Exhibit 3.4c
MAXICARE HEALTH PLANS, INC.
BYLAWS
As Amended Through July 31, 1999
TABLE OF CONTENTS
Page
ARTICLE I. OFFICERS............................... 1
Section 1. PRINCIPAL OFFICE....................... 1
Section 2. OTHER OFFICES.......................... 1
ARTICLE II. MEETINGS OF STOCKHOLDERS............... 1
Section 1. PLACE OF MEETINGS...................... 1
Section 2. ANNUAL MEETINGS OF STOCKHOLDERS........ 1
Section 3. SPECIAL MEETINGS....................... 1
Section 4. NOTICE OF STOCKHOLDERS' MEETINGS....... 2
Section 5. MANNER OF GIVING NOTICE;
AFFIDAVIT OF NOTICE.................. 2
Section 6. QUORUM................................. 2
Section 7. ADJOURNED MEETING AND NOTICE THEREOF... 2
Section 8. ORGANIZATION........................... 3
Section 9. VOTING................................. 3
Section 10. WAIVER OF NOTICE OR CONSENT BY ABSENT
STOCKHOLDERS......................... 3
Section 11. RECORD DATE............................ 3
Section 12. PROXIES................................ 4
Section 13. INSPECTORS OF ELECTION................. 4
Section 14. NOTICE OF STOCKHOLDER BUSINESS AND
NOMINATIONS.......................... 5
ARTICLE III. DIRECTORS.............................. 7
Section 1. POWERS................................. 7
Section 2. NUMBERS OF DIRECTORS................... 7
Section 3. RESIGNATIONS; VACANCIES................ 7
Section 4. PLACE OF MEETINGS AND TELEPHONIC
MEETINGS............................. 8
Section 5. ANNUAL MEETINGS........................ 8
Section 6. OTHER REGULAR MEETINGS................. 8
Section 7. SPECIAL MEETINGS....................... 8
Section 8. DISPENSING WITH NOTICE................. 8
Section 9. QUORUM................................. 9
Section 10. ADJOURNMENT............................ 9
Section 11. ACTION WITHOUT MEETING................. 9
Section 12. FEES AND COMPENSATION OF DIRECTORS..... 9
ARTICLE IV. COMMITTEES............................. 9
Section 1. COMMITTEES OF DIRECTORS................ 9
Section 2 MEETINGS AND ACTION OF COMMITTEES...... 10
ARTICLE V. OFFICERS............................... 10
Section 1. OFFICERS............................... 10
Section 2. ELECTION OF OFFICERS................... 10
Section 3. SUBORDINATE OFFICERS, ETC.............. 10
Section 4. REMOVAL AND RESIGNATION OF OFFICERS.... 10
Section 5. VACANCIES IN OFFICES................... 11
Section 6. CHAIRMAN OF THE BOARD.................. 11
Section 7. VICE CHAIRMAN OF THE BOARD............. 11
Section 8. PRESIDENT.............................. 11
Section 9. VICE PRESIDENTS........................ 11
Section 10. SECRETARY.............................. 12
Section 11. TREASURER.............................. 12
ARTICLE VI. RECORDS AND REPORTS.................... 12
Section 1. MAINTENANCE AND INSPECTION OF SHARE
REGISTER............................. 12
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS... 13
Section 3. MAINTENANCE AND INSPECTION OF OTHER
CORPORATE RECORDS.................... 13
Section 4. INSPECTION BY DIRECTORS................ 13
ARTICLE VII. GENERAL CORPORATE MATTERS.............. 13
Section 1. CHECKS, DRAFTS, EVIDENCES OF
INDEBTEDNESS......................... 13
Section 2. CORPORATE CONTRACTS AND INSTRUMENTS; HOW
EXECUTED............................. 13
Section 3. CERTIFICATES FOR SHARES................ 14
Section 4. LOST CERTIFICATES...................... 14
Section 5. TRANSFER OF SHARES..................... 14
Section 6. TRANSFER AND REGISTRY AGENTS........... 15
Section 7. REGULATIONS............................ 15
Section 8. RESTRICTION ON TRANSFER OF STOCK....... 15
Section 9. REPRESENTATION OF SHARES OF OTHER
CORPORATIONS......................... 15
Section 10. DIVIDENDS, SURPLUS, ETC................ 15
ARTICLE VIII. GENERAL................................ 16
Section 1. CONSTRUCTION AND DEFINITIONS........... 16
Section 2. SEAL................................... 16
Section 3. FISCAL YEAR............................ 16
ARTICLE IX. AMENDMENTS............................. 16
Section 1. AMENDMENT BY STOCKHOLDERS.............. 16
Section 2. AMENDMENT BY DIRECTORS................. 17
BYLAWS
OF
MAXICARE HEALTH PLANS, INC.
ARTICLE I.
OFFICERS
Section 1. PRINCIPAL OFFICE. The Board of Directors
shall fix the location of the principal executive office of the
Corporation at any place within or outside the State of Delaware.
Section 2. OTHER OFFICES. The Board of Directors may at
any time establish branch or subordinate offices at any place or
places where the Corporation shall determine.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETING. Meetings of stockholders
shall be held at any place within or outside the State of
Delaware designated by the Board of Directors. In the absence of
any such designation, stockholders' meetings shall be held at the
principal executive office of the Corporation.
Section 2. ANNUAL MEETINGS OF STOCKHOLDERS. The annual
meeting of stockholders shall be held each year on a date and at
a time designated by the Board of Directors. At each annual
meeting directors shall be elected and any other proper business
may be transacted.
Section 3. SPECIAL MEETINGS. A special meeting of the
stockholders may be called at any time for any purpose by the
Board of Directors, the Chairman or Vice-President of the Board,
the President of the Corporation or by a committee of the Board
which has been duly designated by the Board and whose powers and
authority, as provided in a resolution of the Board or in these
Bylaws, include the power to call such meetings, and such special
meetings shall be called by the President of the Corporation at
the request in writing of stockholders owning at least a majority
in amount of the entire capital stock of the Corporation issued
and outstanding and entitled to vote. Such stockholders' request
shall state the purpose or purposes of the proposed meeting.
Business transacted at any special meeting shall be limited to
matters relating to the purpose or purposes stated in the notice
of meeting.
Section 4. NOTICE OF STOCKHOLDERS' MEETINGS. All
notices of meetings of stockholders shall be sent or otherwise
given in accordance with Section 5 of this Article II not less
than ten (10) nor more than sixty (60) days before the date of
the meeting being noticed. The notice shall specify the place,
date and hour of the meeting and in the case of a special
meeting, the purpose(s) for which the meeting is called. The
notice of any meeting at which directors are to be elected shall
include the name of any nominee or nominees.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice of any meeting of stockholders shall be given either
personally or by first-class mail or telegraphic or other written
communication, charges prepaid, addressed to the stockholder at
the address of such stockholder appearing on the books of the
Corporation. If mailed, notice is given when deposited in the
United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the Corporation.
An affidavit of the mailing or other means of giving a
notice of any stockholders' meeting shall be executed by the
Secretary, Assistant Secretary or any transfer agent of the
Corporation giving such notice, and shall be filed and maintained
in the minute books of the Corporation.
Section 6. QUORUM. At all meetings of stockholders,
except as otherwise required by statute or by the Certificate of
Incorporation, the presence in person or by proxy of the holders
of a majority of the shares of stock outstanding and entitled to
vote at any meeting of stockholders shall constitute a quorum for
the transaction of business. The stockholders present at a duly
called or held meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum.
Section 7. ADJOURNED MEETING AND NOTICE THEREOF. Any
stockholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the
majority of the shares represented at such meeting, either in
person or by proxy.
When any meeting, of stockholders, either annual or special,
is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or
unless the adjournment is for more than thirty (30) days from the
date set for the original meeting, in which case the Board or
Directors shall set a new record date. Notice of any such
adjourned meeting, if required, shall be given to each
stockholder of record entitled to vote at the adjourned meeting
in accordance with the provisions of Sections 4 and 5 of this
Article II. At any adjournment meeting the Corporation may
transact any business which might have been transacted at the
original meeting.
Section 8. ORGANIZATION. At every meeting of
stockholders, the President, or in his absence the Chairman or
Vice Chairman of the Board, shall act as chairman of the meeting
and the Secretary shall act as secretary of the meeting. In case
none of the officers designated above to act as chairman or
secretary of the meeting, respectively, shall be present, a
chairman or a secretary of the meeting, as the case may be, may
be chosen by a majority of the votes cast at such meeting by the
holders of shares present in person or represented by proxy and
entitled to vote at the meeting.
Section 9. VOTING. The stockholders entitled to vote at
any meeting of stockholders shall be determined in accordance
with the provisions of Section 11 of this Article II, subject to
the provisions of Section 217 the Delaware General Corporation
Law (relating to voting rights of fiduciaries, pledgors and joint
owners of stock). Any stockholder entitled to vote on any matter
(other than the election of directors) may vote part of the
shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal but, if the
stockholder fails to specify the number of shares such
stockholder is voting affirmatively, it will be conclusively
presumed that the stockholder's approving vote is with respect to
all shares such stockholder is entitled to vote. If a quorum is
present, the affirmative vote of the majority of the shares
represented at the meeting and voting on any matter shall be the
act of the stockholders, unless the vote of a greater number or
voting by classes is required by these Bylaws, the Certificate of
Incorporation or by statute. Directors shall be elected by a
plurality of the votes of the shares represented at the meeting
and entitled to vote on the election of directors. No stockholder
shall be entitled to cumulate votes on any matter at any meeting
of stockholders.
Section 10. WAIVER OF NOTICE OR CONSENT BY ABSENT
STOCKHOLDERS. Whenever notice is required to be given to the
stockholders under any provision of the General Corporation Law
or the Certificate of Incorporation or the Bylaws, a written
waiver thereof, signed by a stockholder entitled to notice,
whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a stockholder at a meeting
shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
Section 11. RECORD DATE. 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 to
express consent to corporate action in writing without a meeting,
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: (1)
in the case of determination of stockholders entitled to vote at
any meeting of stockholders or adjournment thereof, shall not be
more than sixty (60) nor less than ten (10) days before the date
of such meeting; (2) in the case of determination of stockholders
entitled to express consent to corporate action in writing
without a meeting, shall not be more than ten (10) days from the
date upon which the resolution fixing the record date is adopted
by the Board of Directors; and (3) in the case of any such
action, shall not be more than sixty (60) days prior to such
other action. If no record date is fixed: (1) 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; (2) the record
date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior
action of the Board of Directors is required by law shall be the
first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the
Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at
the close of business on the day on which the Board of Directors
adopts the resolution relating to taking such prior action; and
(3) 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 adjourned meeting.
Section 12. PROXIES. Each stockholder entitled to vote at
a meeting of stockholders may authorize another person or persons
to act for him by proxy, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy
provides for a longer period.
Section 13. INSPECTORS OF ELECTION. The Board, in advance
of any meeting of stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the person presiding at such
meeting may, and on the request of any stockholder entitled to
vote thereat shall, appoint one or more inspectors. In case any
person appointed fails to appear or act, the vacancy may be
filled by appointment made by the Board in advance of the meeting
or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according
to the best of his ability. The inspector or inspectors shall
determine the number of shares outstanding and the voting power
of each, the shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive
votes or ballots, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate
all votes or ballots, determine the result, and shall do such
acts as are proper to conduct the election or vote with fairness
to all stockholders. On request of the person presiding at the
meeting or any stockholder entitled to vote thereat, the
inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by him or them and
execute a certificate of any fact found by him or them. Any
report or certificate made by the inspector or inspectors shall
be prima facie evidence or the facts stated and of the vote as
certified by him or them.
Section 14. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETING OF STOCKHOLDERS
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of
meeting delivered pursuant to Section 4 of Article II of these
Bylaws, (b) by or at the direction of the Chairman of the Board
of Directors, or (c) by any stockholder who is entitled to vote
at the meeting, who complied with the notice procedures set forth
in clauses (2) and (3) or this sub-section (A) and this Bylaw and
who was a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
clause (c) of the foregoing subsection (A) (1) of this Bylaw, the
stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than seventy (70)
days nor more than ninety (90) days prior to the first
anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
advanced by more than twenty (20) days or delayed by more than
seventy (70) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than
the ninetieth (90th) day prior to such annual meeting and not
later than the close of business on the later of the seventieth
(70th) day prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of
such meeting is first made. Such stockholder's notice shall set
forth (a) as to each person who the stockholder proposes to
nominate for election or reelection as a director, all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being
named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting
and any material interest in such business of such stockholder
and the beneficial owner, if any on whose behalf the proposal is
made, and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the proposal is made,
(i) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, and (ii)
the class and number of shares of the capital stock of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
subsection (a) (2) of this Bylaw to the contrary, in the event
that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public
announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by
the Corporation at least eight (80) days prior to the first
anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to
the Secretary of the Corporation at the principal executive
offices of the Corporation not later than the close of business
on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS.
As set forth in Section 3 of Article II above, only such
business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to Section
4 of Article II of these Bylaws. Nominations of persons for
election to the Board of Directors shall be made at a special
meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board of Directors, or (b) by any stockholder of
the Corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this Bylaw and
who is a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation. Nominations by
stockholders of person for election to the Board of Directors may
be made at such a special meeting of stockholders if the
stockholder's notice as required by subsection (A) (2) of this
Bylaw shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation no later than
the close of business on the thirtieth (30th) day prior to such
special meeting or, if fewer than thirty (30) days notice of such
meeting is given, no later than the fifth (5th) day following the
day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(C) GENERAL
(1) Only persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as
directors and only such business shall be conducted at a meeting
of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Bylaw. Except
as otherwise provided by law, the Restated Certificate of
Incorporation of the Corporation, as amended, or these Bylaws,
the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the
procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to
declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this Bylaw, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the
Securities Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw,
a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE III.
DIRECTORS
Section 1. POWERS. The Board of Directors shall
exercise all of the powers of the Corporation except such as are
by law, or by the Certificate of Incorporation of the Corporation
or by these Bylaws, conferred upon or reserved to the
stockholders.
Section 2. NUMBER OF DIRECTORS. The number of directors
which shall constitute the Board of Directors of the Corporation
shall initially be nine (9). The number of directors may from
time to time be changed, by resolution of the Board of Directors
or by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote thereon. The directors shall,
except for filling vacancies (whether resulting from an increase
in the number of directors, resignations, removals or otherwise),
be elected at the annual meeting of the stockholders and each
director shall be elected to serve until his successor is elected
and qualifies. Directors need not be stockholders.
Section 3. RESIGNATIONS; VACANCIES. Any director or
member of a committee may resign at any time. Such resignation
shall be made in writing, and shall take effect at the time
specified therein, and if no time be specified, at the time of
its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
Vacancies in the Board of Directors may be filled in the manner
provided in the Certificate of Incorporation. A vacancy or
vacancies in the Board of Directors shall be deemed to exist in
the case of the death, resignation or removal of any director, or
if the authorized number of directors be increased, or if the
stockholders fail, at any meeting of stockholders at which any
director or directors are elected, to elect the full authorized
number of directors to be voted for that meeting.
No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration
of his term of office.
Section 4. PLACE OF MEETING AND TELEPHONIC MEETINGS.
Regular meetings of the Board of Directors may be held at any
place within or without the State of Delaware that has been
designated from time to time by resolution of the Board of
Directors. In the absence of such designation, regular meetings
shall be held at the principal executive office of the
Corporation. Special meetings of the Board of Directors shall be
held at any place within or without the State of Delaware that
has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, at the principal
executive office of the Corporation. Any meeting, regular or
special, may be held by conference, telephone or similar
communication equipment, so long as all directors participating
in such meeting can hear one another, and all such directors
shall be deemed to be present in person at such meeting.
Section 5. ANNUAL MEETINGS. Immediately following each
annual meeting of stockholders, the Board of Directors shall hold
a regular meeting for the purpose of organization, any desired
election of officers and the transaction of other business.
Notice of this meeting shall not be required.
Section 6. OTHER REGULAR MEETINGS. Other regular
meetings of the Board of Directors shall be held without call at
such time as shall from time to time be fixed by the Board of
Directors. Such regular meetings may be held without notice.
Section 7. SPECIAL MEETINGS. Special meetings of the
Board of Directors for any purpose or purposes may be called at
any time by the Chairman of the Board or the President or any
Vice President or the Secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail, telegram or facsimile, charges prepaid,
addressed to each director at his or her address as it is shown
upon the records of the Corporation. In case such notice is
mailed, it shall be deposited in the United States mail at least
four (4) days prior to the time of the holding of the meeting.
In case such notice is delivered personally, or by telephone,
telegram or facsimile, it shall be delivered personally or by
telephone or the telegraph company at least forty-eight (48)
hours prior to the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated to
either 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 of the meeting nor the place if the meeting
is to be held at the principal executive office of the
Corporation.
Section 8. DISPENSING WITH NOTICE. The transaction of
any business at any meeting of the Board of Directors, however
called and noticed or wherever held, shall be as valid as though
had at a meeting duly, held after regular call and notice if a
quorum be present and if, either before or after the meeting,
each of the directors not present signs a written waiver of
notice, a consent to holding the meeting or an approval of the
minutes thereof. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents
and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting. Notice of a meeting need not
be given to any director who attends the meeting without
protesting, prior thereto or at its commencement, the lack of
notice to such director.
Section 9. QUORUM. A majority of the authorized number
of directors shall constitute a quorum for the transaction of
business, except to adjourn as hereinafter provided. Every act or
decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present shall be regarded
as the act of the Board of Directors, subject to the provisions
of Section 144 of the Delaware General Corporation Law (approval
of contracts or transactions in which a director has a financial
interest), Section 141 (c) (appointment of committees), and
Section 145 (indemnification of directors). A meeting at which a
quorum is initially present may continue to transact business
notwithstanding the withdrawal or directors, if any action taken
is approved by at least a majority of the required quorum of such
meeting.
Section 10. ADJOURNMENT. A majority of the directors
present, whether or not constituting a quorum, may adjourn any
meeting to another time and place.
Section 11. ACTION WITHOUT MEETING. Any action required
or permitted to be taken by the Board of Directors may be taken
without a meeting, if all members of the Board of Directors shall
individually or collectively consent to writing to such action.
Such action by written consent shall have the same force and
effect as a unanimous vote of the Board of Directors. Such
written consent or consents shall be filed with the minutes of
the proceedings of the Board of Directors.
Section 12. 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. Nothing contained in these Bylaws shall 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 such services.
ARTICLE IV.
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The Board of
Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees,
each consisting of two or more directors, to serve at the
pleasure of the Board of Directors. The Board of Directors may
designate one or more directors as alternate members of any
committee, who may replace any absent member at any meeting of
the committee. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have all the
authority of the Board of Directors, except with respect to the
power of authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of
all or substantially all the Corporations's property and assets,
recommending to the stockholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the Bylaws of the
Corporation; and, unless the resolution designating such
committee or the Certificate of Incorporation expressly so
provide, no such committee shall have the power of authority to
declare a dividend or to authorize the issuance or stock. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board
of Directors.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings
and action of committees shall be governed by, and held and taken
in accordance with, the provisions of Article III of these
Bylaws, Section 4 (place of meetings), 6 (regular meetings), 7
(special meetings and notice), 8 (dispensing with notice), 9
(quorum), 10 (adjournment), and 11 (action without meeting), with
such changes in the context of those Bylaws as are necessary to
substitute the committee and its members for the Board of
Directors and its members, except that the time of regular
meetings of committees may be determined by resolution of the
Board of Directors as well as the committee, special meetings of
committees may also be called by resolution of the Board of
Directors and notice of special meetings of committees shall also
be given to alternate members, who shall have the right to attend
all meetings of the committee. The Board of Directors and any
committee may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
ARTICLE V.
OFFICERS
Section 1. OFFICERS. The officers of the Corporation
shall be a President, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board of
Directors, a Chairman and/or Vice Chairman of the Board, one or
more Vice Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 3 of this
Article V. Any number of offices may be held by the same person.
Section 2. ELECTION OF OFFICERS. The officers of
the Corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 of this Article V,
shall be chosen by the Board of Directors, and each shall serve
at the pleasure of the Board of Directors, subject to the rights,
if any; of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS, ETC. The Board of
Directors may appoint, and may empower the President to appoint,
such other officers as the business of the Corporation may
require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in these
Bylaws or as the Board of Directors may from time to time
determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract
of employment, any officer may be removed, either with or without
cause, by the Board of Directors, at any regular or special
meeting thereof, or, except in case of an officer chosen by the
Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice
to the Corporation. Any such resignation shall take effect at
the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective. Any such resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which
the officer is a party.
Section 5. VACANCIES IN OFFICERS. A vacancy in any
office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the
Board, if such an officer be elected, shall, if present, preside
at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by these
Bylaws. If there is no President, the Chairman of the Board
shall in addition be the Chief Executive Officer of the
Corporation and shall have the powers and duties prescribed in
Section 8 of this Article V.
Section 7. VICE CHAIRMAN OF THE BOARD. The Vice
Chairman of the Board, if such an officer is elected, shall, in
the absence or disability of the Chairman, perform all the duties
of the Chairman, and when so acting, shall have all the powers
of, and be subject to all the restrictions upon the Chairman.
The Vice Chairman shall exercise and perform such other powers
and duties as may be from time to time assigned to him by the
Board of Directors or prescribed by these Bylaws.
Section 8. CHIEF EXECUTIVE OFFICER. Subject to such
supervisory powers, if any, as may be given by the Board of
Directors to the Chairman or Vice Chairman of the Board, if there
be such an officer or officers, the Chief Executive Officer of
the Corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the
business and the officers of the Corporation. He shall preside
at meetings of the stockholder and, in the absence of the
Chairman or Vice Chairman of the Board, or if there be none, at
all meetings of the Board of Directors. He shall have the
general powers and duties of management usually vested in the
office of the Chief Executive Officer of a corporation and shall
have such other powers and duties as may be prescribed by the
Board of Directors or these Bylaws.
Section 9. PRESIDENT. Subject to such supervisory
powers, if any, as may be given by the Board of Directors to the
Chairman or Vice Chairman of the Board or the Chief Executive
Officer, if there be such an officer or officers, the President
shall, subject to the control of the Board of Directors, and the
Chief Executive Officer, have general supervision, direction and
control of the business and the officers of the Corporation.
Subject to the powers granted to the Chief Executive Officer, the
President shall have the general powers and duties of management
usually vested in the office of the President of a corporation
and shall have such other powers and duties as may be prescribed
by the Board of Directors or these Bylaws.
Section 10. CHIEF OPERATING OFFICER ("COO"). Subject
to the supervisory powers of the CEO and the President, the Chief
Operating Officer shall have the responsibility to direct the
business and the activities of the officers of the Corporation.
In the absence or disability of the President, the COO shall
perform all the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions
upon the President. The COO shall have the general powers and
duties of management usually vested in the office of the COO of a
corporation and shall have such other powers and duties as may be
prescribed respectively by the Board of Directors, these Bylaws,
or the CEO, President, or the Chairman or Vice Chairman of the
Board if there is no CEO or President.
Section 11. VICE PRESIDENTS. In the absence or
disability of the CEO, COO and President, the Vice Presidents, if
any, in order of their rank as fixed by the Board of Directors
or, if not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the CEO, COO, and
President, and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the CEO, COO, and
President. The Vice Presidents shall have such other powers and
perform such other duties as from time to time may be prescribed
for them respectively by the Board of Directors, these Bylaws, or
the CEO, COO, President or the Chairman or Vice Chairman of the
Board if there is no CEO, COO or President.
Section 12. SECRETARY. The Secretary shall keep or
cause to be kept, at the principal executive office or such other
place as the Board of Directors may order, a book, of minutes of
all meetings and actions of directors, committees of directors
and stockholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice
thereof given, the names of those present at director's and
committee meetings, the number of shares present or represented
at stockholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the Corporation's
transfer agent or registrar, as determined by resolution of the
Board of Directors, a share register, or a duplicate share
register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation.
The Secretary shall give, or cause to be given, notice of
all meetings of the stockholders and of the Board of Directors
required by these Bylaws or by law to be given, and he shall keep
the seal of the Corporation in safe custody, and shall have such
other powers and perform such other duties as may be prescribed
by the Board of Directors or by these Bylaws.
Section 13. TREASURER. The Treasurer shall keep and
maintain, or cause to be kept and maintained, 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 be open at all reasonable times to inspection by any
director.
The Treasurer shall deposit all moneys and other valuables
in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. He
shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his
transactions as Treasurer and of the financial condition of the
Corporation, and shall have other powers and perform such other
duties as may be prescribed by the Board of Directors or these
Bylaws.
ARTICLE VI.
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The Corporation shall keep at its principal executive office, or
at the office of its transfer agent or registrar, if either be
appointed and as determined by resolution of the Board of
Directors, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares
held by each stockholder.
Any stockholder, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours for business to
inspect for any proper purpose the Corporation's stock ledger and
a list of its stockholders and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every
instance where an attorney or other agent shall be the person who
seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to do act on behalf of the
stockholder. The demand under oath shall be directed to the
Corporation at its registered office in the State of Delaware or
at its principal place of business.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The
Corporation shall keep at its principal executive office the
original or a copy of these Bylaws as amended to date, which
shall be open to inspection by the stockholders at all reasonable
times during usual business hours.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE
RECORDS. The accounting books and records and minutes of
proceedings of the stockholders and the Board of Directors and
any committee or committees of the Board of Directors shall be
kept at such place or places designated by the Board of
Directors, or, in the absence of such designation, at the
principal executive office of the Corporation. The minutes shall
be kept in written form and the accounting books and records
shall be kept either in written form or in any other form capable
of being converted into written form. Such minutes, accounting
books and records shall be open to inspection upon the written
demand of any stockholder in the same manner and subject to the
same limitations specified in Section 1 of this Article VI with
respect to the identities of stockholders.
Section 4. INSPECTION BY DIRECTORS. Any director shall
have the right to examine the Corporation's stock ledger, a list
of its stockholders and its books and records for a purpose
reasonably related to his position as a director.
ARTICLE VII.
GENERAL CORPORATE MATTERS
Section 1. CHECKS, DRAFTS, EVIDENCE OF INDEBTEDNESS.
All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable
by the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be
determined by resolution of the Board of Directors.
Section 2. CORPORATE CONTRACTS AND INSTRUMENTS; HOW
EXECUTED. The Board of Directors, except as otherwise provided
in these Bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in
the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances; and, unless so
authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the Corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose or to any amount.
Section 3. CERTIFICATES FOR SHARES. A certificate or
certificates for shares of the Common Stock of the Corporation
shall be issued to each stockholder when any such shares are
fully paid, and the Board of Directors may authorize the issuance
of certificates or shares as partly paid provided that such
certificates shall state the amount of the consideration to be
paid therefor and the amount paid thereon. All certificates
shall be signed in the name of the Corporation by the Chairman or
Vice Chairman of the Board or the President or Vice President and
by the Treasurer or an Assistant Treasurer or the Secretary or
any Assistant Secretary. Any or all of the signatures on the
certificate may be facsimile, if the certificate is countersigned
by a transfer agent or registered by a registrar other than the
Corporation itself or its employee. 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 such person were an officer, transfer agent
or registrar at the date of issue.
Section 4. LOST CERTIFICATES. Except as hereinafter in
this Section 5 provided, no new certificate for shares shall be
issued in lieu of an old certificate unless the latter is
surrendered to the Corporation and canceled at the same time.
The Board of Directors may in case any share certificate or
certificate for any other security is lost, stolen or destroyed,
authorize the issuance of a new certificate in lieu thereof, upon
such terms and conditions as the Board of Directors may require,
including provision for indemnification of the Corporation
secured by a bond or other adequate security sufficient to
protect the Corporation against any claim that may be made
against it, including any expense or liability, on account of the
alleged loss, theft or destruction of such certificate or the
issuance of such new certificate.
Section 5. TRANSFER OF SHARES. Transfers of shares of
capital stock of the Corporation shall be made only on the books
of the Corporation by the holder thereof or by his duly
authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates
representing such shares of capital stock properly endorsed for
transfer and upon payment of all necessary transfer taxes. Every
certificate exchanged, returned or surrendered to the Corporation
shall be marked "Canceled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the
Corporation. A person in whose name shares of capital stock
shall stand on the books of the Corporation shall be deemed the
owner thereof to receive dividends, to vote as such owner and for
all other purposes as respects the Corporation, its stockholders
and creditors for any purpose, until such transfer shall have
been entered on the books of the Corporation by an entry showing
from and to whom transferred.
Section 6. TRANSFER AND REGISTRY AGENTS. The
Corporation may from time to time maintain one or more transfer
offices or agents and registry offices or agents at such place or
places as may be determined from time to time by the Board.
Section 7. REGULATIONS. The Board may make rules and
regulations as it may deem expedient, not inconsistent with the
Bylaws or with the Certificate of Incorporation, concerning the
issue, transfer and registration of certificates representing
shares of its capital stock.
Section 8. RESTRICTION ON TRANSFER OF STOCK. A written
restriction on the transfer or registration of transfer of
capital stock of the Corporation, if permitted by Section 202 of
the General Corporation Law and noted conspicuously on the
certificate representing such capital stock, may be enforced
against the holder of the restricted capital stock of any
successor or transferee of the holder including an executor,
administrator, trustee, guardian or other fiduciary entrusted
with like responsibility for the person or estate of the holder.
A restriction on the transfer or registration of transfer of
capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number
of stockholders or among such stockholders and the Corporation.
No restriction so imposed shall be binding with respect to
capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an
agreement or voted in favor of the restriction.
Section 9. REPRESENTATION OF SHARES OF OTHER
CORPORATION. The Chairman of the Board, the President, or any
Vice President, or any other person authorized by resolution of
the Board of Directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the Corporation any
and all shares of any other corporation or corporations, foreign
or domestic, standing in the name of the Corporation. The
authority herein granted to said officers to vote or represent on
behalf of the Corporation any and all shares held by the
Corporation in any other corporation or corporations may be
exercised by any such officer in person or by any person
authorized to do so by proxy duly executed by said officer.
Section 10. DIVIDENDS, SURPLUS, ETC. Subject to the
provisions of the Certificate of Incorporation and of applicable
law, the Board of Directors:
(a) may declare and pay dividends or make other
distributions on the outstanding shares of capital stock in such
amounts and at such time or times as, in its discretion, the
condition of the affairs of the Corporation shall render
advisable;
(b) may use and apply, in its discretion, any of the
surplus of the Corporation in purchasing or acquiring any shares
of capital stock of the Corporation, or purchase warrants
therefor, in accordance with law, or any of its bonds,
debentures, notes, scrip or other securities or evidences
indebtedness;
(c) may set aside from time to time out of such surplus or
net profits such sum or sums as, in its discretion, it may think
proper, as a reserve fund to meet contingencies, or for
equalizing dividends or for the purpose of maintaining or
increasing the property or business of the Corporation, or for
any other purpose it may think conducive to the best interests of
the Corporation.
ARTICLE VIII.
GENERAL
Section 1. CONSTRUCTION AND DEFINITIONS. Unless the
context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation
Law shall govern the construction of these Bylaws. Without
limiting the generality of the foregoing, the singular number
includes the plural, the plural number includes the singular, and
the term "person" includes both a corporation and a natural
person.
Section 2. SEAL. The corporate seal of the Corporation
shall bear the name of the Corporation and the words "Delaware
[year]." The Corporation may also have such other seals as the
Board of Directors shall deem appropriate, including "OFFICIAL
CORPORATE SEAL." A corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced.
Section 3. FISCAL YEAR. The fiscal year of the
Corporation shall be determined, and may be changed, by
resolution of the Board of Directors.
ARTICLE IX.
AMENDMENTS
Section 1. AMENDMENT BY STOCKHOLDERS. New Bylaws may
be adopted or these Bylaws may be amended or repealed by the vote
of holders of a majority of the outstanding share entitled to
vote, unless, as to a particular provision, a higher vote is
required by the Certificate of Incorporation or by statute,
provided, however, that Section 3 of Article II and Sections 1
and 2 of Article IX of these Bylaws may not be amended or
repealed in any respect except by the affirmative vote of the
holders of not less than eighty percent (80%) of the outstanding
shares entitled to vote thereon ("Voting Shares"), regardless of
class and voting class, and where such action is proposed by an
Interested Stockholder or by an Associate or Affiliate of an
Interested Stockholder (as such capitalized terms are defined in
the Certificate of Incorporation of the Corporation), the
affirmative vote of the holders of a majority of all Voting
Shares, regardless of class and voting together as a single
class, other than shares held by the Interested Stockholder which
proposed (or the Affiliate or Associate of which proposed) such
action, or any Affiliate or Associate of such Interested
Stockholder; provided, however, that where such action is
approved by a majority of the Disinterested Directors (as defined
in the Certificate of Incorporation of the Corporation),the
affirmative vote of a majority of the Voting Shares, regardless
of class and voting class, shall be required for approval of such
action.
Section 2. AMENDMENT BY DIRECTORS. Subject to the
rights of the Stockholders as provided in Section I of this
Article IX to adopt, amend or repeal bylaws, bylaws may be
adopted, amended or repealed by the Board of Directors.