EXHIBIT 3(b)
BYLAWS
OF
MAGELLAN HEALTH SERVICES, INC.
As Amended 9/2/99
BYLAWS
OF
MAGELLAN HEALTH SERVICES, INC.
ARTICLE I. OFFICES.......................................................................- 1 -
Section 1. REGISTERED OFFICE.............................................................- 1 -
Section 2. OTHER OFFICES.................................................................- 1 -
ARTICLE II. MEETINGS OF STOCKHOLDERS......................................................- 1 -
Section 1. PLACE OF MEETINGS.............................................................- 1 -
Section 2. DATE OF MEETINGS..............................................................- 1 -
Section 3. NOTICE OF MEETINGS............................................................- 1 -
Section 4. LIST OF STOCKHOLDERS..........................................................- 1 -
Section 5. SPECIAL MEETINGS..............................................................- 2 -
Section 6. NOTICE OF SPECIAL MEETINGS....................................................- 2 -
Section 7. LIMITATIONS ON SPECIAL MEETINGS...............................................- 2 -
Section 8. QUORUM AND ADJOURNMENT........................................................- 2 -
Section 9. STOCKHOLDER ACTION............................................................- 2 -
Section 10. VOTING RIGHTS.................................................................- 2 -
Section 11. PROXIES AND VOTING RIGHTS.....................................................- 3 -
Section 12. ACTION BY CONSENT.............................................................- 3 -
Section 13. INSPECTOR OF ELECTIONS........................................................- 3 -
Section 14. PRESIDING OFFICER.............................................................- 3 -
ARTICLE III. DIRECTORS.....................................................................- 3 -
Section 1. NUMBER, ELECTION AND TERM OF OFFICE...........................................- 3 -
Section 2. VACANCIES.....................................................................- 4 -
Section 3. REMOVAL.......................................................................- 4 -
Section 4. POWERS OF DIRECTORS...........................................................- 4 -
Section 5. PLACE OF MEETINGS.............................................................- 4 -
Section 6. TIME OF MEETINGS..............................................................- 4 -
Section 7. REGULAR MEETINGS..............................................................- 4 -
Section 8. SPECIAL MEETINGS..............................................................- 4 -
Section 9. QUORUM........................................................................- 5 -
Section 10. ACTION BY CONSENT.............................................................- 5 -
Section 11. TELEPHONE CONFERENCE CALL.....................................................- 5 -
Section 12. EXECUTIVE AND OTHER COMMITTEES................................................- 5 -
Section 13. MINUTES OF COMMITTEE MEETINGS.................................................- 6 -
Section 14. COMPENSATION..................................................................- 6 -
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ARTICLE IV. NOTICES......................................................................- 6 -
Section 1. PROCEDURE....................................................................- 6 -
Section 2. WAIVER AND CONSENT...........................................................- 6 -
ARTICLE V. OFFICERS.....................................................................- 6 -
Section 1. GENERAL......................................................................- 6 -
Section 2. ELECTION OF OFFICERS.........................................................- 7 -
Section 3. ADDITIONAL OFFICERS..........................................................- 7 -
Section 4. COMPENSATION.................................................................- 7 -
Section 5. TENURE.......................................................................- 7 -
Section 6. PRESIDENT - POWERS AND DUTIES................................................- 7 -
Section 7. PRESIDENT - EXECUTION OF DOCUMENTS...........................................- 7 -
Section 8. VICE PRESIDENTS - POWERS AND DUTIES..........................................- 7 -
Section 9. SECRETARY - POWERS AND DUTIES................................................- 7 -
Section 10. ASSISTANT SECRETARY..........................................................- 8 -
Section 11. TREASURER - POWERS AND DUTIES................................................- 8 -
Section 12. TREASURER - DISBURSEMENTS AND ACCOUNTING.....................................- 8 -
Section 13. ASSISTANT TREASURER..........................................................- 8 -
Section 14. BONDS........................................................................- 8 -
ARTICLE VI. CERTIFICATES FOR SHARES OF STOCK.............................................- 8 -
Section 1. RIGHTS TO CERTIFICATE........................................................- 8 -
Section 2. CLASSES OF STOCK - RIGHTS....................................................- 9 -
Section 3. OFFICERS'SIGNATURES..........................................................- 9 -
Section 4. LOST CERTIFICATES............................................................- 9 -
Section 5. TRANSFERS OF STOCK...........................................................- 9 -
Section 6. FIXING OF RECORD DATE........................................................- 9 -
Section 7. REGISTERED STOCKHOLDERS.....................................................- 10 -
ARTICLE VII. INDEMNIFICATION.............................................................- 10 -
Section 1. ACTIONS NOT BY OR IN THE RIGHT OF THE CORPORATION...........................- 10 -
Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION...............................- 10 -
Section 3. INDEMNIFICATION WHERE DIRECTOR OR OFFICER SUCCESSFULLY DEFENDS ACTION.......- 11 -
Section 4. DETERMINATIONS REQUIRED PRIOR TO INDEMNIFICATION............................- 11 -
Section 5. ADVANCES....................................................................- 11 -
Section 6. GENERAL.....................................................................- 11 -
Section 7. INSURANCE...................................................................- 11 -
Section 8. THE CORPORATION.............................................................- 11 -
Section 9. EMPLOYEE BENEFIT PLANS......................................................- 12 -
Section 10. CONTINUATION................................................................- 12 -
Section 11. FUTURE AMENDMENTS...........................................................- 12 -
ARTICLE VIII. GENERAL PROVISIONS..........................................................- 12 -
Section 1. DIVIDENDS...................................................................- 12 -
Section 2. RESERVES....................................................................- 13 -
Section 3. ANNUAL STATEMENT............................................................- 13 -
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Section 4. CHECKS.......................................................................- 13 -
Section 5. FISCAL YEAR..................................................................- 13 -
Section 6. SEAL.........................................................................- 13 -
Section 7. MISCELLANEOUS................................................................- 13 -
ARTICLE IX. AMENDMENTS...................................................................- 13 -
iii
BYLAWS
OF
MAGELLAN HEALTH SERVICES, INC.
ARTICLE I.
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. 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. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors shall be held in the City of Atlanta, 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. DATE OF MEETINGS. Annual meetings of stockholders shall be
held on a date and at a 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. NOTICE OF MEETINGS. 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. LIST OF STOCKHOLDERS. 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. 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. NOTICE OF SPECIAL MEETINGS. 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. LIMITATIONS ON SPECIAL MEETINGS. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
SECTION 8. QUORUM AND ADJOURNMENT. 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. STOCKHOLDER ACTION. 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) in all matters other than the election of
directors, the affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders; (2) directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors; and (3) 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. VOTING RIGHTS. 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.
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SECTION 11. PROXIES AND VOTING RIGHTS. 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. ACTION BY CONSENT. 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. INSPECTOR OF ELECTIONS. 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. PRESIDING OFFICER. 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. NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
which shall constitute the whole Board shall be that number that is designated
in the Certificate of Incorporation of the Corporation. 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.
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SECTION 2. VACANCIES. 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. REMOVAL. 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. POWERS OF DIRECTORS. 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.
SECTION 5. PLACE OF MEETINGS. 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. TIME OF MEETINGS. 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. 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. 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
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(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. QUORUM. 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, by the
certificate of incorporation or by these Bylaws. 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. ACTION BY CONSENT. 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. TELEPHONE CONFERENCE CALL. 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.
SECTION 12. EXECUTIVE AND OTHER COMMITTEES. 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.
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SECTION 13 . MINUTES OF COMMITTEE MEETINGS. Each committee shall keep
regular minutes of its meetings and periodically report the same to the Board of
Directors.
SECTION 14. COMPENSATION. 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. PROCEDURE. 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. WAIVER AND CONSENT. 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. GENERAL. 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.
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SECTION 2. ELECTION OF OFFICERS. 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. ADDITIONAL OFFICERS. 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. COMPENSATION. 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. TENURE. 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.
SECTION 6. PRESIDENT - POWERS AND DUTIES. 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. PRESIDENT - EXECUTION OF DOCUMENTS. 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.
SECTION 8. VICE PRESIDENTS - POWERS AND DUTIES. 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.
SECTION 9. SECRETARY - POWERS AND DUTIES. 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
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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. ASSISTANT SECRETARY. 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. TREASURER - POWERS AND DUTIES. 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. TREASURER - DISBURSEMENTS AND ACCOUNTING. 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. ASSISTANT TREASURER. 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.
SECTION 14. BONDS. 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. RIGHTS TO CERTIFICATE. 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. CLASSES OF STOCK - RIGHTS. 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
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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. OFFICERS' SIGNATURES. 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.
SECTION 4. LOST CERTIFICATES. 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.
SECTION 5. TRANSFERS OF STOCK. 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.
SECTION 6. FIXING OF RECORD DATE. 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
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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.
SECTION 7. REGISTERED STOCKHOLDERS. 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 1. 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
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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 1 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 a majority vote of the directors who
were not parties to such action, suit or proceeding, even though less than a
quorum; or (2) if there are no such directors, or if such directors so direct,
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
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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. 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. RESERVES. 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
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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.
SECTION 3. ANNUAL STATEMENT. 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.
SECTION 4. CHECKS. 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.
SECTION 5. FISCAL YEAR. 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.
SECTION 6. SEAL. 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.
SECTION 7. MISCELLANEOUS. 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.
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