EXHIBIT 3.2
BYLAWS
OF
TALBERT MEDICAL MANAGEMENT HOLDINGS CORPORATION
SECTION 1. In addition to its principal office in the State of
Delaware, the Corporation may also have offices at such other places within
or without the State of Delaware as the Board of Directors shall from time to
time determine.
SECTION 2. The annual meeting of the stockholders of the Corporation
shall be held on the fourth Tuesday in April in each year (if that day shall
be a legal holiday then on the next business day) or on such earlier or later
date as the Board of Directors (herein called the Board) may designate, at
such time and place, within or without the State of Delaware, as may be
specified in the notice thereof, as shall be fixed by the Board, for the
purpose of electing directors and for the transaction of only such other
business as is properly brought before such meeting in accordance with these
by-laws. If any annual meeting shall not be held on the day designated or
the directors shall not have been elected thereat or at any adjournment
thereof, thereafter the Board shall cause a special meeting of the
stockholders to be held as soon as practicable for the election of directors.
At such special meeting the stockholders may elect directors and transact
other business with the same force and effect as at an annual meeting of the
stockholders duly called and held.
SECTION 3. Special meetings of the stockholders of the Corporation may
be held, within or without the State of Delaware, only upon notice given by
or at the direction of the Board; provided however, that if FHP International
Corporation ("FHP") acquires in excess of 20% of the outstanding shares of
the Corporation's Common Stock from unsubscribed shares in the offering of
rights to FHP's stockholders, a special meeting of the stockholders of the
Corporation may be called upon the written request of stockholders entitled
to cast in excess of 20% of the votes entitled to be cast at the special
meeting. Such notice shall state the time, place and purposes of the meeting.
SECTION 4. In order to be properly brought before any meeting of the
stockholders held and pursuant to Section 2, business (including the election
of directors) must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the board, (b) otherwise
properly brought before the meeting by or at the direction of the Board, or
(c) otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, in order for any such business
to be properly brought before the meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. In order to be timely, a stockholder's notice must be delivered
to or mailed and received at the
principal executive offices of the Corporation, not less than 60 days nor
more than 90 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within the 30 days before or
after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the 15th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the meeting was made,
whichever first occurs. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the meeting
(i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the meeting,
(ii) the name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (iv) any material interest of the
stockholder in such business.
SECTION 5. Notice of the time and place of every meeting of the
stockholders and of the business to be acted on at such meeting shall be
mailed by the Secretary or the officer performing his duties, at least ten
days before the meeting, to each stockholder of record having voting power
and entitled to such notice at his last known post office address; provided,
however, that if a stockholder be present at a meeting, or in writing waive
notice thereof before or after the meeting, notice of the meeting to such
stockholder shall be unnecessary. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be cancelled,
by resolution of the Board upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 6. The holders of a majority of the stock of the Corporation
having voting power present in person or by proxy shall constitute a quorum,
but in every case, the presiding officer at the meeting or the stockholders
present, although less than a quorum, shall have power to adjourn any meeting
from time to time without notice. The holders of a majority of the stock
present and entitled to vote at a duly qualified meeting of stockholders
shall have power to act; unless the matter is one as to which a different
vote is specified by the Certificate of Incorporation, these Bylaws, or
applicable law or regulation (other than Section 216 of the Delaware General
Corporation Law), in which case the different vote so specified by such law
or regulation shall apply. The foregoing provisions of this Section 6 each
shall be subject the voting rights of holders of any Preferred Stock the
Corporation and any quorum requirements related.
SECTION 7. Unless otherwise specified in the Certificate of
Incorporation, at every meeting of stockholders each stockholder entitled to
vote thereat shall be entitled to one vote for each share of stock held by
him and may vote and otherwise act in person or by proxy; but no proxy shall
be voted upon more than one year after its date unless such proxy provides
for a longer period.
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SECTION 8. At least ten days before each election of directors a
complete list of the stockholders entitled to vote at such election, arranged
in alphabetical order and showing the address and the number of shares
registered in the name of each stockholder, shall be made and filed either at
a place within the city where the election is to be held and which place
shall be specified in the notice of the meeting at which such election is to
take place, or if not so specified, at the place where such meeting is to be
held. Such list shall be open to the examination of any stockholder during
ordinary business hours for a period of at least ten days prior to such
election at the place so filed. Such list shall be produced and kept at the
time and place of such election and be subject to inspection by any
stockholder.
SECTION 9. Certificates of stock shall be of such form and device as
the Board of Directors may elect and shall be signed by the Chairman of the
Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, but in case
any such Certificate is countersigned by a transfer agent, other than the
Corporation or its employee, or by a registrar, other than the Corporation or
its employee, any other signature on such certificate may be a facsimile,
engraved, stamped or printed.
SECTION 10. The stock of the Corporation shall be transferable or
assignable only on the books of the Corporation by the holders in person, or
by attorney, on the surrender of the certificates therefor. The Board of
Directors may appoint one or more transfer agents and registrar of the stock.
SECTION 11. The Board of Directors shall have the power to close the
stock transfer books of the Corporation for a period not exceeding sixty (60)
days preceding the date of any meeting of stockholders, or the date for
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. In lieu of closing the stock transfer books as aforesaid, the Board
of Directors is hereby authorized to fix in advance, a date, not exceeding
sixty (60) 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, as a record date for the determination of the stockholders
entitled to notice of and to vote at, any such meeting, or entitled to
receive payment of any such dividends, or to any such allotment of rights, or
to exercise the rights in respect of any such change, conversion or exchange
of capital stock, and in such case such stockholders and only 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 or to receive
payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation.
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SECTION 12. The affairs of the Corporation shall be managed by a Board
consisting of such number of directors as shall be determined from time to
time by resolution of a majority of the number of directors constituting the
entire Board of Directors at such time, and in the absence of such
determination, the number of directors shall be nine. Any vacancies may be
filled in accordance with Article NINTH of the Corporation's Certificate of
Incorporation.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors at any meeting of
stockholders. Nominations of persons for election to the Board of Directors
of the Corporation at the annual meeting or any meeting called for the
purpose of electing directors may be made at a meeting of stockholders by or
at the direction of the Board of Directors by any nominating committee or
person appointed by the Board or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies
with the notice procedures set forth in this Section 12.
In addition to any other applicable requirements, such nominations, other
than those made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. In order to be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within the 30 days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received not later
than the close of business on the 15th day following the day on which such
notice of the date of the annual meeting was mailed or such public disclosure
of the date of the meeting was made, whichever first occurs. Such
stockholder's notice to the Secretary shall contain (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, (i) that person's consent to such nomination, (ii) the name, age,
business address and residence address of the person, (iii) the principal
occupation or employment of the person, and (iv) the class and number of
shares of capital stock of the Corporation which are beneficially owned by
the person and (b) as to the stockholder giving the notice (i) the name and
record address of the stockholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as director of
the Corporation. No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth
herein.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the nomination was not made in accordance with the
foregoing procedure, and if he should so determine, shall so declare to the
meeting and the defective nomination shall
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be disregarded.
SECTION 13. Meetings of the Board of Directors shall be held at the
times fixed by resolutions of the Board or upon call of the Chairman of the
Board or of the President or any five directors and may be held outside the
State of Delaware. The Secretary or officer performing his duties shall give
reasonable notice (which shall not in any event be less than two (2) days) of
all meetings of directors, provided that a meeting may be held without notice
immediately after the annual election, and notice need not be given of
regular meetings held at times fixed by resolution of the Board. Meetings may
be held at any time without notice if all the directors are present or if
those not present waive notice either before or after the meeting. Notice by
mail, telecopy or telegraph to the usual business or residence address of the
directors not less than the time above specified before the meeting shall be
sufficient. One-half of the total number of directors, but not less than five
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. Less than such a quorum shall
have power to adjourn any meeting from time to time without notice.
SECTION 14. (a) 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 this Corporation) by reason of the fact
that he is or was or has agreed to become a director, officer, employee or
agent of this Corporation, or is or was serving or has agreed to serve at the
request of this Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in such
capacity, shall be indemnified by this Corporation against costs, charges,
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 and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of this 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 judgement, 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 this Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit, proceeding or
investigation by or in the right of this Corporation to procure a judgement
in its favor by reason of the fact that he is or was or has agreed to become
a director, officer, employee or agent of this Corporation, or is or was
serving or has agreed to serve at the request of this Corporation as a
director,
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officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, shall be indemnified by this
Corporation against costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit and any appeal therefrom, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of this Corporation, 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 for negligence or misconduct in the
performance of his duty to this Corporation unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of such lability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
(c) Notwithstanding the other provisions of this Section, to the
extent that a director, officer, employee or agent of this Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this Section, or in
defense of any claim, issue or matter therein, he shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
Section (unless otherwise ordered by a court) shall be made by this
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in subsections (a) and (b) of this Section. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who are 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, or (4) if a Change in Control has
occurred and the director, officer, employee or agent seeking indemnification
so requests, in a written opinion rendered by independent legal counsel
chosen by the person requesting indemnification and not reasonably objected
to by the Board of Directors. For purposes of subclause (4) of this
subsection (d), "independent legal counsel" shall mean legal counsel other
than an attorney, or a firm having associated with it an attorney, who has
been retained by or who has performed substantial services for either this
Corporation or the person seeking indemnification within the past five years.
The Corporation shall pay the fees of the independent legal counsel. For
purposes of this subsection (d), a "Change in Control" shall be deemed to
have occurred if (i) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "1934 Act")
is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934
act), directly or indirectly, of securities of this Corporation representing
25% or more of the combined
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voting power of this Corporation's then outstanding securities in a
transaction not approved by the Board of Directors sitting immediately prior
to such acquisition, (ii) this Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or proxy contest, as a
consequence of which members of the Board of Directors sitting immediately
prior to such transaction or event constitute less than five-sixths of the
Board of Directors thereafter, or (iii) during the immediately preceding four
years, individuals who at the beginning of such period constituted the Board
of Directors cease for any reason to constitute at least a majority thereof,
unless the election of each director who was not a director at the beginning
of the period was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the period.
(e) Costs, charges and expenses (including attorney's fees) incurred
by a person referred to in subsections (a) and (b) of this Section in
defending a civil or criminal action, suit or proceeding shall be paid
promptly by this Corporation in advance of the final determination of such
action, suit or proceeding; provided, however, that the payment of such
costs, charges and expenses incurred by a director or officer in his capacity
as a director or officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer) in advance of the
final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced in the event that it shall ultimately be determined
that such director or officer is not entitled to be indemnified by this
Corporation as authorized by the Section. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification provided by this Section shall not be deemed
exclusive of any other rights to which a person seeking indemnification may
be entitled under any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
office or while employed by or acting as agent for this Corporation, it being
the policy of this Corporation that indemnification of the persons specified
in subsections (a) and (b) of this Section shall be made to the fullest
extent permitted by applicable law. The indemnification provided by this
Section shall continue as to a person who has ceased to be a director,
officer, employee or agent, and shall inure to the benefit of the estate,
heirs, executors and administrators of such Person. All rights to
indemnification under this Section shall be deemed to be a contract between
this Corporation and each director, officer, employee or agent of this
Corporation who serves or served in such capacity at any time while this
Section is in effect. Any repeal or modification of this Section or any
repeal or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable law shall not in any way diminish any
rights to indemnification of such director, officer, employee or agent or the
obligation of this Corporation arising hereunder.
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(g) If this Section or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then this Corporation
shall nevertheless indemnify each director, officer, employee and agent of
this Corporation as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, any action by or in the right
of this Corporation, to the full extent permitted by any applicable portion
of this Section that shall not have been invalidated and to the fullest
extent permitted by applicable law.
SECTION 15. The Board of Directors, as soon as may be after the election
of directors in each year, shall appoint one of their number Chairman of the
Board and one of their number President of the Company, and may also appoint
one or more Executive Vice-Presidents, Senior Vice -Presidents, First
Vice-Presidents and Vice Presidents, a Secretary and a Treasurer. The Board
of Directors may from time to time appoint one of their number as
Vice-Chairman and may appoint such other officers as they deem appropriate.
Any person may hold more than one office, except that same Person may not
hold more than one of the offices of President and Secretary. The Chairman
so appointed shall not in such capacity be considered an officer of this
Corporation.
SECTION 16. The term of office of all officers shall be until the next
election of directors and until their respective successors are chosen and
qualified, or until they shall die or resign but any officer may be removed
from office at any time by the Board of Directors. Vacancies in any office
may be filled by the Board at any meeting.
SECTION 17. The officers of the Company shall have such powers and
duties as usually pertain to their offices, except as modified by the Board
of Directors, and shall also have such powers and duties as may from time to
time be conferred upon them by the Board of Directors.
SECTION 18. The Board of Directors is authorized to select such
depositaries as it shall deem proper for the funds of the Corporation. All
checks and drafts against such deposited funds shall be signed and
countersigned by persons to be specified by the Board of Directors.
SECTION 19. The President, or any Vice-President, shall have authority
to execute and deliver all contracts or undertakings of the Corporation.
SECTION 20. The corporation seal of the Corporation shall be in such
form as the Board of Directors shall prescribe.
SECTION 21. The fiscal year of the Corporation shall be the calendar
year.
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SECTION 22. Either the Board of Directors or the stockholders may alter
or amend these Bylaws at any meeting, duly held as above provided, the notice
of which includes notice of the proposed alteration or amendment, as
permitted by the Certificate of Incorporation, these Bylaws or applicable
laws or regulations.
SECTION 23. The Board of Directors may impose restrictions on transfer
of securities of the Corporation pursuant to the Stockholder Rights Agreement
between the Corporation and American Stock Transfer & Trust Company, as and
to the extent required by such Rights Agreement, as amended from time to time.
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