BYLAWS
OF
CHARTER MEDICAL CORPORATION
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the City of Macon, State of Georgia, at such place
as may be fixed from time to time by the Board of Directors, or at such other
place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting. Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the last
Thursday of January if not a legal holiday, and if a legal holiday then on the
next secular day following, at 11:00 A.M., or at such other date and time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting, at which the stockholders shall elect members of
the Board of Directors and transact such other business as may properly be
brought before the meeting. Election of directors need not be by written
ballot.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, or cause to be prepared and made, 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, 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.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called only by the affirmative vote of a majority of the
Board of Directors.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the shares of all classes of
stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Except as provided in Section 3 of Article III of these
Bylaws, or unless the question is one upon which, by express provision of
statute or the certificate of incorporation, a different vote is required in
which case such express provision shall govern and control the decision of
such question, (1) when a quorum is present at any meeting of stockholders,
the vote of the holders of a majority of the voting power of the shares of all
classes of stock having voting power present in person or represented by proxy
shall decide any question brought before such meeting, and (2) in voting on
such questions, every stockholder of record who is entitled to vote shall be
entitled to one vote for each share of stock held by him on the record date
for such meeting.
Section 10. Except as otherwise provided by law or by the certificate of
incorporation, the holders of shares of all classes of stock shall have the
right to vote, in person or by proxy, together on all matters to come before a
meeting of the stockholders.
Section 11. No proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the
corporation generally. In the event that any proxy shall designate two or more
persons to act as proxies, a majority of such persons present at the meeting,
or if only one be present that one, shall have all of the powers conferred by
the proxy upon all of the persons so designated unless the proxy shall
otherwise provide.
Section 12. The stockholders may not take any actions required to be
taken at an annual or special meeting of the stockholders, or any actions
which may be taken at an annual meeting or special meeting of the
stockholders, by written consent in lieu of a meeting.
Section 13. The Board of Directors, in advance of any meeting of the
stockholders of the Corporation, shall appoint one or more inspectors of
elections to act at such meeting, and any adjournment thereof. In case any
person who has been designated as an inspector of elections fails to appear or
act, the vacancy may be filled by an alternate appointed by the Board, in
advance of the meeting, or at the meeting by the person presiding thereat. An
inspector, before entering upon discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability. The inspector or inspectors so
appointed shall perform the duties required by Section 231 of the Delaware
General Corporation Law.
Section 14. The Chairman of the Board of Directors, or in his absence
the President, shall serve as Chairman of every stockholders' meeting unless
some other person is elected to serve as Chairman by a majority vote of the
voting power of the shares represented at the meeting. The Chairman shall
appoint the Secretary of the corporation, or in his absence an Assistant
Secretary, as Secretary of every stockholders' meeting and such other persons
as he deems required to assist with the meeting.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
Board shall be eight. A change in the number of directors shall only occur by
an affirmative vote of at least seventy-five percent (75%) of the issued and
outstanding shares of the corporation entitled to vote thereon cast at a
meeting of the stockholders called for such purpose. The Board of Directors
shall be divided into three classes, as nearly equal in numbers as the then
total number of directors constituting the whole Board permits, with the term
of office of one class expiring each year. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Sections 2 and 3
of this Article, and each director elected shall hold office until his
successor is elected and qualifies. Directors need not be stockholders or a
resident of the State of Delaware.
Section 2. Any vacancies in the Board of Directors for any reason, and
any newly created directorships resulting from any increase in the authorized
number of directors, may be filled by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next election of the
respective class or classes for which such directors shall have been chosen
and until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by statute.
Section 3. Notwithstanding any other provision of these Bylaws (and
notwithstanding the fact that some lesser percentage may be specified by law),
any director or the entire Board of Directors of the corporation may be
removed from office at any time, but only (i) for cause by the affirmative
vote of the holders of a majority of the issued and outstanding shares of the
capital stock of the corporation entitled to vote thereon cast at a meeting of
the stockholders called for that purpose, or (ii) without cause by the
affirmative vote of the holders of at least seventy-five percent (75%) of the
issued and outstanding shares of capital stock of the corporation entitled to
vote thereon cast at a meeting of the stockholders called for that purpose.
Section 4. The business of the corporation shall be managed by its Board
of Directors which may exercise all such powers of the corporation and do all
such lawful acts and things as are not by statute or by the certificate of
incorporation or by these Bylaws directed or required to be exercised or done
by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware. The
Board of Directors shall appoint from its members a Chairman of the Board of
Directors who shall preside at all meetings of the stockholders and the Board
of Directors. In the absence of the Chairman of the Board of Directors from a
meeting of the Board of Directors, the Board of Directors shall appoint from
its members, by a majority vote of all directors constituting a quorum,
another director who shall preside at such meeting. The Chairman of the Board
of Directors may but need not be an officer of or employed in an executive or
any other capacity by the corporation.
Section 6. A meeting of the Board of Directors shall be held immediately
following the annual meeting of stockholders at the same place as such annual
meeting or, in the alternative, at such time and place as shall be fixed by
the vote of the stockholders at the annual meeting. No notice of such meeting
shall be necessary, provided a quorum shall be present. In the event such
meeting is not held at the time and place determined under the preceding
sentence, the meeting may be held at such time and place as shall be specified
in a notice given as hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by all of the
directors.
Section 7. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
Section 8. Special meetings of the Board of Directors may be called by
the Chairman of the Board of Directors, the President, or a majority of the
directors then in office (a) by written notice mailed to each director first
class postage prepaid, not later than the fifth day before the meeting, or (b)
by either written or oral notice given personally or by telephone or other
means of electronic communication, in which case the meeting may be held as
soon after such notice is given as a quorum shall be assembled at the place of
the meeting or by telephone conference call, unless another time shall be
specified in the notice.
Section 9. At all meetings of the Board of Directors, a majority of the
directors then in office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 10. 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 or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 11. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting
of the board of directors, or any committee, by means of conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 12. The Board of Directors may, by resolution adopted by a
majority of the whole Board of Directors, appoint three or more of its members
to constitute an Executive Committee which to the extent provided by the Board
of Directors shall have and exercise all of the authority of the Board of
Directors, except as otherwise provided by law, 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. All action taken
by the Executive Committee shall be reported to the Board of Directors at its
first meeting thereafter.
The Board of Directors may also from time to time by resolution passed
by a majority of the whole Board appoint other committees, consisting of one
or more members, from among its members; and such committee or committees
shall have such powers and duties as the Board of Directors may from time to
time prescribe.
Unless otherwise provided by the Board of Directors, a majority of the
members of any committee appointed by the Board of Directors pursuant to this
Section 12 shall constitute a quorum at any meeting thereof and the act of a
majority of the members present at a meeting at which a quorum is present
shall be the act of such committee. Action may be taken by any such committee
without a meeting by a writing as provided in Section 10 of this Article III.
Any such committee shall, subject to any rules prescribed by the Board of
Directors, prescribe its own rules for calling, giving notice of and holding
meetings and its method of procedure at such meetings and shall keep a written
record of all action taken by it.
Section 13. Each committee shall keep regular minutes of its meetings
and periodically report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 14. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated
salary as director or a combination thereof. No such payment shall preclude
any director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed
to such director or stockholder, at his address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given as provided in Section 8 of
Article III.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
Notice of all stockholders' meetings, whether annual or special, shall
be given in writing and may be given by the Chairman of the Board of Directors
or the Secretary (or in case of their refusal, by the person or persons
entitled to call meetings under the provisions of these Bylaws). The notice
shall state the general nature of the business to be transacted at the meeting
and the place, day and hour thereof. If such notice is mailed or telegraphed,
it shall be deemed to have been given when deposited in the United States mail
or with a telegraph office for transmission, as the case may be. If any
meeting is adjourned to another time or place, no notice as to such adjourned
meeting or of the business to be transacted thereat need be given other than
by announcement at the meeting at which such adjournment is given, except as
otherwise expressly provided in Section 8 of Article II.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the Board
of Directors and shall be a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose additional Vice Presidents,
and one or more Assistant Secretaries and Assistant Treasurers.
Section 2. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose a President, one or more Vice Presidents,
a Secretary and a Treasurer, or shall continue the incumbents in office.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary 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 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors or by a duly authorized committee.
Section 5. Each officer of the Corporation shall hold office until the
earliest to occur of (a) his successor is elected and qualifies, (b) death or
retirement of such officer, (c) resignation of such officer or (d) removal of
such officer in the manner provided by these bylaws. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors or, in the case of
all officers except the President, by the President. Any vacancy occurring in
any office of the Corporation and all newly created officer positions shall be
filled by the Board of Directors.
PRESIDENT
Section 6. The President shall be and perform the duties and
responsibilities of the Chief Executive Officer of the corporation and as such
shall have general supervision and control over all the affairs of the
corporation, its officers and employees. The President may, but need not, be
designated the Chief Operating Officer of the corporation. The President shall
report to the Board of Directors regarding the affairs of the corporation and
shall have such other duties and powers as may be assigned to or vested in him
from time to time by the Board of Directors or by the Executive Committee and
as prescribed by these Bylaws.
Section 7. The President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be delegated by the Board of
Directors or the Executive Committee to some other officer or agent of the
corporation.
THE VICE PRESIDENTS
Section 8. The Vice President, or if there shall be more than one the
Vice Presidents, shall perform such duties and have such powers as the Board
of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record or cause to be
recorded all the proceedings of the meetings of the corporation and of the
Board of Directors in a book to be kept for that purpose and shall perform
like duties for the standing committees when required. He shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings
of the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or Chairman of the Board of Directors,
under whose supervision he shall be. He shall have custody of the corporate
seal of the corporation, and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it; when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The Assistant Secretary, or if there be more than one the
Assistant Secretaries in the order determined by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 11. The Treasurer shall have custody of the corporate funds and
securities, shall together with the Controller keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors.
Section 12. The Treasurer and Controller shall disburse the funds of the
corporation as may be ordered by the Board of Directors, and shall render to
the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of the financial condition of the
corporation.
Section 13. The Assistant Treasurer, or if there shall be more than one
the Assistant Treasurers in the order determined by the Board of Directors,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe. Any one or more of the duties of the Treasurer may be delegated by
the Board of Directors to the Controller, an Assistant Treasurer or any other
officer of the corporation.
BONDS
Section 14. If required by the Board of Directors, any officer shall
give the corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
ARTICLE VI
CERTIFICATES FOR SHARES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation, by the
Chairman of the Board of Directors, the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the corporation, certifying the number of shares of capital stock
of the corporation owned by him in the corporation.
Section 2. If the corporation shall be authorized to issue more than one
class of stock, or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class of
stock; provided, however, that, except as otherwise provided in Section 202 of
the General Corporation Law of Delaware, in lieu of the foregoing requirements
there may be set forth on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 3. Where a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) a registrar, the signature of any such officer
may be facsimile. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers of the corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates have been delivered by the corporation, such certificate or
certificates may nevertheless be adopted by the corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the corporation.
LOST CERTIFICATES
Section 4. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost or destroyed.
TRANSFERS OF STOCK
Section 5. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, in each
case with signatures guaranteed, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
FIXING OF RECORD DATE
Section 6. The Board of Directors shall fix in advance a date, not less
than ten nor more than sixty days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining a
consent, as a record date for the determination of the stockholders entitled
to notice of, and to vote at, any such meeting, and any adjournment thereof,
or entitled to receive payment of any such dividend, or to any such allotment
of rights, or to exercise the rights in respect of any such change, conversion
or exchange of capital stock, or to give such consent, and in such case such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to give such consent, as the case
may be, notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
Section 7. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section l. Actions Not By Or In The Right Of The Corporation. The
corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that he is or was a director, officer or employee of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Actions By Or In The Right Of The Corporation. The
corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer or employee of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section 3. Indemnification Where Director or Officer Successfully
Defends Action. To the extent that a director, officer or employee of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections l and 2 of this Article
VII, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. Determinations Required Prior To Indemnification. Except as
provided in Section 3 of this Article VII and except as may be ordered by a
court, any indemnification under Sections 1 and 2 of this Article VII shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer or employee is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 1 and 2 of this Article VII, as the case may be.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
Section 5. Advances. Expenses (including attorney's fees) incurred by an
officer or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article. Such expenses
(including attorney's fees) incurred by other employees may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. General. The indemnification and advancement of expenses
provided by or granted pursuant to these Bylaws shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be or shall become entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to actions in an
official capacity and as to actions in another capacity while holding such
office.
Section 7. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under the certificate of incorporation,
the provisions of these Bylaws or under the provisions of the General
Corporation Law of the State of Delaware.
Section 8. The Corporation. For purposes of this Article VII, references
to "the corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had the power and authority to indemnify its directors,
officers and employees, so that any person who is or was a director, officer
or employee of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VII with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
Section 9. Employee Benefit Plans. For purposes of this Article VII,
references to "other enterprises" shall include employee benefit plans; the
reference to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer or employee with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this Article VII.
Section 10. Continuation. The indemnification and advancement of
expenses provided by, or granted pursuant to, these Bylaws shall continue as
to a person who has ceased to be a director, officer or employee and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 11. Future Amendments. In the event of any amendment or addition
to Section 145 of the General Corporation Law of the State of Delaware or the
addition of any other section of such law with regard to indemnification, the
corporation shall indemnify to the fullest extent authorized or permitted by
such then-existing General Corporation Law of the State of Delaware, as
amended, 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 (including an action by or in
the right of the corporation), by reason of the fact that he is or was a
director, officer or employee of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
Board of Directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interest of the corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting, of the stockholders when called for by vote of the
stockholders a concise statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be determined by the
Board of Directors, and shall be from October 1 through September 30, unless
otherwise determined by the Board of Directors.
SEAL
Section 6. The corporate seal shall be in the form prescribed by the
Board of Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
MISCELLANEOUS
Section 7. Unless otherwise ordered by the Board of Directors, the
President, any Vice President, the Secretary, any Assistant Secretary or the
Treasurer in person or by proxy appointed by any of them shall have full power
and authority on behalf of the corporation to vote, act and consent with
respect to any shares of stock issued by other corporations which the
corporation may own or as to which the corporation has the right to vote, act
or consent.
ARTICLE IX
AMENDMENTS
These Bylaws may be altered or repealed at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if such notice of such alteration or
repeal be contained in the notice of such special meeting. No Bylaw adopted by
vote of the stockholders shall be subject to amendment by the Board of
Directors if such Bylaw so provides. Notwithstanding the foregoing, neither
Sections 5 nor 12 of Article II may be amended, altered, changed or repealed
except by the affirmative vote of the holders of at least seventy-five percent
(75%) of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereon cast at a meeting of the stockholders called for that
purpose.