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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
ALLIANCE MEDICAL CORPORATION
I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION
1.01. Certain References. Any reference herein made to law will be
deemed to refer to the law of the State of Delaware, including any applicable
provision of Chapter 1 of Title 8 of the Delaware Statutes, or any successor
statutes, as from time to time amended and in effect (sometimes referred to
herein as the "Delaware General Corporation Law"). Any reference herein made to
the corporation's Certificate will be deemed to refer to its Certificate of
Incorporation and all amendments thereto as at any given time on file with the
Delaware Secretary of State (any reference herein to that office being intended
to include any successor to the incorporating and related functions being
performed by that office at the date of the initial adoption of these Bylaws).
Except as otherwise required by law, the term "stockholder" as used herein shall
mean one who is a holder of record of shares of the corporation.
1.02. Seniority. The law and the Certificate (in that order of
precedence) will in all respects be considered senior and superior to these
Bylaws, with any inconsistency to be resolved in favor of the law and such
Certificate (in that order of precedence), and with these Bylaws to be deemed
automatically amended from time to time to eliminate any such inconsistency
which may then exist.
1.03. Computation of Time. The time during which an act is required to
be done, including the time for the giving of any required notice herein, shall
be computed by excluding the first day or hour, as the case may be, and
including the last day or hour.
II. OFFICES
2.01. Principal Office. The principal office or place of business of
the corporation in the State of Delaware shall be the registered office of the
corporation in the State of Delaware. The corporation may change its registered
office from time to time in accordance with the relevant provisions of the
Delaware General Corporation Law. The corporation may have such other 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.
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III. STOCKHOLDERS
3.01. Annual Stockholder Meeting. The annual meeting of the
stockholders shall be held on such date, at such time and place, either within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders will
elect members of the Board of Directors by a plurality vote and transact such
other business as may properly come before the meeting.
3.02. Special Stockholder Meetings. Subject to the rights of the holder
of any series of preferred stock of the corporation, unless otherwise prescribed
by law or by the Certificate, special meetings of the corporation's
stockholders, for any purpose, may be called by the Chairman, the President or
Chief Executive Officer, and will be called by the President, Chief Executive
Officer or the Secretary upon a written request signed by a majority of the
Board of Directors, or by the holders of at least a majority of the issued and
outstanding shares of the capital stock of the corporation entitled to vote at
such meeting. Any such written request by stockholders must state the purpose or
purposes of the proposed meeting and must contain the information set forth in
and otherwise be in conformity with Section 3.13. Any business to be transacted
at a special meeting of stockholders must be confined to the purposes stated in
the notice of the stockholders' meeting and to such additional matters as the
chairman of the meeting may rule to be relevant to such purposes. The Board of
Directors will designate the place for any meeting of stockholders, and if no
designation is made, the stockholders' meeting will take place at the principal
office of the corporation.
3.03. Notice of Stockholders Meetings.
(a) Required Notice. Except as otherwise allowed or required
by law, written notice stating the place, day and hour of any annual or special
stockholders meeting shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting by or at the direction of the person or
persons calling the meeting, to each stockholder entitled to vote at such
meeting and to any other stockholder entitled to receive notice of the meeting
by law or the Certificate. Such notice may be given either personally or by
sending a copy thereof through the mail, by telegraph, by private delivery
service (including overnight courier), or by facsimile transmission, charges
prepaid, to each stockholder at his or her address as it appears on the records
of the corporation. If the notice is sent by mail, by telegraph or by private
delivery service, it shall be deemed to have been given to the person entitled
thereto when deposited in the United States mail or with a telegraph office or
private delivery service for transmission to such person. If the notice is sent
by facsimile transmission, it shall be deemed to have been given upon
transmission, if transmission occurs on a business day before 5:00 p.m. at the
place of receipt, and upon the business day following transmission, if
transmission occurs after 5:00 p.m.
(b) Adjourned Meeting. If any stockholders meeting is
adjourned to a different date, time, or place, notice need not be given of the
new date, time, and place, if the new date, time, and place are announced at the
meeting at which the adjournment is taken. But if the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is
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fixed for the adjourned meeting, then notice of the adjourned meeting shall be
given to each stockholder of record entitled to such notice pursuant to Section
3.03(a) above.
(c) Waiver of Notice. Any stockholder may waive notice of a
meeting (or any notice of any other action required to be given by the Delaware
General Corporation Law, the corporation's Certificate, or these Bylaws), at any
time before, during, or after the meeting or other action, by a writing signed
by the stockholder entitled to the notice. Each such waiver shall be delivered
to the corporation for inclusion in the minutes or filing with the corporate
records. Attendance of a stockholder at a meeting shall constitute a waiver of
notice of the meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(d) Contents of Notice. The notice of each special
stockholders meeting shall include a description of the purpose or purposes for
which the meeting is called. Except as required by law or the corporation's
Certificate, the notice of an annual stockholders meeting need not include a
description of the purpose or purposes for which the meeting is called.
3.04. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or in order to make a determination of stockholders for
any other proper purpose, the Board of Directors may fix a date as the record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors. In the case of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, such record date shall not be more than
sixty (60) days nor less than ten (10) days prior to the date of such meeting.
In the case of determining stockholders entitled to consent to corporate action
in writing without a meeting, the record date shall not be more than ten (10)
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. In the case of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the record date shall be not more than sixty (60) days prior to such action. If
no record date is so fixed by the Board of Directors, the record date for the
determination of stockholders shall be as provided in the Delaware General
Corporation Law.
When a determination of stockholders entitled to notice of or to vote
at any meeting of stockholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date.
3.05. Stockholder List. The officer who has charge of the stock ledger
of the corporation shall make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address and the number
of shares held by each. The stockholder list shall be available for inspection
by any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting at a
place within the city where the meeting is to be held, which place shall be
specified in the meeting
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notice, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. Except as otherwise provided by law, failure to comply with this
section shall not affect the validity of any action taken at the meeting.
3.06. Stockholder Quorum and Voting Requirements. Unless otherwise
provided in the Certificate, these Bylaws or as required by law,
(a) a majority of the shares entitled to vote, present in
person or represented by proxy, shall constitute a quorum at a meeting of
stockholders;
(b) in all matters other than the election of directors, the
affirmative vote of the majority of shares voting for or against the subject
matter shall be at the act of the stockholders;
(c) directors shall be elected by a plurality of the votes
cast at the meeting; and
(d) where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter and the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
Except as provided below, voting will be by ballot on any question as
to which a ballot vote is demanded prior to the time the voting begins by any
person entitled to vote on such question; otherwise, a voice vote will suffice.
Unless otherwise provided in the Certificate, all elections of directors will be
by written ballot. No ballot or change of vote will be accepted after the polls
have been declared closed following the ending of the announced time for voting.
3.07. Proxies. At all meetings of stockholders, a stockholder may vote
in person or by proxy duly executed in writing by the stockholder or the
stockholder's duly authorized attorney-in-fact. Such proxy shall comply with law
and shall be filed with the Secretary of the corporation or other person
authorized to tabulate votes before or at the time of the meeting. No proxy
shall be valid after three (3) years from the date of its execution unless
otherwise provided in the proxy. The burden of proving the validity of any
undated, irrevocable, or otherwise contested proxy at a meeting of the
stockholders will rest with the person seeking to exercise the same. A facsimile
appearing to have been transmitted by a stockholder or by such stockholder's
duly authorized attorney-in-fact may be accepted as a sufficiently written and
executed proxy.
3.08. Voting of Shares. Unless otherwise provided in the Certificate or
the Delaware General Corporation Law, each outstanding share entitled to vote
shall be entitled to one (1) vote upon each matter submitted to a vote at a
meeting of stockholders.
3.09. Election Inspectors. The Board of Directors, in advance of any
meeting of the stockholders, may appoint an election inspector or inspectors to
act at such meeting (and at any
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adjournment thereof). If an election inspector or inspectors are not so
appointed, the chairman of the meeting may, or upon request of any person
entitled to vote at the meeting will, make such appointment. If any person
appointed as an inspector fails to appear or to act, a substitute may be
appointed by the chairman of the meeting. If appointed, the election inspector
or inspectors (acting through a majority of them if there be more than one) will
determine the number of shares outstanding, the authenticity, validity, and
effect of proxies, the credentials of persons purporting to be stockholders or
persons named or referred to in proxies, and the number of shares represented at
the meeting in person and by proxy; will receive and count votes, ballots, and
consents and announce the results thereof; will hear and determine all
challenges and questions pertaining to proxies and voting; and, in general, will
perform such acts as may be proper to conduct elections and voting with complete
fairness to all stockholders. No such election inspector need be a stockholder
of the corporation.
3.10. Organization and Conduct of Meetings. Each meeting of the
stockholders will be called to order and thereafter chaired by the Chairman of
the Board of Directors if there is one, or, if not, or if the Chairman of the
Board is absent or so requests, then by the President, or if both the Chairman
of the Board and the President are unavailable, then by such other officer of
the corporation or such stockholder as may be appointed by the Board of
Directors. The corporation's Secretary or in his or her absence, an Assistant
Secretary will act as secretary of each meeting of the stockholders. If neither
the Secretary nor an Assistant Secretary is in attendance, the chairman of the
meeting may appoint any person (whether a stockholder or not) to act as
secretary for the meeting. After calling a meeting to order, the chairman
thereof may require the registration of all stockholders intending to vote in
person and the filing of all proxies with the election inspector or inspectors,
if one or more have been appointed (or, if not, with the secretary of the
meeting). After the announced time for such filing of proxies has ended, no
further proxies or changes, substitutions, or revocations of proxies will be
accepted. If directors are to be elected, a tabulation of the proxies so filed
will, if any person entitled to vote in such election so requests, be announced
at the meeting (or adjournment thereof) prior to the closing of the election
polls. Absent a showing of bad faith on his or her part, the chairman of a
meeting will, among other things, have absolute authority to fix the period of
time allowed for the registration of stockholders and the filing of proxies, to
determine the order of business to be conducted at such meeting, and to
establish reasonable rules for expediting the business of the meeting and
preserving the orderly conduct thereof (including any informal, or question and
answer portions thereof).
3.11. Stockholder Approval or Ratification. The Board of Directors may
submit any contract or act for approval or ratification of the stockholders at a
duly constituted meeting of the stockholders. Except as otherwise required by
law, if any contract or act so submitted is approved or ratified by a majority
of the votes cast thereon at such meeting, the same will be valid and as binding
upon the corporation and all of its stockholders as it would be if it were the
act of its stockholders.
3.12. Informalities and Irregularities. All informalities or
irregularities in any call or notice of a meeting of the stockholders or in the
areas of credentials, proxies, quorums, voting, and similar matters, will be
deemed waived if no objection is made at the meeting.
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3.13. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the corporation. Nominations of persons for election to the Board
of Directors may be made at any annual meeting of stockholders (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 3.13 and on
the record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth in
this Section 3.13.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the corporation, as prescribed below.
No person shall be elected to the Board of Directors of this
corporation at an annual meeting of the stockholders, or at a special meeting
called for that purpose, unless, with respect to a person nominated by a
stockholder of the corporation, a written notice of nomination of such person by
the stockholder was received by the Secretary of the corporation not earlier
than one hundred and twenty (120) days and not later than ninety (90) days prior
to the anniversary date of the immediately preceding annual meeting if an annual
meeting, or seven (7) days after notice of the meeting is mailed to stockholders
if a special meeting. Each such notice shall set forth: (a) the name and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a holder
of record of stock of the corporation entitled to vote at such meeting
(including the number of shares of stock of the corporation owned beneficially
or of record by such stockholder and the nominee or nominees) and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the stockholders 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 stockholder; (d) such other information regarding each
nominee proposed by such stockholder as would have been required to be included
in a proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had each nominee been nominated, or intended to be
nominated, by the Board of Directors; and (e) the consent of each nominee to
serve as a director of the corporation if so elected.
No person will be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 3.13. If the Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman will declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
Notwithstanding compliance with the foregoing provisions, the Board of
Directors will not be obligated to include information as to any stockholder
nominee for director in any proxy statement or other communication sent to
stockholders.
3.14. Business at Stockholder Meetings. No business may be transacted
at an annual or special meeting of stockholders, other than business that is
either (a) specified in the notice of
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meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought before
the meeting by any stockholder of the corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 3.14
and on the record date for the determination of stockholders entitled to vote at
such meeting and (ii) who complies with the notice procedures set forth in this
Section 3.14.
In addition to any other applicable requirements, for business to be
properly brought before an annual or special meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the corporation. To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at the principal executive
offices of the Company not earlier than one hundred and twenty (120) days and
not later than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty (30) days
before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the corporation that are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual or special meeting of
stockholders except business brought before the meeting in accordance with the
procedures set forth in this Section 3.14, provided, however, that, once
business has been properly brought before the meeting in accordance with such
procedures, nothing in this Section 3.14 will be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the meeting in
accordance with the foregoing procedures, the Chairman will declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
IV. BOARD OF DIRECTORS
4.01. General Powers. The business and affairs of the corporation shall
be managed by or under the direction of the Board of Directors.
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4.02. Number, Tenure, and Qualification of Directors. Unless otherwise
provided in the Certificate, the authorized number of directors will be not less
than three (3) and not more than nine (9). The number of directors in office
from time to time will be within the limits specified above, as prescribed
initially in the Certificate and thereafter as prescribed from time to time by
resolution adopted by either the stockholders or by the Board of Directors upon
the affirmative vote of at least two-thirds of the directors then in office. The
Board of Directors, upon the affirmative vote of at least two-thirds of the
directors then in office, will have the power to increase or decrease its size
within the aforesaid limits and to fill any vacancies that may occur in its
membership, whether resulting from an increase in the size of the Board or
otherwise. Each director will hold office until his or her successor is duly
elected and qualified or until his or her earlier resignation or removal.
Directors do not need to be residents of the State of Delaware or stockholders
of the corporation.
4.03. Regular Meetings of the Board of Directors. A regular annual
meeting of the Board of Directors is to be held as soon as practicable after the
adjournment of each annual meeting of the stockholders, either at the place of
the stockholders meeting or at such other place as the directors elected at the
stockholders meeting may have been informed of at or prior to the time of their
election. Additional regular meetings may be held at regular intervals at such
places and at such times as the Board of Directors may determine.
4.04. Special Meetings of the Board of Directors. Special meetings of
the Board of Directors may be held whenever and wherever called for by the
Chairman, the President, the Chief Executive Officer, or the number of directors
that would be required to constitute a quorum.
4.05. Notice of, and Waiver of Notice for, Directors Meetings. No
notice need be given of regular meetings of the Board of Directors. Notice of
the time and place (but not necessarily the purpose or all of the purposes) of
any special meeting will be given to each director in person or by telephone, or
electronic mail or facsimile transmission. Notice to any director of any such
special meeting will be deemed given sufficiently in advance when (i), if given
by mail, the same is deposited in the United States mail at least four (4) days
before the meeting date, with postage thereon prepaid, (ii), if given by
facsimile transmission, the same is transmitted at least 24 hours prior to the
convening of the meeting, or (iii), if personally delivered (including by
overnight courier) or given by telephone or electronic mail, the same is handed,
or the substance thereof is communicated telephonically or electronically to the
director or to an adult member of his or her office staff or household, at least
24 hours prior to the convening of the meeting. Any director may waive notice of
any meeting and any adjournment thereof at any time before, during, or after it
is held, as provided by law. Except as provided in the next sentence below, the
waiver must be in writing, signed by the director entitled to the notice, and
filed with the minutes or corporate records. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
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4.06. Director Quorum. A majority of the total number of directors then
in office shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, unless the Certificate requires a greater
number.
4.07. Directors, Manner of Acting.
(a) The affirmative vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless the Certificate or these Bylaws require a greater percentage
and except as otherwise required by law.
(b) Any or all directors may participate in a regular or
special meeting by, or conduct the meeting through the use of, conference
telephone or similar communications equipment by means of which all persons
participating in the meeting may hear each other, in which case any required
notice of such meeting may generally describe the arrangements (rather than or
in addition to the place) for the holding thereof. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
(c) A director who is present at a meeting of the Board of
Directors or a committee of the Board of Directors when corporate action is
taken is deemed to have assented to the action taken unless: (1) the director
objects at the beginning of the meeting (or promptly upon his or her arrival) to
holding it or transacting business at the meeting; or (2) his or her dissent or
abstention from the action taken is entered in the minutes of the meeting; or
(3) 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
before 5:00 p.m. on the next business day after the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
4.08. Director Action Without a Meeting. Any action required or
permitted to be taken by the Board of Directors at a meeting may be taken
without a meeting if the action is taken by unanimous written consent of the
Board of Directors as evidenced by one (1) or more written or electronic
consents describing the action taken, signed, either manually or electronically,
by each director and filed with the minutes or proceedings of the Board of
Directors.
4.09. Removal of Directors by Stockholders. Except as limited by the
Certificate or by law, any director or the entire Board of Directors may be
removed, with or without cause; by the holders of a majority of the shares
entitled to vote at an election of directors.
4.10. Board of Director Vacancies. Unless the Certificate provides
otherwise and except as otherwise provided by law, any vacancy or newly created
directorship may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director.
4.11. Director Compensation. Unless otherwise provided in the
Certificate, by resolution of the Board of Directors, each director may be paid
his or her expenses, if any, of attendance at each meeting of the Board of
Directors or any committee thereof, and may be paid a stated salary as director
or a fixed sum for attendance at each meeting of the Board of Directors
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or any committee thereof, or both. No such payment shall preclude any director
from serving the corporation in any capacity and receiving compensation
therefor.
4.12. Director Committees.
(a) Creation of Committees. The Board of Directors may create
one (1) or more committees and appoint members of the Board of Directors to
serve on them. Each committee shall have one (1) or more members, who serve at
the pleasure of the Board of Directors.
(b) Selection of Members. The creation of a committee and
appointment of members to it shall be approved by a majority of the directors in
office when the action is taken. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
she or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(c) Required Procedures. Sections 4.03 through 4.08 of this
Article IV, which govern meetings, action without meetings, notice and waiver of
notice, and quorum and voting requirements of the Board of Directors, apply to
committees and their members.
(d) Authority. Unless limited by the Certificate and except to
the extent limited by law, each committee may exercise those aspects of the
authority of the Board of Directors which the Board of Directors confers upon
such committee in the resolution creating the committee.
4.13. Director Resignations. Any director or committee member may
resign from his or her office at any time by written notice delivered to the
corporation as required by law. Any such resignation will be effective upon its
receipt unless some later time is therein fixed, and then from that time. The
acceptance of a resignation will not be required to make it effective.
4.14. Interested Directors. No contract or transaction between the
corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because such director's vote
is counted for such purpose if (i) the material facts as to such director's
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
such director's relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or
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transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
V. OFFICERS
5.01. Executive Officers; Election; Qualifications; Term Of Office;
Resignation; Removal; Vacancies. The Board of Directors will elect a President
and Secretary, and it may, if it so determines, choose a Chairman of the Board
and a Vice Chairman of the Board from among its members. The Board of Directors
may also choose one or more executive officers, Vice Presidents, one or more
Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each
such officer will hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his or her election,
and until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any officer may resign at any time upon written
notice to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors.
5.02 Powers And Duties Of Executive Officers. The officers of the
corporation will have such powers and duties in the management of the
corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares.
(a) Content. Certificates representing shares of the
corporation shall, at a minimum, state on their face the name of the issuing
corporation and that it is formed under the laws of the State of Delaware, the
name of the person to whom issued, and the number and class of shares and the
designation of the series, if any, the certificate represents. Such certificates
shall be signed (either manually or by facsimile to the extent allowable by law)
by any of the Chairman of the Board (if any), the President, or any
Vice-President and by the Secretary or any assistant secretary or the Treasurer
or any assistant treasurer of the corporation, and may be sealed with a
corporate seal or a facsimile thereof. Each certificate for shares shall be
consecutively numbered or otherwise identified and will exhibit such information
as may be required by law. If a supply of unissued certificates bearing the
facsimile signature of a person remains when that person ceases to hold the
office of the corporation indicated on such
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certificates or ceases to be the transfer agent or registrar of the corporation,
they may still be issued by the corporation and countersigned, registered,
issued, and delivered by the corporation's transfer agent and/or registrar
thereafter, as though such person had continued to hold the office indicated on
such certificate.
(b) Legend as to Class or Series. If the corporation is
authorized to issue different classes of shares or different series within a
class, the powers, designations, preferences, and relative, participating,
optional, or other special rights applicable to each class or series and the
qualifications, limitations, or restrictions of such preference and/or rights
shall be set forth in full or summarized on the front or back of each
certificate as required by law. Alternatively, each certificate may state on its
front or back that the corporation will furnish a stockholder this information
on request and without charge.
(c) Stockholder List. The name and address of the person to
whom shares are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation.
(d) Lost Certificates. In the event of the loss, theft, or
destruction of any certificate representing shares of the corporation or of any
predecessor corporation, the corporation may issue (or, in the case of any such
shares as to which a transfer agent and/or registrar have been appointed, may
direct such transfer agent and/or registrar to countersign, register, and issue)
a new certificate, and cause the same to be delivered to the registered owner of
the shares represented thereby; provided that such owner shall have submitted
such evidence showing the circumstances of the alleged loss, theft, or
destruction, and his, her, or its ownership of the certificate, as the
corporation considers satisfactory, together with any other facts that the
corporation considers pertinent; and further provided that, if so required by
the corporation, the owner shall provide a bond or other indemnity in form and
amount satisfactory to the corporation (and to its transfer agent and/or
registrar, if applicable).
6.02. Registration of the Transfer of Shares. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the corporation will be
entitled to treat the registered owner of any share of the capital stock of the
corporation as the absolute owner thereof and, accordingly, will not be bound to
recognize any beneficial, equitable, or other claim to, or interest in, such
share on the part of any other person, whether or not it has notice thereof,
except as may expressly be provided by applicable law, including as may be
contemplated by Title 6, Subtitle I, Article 8 of the Delaware code (or any
comparable successor statutes), as in effect from time to time.
6.03. Shares Without Certificates. The Board of Directors may authorize
the issuance of uncertificated shares by the corporation and may prescribe
procedures for the issuance and registration of transfer thereof and with
respect to such other matters as the Board of Directors shall deem necessary or
appropriate.
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VII. DISTRIBUTIONS
7.01. Distributions. Subject to such restrictions or requirements as
may be imposed by applicable law or the corporation's Certificate or as may
otherwise be binding upon the corporation, the Board of Directors may from time
to time declare, and the corporation may pay or make, dividends or other
distributions to its stockholders.
VIII. CORPORATE SEAL
8.01. Corporate Seal. The Board of Directors may provide for a
corporate seal of the corporation that will have inscribed thereon any
designation including the name of the corporation, Delaware as the state of
incorporation, the year of incorporation, and the words "Corporate Seal."
IX. AMENDMENTS
9.01. Amendments. The corporation's Board of Directors may amend or
repeal the corporation's Bylaws unless the Certificate or the Delaware General
Corporation Law reserve any particular exercise of this power exclusively to the
stockholders in whole or part. The corporation's stockholders may amend or
repeal the corporation's Bylaws even though the Bylaws may also be amended or
repealed by its Board of Directors.