notice must state that the
purpose, or one of the purposes, of the meeting is removal of the director.” The
meeting and notice requirement for the removal of a director by our stockholders
is required pursuant to the Utah Revised Business Corporation Act. We believe
that adding this language to our Articles of Incorporation clarifies the
requirements as mandated by Utah law.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a super
majority of the outstanding shares of our common stock executed a written
consent, authorizing us to amend and restate our Amended and Restated Articles
of Incorporation, as amended, to amend Article Sixth, as described above. The
form of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code.
AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED, TO AMEND
ARTICLE EIGHTH TO REMOVE THE SUPER MAJORITY VOTE REQUIREMENT TO FURTHER AMEND
ARTICLES SIXTH, SEVENTH, EIGHTH AND NINTH.
REASON
FOR THE AMENDMENT TO ARTICLE EIGHTH
Article
Eighth includes a provision that requires a super majority vote of stockholders
to amend Articles Sixth, Seventh, Eighth or Ninth of our Amended and Restated
Articles of Incorporation, as amended. This is a stricter vote requirement than
is called for in the Utah Revised Business Corporation Act. Upon removal of the
super majority vote requirement, our stockholders will be able to amend these
sections of the Articles with a stockholder action, defined in Utah law as the
majority of the shares voting at a meeting where a quorum is present. Changing
the vote requirement will make the procedure for amending our Articles
consistent for all provisions except Article Fourth.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a super
majority of the outstanding shares of our common stock executed a written
consent, authorizing us to amend and restate our Amended and Restated Articles
of Incorporation, as amended, to amend Article Eighth, as described above. The
form of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code.
AMENDMENT TO OUR AMENDED AND RESTATED ARTICLES OF
INCORPORATION, AS AMENDED TO DELETE ARTICLE NINTH.
REASON
FOR THE DELETION OF ARTICLE NINTH
Article
Ninth provides for certain considerations that may be made by our Board of
Directors in evaluating various offers from third parties. The procedures
pursuant to which a Board of Directors may evaluate and decide upon certain
offers from third parties are well established in Utah law and in case law. We
believe that the inclusion of this language in our Amended and Restated Articles
of Incorporation, as amended, is unnecessary. We believe it is in the interest
of our stockholders to clarify and simplify our Articles of Incorporation by
removing any unnecessary provisions.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a super
majority of the outstanding shares of our common stock executed a written
consent, authorizing us to amend and restate our Amended and Restated Articles
of Incorporation, as amended, to delete Article Ninth in its entirety. The form
of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code.
AMENDMENT
TO OUR AMENDED AND RESTATED ARTICLES OF INCORPORATION TO AMEND ARTICLE ELEVENTH
TO FULLY REFLECT THE REQUIREMENTS FOR INDEMNIFICATION UNDER THE UTAH REVISED
BUSINESS CORPORATION ACT.
REASON
FOR THE AMENDMENT TO ARTICLE ELEVENTH
Indemnification
of officers and directors is subject to several requirements under the Utah
Revised Business Corporation Act, which cannot be changed by provisions adopted
in a company’s articles of incorporation. Currently, our Amended and Restated
Articles of Incorporation, as amended, reflect some, but not all of these
requirements. We are proposing to add language requiring submission to our Board
of Directors of a written affirmation by a party requesting indemnification
certifying to a good faith belief that he is entitled to such indemnification.
We are also proposing to add Section H of Article Eleventh, or new Article
Tenth, governing the procedures for authorization of indemnification. Our Board
of Directors is already subject to these requirements pursuant to Utah law, and
we believe that this revision makes our Amended and Restated Articles of
Incorporation, as amended, more accurate.
IMPLEMENTATION
OF THE PROPOSAL
On May 5,
2008, our Board of Directors adopted a resolution, and the holders of a majority
of the outstanding shares of our common stock executed a written consent,
authorizing us to amend and restate our Amended and Restated Articles of
Incorporation, as amended, to amend Article Eleventh as described above. The
form of the Amended and Restated Articles of Incorporation is attached to this
Information Statement as Attachment A. The Amended and Restated Articles of
Incorporation will become effective immediately upon filing with the Utah
Division of Corporations and Commercial Code.
OTHER
CHANGES TO OUR AMENDED AND RESTATED ARTICLES OF INCORPORATION, NOT SUBJECT TO A
VOTE OF SECURITY HOLDERS.
We intend
to restate our Amended and Restated Articles of Incorporation, as amended, to
make the following technical changes.
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1.
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Remove
of the names of the former directors of our Company.
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2.
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Change
the stated principal office of our Company to our address at 300 State
Street East, Suite 226, Oldsmar, Florida
34677.
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3.
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Change
the name and address of our registered agent to Standard Registrar and
Transfer Company, Inc., 12528 South 1840 East, Draper, Utah
84020.
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4.
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Correct
all references to Utah General Corporation Law to read “Utah Revised
Business Corporation Act.”
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5.
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Change
certain references to security holders to consistently refer to them as
stockholders.
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6.
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Correct
various typographical errors and renumber Articles in light of deletion of
Article Ninth.
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COSTS
AND MAILING
We will
pay all costs associated with the distribution of this Information Statement,
including the costs of printing and mailing. We have asked or will ask brokers
and other custodians, nominees and fiduciaries to forward this Information
Statement to the beneficial owners of our common stock held of record by such
persons and will reimburse such persons for out-of-pocket expenses incurred in
forwarding such material.
HOUSEHOLDING
INFORMATION
Some
banks, brokers, and other record holders may participate in the practice of
“householding” information statements. This means that, unless stockholders give
contrary instructions, only one copy of this Information Statement may be sent
to multiple stockholders sharing an address. The Company will promptly deliver a
separate copy of this document to any stockholder at a shared address upon
written or oral request by such stockholder at the following address or
telephone number: US Biodefense, Inc., 300 State Street East, Suite 226,
Oldsmar, FL 34677, (727) 417-7807. Any stockholder who wants to receive a
separate copy of this Information Statement in the future, or any stockholder
who is receiving multiple copies and would like to receive only one copy per
household, should contact such stockholder’s bank, broker, or other record
holder, or such stockholder may contact the Company at the above address or
telephone number.
ATTACHMENT
A
AMENDED
& RESTATED
ARTICLES
OF INCORPORATION
OF
ELYSIUM INTERNET, INC.
The
undersigned hereby certify that:
ONE: They
are the duly elected and acting Chief Executive Officer and Chairman of the
Board of Directors and Directors and constitute the Board of Directors of
Elysium Internet, Inc., (the "Corporation").
TWO: The
Articles of Incorporation of the Corporation shall be amended and restated to
read in full as follows:
FIRST:
The name of the Corporation is ELYSIUM INTERNET, INC.
SECOND:
The principal office of the Corporation is located at 300 State Street East,
Suite 226, Oldsmar, Florida 34677. The name and address of the registered agent
of the Corporation is Standard Registrar and Tranfer Company, Inc., 12528 South
1840 East, Draper, Utah 84020.
THIRD:
The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the Utah Revised Business Corporation
Act.
FOURTH:
The following provisions are inserted for the management of the business and the
conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its directors
and stockholders:
A. The
governing board of this Corporation shall be known as the board of directors
(the "Board of Directors" or the "Board") and its members shall be known as
directors, and the number of directors may from time to time be increased or
decreased by resolution of the Board of Directors, provided that the number of
directors shall not be reduced to less than three (3). The Board of Directors
shall be divided into three classes, as nearly equal in number as possible, and
the term of office for each respective class of directors shall be so arranged
that the term of office of directors of one class shall expire at each
successive annual meeting of stockholders, and in all cases as to each director
until their successor shall be elected and shall qualify, or until his earlier
resignation, removal from office, death or incapacity. At each annual meeting of
stockholders after the first annual meeting, the number of directors equal to
the number of directors of the class whose term expires at the time of such
meeting (or such greater or lesser number as would be required by an increase or
decrease in the size of the Board of Directors) shall be elected to hold office
until the third succeeding annual meeting of stockholders after their election.
This Article FOURTH may not be amended or repealed without the affirmative vote
of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of
the shares entitled to vote thereon.
B.
Special meetings of stockholders of the Corporation may be called by the
Chairman of the Board or the President or by the Board of Directors acting
pursuant to a resolution adopted by a majority of the Whole Board. For purposes
of these Amended and Restated Articles of Incorporation, the term "Whole Board"
shall mean the total number of authorized directors whether or not there exists
any vacancies in previously authorized directorships.
FIFTH: A.
The total number of shares of all classes of stock which the Corporation shall
have authority to issue is Two Hundred and Ninety million (290,000,000),
consisting of Two Hundred and Fifty million (250,000,000) shares of common
stock, par value one-tenth of one cent ($0.001) per share (the "Common Stock")
and Forty million (40,000,000) shares of preferred stock, par value one-tenth of
one cent ($0.001) per share (the "Preferred Stock").
B. COMMON
STOCK. The shares of Common Stock shall have no pre-emptive or preferential
rights of subscription concerning further issuance or authorization of any
securities of the Corporation. Each share of Common Stock shall entitle the
holder thereof to one vote, in person or by proxy. The holders of the Common
Stock shall be entitled to receive dividends if, as and when declared by the
Board of Directors.
The
Common Stock may be issued from time to time in one or more series and shall
have such other relative, participant, optional or special rights,
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions providing for the issuance of such
Common Stock from time to time adopted by the Board of Directors pursuant to
authority to adopt which is hereby vested in the Board of
Directors.
C.
PREFERRED STOCK. The Preferred Stock may be issued from time to time in one or
more series and (a) may have such voting powers, full or limited, or may be
without voting powers; (b) may be subject to redemption at such time or times
and at such prices; (c) may be entitled to receive dividends (which may be
cumulative or non-cumulative) at such rate or rates, on such conditions, and at
such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or series of stock; (d) may have such
rights upon the dissolution of, or upon any distribution of the assets of, the
Corporation; (e) may be made convertible into, or exchangeable for, shares of
any other class or classes or of any other series of the same or any other class
or classes of stock of the Corporation, at such price or prices or at such rates
of exchange, and with such adjustments and (f) shall have such other relative,
participating, optional or special rights, qualifications, limitations or
restrictions thereof as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issuance of such Preferred Stock
from time to time adopted by the Board of Directors pursuant to authority so to
do which is hereby vested in the Board of Directors.
At any
time from time to time when authorized by resolution of the Board of Directors
and without any action by its stockholders, the Corporation may issue or sell
any shares of its stock of any class or series, whether out of the unissued
shares thereof authorized by these Amended and Restated Articles of
Incorporation, or out of shares of its stock acquired by it after the issue
thereof, and whether or not the shares thereof so issued or sold shall confer
upon the holders thereof the right to exchange or convert such shares for or
into other shares of stock of the Corporation of any class or classes or any
series thereof. When similarly authorized, but without any action by its
stockholders, the Corporation may issue or grant rights, warrants or options, in
bearer or registered or such other form as the Board of Directors may determine,
for the purchase of shares of the stock of any class or series of the
Corporation within such period of time, or without limit as to time, of such
aggregate number of shares, and at such price per share, as the Board of
Directors may determine. Such rights, warrants or options may be issued or
granted separately or in connection with the issue of any bonds, debentures,
notes, obligations or other evidences of indebtedness or shares of the stock of
any class or series of the Corporation and for such consideration and on such
terms and conditions as the Board of Directors, in its sole discretion, may
determine. In each case, the consideration to be received by the Corporation for
any such shares so issued or sold shall be such as shall be fixed from time to
time by the Board of Directors.
D. The
capital stock, after the amount of the subscription price, or par value, has
been paid in, shall not be subject to assessment.
E. No
holder of shares of stock of the Corporation shall be entitled as of right to
purchase or subscribe for any part of any unissued stock of this Corporation or
of any new or additional authorized stock of the Corporation of any class
whatsoever, or of any issue of securities of the Corporation convertible into
stock, whether such stock or securities be issued for money or for a
consideration other than money or by way of dividend, but any such unissued
stock or such new or additional authorized stock or such securities convertible
into stock may be issued and disposed of to such persons, firms, corporations
and associations, and upon such terms as may be deemed advisable by the Board of
Directors without offering to stockholders of record or any class of
stockholders upon the same terms or upon any terms.
SIXTH: A.
The number of directors shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the Whole
Board.
B. Newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall, unless otherwise provided by law or by resolution of the Board of
Directors, be filled only by a majority vote of the directors then in office,
though less than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been chosen expires. No decrease in the authorized
number of directors shall shorten the term of any incumbent
director.
C.
Advance notice of stockholder nominations for the election of directors and of
business to be brought by stockholders before any meeting of the stockholders of
the Corporation shall be given in the manner provided in the By-laws of the
Corporation.
D. Any
directors, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least fifty percent (50%) of the voting power of all of the then-outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. A director may be
removed by the stockholders only at a meeting called for the purpose of removing
the director, and the meeting notice must state that the purpose, or one of the
purposes, of the meeting is removal of the director.
SEVENTH:
The Board of Directors is expressly empowered to adopt, amend or repeal by-laws
of the Corporation. Any adoption, amendment or repeal of the by-laws of the
Corporation by the Board of Directors shall require the approval of a majority
of the Whole Board. The stockholders shall also have power to adopt, amend or
repeal the By-laws of the Corporation; provided, however, that, in addition to
any vote of the holders of any class or series of stock of the Corporation
required by law or by these Amended and Restated Articles of Incorporation, the
affirmative vote of the holders of at least fifty percent (50%) of the voting
power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the by-laws of the Corporation.
EIGHTH:
The Corporation reserves the right to amend or repeal any provision contained in
these Amended and Restated Articles of Incorporation in the manner prescribed by
the laws of the State of Utah and all rights conferred upon stockholders are
granted subject to this reservation.
NINTH: A
director or officer of the Corporation shall have no personal liability to the
Corporation or its stockholders for damages for breach of fiduciary duty as a
director or officer, except for (a) acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (b) the payment of dividends
in violation of the applicable statutes of Utah. If the Utah Revised Business
Corporation Act is amended after approval by the stockholders of this Article
NINTH to authorize corporate action further eliminating or limiting the personal
liability of directors or officers, the liability of a director or officer of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the Utah Revised Business Corporation Act, as so amended from time to time.
No repeal or modification of this Article NINTH by the stockholders shall
adversely affect any right or protection of a director or officer of the
Corporation existing by virtue of this Article NINTH at the time of such repeal
or modification.
TENTH: A.
The Corporation shall indemnify and hold harmless 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, by reason of the fact that he or she is or was or has agreed to
become a director or officer of the Corporation or is serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise or by reason of
actions alleged to have been taken or omitted in such capacity or in any other
capacity while serving as a director or officer. The indemnification of
directors and officers by the Corporation shall be to the fullest extent
authorized or permitted by applicable law, as such law exists or may hereafter
be amended (but only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior to the
amendment). The indemnification of directors and officers shall be against all
loss, liability and expense (including attorneys fees, costs, damages,
judgments, fines, amounts paid in settlement and ERISA excise taxes or
penalties) actually and reasonably incurred by or on behalf of a director or
officer in connection with such action, suit or proceeding, including any
appeal; provided, however, that with respect to any action, suit or proceeding
initiated by a director or officer, the Corporation shall indemnify such
director or officer only if the action, suit or proceeding was authorized by the
Board of Directors of the Corporation, except with respect to a suit for the
enforcement of rights to indemnification or advancement of expenses in
accordance with Section C below.
B. The
expenses of directors and officers incurred as a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative shall be paid by the Corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding; provided, however, that if applicable law so requires, the advance
payment of expenses shall be made only upon receipt by the Corporation of (i)
written affirmation by or on behalf of the director or officer of his good faith
belief that he has met the applicable standard of conduct for indemnification
and (ii) an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it is ultimately determined by a final
decision, order or decree of a court of competent jurisdiction that the director
or officer is not entitled to be indemnified for such expenses under this
Article TENTH. Further, before expenses may be advanced to a director or officer
a determination must be made by the party making a determination under Section H
of this Article TENTH that the facts known to those making the determination
would not preclude indemnification.
C. Any
director or officer may enforce his or her rights to indemnification or advance
payments for expenses in a suit brought against the Corporation if his or her
request for indemnification or advance payments for expenses is wholly or
partially refused by the Corporation or if there is no determination with
respect to such request within 60 days from receipt by the Corporation of a
written notice from the director or officer for such a determination. If a
director or officer is successful in establishing in a suit his or her
entitlement to receive or recover an advancement of expenses or a right to
indemnification, in whole or in part, he or she shall also be indemnified by the
Corporation for costs and expenses incurred in such suit. It shall be a defense
to any such suit (other than a suit brought to enforce a claim for the
advancement of expenses under Section B of this Article TENTH where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in the Utah Revised Business
Corporation Act. Neither the failure of the Corporation to have made a
determination prior to the commencement of such suit that indemnification of the
director or officer is proper in the circumstances because the director or
officer has met the applicable standard of conduct nor a determination by the
Corporation that the director or officer has not met such applicable standard of
conduct shall be a defense to the suit or create a presumption that the director
or officer has not met the applicable standard of conduct. In a suit brought by
a director or officer to enforce a right under this Section C or by the
Corporation to recover and advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that a director or officer is not entitled to
be indemnified or is not entitled to an advancement of expenses under this
Section C or otherwise, shall be on the Corporation.
D. The
right to indemnification and to the payment of expenses as they are incurred and
in advance of the final disposition of the action, suit or proceeding shall not
be exclusive of any other right to which a person may be entitled under these
Amended and Restated Articles of Incorporation or any by-law, agreement,
statute, vote of stockholders or disinterested directors or otherwise. The right
to indemnification under Section A above shall continue for a person who has
ceased to be a director or officer and shall inure to the benefit of his or her
heirs, next of kin, executors, administrators and legal
representatives.
E. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any loss,
liability or expense, whether or not the Corporation would have the power to
indemnify such person against such loss, liability or expense under the Utah
Revised Business Corporation Act.
F. The
Corporation shall not be obligated to reimburse the amount of any settlement
unless it has agreed to such settlement. If any person shall unreasonably fail
to enter into a settlement of any action, suit or proceeding within the scope of
Section A above, offered or assented to by the opposing party or parties and
which is acceptable to the Corporation, then, notwithstanding any other
provision of this Article TENTH, the indemnification obligation of the
Corporation in connection with such action, suit or proceeding shall be limited
to the total of the amount at which settlement could have been made and the
expenses incurred by such person prior to the time the settlement could
reasonably have been effected.
G. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation or to any director, officer, employee
or agent of any of its subsidiaries to the fullest extent of the provisions of
this Article TENTH subject to the imposition of any conditions or limitations as
the Board of Directors of the Corporation may deem necessary or
appropriate.
H. The
Corporation may not indemnify a director or officer or advance expenses under
this Article TENTH unless authorized and a determination has been made in the
specific case that indemnification is permissible in the circumstances because
the director or officer has met the applicable standard of conduct set forth in
the Utah Revised Business Corporation Act. The determination required by this
Section H of Article TENTH shall be made (i) by the board of directors by a
majority vote of those present at a meeting at which a quorum is present, and
only those directors not parties to the proceeding shall be counted in
satisfying the quorum, or (ii) if a quorum cannot be obtained, by a majority
vote of a committee of the board of directors designated by the board of
directors, which committee shall consist of two or more directors not parties to
the proceeding, except that directors who are parties to the proceeding may
participate in the designation of directors for the committee or (iii) by
special legal counsel: (a) selected by the board of directors or its committee
in the manner prescribed in Subsection (i) or (ii); or (b) if a quorum of the
board of directors cannot be obtained under Subsection (i) and a committee
cannot be designated under Subsection (ii), selected by a majority vote of the
full board of directors, in which directors who are parties to the proceeding
may participate; or (iv) by the stockholders, by a majority of the votes
entitled to be cast by holders of qualified shares present in person or by proxy
at a meeting.
ELEVENTH:
In the event of a conflict between the terms of these Amended and Restated
Articles of Incorporation and the By-Laws of the Corporation, the terms and
provisions of these Amended and Restated Articles of Incorporation shall
govern.
THREE:
The foregoing amendment and restatement of the Articles of Incorporation has
been approved by the Board of Directors of the Corporation on May 5,
2008.
FOUR: The
foregoing amendment and restatement was approved by the holders of the requisite
number of shares of the Corporation in accordance the Utah Revised Business
Corporation Act on May 5, 2008. The total number of outstanding shares entitled
to vote with respect to the foregoing amendment and restatement of the Amended
and Restated Articles of Incorporation, as amended, was 13,074,075 shares of
Common Stock. The number of shares voting in favor of the foregoing amendment
and restatement of the Amended and Restated Articles of Incorporation, as
amended, was 10,000,000, which equaled or exceeded the vote required, such
required vote being a majority of the outstanding shares of Common Stock, or
where required more than 66 2/3% of the issued and outstanding shares of Common
Stock.
WE, THE
UNDERSIGNED, being the members of the Board of Directors of the Corporation, for
the purpose of adopting these Amended and Restated Articles of Incorporation
under the laws of the State of Utah do make, file and record these Amended and
Restated Articles of Incorporation, do certify that the facts herein stated are
true, and, accordingly, have hereto set our hand and seal this 5th day of May,
2008.
By: /s/
Scott Gallagher
Name:
Scott Gallagher
Title:
Chairman of the Board of Directors, Chief Executive Officer
By: /s/
David Rasmussen
Name:
David Rasmussen
Title:
Director
By: /s/
W. Scott McBride
Name: W.
Scott McBride
Title:
Director
The
undersigned hereby accepts appointment as the Registered Agent of the
Corporation.
STANDARD
REGISTRAR AND TRANSFER COMPANY, INC.
By:
Name:
Title: