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EXHIBIT 3.2
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BYLAWS
OF
AMERIPATH, INC.
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Incorporated under the Laws of the
State of Delaware
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As of
March 27, 2003
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TABLE OF CONTENTS
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ARTICLE I OFFICES............................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...........................................1
Section 1 Place of Meetings.................................................1
Section 2 Annual Meeting ...................................................1
Section 3 Special Meetings..................................................1
Section 4 Notice of Meetings................................................2
Section 5 List of Stockholders..............................................2
Section 6 Quorum............................................................2
Section 7 Voting............................................................2
Section 8 Proxies...........................................................3
Section 9 Action Without a Meeting..........................................3
ARTICLE III BOARD OF DIRECTORS.................................................3
Section 1 Powers............................................................3
Section 2 Election and Term.................................................3
Section 3 Number............................................................4
Section 4 Quorum and Manner of Acting.......................................4
Section 5 Organization Meeting..............................................4
Section 6 Regular Meetings..................................................4
Section 7 Special Meetings; Notice..........................................4
Section 8 Removal of Directors..............................................5
Section 9 Resignations......................................................5
Section 10 Vacancies........................................................5
Section 11 Action Without a Meeting.........................................5
Section 12 Telephonic Participation in Meetings.............................5
Section 13 Committees.......................................................5
ARTICLE IV OFFICERS...........................................................6
Section 1 Principal Officers................................................6
Section 2 Election and Term of Office.......................................6
Section 3 Other Officers....................................................6
Section 4 Removal...........................................................6
Section 5 Resignations......................................................6
Section 6 Vacancies.........................................................6
Section 7 Chairman of the Board of Directors................................6
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Section 8 President.........................................................7
Section 9 Vice President....................................................7
Section 10 Treasurer........................................................7
Section 11 Secretary........................................................7
Section 12 Assistance Secretaries...........................................7
Section 13 Salaries.........................................................8
ARTICLE V INDEMNIFICATION
Section 1 Third Party Actions...............................................8
Section 2 Derivative Actions................................................8
Section 3 Expenses..........................................................9
Section 4 Authorization.....................................................9
Section 5 Advance Payment of Expenses.......................................9
Section 6 Non-Exclusiveness.................................................9
Section 7 Insurance.........................................................9
Section 8 Constituent Corporations.........................................10
Section 9 Definitional Terms...............................................10
ARTICLE VI SHARES AND THEIR TRANSFER.........................................10
Section 1 Certificate for Stock............................................10
Section 2 Stock Certificate Signature......................................10
Section 3 Stock Ledger.....................................................11
Section 4 Cancellation.....................................................11
Section 5 Registrations of Transfers of Stock..............................11
Section 6 Regulations......................................................11
Section 7 Lost, Stolen, Destroyed or Mutilated Certificates................11
Section 8 Record Dates.....................................................11
ARTICLE VII MISCELLANEOUS PROVISIONS..........................................12
Section 1 Corporate Seal...................................................12
Section 2 Voting of Stocks Owned by the Corporation........................12
Section 3 Dividends........................................................12
ARTICLE VIII AMENDMENTS........................................................12
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BYLAWS
OF
AMERIPATH, INC.
(a Delaware corporation)
------------------
ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware
shall be located in the City of Wilmington, County of New Castle. The
Corporation may establish or discontinue, from time to time, such other offices
within or without the State of Delaware as may be deemed proper for the conduct
of the Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
Section 2. ANNUAL MEETING. The annual meeting of stockholders for the
election of Directors and the transaction of other business shall be held on
such date and at such place as may be designated by the Board of Directors. At
each annual meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before the
meeting.
Section 3. SPECIAL MEETINGS. A special meeting of the stockholders, or
of any class thereof entitled to vote, for any purpose or purposes, may be
called at any time by the Chairman of the Board of Directors, if any, or the
President or by order of the Board of Directors and shall be called by the
Secretary upon the written request of stockholders holding of record such number
of the outstanding shares of stock of the Corporation representing at least 50%
of the total number of votes entitled to be voted at such meeting. Such written
request shall state the purpose or purposes for which such meeting is to be
called.
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Section 4. NOTICE OF MEETINGS. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
stating the place, date and hour of the meeting shall be given not less than ten
days or more than 60 days before the date on which the meeting is to be held to
each stockholder of record entitled to vote thereat by delivering a notice
thereof to him personally or by mailing such notice in a postage prepaid
envelope directed to him at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be directed to another address, in
which case such notice shall be directed to him at the address designated in
such request. Notice shall not be required to be given to any stockholder who
shall waive such notice in writing, whether prior to or after such meeting, or
who shall attend such meeting in person or by proxy unless such attendance is
for the express purpose of objecting, at the beginning of such meeting, to the
transactions of any business because the meeting is not lawfully called or
convened. Every notice of a special meeting of the stockholders, besides the
time and place of the meeting, shall state briefly the objects or purposes
thereof.
Section 5. LIST OF STOCKHOLDERS. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of the stock ledger to
prepare and make, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be kept and produced at the time
and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or duplicate
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
Section 6. QUORUM. At each meeting of the stockholders, the holders of
record of such number of the issued and outstanding stock of the Corporation
representing at least 50% of the total number of votes entitled to be voted at
such meeting, present in person or by proxy, shall constitute a quorum for the
transaction of business, except where otherwise provided by law, the Certificate
of Incorporation of the Corporation or these Bylaws. In the absence of a quorum,
any officer entitled to preside at, or act as Secretary of, such meeting shall
have the power to adjourn the meeting from time to time until a quorum shall be
constituted.
Section 7. VOTING. Unless otherwise provided in the Certificate of
Incorporation of the Corporation, every stockholder of record who is entitled to
vote shall at every meeting of the stockholders be entitled to one vote for each
share of stock held by him on the record date; PROVIDED, that shares of its own
stock belonging to the
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Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held by the
Corporation, shall neither be entitled to vote nor counted for quorum purposes.
Nothing in this section shall be construed as limiting the right of the
Corporation to vote its own stock held by it in a fiduciary capacity. At all
meetings of the stockholders, a quorum being present, all matters shall be
decided by majority of the number of votes with respect to the shares of stock
held by stockholders present in person or by proxy, except as otherwise required
by law or the Certificate of Incorporation of the Corporation. Unless demanded
by a stockholder of the Corporation present in person or by proxy at any meeting
of the stockholders and entitled to vote thereat or so directed by the chairman
of the meeting or required by law, the vote thereat on any question need not be
by written ballot. On a vote by written ballot, each ballot shall be signed by
the stockholder voting, or in his name by his proxy, if there be such proxy, and
shall state the number of shares voted by him and the number of votes to which
each share is entitled.
Section 8. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period.
Section 9. ACTION WITHOUT A MEETING. Any action required to be taken
at any annual or special meeting of stockholders or any action which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 1. POWERS. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors.
Section 2. ELECTION AND TERM. Except as otherwise provided by law,
Directors shall be elected at the annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their successors
are elected and qualify, or until they sooner die, resign or are removed. At
each annual meeting of stockholders, at which a quorum is present, the persons
receiving a plurality of the votes cast shall be
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the Directors. Acceptance of the office of Director may be expressed orally or
in writing, and attendance at the organization meeting shall constitute such
acceptance.
Section 3. NUMBER. The number of Directors shall be such number as
shall be determined from time to time by the Board of Directors and initially
shall be two.
Section 4. QUORUM AND MANNER OF ACTING. Unless otherwise provided by
law, the presence of 50% of the whole Board of Directors (or any committee
thereof) shall be necessary to constitute a quorum for the transaction of
business. In the absence of a quorum, a majority of the Directors present may
adjourn the meeting from time to time until a quorum shall be present. Notice of
any adjourned meeting need not be given. At all meetings of Directors, a quorum
being present, all matters shall be decided by the affirmative vote of a
majority of the Directors present, except as otherwise required by law. The
Board of Directors (or any committee thereof) may hold its meetings at such
place or places within or without the State of Delaware as the Board of
Directors may from time to time determine or as shall be specified in the
respective notices, or waivers of notice, thereof.
Section 5. ORGANIZATION MEETING. Immediately after each annual meeting
of stockholders for the election of Directors the Board of Directors shall meet
at the place of the annual meeting of stockholders for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver of the
notice thereof signed by, or the attendance at such meeting of, all Directors
who may not have received such notice.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such place, within or without the State of Delaware, as
shall from time to time be determined by the Board of Directors. After there has
been such determination, and notice thereof has been once given to each member
of the Board of Directors as hereinafter provided for special meetings, regular
meetings maybe held without further notice being given.
Section 7. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of
Directors (or any committee thereof) shall be held whenever called by the
Chairman of the Board of Directors, if any, the President or by a majority of
the Directors. Notice of each such meeting shall be mailed to each Director,
addressed to him at his residence or usual place of business, at least five days
before the date on which the meeting is to be held, or shall be sent to him at
such place by e-mail or facsimile, or be delivered personally or by telephone,
not later than the day before the day on which such meeting is to be held. Each
such notice shall state the time and place of the meeting and, as may be
required, the purposes thereof. Notice of any meeting of the Board of Directors
need not be given to any Director if he shall sign a written waiver thereof
either before or after the time stated therein for such meeting, or if he shall
be present at the meeting. Unless limited by law, the Certificate of
Incorporation of the Corporation, these Bylaws or the
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terms of the notice thereof, any and all business may be transacted at any
meeting without the notice thereof having specifically identified the matters to
be acted upon.
Section 8. REMOVAL OF DIRECTORS. Any Director or the entire Board of
Directors may be removed, with or without cause, at any time, by action of the
holders of record of the issued and outstanding stock of the Corporation
representing a majority of the number of votes of all issued and outstanding
stock of the Corporation (a) present in person or by proxy at a meeting of
holders of such stock and entitled to vote thereon or (b) by a consent in
writing in the manner contemplated in Section 9 of Article II, and the vacancy
or vacancies in the Board of Directors caused by any such removal may be filled
by action of such a majority at such meeting or at any subsequent meeting or by
consent.
Section 9. RESIGNATIONS. Any Director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board of Directors, if
any, the President, the Vice President or the Secretary of the Corporation. The
resignation of any Director shall take effect upon receipt of notice thereof or
at such later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 10. VACANCIES. Any newly created directorships and vacancies
occurring in the Board of Directors by reason of death, resignation, retirement,
disqualification or removal, with or without cause, may only be filled by the
action of the holders of record of the majority of such issued and outstanding
stock of the Corporation representing a majority of the number of votes of all
issued and outstanding stock of the Corporation (a) present in person or by
proxy at a meeting of holders of such stock and entitled to vote thereon or (b)
by a consent in writing in the manner contemplated in Section 9 of Article II.
The Director so chosen, whether selected to fill a vacancy or elected to a new
directorship, shall hold office until the next meeting of stockholders at which
the election of Directors is in the regular order of business, and until his
successor has been elected and qualifies, or until he sooner dies, resigns or is
removed.
Section 11. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors (or any committee thereof)
may be taken without a meeting if a written consent thereto is signed by all
members of the Board of Directors (or any committee thereof), and such written
consent is filed with the minutes or proceedings of the Board of Directors.
Section 12. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board
of Directors (or any committee thereof) may participate in a meeting of the
Board of Directors (or any committee thereof) by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation shall constitute
presence in person at such meeting.
Section 13. COMMITTEES. The Board of Directors may appoint such
committees of the Board of Directors as it may deem appropriate, and such
committees
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shall exercise the authority delegated to them. The membership of any such
committee shall consist of such Directors as the Board of Directors may deem
advisable from time to time to serve. The Board of Directors may fill in any
vacancies on any committee as they occur. Each committee shall meet as often as
its business may require.
ARTICLE IV
OFFICERS
Section 1. PRINCIPAL OFFICERS. The Board of Directors shall elect a
President, a Secretary and a Treasurer, and may in addition elect a Chairman of
the Board of Directors, one or more Vice Presidents and such other officers as
it deems fit; the President, the Secretary, the Treasurer, the Chairman of the
Board of Directors (if any) and the Vice Presidents (if any) being the principal
officers of the Corporation. One person may hold, and perform the duties of, any
two or more of said offices.
Section 2. ELECTION AND TERM OF OFFICE. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the
organization meeting thereof Each such officer shall hold office until his
successor shall have been elected and shall qualify, or until his earlier death,
resignation or removal.
Section 3. OTHER OFFICERS. In addition, the Board of Directors may
elect, or the Chairman of the Board of Directors, if any, or the President may
appoint, such other officers as they deem fit. Any such other officers chosen by
the Board of Directors shall be subordinate officers and shall hold office for
such period, have such authority and perform such duties as the Board of
Directors, the Chairman of the Board of Directors, if any, or the President may
from time to time determine.
Section 4. REMOVAL. Any officer may be removed, either with or without
cause, at any lime, by resolution adopted by the Board of Directors at any
regular meeting of the Board of Directors, or at any special meeting of the
Board of Directors called for that purpose, at which a quorum is present.
Section 5. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Chairman of the Board of Directors, if any, the President,
the Secretary or the Board of Directors. Any such resignation shall take effect
upon receipt of such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 6. VACANCIES. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these Bylaws for
election or appointment to such office for such term.
Section 7. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, if one be elected, shall preside if present at all meetings
of the Board
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of Directors, and he shall have and perform such other duties as from time to
time may be assigned to him by the Board of Directors.
Section 8. PRESIDENT. The President shall be the chief executive
officer of the Corporation and shall have the general powers and duties of
supervision and management usually vested in the office of president of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or non-election of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the Corporation. Except as
the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Treasurer.
Section 9. VICE PRESIDENT. Each Vice President, if such be elected,
shall have such powers and shall perform such duties as shall be assigned to him
by the President or the Board of Directors.
Section 10. TREASURER. The Treasurer shall have charge and custody of,
and he responsible for, all funds and securities of the Corporation. He shall
exhibit at all reasonable times his books of account and records to any of the
Directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board of
Directors or at the annual meeting of stockholders; he shall receive, and give
receipt for, moneys due and payable to the Corporation from any source
whatsoever; in general, he shall perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to him
by the Chairman of the Board of Directors, the President or the Board of
Directors. The Treasurer shall give such bond, if any, for the faithful
discharge of his duties as the Board of Directors may require.
Section 11. SECRETARY. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose; he
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have charge of the stock records of the Corporation;
he shall see that all reports, statements and other documents required by law
are properly kept and filed; and in general he shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the President or the Board of Directors.
Section 12. ASSISTANT SECRETARIES. Assistant Secretaries, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Secretary, and in the absence of the Secretary or in the
event of the Secretary's inability
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or refusal to act, shall perform the duties of the Secretary, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Secretary.
Section 13. SALARIES. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors, and the salaries of any other
officers may he fixed by the President.
ARTICLE V
INDEMNIFICATION
Section 1. THIRD PARTY ACTIONS. The Corporation shall indemnify any
Director or officer of the Corporation, and may indemnify any other person, who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person 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 or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. DERIVATIVE ACTIONS. The Corporation shall indemnify any
Director or officer of the Corporation, and may indemnify any other person, who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person 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 or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon
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application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. EXPENSES. To the extent that any present or former Director
or officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 1 and 2 above,
or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 4. AUTHORIZATION. Any indemnification under Sections 1 and 2
above (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former Director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Sections 1 and 2 above. Such determination shall be made, with respect
to a person who is a Director or officer at the time of such determination, (a)
by a majority vote of the Directors who are not parties to such action, suit or
proceeding ("disinterested Directors"), even though less than a quorum, or (b)
by a committee of disinterested Directors designated by a majority vote of the
disinterested Directors, even though less than a quorum, or (c) if there are no
disinterested Directors, or if the disinterested Directors so direct, by
independent legal counsel in a written opinion, or (d) by the stockholders.
Section 5. ADVANCE PAYMENT OF EXPENSES. Expenses (including attorneys'
fees) incurred by a present or former executive officer or Director in defending
a civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such officer or Director to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
as authorized in this Article V. Such expenses incurred by other officers,
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 6. NON-EXCLUSIVENESS. The indemnification and advancement of
expenses provided by this Article V shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office, and shall continue as
to a person who has ceased to be a Director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7. INSURANCE. The Corporation shall have power to 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
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director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and 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 the person against such liability under the provisions of this Article
V.
Section 8. CONSTITUENT CORPORATIONS. The Corporation shall have the
power to indemnify and advance expenses to any person who is or was a director,
officer, employee or agent of a constituent corporation absorbed in a
consolidation or merger with this Corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, in the same manner as hereinabove provided for 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 or
agent of another corporation, partnership, joint venture, trust or other
enterprise.
Section 9. DEFINITIONAL TERMS. For purposes of this Article V,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; references to "serving at the request of
the Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or includes services by such
Director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article V.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 1. CERTIFICATE FOR STOCK. Every stockholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
capital stock of the Corporation owned by him. No certificate shall be issued
for partly paid shares.
Section 2. STOCK CERTIFICATE SIGNATURE. The certificates for such
stock shall be numbered in the order in which they shall be issued and shall be
signed by the Chairman of the Board of Directors, if any, or the President or
any Vice President and by the Secretary or an Assistant Secretary or the
Treasurer of the Corporation, and its seal shall be affixed thereto. If such
certificate is countersigned (1) by a transfer agent other than the Corporation
or its employee, or, (2) by a registrar other than the Corporation or its
employee, the signatures of such officers of the Corporation may be facsimiles.
In case any officer of the Corporation who has signed, or whose facsimile
signature has been placed upon, any such certificate shall have ceased to be
such officer before such
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certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
Section 3. STOCK LEDGER. A record shall be kept by the Secretary or by
any other officer, employee or agent designated by the Board of Directors of the
name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any such
certificate, the respective dates of cancellation.
Section 4. CANCELLATION. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be canceled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except,
subject to Section 7 of this Article VI, in cases provided for by applicable
law.
Section 5. REGISTRATIONS OF TRANSFERS OF STOCK. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on the
books of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer clerk or a transfer agent
appointed as in Section 6 of this Article VI provided, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation; PROVIDED, that whenever any transfer of shares shall be made
for collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented to the Corporation
for transfer, both the transferor and the transferee request the Corporation to
do so.
Section 6. REGULATIONS. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation of the Corporation or these Bylaws, concerning the issue, transfer
and registration of certificates for shares of the stock of the Corporation. It
may appoint, or authorize any principal officer or officers to appoint, one or
more transfer clerks or one or more transfer agents and one or more registrars,
and may require all certificates of stock to bear the signature or signatures of
any of them.
Section 7. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which shall become mutilated or shall be lost, stolen or destroyed,
proper evidence of such loss, theft, mutilation or destruction shall be procured
for the Board of Directors, and a sufficient indemnity bond in favor of the
Corporation shall be provided by the applicable stockholder, in each case, if it
so requires.
Section 8. RECORD DATES. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any
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rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a date as a record date for any such
determination of stockholders. Such record date shall not be more than sixty or
less than ten days before the date of such meeting, or more than sixty days
prior to any other action. If a record date is not fixed by the Board of
Directors as aforesaid, (i) the date for determination of stockholders entitled
to notice of or to vote at a meeting of stockholders shall be the close of
business on the day next preceding the day on which notice is given, or if no
notice is given, the day next preceding the day on which the meeting is held,
and (ii) the record date for determining stockholders for any purpose other than
that specified in clause (i) shall be the close of business on the day on which
the resolution of the Board of Directors relating thereto is adopted.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal, which shall be in such form as the Board of Directors may
decide. The Secretary shall be the custodian of the seal. The Board of Directors
may authorize a duplicate seal to be kept and used by any other officer.
Section 2. VOTING OF STOCKS OWNED BY THE CORPORATION. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may hold stock.
Section 3. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors may, out of funds
legally available therefor, at any regular or special meeting declare dividends
upon the capital stock of the Corporation as and when they deem expedient.
Before declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for equalizing dividends or for such other purposes as
the Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed by the Board of
Directors at any regular or special meeting of the Board of Directors or by the
affirmative vote of the holders of record of the issued and outstanding stock of
the Corporation
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representing a majority of the number of votes of all issued and outstanding
shares of the Corporation (i) present in person or by proxy at a meeting of
holders of such stock or (ii) by a consent in writing in the manner contemplated
in Section 9 of Article II; PROVIDED, that notice of the proposed alteration,
amendment or repeal is contained in the notice of such meeting. Bylaws, whether
made or altered by the stockholders or by the Board of Directors, shall be
subject to alteration or repeal by the stockholders as in this Article VIII
above provided.
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