Attached files
| file | filename |
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| 8-K - Conmed Healthcare Management, Inc. | v186767_8k.htm |
| EX-3.1 - Conmed Healthcare Management, Inc. | v186767_ex3-1.htm |
Exhibit
3.2
SECOND
AMENDED AND RESTATED BYLAWS
OF
CONMED
HEALTHCARE MANAGEMENT, INC.
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
ARTICLE
I
OFFICES
AND RECORDS
Section
1.1. DELAWARE OFFICE. The principalregistered
office of CONMED HEALTHCARE MANAGEMENT, INC. (the "Corporation") in the State of
Delaware shall be located in the City of Dover, County of Kent, and the name and
address of its registered agent is National Registered Agents, Inc., 9 East
Loockerman Street160
Greentree Drive, Suite 1B,101,
Dover, Delaware.
19904.
Section
1.2. OTHER OFFICES. The Corporation may have such other offices, either within
or without the State of Delaware, as the Board of Directors may designate or as
the business of the Corporation may from time to time require.
Section
1.3. BOOKS AND RECORDS. The books and records of the Corporation may be kept at
the Corporation's headquarters or at such other locations outside the State of
Delaware as may from time to time be designated by the Board of Directors. The
Corporation shall maintain appropriate accounting records and shall keep as
permanent records minutes of all meetings of its stockholders and Board of
Directors, a record of all actions taken by the Board of Directors without a
meeting and a record of all actions taken by a committee of the Board of
Directors. In addition, the Corporation shall keep
at its registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders, giving the names and
addresses of all stockholders in alphabetical order by class of shares showing
the number and class of the shares held by each. Any books, records and minutes
may be in written form or any other form capable of being converted into written
form within a reasonable time.
ARTICLE
II
STOCKHOLDERS
Section
2.1. ANNUAL MEETINGS. An annual meeting of stockholders shall be held for the
election of directors at such date, time and place, either within or without the
State of Delaware, as may be designated by resolution of the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
Section
2.2. SPECIAL MEETINGS. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Chairman of the Board, the Chief
Executive Officer or a majority of the members of the Board of
Directors. The
only business which may be conducted at a special meeting shall be the matter or
matters set forth in the notice of such meeting.
Section
2.3. NOTICE OF MEETINGS. Whenever stockholders are required or permitted to take
any action at a meeting, a written notice of the meeting shall be given that
shall state the place, date
and,
hour of the meeting, means of
remote communication, if any, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise provided
by law, the Certificate of Incorporation or these Bylaws, the written notice of
any meeting shall be given not less than ten or more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his or her address
as it appears on the records of the Corporation.
Section
2.4. ADJOURNMENTS. Any meeting of stockholders, annual or special, may adjourn
from time to time to reconvene at the same or some other place, and notice need
not be given of any such adjourned meeting if the time and place thereof isare
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section
2.5. QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, at each meeting of stockholders the presence in
person or by proxy of the holders of shares of stock having a majority of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. In the absence of a quorum, the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 2.4 of these Bylaws until a quorum shall attend. Shares of its own stock
belonging to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity. A
quorum, once established, shall not be broken by the subsequent withdrawal of
enough votes to leave less than a quorum.
Section
2.6. ORGANIZATION. Meetings of stockholders shall be presided over by the
Chairman of the Board, or in his or her absence by the PresidentChief
Executive Officer, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section
2.7. VOTING.
(a)
Except as otherwise provided by law, the Certificate of Incorporation, or these
Bylaws, any corporate action, other than the election of Directors, the
affirmative vote of the majority of shares entitled to vote on that matter and
represented either in person or by proxy at a meeting of stockholders at which a
quorum is present shall be the act of the stockholders of the
Corporation.
(b)
Unless otherwise provided for in the Certificate of Incorporation of the
Corporation, Directors will be elected by a plurality of the votes cast by the
shares, present in person or by proxy, entitled to vote in the election at a
meeting at which a quorum is present and each stockholder entitled to vote has
the right to vote the number of shares owned by him or her for as many persons
as there are Directors to be elected. The
Board of Directors may at any time amend this provision to reduce the number of
votes cast for the election of a director to a plurality of the votes cast in
the manner provided immediately above.
(c)
Except as otherwise provided by statute, the Certificate of Incorporation, or
these Bylaws, at each meeting of stockholders, each stockholder of the
Corporation entitled to vote thereat, shall be entitled to one vote for each
share registered in his or her name on the books of the
Corporation.
Section
2.8 PROXIES. Each stockholder entitled to vote or to express consent or
dissent to
corporate action in writing without a meeting, may do so either in person
or by proxy, so long as such proxy is executed in writing by the stockholder
himself or herself, or by his or her attorney-in-fact thereunto duly authorized
in writing. Every proxy shall be revocable at will unless the proxy
conspicuously states that it is irrevocable and the proxy is coupled with an
interest sufficient
in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by delivering to the Secretary of the Corporation a revocation of the proxy or a
new proxy bearing a later date. A telegram, telex, cablegram, or similar
transmission by the stockholder, or as a photographic, photostatic, facsimile,
shall be treated as a valid proxy, and treated as a substitution of the original
proxy, so long as such transmission is a complete reproduction executed by the
stockholder. No proxy shall be valid after the expiration of three years from
the date of its execution, unless otherwise provided in the proxy. Such
instrument shall be exhibited to the Secretary at the meeting and shall be filed
with the records of the Corporation.
Section
2.9 ACTION WITHOUT A MEETING. Unless otherwise provided for in the Certificate
of Incorporation of the Corporation, any action to be taken at any annual or
special stockholders' meeting, may be taken without a meeting, without prior
notice and without a vote if a written consent or consents is/are signed by the
stockholders of the Corporation having not less than the minimum number of votes
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereat were present and voted is delivered by hand or by
certified or registered mail, return receipt requested, to the Corporation to
its principal place of business or an officer or agent of the Corporation having
custody of the books in which proceedings of stockholders' meetings are
recorded.
Section
2.10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (ia) in
the case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law,
not be more than sixty nor less than ten days before the date of such meeting
and (iib) in
the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed: (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held and (ii) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date
for
the determination of stockholders entitled to vote at the adjourned meeting and
in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for
the determination of stockholders entitled to vote therewith at the
adjourned meeting.
Section
2.11. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, at the
principal place of business of the Corporation for a period of at least
ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. TheExcept as
provided by applicable law, the stock ledger shall be the only evidence
as to whichwho are
the stockholders
are entitled to examine the stock ledger, the list of stockholders or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section
2.12. CONDUCT OF MEETINGS. The Board of Directors of the Corporation may adopt
by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. The
Secretary or, in his or her absence or inability to act, the person
whom the
chairman of the meeting shall
appoint secretary of the meeting, shall act as secretary of the meeting and keep
the minutes thereof. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors, the chairman of
any meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the
meeting. Such rules,
regulations or procedures whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless
and to the extent determined by the Board of Directors or the
chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
Section
2.13. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The Board of
Directors by resolution may appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives of the Corporation, to act at the meeting and make a written
report thereof. OneThe Board of
Directors may designate one or more persons may be
designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate has been appointed to act, or if all
inspectors or alternates who have been appointed are unable to act, at a meeting
of stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by the General
Corporation Law of the State of Delaware. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. The chairman of the
meeting shall fix and announce at the meeting the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting.
ARTICLE
III
BOARD OF
DIRECTORS
Section
3.1. GENERAL POWERS. The business and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these Bylaws expressly conferred upon them, the Board
of Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law, by the Certificate of Incorporation or
by these Bylaws required to be exercised or done by the
stockholders.
Section
3.2. NUMBER; QUALIFICATIONS. The Board of Directors need not
be composed of a particular number of members nor must such number be within any
particular range, unless the Certificate of Incorporation, an amendment to these
Bylaws or the Board of Directors shall otherwise provide. The number of
Directors shall until such time, if ever,shall
consist of one or more members, the number thereof to be determined from
time to time by resolution of the Board of Directors. Directors need not
be stockholders or residents of the State of Delaware.
Section
3.3. ELECTION, RESIGNATION. The first Board of Directors shall hold office until
the first annual meeting of stockholders and until their successors have been
duly elected and qualified or until there is a decrease in the number of
Directors. Thereafter, each Director will be elected at the annual meeting of
stockholders and shall hold office until the annual meeting of the stockholders
next succeeding his or her election, or until his or her prior death,
resignation or removal. Any Director may resign at any time upon written notice
or by
electronic transmission to the Board of Directors, the PresidentChief
Executive Officer or the Secretary of the Corporation. Such resignation
shall be effective upon receipt unless the notice specifies a later time for
that resignation to become effective.
Section
3.4. VACANCIES. Any newly created directorship resulting from an increase in the
authorized number of Directors or any vacancy occurring in the Board of
Directors by reason of death, resignation, retirement, disqualification, removal
from office or any other cause may be filled by the affirmative vote of the
remaining members of the Board of Directors, though less than a quorum of the
Board of Directors, and each Director so elected shall hold office until the
expiration of the term of office of the Director whom he or she has replaced or
until his or her successor is duly
elected and qualified or the
earlier of such Director’s death, resignation or removal. If there are no
Directors in office, then an election of Directors may be held in the manner
provided by statute. No decrease in the number of Directors constituting the
whole Board shall shorten the term of any incumbent Director.
Section
3.5. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at
such places within or without the State of Delaware and at such times as the
Board of Directors may from time to time determine, and if so determined notices
thereof need not be given.
Section
3.6. SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at
any time or place within or without the State of Delaware whenever called by the
Chairman of the Board, the PresidentChief
Executive Officer, the Secretary, or by the written
request of any two members of the Board of Directors. Notice of the date,
time and place of a special meeting of the Board of Directors shall be delivered
by the person or persons calling the meeting personally, by electronic
transmission, facsimile or by telephone to each Director or sent by
first-class mail or telegram, charges prepaid, addressed to each Director at
that Directors' address as it is shown on the records of the Corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
days before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or telegraph, it shall be delivered at least
forty-eight hours before the time of the holding of the special meeting. If by
facsimile or
electronic transmission, such notice shall be transmitted at least
twenty-four hours before the time of holding of the special meeting. Any oral
notice given personally or by telephone may be communicated either to the
Director or to a person at the office of the Director who the person giving the
notice has reason to believe will promptly communicate it to the Director. The
notice need not specify the purpose or purposes of the special meeting or the
place of the special meeting, if the meeting is to be held at the principal
office of the Corporation.
Section
3.7. TELEPHONIC MEETINGS PERMITTED. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting
thereof by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this BylawSection
3.7 shall constitute presence in person at such meeting.
Section
3.8. QUORUM; VOTE REQUIRED FOR ACTION; ADJOURNMENT. At all meetings of the Board
of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the Certificate
of Incorporation or these Bylaws otherwise provide, the vote of a majority of
the Directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. A majority of the Directors present, whether or not a
quorum, may adjourn any meeting to another time and place. Notice
oftheof
the time and place of holding an adjourned meeting need not be given
unless the meeting is adjourned for more than twenty-four hours. If the meeting
is adjourned for more than twenty-four hours, then notice of the time and place
of the adjourned meeting shall be given to the Directors who were not present at
the time of the adjournment in the manner specified in Section 3.6.
Section
3.9. ORGANIZATION. Meetings of the Board of Directors shall be presided over by
the Chairman of the Board, or in his or her absence by a chairman chosen at the
meeting by the
Board of Directors. The Secretary shall act as secretary of the meeting,
but in his or her absence the chairman of the meeting may appoint any person to
act as secretary of the meeting.
Section
3.10. INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board of Directors
or such committee, as the case may be, consent thereto in writing or
electronic transmission, and the writing or writings or
electronic transmissions are filed with the minutes of proceedings of the
Board of Directors or such committee in
accordance with applicable law.
Section
3.11. FEES AND COMPENSATION OF DIRECTORS. Directors and members of committees
may receive such compensation, if any, for their services and such reimbursement
of expenses as may be fixed or determined by resolution of the Board of
Directors. This Section 3.11 shall not be construed to preclude any Director
from serving the Corporation in any other capacity as an officer, agent,
employee or otherwise and receiving compensation for those
services.
Section
3.12 REMOVAL. One or more or all the Directors of the Corporation may be
removed, at any time, with ouror
without cause, by a majority vote of the stockholders then
entitled to vote at an election of directors, provided however that such
Director shall not be removed if the Certificate of Incorporation or Bylaws
provides that its Directors shall be elected by cumulative voting and there are
a sufficient number of shares cast against his or her removal, which if
cumulatively voted at an election of Directors would be sufficient to elect him
or her.
ARTICLE
IV
COMMITTEES
Section
4.1. COMMITTEES. The Board of Directors may designate from among its members one
or more standing or special committees, each committee to consist of one or more
of the Directors of the Corporation. The Board of Directors may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
she or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in place of any such absent or
disqualified member. Any such committee, to the extent permitted by law and to
the extent provided in the resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Unless
the Board of Directors provides otherwise, at all meetings of any committee, a
majority of the then authorized members of the committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members of the committee present at any meeting at which there is a quorum shall
be the act of the committee.
Section
4.2. COMMITTEE RULES. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules
for the conduct of its business. In the absence of such rules each committee
shall conduct its business in the same manner as the Board of Directors conducts
its business pursuant to Article III of these Bylaws.
Section
4.3. MINUTES OF MEETINGS. All committees appointed in accordance with Section
4.1 shall keep regular minutes of their meetings and shall cause them to be
recorded in books kept for that purpose in the office of the
Corporation.
ARTICLE
V
OFFICERS
Section
5.1. DESIGNATIONS. The officers of the Corporation shall be appointed by
the Board of Directors and shall include a Chairman of the Board (who must
be a director), a Chief Executive Officer, a President, a Secretary,
a
Chief Financial Officer and, at the discretion of the Board of Directors,
one or more Directors
and one or more Vice-
Presidents (one or more of whom may be ExecutiveSenior
Vice-
Presidents). The
Board of Directors shall appoint all, Assistant
Secretaries and other officers. Any two or more offices may be held by
the same individual.
Section
5.2. APPOINTMENT AND TERM OF OFFICE. The officers of the Corporation shall be
appointed annually by the Board of Directors at the first meeting of the Board
of Directors held after each annual meeting of the stockholders. Each officer
shall hold office until a successor shall have been appointed and qualified, or
until such officer's earlier death, resignation or removal.
Section
5.3. POWERS AND DUTIES. If the Board appoints persons to fill the following
positions, such officers shall have the power and duties set forth
below:
(a) THE
CHAIRMAN: The Chairman shall have general control and management of the Board of
Directors and may also be the PresidentChief
Executive Officer of the Corporation. He or she shall preside at all
meetings of the Board of Directors at which he or she is present. He or she
shall have such other powers and perform such other duties as from time to time
may be conferred or imposed upon him or her by the Board of
Directors.
(b) THE
PRESIDENTCHIEF
EXECUTIVE OFFICER: The PresidentChief
Executive Officer of the Corporation shall be generally responsible for
the proper conduct and the day to day operations of the business of the
Corporation. He or she shall possess power to sign all certificates, contracts
and other instruments of the Corporation. In the absence of the Chairman, he or
she shall preside at all meetings of the stockholders. He or she shall perform
all such other duties as are incident to his or her office or are properly
required of him or her by the Board of Directors. The
Chief Executive Officer may,
but need not, also hold the office of President.
(c) CHIEF
FINANCIAL OFFICER: The Chief Financial Officer shall keep or cause to be kept
adequate and correct books and records of accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings,
and shares. The books of account shall at all reasonable times be open to
inspection by any Director. The Chief Financial Officer shall (1) deposit
corporate funds and other valuables in the Corporation's name and to its credit
with depositories designated by the Board of Directors; (2) make disbursements
of corporate funds as authorized by the Board of Directors; (3) render a
statement of the corporation's financial condition and an account of all
transactions conducted as chief financial officer whenever requested by the
PresidentChief
Executive Officer or the Board of Directors; and (4) have other powers
and perform other duties as prescribed by the PresidentChief
Executive Officer or the Board of Directors or the Bylaws. Unless the
board of directors has elected a separate Treasurer, the Chief Financial Officer
shall be deemed to be the treasurer for purposes of giving any reports or
executing any certificates or other documents.
(d) THE
PRESIDENT: The President of the Corporation shall have such powers
and discharge such duties as may be assigned to him or her from time to time by
the Chief Executive Officer or the Board of Directors. In the
event the Board of Directors has not appointed a Chief Executive Officer, the
President shall be the chief
executive officer of the
Corporation.
(e)
VICE PRESIDENT: Each Vice-
President shall have such powers and discharge such duties as may be assigned to
him or her from time to time by the PresidentChief
Executive Officer or the Board of Directors.
(ef)
SECRETARY AND ASSISTANT SECRETARIES: The Secretary shall issue notices for all
meetings, shall keep minutes of all meetings, shall have charge of the seal and
the corporate books, and shall make such reports and perform such other duties
as are incident to his or her office, or are properly required of him or her by
the Board of Directors. The Assistant Secretary, if any, or Assistant
Secretaries in order designated by the Board of Directors, shall perform all of
the duties of the Secretary during the absence or disability of the Secretary,
and at other times may perform such duties as are directed by the PresidentChief
Executive Officer or the Board of Directors.
Section
5.4. DELEGATION. In the case of the absence or inability to act of any officer
of the Corporation and of any person herein authorized to act in such officer's
place, the Board of Directors may from time to time delegate the powers or
duties of such officer to any other officer or any Director or other person whom
it may in its sole discretion select.
Section
5.5. VACANCIES. Vacancies in any office arising from any cause may be filled by
the Board of Directors at any regular or special meeting of the Board. The
appointee shall hold office for the unexpired term and until his or her
successor is duly elected and qualified.
Section
5.6. OTHER OFFICERS. The Board of Directors, or a duly appointed officer to whom
such authority has been delegated by Board resolution, may appoint such other
officers and agents as it shall deem necessary or expedient, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of
Directors.
Section
5.7. RESIGNATION. An officer may resign at any time by delivering notice to the
Corporation. Such notice shall be effective when delivered unless the notice
specifies a later effective date. Any such resignation shall not affect the
Corporation's contract rights, if any, with the officer.
Section
5.8. REMOVAL. Any officer elected or appointed by the Board of Directors may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the whole Board of Directors, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Section
5.9. BONDS. The Board of Directors may, by resolution, require any
and all of the officers to give bonds to the Corporation, with sufficient surety
or sureties, conditioned for the faithful performance of the duties of their
respective offices, and to comply with such other conditions as may from time to
time be required by the Board of Directors.
ARTICLE
VI
STOCK
Section
6.1. ISSUANCE OF SHARES. No shares of the Corporation shall be issued unless
authorized by the Board of Directors or a duly constituted committee thereof.
Such authorization shall include the number of shares to be issued, the
consideration to be received and a statement regarding the adequacy of the
consideration.
Section
6.2. CERTIFICATES. The shares of the Corporation shall be represented by
certificates or shall be uncertificated shares, however, every holder of stock
shall be entitled to have a certificate signed by or in the name of the
Corporation by the Chairman of the Board of Directors, if any, or the PresidentChief
Executive Officer or a Vice President, and the Secretary or an Assistant
Secretary, of the Corporation certifying the number of shares owned by him or
her in the Corporation. Any of or all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section
6.3. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW CERTIFICATES.
The Corporation may issue a new certificate or
uncertificated shares of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or his or her legal representative, to give the Corporation indemnification or a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or
uncertificated shares.
Section
6.4. TRANSFERS OF STOCK.
(a)
Transfers of stock shall be made only upon the stock transfer records of the
Corporation, which records shall be kept at the registered office of the
Corporation or at its principal place of business, or at the office of its
transfer agent or registrar. The Board of Directors may, by
resolution, open a share register in any state of the United States, and may
employ an agent or agents to keep such register and to record transfers of
shares therein.
(b)
Shares of certificated stock shall be transferred by delivery of the
certificates therefor, accompanied either by an assignment in writing on the
back of the certificates or an assignment separate from the certificate, or by a
written power of attorney to sell, assign and transfer the same, signed by the
holder of said certificate. No shares of certificated stock shall be transferred
on the records of the Corporation until the outstanding certificates therefore
have been surrendered to the Corporation or to its transfer agent or
registrar.
(c)
Shares of uncertificated stock shall be transferred upon the receipt of proper
transfer instructions and compliance with appropriate procedures for
transferring stock in uncertificated form (in each case, with such proof of the
authenticity of signature as the Corporation or its transfer agent may
reasonably require).
Section
6.5. SHARES OF ANOTHER CORPORATION. Shares owned by the Corporation in another
corporation, domestic or foreign, may be voted by such officer, agent or proxy
as the Board of Directors may determine or, in the absence of such
determination, by the PresidentChief
Executive Officer of the Corporation.
ARTICLE
VII
INDEMNIFICATION
Section
7.1. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, 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 of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Notwithstanding the preceding sentence, the Corporation shall be
required to indemnify a person in connection with a proceeding (or part thereof)
initiated by such person only if the proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
Section
7.2. PREPAYMENT OF EXPENSES. The Corporation shall pay the expenses (including
attorneys' fees) incurred in defending any proceeding in advance of its final
disposition; provided, however, that the payment of expenses incurred by a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article VII or
otherwise.
Section
7.3. CLAIMS. If a claim for indemnification or payment of expenses under this
Article VII is not paid in full within sixty days after a written claim therefor
has been received by the Corporation, the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section
7.4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
Article VII shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, these Bylaws, agreement, vote of stockholders or Directors or
otherwise.
Section
7.5. OTHER INDEMNIFICATION. The Corporation's obligation, if any, to indemnify
any person who was or is serving at its request as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, enterprise
or nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit enterprise.
Section
7.6. AMENDMENT OR REPEAL. Any repeal or modification of the foregoing provisions
of this Article VII shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1. FISCAL YEAR. The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.
Section
8.2. SEAL. The corporate seal shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time to time by the
Board of Directors.
Section
8.3. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND COMMITTEES. Any
written waiver of notice, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting was not lawfully called or convened. Any
stockholder so waiving notice of such meeting shall be bound by the proceedings
of any such meeting in all respects as if due notice thereof had been
given. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the stockholders, Directors or
members of a committee of Directors need be specified in any written waiver of
notice.
Section
8.4. INTERESTED DIRECTORS; QUORUM. No contract or transaction between the
Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders. Common or interested Directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
Section
8.5. BOOKS AND
RECORDS. The
Corporation shall maintain appropriate accounting records and shall keep as
permanent records minutes of all meetings of its stockholders and Board of
Directors, a record of all actions taken by the Board of Directors without a
meeting and a record of all actions taken by a committee of the Board of
Directors. In addition, the corporation shall
keep at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of its stockholders, giving the
names and addresses of all stockholders in alphabetical order by class of shares
showing the number and class of the shares held by each. Any books, records and
minutes may be in written form or any other form capable of being converted into
written form within a reasonable time.Section
8.6. AMENDMENT OF BYLAWS. In furtherance and not in limitation of the
powers conferred upon it by law, the Board of Directors is expressly authorized
to adopt, repeal or amend the Bylaws of the Corporation by the vote of a
majority of the entire Board of Directors. The Bylaws of the Corporation shall
be subject to alteration or repeal, and new Bylaws may be made, by a majority
vote of the stockholders at the time entitled to vote in the election of
Directors even though these Bylaws may also be altered, amended or repealed by
the Board of Directors.