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EXHIBIT 3.24
BYLAWS
OF
AMERIPATH MARKETING USA, INC.
(A FLORIDA CORPORATION)
(AS OF JANUARY , 2001)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of AMERIPATH MARKETING
USA, INC., a Florida corporation (the "CORPORATION"), shall initially be located
in the City of Riviera Beach, State of Florida.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places, either within or without the State of Florida, as the Board of
Directors of the Corporation (the "BOARD OF DIRECTORS") may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. An annual meeting of the shareholders of the
Corporation, for the election of directors and for the transaction of such other
business as may properly come before the meeting, shall be held each calendar
year (i) on the fourth Friday of May of such year, at 10:00 a.m., Eastern time,
or on such other date and/or at such other time as may be fixed, from time to
time, by the Board of Directors, and (ii) at such place, within or without the
State of Florida, as may be designated by or on behalf of the Board of Directors
and stated in the notice of meeting or in a duly executed waiver of notice
thereof.
SECTION 2. SPECIAL MEETINGS. Except as otherwise required by law or by or
pursuant to the Corporation's Articles of Incorporation (as amended and/or
restated from time to time, the "ARTICLES"), the Corporation shall not be
required to call or hold a special meeting of shareholders of the Corporation
unless (in addition to any other requirement(s) of applicable law or in the
Articles) (i) the holders of not less than thirty-three and one-third percent
(33 1/3%) of all the votes entitled to be cast on any issue proposed to be
considered at the special meeting sign, date and deliver to the Corporation's
Secretary one or more written demands for the meeting describing the purpose or
purposes for which it is to be held; or (ii) the meeting is called by (a) the
Board of Directors pursuant to a resolution approved by a majority of the entire
Board of Directors, (b) the Corporation's Chairman of the Board of Directors or
Chief Executive Officer, or (c) the Corporation's Secretary upon the written
request of any three or more members of the Board of Directors. Only business
within the purpose or purposes described in the special meeting notice required
by Section 607.0705 of the Florida Business Corporation Act (or a successor
provision of such Act, or a successor law or act) (as amended from time to time,
the "FBCA") may be conducted at a special shareholders' meeting. Special
meetings of shareholders may be held at such time and date, and at such place,
within or without the State of Florida, as shall be designated by the Board of
Directors and set forth in the notice of meeting required pursuant to Section 3
of this Article II and the FBCA.
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SECTION 3. CONDUCT OF MEETINGS. The Chairman of the Board (or in his
absence, the President or such other designee of the Chairman of the Board)
shall preside at all annual and special meetings of shareholders and shall be
given full discretion in establishing the rules and procedures to be followed in
the conduct of all meetings, except as otherwise expressly provided by law or in
these Amended and Restated Bylaws.
SECTION 4. NOTICE. Except as otherwise required or provided by law, a
written notice of each meeting of shareholders shall be given to each
shareholder of record entitled to vote at the meeting, at the shareholder's
address as it appears on the stock transfer records of the Corporation, not
fewer than ten (10) nor more than sixty (60) days before the date of the
meeting, by or at the direction of the Chairman of the Board, the President, the
Secretary or the officer or persons properly calling the meeting. The notice so
given shall state the date, time and place of the meeting and, in the case of a
special shareholders' meeting, the purpose or purposes for which the meeting is
called. If a meeting is adjourned to another time and/or place, and if an
announcement of the adjourned time and/or place is made at the meeting, it shall
not be necessary to give notice of the adjourned meeting unless the Board of
Directors, after adjournment, fixes a new record date for the adjourned meeting.
SECTION 5. WAIVER OF NOTICE. A shareholder may waive any notice of any
meeting before or after the date and time specified in the written notice of
meeting. Any such waiver of notice 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 other appropriate corporate records. Neither the
business to be transacted at, nor the purpose of, any shareholders' meeting need
be specified in any written waiver of notice. Attendance of a shareholder at a
meeting shall constitute a waiver of (a) lack of, failure to receive or
defective notice of such meeting, unless the shareholder objects at the
beginning of the meeting to holding the meeting or the transaction of business
at the meeting, or (b) objection (or any right to object) to consideration of
particular matter at a meeting that is not within the purpose or purposes
described in the meeting notice, unless the person objects to considering such
matter when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the shareholders
entitled to notice of and/or to vote at a shareholders' meeting, to demand a
special meeting, to act by written consent or to take any other action, the
Board of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than seventy
(70) days nor, in the case of a shareholders' meeting, less than ten (10) days,
prior to the date on which the particular action requiring such determination of
shareholders is to be taken. If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a shareholders' meeting, then
the record date for such shall be the close of business on the day before the
first notice of such meeting is delivered to shareholders. A determination of
the record date for a shareholders' meeting is effective for any adjournment of
the meeting, unless the Board of Directors fixes a new record date for such
adjourned meeting, which it must do if the meeting is adjourned to a date more
than one hundred and twenty (120) days after the date fixed for the original
meeting.
SECTION 7. QUORUM. Unless the Articles or the FBCA provide otherwise, a
majority of the votes entitled to be cast on a matter (and, where one or more
classes or series of shares of capital stock are entitled to a separate vote, a
majority of the votes entitled to be cast by any such class or series so
entitled to a separate vote), represented in person or by proxy, shall
constitute a quorum for action on that matter at a meeting of shareholders. If a
quorum is not present or represented at a meeting of shareholders, the holders
of a majority of the shares represented, and who would be entitled to vote at
the meeting if a quorum were present, may adjourn the meeting from time to time.
Once a share is
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represented for any purpose at a meeting, it is deemed present, for quorum
purposes, for the remainder of the meeting and for any adjournments(s) of that
meeting unless a new record date is or must be set for that adjourned meeting.
Once a quorum has been established at a shareholders' meeting, the subsequent
withdrawal of shareholders, so as to reduce the number of shares entitled to
vote at the meeting below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment thereof.
SECTION 8. VOTE REQUIRED. If a quorum is present, action on a matter, other
than the election of directors (who shall be elected by a plurality vote in
accordance with Article III, Section 3 hereof), shall be approved if the votes
cast by the shareholders represented at the meeting and entitled to vote on the
subject matter favoring the action exceeds the votes cast opposing the action,
unless a greater number of affirmative votes is required by or under the
Articles or the FBCA. Where more than one class or series of shares of capital
stock are entitled to vote on a matter (other than the election of directors),
if a quorum is present, action on the matter shall be approved if the votes cast
by the holders of such shares (entitled to a separate vote on the subject
matter) represented at the meeting favoring the action exceeds the votes cast by
the holders of such shares opposing the action, unless a greater number of
affirmative votes is required by or under the Articles or the FBCA. Except as
otherwise expressly provided under the Articles (including any authorized
designation or description of shares included in any amendment to the Articles)
or by or under the FBCA, each outstanding share (regardless of class) shall be
entitled to one vote on each matter submitted to a vote at a vote at a meeting
of shareholders (or in connection with any action to be taken by written
consent).
SECTION 9. VOTING OF SHARES. A shareholder may vote at any meeting of the
shareholders of the Corporation, either in person or by proxy. Shares standing
in the name of another corporation, domestic or foreign, may be voted by the
officer, agent or proxy designated by the bylaws of such corporate shareholder
or, in the absence of any applicable bylaw, by such person or persons as the
board of directors of the corporate shareholder may designate by properly
authorized resolution. In the absence of any such designation or, in case of
conflicting designations by the corporate shareholder, the chairman of the
board, the president, any vice president, the secretary and the treasurer of the
corporate shareholder, in that order, shall be presumed to be fully authorized
to vote such shares. Shares held by an administrator, executor, guardian,
personal representative, or conservator may be voted by him or her, either in
person or by proxy, without a transfer of such shares into his or her name.
Shares standing in the name of a trustee may be voted by such trustee, either in
person or by proxy, but no trustee shall be entitled to vote shares held by him
or her without a transfer of such shares into his or her name or the name of his
or her nominee. Shares held by or under the control of a receiver, a trustee in
bankruptcy proceedings, or an assignee for the benefit of creditors may be voted
by such person without the transfer thereof into his or her name. If shares
stand of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary of the Corporation
is given notice to the contrary and is furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so provided,
then acts with respect to voting shall have the following effect: (a) if only
one votes, in person or by proxy, his act binds all; (b) if more than one votes,
in person or by proxy, the act of the majority so voting binds all; or (c) if
more than one votes, in person or by proxy, but the vote is evenly split on any
particular matter, each faction is entitled to vote the share or shares in
question proportionally. The principles of this paragraph shall apply, insofar
as possible, to execution of proxies, waivers, consents, or objections and for
the purpose of ascertaining the presence of a quorum.
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SECTION 10. PROXIES. Any shareholder of the Corporation, other person
entitled to vote on behalf of a shareholder pursuant to law, or properly
appointed attorney-in-fact for such persons may vote the shareholder's shares
in person or by proxy. Any shareholder of the Corporation may appoint a proxy to
vote or otherwise act for such shareholder by (i) signing an appointment form,
either personally or by his attorney-in-fact, and (ii) transmitting the executed
appointment form (or a copy or reproduction of such form), via mail, facsimile,
telegram, cablegram or other means of electronic transmission appearing (in the
judgment of the Corporation or its officers or agents) to have been authorized
by such person, to the Secretary of the Corporation or, where a person,
organization or agent has been designated by the Corporation to receive
:proxies, to such designated person, organization or agent. An appointment of a
proxy is effective when received by the Secretary of the Corporation or such
other officer or agent which is authorized to tabulate votes, and shall be valid
for up to eleven (11) months, unless a longer period is expressly provided in
the proxy appointment form. The death or incapacity of the shareholder
appointing a proxy does not affect the right of the Corporation to rely upon and
accept the proxy's authority unless notice of the death or incapacity is
received by the Secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment. 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. If an appointment form expressly provides for such, any proxy
holder may appoint, in writing, a substitute to act in his or her place.
SECTION 11. SHAREHOLDER LIST FOR MEETINGS. After fixing a record date for a
meeting of shareholders, the Corporation shall prepare an alphabetical list of
the names of all its shareholders who are entitled to notice of the meeting,
arranged by voting group (as applicable) with the address of, and the number and
class and series, if any (as applicable), of shares held by each shareholder.
The shareholders' list shall be available for inspection by any shareholder for
a period often (10) days prior to the meeting or such shorter time as exists
between the record date and the meeting and continuing through the meeting at
the Corporation's principal office, at a place identified in the meeting notice
in the city where the meeting will be held, or at the office of the
Corporation's transfer agent or registrar. Any shareholder of the Corporation,
or his or her properly appointed agent or attorney, is entitled on written
demand to inspect the shareholders' list (subject to the requirements of the
FBCA), during regular business hours and at his or her expense, during the
period it is available for inspection. The Corporation shall make the
shareholders' list available at the meeting of shareholders, and any shareholder
or his or her properly appointed agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment thereof. A shareholder
may not sell or otherwise distribute any information or records inspected under
this Section 11, except to the extent that such use (or sale or distribution) is
for a proper purpose, as defined under the FBCA.
SECTION 12. SHAREHOLDER ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any annual or special meeting of shareholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote if such action is taken by the written consent of the holders of the
outstanding shares of capital stock of the Corporation entitled to vote on such
action having not less than the minimum number of votes (including, if and as
applicable, the minimum number of votes of any voting groups entitled to vote
separately on the matter) necessary to authorize or take such action at a
meeting at which all shares of capital stock entitled to vote thereon were
present and voted. In order to be effective, the action must be evidenced by one
or more written consents describing the action taken, dated and signed by
approving shareholders having the requisite number of votes entitled to vote
thereon, and delivered to the Secretary or other officer or agent of the
Corporation having custody of the official minute books of the Corporation in
which proceedings of meetings of the shareholders are recorded (the "SHAREHOLDER
MINUTE BOOKS"). Whenever action is
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taken pursuant to this Section 12, the written consent(s) of shareholders, or
the written reports of inspectors appointed to tabulate shareholder consents,
shall be filed in the Shareholder Minute Books. No written consent of
shareholders shall be effective to take the corporate action referred to therein
unless, within 60 days of the date of the earliest dated consent delivered in
the manner provided in this Section 12, written consents executed and delivered
by the number of holders required to take action are delivered to the
Corporation by delivery as required in this Section 12. Within ten (10) days
after obtaining authorization of corporate action by written consent of
shareholders, notice must be given to those shareholders who have not consented
in writing or who are not entitled to vote on the action, which notice shall
comply with the provisions of the FBCA. The action taken by written consent
under this Section 12 shall have the effect of a meeting vote and may be
described as such in any document.
SECTION 13. INSPECTORS AND JUDGES. The Board of Directors in advance of any
meeting may, but need not, appoint one or more inspectors of election or judges
of the vote (including the counting and tabulation thereof), as the case may be,
to act at the meeting or any adjournment(s) thereof. If any inspector or
inspectors, or judge or judges, are not appointed, the person presiding at the
meeting may, but need not, appoint one or more inspectors or judges at the
meeting, In case any person who may be appointed as an inspector or judge fails
to appear or act, the vacancy may be filled by the Board of Directors in advance
of the meeting, or at the meeting by the person presiding thereat. The
inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the number of votes entitled to be
cast at and shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots and
consents, near and determine all challenges and questions arising in connection
with the right to vote, count and tabulate votes, ballots and consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting, the inspector or inspectors or judge or judges, if any, shall make
a report in writing of any challenge, question or matter determined by him or
them, and execute a certificate of any fact found by him or them. The
Corporation, and any officer or agent (including any inspector or judge) who
accepts or rejects a vote, consent, waiver or proxy appointment in good faith
and with a reasonable basis for doubt about the validity of a required signature
or about the signatory's authority to sign for the shareholder, or who otherwise
acts in accordance with the standards provided in Section 6070724 of the FBCA,
shall not be liable in damages to the shareholder for the consequences of the
acceptance or rejection.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. Except as provided in the Articles and these Amended and
Restated Bylaws, all corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
under the direction of, the Board of Directors. Directors must be natural
persons who are at least 18 years of age but need not be residents of Florida or
shareholders of the Corporation.
SECTION 2. COMPENSATION. Unless specifically authorized by a resolution of
the Board of Directors (or an appropriately authorized and designated committee
of the Board), the directors shall serve in such capacity without compensation.
The directors may be reimbursed for their out-of-pocket expenses, if any, of
attendance at each meeting Of the Board of Directors, and may be paid a fixed
fee or sum for attendance at each meeting of the Board of Directors. Members of
special or standing Board committees may be allowed like compensation for
attending committee meetings. No such
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payments shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 3. NUMBER, ELECTION & TERM. The number of directors of the
Corporation shall be fixed from time to time, within any limits set forth in the
Articles, by resolution of the Board of Directors; provided, however, no
incumbent director's term shall be shortened by reason of a resolution reducing
the number of directors. Directors shall be elected at the annual meeting of the
shareholders, except as provided in Section 4 of this Article III, and each
director elected shall hold office for the term for which he is elected and
until his successor is elected and qualified or until his earlier resignation,
removal from office or death. Directors shall be elected annually, at the annual
meeting of shareholders of the Corporation, by a plurality of the votes cast by
the shares entitled to vote in the election of directors at a meeting at which a
quorum is present.
SECTION 4. VACANCIES. A director may resign (at any time by giving written
notice to the Secretary of the Corporation, the Board of Directors or the
Chairman of the Board. Such resignation shall take effect when the notice is
delivered unless the notice specifies a later effective date (not later than the
normal expiration date of such director's term of service), in which event the
Board of Directors may fill the pending vacancy before the effective date if
they provide that the successor does not take office until the effective date.
Any vacancy which occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of directors constituting the Board,
may be filled by the affirmative vote of a majority of the remaining directors,
though less than a quorum of the Board of Directors, or may be filled by an
election at an annual or special meeting of the shareholders called for that
purpose. A director elected to fill a vacancy shall serve until the next annual
meeting of shareholders at which directors are elected.
SECTION 5. REMOVAL OF DIRECTORS. The shareholders may remove one or more
directors with or without cause. A director may be removed by the shareholders
at a meeting of shareholders, provided the notice of the meeting states that the
purpose, or one of the purposes, of the meeting is the removal of the director.
SECTION 6. QUORUM AND VOTING. A majority of the number of directors fixed
by, or in accordance with, these Amended and Restated Bylaws shall constitute a
quorum for the transaction of business at any meeting of directors; provided,
however, that whenever, for any reason, a vacancy occurs in the Board of
Directors, a quorum shall consist of a majority of the remaining directors until
the vacancy has been filled. If a quorum is present when a vote is taken, the
affirmative vote of a majority of the directors present shall be the act of the
Board of Directors, unless the Articles or these Amended and Restated Bylaws
require the vote of a greater number of directors.
SECTION 7. DEEMED ASSENT. 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 at such meeting
unless (i) the director objects at the beginning of the meeting (or promptly
upon his arrival) to the holding of the meeting or to transacting specified
business at the meeting, or (ii) the director votes against or abstains from the
action taken.
SECTION 8. COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the full Board of Directors, may designate from among its members an
executive committee and one or more other committees, each of which, to the
extent provided in such resolution, shall have and may exercise all of the
authority of the Board of Directors in the business and affairs of the
Corporation, except where action of the full Board of Directors is required by
and reserved to the Board of Directors
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under Florida law. Each committee must have two or more members who serve at the
pleasure of the Board of Directors. The Board of Directors, by resolution
adopted in accordance with this Section 8, may designate one or more directors
as alternate members of any committee, who may act in the place and stead of any
absent member or members at any meeting of such committee. Vacancies in the
membership of a committee shall be filled by the Board of Directors at a regular
or special meeting of the Board of Directors.
SECTION 9. MEETINGS. Regular and special meetings of the Board of
Directors may be held at the principal place of business of the Corporation or
at any other place, within or without the State of Florida, designated by the
person or persons entitled to give notice of or otherwise call the meeting.
Members of the Board of Directors (and any committee of the Board) may
participate in a meeting of the Board (or any committee of the Board) by means
of a conference telephone or similar communications or electronic equipment by
means of which all persons participating in the meeting may simultaneously hear
one another during the meeting. Participation in such a meeting shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
SECTION 10. NOTICE OF MEETINGS. Regular meetings of the Board of Directors
may be held without notice of the date, time, place or purpose of the meeting,
so long as the date, time and place of such meetings are fixed generally by the
Board of Directors or the Chairman of the Board. Special meetings of the Board
of Directors may be called by the Chairman of the Board or by the President and
shall be called by the Secretary on the written request of any two directors.
Written notice of the date, time and place of special meetings of the Board of
Directors shall be given to each director at least forty-eight (48) hours before
the meeting. Except as required by law, neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice for such meeting. Notices to
directors shall be in writing and delivered personally or mailed to the
directors at their addresses appearing on the books of the Corporation. Notice
to directors may also be given by telegram, teletype, facsimile or other form of
electronic communication.
SECTION 11. WAIVER OF NOTICE. Notice of a meeting of the Board of Directors
need not be given to a director who signs a waiver of notice either before or
after the meeting. Attendance of a director at a meeting shall constitute a
waiver of notice of that meeting and a waiver of any and all objections to the
place of the meeting, the time of the meeting or the manner in which it has been
called or convened, except when a director expressly states, at the beginning of
the meeting or promptly upon arrival at the meeting, any objection to the
transaction of business because the meeting is not lawfully called or convened.
The waiver of notice need not describe either the business to be transacted at
or the purpose of the special meeting.
SECTION 12. DIRECTOR ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of the Board of Directors (or of a committee
of the Board of Directors) may be taken without a meeting, without prior notice
and without a vote if the action is taken by the written consent of all members
of the Board of Directors (or of such committee of the Board of Directors). The
action must be evidenced by one or more written consents describing the action
taken and signed by each director (or committee member), which consent(s) shall
be filed in the official minute books of the Corporation in which proceedings of
meetings of the Board of Directors are recorded. The action taken by written
consent shall be deemed effective when the last director signs the consent,
unless the
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consent specifies otherwise, and shall have the effect of a meeting vote and may
be described as such in any document.
SECTION 13. CHAIRMAN OF THE BOARD. The Board of Directors may, in its
discretion, choose a chairman of the board who shall preside at meetings of the
shareholders and of the Board of Directors and shall be an ex officio member of
all standing committees. The Chairman of the Board shall have such other powers
and shall perform such other duties as shall be assigned or designated from time
to time by the Board of Directors. The Chairman of the Board shall be a member
of the Board of Directors but no other officers of the Corporation need be a
director. The Chairman of the Board shall serve until his successor is chosen
and qualified, but he or she may be removed at any time by the affirmative vote
of a majority of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS; APPOINTMENT OF OFFICERS BY THE BOARD. The officers of
(the Corporation, who shall be appointed and elected by the Board of Directors,
shall consist of a President, a Secretary and a Treasurer, and if elected by the
Board of Directors by resolution, a Chairman and one or more Vice Presidents.
Any two or more offices may be held by the same person. As far as practicable,
the President, Secretary, Treasurer and one or more Vice Presidents, if any, of
the Corporation shall be appointed and elected at the annual meeting of the
Board of Directors (held on approximately the same date as the annual meeting of
shareholders). If the appointment and election of officers is not held at such
meeting, the appointment and election shall be held as soon thereafter as
practicable.
SECTION 2. APPOINTMENT OF OTHER OFFICERS. Such other officers and
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors, or, unless otherwise specified herein or in
a resolution of the Board of Directors, appointed by the President of the
Corporation. The Board of Directors shall be periodically advised of any
appointments by the President.
SECTION 3. TERM OF OFFICE; REMOVAL; RESIGNATION. Each officer of the
Corporation shall hold office until his or her successor shall have been duly
elected and shall have qualified, or until his earlier resignation; removal from
office or death. Any officer or agent elected or appointed by the Board of
Directors or the President of the Corporation serves at the pleasure of the
Board of Directors or the President (as the case may be), and may be removed,
with or without cause, by the Board of Directors. Any officers or agents
appointed by the President of the Corporation pursuant to Section 2 of this
Article IV may also be removed from such officer positions by the President,
with or without cause. Any vacancy occurring in any office of the Corporation by
death, resignation, termination or otherwise shall be filled by the Board of
Directors, or, in the case of an officer appointed by the President of the
Corporation, by the President or the Board of Directors. Any officer of the
Corporation may resign from his respective office or position by delivering
notice to the Corporation. Such resignation is effective when delivered unless
the notice specifies a later effective date (not to exceed the normal expiration
of his or her appointment). If a resignation is made effective at a later date
and the Corporation accepts the future effective date, the Board of Directors
may fill the pending vacancy before the effective date if the Board provides
that the successor does not take office until the effective date.
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SECTION 4. COMPENSATION. The compensation of all officers of the
Corporation to be appointed and elected by the Board of Directors pursuant to
these Amended and Restated Bylaws shall be fixed from time to time by and at the
discretion of the Board of Directors. The compensation of all other appointed or
elected officers of the Corporation shall be fixed from time to time by the
President of the Corporation or pursuant to his direction. The Board of
Directors may enter into employment agreements with any officer of the
Corporation. The appointment or election of an officer does not itself create or
give rise to any contract rights.
SECTIONS 5. DUTIES. The officers of the Corporation shall have the
following duties:
The PRESIDENT shall be the chief executive and operating officer of the
Corporation and shall have general and active management of the business and
affairs of the Corporation subject to the direction of the Board of Directors.
The President shall see to it that all orders and resolutions of the Board are
carried into effect. In the absence of the Chairman of the Board or in the event
the Board of Directors shall not have designated a Chairman of the Board, the
President shall preside at all meetings of the Board of Directors and
shareholders. At the discretion and in the judgment of the Board, the Board of
Directors may designate and appoint, apart and separate from the President, a
Chief Executive Office and/or a Chief Operating Officer, with such powers and
duties as the Board shall from time to time so designate. Unless otherwise so
specified by the Board of Directors, the President shall be the Corporation's
Chief Executive Officer.
Each VICE PRESIDENT, if any, shall have such powers and perform such duties
as the Board of Directors shall from time to time designate. In the absence or
disability of the President, a Vice President specifically designated by the
vote of a majority of the Board of Directors shall have the powers and shall
exercise the duties of the President.
The SECRETARY shall attend all meetings of the Board of Directors and all
meetings of the shareholders and shall have custody of and shall maintain and
keep all of the corporate records (except the financial records), shall record
the minutes of all meetings of the shareholders and the Board of Directors
(except as otherwise specifically authorized by the Board) and shall perform
like duties for the standing committees when requested or required. The
Secretary shall authenticate records of the Corporation and shall give, or cause
to be given, notice of all meetings of the shareholders and special meetings of
the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors or President, under whose supervision the Secretary
shall be. The Secretary shall keep in safe custody the seal of the Corporation
and, when authorized by the Board of Directors, affix the same to any instrument
requiring it.
The TREASURER shall have custody of all corporate funds, securities and
financial records, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board of Directors or pursuant to
its direction. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render an account of all transactions of the treasurer
and of the financial condition of the Corporation at regular meetings of the
Board or when the Board of Directors so requests. The treasurer shall also
perform such other duties as are prescribed by the Board of Directors. Unless
otherwise specified by the Board of Directors, the Treasurer shall be the
Corporation's Chief Financial Officer.
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Each and every other officer, employee and agent of the Corporation shall
possess, and may exercise, such power and authority, and shall perform such
duties, as may from time to time be assigned to him or her by the Board of
Directors, the officer so appointing him and such officer or officers who may
from time to time be designated by the Board of Directors to exercise such
supervisory authority.
ARTICLE V
STOCK CERTIFICATES
SECTION 1. ISSUANCE OF CERTIFICATES. Every holder of shares in this
Corporation shall be entitled to have a certificate representing or evidencing
all shares to which such shareholder is entitled. No certificate shall be issued
for any share until the consideration therefor has been fully paid.
SECTION 2. FORM. Certificates representing shares in this Corporation
shall be signed by the President and the Secretary of the Corporation, or any
other officers so designated by the Board of Directors and may be sealed with
the seal of the Corporation or a facsimile thereof. The signatures of the
President and the Secretary of the Corporation, or any other officers so
designated by the Board of Directors to sign a stock certificate, upon such
certificate may be facsimiles, if the certificate is manually signed by a
transfer agent, or registered by a registrar, other than the Corporation itself
or an employee of the Corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer at the date
of the issuance. At a minimum, each share certificate shall state on its face:
(i) the name of the Corporation, and its State of incorporation, (ii) the name
of the person to whom it is issued, and (iii) the number and class of shares
and, if applicable, the designation of any designated series of Shares of any
class, which the certificate represents.
SECTION 3. LEGENDS FOR PREFERENCES AND RESTRICTIONS ON TRANSFER. The
designations, relative rights, preferences and limitations applicable to each
class of shares and the variations in rights, preferences and limitations
determined for each series within a class (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 may state
conspicuously on its front or back that the Corporation will furnish the
shareholder a full statement of this information on request and without charge.
Every certificate representing shares that are restricted as to the sale,
disposition, or transfer of such shares shall also indicate that such shares are
restricted as to transfer and there shall be set forth or fairly summarized upon
the certificate, or the certificate shall indicate that the Corporation will
furnish to any shareholder upon request and without charge, a full statement of
such restrictions. If the Corporation issues any shares that are not registered
under the Securities Act of 1933, as amended, and registered or qualified under
the applicable state securities laws, the transfer of any such shares shall be
restricted substantially in accordance with the following legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME (THE "ACT"),
OR UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED, PLEDGED, GIFTED, ASSIGNED, CONVEYED, ENCUMBERED OR
OTHERWISE DISPOSED OF UNLESS (1) REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAW, OR (2) PURSUANT TO AVAILABLE EXEMPTIONS
FROM REGISTRATION UNDER THE ACT AND THE RULES
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PROMULGATED THEREUNDER AND UNDER APPLICABLE STATE SECURITIES LAWS. NO
MARKET EXISTS FOR THE SHARES, AND NONE MAY DEVELOP, AND THE HOLDER HEREOF
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF INVESTMENT IN THE SHARES
REPRESENTED HEREBY FOR AN INDEFINITE PERIOD OF TIME."
SECTION 4. REGISTERED SHAREHOLDERS. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its stock transfer
books as the owner of shares to receive dividends, to vote and to enjoy the
rights and benefits as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise required by the laws of the State of Florida.
SECTIONS 5. TRANSFER OF SHARES. Subject to limitations or restrictions on
transfer under applicable law, upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate representing shares, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer and duly executed and in form acceptable to the Corporation (or its
transfer agent), it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
SECTION 6. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors
may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation stated to have
been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be so lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to indemnify the Corporation for any loss, cost or
expense and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost or destroyed.
SECTION 7. REDEMPTION OF CONTROL SHARES. As provided under the FBCA, if a
person acquiring control shares of the Corporation does not file an acquiring
person statement with the Corporation as required, the Corporation may redeem
the control shares at fair market value at any time during the 60-day period
after the last acquisition of such control shares. If a person acquiring control
shares of the Corporation files an acquiring person statement with the
Corporation pursuant to the FBCA, the control shares may he redeemed by the
Corporation only if such shares are not accorded full voting rights by the
shareholders as provided by law.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 1. INDEMNIFICATION. The Corporation shall, and does hereby,
indemnify to the fullest extent permitted or authorized by current or future
legislation or current or future judicial or administrative decisions (but, in
the case of any such future legislation or decisions, only to the extent that it
permits the Corporation to provide broader indemnification rights than permitted
prior to such legislation or decisions), each person (including here and
hereinafter, the heirs, executors, administrators, personal representatives,
assigns or estate of such person) who was or is a party, or is
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threatened to be made a party, or was or is a witness, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "PROCEEDING"), from, against and in respect
of any liability (which for purposes of this Article shall include any judgment,
settlement, penalty or fine) or cost, charge or expense (including attorneys'
fees and expenses) asserted against him or her or incurred by him or her by
reason of the fact that such indemnified person is or was a member of the Board
of Directors of the Corporation. In addition, the Corporation, as authorized by
the Board of Directors, may indemnify to the fullest extent permitted or
authorized by current or future legislation or current or future judicial or
administrative decisions (but, in the case of any such future legislation or
decisions, only to the extent that it permits the Corporation to provide broader
indemnification rights than permitted prior to such legislation or decisions),
each person (including here and hereinafter, the heirs, executors,
administrators, personal representatives, assigns or estate of such person) who
was or is a party, or is threatened to be made a party, or was or is a witness,
to any threatened, pending or completed Proceeding, from, against and in respect
of any liability (which for purposes of this Article shall include any judgment,
settlement, penalty or fine) or cost, charge or expense (including attorneys'
fees and expenses) asserted against him or her or incurred by him or her by
reason of the fact that such indemnified person: (1) is or was an officer of the
Corporation, (2) is or was an employee or agent of the Corporation as to whom
the Corporation has agreed in writing to grant such indemnity, or (3) is or was
serving, at the request of the Corporation, as a director, officer, employee or
trustee of another corporation, partnership, joint venture trust or other
enterprise (including serving as a fiduciary of an employee benefit plan) or is
or was serving as an agent of such other corporation partnership, joint venture,
trust or other enterprise, in each case, as to whom the Corporation has agreed
in writing to grant such indemnity. Each director, officer, employee or agent of
the Corporation as to whom indemnification rights have been or may be granted
under this Section 1 of this Article VI shall be referred to as an "INDEMNIFIED
PERSON".
Notwithstanding the foregoing, except as specified in Section 3 of
this Article, the Corporation shall not be required to indemnify an Indemnified
Person in connection with a Proceeding (or any part thereof) initiated by such
Indemnified Person unless the authorization for such Proceeding (or any part
thereof) was not denied by the Board of Directors of the Corporation within
sixty (60) days after receipt of notice thereof from such Indemnified Person
stating his intent to initiate such Proceeding and only then upon such terms and
conditions as the Board of Directors may deem appropriate.
SECTION 2. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Costs, charges and
expenses (including attorneys' fees and expenses) incurred by an Indemnified
Person in defending a Proceeding shall, in the case of a director, and may, in
the case of an officer if and as authorized by the Board of Directors, be
reimbursed and paid, against invoice therefor or other proper documentation
thereof, by the Corporation, to the fullest extent permitted or authorized by
current or future legislation or current or future judicial or administrative
decisions (but, in the case of any such future legislation or decisions, only to
the extent that it permits the Corporation to provide broader rights to advance
costs, charges and expenses than permitted prior to such legislation or
decisions), in advance of the final disposition of such Proceeding, upon receipt
of an undertaking by or on behalf of the Indemnified Person to repay all amounts
so advanced in the event that it shall ultimately be determined that such person
is not entitled to be indemnified by the Corporation as authorized in this
Article. The Corporation may, upon approval of the Indemnified Person, authorize
the Corporation's counsel (or other counsel designated by the Corporation) to
represent such person in any Proceeding, whether or not the Corporation is a
party to such Proceeding. Such authorization may be made by the Chairman of the
Board, unless he is a party to such Proceeding, or by the Board of Directors,
including directors who are parties to such Proceeding.
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SECTION 3. PROCEDURE FOR INDEMNIFICATION. Any indemnification or
advancement of expenses under this Article VI shall be made promptly and in any
event within forty-five (45) days upon the written request of the Indemnified
Person. The right to indemnification or advances as granted by this Article
shall be enforceable by the Indemnified Person in any court of competent
jurisdiction, if the Corporation denies such request under this Article, in
whole or in part, or if no disposition thereof is made within forty-five (45)
days. Such Indemnified Person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification or expense
advances as granted under this Article, in whole or in part, in any such action
shall also be indemnified by the Corporation. It shall be a defense to any such
action that the claimant has not met the standard of conduct, if any, required
by current or future legislation or by current or future judicial Or
administrative decisions for indemnification (but, in the case of any such
future legislation or decisions, only to the extent that it does not impose a
more stringent standard of conduct than permitted prior to such legislation or
decision), but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors or any
committee thereof, its independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct, if any, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors or any committee thereof, its independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 4. RIGHTS NOT EXCLUSIVE; CONTRACT RIGHT; SURVIVAL. The
indemnification provided by this Article VI shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any agreement,
vote of shareholders or disinterested directors or otherwise, both as to actions
in such person's official capacity and as to actions in another capacity while
holding such office, and shall continue as to an Indemnified Person (as granted
under or pursuant to this Article VI) who has ceased to be a director, officer,
employee or agent, as the case may be, and shall inure to the benefit of the
heirs, executors, administrators, personal representatives, assigns and estate
of such person. The rights to indemnification and expense advances under this
Article VI (if and as provided in this Article) shall be deemed to be a contract
between the Corporation and each Indemnified Person who serves or served in such
capacity at any time while this Article is in effect and, as such, are
enforceable against the Corporation. Any repeal or modification of this Article
or any repeal modification of relevant provisions of the FBCA or any other
applicable laws shall not in any way diminish these rights to indemnification of
or expense advances to such Indemnified Person, or the obligations of the
Corporation arising hereunder, for claims relating to matters occurring prior to
such repeal or modification.
SECTION 5. INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including serving as a
fiduciary of an employee benefit plan), with respect to any liability asserted
against him or her or incurred by him or her in any such capacity or arising out
of his or her status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Article or the applicable provisions of Florida law.
SECTION 6. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated or found to be unenforceable on any ground by any court of competent
jurisdiction, then the Corporation
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shall nevertheless indemnify and hold harmless, and make expense advances to,
each Indemnified Person entitled to such under this Article as to costs, charges
and expenses (including attorneys' fees), liabilities, judgments, fines and
amounts paid in settlement with respect to any Proceeding, including any action
by or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated and as
otherwise permitted by applicable law.
ARTICLE VII
MISCELLANEOUS
SECTION 1. CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name and state of incorporation of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by the Board of Directors and may be otherwise changed from time to time by
resolution of the Board of Directors. Unless so fixed or changed, the fiscal
year of the Corporation shall be from January 1st through December 31st of each
year.
SECTION 3. CHECKS. All checks, drafts, demands for money, or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by the President, the Treasurer or such
other officer(s) or agent(s) of the Corporation as shall be authorized and
designated from time to time by resolution of the Board of Directors.
SECTION 4. DIVIDENDS. The Board of Directors may, in its sole discretion,
from time to time authorize and declare, and the Corporation may pay, dividends
on its outstanding shares in cash, property, or its own shares pursuant to and
in accordance with applicable law and subject to the provisions of the Articles.
SECTION 5. RESERVES. The Board of Directors may by resolution create a
reserve or reserves put of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
SECTION 6. NOTICES. Unless a notice is expressly authorized by the
Articles or these Amended and Restated Bylaws to be provided orally, and such
oral notice is reasonable under the circumstances, all notices under or pursuant
to these Amended and Restated Bylaws shall be in writing (with notice by means
of electronic transmission deemed to be written notice). Except as otherwise
specifically provided in the Articles, these Amended and Restated Bylaws or the
FBCA, written notice, in comprehensible form, is deemed to be given, received
and effective on the earliest of the following: (i) receipt, (ii) five (5) days
after its deposit in the, U.S. mail, if mailed first class, postage-paid and
correctly addressed, (iii) on the date shown or reflected 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, and (iv) on the date
electronically transmitted to any person, when such person has authorized and
consented to such electronic transmissions.
SECTION 7. GENDER. All words used in these Amended and Restated Bylaws in
the masculine gender shall extend to and shall include the feminine and neuter
genders.
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ARTICLE VIII
AMENDMENTS
Unless otherwise provided by law, these Amended and Restated Bylaws may be
altered, amended or repealed, and new Bylaws may be adopted, by action of the
Board of Directors.
* * * * *
The undersigned hereby certifies that the foregoing Bylaws of AMERIPATH
MARKETING USA, INC. are the Bylaws of and for the Corporation duly adopted by
written consent of all of the members of the Board of Directors of the
Corporation as of the day of January, 2001.
/s/ Robert P. Wynn
--------------------------
Robert P. Wynn
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