EXHIBIT 3.2
BYLAWS
OF
TOTAL EMED, INC.
(THE "CORPORATION")
ARTICLE I.
OFFICES
The Corporation may have such offices, either within or without the State
of Delaware, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
ARTICLE II.
SHAREHOLDERS
2.1 ANNUAL MEETING. An annual meeting of the shareholders of the
Corporation shall be held on such date as may be determined by the Board of
Directors. The business to be transacted at such meeting shall be the election
of directors and such other business as shall be properly brought before the
meeting.
2.2 SPECIAL MEETINGS. A special meeting of shareholders of the Board of
Directors or the holders of at least ten percent (10%) of all the votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting sign, date, and deliver to the Corporation's Secretary one (1) or more
written demands for the meeting describing the purpose or purposes for which
such special meeting is to be held, including all statements necessary to make
any statement of such purpose not incomplete, false or misleading. Only business
within the purpose or purposes described in the meeting notice may be conducted
at a special shareholders' meeting.
2.3 PLACE OF MEETINGS. The Board of Directors may designate any place,
either within or without the State of Delaware, as the place of meeting for any
annual meeting or for any special meeting. If no place is fixed by the Board of
Directors, the meeting shall be held at the principal office of the Corporation.
2.4 NOTICE OF MEETINGS; WAIVER.
(A) NOTICE. Notice of the date, time, and place of each annual and
special shareholders' meeting and, in the case of a special meeting, a
description of the purpose or purposes for which the meeting is called, shall be
given no fewer than ten (10) days nor more than two (2) months before the date
of the meeting. Such notice shall comply with the requirements of Article XI of
these Bylaws.
(B) WAIVER. A shareholder may waive any notice required by law, the
Corporation's Certificate of Incorporation (the "Certificate"), or these Bylaws
before or after the date and time stated in such notice. Except as provided in
the next sentence, the waiver must be in writing, be signed by the shareholder
entitled to the notice, and be delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. A shareholder's attendance at a
meeting waives objection to lack of notice or defective notice of the meeting,
unless the
shareholder at the beginning of the meeting (or promptly upon his arrival)
objects to holding the meeting or transacting business at the meeting because
the meeting is not lawfully called or convened.
2.5 RECORD DATE. The Board of Directors shall fix as the record date for
the determination of shareholders entitled to notice of a shareholders' meeting,
to demand a special meeting, to vote, or to take any other action, a date not
more than sixty (60) days nor less than ten (10) days before the meeting or
action requiring a determination of shareholders.
A record date fixed for a shareholders' meeting is effective for any
adjournment of such meeting unless the Board of Directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than four (4)
months after the date fixed for the original meeting. If the adjournment is for
more than thirty (30) 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.
2.6 SHAREHOLDERS' LIST. At least ten (10) days before every meeting, the
Corporation shall prepare an alphabetical list of the names of all shareholders
who are entitled to vote at the shareholders' meeting. Such list will show the
address of and number of shares held by each shareholder. The shareholders' list
will be available for inspection by any shareholder for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, for which the list was prepared and continuing
through the meeting, at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder or his agent or attorney is entitled on written demand to inspect
and, subject to the requirements of the Delaware General Corporation Law (the
"Act"), to copy the list, during regular business hours and at his or her
expense, during the period it is available for inspection.
2.7 VOTING GROUPS: QUORUM: ADJOURNMENT. All shares entitled to vote and be
counted together collectively on a matter at a meeting of shareholders shall be
a "voting group." Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares exists with
respect to that matter. Except as otherwise required by the Act or provided in
the Certificate, a majority of the votes entitled to be cast on a matter by a
voting group constitutes a quorum of that voting group for action on that
matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
If a quorum of a voting group shall not be present or represented at any
meeting, the shares entitled to vote thereat shall have power to adjourn the
meeting to a different date, time or place without notice other than
announcement at the meeting of the new time, date or place to which the meeting
is adjourned. At any adjourned meeting at which a quorum of any voting group
shall be present or represented, any business may be transacted by such voting
group which might have been transacted at the meeting as originally called.
2.8 VOTING OF SHARES. Unless otherwise provided by the Act or the
Certificate, each
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outstanding share is entitled to one (1) vote on each matter voted on at a
shareholders' meeting. If a quorum exists, approval of action on a matter (other
than the election of directors) is received if a majority of shares present and
entitled to vote approve the action. Unless otherwise provided in the
Certificate, directors are elected by a plurality of the votes cast by the
shares present and entitled to vote in the election at a meeting at which a
quorum is present.
2.9 PROXIES. A shareholder may vote his or her shares in person or by
proxy. A shareholder may appoint a proxy to vote or otherwise act for him or her
by signing an appointment either personally or through an attorney-in-fact. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes. An appointment is valid for
eleven (11) months unless another period is expressly provided in the
appointment form. An appointment of a proxy is revocable by the shareholder
unless the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest.
2.10 ACCEPTANCE OF SHAREHOLDER DOCUMENTS. If the name signed on a
shareholder document (a vote, consent, waiver, or proxy appointment) corresponds
to the name of a shareholder, the Corporation, if acting in good faith, is
entitled to accept such shareholder document and give it effect as the act of
the shareholder. If the name signed on such shareholder document does not
correspond to the name of a shareholder, the Corporation, if acting in good
faith, is nevertheless entitled to accept such shareholder document and to give
it effect as the act of the shareholder if
(I) the shareholder is an entity and the name signed purports to
be that of an officer or agent of the entity;
(II) the name signed purports to be that of a fiduciary
representing the shareholder and, if the Corporation requests, evidence of
fiduciary status acceptable to the Corporation has been presented with
respect to such shareholder document;
(III) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation has been presented
with respect to the shareholder document;
(IV) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the Corporation
requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder has been presented with respect to
such shareholder document; or
(V) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one (1)
of the co-owners, and the person signing appears to be acting on behalf of
all the co-owners.
The Corporation is entitled to reject a shareholder document if the
Secretary or other officer or agent authorized to tabulate votes, acting in good
faith, has a reasonable basis for doubt about the validity of the signature on
such shareholder document or about the signatory's authority to sign for the
shareholder.
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2.11 ACTION WITHOUT MEETING. Action required or permitted by the Act to be
taken at a shareholders' meeting may be taken without a meeting.
The action must be evidenced by one or more written consents describing the
action taken, and be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present, and delivered to the Corporation for inclusion in the minutes or for
filing with the corporate records.
If the Act or the Certificate requires that notice of a proposed action be
given to nonvoting shareholders and the action is to be taken by consent of the
voting shareholders, then the Corporation shall give its nonvoting shareholders
written notice of the proposed action at least ten (10) days before such action
is taken. Such notice shall contain or be accompanied by the same material that
would have been required to be sent to nonvoting shareholders in a notice of a
meeting at which the proposed action would have been submitted to the
shareholders for action.
2.12 PRESIDING OFFICER AND SECRETARY. Meetings of the shareholders shall be
presided over by the Chairman, or if the Chairman is not present or if the
Corporation shall not have a Chairman, by the President, or if neither the
Chairman nor the President is present, by a chairman chosen by a majority of the
shareholders entitled to vote at such meeting. The Secretary or, in the
Secretary's absence, an Assistant Secretary shall act as secretary of every
meeting, but if neither the Secretary nor an Assistant Secretary is present, a
majority of the shareholders entitled to vote at such meeting shall choose any
person present to act as secretary of the meeting.
2.13 NOTICE OF NOMINATIONS. Nominations for the election of directors may
be made by the Board of Directors or a committee appointed by the Board of
Directors authorized to make such nominations or by any shareholder entitled to
vote in the election of directors generally. However, any such shareholder
nomination may be made only if written notice of such nomination has been given,
either by personal delivery or the United States mail, postage prepaid, to the
Secretary of the Corporation not later than (a) with respect to an election to
be held at an annual meeting of shareholders, not less than sixty (6) nor more
than ninety (90) days in advance of the anniversary date of the previous year's
annual meeting, and (b) with respect to an election to be held at a special
meeting of shareholders for the election of directors called other than by
written request of a shareholder, the close of business on the tenth day
following the date on which notice of such meeting is first given to
shareholders, and (c) in the case of a special meeting of shareholders duly
called upon the written request of a shareholder to fill a vacancy or vacancies
(then existing or proposed to be created by removal at such meeting), within ten
(10) business days of such written request. In the case of any nomination by the
Board of Directors or a committee appointed by the Board of Directors authorized
to make such nominations, compliance with the proxy rules of the Securities and
Exchange Commission shall constitute compliance with the notice provisions of
the preceding sentence.
In the case of any nomination by a shareholder, each such notice shall set
forth: (a) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address, and
residence address of such person, (ii) the principal
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occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person, and (iv) any other
information relating to such person that is required to be disclosed in
solicitations of proxies with respect to nominees for election as directors,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director, if elected); and
(b) as to the shareholder giving the notice (i) the name and address, as they
appear on the Corporation's books, of such shareholder, and (ii) the class and
number of shares of the Corporation which are beneficially owned by such
shareholder; and (c) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder. The President or chairman of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
2.14 NOTICE OF NEW BUSINESS. At an annual meeting of the shareholders only
such new business shall be conducted, and only such proposals shall be acted
upon, as have been properly brought before the meeting. To be properly brought
before the annual meeting such new business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a shareholder. For a proposal to be properly brought before an
annual meeting by a shareholder, the shareholder must have given notice thereof
in writing to the Secretary of the Corporation be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
sixty (60) nor more than ninety (90) days in advance of the anniversary date of
the previous year's annual meeting.
A shareholder's notice to the Secretary shall set forth as to each matter
the shareholder' proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder, and (d) any financial interest of the
shareholder in such proposal.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at an annual meeting except in accordance with the procedures set
forth in this Section 2.14. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that new business or any
shareholder proposal was not properly brought before the meeting in accordance
with the provisions of this Section 2.14, and if he or she should so determine,
he or she shall so declare to the meeting and any such business or proposal not
properly brought before the meeting shall not be acted upon at the meeting. This
provision shall not prevent the consideration and approval or disapproval at the
annual meeting of reports of officers, directors and committees, but in
connection with such reports no new business shall be acted upon at such annual
meeting unless stated and filed as herein provided.
2.15 CONDUCT OF MEETINGS. Meetings of the shareholders shall generally
follow the following:
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(A) The Chairman of the meeting shall have absolute authority over the
matters of procedure, and there shall be no appeal from the ruling of the
Chairman. If, in his or her absolute discretion, the Chairman deems it advisable
to dispense with the rules of parliamentary procedure as to any meeting of
shareholders or part thereof, he or she shall so state and shall state the rules
under which the meeting or appropriate part thereof shall be conducted.
(B) If disorder should arise which prevents the continuation of the
legitimate business of the meeting, the Chairman may quit the chair and announce
the adjournment of the meeting, and upon so doing, the meeting will immediately
be adjourned.
(C) The Chairman may ask or require that anyone not a bona fide
shareholder or proxy leave the meeting.
(D) The resolution or motion shall be considered for vote only if
proposed by a shareholder or a duly authorized proxy and seconded by a
shareholder or duly authorized proxy other than the individual who proposed the
resolution or motion.
ARTICLE III.
DIRECTORS
3.1 POWERS AND DUTIES. All corporate powers shall be exercised by or under
the authority of and the business and affairs of the Corporation managed under
the direction of the Board of Directors.
3.2 NUMBER AND TERM.
(A) NUMBER. The Board of Directors may consist of between one and ten
members, the exact number of directors, or the range for the size of the Board,
or whether the size of the Board shall be fixed or variable-range, may be fixed,
changed, or determined from time to time by the Board of Directors.
(B) TERM. Each Director shall be elected at the annual shareholder's
meeting and shall hold office until the next annual meeting and until his or her
successor is duly elected and qualified, subject, however, to prior death,
resignation, retirement, disqualification, or removal from office.
3.3 MEETINGS: NOTICE. The Board of Directors may hold regular and special
meetings either within or without the State of Delaware. The Board of Directors
may permit any or all directors to participate in a regular or special meeting
by, or conduct the meeting through the use of, any means of communication,
including telephone meetings, by which all directors participating may
simultaneously hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
(A) REGULAR MEETINGS. Unless the Certificate otherwise provides,
regular meetings of the Board of Directors may be held without notice of the
date, time, place, or purpose of the meeting.
(B) SPECIAL MEETINGS. Special meetings of the Board of Directors may
be
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called by the Chairman, the President, or any two directors. Unless the
Certificate otherwise provides, special meetings must be preceded by at least
twenty-four hours' notice of the date, time, and place of the meeting but need
not describe the purpose of such meeting. Such notice shall comply with the
requirements of Article XI of these Bylaws.
(C) ADJOURNED MEETINGS. Notice of an adjourned meeting need not be
given if the time and place to which the meeting is adjourned are fixed at the
meeting at which the adjournment is taken, and if the period of adjournment does
not exceed one month in any adjournment.
(D) WAIVER OF NOTICE. A director may waive any required notice before
or after the date and time stated in the notice. Except as provided in the next
sentence, the waiver must be in writing, signed by the director, and filed with
the minutes or corporate records. A director's attendance at or participation in
a meeting waives any required notice to him or her of such meeting unless the
director at the beginning of the meeting (or promptly upon his arrival) objects
to holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
3.4 QUORUM. Unless the Certificate requires a greater number, a quorum of
the Board of Directors consists of a majority of the fixed number of directors
if the Corporation has a fixed board size or a majority of the number of
directors prescribed, or if no number is prescribed, the number in office
immediately before the meeting begins, if the Corporation has a variable-range
board.
3.5 VOTING. If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the Board of Directors,
unless the Certificate or these Bylaws require the vote of a greater number of
directors. A director who is present at a meeting of the Board of Directors when
corporate action is taken is deemed to have assented to such action unless:
(I) he or she objects at the beginning of the meeting (or
promptly upon his or her arrival) to holding the meeting or transacting
business at the meeting;
(II) his or her dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(III) he or she delivers written notice of his or her dissent or
abstention to the presiding officer of the meeting before its adjournment
or to the Corporation immediately after adjournment of the meeting. The
right of dissent or abstention is not available to a director who votes in
favor of the action taken.
3.6 ACTION WITHOUT MEETING. Unless the Certificate otherwise restricts, any
action required or permitted by the Act to be taken at a Board of Directors
meeting may be taken without a meeting. Such action must be evidenced by written
consents describing the action taken and signed by all directors, indicating the
director's vote or abstention on the action, which consents shall be included in
the minutes or filed with the corporate records reflecting the action taken.
Action taken by consent is effective when the last director signs the consent,
unless the consent specifies a different effective date.
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3.7 COMPENSATION. Directors and members of any committee created by the
Board of Directors shall be entitled to such reasonable compensation for their
services as directors and members of such committee as shall be fixed from time
to time by the Board, and shall also be entitled to reimbursement for any
reasonable expenses incurred in attending meetings of the Board or of any such
committee meetings. Any director receiving such compensation shall not be barred
from serving the Corporation in any other capacity and receiving reasonable
compensation for such other services.
3.8 RESIGNATION. A director may resign at any time by delivering written
notice to the Board of Directors, to the Chairman or President, or to the
Secretary of the Corporation. A resignation is effective when the notice is
delivered unless the notice specifies a later effective date.
3.9 VACANCIES. Unless the Certificate otherwise provides, if a vacancy
occurs on the Board of Directors, including a vacancy resulting from an increase
in the number of directors or a vacancy resulting from the removal of a director
with or without cause, either the shareholders or the Board of Directors may
fill such vacancy. If the vacancy is filled by the shareholders, it shall be
filled by a plurality of the votes cast at a meeting at which a quorum is
present. If the directors remaining in office constitute fewer than a quorum of
the Board of Directors, they may fill such vacancy by the affirmative vote of a
majority of all the directors remaining in office.
3.10 REMOVAL OF DIRECTORS.
(A) BY SHAREHOLDERS. The shareholders may remove one or more
directors, but only for cause, by the vote required by the Certificate.
(B) BY DIRECTORS. If so provided by the Certificate, any of the
directors may be removed for cause by the affirmative vote of a majority of the
entire Board of Directors.
(C) GENERAL. A director may be removed by the shareholders or
directors only at a meeting called for the purpose of removing him or her, and
the meeting notice must state that the purpose, or one of the purposes, of the
meeting is removal of directors.
ARTICLE IV.
COMMITTEES
The Board of Directors may create one or more committees, each consisting
of one or more members. All members of committees of the Board of Directors
which exercise powers of the Board of Directors must be members of the Board of
Directors and serve at the pleasure of the Board of Directors.
The creation of a committee and appointment of a member or members to it
must be approved by the greater of (i) a majority of all directors in office
when the action is taken or (ii) the number of directors required by the
Certificate or these Bylaws to take action.
Unless otherwise provided in the Act, to the extent specified by the Board
of Directors each committee may exercise the authority of the Board of
Directors. All such committees and their members shall be governed by the same
statutory requirements regarding meetings, action
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without meetings, notice and waiver of notice, quorum, and voting requirements
as are applicable to the Board of Directors and its members.
ARTICLE V.
OFFICERS
5.1 NUMBER. The officers of the Corporation shall be a Chairman, a
President, a Chief Executive Officer, a Chief Financial Officer, a Treasurer, a
Secretary, and such other officers as may be from time to time appointed by the
Board of Directors or by the Chairman with the Board of Directors' approval. One
person may simultaneously hold more than one office, except the President may
not simultaneously hold the office of Secretary.
5.2 APPOINTMENT. The principal officers shall be appointed annually by the
Board of Directors at the first meeting of the Board following the annual
meeting of the shareholders, or as soon thereafter as is conveniently possible.
Each officer shall serve at the pleasure of the Board of Directors and until his
or her successor shall have been appointed, or until his or her death,
resignation, or removal.
5.3 RESIGNATION AND REMOVAL. An officer may resign at any time by
delivering notice to the Corporation. Such resignation is effective when such
notice is delivered unless such notice specifies a later effective date. An
officer's resignation does not affect the Corporation's contract rights, if any,
with the officer.
The Board of Directors may remove any officer at any time with or without
cause, but such removal shall not prejudice the contract rights, if any, of the
person so removed.
5.4 VACANCIES. Any vacancy in an office for any mason may be filled for the
unexpired portion of the term by the Board of Directors.
5.5 DUTIES.
(A) CHAIRMAN. The Chairman shall preside at all meetings of the
shareholders and the Board of Directors, and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
(B) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Corporation shall have general supervision over the active management of the
business of the Corporation.
(C) PRESIDENT. The President shall have the general powers and duties
of supervision and management usually vested in the office of the President of a
corporation and shall perform such other duties as the Board of Directors may
from time to time prescribe.
(D) VICE PRESIDENT. The Vice President or Vice Presidents (if any)
shall be active executive officers of the Corporation, shall assist the Chairman
and the President in the active management of the business, and shall perform
such other duties as the Board of Directors may from time to time prescribe.
(E) SECRETARY, AND ASSISTANT SECRETARY. The Secretary or Assistant
Secretary
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shall attend all meetings of the Board of Directors and all meetings of the
shareholders and shall prepare and record all votes and all minutes of all such
meetings in a book to be kept for that purpose. He or she shall also perform
like duties for any committee when required. The Secretary or Assistant
Secretary shall give, or cause to be given, notice of all meetings of the
shareholders and of the Board of Directors when required, and unless directed
otherwise by the Board of Directors, shall keep a stock record containing the
names of all persons who are shareholders of the Corporation, showing their
place of residence and the number of shares held by each of them. The Secretary
or Assistant Secretary shall have the responsibility of authenticating records
of the Corporation. The Secretary or Assistant Secretary shall perform such
other duties as may be prescribed from time to time by the Board of Directors.
(F) TREASURER. The Treasurer shall have custody of the Corporation's
funds' and securities, shall keep or cause to be kept full and accurate account
of receipts and disbursements in books belonging to the Corporation, and shall
deposit or cause to be deposited 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. The Treasurer shall disburse or cause to
be disbursed the funds of the Corporation as required in the ordinary course of
business or as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the Chairman, the President, and directors at
the regular meetings of the Board, or whenever they may require it, an account
of all of his or her transactions as Treasurer and the financial condition of
the Corporation. He or she shall perform such other duties as may be incident to
the office or as prescribed from time to time by the Board of Directors. The
Treasurer shall give the Corporation a bond, if required by the Board of
Directors, in a sum and with one or more sureties satisfactory to the Board for
the faithful performance of the duties of the office and for the restoration to
the Corporation in case of his or her death, resignation, retirement, or removal
from office, of all books, papers, vouchers, money, and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
(G) OTHER OFFICERS. Other officers appointed by the Board of Directors
shall exercise such powers and perform such duties as may be delegated to them.
(H) DELEGATION OF DUTIES. In case of the absence or disability of any
officer of the Corporation or of any person authorized to act in his or her
place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any officer, or any director, or any other person whom
it may select, during such period of absence or disability.
5.6 INDEMNIFICATION, ADVANCEMENT OF EXPENSES, AND INSURANCE.
(A) INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The Corporation shall
indemnify and advance expenses to each director and officer of the Corporation,
or any person who may have served at the request of the Corporation's Board of
Directors or its President or Chief Executive Officer as a director or officer
of another corporation (and, in either case, such person's heirs, executors, and
administrators), to the full extent allowed by the laws of the State of
Delaware, both as now in effect and as hereafter adopted. The Corporation may
indemnify and advance expenses to any employee or agent of the Corporation who
is not a director or officer (and such person's heirs, executors, and
administrators), or to any other party, as permitted in Section 145 of the Act.
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(B) NON-EXCLUSIVITY OF RIGHTS. The indemnification and expense
advancement provisions of subsection (a) of this Section 5.6 shall not be
exclusive of any other right which any person (and such person's heirs,
executors, and administrators) may have or hereafter acquire under any statute,
provision of the Certificate, provision of these Bylaws, resolution adopted by
the shareholders, resolution adopted by the Board of Directors, agreement, or
insurance (purchased by the Corporation or otherwise), both as to action in such
person's official capacity and as to action in another capacity.
(C) INSURANCE. The Corporation may maintain insurance, at its expense,
to protect itself and any individual who is or was a director, officer,
employee, or agent of the' Corporation, or who, while a director, officer,
employee, or agent of the Corporation, is or was serving at the request of the
Corporation's Board of Directors or its Chief Executive Officer as a director,
officer, partner, trustee, employee, or agent of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise
against any expense, liability, or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability, or loss
under this Article or the Act.
ARTICLE VI.
SHARES OF STOCK
6.1 SHARES WITH OR WITHOUT CERTIFICATES. The Board of Directors may
authorize that some or all of the shares of any or all of the Corporation's
classes or series of stock be evidenced by a certificate or certificates of
stock. The Board of Directors may also authorize the issue of some or all of the
shares of any or all of the Corporation's classes or series of stock without
certificates. The rights and obligations of shareholders with the same class
and/or series of stock shall be identical whether or not their shares are
represented by certificates.
(A) SHARES WITH CERTIFICATES. If the Board of Directors chooses to
issue shares of stock evidenced by a certificate or certificates, each
individual certificate shall include the following on its face: (i) the
Corporation's name, (ii) the fact that the Corporation is organized under the
laws of the State of Delaware, (iii) the name of the person to whom the
certificate is issued, (iv) the number of shares represented thereby, (v) the
class of shares and the designation of the series, if any, which the certificate
represents, and (vi) such other information as applicable law may require or as
may be lawful.
If the Corporation is authorized to issue different classes of shares or
different series within a class, the designations, relative rights, preferences,
and limitations determined for each series (and the authority of the Board of
Directors to determine variations for future series) shall be summarized on the
front or back of each certificate. Alternatively, each certificate shall state
on its front or back that the Corporation will furnish the shareholder this
information in writing, without charge, upon request.
Each certificate of stock issued by the Corporation shall be signed (either
manually or by facsimile) by any two officers of the Corporation. If the person
who signed a certificate no longer holds office when the certificate is issued,
the certificate is nonetheless valid.
(B) SHARES WITHOUT CERTIFICATES. If the Board of Directors chooses to
issue
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shares of stock without certificates, the Corporation, if required by the Act,
shall, within a reasonable time after the issue or transfer of shares without
certificates, send the shareholder a written statement of the information
required on certificates by Section 6.1 (a) of these Bylaws and any other
information required by the Act.
6.2 SUBSCRIPTIONS FOR SHARES. Subscriptions for shares of the Corporation
shall be valid only if they are in writing. Unless the subscription agreement
provides otherwise, subscriptions for shares, regardless of the time when they
are made, shall be paid in full at such time, or in such installments and at
such periods, as shall be determined by the Board of Directors. All calls for
payment on subscriptions shall be uniform as to all shares of the same class or
of the same series, unless the subscription agreement specifies otherwise.
6.3 TRANSFERS. Transfers of shares of the capital stock of the Corporation
shall be made only on the books of the Corporation by (i) the holder of record
thereof, (ii) his or her legal representative, who, upon request of the
Corporation, shall furnish proper evidence of authority to transfer, or (iii)
his or her attorney, authorized by a power of attorney duly executed and filed
with the Secretary of the Corporation or a duly appointed transfer agent. Such
transfers shall be made only upon surrender, if applicable, of the certificate
or certificates for such shares properly endorsed and with all taxes thereon
paid.
6.4 LOST. DESTROYED. OR STOLEN CERTIFICATES. No certificate for shares of
stock of the Corporation shall be issued in place of any certificate alleged to
have been lost, destroyed, or stolen except on production of evidence,
satisfactory to the Board of Directors, of such loss, destruction, or theft,
and, if the Board of Directors so requires, upon the furnishing of an indemnity
bond in such amount and with such terms and such surety as the Board of
Directors may in its discretion require.
ARTICLE VII.
CORPORATE ACTIONS
7.1 CONTRACTS. Unless otherwise required by the Board of Directors, the
Chairman, the President, the Chief Executive Officer, the Chief Financial
Officer, or any Vice President shall execute contracts or other instruments on
behalf of and in the name of the Corporation. The Board of Directors may from
time to time authorize any other officer, assistant officer, or agent to enter
into any contract or execute any instrument in the name of and on behalf of the
Corporation as it may deem appropriate, and such authority may be general or
confined to specific instances.
7.2 LOANS. No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by the
Chairman, the President, the Chief Executive Officer, the Chief Financial
Officer, or the Treasurer. Such authority may be general or confined to specific
instances.
7.3 CHECKS. Drafts. Etc. Unless otherwise required by the Board of
Directors, all checks, drafts, bills of exchange, and other negotiable
instruments of the Corporation shall be signed by either the Chairman, the
President, the Chief Executive Officer, the Chief Financial Officer, a Vice
President, the Treasurer, or such other officer, assistant officer, or agent of
the
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Corporation as may be authorized so to do by the Board of Directors. Such
authority may be general or confined to specific business, and, if so directed
by the Board, the signatures of two or more such officers may be required.
7.4 DEPOSITS. All funds of the Company not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks or
other depositories as the Board of Directors may authorize.
7.5 VOTING SECURITIES HELD BY THE CORPORATION. Unless otherwise required by
the Board of Directors, the Chairman or the President shall have full power and
authority on behalf of the Corporation to attend any meeting of security
holders, or to take action on written consent as a security holder, of other
corporations in which the Corporation may hold securities. In connection
therewith the Chairman or the President shall possess and may exercise any and
all rights and powers incident to the ownership of such securities which the
Corporation possesses. The Board of Directors may, from time to time, confer
like powers upon any other person or persons.
7.6 DIVIDENDS. The Board of Directors may, from time to time, declare, and
the Corporation may pay, dividends on its outstanding shares of capital stock in
the manner and upon the terms and conditions provided by applicable law. The
record date for the determination of shareholders entitled to receive the
payment of any dividend shall be determined by the Board of Directors, but which
in any event shall not be less than ten (10) days prior to the date of such
payment.
ARTICLE VIII.
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors, and in the absence of such determination, shall be the calendar year.
ARTICLE IX.
CORPORATE SEAL
The Corporation shall not have a corporate seal.
ARTICLE X.
AMENDMENT OF BYLAWS
These Bylaws may be altered, amended, repealed, or restated, and new Bylaws
may be adopted, at any meeting of the shareholders by the affirmative vote of a
majority of the issued and outstanding stock having voting power, voting
together as a single class, or by the affirmative vote of a majority of the
members of the Board of Directors who are present at any regular or special
meeting.
ARTICLE XI.
NOTICE
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Unless otherwise provided for in these Bylaws, any notice required shall be
in writing except that oral notice is effective if it is reasonable under the
circumstances and not prohibited by the Certificate or these Bylaws. Notice may
be communicated in person, by telephone, telegraph, teletype or other form of
wire or wireless communication, or by mail or private carrier. If these forms of
personal notice are impracticable, notice may be communicated by a newspaper of
general circulation in the area where published, or by radio, television, or
other form of public broadcast communication. Written notice to a domestic or
foreign corporation authorized to transact business in Delaware may be addressed
to its registered agent at its registered office or to the corporation or its
secretary at its principal office as shown in its most recent annual report or,
in the case of a foreign corporation that has not yet delivered an annual
report, in its application for a certificate of authority.
Written notice to shareholders, if in a comprehensible form, is effective
when mailed, if mailed postpaid and correctly addressed to the shareholder's
address shown in the Corporation's current record of shareholders. Except as
provided above, written notice, if in a comprehensible form, is effective at the
earliest of the following: (a) when received; (b) five (5) days after its
deposit in the United States mail, if mailed correctly addressed and with first
class postage affixed thereon; (c) on the date shown on the return receipt, if
sent by registered or certified mail, return receipt requested, and the receipt
is signed by or on behalf of the addressee; or (d) twenty (20) days after its
deposit in the United States mail, as evidenced by the postmark if mailed
correctly addressed, and with other than first class, registered, or certified
postage affixed. Oral notice is effective when communicated if communicated in a
comprehensible manner.
As Adopted by the Board of Directors on
December 31, 1999
/s/ Ted S. MacDonald
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Ted S. MacDonald, Secretary
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