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EXHIBIT 3.64
BYLAWS
OF
ARIZONA PATHOLOGY GROUP, INC.
ARTICLE I
OFFICES
Section 1.1 BUSINESS OFFICE. The principal office of the corporation
shall be located at any place either within or outside the state of Arizona as
designated in the corporation's most current annual report filed with the
Arizona Division of Corporations. The corporation may have such other offices,
either within or without the state of Arizona, as the board of directors may
designate or as the business of the corporation may require from time to time.
Section 1.2 REGISTERED OFFICE. The registered office of the corporation,
required by the Arizona Revised Statutes (the "ARS") shall be located within
Arizona and may be, but need not be, identical with the principal office (if
located within Arizona). The address of the registered office may be changed
from time to time.
ARTICLE II
SHAREHOLDERS
Section 2.1 ANNUAL SHAREHOLDER MEETING. The annual meeting of the
shareholders shall be held at a time and date determined by the corporation's
board of directors, for the purpose of electing directors and for the
transARSion of such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday in the state of Arizona,
such meeting shall be held on the next succeeding business day.
If the election of directors shall not be held on the day designated herein
for any annual meeting of the shareholders, or at any subsequent continuation
after adjournment thereof, the board of directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as convenient
The failure to hold an annual or special meeting does not affect the validity of
any corporate ARSion or work a forfeiture or dissolution of the corporation.
Section 2.2 SPECIAL SHAREHOLDER MEETINGS. Special meetings of the
shareholders, for any purpose or purposes described in the meeting notice, may
be called by the president or by the board of directors and shall be called by
the president at the request of the holders of not less than one-tenth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
Section 2.3 PLACE OF SHAREHOLDER MEETINGS. The board of directors may
designate any place, either within or without the state of Arizona, as the place
of meeting for any annual or any special meeting of the shareholders, unless by
written consents, which may be in the form of waivers of notice or otherwise, a
majority of shareholders entitled to vote at the meeting may designate a
different place, either within or without the state of Arizona, as the place for
the holding of such meeting. If no designation is made by either the directors
or majority ARSion of the voting shareholders, the place of meeting shall be the
principal office of the corporation.
Section 2.4 NOTICE OF SHAREHOLDER MEETINGS.
(a) REQUIRED NOTICE. Written notice stating the place, day, and
time of any annual or special shareholder meeting shall be delivered not
less than 10 nor more than 60 days before the date of the meeting, either
in person, by any form of electronic communication, by mail, by private
carrier, or by any other manner provided for in the ARS, by or at the
direction of the president, the board of directors, or other persons
calling the meeting, to each shareholder of record, entitled to vote at
such meeting and to any other shareholder entitled by the ARS or the
articles of incorporation to receive notice of the meeting. Notice shall be
deemed to be effective at the earlier of: (1) when deposited in the United
States mail, addressed to the shareholder at his address as it appears on
the stock transfer books of the corporation, with postage thereon prepaid;
(2) on the
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date shown on the return receipt if sent by registered or certified mail,
return receipt requested, and the receipt is signed by or on behalf of the
addressee; (3) when received; or (4) five days after deposit in the United
States mail, if mailed postpaid and correctly addressed to an address other
than that shown in the corporation's current record of shareholders.
(b) ADJOURNED MEETING. If any shareholder meeting is adjourned to a
different date, time, or place, notice need not be given of the new date,
time, and place, if the new date, time, and place is announced at the
meeting before adjournment. If a new record date for the adjourned meeting
is, or must be fixed (see section 2.5 of this Article II) or if the
adjournment is for more than 30 days, then notice must be given pursuant to
the requirements of paragraph (a) of this section 2.4, to those persons who
are shareholders as of the new record date.
(c) WAIVER OF NOTICE. The shareholder may waive notice of the meeting
(or any notice required by the ARS, articles of incorporation, or bylaws),
by a writing signed by the shareholder entitled to the notice, which is
delivered to the corporation (either before or after the date and time
stated in the notice) for inclusion in the minutes or filing with the
corporate records.
(d) SHAREHOLDER ATTENDANCE. A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of
the meeting, unless the shareholder at the beginning of the meeting
objects to holding the meeting or transARSing business at the meeting;
and
(2) waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the
matter when it is presented.
(e) CONTENTS OF NOTICE. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for which
the meeting is called. Except as provided in this section 2.4(e), the
articles of incorporation, or otherwise in the ARS, the notice of an annual
shareholder meeting need not include a description of the purpose or
purposes for which the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange, or other disposition of all, or
substantially all of the corporation's property; (4) the dissolution of the
corporation; or (5) the removal of a director, the notice must so state and, to
the extent applicable, be accompanied by a copy or summary of the: (1) articles
of amendment; (2) plan of merger or share exchange; (3) agreement for the
disposition of all or substantially all of the corporation's property; or (4)
the terms of the dissolution. If the proposed corporate action creates
dissenters' rights, the notice must state that shareholders are, or may be
entitled to assert dissenters' rights, and must be accompanied by a copy of the
provisions of the ARS governing such rights.
Section 2.5 MEETINGS BY TELECOMMUNICATIONS. Any or all of the
shareholders may participate in an annual or special meeting of shareholders by,
or the meeting may be conducted through the use of, any means of communication
by which all persons participating in the meeting can hear each other during the
meeting. A shareholder participating in a meeting by this means is considered to
be present in person at the meeting.
Section 2.6 FIXING OF RECORD DATE. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders, or shareholders entitled to receive payment of any distribution
or dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors may fix in advance a date as the record
date. Such record date shall not be more than 70 days prior to the meeting of
shareholders or the payment of any distribution or dividend. If no record date
is so fixed by the board of directors for the determination of shareholders
entitled to notice of, or to vote at a meeting of shareholders, or
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shareholders entitled to receive a share dividend or distribution, or in order
to make a determination of shareholders for any other proper purpose, the record
date for determination of such shareholders shall be at the close of business
on:
(a) With respect to an annual shareholder meeting or any special
shareholder meeting called by the board of directors or any person
specifically authorized by the board of directors or these bylaws to call a
meeting, the day before the first notice is delivered to shareholders;
(b) With respect to a special shareholders' meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
board of directors authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article II, section 2.12), the date the first shareholder
signs a consent; and
(e) With respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date the board
authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section 2.6, such determination
shall apply to any adjournment thereof unless the board of directors fixes a new
record date. A new record date must be fixed if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
Section 2.7 SHAREHOLDER LIST. The officer or agent having charge of
the stock transfer books for shares of the corporation shall make a complete
record of the shareholders entitled to vote at each meeting of shareholders,
arranged in alphabetical order with the address of and the number of shares held
by each. The list must be arranged by voting group (if such exists, see Article
II, section 2.8) and within each voting group by class or series of shares. The
shareholder list must be available for inspection by any shareholder, beginning
on the earlier of ten days before the meeting for which the list was prepared or
two business days after notice of the meeting is given for which the list was
prepared and continuing through the meeting. The list shall be available at the
corporation's principal office or at a place identified in the meeting notice in
the city where the meeting is to be held. A shareholder, or his agent or
attorney, is entitled, on written demand, to inspect and, subject to the
requirements of section 2.18 of this Article II and the applicable sections of
the ARS, or any sections of like tenor as from time to time amended, to inspect
and copy the list during regular business hours, at his expense, during the
period it is available for inspection. The corporation shall maintain the
shareholder list in written form or in another form capable of conversion into
written form within a reasonable time.
Section 2.8 SHAREHOLDER QUORUM AND VOTING REQUIREMENTS. If the articles
of incorporation or the ARS provides for voting by a single voting group on a
matter, action on that matter is taken when voted upon by that voting group.
Shares entitled to vote as a separate voting group may take action on a
matter at a meeting only if a quorum of those shares exists with respect to that
matter. Unless the articles of incorporation, a bylaw adopted pursuant to
section 2.9 of this Article II, or the ARS provides otherwise, a majority of the
votes entitled to be cast on the matter by the voting group constitutes a quorum
of that voting group for Action on that matter.
If the articles of incorporation or the ARS provides for voting by two or
more voting groups on a matter, Action on that matter is taken only when voted
upon by each of those voting groups counted separately. Action may be taken by
one voting group on a matter even though no Action is taken by another voting
group entitled to vote on the matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
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If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation, a bylaw adopted pursuant to section 2.9 of this
Article II, or the ARS require a greater number of affirmative votes.
Section 2.9 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS. For
purposes of this section 2.9, a "supermajority" quorum is a requirement that
more than a majority of the votes of the voting group be present to constitute a
quorum; and a "supermajority" voting requirement is any requirement that
requires the vote of more than a majority of the affirmative votes of a voting
group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend, or delete a bylaw which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the same
quorum requirement and be adopted by the same vote and voting groups required to
take action under the quorum and voting requirement then in effect or proposed
to be adopted, whichever is greater.
A bylaw that fixes a supermajority quorum or voting requirement for
shareholders may not be adopted, amended, or repealed by the board of directors.
Section 2.10 PROXIES. At all meetings of shareholders, a shareholder may
vote in person, or vote by proxy, executed in writing by the shareholder or by
his duly authorized attorney-in-fact. Such proxy shall be filed with the
secretary of the corporation or other person authorized to tabulate votes before
or at the time of the meeting. No proxy shall be valid after 11 months from the
date of its execution unless otherwise provided in the proxy.
Section 2.11 VOTING OF SHARES. Unless otherwise provided in the articles
of incorporation, each outstanding share entitled to vote shall be entitled to
one vote upon each matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by the corporation, shall be voted
at any meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting; provided, however, the prior
sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 2.12 CORPORATION'S ACCEPTANCE OF VOTES.
(a) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to accept the vote,
consent, waiver, or proxy appointment or revocation and give it effect as
the act of the shareholder.
(b) If the name signed on a vote, consent, waiver, or proxy
appointment or revocation does not correspond to the name of its
shareholder, the corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver, or proxy appointment or
revocation and give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the ARS and the
name signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an administrator,
executor, guardian, or
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conservator representing the shareholder and, if the corporation requests,
evidence of fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, or proxy appointment
or revocation;
(3) the name signed purports to be that of receiver or trustee
in bankruptcy of the shareholder and, if the corporation requests, evidence
of this status acceptable to the corporation has been presented with
respect to the vote, consent, waiver, or proxy appointment or revocation;
(4) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's
authority to sign for the shareholder has been presented with respect to
the vote, consent, waiver, or proxy appointment or revocation; and
(5) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment or revocation if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature or about the signatory's
authority to sign for the shareholder.
(d) The corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, or proxy appointment or revocation in good faith and
in accordance with the standards of this section are not liable in damages
to the shareholder for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment or revocation under this section 2.12
is valid unless a court of competent jurisdiction determines otherwise.
Section 2.13 INSPECTORS OF ELECTION. There shall be appointed at least
one inspector of the vote. Such inspector shall first take and subscribe an oath
or affirmation faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. Unless
appointed in advance of any such meeting by the board of directors, such
inspector shall be appointed for the meeting by the presiding officer. In the
absence of any such appointment, the secretary of the corporation shall act as
the inspector. No candidate for the office of director (whether or not then a
director) shall be appointed as such inspector. Such inspector shall be
responsible for tallying and certifying each vote, whether made in person or by
proxy.
Section 2.14 SHAREHOLDER ACTION WITHOUT MEETING. Any action required or
permitted to be taken at a meeting of the shareholders, except for the election
of directors as set forth in section 2.15 of this Article II, may be taken
without a meeting and without prior notice if one or more consents in writing,
setting forth the action so taken, shall be signed by all shareholders.
Section 2.15 ELECTION OF DIRECTORS. At all meetings of the shareholders
at which directors are to be elected, except as otherwise set forth in any stock
designation with respect to the right of the holders of any class or series of
stock to elect additional directors under specified circumstances, directors
shall be elected by a plurality of the votes cast at the meeting. The election
need not be by ballot unless any shareholder so demands before the voting
begins. Except as otherwise provided by law, the articles of incorporation, any
preferred stock designation, or these bylaws, all matters other than the
election of directors submitted to the shareholders at any meeting shall be
decided by a majority of the votes cast with respect thereto.
Section 2.16 BUSINESS AT ANNUAL MEETING. At any annual meeting of the
shareholders, only such business shall be conducted as shall have been brought
before the meeting (a) by or at the direction of the board of directors or (b)
by any shareholder of record of the corporation who is entitled to vote with
respect thereto. Notwithstanding anything
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in these bylaws to the contrary, no business shall be brought before or
conducted at an annual meeting except in accordance with the provisions of this
section. The officer of the corporation or other person presiding at the annual
meeting shall, if the facts so warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with
such provisions, and if such presiding officer should so determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with such provisions and if such presiding officer should so
determine, such presiding officer shall so declare to the meeting, and any such
business so determined to be not properly brought before the meeting shall not
be transacted.
Section 2.17 CONDUCT OF MEETING. The board of directors of the
corporation shall be entitled to make such rules or regulations for the conduct
of meetings of shareholders as it shall deem necessary, appropriate, or
convenient. Subject to such rules and regulations of the board of directors, if
any, the chairman of the meeting shall have the right and authority to prescribe
such rules, regulations, and procedures and do all such acts as, in the judgment
of such chairman, are necessary, appropriate, or convenient for the proper
conduct of the meeting, including, without limitation, establishing an agenda or
order of business for the meeting, rules and procedures for maintaining order at
the meeting, and the safety of those present, limitations on participation in
such meeting to shareholders of record of the corporation and their duly
authorized and constituted proxies, and such other persons as the chairman shall
permit, restrictions on entry to the meeting after the time fixed for the
commencement thereof, limitations on the time allotted to questions or comments
by participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot, unless, and to the
extent, determined by the board of directors or the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
rules of parliamentary procedure.
Section 2.18 FINANCIAL STATEMENTS SHALL BE FURNISHED TO THE SHAREHOLDERS.
Upon written request of any shareholder, the corporation shall mail to such
shareholder its most recent annual or quarterly financial statements showing in
reasonable detail its assets and liabilities and the results of its operations.
Section 2.19 DISSENTERS' RIGHTS. Each shareholder shall have the right to
dissent from and obtain payment for such shareholder's shares when so authorized
by the ARS, the articles of incorporation, these bylaws, or in a resolution of
the board of directors.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 GENERAL POWERS. Unless the articles of incorporation have
dispensed with or limited the authority of the board of directors, 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.
Section 3.2 NUMBER, TENURE, AND QUALIFICATION OF DIRECTORS. Unless
permitted by the ARS, the authorized number of directors shall be not less than
three. The current number of directors shall be as determined (or as amended
from time to time) by resolution adopted from time to time by either the
shareholders or directors. Each director shall hold office until the next annual
meeting of shareholders or until removed. However, if his term expires, he shall
continue to serve until his successor shall have been elected and qualified, or
until there is a decrease in the number of directors. A decrease in the number
of directors does not shorten an incumbent director's term. Unless required by
the articles of incorporation, directors do not need to be residents of Arizona
or shareholders of the corporation.
Section 3.3 REGULAR MEETINGS OF THE BOARD OF DIRECTORS. A regular
meeting of the board of directors shall be held without other notice than this
bylaw immediately after, and at the same place as, the annual meeting of
shareholders. The board of directors may provide, by resolution, the time and
place for the holding of additional regular meetings without other notice than
such resolution.
Section 3.4 SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. Special meetings
of the board of directors may be called by or at the request of the president or
any one director. The person authorized to call special meetings of the board of
directors may fix any place as the place for holding any special meeting of the
board of directors.
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Section 3.5 NOTICE OF AND WAIVER OF NOTICE FOR SPECIAL DIRECTOR
MEETINGS. Unless the articles of incorporation provide for a longer or shorter
period, notice of any special director meeting shall be given at least two days
prior thereto either orally, in person, by telephone, by any form of electronic
communication, by mail, by private carrier, or by any other manner provided for
in the ARS. Any director may waive notice of any meeting. Except as provided in
the next sentence, the waiver must be in writing, signed by the director
entitled to the notice, and filed with the minutes or corporate records. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business and at the beginning of the
meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting, and does not thereafter vote for or assent
to action taken at the meeting. Unless required by the articles of incorporation
or the ARS, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
Section 3.6 DIRECTOR QUORUM. A majority of the number of directors in
office immediately before the meeting begins shall constitute a quorum for the
transaction of business at any meeting of the board of directors, unless the
articles of incorporation require a greater number.
Any amendment to this quorum requirement is subject to the provisions of
section 3.8 of this Article III.
Section 3.7 DIRECTORS, MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present when the vote is
taken shall be the act of the board of directors unless the articles of
incorporation require a greater percentage. Any amendment which changes the
number of directors needed to take action, is subject to the provisions of
section 3.8 of this Article III.
Unless the articles of incorporation provide otherwise, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless: (1) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting business at
the meeting; or (2) his dissent or abstention from the action taken is requested
by such director to be entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
Section 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING REQUIREMENT
FOR THE BOARD OF DIRECTORS. For purposes of this section 3.8, a "supermajority"
quorum is a requirement that requires more than a majority of the directors in
office to constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of those directors
present at a meeting at which a quorum is present to be the act of the
directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders); or
(2) if originally adopted by the board of directors, either by the
shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that fixes a supermajority
quorum or supermajority voting requirement for the board of directors may
provide that it may be amended or repealed only by a specified vote of either
the shareholders or the board of directors.
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Subject to the provisions of the preceding paragraph, Action by the board
of directors to adopt, amend, or repeal a bylaw that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take Action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 DIRECTOR ACTION WITHOUT A MEETING. Unless the articles of
incorporation provide otherwise, any action required or permitted to be taken by
the board of directors at a meeting may be taken without a meeting if all the
directors sign a written consent describing the action taken, and such consent
is filed with the records of the corporation. Action taken by consent is
effective when the last director signs the consent, unless the consent specifies
a different effective date. A signed consent has the effect of a meeting vote
and may be described as such in any document. Such consent may be executed in
any number of counterparts, or evidenced by any number of instruments of
substantially similar tenor.
Section 3.10 REMOVAL OF DIRECTORS. The shareholders may remove one or
more directors at a meeting called for that purpose if notice has been given
that the purpose of the meeting is such removal. The removal may be with or
without cause unless the articles of incorporation provide that directors may
only be removed with cause. If a director is elected by a voting group of
shareholders, only the shareholders of that voting group may participate in the
vote to remove him. If cumulative voting is authorized, a director may not be
removed if the number of votes sufficient to elect him under cumulative voting
is voted against his removal. If cumulative voting is not authorized, a director
may be removed only if the number of votes cast to remove him exceeds the number
of votes cast against such removal.
Section 3.11 BOARD OF DIRECTOR VACANCIES. Unless the articles of
incorporation provide otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors, the
shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies, then and until the shareholders act:
(1) the board of directors may fill the vacancy; or
(2) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting group of
shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders. If two or more
directors are elected by the same voting group, only remaining directors elected
by such voting group are entitled to vote to fill the vacancy of a director
elected by the voting group if it is filled by directors.
A vacancy that will occur at a specific later date (by reason of
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualified
or until there is a decrease in the number of directors.
Section 3.12 DIRECTOR COMPENSATION. Unless otherwise provided in the
articles of incorporation, by resolution of the board of directors, each
director may be paid his expenses, if any, of attendance at each meeting of the
board of directors, and may be paid a stated salary as director or a fixed sum
for attendance at each meeting of the board of directors or both. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 3.13 DIRECTOR COMMITTEES.
(a) CREATION OF COMMITTEES. Unless the articles of incorporation
provide otherwise, the board of directors may create one or more committees
and appoint members of the board of directors to serve on them. Each
committee must have two or more members, who serve at the pleasure of the
board of directors.
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(b) SELECTION OF MEMBERS. The creation of a committee and appointment
of members to it must be approved by the greater of (1) a majority of all
the directors in office when the action is taken or (2) the number of
directors required by the articles of incorporation to take such action (or
if not specified in the articles of incorporation, the number required by
section 3.7 of this Article III to take action).
(c) REQUIRED PROCEDURES. Sections 3.4, 3.5, 3.6, 3.7, 3.8, and 3.9,
of this Article III, which govern meetings, action without meetings, notice
and waiver of notice, quorum and voting requirements of the board of
directors, apply to committees and their members.
(d) AUTHORITY. Unless limited by the articles of incorporation, each
committee may exercise those aspects of the authority of the board of
directors which the board of directors confers upon such committee in the
resolution creating the committee; provided, however, a committee may not:
(1) authorize distributions to shareholders;
(2) approve, or propose to shareholders, action that the ARS
requires be approved by shareholders;
(3) fill vacancies on the board of directors or on any of its
committees;
(4) amend the articles of incorporation pursuant to the
authority of directors to do so granted by the ARS or any section of
like tenor as from time to time amended;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of directors;
or
(8) authorize or approve the issuance or sale or contract for
sale of shares or determine the designation and relative rights,
preferences, and limitations of a class or series of shares, except
that the board of directors may authorize a committee (or a senior
executive officer of the corporation) to do so within limits
specifically prescribed by the board of directors.
ARTICLE IV
OFFICERS
Section 4.1 NUMBER OF OFFICERS. There shall be at least one officer of
the corporation, a president, who shall be appointed by the board of directors.
Such other officers and assistant officers as may be deemed necessary, including
any vice-presidents, may be appointed by the board of directors. If specifically
authorized by the board of directors, an officer may appoint one or more
officers or assistant officers. The same individual may simultaneously hold more
than one office in the corporation.
Section 4.2 APPOINTMENT AND TERM OF OFFICE. The officers of the
corporation shall be appointed by the board of directors for a term as
determined by the board of directors. If no term is specified, such term shall
continue until the first meeting of the directors held after the next annual
meeting of shareholders. If the appointment of officers shall not be made at
such meeting, such appointment shall be made as soon thereafter as is convenient
Each officer shall hold office until his successor shall have been duly
appointed and shall have qualified, until his death, or until he shall resign or
shall have been removed in the manner provided in section 4.3 of this Article
IV.
Section 4.3 REMOVAL OF OFFICERS. Any officer or agent may be removed by
the board of directors or an officer authorized to do so by the board of
directors at any time either before or after the expiration of the designated
term, with or without cause. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Neither the appointment of an
officer nor the designation of a specified term shall create any contract
rights.
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Section 4.4 DUTIES AND COMPENSATION. The duties and compensation of the
officers shall be fixed from time to time by the board of directors or by a duly
authorized officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 INDEMNIFICATION OF DIRECTORS. The corporation shall
indemnify any individual made a party to a proceeding because such individual
was a director of the corporation to the extent permitted by and in accordance
with the applicable provisions of the ARS or any amendments of successor
sections of like tenor.
Section 5.2 ADVANCE EXPENSES FOR DIRECTORS. To the extent permitted by
the applicable provisions of the ARS or any section of like tenor as amended
from time to time, the corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding, if:
(a) the director furnishes the corporation a written affirmation of
his good faith belief that he has met the standard of conduct described in
the ARS;
(b) the director furnishes the corporation a written undertaking,
executed personally or on his behalf, to repay advances if it is ultimately
determined that he did not meet the standard of conduct (which undertaking
must be an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability to make
repayment); and
(c) a determination is made that the fasts then known to those making
the determination would not preclude indemnification under the applicable
sections of the ARS or similar sections of like tenor as from time to time
amended.
Section 5.3 INDEMNIFICATION OF OFFICERS, AGENTS, AND EMPLOYEES WHO ARE
NOT DIRECTORS. Unless otherwise provided in the articles of incorporation, the
board of directors may authorize the corporation to indemnity and advance
expenses to any officer, employee, or agent of the corporation who is not a
director of the corporation, to the extent permitted by the ARS.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 CERTIFICATES FOR SHARES.
(a) CONTENT. Certificates representing shares of the corporation
shall at minimum, state on their face the name of the issuing corporation
and that it is formed under the laws of the state of Arizona; the name of
the person to whom issued; and the number and class of shares and the
designation of the series, if any, the certificate represents; and be in
such form as determined by the board of directors. Such certificates shall
be signed (either manually or by facsimile) by the president or a
vice-president and by the secretary or an assistant secretary and may be
sealed with a corporate seal or a facsimile thereof. Each certificate for
shares shall be consecutively numbered or otherwise identified.
(b) LEGEND AS TO CLASS OR SERIES. If the corporation is authorized to
issue different classes of shares or different series within a class, the
designations, relative rights, preferences, and limitations applicable to
each class and the variations in rights, preferences, and limitations
determined for each series (and the authority of the board of directors to
determine variations for future series) must 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 this information without charge on request in writing.
(c) SHAREHOLDER LIST. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date
of issue, shall be entered on the stock transfer books of the corporation.
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(d) TRANSFERRING SHARES. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed, or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the board of directors may prescribe.
Section 6.2 SHARES WITHOUT CERTIFICATES.
(a) ISSUING SHARES WITHOUT CERTIFICATES. Unless the articles of
incorporation provide otherwise, the board of directors may authorize the
issuance of some or all the shares of any or all of its classes or series
without certificates. The authorization does not affect shares already
represented by certificates until they are surrendered to the corporation.
(b) WRITTEN STATEMENT REQUIRED. Within a reasonable time after the
issuance or transfer of shares without certificates, the corporation shall
send the shareholder a written statement containing at minimum:
(1) the name of the issuing corporation and that it is organized
under the laws of the state of Arizona;
(2) the name of the person to whom issued; and
(3) the number and class of shares and the designation of the
series, if any, of the issued shares.
If the corporation is authorized to issue different classes of shares or
different series within a class, the written statement shall describe the
designations, relative rights, preferences, and limitations applicable to
each class and the variation in rights, preferences, and limitations
determined for each series (and the authority of the board of directors to
determine variations for future series). Alternatively, each written
statement may state conspicuously that the corporation will furnish the
shareholder this information without charge on request in writing.
Section 6.3 REGISTRATION OF THE TRANSFER OF SHARES. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the record owner of such shares on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
Section 6.4 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED. The board of
directors (or shareholders) may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire, shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction.
A restriction on the transfer or registration of transfer of shares is
authorized:
(a) to maintain the corporation's status when it is dependent on the
number or identity of its shareholders;
(b) to preserve entitlements, benefits, or exemptions under federal,
state, or local law; and
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares may:
(a) obligate the shareholder first to offer the corporation or other
persons (separately, consecutively, or simultaneously) an opportunity to
acquire the restricted shares;
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(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted shares;
(c) require the corporation, the holders of any class of its shares,
or another person to approve the transfer of the restricted shares, if the
requirement is not manifestly unreasonable; and
(d) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not manifestly
unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this section 6.4 and such person has knowledge of
the restriction or its existence is noted conspicuously on the front or back of
the certificate or is contained in the written statement required by section 6.2
of this Article VI with regard to shares issued without certificates. Unless so
noted, a restriction is not enforceable against a person without knowledge of
the restriction.
Section 6.5 ACQUISITION OF SHARES. The corporation may acquire its own
shares and unless otherwise provided in the articles of incorporation, the
shares so acquired constitute authorized but unissued shares.
If the articles of incorporation prohibit the reissuance of acquired
shares, the number of authorized shares is reduced by the number of shares
acquired by the corporation, effective upon amendment of the articles of
incorporation, which amendment may be adopted by the shareholders or the board
of directors without shareholder action. The articles of amendment must be
delivered to the Arizona Division of Corporations for filing and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized by
class and series;
(c) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares; and
(d) if applicable, a statement that the amendment was adopted by
the board of directors without shareholder Action and that shareholder
action was not required.
ARTICLE VII
DISTRIBUTIONS
The corporation may make distributions (including dividends on its
outstanding shares) as authorized by the board of directors and in the manner
and upon the terms and conditions provided by law and in the corporation's
articles of incorporation.
ARTICLE VIII
CORPORATE SEAL
The board of directors may provide for a corporate seal which may have
inscribed thereon any designation including the name of the corporation, Arizona
as the state of incorporation, and the words "Corporate Seal."
ARTICLE IX
DIRECTORS CONFLICTING INTEREST TRANSACTIONS
A director's conflicting interest transaction may not be enjoined, be set
aside, or give rise to an award of damages or other sanctions, in a proceeding
by a shareholder or by or in the right of the corporation, solely because the
director, or any person with whom or which the director has a personal,
economic, or other association, has an interest in the transaction, if:
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(a) directors' action respecting the transaction was at any time
taken in compliance with the applicable section of the ARS or any section
of like tenor as amended from time to time;
(b) shareholders' action respecting the transaction was at any time
taken in compliance with the applicable section of the ARS or any section
of like tenor as amended from time to time; or
(c) the transaction, judged according to the circumstances at the
time of commitment, is established to have been fair to the corporation.
ARTICLE X
AMENDMENTS
The corporation's board of directors may amend or repeal the corporation's
bylaws unless:
(a) the ARS or the articles of incorporation reserve this power
exclusively to the shareholders in whole or part; or
(b) the shareholders in adopting, amending, or repealing a particular
bylaw provide expressly that the board of directors may not amend or repeal
that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a supermajority
shareholder quorum or voting requirement (as defined in Article II, section
2.9).
Any amendment which changes the voting or quorum requirement for the board
must comply with Article III, section 3.8, and for the shareholders, must comply
with Article II, section 2.9.
The corporation's shareholders may amend or repeal the corporation's bylaws
even though the bylaws may also be amended or repealed by its board of
directors.
ARTICLE XI
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors in consultation with the financial and tax advisors of the
corporation.
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