AMENDED AND RESTATED BYLAWS
OF
INSIGHT HEALTH SERVICES CORP.
A Delaware Corporation
PREAMBLE
These bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of InSight Health Services Corp., a Delaware
corporation (the "Corporation"). References herein to the certificate of
incorporation shall be interpreted and construed to mean the certificate of
incorporation of the Corporation, as in existence from time to time, including
any amendments thereto, restatements thereof and certificates of designations in
effect at such times. In the event of a direct conflict between the provisions
of these bylaws and the provisions of the Delaware General Corporation Law or
the provisions of the certificate of incorporation, such provisions of the
Delaware General Corporation Law or the certificate of incorporation, as the
case may be, will be controlling.
ARTICLE 1: OFFICES
1.1 REGISTERED OFFICE AND AGENT. The registered office of the Corporation
in the state of Delaware shall be located at 1013 Centre Road, Wilmington,
Delaware 19805-1297. The name of the Corporation's registered agent at such
address shall be CSC Networks/Prentice Hall Corporate Services. The registered
office and registered agent of the Corporation shall be as designated from time
to time by action of the Board of Directors and by the appropriate filing by the
Corporation in the office of the Secretary of State of the State of Delaware.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE 2: MEETINGS OF STOCKHOLDERS
2.1 ANNUAL MEETING. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
2.2 SPECIAL MEETING. A special meeting of the stockholders may be called
at any time by the Board of Directors, the chairman of the board, or the
President, and shall be called by the President or the Secretary at the request
in writing of the stockholders of record of shares entitled to cast not less
than ten percent (10%) of all votes entitled to be cast at such meeting or as
otherwise provided by the certificate of incorporation. A special meeting
shall be held on such date and at such time as shall be designated by the
person(s) calling the meeting and stated in the notice of the meeting or in a
duly executed waiver of notice of such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice
of such meeting or in a duly executed waiver of notice of such meeting.
2.3 PLACE OF MEETINGS. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the Board of
Directors. A special meeting of stockholders may be held at any place within
or without the State of Delaware designated in the notice of the meeting or a
duly executed waiver of notice of such meeting. Meetings of stockholders
shall be held at the principal office of the Corporation unless another place
is designated for meetings in the manner provided herein.
2.4 NOTICE. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not
less than ten (10) nor more than sixty (60) days before the date of the
meeting, either personally or by mail, by or at the direction of the
President, the Secretary, or the officer or person(s) calling the meeting, to
each stockholder of record entitled to vote at such meeting. If such notice
is to be sent by mail, it shall be directed to such stockholder 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 to
him be mailed to some other address, in which case it shall be directed to
him at such other address. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in
person or by proxy and shall not, at the beginning of such meeting, object to
the transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy.
2.5 VOTING LIST. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has
charge of the Corporation's stock ledger, either directly or through another
officer appointed by him or through a transfer agent appointed by the Board
of Directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each stockholder.
For a period of ten (10) days prior to such meeting, such list shall be kept
on file at a place within the city where the meeting is to be held, which
place shall be specified in the notice of meeting or a duly executed waiver
of notice of such meeting or, if not so specified, at the place where the
meeting is to be held and shall be open to examination by any stockholder
during ordinary business hours. Such list shall be produced at such meeting
and kept at the meeting at all times during such meeting and may be inspected
by any stockholder who is present.
2.6 QUORUM. The holders of shares entitled to cast a majority of the
votes entitled to be cast on a matter, present in person or by proxy, shall
constitute a quorum at any meeting of stockholders, except as otherwise
provided by law, the certificate of incorporation, or these bylaws. If a
quorum shall not be present, in person or by proxy, at any meeting of
stockholders, the stockholders entitled to vote thereat who are present, in
person or by proxy, or, if no
2
stockholder entitled to vote is present, any officer of the Corporation may
adjourn the meeting from time to time, without notice other than announcement
at the meeting (unless the Board of Directors, after such adjournment, fixes
a new record date for the adjourned meeting), until a quorum shall be
present, in person or by proxy. At any adjourned meeting at which a quorum
shall be present, in person or by proxy, any business may be transacted which
may have been transacted at the original meeting had a quorum been present;
provided that, if the adjournment is for more than thirty (30) days or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
2.7 REQUIRED VOTE: WITHDRAWAL OF QUORUM. When a quorum is present at
any meeting, the vote of the holders of shares entitled to cast at least a
majority of the votes entitled to be cast by holders who are present, in
person or by proxy, shall decide any question brought before such meeting,
unless the question is one on which, by express provision of statute,
applicable stock exchange, NASD, Inc. or Nasdaq rules, the certificate of
incorporation, or these bylaws, a different vote is required, in which case
such express provision shall govern and control the decision of such
question. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.8 METHOD OF VOTING: PROXIES. Except as otherwise provided in the
certificate of incorporation or by law, each outstanding share, regardless of
class, shall be entitled to one (1) vote on each matter submitted to a vote
at a meeting of stockholders. Elections of directors need not be by written
ballot. At any meeting of stockholders, every stockholder having the right to
vote may vote either in person or by a proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. Each such proxy
shall be filed with the Secretary of the Corporation before or at the time of
the meeting. No proxy shall be valid after three (3) years from the date of
its execution, unless otherwise provided in the proxy. If no date is stated
in a proxy, such proxy shall be presumed to have been executed on the date of
the meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 RECORD DATE. (a) For the purpose of determining 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 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 a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, for any such
determination of stockholders, such date in any case to be not more than
sixty (60) days and not less than ten (10) days prior to such meeting nor
more than sixty (60) days prior to any other action. If no record date is
fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the
3
day on which notice is given or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by law or these bylaws, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office in the State of Delaware or principal place
of business shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law or
these bylaws, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
2.10 CONDUCT OF MEETING. The Chairman shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these bylaws or by some person
appointed by the meeting.
2.11 INSPECTORS. The Board of Directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his
ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number
of shares represented at the meeting, the existence of a quorum, and the
validity and effect of proxies and
4
shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and
tabulate all votes, ballots, or consents, determine the results, and do such
acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by them.
No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders.
2.12 ACTION BY WRITTEN CONSENT. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which
may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken and bearing
the dates of signature of the stockholders who signed the consent or
consents, shall be signed by the holders of 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 and shall be delivered to the Corporation by delivery to
its registered office in the State of Delaware, or the Corporation's
principal place of business, or an officer or agent of the Corporation having
custody of the book or books in which proceedings of meetings of the
stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. All consents properly delivered in accordance with this section
shall be deemed to be recorded when so delivered. No written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days of the earliest dated consent delivered to the Corporation as
required by this section, written consents signed by the holders of a
sufficient number of shares to take such corporate action are so recorded.
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 and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for such
meeting had been the date that written consents signed by a sufficient number
of holders were delivered to the Corporation. Any action taken pursuant to
such written consent or consents of the stockholders shall have the same
force and effect as if taken by the stockholders at a meeting thereof.
2.13 NOTICE OF STOCKHOLDER NOMINEES.
(a) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.13 shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the
Board of Directors may be made at a meeting of the Corporation's stockholders
(i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation entitled to vote for the election of the
director so nominated at such meeting who complies with the procedures set
forth in this Section 2.13.
(b) All nominations by stockholders shall be made pursuant to
timely notice in proper written form to the Secretary of the Corporation. To
be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation
5
not less than 50 days nor more than 75 days before the meeting; provided,
however, that if less than 65 days' notice or prior public disclosure of the
date of the meeting is given or made to the stockholders, notice by the
stockholder must be received at the principal executive offices of the
Corporation not later than the close of business on the 15th day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made, whichever occurs first.
(c) Such stockholder's notice shall set forth (i) as to each person
whom such stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation l4A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to the stockholder
giving the notice (x) the name and address, as they appear on the
Corporation's books of such stockholder and (y) the class and number of
shares of the Corporation which are beneficially owned by such stockholder;
and (iii) as to the beneficial owner, if any, on whose behalf the nomination
is made, (x) the name and address of such person and (y) the class and number
of shares of the Corporation which are beneficially owned by such person. At
the request of the Board of Directors any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee.
(d) No person shall be eligible for election as a director unless
nominated in accordance with the procedures set forth in these Bylaws of the
Corporation. The chairman of the stockholders' meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made
in accordance with the procedures prescribed by these Bylaws, and if he shall
so determine, he shall announce such determination to the meeting and the
defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Bylaw, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Bylaw.
(e) (i) Sections 2.13(a), (b), (c) and (d) shall not have any
application or effect whatsoever with respect to the nomination or election
of any director who, pursuant to the terms of the certificate of
incorporation: (A) is to be elected by the holders of shares of either the
Corporation's Series B Preferred Stock or Series C Preferred Stock (the
"Preferred Stock Directors"), (B) is to be nominated (subject to approval of
such nominee by the Board of Directors) jointly by the holders of shares of
Series B Preferred Stock and Series C Preferred Stock (the "Joint Director";
prior to a Type B Event Date, all directors other than the Joint Director and
the Preferred Stock Directors are the "Common Stock Directors") or (C) after
a Type B Event Date is to be elected by holders of shares of the Series D
Preferred Stock to a newly created directorship ("Conversion Directors").
(ii) With respect to the nomination and election of any
Preferred Stock Director, the holders of shares of Series B Preferred Stock
or of Series C Preferred Stock, as appropriate, shall give written notice to
the Secretary of the Corporation of the identity of the
6
person or persons nominated and elected as a director or directors by such
holders. Such written notice shall be executed, manually or by photocopy or
facsimile, in any number of counterparts, by holders of a majority of the
then outstanding shares of Series B Preferred Stock or Series C Preferred
Stock, as appropriate. The person so elected shall become a Preferred Stock
Director immediately upon delivery to the Company of such notice, or at such
other time as is specified therein. No nominations for such director shall
be made or received other than as described in this Section 2.13(e)(ii).
(iii) With respect to the nomination and election of any
Conversion Directors, on or after a Type B Event Date, the holders of shares
of Series D Preferred Stock shall give written notice to the Secretary of the
Corporation of the identity of the persons nominated and elected as a
director by such holders. Such written notice shall be executed, manually or
by photocopy or facsimile, in any number of counterparts, by holders of a
majority of the then outstanding shares of Series D Preferred Stock. The
persons so elected shall become Conversion Directors immediately upon
delivery to the Company of such notice, or at such other time as is specified
therein. Election of such directors shall be by cumulative voting by the
holders of the shares of Series D Preferred Stock. No nominations for such
director shall be made or received other than as described in this Section
2.13(e)(iii).
ARTICLE 3: DIRECTORS
3.1 MANAGEMENT. The business and property of the Corporation shall be
managed by or under the direction of the Board of Directors subject to the
restrictions and delegations of power and authority contained in the
certificate of incorporation or these bylaws. Subject to the restrictions
imposed by law, the certificate of incorporation, or these bylaws, the Board
of Directors may exercise all the powers of the Corporation.
3.2 NUMBER: QUALIFICATION: ELECTION: TERM. Prior to a Type B Event
Date, the number of directors shall be no less than eight (8) nor more than
nine (9) (the exact number within such range to be determined by the Board of
Directors), of which one member shall be the Joint Director, up to three
members (the exact number to be determined in accordance with the certificate
of incorporation) shall be Preferred Stock Directors, and the remainder shall
be Common Stock Directors. After a Type B Event Date, the Board of Directors
shall comprise: (i) one Joint Director, until the expiration of his term, as
provided in the certificate of incorporation; (ii) three Preferred Stock
Directors, until the expiration of their respective terms, after which time
such positions previously elected by holders of the series of Preferred Stock
that gave the Type B Conversion Notice shall be subject to election by
holders of shares of Series D Preferred Stock, subject to the limitations
contained in the Series D Certificate of Designation; (iii) not less than
four (4) nor more than five (5) additional directors elected by holders of
shares of Common Equity and Series D Preferred Stock, subject to the
limitations contained in the Series D Certificate of Designation; and (iv)
the Conversion Directors.
3.3 MEETINGS OF DIRECTORS. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the Board of Directors may from time
7
to time determine or as shall be specified in the notice of such meeting or
duly executed waiver of notice of such meeting.
3.4 FIRST MEETING. Each newly elected Board of Directors shall hold its
first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as
the annual meeting of stockholders, and the newly constituted Board of
Directors shall meet at the principal offices of the Corporation two calendar
days after the delivery to the Company of the notice provided for in Section
2.13(e)(iii)(in either case, such first meeting is the "First Meeting").
3.5 ELECTION OF OFFICERS. At each First Meeting, the Board of Directors
shall select the officers of the Corporation.
3.6 REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held at such times and places as shall be designated from time to time by
resolution of the Board of Directors, but no less frequently than once per
fiscal quarter. Notice of such regular meetings shall not be required.
3.7 SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held whenever called by or at the request of the chairman of the board,
the President, any director, or as designated from time to time by resolution
of the Board of Directors.
3.8 NOTICE. The Secretary shall give notice of each special meeting and
of any First Meeting following a Type B Event Date, to each director at least
24 hours before the meeting, either personally, by telephone, by mail, or by
telegraph (facsimile). Notice of any such meeting need not be given to any
director who shall, either before or after the meeting, submit a signed
waiver of notice or who shall attend such meeting without protesting, prior
to or at its commencement, the lack of notice to him. The business to be
transacted at, and the purpose of, any regular or special meeting of the
Board of Directors shall be specified in the notice or waiver of notice of
such meeting.
3.9 QUORUM: MAJORITY VOTE.
(a) A majority of the total number of directors then in office shall
constitute a quorum for the transaction of business, provided, that in no
event shall a quorum consist of less than one third of the total number of
directors established pursuant to Section 3.2 of this Article 3. The vote of
a majority of directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless the question is one upon
which by express provisions of an applicable law or of the certificate of
incorporation or in this Section 3.9 or elsewhere in these bylaws a different
vote is required, in which case such express provision shall govern and
control the decision of such question.
(b) If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
8
(c) Section 6.14(c) of that certain Securities Purchase Agreement dated
as of October 10, 1997 by and among the Corporation and certain entities
providing, among other things, for the issuance and sale of shares of Series
B Preferred Stock, and Section 6.14(c) of that certain Securities Purchase
Agreement dated as of October 14, 1997 by and among the Corporation and
certain entities providing, among other things, for the issuance and sale of
shares of Series C Preferred Stock, contain provisions relating to the size
of the stockholder or Board of Directors majority vote required for approval
of certain transactions described in such Sections 6.14(c). Notwithstanding
any other provision of this Section 3.9, the approval of any waiver, consent,
modification or any other action taken by or on behalf of the Corporation
with respect to such provisions shall require the affirmative vote of a
majority of the Common Stock Directors.
3.10 COMPENSATION. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the Board of
Directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in
any other capacity or receiving compensation therefor.
3.11 TELEPHONE MEETINGS. Members of the Board of Directors or any
committee thereof may participate in and act at any meeting of such board or
committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
3.12 WAIVER OF NOTICE AND PRESUMPTION OF ASSENT. Any member of the Board
of Directors or any committee thereof who is present at a meeting shall be
conclusively presumed to have waived notice of such meeting except when such
member attends for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not
lawfully called or convened. Such member shall be conclusively presumed to
have assented to any action taken unless his or her dissent shall be entered
in the minutes of the meeting or unless his or her written dissent to such
action shall be filed with the person acting as the secretary of the meeting
before the adjournment thereof or shall be forwarded by registered mail to
the Secretary of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to any member who voted in
favor of such action
3.13 ACTION BY WRITTEN CONSENT. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
ARTICLE 4: COMMITTEES
4.1 DESIGNATION The following committees of the Board of Directors are
hereby created, and the Board of Directors shall appoint the following
committees of the Board of Directors with the respective duties, membership and
voting requirements stated below. After such appointment and until a Type B
Event Date, the following matters shall be deemed
9
approved by the Board of Directors only upon receiving the affirmative vote
of a majority of the Board of Directors and a majority of the directors
elected by the holders of the Series B Preferred Stock and the Series C
Preferred Stock: (A) a decision to eliminate or discharge the Audit
Committee, Compensation Committee, Executive Committee or the Acquisitions
Committee, as described more fully below (such committees are the
"Committees"), (B) a decision to reduce, narrow, attenuate or otherwise
weaken the delegation of powers by the Board of Directors to any of the
Committees, unless such reduction, narrowing, attenuation or other weakening
is the transfer of delegated powers from the Compensation Committee or the
Acquisitions Committee to the Executive Committee, (C) a decision to change
the number of members of any Committee, the identity of the persons or
entities entitled to select each of the members of any Committee, the size of
the required vote for approval by any Committee and the size of the required
vote of the Board of Directors necessary to approve actions that failed to
obtain the required approval vote on the appropriate Committee; and (D) a
decision to create any new committee. If the holders of the Series B
Preferred Stock or the holders of the Series C Preferred Stock shall cease to
have the right to nominate and elect any director at all, otherwise than as a
result of the conversion of their respective shares of Series B Preferred
Stock or Series C Preferred Stock in a Type B Conversion, then such holders
shall no longer have the right to select any member of any of the committees
set forth below and the member or members of such committees selected by such
holders shall automatically cease to be a member or members of such
committees.
(1) COMPENSATION COMMITTEE. The Compensation Committee shall
consist of three (3) members, at least one (1) of whom shall be
selected jointly by the Series B Directors and the director elected by
holders of the Series C Preferred Stock (the "SERIES C DIRECTOR"), and
who shall be a director. An affirmative vote of at least two (2)
members of the Compensation Committee shall be required for approval
of matters considered by the Compensation Committee. The Compensation
Committee shall ensure that the representative on the Compensation
Committee nominated by the Series B Directors and the Series C
Director shall receive adequate notice of and an opportunity to
participate in any meetings of the Compensation Committee;
(2) AUDIT COMMITTEE. The Audit Committee shall consist of three
(3) directors, including as many Independent directors as are
available, not to exceed three (3). An affirmative vote of at least
two (2) members of the Audit Committee shall be required for approval
of matters considered by the Audit Committee.
(3) EXECUTIVE COMMITTEE. The Executive Committee shall consist
of four (4) members, one (1) of whom shall be selected by the Series B
Directors (and shall be a Series B Director), one (1) of whom shall be
the Series C Director and two (2) of whom shall be selected by the
Board of Directors. The members selected by the Series B Directors
and the Series C Director may be removed only by the Series B
Directors and the Series C Director, respectively. The Executive
Committee shall, in addition to the customary duties of an executive
committee, have the right to approve any financing activity, including
but not limited to the Capital Budget Plan. An affirmative vote of at
least three (3) members of the
10
Executive Committee shall be required for approval of any matters
considered by the Executive Committee. Each financing activity not
approved by the Executive Committee may be referred to the Board of
Directors for approval, which approval shall require a Supermajority
Vote; and
(4) ACQUISITIONS COMMITTEE. The Acquisitions Committee shall
consist of four (4) members, one (1) of whom shall be selected by the
Series B Directors (and shall be a Series B Director), one (1) of whom
shall be the Series C Director, and two (2) of whom shall be selected
by the Board of Directors (and shall be directors). The Acquisitions
Committee shall have the right to approve any transaction of the types
described in Sections 11(n), (o), (p) and (q) of the Series B
Certificate of Designation with respect to which transaction the
aggregate consideration payable in connection with such transaction
(including, without limitation, cash consideration, the fair market
value of any securities and the net present value of any deferred
consideration) is less than $15 million. A unanimous vote of the
Acquisitions Committee shall be required for approval of any matters
considered by the Acquisitions Committee. Except as described in
Section 4.1(5) below, each matter considered but not unanimously
approved by the Acquisitions Committee may be referred to the Board of
Directors for approval, which approval shall require a majority vote
of the Board of Directors.
(5) CERTAIN TRANSACTIONS. The unanimous approval of the
Acquisitions Committee or the unanimous approval of the Board of
Directors shall be required before the Corporation or any of its
Subsidiaries engage in a transaction of the types described in Section
11(n), (o) (which, only for purposes of this clause, shall also apply
to Capital Expenditures made by the Corporation in the ordinary course
of business), (p) and (q) of the Series B Certificate of Designation,
in which transaction: (A) the aggregate consideration payable in
connection with such transaction (including, without limitation, cash
consideration, the fair market value of any securities and the net
present value of any deferred consideration) is less than $15 million;
and (B) the Corporation is to issue its Common Equity at an implicit
or explicit price of less than $8.375 per share. Such implicit price
shall be determined in an appraisal approved unanimously by the
Acquisitions Committee or unanimously by the Board of Directors, such
appraisal to be performed by an independent appraiser selected
unanimously by the Acquisitions Committee or unanimously by the Board
of Directors.
4.2 TERM. Each committee member shall serve as such until the earliest
of (a) the expiration of his term as director, (b) his resignation as a
committee member or as a director, or (c) his removal as a committee member
or as a director. A Committee member elected to such Committee by the Board
of Directors, and, after a Type B Event Date, any Committee member elected to
such Committee by one or more Preferred Stock Directors, may be removed as a
Committee member by a majority of the Board of Directors. Prior to a Type B
Event Date, a Committee member elected to such Committee by either the Series
B Directors or the Series C
11
Director, or by both, shall not be removed as a Committee member except by
the director or directors who elected such Committee member to such Committee.
4.3 AUTHORITY. Each committee, to the extent expressly provided in
these bylaws or in the resolution establishing such committee, shall have and
may exercise all of the authority of the Board of Directors in the management
of the business and property of the Corporation except to the extent
expressly restricted by law, the certificate of incorporation, or these
bylaws.
4.4 COMMITTEE CHANGES. The Board of Directors shall have the power at
any time to fill vacancies in the committees, but only to the extent the
Board of Directors would have the power, pursuant to Section 4.2 hereof, to
remove a member who was occupying the committee position that is vacant.
4.5 ALTERNATE MEMBERS OF COMMITTEES. The person or entity with the
power to select a particular member of a Committee (but such person or entity
only, and no other) may designate one or more directors as alternate members
of such Committee and any such alternate member may replace the absent or
disqualified member for whom he is the alternate member at any meeting of
such Committee.
4.6 REGULAR MEETINGS. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time
by the committee and communicated to all members thereof.
4.7 SPECIAL MEETINGS. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee
member at least two days before such special meeting. The business to be
transacted at, and the purpose of, any special meeting of any committee shall
be specified in the notice or waiver of notice of any special meeting.
4.8 QUORUM: MAJORITY VOTE. At meetings of any committee, a majority of
its membership shall constitute a quorum for the transaction of business. If
a quorum is not present at a meeting of any committee, a majority of the
members present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present. The
act of a majority of the members present at any meeting at which a quorum is
in attendance shall be the act of a committee, unless the act of a greater
number is required by law, the certificate of incorporation, or these bylaws.
4.9 MINUTES. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the Board of Directors upon the
request of the Board of Directors. The minutes of the proceedings of each
committee shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Corporation.
4.10 COMPENSATION. Committee members may, by resolution of the Board of
Directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
12
4.11 COMMITTEE RULES. Each committee of the Board of Directors may fix
its own rules or procedures and shall hold its meetings as provided by such
rules, except as may otherwise be provided in the certificate of
incorporation, these bylaws or by a resolution of the Board of Directors
designating such committee. ARTICLE 5: NOTICE
5.1 METHOD. Whenever by statute, the certificate of incorporation, or
these bylaws, notice is required to be given to any committee member,
director, or stockholder and no provision is made as to how such notice shall
be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation,
or (b) by any other method permitted by law (including but not limited to
overnight courier service, telegram, telex, or facsimile). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to
such service with all charges prepaid and addressed as aforesaid and shall be
deemed to be received two business days after such delivery to such service.
Any notice required or permitted to be given by telegram, telex, or facsimile
shall be deemed to be delivered and given at the time transmitted with all
charges prepaid and addressed as aforesaid.
5.2 WAIVER. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
certificate of incorporation, or these bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be equivalent to the giving of such
notice. Attendance of a stockholder, director, or committee member at a
meeting shall constitute a waiver of notice of such meeting, except where
such person attends for the express purpose of objecting at the beginning of
the meeting to the transaction of any business relevant on the ground that
the meeting is not lawfully called or convened.
ARTICLE 6: OFFICERS
6.1 NUMBER: TITLES: TERM OF OFFICE. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the Board of
Directors may from time to time elect or appoint, including one or more Vice
Presidents (with each Vice President to have such descriptive title, if any,
as the Board of Directors shall determine), and a Treasurer. The officers of
the Corporation shall be elected by the Board of Directors at the First
Meetings, or as soon thereafter as conveniently may be. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified, until his death, or until he shall resign or shall have been
removed in the matter hereinafter provided. Any two or more offices may be
held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware. In its
discretion, the Board of Directors may choose not to fill any office for any
period of time as it may deem advisable.
13
6.2 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment
the best interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment of an officer or agent shall not
of itself create contract rights.
6.3 VACANCIES. Any vacancy occurring in any office of the Corporation
because of death, resignation, removal, disqualification or otherwise may be
filled by the Board of Directors for the unexpired portion of the term by the
Board of Directors then in office.
6.4 AUTHORITY. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws
or as may be determined by resolution of the Board of Directors not
inconsistent with these bylaws.
6.5 COMPENSATION. The compensation, if any, of officers and agents
shall be fixed from time to time by the Board of Directors. No officer shall
be prevented from receiving such compensation by virtue of his also being a
director of the Corporation.
6.6 DUTIES OF CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Board of Directors and shall perform such
other duties and have such other powers as may be prescribed from time to
time by the Board of Directors.
6.7 DUTIES OF VICE CHAIRMAN OF THE BOARD. The Vice Chairman shall, in
the absence or disability of, or in the event of a vacancy in the office of,
the Chairman of the Board, perform the duties and exercise the powers of such
Chairman of the Board. The Vice Chairman of the Board shall perform such
other duties and have such other powers as may be prescribed from time to
time by the Board of Directors.
6.8 DUTIES OF PRESIDENT. The President shall be the chief executive
officer of the Corporation. The President shall be responsible for the
general and active management of the business of the Corporation and shall
ensure that all orders and resolutions of the Board of Directors and the
Committees are carried into effect. The President shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, except when required or permitted by law to be otherwise signed
and executed and except when the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent
of the Corporation. The President shall, in the absence or disability of, or
in the event of a vacancy in the office of, the Vice Chairman of the Board,
perform the duties and exercise the powers of such Vice Chairman of the
Board. The President shall perform such other duties and have such other
duties as may be prescribed from time to time by the Board of Directors.
6.9 DUTIES OF THE VICE PRESIDENTS. The Vice Presidents shall, in the
order of their organizational ranking, in the absence or disability, or in
the event of a vacancy in the office, of the President, perform the duties
and exercise the powers of the President, and shall perform such other duties
and have such other powers as may from time to time be prescribed by the
Board of Directors.
14
6.10 DUTIES OF THE SECRETARY. The Secretary shall keep, or cause to be
kept, in books provided for that purpose, the minutes of the meetings of the
stockholders, the Board of Directors, or any committee thereof, and shall see
that all notices are duly given in accordance with the provisions of these
bylaws. As required by law, the Secretary shall be the custodian of the
records of the Corporation. The Secretary shall keep the seal of the
Corporation in safe custody and, when authorized by the Board of Directors,
affix such seal to any document requiring it, and when so affixed, it shall
be attested by his signature or by the signature of the Treasurer or an
Assistant Secretary. The Secretary shall perform such other duties and have
such other powers as may be prescribed from time to time by the Board of
Directors.
6.11 DUTIES OF THE TREASURER. The Treasurer shall have charge and
custody of, and shall be responsible for, all funds and securities of the
Corporation and shall deposit such funds in the name of the Corporation in
such banks, trust companies and other depositories as shall be designated by
the Board of Directors. The Treasurer shall perform such other duties and
have such other powers as may be prescribed from time to time by the Board of
Directors.
6.12 OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, assistant
officers and agents, if any, other than those whose duties are provided for
in these bylaws, shall have such authority and perform such duties as may
from time to time be prescribed by resolution of the Board of Directors.
6.13 ABSENCE OR DISABILITY OF OFFICERS. In the case of the absence or
disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any
other person whom it may select.
ARTICLE 7: INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
7.1 NATURE OF INDEMNITY. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he, or a person of whom
he is the legal representative, is or was a director or officer, of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee,
fiduciary, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, shall be indemnified and held harmless by the
Corporation to the fullest extent which it is empowered to do so by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended against all expense, liability and loss (including attorneys' fees
actually and reasonably incurred by such person in connection with such
proceeding) and such indemnification shall inure to the benefit of his heirs,
executors and administrators; provided, however, that, except as provided in
Section 7.2 hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the Board of Directors. The Corporation may,
by action of its Board of Directors, provide indemnification to
15
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
7.2 PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
indemnification of a director or officer of the Corporation under Section 7.2
of this Article 7 or advance of expenses under Section 7.5 of this Article 7
shall be made promptly, and in any event within thirty (30) days, upon the
written request of the director or officer. If a determination by the
Corporation that the director or officer is entitled to indemnification
pursuant to this Article 7 is required, and the Corporation fails to respond
within sixty (60) days to a written request for indemnity, the Corporation
shall be deemed to have approved the request. If the Corporation denies a
written request for indemnification or advancing of expenses, in whole or in
part, or if payment in full pursuant to such request is not made within
thirty (30) days, the right to indemnification or advances as granted by this
Article 7 shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required undertaking, if any,
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the General Corporation
Law of the State of Delaware for the Corporation to indemnify the claimant
for the amount claimed, but the burden of such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he has met the
applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
7.3 ARTICLE NOT EXCLUSIVE. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article 7 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
7.4 INSURANCE. The Corporation may purchase and maintain insurance on
its own behalf and on behalf of any person who is or was a director, officer,
employee, fiduciary, or agent of the Corporation 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 any liability asserted against him and incurred by him in any such
capacity, whether or not the Corporation would have the power to indemnify
such person against such liability under this Article 7.
16
7.5 EXPENSES. Expenses incurred by any person described in Section 7.1
of this Article 7 in defending a proceeding shall be paid by the Corporation
in advance of such proceeding's final disposition upon receipt of any
undertaking required by applicable law by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
7.6 EMPLOYEES AND AGENTS. Persons who are not covered by the foregoing
provisions of this Article 7 and who are or were employees or agents of the
Corporation, or who are or were serving at the request of the Corporation as
employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time
or from time to time by the Board of Directors.
7.7 CONTRACT RIGHTS. The provisions of this Article 7 shall be deemed
to be a contract right between the Corporation and each director or officer
who serves in any such capacity at any time while this Article 7 and the
relevant provisions of the General Corporation Law of the State of Delaware
or other applicable law are in effect, and any repeal or modification of this
Article 7 or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceedings then existing.
7.8 MERGER OR CONSOLIDATION. For purposes of this Article 7, references
to "the Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent 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, shall stand in the same position under
this Article 7 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
ARTICLE 8: CERTIFICATES AND STOCKHOLDERS
8.1 CERTIFICATES FOR SHARES. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by or in the name of the Corporation. The certificates
shall be signed by the chairman of the board, the President or a Vice President
and also by the Secretary or an Assistant Secretary or by the Treasurer or an
Assistant Treasurer. Any and all signatures on the certificate may be a
facsimile and may be sealed with the seal of the Corporation or a facsimile
thereof. If any officer, transfer agent, or registrar who has signed, or whose
facsimile signature has been placed upon, a certificate has ceased to be such
officer, transfer agent, or registrar before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if he were
such officer, transfer agent, or registrar at the date
17
of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit
the holder's name and the number of shares.
8.2 REPLACEMENT OF LOST OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates theretofore issued by the Corporation and
alleged to have been lost or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate or certificates representing
shares to be lost or destroyed. When authorizing such issue of a new
certificate or certificates the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond with a surety or sureties satisfactory to the Corporation
in such sum as it may direct as indemnity against any claim, or expense
resulting from a claim, that may be made against the Corporation with respect
to the certificate or certificates alleged to have been lost or destroyed.
8.3 TRANSFER OF SHARES. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, the Corporation
or its transfer agent shall issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its
books. The Board of Directors may appoint a bank or trust company organized
under the laws of the United States or any state thereof to act as its
transfer agent or registrar, or both in connection with the transfer of any
class or series of securities of the Corporation.
8.4 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by law.
8.5 REGULATIONS. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
8.6 LEGENDS. The Board of Directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends
as the Board of Directors deems appropriate to assure that the Corporation
does not become liable for violations of federal or state securities laws or
other applicable law.
8.7 SUBSCRIPTIONS FOR STOCK. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined
by the Board of Directors. Any call made by the Board of Directors for
payment on subscriptions shall be uniform as to all shares of the same class
or as to
18
all shares of the same series. In case of default in the payment of any
installment or call when such payment is due, the Corporation may proceed to
collect the amount due in the same manner as any debt due the Corporation.
ARTICLE 9: MISCELLANEOUS PROVISIONS
9.1 DIVIDENDS. Subject to provisions of law and the certificate of
incorporation, dividends upon the capital stock of the Corporation, may be
declared by the Board of Directors at any regular or special meeting and may
be paid in cash, in property, or in shares of the capital stock of the
Corporation. Subject to provisions of law and the certificate of
incorporation, such declaration and payment shall be at the discretion of the
Board of Directors.
9.2 RESERVES. There may be created by the Board of Directors out of
funds of the Corporation legally available therefor such reserve or reserves
as the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain
any property of the Corporation, or for such other purpose as the Board of
Directors shall consider beneficial to the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it
was created.
9.3 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and Board of Directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of
all stockholders and the number and class of the shares held by each. Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the usual hours of business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books
and records, and to make copies or extracts therefrom. A proper purpose
shall mean any purpose reasonably related to such person's interest as a
stockholder. In every instance where an attorney or other agent shall be the
person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand
under oath shall be directed to the Corporation at its registered office in
the state of Delaware or at its principal place of business.
9.4 CHECKS, DRAFTS OR ORDERS. All checks, drafts, or other orders for
the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation, and
in such manner, as shall be determined by resolution of the Board of
Directors or a duly authorized committee thereof.
9.5 CONTRACTS. Subject to the limitations contained in the certificate
of incorporation, the Board of Directors or the appropriate Committee may
authorize any officer or officers, or any agent or agents, of the Corporation
to enter into any contract or to execute and deliver any instrument in the
name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
19
9.6 LOANS. Subject to the limitations contained in the certificate of
incorporation, the Corporation may lend money to, or guarantee any obligation
of, or otherwise assist any officer or other employee of the Corporation or
of its subsidiary, including any officer or employee who is a director of the
Corporation or its subsidiary, whenever, in the judgment of the directors,
such loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. Subject to the limitations contained in the certificate of
incorporation, the loan, guaranty or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Subject to the limitations contained in the
certificate of incorporation, nothing contained in this section shall be
deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
9.7 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
the Board of Directors; provided, that if such fiscal year is not fixed by
the Board of Directors and the selection of the fiscal year is not expressly
deferred by the Board of Directors, the fiscal year shall be the calendar
year.
9.8 SEAL. The Board of Directors shall provide a corporate seal which
shall be in the form of a circle and shall have inscribed thereon the name of
the Corporation and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
9.9 RESIGNATIONS. Any director, committee member, or officer may resign
by so stating at any meeting of the Board of Directors or by giving written
notice to the Board of Directors, the President, or the Secretary. Such
resignation shall take effect at the time specified therein or, if no time is
specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
9.10 VOTING SECURITIES OWNED BY CORPORATION. Voting securities in any
other corporation held by the Corporation shall be voted by the President,
unless the Board of Directors specifically confers authority to vote with
respect thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
9.11 MORTGAGES, ETC. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of
the Corporation shall not be necessary to constitute such deed, deed of
trust, mortgage, or other instrument a valid and binding obligation against
the Corporation unless the resolutions, if any, of the Board of Directors
authorizing such execution expressly state that such attestation is necessary.
9.12 HEADINGS. The headings used in these bylaws have been inserted for
administrative convenience only and shall not be given any substantive effect
in limiting or otherwise construing any provision herein.
20
9.13 REFERENCES. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate. All capitalized terms not
otherwise defined herein shall have the meaning assigned such terms in the
certificate of incorporation.
9.14 INCONSISTENT PROVISIONS. In the event that any provision of these
bylaws is or becomes inconsistent with any provision of the certificate of
incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these bylaws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
9.15 AMENDMENTS. Except as otherwise provided in the certification of
incorporation, these bylaws may be altered, amended, or repealed or new
bylaws may be adopted by the stockholders or by the Board of Directors at any
regular or special meeting of the stockholders or the Board of Directors, but
only if such alteration, amendment, repeal, or adoption has been approved:
(i) in case of adoption by the Board of Directors prior to the First
Meeting following a Type B Event Date, by a majority of the Preferred Stock
Directors and either (A) a majority of the entire Board of Directors (if such
alteration, amendment, repeal, or adoption does not increase the number of
directors) or (B) by at least 80% of the members of the entire Board of
Directors (if such alteration, amendment, repeal, or adoption does increase
the number of directors);
(ii) in case of adoption by the Board of Directors at or after the First
Meeting following a Type B Event Date, by either (A) a majority of the entire
Board of Directors (if such alteration, amendment, repeal, or adoption
neither increases the number of directors nor amends or repeals Section
3.9(c) of these bylaws) or (B) by at least 80% of the members of the entire
Board of Directors (if such alteration, amendment, repeal, or adoption does
increase the number of directors or does amend or repeal Section 3.9(c) of
these bylaws);
(iii) in case of adoption by the stockholders at any meeting of
stockholders (other than the first meeting of stockholders following a Type B
Event Date) with a record date on or prior to a Type B Conversion Date, by
holders of at least eighty percent (80%) of the outstanding shares of the
Corporation entitled to vote in the election of directors, voting as one
class, and by holders of a majority of the shares, outstanding as of such
record date, of whichever (or both) of Series B Preferred Stock and Series C
Preferred Stock continued (as of such record date) to have the right under
the certificate of incorporation to elect one or more Preferred Stock
Directors; or
(iv) in case of adoption by the stockholders at the first meeting of
stockholders following a Type B Event Date or at any meeting of stockholders
with a record date after a Type B Conversion Date, by holders of at least
eighty percent (80%) of the outstanding shares of the Corporation entitled to
vote in the election of directors, voting as one class.
For the avoidance of doubt, all Series D Preferred Stock of the
Corporation issued pursuant to a Type B Conversion Event shall be deemed to
be "entitled to vote in the election of
21
directors" at any time after such issuance, for all purposes of this Section
9.15. If the holders of Series B Preferred Stock no longer have the right to
elect any Series B Directors at all under the certificate of incorporation,
then the requirement of approval by the holders of shares of Series B
Preferred Stock contained in Section 9.15(iii) shall not apply. If the
holders of Series C Preferred Stock no longer have the right to elect a
Series C Director under the certificate of incorporation, then the
requirement of approval by the holders of shares of Series C Preferred Stock
contained in Section 9.15(iii) shall not apply. If the holders of neither
Series B Preferred Stock nor Series C Preferred Stock continue to have the
right to elect any Preferred Stock Directors at all under the certificate of
incorporation, then the requirement of approval by the Preferred Stock
Directors contained in Section 9.15(i) shall not apply. Notice of such
proposed alteration, amendment, repeal, or adoption shall be contained in the
notice of such meeting.
22