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EXHIBIT 3.2
TABLE OF CONTENTS
OF THE
AMENDED BYLAWS OF
MEDICAL IMAGING CENTERS OF AMERICA, INC.
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ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Principal Executive Offices . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 4. Adjourned Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Notice and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Validation of Meetings Held Without
Proper Call or Notice . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 8. Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . 4
Section 9. Elections of Directors . . . . . . . . . . . . . . . . . . . . . . . 5
Section 10. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 11. Inspectors of Election . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2. Number and Qualifications
of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3. Election and Term of Office . . . . . . . . . . . . . . . . . . . . . 8
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6. Telephonic Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7. Organization Meeting . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Other Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 9
Section 9. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 10. Notice of Directors' Meetings . . . . . . . . . . . . . . . . . . . . 9
Section 11. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 13. Validation of Meetings Held Without
Proper Call or Notice . . . . . . . . . . . . . . . . . . . . . 10
Section 14. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 15. Unanimous Written Consent to
Actions Taken . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 16. Fees and Compensation . . . . . . . . . . . . . . . . . . . . . . . 10
Section 17. Executive Committee . . . . . . . . . . . . . . . . . . . . . . . . 11
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ARTICLE IV OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2. Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9. Vice-Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 10. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 11. Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2. Director Inspection of Corporate
Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3. Shareholder Inspection of
Corporate Records . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4. Annual and Financial Reports . . . . . . . . . . . . . . . . . . . 15
Section 5. Share Certificates . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Representation of Shares of
Other Corporations . . . . . . . . . . . . . . . . . . . . . . 17
Section 7. Registrars and Transfer Agents . . . . . . . . . . . . . . . . . . 17
Section 8. Subchapter S Election . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10. Checks, Drafts and Other Instruments . . . . . . . . . . . . . . . 17
Section 11. Execution of Contracts and Instruments . . . . . . . . . . . . . . 17
Section 12. Construction and Definitions . . . . . . . . . . . . . . . . . . . 18
Section 13. Indemnification and Liability Insurance . . . . . . . . . . . . . . 18
ARTICLE VI RESTRICTIONS ON TRANSFER OF SHARES . . . . . . . . . . . . . . . . 18
Section 1. Options to Purchase . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2. Nonmonetary Consideration . . . . . . . . . . . . . . . . . . . . . 19
Section 3. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1. Power of Shareholders . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2. Power of Directors . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF INCORPORATOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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BYLAWS FOR THE REGULATION, EXCEPT AS
OTHERWISE PROVIDED BY STATUTE OR
ITS ARTICLES OF INCORPORATION,
OF
MEDICAL IMAGING CENTERS OF AMERICA, INC.
ARTICLE I
OFFICES
Section 1. Principal Executive Offices. The principal executive
office of the Corporation is hereby fixed and located at 4217 Lomo Del Sur, La
Mesa, California 92041. The Board of Directors is hereby granted full power
and authority to change said principal executive office from one location to
another. Any such change of location may be noted on the Bylaws by the
Secretary opposite this section or this section may be amended to state the new
location.
Section 2. Other Offices. Other offices of the Corporation may
be established by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders shall
be held at the principal executive office of the Corporation, at the place
specified in the notice or at any other place within or without the State of
California designated either by the Board of Directors or by the written consent
of all persons entitled to vote thereat and not present at the meeting, given
either before or after the meeting and filed with the Secretary of the
Corporation.
Section 2. Annual Meetings. The annual meetings of shareholders
shall be held on the third Friday of October of each year at 10:00 a.m. of said
day; provided, however, that should said day fall on a legal holiday then any
such annual meeting of shareholders shall be held at the same time and place on
the next full business day thereafter ensuing. At annual meetings of
shareholders, Directors shall be elected, reports of the affairs of the
Corporation shall be considered, and any other business may be transacted which
is within the powers of the shareholders.
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Section 3. Special Meetings. Special meetings of shareholders
may be called for the purposes of taking any action permitted by shareholders
under the California General Corporations Law and the Articles of Incorporation
at any time by the Chairman of the Board or the President, or by the Board of
Directors, or by one (1) or more shareholders holding not less than ten percent
(10%) of the shares entitled to vote at the meeting. Upon request in writing
that a special meeting of shareholders be called for any proper purpose,
directed to the Chairman of the Board, President, vice-president or Secretary
by any person or persons (other than the Board) entitled to call a special
meeting of the shareholders, the officer shall cause notice to be given to
shareholders entitled to vote at the meeting as set forth in Article II,
Section 5 hereinbelow. In the event such notice has not been given within
twenty (20) days after receipt of the request, the person or persons entitled
to call the meeting may give the notice. No business other than that described
in the notice of the meeting may be transacted at a special meeting of
shareholders.
Section 4. Adjourned Meetings. Any meeting of shareholders,
whether or not a quorum is present or has been established, may be adjourned
from time to time by the vote of a majority of the shares the holders of which
are either present in person or represented by proxy. When any meeting of
shareholders is adjourned for forty-five (45) days or more, or a new record
date for the adjourned meeting is fixed, notice of the adjourned meeting shall
be given as in the case of an original meeting as specified in Article II,
Section 5 hereof. If a meeting of shareholders is adjourned for a total of
less than forty-five (45) days, notice of the time and place of the adjourned
meeting or the business to be transacted need not be given in the event the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting.
Section 5. Notice and Waiver. Written notice of every meeting
of shareholders shall be given to each shareholder entitled to vote at such
meeting, either personally or by mail, telegram or other means of written
communication, charges pre-paid, addressed to such shareholder at his address
appearing on the books of the Corporation or given by him to the Corporation
for the purpose of notice. In the event any notice or report addressed to a
shareholder at the address of such shareholder appearing on the books of the
Corporation is returned to the Corporation by United States Postal Service
marked to indicate that the United States Postal Service is unable to deliver
the notice or report to the shareholder at such address, all future notices or
reports shall be deemed to have been fully given without further mailing if the
same shall be available for the shareholder upon written demand of the
shareholder at the principal executive office of the Corporation for a period
of one (1) year from the date of the giving of the notice or report to any
other shareholder. If no address appears on the books of the Corporation and a
shareholder gives no address, notices shall be deemed to have been given to
such shareholder if sent by mail, telegram or other means of written
communication addressed to the place where the principal executive office of
the Corporation is located, or if published at least once in a newspaper of
general circulation in the County in which the principal executive office of
the Corporation is located.
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All notices shall be personally delivered, deposited in the
mail, or sent by other means of written communication to each shareholder
entitled thereto not less than ten (10) nor more than sixty (60) days before
such meeting. An affidavit of mailing of any such notice in accordance with
the foregoing provisions, executed by the Secretary, assistant secretary or any
transfer agent of the Corporation shall be prima facie evidence of the giving
of the notice.
Except in special cases where other express provision is made
by statute, notice of meetings shall contain the following information:
(a) The place, the date, and the hour of the meeting;
(b) The general nature of the business to be transacted
or proposed, if any, including but not limited to actions with respect to the
approval of (i) a contract or other transaction with an interested Director,
(ii) the amendment of the Articles of Incorporation, (iii) a merger, exchange
or sale of assets reorganization as defined by section 181 of the California
General Corporations Law, (iv) the voluntary dissolution of the Corporation, or
(v) a distribution and dissolution other than in accordance with the rights of
outstanding preferred shares, if any;
(c) If Directors are to be elected, the names of nominees
intended at the time of the notice to be presented by management for election,
if any; and
(d) In the case of an annual meeting, those matters which
the Board of Directors at the time of the mailing of the notice intends to
present for action by the shareholders.
Section 6. Validation of Meetings Held Without Proper Call or
Notice. The transactions of any meeting of shareholders, however called and
noticed, and wherever held, shall be valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if either before or after the meeting, each of the persons entitled
to vote and not present in person or by proxy, or who though present has at the
beginning of the meeting objected to the transaction of any business because
the meeting was not lawfully called or convened or has objected to the
consideration of particular matters of business required to have been included
in the notice of the meeting but not so included, signs a written waiver of
notice, a consent to the holding of such meeting, or an approval of the minutes
thereof. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 7. Quorum. The presence in person or by proxy of the
holders of majority of the shares entitled to vote at any meeting shall
constitute a quorum for the transaction of business. Shareholders present at a
duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding a withdrawal of enough shareholders
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.
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Section 8. Action Without a Meeting. Except with respect
to the election of Directors as hereinafter provided, any action which may be
taken at a meeting of the shareholders may be taken without a meeting and
without prior notice except as hereinafter set forth, if a consent or consents
in writing, setting forth the action so taken, is signed by the holders of
shares having not less than the minimum number of votes that would be necessary
to authorize such action at a meeting at which all shareholders entitled to
vote thereon were present and voted. In the event the consents of all
shareholders entitled to vote have not been solicited in writing, notices shall
be given in the manner as provided in Section 5 of Article II of these Bylaws
as follows:
(a) At least ten (10) days before consummation of the action
authorized by shareholder approval, notice shall be given of shareholder
approval of (i) a contract or other transaction with an interested Director,
(ii) indemnification of an agent of the Corporation, (iii) a merger, exchange
or sale of assets reorganization as defined in section 181 of the California
General Corporations Law, or (iv) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares, if any; and
(b) Promptly with respect to any other corporate action
approved by shareholders without a meeting by less than unanimous written
consent, to those shareholders entitled to vote who have not consented in
writing.
In the event the Board of Directors has not fixed a record
date as provided in Section 1 of Article V of these Bylaws, for the
determination of shareholders entitled to give such written consent, the record
date for determining shareholders entitled to give consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board adopts the resolution relating thereto, or the sixtieth (60th)
day prior to the date of such action, whichever is later, and in the event no
prior action by the Board has been taken the day on which the first written
consent is given. All such written consents shall be filed with the Secretary
of the Corporation.
Any shareholder giving a written consent, or the shareholder's
proxyholders or a transferee of the shares or personal representative of the
shareholder of their respective proxyholders, may revoke the consent by a
writing received by the Corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the Secretary of the Corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the Secretary of the Corporation.
Directors may be elected without a meeting by unanimous
written consent of the persons who would be entitled to vote for the election
of Directors; provided that in the event a vacancy on the Board of Directors
exists and has not been filled by the Directors, a Director may be elected at
any time without prior notice by the written consent of persons holding a
majority of the outstanding shares entitled to vote for the election of
Directors.
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Section 9. Elections of Directors. In any election of
Directors, the candidates receiving the highest number of votes of the shares
entitled to be voted for them up to the number of Directors to be elected by
such shares are elected. Elections for Directors need not be by ballot unless
a shareholder demands election by ballot at the meeting and before the voting
begins.
Every shareholder entitled to vote at any election of
Directors may cumulate such shareholder's votes and give one (1) candidate a
number of votes equal to the number of Directors to be elected multiplied by
the number of votes to which the shareholder's shares are entitled, or
distribute the shareholder's votes on the same principle among as many
candidates as the shareholder thinks fit, provided however, that no shareholder
shall be entitled to cumulate votes unless the name of each such candidate has
been placed in nomination prior to the voting and a shareholder has given
notice at the meeting prior to the voting of such shareholder's intention to
cumulate such shareholder's votes.
Section 10. Proxies. Every person entitled to vote shares shall
have the right to do so in person or by one (1) or more agents authorized by a
written proxy executed by such person or his duly authorized agent and filed
with the Secretary of the Corporation. Any proxy executed is not revoked and
continues in full force and effect until (i) a writing stating that the Proxy
is revoked or a duly executed proxy bearing a later date is filed with the
Secretary of the Corporation prior to the vote pursuant thereto, (ii) the
person executing the proxy attends the meeting and votes in person, or (iii)
written notice of the death or incapacity of the maker of such proxy is
received by the Corporation before the vote pursuant thereto is counted;
provided that no proxy shall be valid after the expiration of eleven (11)
months from the date of its execution, unless the person executing it specifies
therein the length of time for which such proxy is to continue in force.
Section 11. Inspectors of Election. In advance of any meeting of
shareholders the Board may appoint inspectors of election to act at the meeting
and any adjournment thereof. If inspectors of election are not so appointed, or
if any person so appointed fails to appear or refuses to act, the chairman of
any meeting of shareholders may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election (or persons to
replace those who so fail or refuse) at the meeting. The number of inspectors
shall either be one (1) or three (3). If appointed at a meeting on the request
of one (1) or more shareholders or proxies, the majority of shares represented
in person or by proxy shall determine whether one (1) or three (3) inspectors
are to be appointed.
The inspectors of election shall determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum and the authenticity, validity and
effectiveness of proxies, receive votes, ballots or consents, hear and
determine all challenges and questions in any way arising in connection with
the right to vote, count and tabulate all votes or consents, determine when the
polls shall close, determine the result and do such acts as may be proper to
conduct the election or vote with fairness to all shareholders. In the
determination of the validity and effect of proxies, the dates contained on the
forms of proxy shall presumptively determine the order of execution, regardless
of the postmark dates on the envelopes in which they are mailed.
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The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously
as is practical. If there are three (3) inspectors of election, the decision,
act or certificate of a majority is effective in all respects as the decision,
act, or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to the limitations of the Articles of
Incorporation and of the California General Corporations Law as to action to be
authorized or approved by the shareholders, the business and affairs of the
Corporation shall be managed and all the corporate powers shall be exercised by
or under the direction of the Board of Directors. The Board of Directors may
delegate the management of the day-to-day operation of the business of the
Corporation to a management company or other person or persons provided that
the business and affairs of the Corporation shall be managed and all corporate
powers shall be exercised under the ultimate direction of the Board of
Directors. Without prejudice to such general powers, but subject to the same
limitations, the Directors shall have the following powers;
First: To select and remove all the officers, agents and
employees of the Corporation; prescribe such powers and duties for them as may
not be inconsistent with law, with the Articles of Incorporation or these
Bylaws; fix their compensation; and require from them security for faithful
service.
Second: To conduct, manage and control the affairs and
business of the Corporation, and to make such rules and regulations therefor
not inconsistent with law, or the Articles of Incorporation or these Bylaws, as
they may deem best.
Third: To change the principal executive office and the
principal office for the transaction of business of the Corporation from one
location to another as provided in Article I, Section 1 hereof; to fix and
locate from time to time one (1) or more subsidiary offices of the Corporation
within or without the State of California as provided in Article I, Section 2
hereof; to designate any place within or without the state for the holding of
any meeting or meetings of shareholders; to adopt, make and use the corporate
seal and to prescribe the forms of certificates of shares; and to alter the
form of such seal and certificates from time to time as in their judgment they
deem best, provided such seal and such certificates shall at all times comply
with the provisions of law.
Fourth: To authorize issuance of shares of the Corporation
from time to time upon such terms as may be lawful in consideration of money
paid, labor done, services actually rendered to the Corporation or for its
benefit or in its formation or reorganization, debts or
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securities canceled, and tangible or intangible property actually received
either by the Corporation or any one of its wholly owned subsidiaries, if any,
or as a share dividend or upon a stock split, reverse stock split,
reclassification, conversion or exchange of shares for shares of another class
or series of shares, but not in consideration of promissory notes of the
purchaser (unless adequately secured by collateral other than the shares
acquired or pursuant to a stock purchase plan or agreement or stock option plan
or agreement authorized by section 408 of the California General Corporations
Law) or future services.
Fifth: To borrow money and incur indebtedness for the
purposes of the Corporation, and to cause to be executed and delivered therefor
in the corporate name promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations or other evidences of debt and securities
therefor.
Sixth: By resolution adopted by a majority of the authorized
number of Directors, to designate an executive committee and other committees,
each consisting of two (2) or more directors, to serve at the pleasure of the
Board. Unless the Board of Directors shall otherwise prescribe the manner of
proceedings of any such committee, meetings of such committee (other than the
executive committee whose proceedings shall be governed by Section 17 of this
Article III of these Bylaws) may be regularly scheduled in advance and may be
called at any time by any two (2) members thereof; otherwise, the provisions of
these Bylaws with respect to notice and conduct of the meetings of the Board
shall govern. Any such committee, to the extent provided in a resolution of
the Board, shall have all the authority of the Board, except with respect to:
(i) The approval of any action for which the
California General Corporations Law or the Articles of Incorporation also
require shareholder approval;
(ii) The filling of vacancies on the Board of
Directors or on any committee;
(iii) The fixing of compensation of the Directors
for serving on the Board or on any committee;
(iv) The adoption, amendment or repeal of Bylaws;
(v) The amendment or repeal of any resolution of
the Board which by its express terms is not so amendable or repealable;
(vi) The declaration of a dividend, or the
authorization or ratification of the repurchase or redemption of shares, except
at a rate or in a periodic amount or within a price range determined by the
Board of Directors; and
(vii) The appointment of other committees of the
Board or the members thereof.
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Section 2. Number and Qualifications of Directors. The
authorized number of Directors shall be four (4) until changed by amendment of
the Articles of Incorporation or by a Bylaw amending this section duly adopted
by the vote or written consent of holders of the majority of the outstanding
shares entitled to vote; provided that a proposal to reduce the authorized
number of Directors below five (5) cannot be adopted if the votes cast against
its adoption at a meeting, or the shares not consenting in the case of action
by written consent, are equal to more than sixteen and two-thirds percent (16
2/3%) of the outstanding shares entitled to vote. Directors need not be
shareholders of the Corporation.
Section 3. Election and Term of Office. The Directors shall be
elected at each annual meeting, but if any such annual meeting is not held or
the Directors are not elected thereat, the Directors may be elected at any
special meeting of shareholders held for that purpose. All Directors shall
hold office until the next annual meeting of shareholders and until their
respective successors have been elected and qualified, subject to the
California General Corporations Law and the provisions of these Bylaws with
respect to vacancies on the Board of Directors.
Section 4. Vacancies. A vacancy in the Board of Directors shall
be deemed to exist in the event of the death, resignation or removal of any
Director, an increase of the authorized number of Directors, or the failure of
the shareholders at any annual or special meeting of shareholders at which any
Director or Directors are to be elected to elect the full authorized number of
Directors to be voted for at that meeting. The Board of Directors may declare
vacant the office of a Director who has been declared of unsound mind by an
order of court or convicted of a felony.
A vacancy or vacancies in the Board of Directors, except for a
vacancy created by the removal of a Director, may be filled by a majority of
the remaining Directors, though less than a quorum, or by a sole remaining
Director, and each Director so elected shall hold office until his successor is
elected in an annual or special meeting of shareholders called for that
purpose. A vacancy in the Board of Directors created by the removal of a
Director may be filled only by the vote of the majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present, or by
the written consent of the holders of the majority of the outstanding shares.
The shareholders may elect a Director or Directors at any time to fill any
vacancy or vacancies not filled by the Directors. Any such election by written
consent shall require the consent of holders of a majority of the outstanding
shares entitled to vote.
Any Director may resign effective upon giving written notice
to the Chairman of the Board, the President, the Secretary or the Board of
Directors of the Corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective. 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.
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Section 5. Place of Meetings. All meetings of the Board of
Directors shall be held at any place within or without California which has
been designated in the notice of the meeting, or if not stated in the notice or
if there is no notice, at any place designated from time to time by resolution
of the Board or by written consent of all members of the Board. In the absence
of such designation, meetings shall be held at the principal executive office
of the Corporation.
Section 6. Telephonic Meetings. The members of the Board may
participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in the meeting
can hear one another. Participation in a meeting as permitted in the preceding
sentence constitutes presence in person at such meeting.
Section 7. Organization Meeting. Immediately following each
annual meeting of shareholders, the Board of Directors shall hold a regular
meeting at the place of the annual meeting of shareholders or at such other
place as shall be fixed by the Board of Directors, for the purpose of
organization, election of officers, and the transaction of other business.
Section 8. Other Regular Meetings. Other regular meetings of
the Board of Directors shall be held without call at 10:30 a.m. on the third
Friday of January, April and July. Provided however, should any said day fall
on a legal holiday, then the meeting shall be held at the same time on the next
day thereafter ensuing which is a full business day.
Section 9. 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, the President, any vice-president, the Secretary or any two (2)
Directors.
Section 10. Notice of Directors' Meetings. Call and notice of
the annual organization meeting and other regular meetings of the Board of
Directors are hereby dispensed with. Notice of the time and place of special
meetings shall be personally delivered to each Director or communicated to each
Director by telephone, telegraph or mail, charges prepaid, addressed to him at
his address as is shown upon the records of the Corporation, or if it is not so
shown on such records or is not readily ascertainable, at the place at which
the meetings of Directors are regularly held. In the case notice is mailed, it
shall be deposited in the United States mail at least ninety-six (96) hours
prior to the time of the holding of the meeting. In the event notice is
communicated by telegraph, it shall be delivered to the telegraph company at
least forty-eight (48) hours prior to the time of the holding of the meeting.
In the event notice is delivered personally or communicated by telephone, it
shall be so delivered or communicated at least forty-eight (48) hours prior to
the time of the holding of the meeting.
A notice need not specify the purpose of any regular or
special meeting of the Board of Directors. Whenever any Director has been
absent from any meeting of the Board of Directors for which notice has not been
dispensed with, an entry in the minutes to the effect that notice has been duly
given shall be conclusive and incontrovertible evidence that due notice of such
meeting was given to such Director.
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Section 11. Quorum. The presence at a meeting of the Board of
Directors of a majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business; provided that such quorum
shall at no time be less than one- third (1/3) of the authorized number of
Directors. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of enough Directors to leave
less than a quorum, provided that any action taken is approved by at least a
majority of the required quorum for such meeting.
Section 12. Voting. 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, unless a
greater number, or the same number after disqualifying one (1) or more
Directors from voting, is required by law, by the Articles of incorporation or
by these Bylaws.
Section 13. Validation of Meetings Held Without Proper Call or
Notice. The transactions of any meeting of the Board of Directors, however
called and noticed or wherever held, shall be valid as though had at a meeting
duly held after regular call and notice, if a quorum is initially present, and
if, either before or after the meeting, each of the Directors not present or
who though present has prior to the meeting or at its commencement protested
the lack of proper notice to him signs a written waiver of notice, a consent to
holding of such meeting or an approval of the minutes thereof. All such
waivers, consents and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 14. Adjournment. A majority of the Directors present,
whether or not a quorum is present, may adjourn any Directors' meeting to meet
again at another time or place. In the event a meeting of the Board of
Directors is adjourned for more than twenty-four (24) hours, notice of any
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the Directors who were not present at the time of the
adjournment. Otherwise, notice of the time and place of holding an adjourned
meeting need not be given to absent Directors if the time and place is fixed
and announced at the meeting so adjourned.
Section 15. Unanimous Written Consent to Actions Taken. Any
action required or permitted to be taken by the Board of Directors may be taken
without a meeting if all the members of the Board of Directors shall
individually or collectively consent in writing to such action. Such consent or
consents shall be filed with the minutes of the proceedings of the Board of
Directors and shall have the same force and effect as a unanimous vote of the
Directors.
Section 16. Fees and Compensation. Directors and members of
committees may receive such compensation, if any, for their services and such
reimbursement for expenses as may be fixed or determined by resolution of the
Board of Directors. Nothing herein shall be considered to preclude any
Director from serving the Corporation in any other capacity, including as an
officer, agent, employee or otherwise, and receiving compensation therefor.
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Section 17. Executive Committee. In the event the Board of
Directors shall appoint an executive committee and shall not provide otherwise,
regular meetings of the executive committee shall be held at such times as are
determined by the Board or by such committee as appointed, and notice of such
regular meetings is hereby dispensed with. Meetings of the executive committee
shall be held at the place designated in the notice of the meeting, or if not
stated in the notice or if there is no notice, at any place which has been
designated from time to time by resolution of the executive committee or by
written consent of all the members thereof, or in the absence of such
designation, at the principal executive office of the Corporation. Special
meetings of the executive committee may be called by the Chairman of the Board,
the President, any vice-president who is a member of the executive committee,
or any two (2) members thereof, upon written notice to the members of the
executive committee of the time and place of such special meeting given in the
manner and within the time provided for giving of notice to members of the
Board of Directors of the time and place of special meetings thereof. Minutes
shall be recorded of each meeting of the executive committee and kept in the
book of minutes of the Corporation. Vacancies in the membership of the
executive committee may be filled only by the Board of Directors. Only members
of the Board of Directors shall serve as members of the executive committee. A
majority of the authorized number of members of the executive committee shall
constitute a quorum for the transaction of business. The provisions of this
Article III of these Bylaws also apply to the executive committee and action by
the executive committee, mutatis mutandis. The Board of Directors may
designate one (1) or more Directors as alternate members of the executive
committee, who may replace and act in the stead of any absent members at any
meeting of such committee.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
President, a Secretary and a Chief Financial Officer (who may be called the
Treasurer). The Corporation may also have, at the discretion of the Board of
Directors, a Chairman of the Board, one (1) or more vice-presidents, one (1) or
more assistant secretaries, one (1) or more assistant financial officers, and
such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article IV. Any number of offices may be held by the same
person.
Section 2. Election. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Section
3 of this Article IV, shall be chosen by the Board of Directors, and each shall
hold his office until he shall resign or shall be removed by the Board of
Directors or otherwise disqualified to serve, or his successor shall be elected
and qualified.
Section 3. Subordinate Officers. The Board of Directors may
appoint, and may empower the Chairman of the Board or the President to appoint,
such other officers as the
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business of the Corporation may require, each of whom shall hold office for
such period, have such authority and perform such duties as the appointing
authority may designate, subject to any limitations imposed by resolution of
the Board of Directors.
Section 4. Removal. 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 (subject, in each case, to the rights, if any, of an officer under
any contract of employment).
Section 5. Resignation. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or to the
Secretary of the Corporation, without prejudice however to the rights, if any,
of the Corporation under any contract to which such officer is a party. 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.
Section 6. Vacancies. 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 7. Chairman of the Board. The Chairman of the Board, if
there shall be such an officer, shall, if present, preside at all meetings of
the Board of Directors and shareholders 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.
Section 8. President. Subject to such powers, if any, as may be
given by the Board of Directors to the Chairman of the Board, if there be such
an officer, the President shall be 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 officers of the
Corporation. In the absence of the Chairman of the Board, or if there be none,
he shall preside at all meetings of the shareholders and the Board of
Directors. He shall have the general powers and duties of management usually
vested in the office of 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 9. Vice-Presidents. In the absence or disability of the
President, the vice-presidents, if there be any, in order of their rank as fixed
by the Board of Directors or, if not ranked, the vice-president designated by
the Board of Directors, 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 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 or these Bylaws.
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Section 10. Secretary. The Secretary shall record or cause to be
recorded, and shall keep or cause to be kept, at the principal executive office
of the Corporation and such other place or places as the Board of Directors may
order, a book of minutes of actions taken at all meetings of Directors,
committees and shareholders, 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 Directors' and committee meetings, the number of
shares present or represented at shareholders' 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, a share register, or a duplicate share register, showing the names of
the shareholders 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
the meetings of the shareholders and 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.
The Secretary shall keep at the principal executive office,
and if the Corporation's principal executive office is not in California, at
the Corporation's principal business office in California, the original or a
copy of these Bylaws as amended to date.
Section 11. Chief Financial Officer. The Chief Financial Officer
(who may be called the Treasurer) shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, income, losses, changes in financial position, capital
stock, retained earnings and shares.
The Chief Financial Officer 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 the Directors, whenever they request it, an account
of all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or these Bylaws.
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ARTICLE V
MISCELLANEOUS
Section 1. Record Date. The Board of Directors may fix a time
in the future as a record date for the determination of the shareholders
entitled to notice of and to vote at any meeting of shareholders, give consent
to corporate action in writing without a meeting, receive any report, receive
any dividend or other distribution or any allotment of rights, or exercise
rights in respect to any change, conversion or exchange of shares. The record
date so fixed shall not be more than sixty (60) days nor less than ten (10)
days prior to the date of any meeting, nor more than sixty (60) days prior to
any other event for the purposes of which it is fixed. In the event the Board
of Directors does not fix a record date, the record date for determining
shareholders entitled to notice of or to vote at a meeting of shareholders
shall be the close of business on the business day next preceding the day on
which notice is given, or if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held; the record
date for determining shareholders entitled to give consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
has been taken, shall be the day on which the first written consent is given;
and the record date for determining shareholders for any other purpose shall be
the close of business on the day on which the Board adopts the resolution
relating thereto, or the sixtieth (60th) day prior to the date of such other
action, whichever is later. Only shareholders of record on the record date are
entitled to notice of and to vote at any such meeting, give consent without a
meeting, receive any report, receive a dividend, distribution or allotment of
rights, or exercise the rights, as the case may be, notwithstanding any
transfer of shares on the books of the Corporation after the record date,
except as otherwise provided in the Articles of Incorporation or these Bylaws.
A determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting unless
the Board of Directors fixes a new record date for the adjourned meeting. In
the event such a meeting is adjourned for more than forty-five (45) days from
the date set for the original meeting, the Board of Directors shall fix a new
record date.
Section 2. Director Inspection of Corporate Records. Every
Director shall have the absolute right at any reasonable time to inspect all
books of account, records and documents of every kind and to inspect the
physical properties of the Corporation and all of its subsidiaries, both
domestic and foreign. Inspection by a Director may be made in person or by
agent or attorney, and the right of inspection includes the right to copy and
make extracts.
Section 3. Shareholder Inspection of Corporate Records. The
accounting books and records and minutes of proceedings of the shareholders and
the Board of Directors and committees of the Board of this Corporation and all
of its subsidiaries shall be open to inspection upon the written demand on the
Corporation of any shareholder or holder of a voting trust certificate at any
reasonable time during usual business hours for a purpose reasonably related to
such holder's interest as a shareholder or as a holder of such voting trust
certificate. Inspection by shareholder or a holder of a voting trust
certificate may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts.
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A shareholder or shareholders who hold at least five percent
(5%) in the aggregate of the outstanding voting shares of the Corporation, or
hold at least one percent (1%) of such voting shares and have filed a Schedule
14B with the United States Securities and Exchange Commission relating to the
election of Directors of the Corporation shall have the right, exercisable in
person or by agent or attorney, to inspect and copy the record of shareholders'
names and addresses and shareholdings, as of the most recent record date for
which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or
before the later of five (5) business days after the demand is received or the
date specified therein as the date as of which the list is to be compiled.
Every shareholder shall have the absolute right to inspect at
all reasonable times during office hours the original or a copy of these Bylaws
as amended to date, at the Corporation's principal executive office, or if its
principal executive office is not in California, then at its principal business
office in California. In the event the principal executive office of the
Corporation is outside California and the Corporation has no principal business
office in California, it shall upon the written request of any shareholder
furnish to such shareholder a copy of the Bylaws as amended to date.
Section 4. Annual and Financial Reports. The requirement for
the sending of an annual report to the shareholders, except upon proper request
as set forth below, is hereby expressly waived.
A shareholder or shareholders holding in the aggregate at
least five percent (5%) of the outstanding shares of any class of the
Corporation may make a written request to the Corporation for an income
statement of the Corporation for the three (3) month, six (6) month, or nine
(9) month period of the current fiscal year ended not less than thirty (30)
days prior to the date of the request and a balance sheet of the Corporation as
of the end of such period, and in addition, an annual report for the last
fiscal year. The annual report shall contain a balance sheet as of the end of
such fiscal year and an income statement and statement of changes in financial
condition for such fiscal year. The income statement, balance sheet, and the
annual report, shall be delivered to the person making the request within
thirty (30) days thereafter. In addition, the Corporation shall upon the
written request of any shareholder mail to the shareholder a copy of the last
annual, semiannual or quarterly income statement which it has prepared and a
balance sheet as of the end of the period. The annual report, quarterly income
statement and balance sheets and other financial statements referred to in this
section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the Corporation or the certificate of the Chief
Financial Officer or any other officer authorized by the Board of Directors
that such financial statements were prepared without audit from the books and
records of the Corporation. A copy of any of such statement and reports shall
be kept on file in the principal executive office of the Corporation for twelve
(12) months and they shall be exhibited at all reasonable times to any
shareholder demanding an examination of them or a copy shall be mailed to such
shareholder.
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Section 5. Share Certificates. Every holder of shares in the
Corporation shall be entitled to have a certificate signed in the name of the
Corporation by the Chairman or Vice-Chairman of the Board or the President or
any vice-president and by the Chief Financial Officer or any assistant
financial officer or the Secretary or any assistant secretary, certifying the
number of shares and the class or series of shares owned by the shareholder.
Any of the signatures on the certificate may be a facsimile, provided that in
such event at least one (1) signature, including that of any of the
aforementioned officers or the Corporation's registrar or transfer agent, if
any, shall be manually signed. In the event 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, the certificate 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.
There shall appear on certificates for shares of the
Corporation the following facts if, and to the extent, applicable:
(a) The shares are subject to restrictions upon transfer,
including those imposed by the California Corporate Securities Law of 1968, the
federal securities laws, any agreement between the Corporation and the issuee
thereof, the Articles of Incorporation, these Bylaws or otherwise;
(b) The shares are assessable;
(c) The shares are not fully paid and the total amount of the
consideration to be paid therefor and the amount theretofore paid thereon;
(d) The shares are subject to a close corporation voting
agreement;
(e) The shares are subject to restrictions upon voting rights
contractually imposed by the Corporation;
(f) The shares are redeemable;
(g) The shares are convertible and the period for conversion;
(h) The Corporation has elected to be taxed pursuant to the
provisions of Subchapter S of the Internal Revenue Code of 1954, as amended;
and
(i) The shares are classified or a class of the shares has
two (2) or more series, and a statement setting forth the office or agency of
the Corporation from which shareholders may obtain, upon request and without
charge, a copy of a statement of the rights, preferences, privileges and
restrictions granted to or imposed upon each class or series of shares
authorized to be issued and upon the holders thereof.
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No new certificate for shares shall be issued in lieu of an
old certificate unless the latter is surrendered and canceled at the same time;
provided, however, that the Board of Directors may authorize the issuance of a
new share certificate in the place of any certificate theretofore issued by the
Corporation and alleged to be lost, stolen or destroyed in the event that: (i)
the request for the issuance of the new certificate is made within a reasonable
time after the holder of the old certificate has notice of its loss,
destruction or theft and prior to the receipt of notice by the Corporation that
the old certificate has been acquired by a bona fide purchaser or holder in due
course; and (ii) the holder of the old certificate files a sufficient indemnity
bond with or provides other adequate security to the Corporation and satisfies
any other reasonable requirements imposed by the Board. In the event of the
issuance of a new certificate, the rights and liabilities of the Corporation
and the holders of the old and new certificates shall be governed by the
provisions of sections 8104 and 8405 of the California Commercial Code.
Section 6. Representation of Shares of Other Corporations. The
Chairman of the Board, the President or any vice- president, or the Chief
Financial Officer, or any assistant financial officer, and the Secretary or any
assistant secretary of this Corporation are authorized to vote, represent and
exercise on behalf of this Corporation all rights incident to any and all
shares of any other corporation or corporations standing in the name of the
Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation in any other corporation or corporations may be exercised either by
such officers in person or by any other person authorized to do so by proxy or
power of attorney duly executed by any of said officers.
Section 7. Registrars and Transfer Agents. The Board of
Directors may appoint one (1) or more registrars of transfers, which shall be
incorporated banks or trust companies, either domestic or foreign, and one (1)
or more transfer agents or transfer clerks, who shall be appointed at such
times and places as the Board of Directors shall determine.
Section 8. Subchapter S Election. If this Corporation has
elected to be taxed pursuant to the provisions of Subchapter S of the Internal
Revenue Code of 1954 as amended, then the Corporation, any shareholder and any
person to whom any of its shares are transferred shall not do any act or take
any course of conduct which shall have the effect of terminating such election
without the prior vote of at least sixty-six and two-thirds percent (66 2/3%)
of the outstanding shares of the Corporation or the written consent of the
persons entitled to vote such shares.
Section 9. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors, and having been so determined,
is subject to change from time to time as the Board of Directors shall
determine.
Section 10. Checks, Drafts and Other Instruments. All checks,
drafts, or other orders for payment of money, notes or other evidences of
indebtedness, issued in the name of or payable to 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.
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Section 11. Execution of Contracts and Instruments. The Board of
Directors, except as these Bylaws may otherwise provide, may authorize one (1)
or more officers or agents of the Corporation 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. Any
instrument may also be executed on behalf of and in the name of the Corporation
by the Chairman of the Board, the President, or any vice- president, and the
Secretary or any assistant secretary, Chief Financial Officer or any assistant
financial officer.
Section 12. Construction and Definitions. Unless the context
otherwise requires, the general provisions, rules or construction and
definitions contained in the California General Corporations Law shall govern
the construction of these Bylaws. Without limiting the generality of the
foregoing, the masculine gender includes the feminine and neuter, the singular
number includes the plural and the plural number includes the singular, and the
term "person" includes a corporation, partnership in trust, as well as a
natural person.
Section 13. Indemnification and Liability Insurance. This
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any proceeding by reason of the fact that such person is
or was an agent of this Corporation, against expenses, judgments, fines,
settlements and other amounts incurred in connection with such proceeding to
the fullest extent permitted by the provisions of California and federal law.
Expenses incurred by any agent of this Corporation in
defending any proceeding may be advanced by this Corporation prior to the final
disposition of such proceeding upon receipt of an undertaking by or on behalf
of the agent to repay such amount unless it shall be determined ultimately that
the agent is entitled to be indemnified.
The Board of Directors may authorize the purchase and
maintenance of insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such whether or not this Corporation would have
the power to indemnify the agent against such liability under the provisions of
California and federal law.
ARTICLE VI
RESTRICTION ON TRANSFER OF SHARES
Section 1. Options to Purchase. The shares of this Corporation
shall be issued and held upon the condition that before there can be a valid
sale or transfer of any of said shares or any interest therein, the holder of
the shares to be sold or transferred shall give notice to the Secretary of this
Corporation of his intention to sell or transfer such shares. Said notice
shall specify the number of shares to be sold or transferred, the purchase
consideration and the price per share, the terms upon which such holder intends
to make such sale or transfer, and the name of the intended purchaser or
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transferee. The Board of Directors shall have ten (10) days from the date of
receipt of such notice by the Secretary within which to exercise an option to
purchase such shares for the Corporation at the same price and upon the same
terms as set forth in said notice. The right of this Corporation to exercise
such option and to purchase such shares is subject to the restrictions
governing the right of a corporation to purchase its own shares contained in
Chapter 5 of the California General Corporations Law, and such other pertinent
governmental restrictions as may from time to time be effective.
If any such shares shall not be purchased by the Corporation,
the Secretary shall notify all of the shareholders of record by mail of said
proposed sale or transfer. Said notice to shareholders shall contain the same
information concerning the proposed sale or transfer as received by the
Corporation, and the Secretary shall mail said notice to the shareholders
immediately upon receipt by him of notification from the Board of Directors
that the Corporation will not purchase any or all of said shares, and in no
event later than ten (10) days after receipt by the Secretary of the notice of
intended sale or transfer. Within twenty (20) days after the date of mailing
of said notice to the shareholders, any shareholder desiring to acquire any or
all of the shares referred to in said notice shall deliver to the Secretary a
written offer to purchase said shares or a specified number thereof at the same
price per share and upon the same terms stated in the above-mentioned notice
filed with the Secretary.
If the total number of shares specified in such offers by
shareholders equals but does not exceed the number of shares referred to in
said notice and not purchased by this Corporation, then the offering
shareholders shall be entitled to purchase the shares pursuant to their
respective offers. If the total number of shares specified in said offers
exceeds the number of shares referred to in said notice and not purchased by
the Corporation, each offering shareholder shall be entitled to purchase such
proportion of the shares available for purchase as the number of shares of the
Corporation which he holds bears to the total number of shares held by all of
such shareholders offering to purchase shares. If the total number of shares
specified in such offers to purchase is less than the number of shares referred
to in said notice and not purchased by the Corporation, the offering
shareholders shall not be entitled to purchase any shares, and the exercise of
any option to purchase, or election to purchase any shares by the Corporation
shall be void and without force and effect. The seller or transferor in such
case may sell or transfer said shares subject to the provisions and
restrictions provided for below.
Any shares mentioned in such a notice of intention to transfer
and not purchased by the Corporation or the shareholders, may be sold or
transferred at any time within six (6) months from the date of such notice to
the person and at the price and terms specified therein. Such purchaser or
transferee shall receive and hold said shares subject to all of the provisions
and restrictions herein contained.
Section 2. Nonmonetary Consideration. Notwithstanding anything
in Section 1 of this Article VI to the contrary, in the event that part or all
of the purchase consideration specified in the notice to the Secretary of the
Corporation is other than money, such notice shall also specify the fair market
value in monetary terms of such other consideration; and the Corporation and
the
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shareholders shall have the right to exercise their respective options to
purchase said shares by delivery of a written offer specifying a per share
purchase price equal to the total of the money consideration and the fair
market value of the consideration other than money specified in said notice.
With regard to the terms of the offer of the Corporation or a shareholder, the
fair market value of consideration other than money shall be paid in cash. As
used in this section, "consideration other than money" shall not mean the
proposed purchaser's promissory note or other evidence of indebtedness.
In the event the Corporation or any shareholder, as the case
may be, objects to the amount specified in the notice as the fair market value
of consideration other than money, they may give within ten (10) days of the
receipt of such notice written notice to the Secretary of its or his intention
to submit the matter to an appraiser for a determination. Pending such
determination, the time for exercising options to purchase shall be stayed.
Within fifteen (15) days from the date of delivery of such notice of submission
to an appraiser, the objector and the holder of the shares to be sold shall
select a mutually satisfactory single neutral appraiser. In the event the
parties are unable to make such a selection, then either party may at any time
thereafter apply to the Superior Court of the State of California in and for
the County of San Diego (pursuant to a petition to compel arbitration) for the
appointment of a single neutral appraiser in accordance with the California
Code of Civil Procedure.
The appraiser shall determine the fair market value of the
consideration other than money. The decision of the appraiser shall be final
and binding upon the objector and the holder of the shares to be sold. As soon
as the purchase price has been determined, the appraiser shall give written
notice thereof to the parties and to the Secretary. All expenses of appraisal
and proceedings to appoint an appraiser shall be borne equally by the parties
who exercise their option to purchase shares (who shall share such expenses
between themselves in proportion to the number of shares of each elects to
purchase), on the one hand, and the holder of shares to be sold on the other,
unless the Corporation and every shareholder thereafter fail to exercise their
respective options, in which case the objector shall bear all such expenses.
Section 3. Waiver. The provisions of Sections 1 and 2 of this
Article VI and the options and rights therein granted may be waived in writing
by the corporation or by any shareholder with respect to any proposed sale or
transfer of shares. In the event any such waiver is given, the provisions of
this Article as to each of the waiving parties shall not be applicable to the
proposed sale or transfer of shares with respect to which such waivers shall
have been executed, but shall be applicable to any other shares or transfer of
shares.
Section 4. Termination. The provisions of this Article VI with
respect to the transfer of shares shall be applicable until the earliest date
on which the Corporation has ten (10) or more shareholders of record, and
thereupon, shall automatically cease to be of any further force or effect. For
purposes of this Section 4 of Article VI, shares held by husband and wife,
whether or not jointly, shall be considered to be held by one (1) person.
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ARTICLE VII
AMENDMENTS
Section 1. Power of Shareholders. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the affirmative vote of a majority
of the shares entitled to vote or by the written consent of shareholders
entitled to vote such shares, except as otherwise provided by law or by the
Articles of Incorporation; provided however, that Article VI and this Article
VII may be amended or repealed only upon the affirmative vote of the shares
entitled to vote at least eighty percent (80%) of the shares entitled to vote
or the written consent of shareholders entitled to vote such shares, and
Section 8 of Article V may be amended or repealed only upon the affirmative
vote of at least sixty-six and two-thirds percent (66 2/3%) of the shares
entitled to vote or the written consent of shareholders entitled to vote such
shares.
Section 2. Power of Directors. Subject to the right of
shareholders as provided in Section 1 of this Article VII to adopt, amend or
repeal Bylaws, the Board of Directors may adopt new Bylaws or amend or repeal
these Bylaws other than Section 8 of Article V, Article VI and this Article
VII; provided however, that the Board of Directors may not adopt, amend or
repeal a Bylaw changing the authorized number of Directors except for the
purpose of fixing the exact number of Directors within the limits specified in
Section 2 of Article III of these Bylaws if said section provides for a
variable number of Directors.
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CERTIFICATE OF INCORPORATOR
The undersigned does hereby certify that:
1. I am the Incorporator of INTRAMED, INC.
; and
2. The foregoing Bylaws constitute the Bylaws of the
Corporation as duly adopted by me this day.
DATED: July 24, 1981
/s/ Thomas C. Ackerman
--------------------------------
Thomas C. Ackerman
Incorporator
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AMENDMENT OF BYLAWS
Set forth below is an amendment to the Bylaws of Medical
Imaging Centers of America, Inc. duly and validly approved by the shareholders
of this corporation as of May 21, 1984.
Section 2. Number and Qualification of Directors.
(a) The number of Directors of the
Corporation shall not be less than five (5) nor more than nine
(9) until changed by amendment of the Articles of
Incorporation or by a Bylaw amending this section, duly
adopted by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided
that a proposal to reduce the authorized minimum number of
Directors below five (5) cannot be adopted if the votes cast
against its adoption at a meeting or the shares not consenting
in the case of action by written consent, are equal to more
than sixteen and two-thirds percent (16 2/3%) of the
outstanding shares entitled to vote. The exact number of
Directors shall be fixed from time to time, within the limits
specified in the Articles of Incorporation or in this section,
by a Bylaw or amendment thereof, duly adopted by shareholders
or by the Board of Directors; and
(b) Subject to the foregoing provisions for
changing the number of Directors, the exact number of
Directors of this Corporation shall be five (5).
/s/ Thomas C. Ackerman
--------------------------------------
Thomas C. Ackerman, Secretary
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AMENDMENT OF BYLAWS
Set forth below is an amendment to the Bylaws of Medical Imaging
Centers of America, Inc. duly and validly approved by the directors of this
corporation as of May 24, 1995.
Article II, Section 2. Annual Meetings.
The Annual Meeting of Shareholders 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.
Article III, Section 8. Other Regular Meetings.
Other regular meetings of the Board of Directors shall be held
without call at times to be fixed by the Board of Directors from time to time.
Such regular meetings may be held without notice.
Article III, Section 10. Notice of Directors' Meetings.
Amended to provide that communication by fax shall constitute
delivery of notice by telephone.
/s/ Denise L. Sunseri
-----------------------------------
Denise L. Sunseri, Secretary
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