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Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
ORTHOPAEDIC BIOSYSTEMS LTD., INC.
I. CORPORATION ARTICLES
1.01 References to Articles. Any reference herein made to the
corporation's articles will be deemed to refer to its articles of incorporation
and all amendments thereto as at any given time on file with the Arizona
Corporation Commission, together with any and all certificates filed by the
corporation with the Arizona Corporation Commission (or any successor to its
functions) pursuant to applicable law.
1.02 Seniority. The articles and Title 10 of the Arizona Revised
Statutes will in all respects be considered senior and superior to these bylaws,
with any inconsistency to be resolved in favor of the articles and such law, and
with these bylaws to be deemed automatically amended from time to time to
eliminate any such inconsistency which may then exist.
II. CORPORATION OFFICES
2.01 Known Place of Business. The known place of business of the
corporation in the State of Arizona shall be the office of its statutory agent
unless otherwise designated in the articles or in a written statement or
document duly executed and filed with the Arizona Corporation Commission. The
corporation may have such other offices, either within or without the State of
Arizona, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
2.02 Change Thereof. The Board of Directors may change the
corporation's known place of business or its statutory agent from time to time
by filing a statement with the Arizona Corporation Commission pursuant to
applicable law.
III. SHAREHOLDERS
3.01 Annual Meetings. Each annual meeting of the shareholders is to
be held on the such date, time and place as determined by the Board of Directors
or, in the absence of action by the Board, as set forth in the notice given, or
waiver signed, with respect to such meeting pursuant to Section 3.04 below. At
the annual meeting, shareholders shall elect a Board of Directors and transact
such other business as may be properly brought before the meeting. If any annual
meeting is for any reason not held on the date determined as aforesaid, a
deferred annual meeting may thereafter be called and held in lieu thereof, at
which the same proceedings may be conducted. Any
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Director elected at any annual meeting, deferred annual meeting, or special
meeting will continue in office until the election of his or her successor,
subject to his or her earlier resignation pursuant to Section 7.01 below.
3.02 Special Meetings. Special meetings of the shareholders may be
held whenever and wherever called for by the Chairman of the Board, the
President, or the Board of Directors.
3.03 Notice of Shareholder Nominations and Business.
(a) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders: (1) pursuant to
the Corporation's notice of meeting; (ii) by or at the direction of the Board of
Directors; or (iii) by any shareholder of the Corporation who was a shareholder
of record at the time of giving of notice provided for in this Section, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section. For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to this Section, the
shareholder must have given timely notice thereof in writing to the Secretary of
the Corporation, and such business must be a proper subject for shareholder
action under Title 10 of the Arizona Revised Statutes. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting, and not later than the close of business on the
later of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made.
(b) Nominations of persons for election to the Board of Directors
may be made at a special meeting of shareholders at which directors are to be
elected pursuant to the Corporation's notice of meeting: (i) by or at the
direction of the Board of Directors; or (ii) by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section. Nominations
by shareholders of persons for election to the Board of Directors may be made at
such a special meeting of shareholders if the shareholder's notice required by
this section shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) Any shareholder's notice required by this Section shall set
forth: (i) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (A) the name, age, business address and
residence address of such person, (B) the principal occupation or
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employment of such person and (C) the class and number of shares of the
Corporation owned beneficially by such person and shall include such person's
written consent to being named as a nominee and to serving as a director if
elected; (ii) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (iii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal, is made (A) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner, and (B) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section shall be eligible for election as directors
at any meeting of shareholders. Only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with procedures set forth in this Section. The chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in this Section and, if any proposed nomination or
business is not in compliance with this Section, to declare that such defective
proposal shall be disregarded.
(e) For purposes of this Section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended, the ("Exchange
Act").
(f) Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section. Nothing in this Section shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
3.04 Notices. Not less than ten (10) nor more than sixty (60) days
(inclusive of the date of meeting) before the date of any meeting of the
shareholders and at the direction of the person or persons calling the meeting,
the Secretary of the corporation shall cause a written notice setting forth the
time, date, place, and general purposes of the meeting to be personally
delivered or deposited in the mail, with first class or airmail postage prepaid,
addressed to each shareholder of record at his, her, or its last address as it
appears on the corporation's records on the applicable record date. Any
shareholder may waive call or notice of any annual, deferred annual, or special
meeting (and any adjournment thereof) at any time before, during, or after it is
held. Attendance of a shareholder at any such meeting in person or by proxy will
automatically evidence his, her, or its waiver of call and notice of such
meeting (and any adjournment thereof) unless such shareholder or
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such shareholder's proxy is attending the meeting for the express purpose of
objecting to the transaction of business because the meeting has not been
properly called or noticed.
3.05 Shareholders of Record. For each meeting, or consent to
corporate action without a meeting, of shareholders (and at any adjournment of
such meeting), or in order to make a determination of shareholders for
determining those shareholders entitled to receive payment of any dividend, or
for any other lawful action, the Board of Directors may fix in advance a record
date, which shall not be more than seventy (70) nor less than ten (10) days
prior to the date of such meeting or other action. If no record date is fixed by
the Board of Directors for determining shareholders entitled to notice of, and
to vote at, a meeting of shareholders, the record date shall be at four o'clock
in the afternoon on the day before the day on which notice is given, or, if
notice is waived, at the commencement of the meeting. If no record date is fixed
for determining shareholders entitled to express written consent to corporate
action without a meeting, the record date shall be the time of the day on which
the first written consent is served upon an officer or Director of the
corporation. A determination of shareholders of record entitled to notice of,
and to vote at, a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting, and further provided that the adjournment or
adjournments of any such meeting do not exceed thirty (30) days in the
aggregate.
3.06 Shareholder Record. The officer or agent having charge of the
stock ledger books for the corporation shall make, at least ten (10) days before
every meeting of shareholders, a complete record of the shareholders entitled to
vote at the meeting (and at any adjournment thereof), arranged in alphabetical
order, showing the address and the number of shares registered in the name of
each shareholder. Such record shall be produced and kept open (i) at the office
of the corporation prior to the time of the meeting, and (ii) at the time and
place of the meeting; such record shall be subject to the inspection of any
shareholder during such times for any purpose germane to the meeting.
3.07 Proxies. Any shareholder entitled to vote thereat may vote by
proxy at any meeting of the shareholders (and at any adjournment thereof) that
is specified in such proxy, provided that such shareholder's proxy is executed
in writing by such shareholder or such shareholder's duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from the date of
its execution, unless otherwise specifically provided therein. The burden of
proving the validity of any undated, irrevocable, or otherwise contested proxy
at a meeting of the shareholders will rest with the person seeking to exercise
the same. A facsimile appearing to have been transmitted by a shareholder or by
such shareholder's duly authorized attorney-in-fact may be accepted as a
sufficiently written and executed proxy.
3.08 Voting. Except for the election of Directors (which will be
governed by cumulative voting pursuant to applicable law) and except as may
otherwise be required by the corporation's articles, these bylaws, or by
statute, each issued and outstanding share of capital stock of the corporation
(specifically excluding shares held in the treasury of the corporation)
represented at any meeting of the shareholders in person or by a proxy, will be
entitled to one vote on each matter
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submitted to a vote of the shareholders at such meeting. Unless otherwise
required by the corporation's articles or by applicable law, any question
submitted to the shareholders will be resolved by a majority of the votes cast
thereon, provided that if the shares then represented are less than required to
constitute a quorum, the affirmative vote must be such as would constitute a
majority if a quorum were present.
3.09 Quorum. At any meeting of the shareholders, the presence in
person or by proxy of the holders of a majority of the shares of the capital
stock of the corporation issued, outstanding, and entitled to vote at the
meeting will constitute a quorum of the shareholders for all purposes. In the
absence of a quorum, any meeting may be adjourned from time to time by its
chair, without notice other than by announcement at the meeting, until a quorum
is formed. At any such adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted at the meeting as
originally noticed. Once a quorum has been formed at any meeting, the
shareholders from time to time remaining in attendance may continue to transact
business until adjournment, notwithstanding the prior departure of enough
shareholders to leave less than a quorum. If an 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
shareholder of record entitled to vote at the meeting.
3.10 Election Inspectors. The Board of Directors, in advance of any
meeting of the shareholders, may appoint an election inspector or inspectors to
act at such meeting (and at any 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 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 shareholders. No such election inspector need be a
shareholder of the corporation.
3.11 Organization and Conduct of Meetings. Each meeting of the
shareholders 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 shareholder as may be appointed by the Board of
Directors, or if no such officer is designated, by a chair to be elected at the
meeting. The corporation's Secretary will act as secretary of each meeting of
the shareholders; in his or her absence, the chair of the meeting may appoint
any person (whether a shareholder or not) to act as secretary for the meeting.
The order of business shall be as determined by the chair of the meeting.
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3.12 Shareholder Approval or Ratification. The Board of Directors
may submit any contract or act for approval or ratification of the shareholders,
either at a duly constituted meeting of the shareholders or by unanimous written
consent to corporate action without a meeting pursuant to Section 3.14 below. If
any contract or act so submitted is approved or ratified by a majority of the
votes cast thereon at such meeting or by such unanimous written consent, the
same will be valid and as binding upon the corporation and all of its
shareholders as it would be if it were the act of its shareholders.
3.13 Informalities and Irregularities. All informalities or
irregularities in any call or notice of a meeting of the shareholders or in the
areas of credentials, proxies, quorums, voting, and similar matters, will be
deemed waived if no objection is made at the meeting.
3.14 Action by Shareholders Without a Meeting. Any action required
or permitted to be taken at a meeting of the shareholders of the corporation may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all of the shareholders entitled to vote with respect to the
subject matter thereof. Such consent shall have the same effect as a unanimous
vote of the shareholders of the corporation at a meeting duly called and
noticed.
IV. BOARD OF DIRECTORS
4.01 Membership. The Board of Directors shall be comprised of not
less than two (2) nor more than ten (10) members who need not, but may, be
shareholders of the corporation. The directors shall be divided into three
classes, with the term of office of the first class to expire at the 1999 annual
meeting of shareholders, the term of office of the second class to expire at the
2000 annual meeting of shareholders and the term of office of the third class to
expire at the 2001 annual meeting of shareholders. At each annual meeting of
shareholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of shareholders
after their election. If the office of any director, member of a committee or
other officer becomes vacant, the remaining directors in office, though less
than a quorum, by a majority vote may appoint any qualified person to fill such
vacancy, who shall hold office for the unexpired term and until his successor
shall be duly chosen, or until his earlier resignation or removal.
4.02 Regular Meetings. 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 shareholders, either at the place of the shareholders
meeting or at such other place as the Directors elected at the shareholders
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.
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4.03 Special Meetings. Special meetings of the Board of Directors
may be held whenever and wherever called for by the Chairman of the Board, the
President, or the number of Directors that would be required to constitute a
quorum.
4.04 Notices. No notice need be given of regular meetings of the
Board of Directors. Written 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 via mail or facsimile addressed to him or her at his or
her latest address or facsimile number appearing on the corporation's records.
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
mail, with first class or airmail postage prepaid, at least four (4) days before
the meeting date, or (ii) if personally delivered or given by facsimile, the
same is transmitted and electronic confirmation of successful transmission is
received at least 24 hours prior to the convening of the meeting. Any Director
may waive call or notice of any meeting (and any adjournment thereof) at any
time before, during, or after it is held. Attendance of a Director at any
meeting will automatically evidence his or her waiver of call and notice of such
meeting (and any adjournment thereof) unless he or she is attending the meeting
for the express purpose of objecting to the transaction of business because the
meeting has not been properly called or noticed. Any meeting, once properly
called and noticed (or as to which call and notice have been waived as
aforesaid) and at which a quorum is formed, may be adjourned to another time and
place by a majority of those in attendance.
4.05 Quorum. A quorum for the transaction of business at any meeting
or adjourned meeting of the Board of Directors will consist of a majority of
those then in office. Once a quorum has been formed, the Directors from time to
time remaining in attendance at such meeting prior to its adjournment will
continue to be legally competent to transact business properly brought before
the meeting, notwithstanding the prior departure from the meeting of enough
Directors to leave less than a quorum.
4.06 Voting. Any matter submitted to a meeting of the Board of
Directors will be resolved by a majority of the votes cast thereon. In case of
an equality of votes, the chair of the meeting will have a second or deciding
vote.
4.07 Executive Committee. The Board of Directors, by resolution
adopted by a majority of the entire Board, may name one or more of its members
as an executive committee. Such executive committee shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the corporation while the Board is not in session, subject to such
limitations as may be included in the Board's resolution; provided, however,
that such executive committee shall not have the authority of the Board of
Directors in reference to the following matters: (l) the submission to
shareholders of any action that requires shareholders' authorization or approval
under applicable law; (2) the filling of vacancies on the Board of Directors or
in any committee of the Board of Directors; (3) the amendment or repeal of the
bylaws, or the adoption of new bylaws; and (4) the fixing of compensation of
Directors for serving on the Board or on any committee of the Board of
Directors. Any member of the executive committee may be
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removed, with or without cause, by the Board of Directors. In the event any
vacancy occurs in the executive committee, it shall be filled by the Board of
Directors.
4.08 Other Committees. The Board of Directors, from time to time, by
resolution adopted by a majority of the entire Board, may appoint other standing
or temporary committees from its membership and vest such committees with such
powers as the Board may include in its resolution; provided, however that such
committees shall be restricted in their authority as specifically set forth with
respect to the executive committee in Section 4.07 above.
4.09 Presumption of Assent. A Director of the corporation who is
present at a meeting of the Board of Directors or of any committee at which
action is taken on any matter will be presumed to have assented to the action
taken unless his or her dissent is entered in the minutes of the meeting or
unless he or she files a written dissent or abstention to such action with the
person acting as secretary of the meeting before the adjournment thereof or
forwards such dissent by registered or certified mail to the Secretary of the
corporation within two (2) business days after the adjournment of the meeting. A
right to dissent will not be available to a Director who voted in favor of the
action.
4.10 Compensation. 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 of any committee, and may be paid a fixed sum for
attendance at each such meeting and/or a stated salary as a Director or
committee member. No such payment will preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
4.11 Action by Directors Without a Meeting. Any action required or
permitted to be taken at a meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all Directors or committee members, as
the case may be, consent thereto in writing. Such consent shall have the same
effect as a unanimous vote of the Directors or committee members of the
corporation at a meeting duly called and noticed.
4.12 Meetings by Conference Telephone. Any member of the Board of
Directors or of a committee thereof may participate in any meeting of the Board
or such committee by means of a conference telephone or similar communication
equipment whereby all members participating in such meeting can hear one
another. Such participation shall constitute attendance in person, unless
otherwise stated as provided in Section 4.04 above.
V. OFFICERS - GENERAL
5.01 Elections and Appointments. The Board of Directors will elect
or appoint a President, one or more Vice Presidents, a Secretary, and a
Treasurer, and may choose a Chairman of the Board. The regular election or
appointment of officers will take place at each annual meeting of the Board of
Directors, but elections of officers may be held at any other meeting of the
Board.
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A person elected or appointed to any office will continue to hold that office
until the election or appointment of his or her successor, subject to action
earlier taken pursuant to Sections 5.04 or 7.01 below. Any two or more offices
may be held by the same person, except the offices of President and Secretary.
5.02 Additional Appointments. In addition to the officers
contemplated in Section 5.01 above, the Board of Directors may elect or appoint
other corporate or divisional officers or agents with such authority to perform
such duties as may be prescribed from time to time by the Board of Directors, by
the President, or by the superior officer of any person so elected or appointed.
Each of such persons (in the order designated by the Board) will be vested with
all of the powers and charged with all of the duties of his or her superior
officer in the event of such superior officer's absence or disability.
5.03 Bonds and Other Requirements. The Board of Directors may
require any officer to give bond to the corporation (with sufficient surety and
conditioned for the faithful performance of the duties of his or her office) and
to comply with such other conditions as may from time to time be required of him
or her by the Board.
5.04 Removal; Delegation of Duties. The Board of Directors may,
whenever in its judgment the best interests of the corporation will be served
thereby, remove any officer or agent of the corporation or temporarily delegate
his or her powers and duties to any other officer or to any Director. Such
removal or delegation shall be without prejudice to the contract rights, if any,
of the person so removed or whose powers and duties have been delegated.
Election or appointment of an officer or agent shall not of itself create
contract rights.
5.05 Salaries. The salaries of officers may be fixed from time to
time by the Board of Directors or (except as to the President's own) left to the
discretion of the President. No officer will be prevented from receiving a
salary by reason of the fact that he or she is also a Director of the
corporation.
VI. SPECIFIC OFFICERS
6.01 Chairman of the Board. The Board of Directors may elect a
Chairman to serve as a general executive officer of the corporation, and, if
specifically designated as such by the Board, as the chief executive officer of
the corporation. If elected, the Chairman will preside at all meetings of the
Board of Directors and be vested with such other powers and duties as the Board
may from time to time delegate to him or her.
6.02 President and Vice Presidents. Unless otherwise specified by
resolution of the Board of Directors, the President will be the chief executive
officer of the corporation. The President will supervise the business and
affairs of the corporation and the performance by all of its other officers of
their respective duties, subject to the control of the Board of Directors (and
of its Chairman, if the Chairman has been specifically designated as chief
executive officer of the
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corporation). One or more Vice Presidents shall be elected by the Board of
Directors to perform such duties as may be designated by the Board or as may be
assigned or delegated to them by the chief executive officer. Any one of the
Vice Presidents as authorized by the Board will be vested with all of the powers
and charged with all of the duties of the President in the event of his or her
absence or inability to act. Except as may otherwise be specifically provided in
a resolution of the Board of Directors, the President or any Vice President will
be a proper officer to sign on behalf of the corporation any deed, bill of sale,
assignment, option, mortgage, pledge, note, bond, evidence of indebtedness,
application, consent (to service of process or otherwise), agreement, indenture,
or other instrument of any significant importance to the corporation. The
President or any Vice President may represent the corporation at any meeting of
the shareholders or members of any other corporation in which the corporation
then holds shares of capital stock or has an interest, and may vote such shares
of capital stock or other interest in person or by proxy appointed by him or
her, provided that the Board of Directors may from time to time confer the
foregoing authority upon any other person or persons.
6.03 Secretary. The Secretary will keep the minutes of meetings of
the shareholders, Board of Directors, and any committee of the Board of
Directors, and all unanimous written consents of the shareholders, Board of
Directors, and any committee of the Board of Directors of the corporation, and
will see that all notices are duly given in accordance with the provisions of
these bylaws or as required by law. The Secretary will be custodian of the
corporate seal, if any, and corporate records, and, in general, perform all
duties incident to the office. Except as may otherwise be specifically provided
in a resolution of the Board of Directors, the Secretary and each assistant
secretary will be a proper officer to take charge of the corporation's stock
transfer books and to compile the voting record pursuant to Section 3.05 above,
and to impress the corporation's seal, if any, on any instrument signed by the
President, any Vice President, or any other duly authorized person, and to
attest to the same.
6.04 Treasurer. The Treasurer will keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation, and will
cause all money and other valuable effects to be deposited in the name and to
the credit of the corporation in such depositaries, subject to withdrawal in
such manner, as may be designated by the Board of Directors. He or she will
render to the President, the Directors and the shareholders at proper times an
account of all his or her transactions as Treasurer and of the financial
condition of the corporation. The Treasurer shall be responsible for preparing
and filing such financial reports, financial statements, and returns as may be
required by law.
VII. RESIGNATIONS AND VACANCIES
7.01 Resignations. Any Director, committee member, or officer may
resign from his or her office at any time by written notice delivered or
addressed to the corporation at its known place of business. Any such
resignation will be effective upon its receipt by the corporation 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.
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7.02 Vacancies. If the office of any Director, committee member, or
officer becomes vacant by reason of his or her death, resignation,
disqualification, removal, or otherwise, the Board of Directors may choose a
successor to hold office for the unexpired term.
VIII. SEAL
8.01 Form Thereof. The Board of Directors may provide for a seal of
the corporation that will have inscribed thereon the name of the corporation,
the state and year of its incorporation, and the words "Corporate Seal."
IX. CERTIFICATES REPRESENTING SHARES
9.01 Form Thereof. Each certificate representing shares of the
capital stock of the corporation will be in such form as may from time to time
be approved by the Board of Directors, will be consecutively numbered, and will
exhibit such information as may be required by applicable law.
9.02 Signatures and Seal Thereon. All certificates issued for shares
of the capital stock of the corporation (whether new, reissued, or transferred)
will bear the signatures of the President or a Vice President, and of the
Secretary or an assistant secretary, and the impression of the corporation's
corporate seal, if any. The signatures of such officers of the corporation and
the impression of its corporate seal may be in facsimile form on any certificate
to the extent allowable by law from time to time. 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
certificates, they may still be 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.
9.03 Ownership. 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.
9.04 Transfers. Transfers of shares of the corporation may be made
on the stock transfer books of the corporation only at the direction of the
person named in the certificate therefor (or by his or her duly authorized
attorney-in-fact) and upon the surrender of such certificate.
9.05 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
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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 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 in form and amount satisfactory
to the corporation (and to its transfer agent and/or registrar, if applicable).
The corporation may act through its President or any Vice President for any
purpose of this Section 9.05.
X. DIVIDENDS
10.01 Subject to such restrictions or requirements as may be imposed
by applicable law or the corporation's articles or as may otherwise be binding
upon the corporation, the Board of Directors may from time to time declare and
the corporation may pay dividends on shares of the capital stock of the
corporation outstanding on the dates of record fixed by the Board or as
otherwise provided herein, to be paid in cash, in property, or in shares of the
capital stock of the corporation on or as of such payment or distribution dates
as the Board may prescribe.
XI. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
11.01 Right to Indemnification. The Corporation shall indemnify its
directors and officers to the fullest extent authorized or permitted by Arizona
Revised Statutes, as the same exists or may hereafter be amended, and such right
to indemnification shall continue as to a person who has ceased to be a director
or officer of the Corporation and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that, except for
proceedings to enforce rights to indemnification, the Corporation shall not be
obligated to indemnify any director of officer (or his or her heirs, executors
or administrators) in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall include the right to receive
from the Corporation advances in respect of the expenses incurred in defending
or otherwise participating in any proceeding in advance of its final
disposition, subject to any written undertaking to repay such advances that may
be required by Arizona Revised Statutes.
11.02 Additional Rights to Indemnification. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation who are not directors or officers similar to those
conferred in this Section to directors and officers of the Corporation. The
rights to indemnification and to the advancement of expenses conferred in this
Section shall not be exclusive of any other right which any person may have or
hereafter acquire under the articles of incorporation, these Bylaws, any statute
agreement, vote of stockholders or disinterested directors, or otherwise.
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11.03 Repeal. Any repeal or modification of this Section by the
Board of Directors of the Corporation shall not adversely affect any rights to
indemnification and advancement of expenses of a director or officer of the
Corporation existing pursuant to this Section with respect to any acts or
omissions occurring prior to such repeal or modification.
11.04 Insurance. The Corporation shall have the power to purchase
and maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including an employee
benefit plan) 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 the Arizona Revised Statutes.
XII. AMENDMENTS
12.01 These bylaws may be altered, amended, supplemented, repealed,
or temporarily or permanently suspended, in whole or in part, or new bylaws may
be adopted, at any duly constituted meeting of the Board of Directors (the
notice of which meeting either includes mention of the proposed action relative
to the bylaws or is waived pursuant to Section 4.04 above) or, alternatively, by
unanimous written consent to corporate action without a meeting of the Board of
Directors pursuant to Section 4.11 above. If, however, any such action arises as
a matter of necessity at any such meeting and is otherwise proper, no notice
thereof will be required.
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