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PHYSICIANS CLINICAL LABORATORY, INC.
AMENDED AND RESTATED
BYLAWS
Effective as of
September 30, 1997
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PHYSICIANS CLINICAL LABORATORY, INC.
AMENDED AND RESTATED BYLAWS
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings. Except as provided in Bylaw , all meetings
of the stockholders for the election of Directors or for any other purpose will
be held at such time and place, within or without the State of Delaware, as may
be designated by the Board or, in the absence of a designation by the Board of
Directors of the Corporation (the "Board), the Chairman, the President or the
Secretary, and stated in the notice of meeting. The Board may postpone and
reschedule any previously scheduled annual or special meeting of the
stockholders.
2. Annual Meeting. Annual meetings of the stockholders for the election of
Directors and for the transaction of such other business as may properly come
before the meeting shall be held on such date and at such time and place, either
within or without the State of Delaware, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting. Meetings
of stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting or in duly executed waiver of notice thereof.
3. Special Meetings. Special meetings of the stockholders may be called
only by (a) the Chairman of the Board ("Chairman") or (b) the Secretary of the
Corporation within 10 calendar days after receipt of the written request of (i)
a majority of the total number of Directors that the Corporation would have if
there were no vacancies, whether or not equal to the actual number of Directors
serving at that time ("Whole Board"), or (ii) the holders of record of at least
10% of the Voting Stock. Any request by a majority of the Whole Board or the
holders of record of at least 10% of the Voting Stock must be sent to the
Chairman and the Secretary and must state the purpose or purposes of the
proposed meeting. As used in these Bylaws, "Voting Stock" means stock of the
Corporation of any class or series entitled to vote generally in the election of
Directors.
4. Notice of Meetings. Written notice of every meeting of the
stockholders, stating the place, date, and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
will be given not less than 10 nor more than 60 calendar days before the date of
the meeting to each stockholder of record entitled to vote at that meeting,
except as otherwise provided herein or required by law. When a meeting is
adjourned to another place, date or time, written notice need not be given of
the adjourned meeting if the place, date and time thereof are announced at the
meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 calendar days, or if after the adjournment a new
record date is fixed for the adjourned meeting, written notice of the place,
date and time of the adjourned meeting must be given
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in conformity herewith. At any adjourned meeting, any business may be transacted
which properly could have been transacted at the original meeting.
5. Inspectors. The Board may appoint one or more inspectors of election to
act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment thereof, in advance of such
meeting. The Board may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer of the meeting may
appoint one or more substitute inspectors.
6. Quorum. Except as provided by law, the holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, will constitute a quorum at all meetings of the
stockholders for the transaction of business thereat. If, however, such quorum
is not present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, will have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than 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 meeting.
7. Voting. Except as otherwise provided by law or by the Certificate of
Incorporation, each stockholder will be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing in
the name of such stockholder on the books of the Corporation on the record date
for the meeting and such votes may be cast either in person or by written proxy.
Every proxy must be duly executed and filed with the Secretary. A stockholder
may revoke any proxy that is not irrevocable by attending the meeting and voting
in person or by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary. The vote upon any
question brought before a meeting of the stockholders may be by voice vote,
unless otherwise required by the Certificate of Incorporation or these Bylaws or
unless the Chairman or the holders of a majority of the outstanding shares of
all classes of stock entitled to vote thereon present in person or by proxy at
such meeting otherwise determine. Every vote taken by written ballot will be
counted by the inspectors of election (if such are appointed). When a quorum is
present at any meeting, the affirmative vote of the holders of a majority of the
stock present in person or represented by proxy at the meeting and entitled to
vote on the subject matter and which has actually been voted will be the act of
the stockholders, except in the election of Directors or as otherwise provided
in these Bylaws, the Certificate of Incorporation, or by law.
8. Order of Business. (a) The Chairman, or such other officer of the
Corporation designated by a majority of the Whole Board, will call meetings of
the stockholders to order and will act as presiding officer thereof. Unless
otherwise determined by the Board prior to the meeting, the presiding officer of
the meeting of the stockholders
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will also determine the order of business and have the authority in his or her
sole discretion to regulate the conduct of any such meeting, including without
limitation by imposing restrictions on the persons (other than stockholders of
the Corporation or their duly appointed proxies) who may attend any such
stockholders' meeting, by ascertaining whether any stockholder or his proxy may
be excluded from any meeting of the stockholders based upon any determination by
the presiding officer, in his sole discretion, that any such person has unduly
disrupted or is likely to disrupt the proceedings thereat, and by determining
the circumstances in which any person may make a statement or ask questions at
any meeting of the stockholders.
(b) At any annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board in accordance with Bylaw , (ii) otherwise properly brought before the
meeting by the presiding officer or by or at the direction of a majority of the
Whole Board, or (iii) otherwise properly requested to be brought before the
meeting by a stockholder of the Corporation in accordance with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be brought
before an annual meeting, the stockholder must (i) be a stockholder of the
Corporation of record at the time of the giving of the notice for such annual
meeting provided for in these Bylaws, (ii) be entitled to vote at such meeting,
and (iii) have given timely notice thereof in writing to the Secretary. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 50 calendar
days prior to the annual meeting; provided, however, that in the event public
announcement of the date of the annual meeting is not made at least 60 calendar
days prior to the date of the annual meeting, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th
calendar day following the day on which public announcement is first made of the
date of the annual meeting. A stockholder's notice to the Secretary must set
forth as to each matter the stockholder proposes to bring before the annual
meeting (A) a description in reasonable detail of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and the
beneficial owner, if any, on whose behalf the proposal is made, (C) the class
and number of shares of the Corporation that are owned beneficially and of
record by the stockholder proposing such business and by the beneficial owner,
if any, on whose behalf the proposal is made, and (D) any material interest of
such stockholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made in such business. If Common Stock is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), a stockholder must 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 8(c). For purposes of this Bylaw
8(c) and Bylaw 13, "public announcement" means disclosure in a press release
reported by the Dow Xxxxx News Service, Associated Press, or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange
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Commission pursuant to Sections 13, 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, or furnished to stockholders. Nothing in this Bylaw 8(c)
will be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Securities Exchange Act of 1934, as amended.
(d) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Chairman or a majority of the Whole Board in accordance with Bylaw or
(ii) otherwise properly brought before the meeting by the presiding officer or
by or at the direction of a majority of the Whole Board.
(e) The determination of whether any business sought to be brought before
any annual or special meeting of the stockholders is properly brought before
such meeting in accordance with this Bylaw 8 will be made by the presiding
officer of such meeting. If the presiding officer determines that any business
is not properly brought before such meeting, he or she will so declare to the
meeting and any such business will not be conducted or considered.
DIRECTORS
9. Function. The business and affairs of the Corporation will be managed
under the direction of its Board.
10. Number, Election, and Terms. (a) Subject to any minimum and maximum
number of authorized Directors that may be provided in the Certificate of
Incorporation, the authorized number of Directors may be determined from time to
time only by a vote of a majority of the Whole Board. The Directors will serve
for terms of one year until the next annual meeting and until their respective
successors are elected and qualified. The number of directors initially shall be
five.
(b) Notwithstanding anything contained in the Certificate of Incorporation
or these Bylaws to the contrary, the term of any Director who is also an officer
of the Corporation will terminate automatically, without any further action on
the part of the Board or such Director, upon the termination for any reason of
such Director in his or her capacity as an officer of the Corporation.
Notwithstanding anything contained in the Certificate of Incorporation or these
Bylaws to the contrary, the affirmative vote of at least 662/3% of the Directors
then in office will be required to amend, repeal, or adopt any provision
inconsistent with this Bylaw 10(b).
11. Newly Created Directorships and Vacancies. Newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board resulting from death, resignation, disqualification, removal, or other
cause will be filled solely by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board,
or by a sole remaining Director. Any Director
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elected in accordance with the preceding sentence will hold office until the
next annual meeting of the Corporation and until his or her successor is elected
and qualified. No decrease in the number of Directors constituting the Board
will shorten the term of an incumbent Director.
12. Removal. At any annual meeting or special meeting of the stockholders,
the notice of which states that the removal of a Director or Directors is among
the purposes of the meeting, the affirmative vote of the holders of record of at
least 662/3% of the Voting Stock of the Corporation may remove such Director or
Directors from office.
13. Nominations of Directors; Election. (a) Only persons who are nominated
in accordance with the following procedures will be eligible for election at a
meeting of stockholders as Directors of the Corporation.
(b) Nominations of persons for election as Directors of the Corporation
may be made only at an annual meeting of stockholders (i) by or at the direction
of the Board or (ii) by any stockholder who is a stockholder of record at the
time of giving of notice provided for in this Bylaw 13, who is entitled to vote
for the election of Directors at such meeting, and who complies with the
procedures set forth in this Bylaw 13. All nominations by stockholders must be
made pursuant to timely notice in proper written form to the Secretary.
(c) To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
50 calendar days prior to the annual meeting of stockholders; provided, however,
that in the event that public announcement of the date of the annual meeting is
not made at least 60 calendar days prior to the date of the annual meeting,
notice by the stockholder to be timely must be so received no later than the
close of business on the 10th calendar day following the day on which public
announcement is first made of the date of the annual meeting. To be in proper
written form, such stockholder's notice must set forth or include (i) the name
and address, as they appear on the Corporation's books, of the stockholder
giving the notice and of the beneficial owner, if any, on whose behalf the
nomination is made; (ii) a representation that the stockholder giving the notice
is a holder of record of stock of the Corporation entitled to vote at such
annual meeting and intends to appear in person or by proxy at the annual meeting
to nominate the person or persons specified in the notice; (iii) the class and
number of shares of stock of the Corporation owned beneficially and of record by
the stockholder giving the notice and by the beneficial owner, if any, on whose
behalf the nomination is made; (iv) a description of all arrangements or
understandings between or among any of (A) the stockholder giving the notice,
(B) the beneficial owner on whose behalf the notice is given, (C) each nominee,
and (D) any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the stockholder giving the
notice; (v) the name, age, residence address and business address of each
nominee; (vi) the principal occupation or employment of each nominee; (vi) the
class, series and number of shares of stock of the Corporation each nominee owns
of record or beneficially, if any; (viii) such other information regarding each
nominee proposed by the stockholder giving the notice as would be required to be
included
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in a proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee been nominated, or intended to be nominated,
by the Board; and (ix) the signed consent of each nominee to serve as a Director
of the Corporation if so elected. At the request of the Board, any person
nominated by the Board for election as a Director must furnish to the Secretary
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. The presiding officer of any annual
meeting will, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed by this Bylaw 13, and if he or she
should so determine, he or she will so declare to the meeting and the defective
nomination will be disregarded. A stockholder must also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Bylaw 13.
14. Resignation. Any Director may resign at any time by giving written
notice of his resignation to the Chairman or the Secretary. Any resignation will
be effective upon actual receipt by any such person or, if later, as of the date
and time specified in such written notice.
15. Regular Meetings. Regular meetings of the Board may be held
immediately after the annual meeting of the stockholders and at such other time
and place either within or without the State of Delaware as may from time to
time be determined by the Board. Notice of regular meetings of the Board need
not be given.
16. Special Meetings. Special meetings of the Board may be called by the
Chairman or the President on one day's notice to each Director by whom such
notice is not waived, given either personally or by telephone, telegram, telex,
facsimile, or similar medium of communication, and will be called by the
Chairman or the President in like manner and on like notice on the written
request of three or more Directors. Special meetings of the Board may be held at
such time and place either within or without the State of Delaware as is
determined by the Board or specified in the notice of any such meeting.
17. Quorum. At all meetings of the Board, a majority of the total number
of Directors then in office will constitute a quorum for the transaction of
business. Except for the designation of committees as hereinafter provided and
except for actions required by these Bylaws or the Certificate of Incorporation
to be taken by a majority of the Whole Board, the act of a majority of the
Directors present at any meeting at which there is a quorum will be the act of
the Board. If a quorum is not present at any meeting of the Board, the Directors
present thereat may adjourn the meeting from time to time to another place,
time, or date, without notice other than announcement at the meeting, until a
quorum is present.
18. Participation in Meetings by Telephone Conference. Members of the
Board or any committee designated by the Board may participate in a meeting of
the Board or any such committee, as the case may be, by means of telephone
conference or similar means by which all persons participating in the meeting
can hear each other, and such participation in a meeting will constitute
presence in person at the meeting.
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19. Committees. (a) The Board, by resolution or resolutions passed by a
majority of the Whole Board, may designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. Each
committee, to the extent provided in such resolution or resolutions or in these
Bylaws, will have and may exercise to the fullest extent permitted by law the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, and may authorize the affixing of the seal of the
Corporation to all papers which may require it. Each committee will have the
name determined from time to time by resolution of the Board.
(b) Each committee of the Board will serve at the pleasure of the Board or
as may be specified in any resolution from time to time adopted by the Board.
The Board, by majority of the Whole Board, may modify the functions of any
committee at any time. The Board may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In lieu of such action by the Board, in
the absence or disqualification of any member of a committee of the Board, the
members thereof present at any such meeting of such committee and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member.
(c) Unless otherwise prescribed by the Board, a majority of the members of
any committee of the Board will constitute a quorum for the transaction of
business, and the act of a majority of the members present at a meeting at which
there is a quorum will be the act of such committee. Each committee of the Board
may prescribe its own rules for calling and holding meetings and its method of
procedure, subject to any rules prescribed by the Board. Each committee of the
Board must keep regular minutes of its proceedings and shall report the same to
the Board when required.
20. Compensation. The Board may establish the compensation for, and
reimburse of the expenses of, Directors for membership on the Board and on
committees of the Board, attendance at meetings of the Board or committees of
the Board, and for other services by Directors to the Corporation or any of its
majority-owned subsidiaries. Directors are not precluded from serving the
Corporation in any other capacity and receiving compensation for those services.
21. Rules. The Board may adopt rules and regulations for the conduct of
meetings and the oversight of the management of the affairs of the Corporation.
NOTICES
22. Generally. Except as otherwise provided by law, these Bylaws, or the
Certificate of Incorporation, whenever by law or under the provisions of the
Certificate of Incorporation or these Bylaws notice is required to be given to
any Director or stockholder, it will not be construed to require personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at the address of such Director or
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stockholder as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice will be deemed to be given at the time when the
same is deposited in the United States mail. Notice to Directors may also be
given by telephone, telegram, telex, facsimile, or similar medium of
communication or as otherwise may be permitted by these Bylaws.
23. Waivers. Whenever any notice is required to be given by law or under
the provisions of 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 of the event for which notice is to be given,
will be deemed equivalent to such notice. Attendance of a person at a meeting
will constitute a waiver of notice of such meeting, except when the person
attends a meeting 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.
CHAIRMAN OF THE BOARD
24. Chairman. The Chairman of the Board shall be elected by the Board and
will, other than as provided in Bylaw 8, preside at all meetings of the Board
and the stockholders and shall see that all orders and resolutions of the Board
and its committees are carried into effect. Except as limited by resolution of
the Board, the Chairman shall have authority to execute all contracts, bonds,
mortgages and other instruments of the Corporation.
OFFICERS
25. Generally. The officers of the Corporation will be elected by the
Board and will consist of a Chief Executive Officer, a President (who may also
be the Chief Executive Officer), a Secretary, and a Treasurer. The Board of
Directors may also choose any or all of the following: one or more Vice
Chairmen, one or more Assistants to the Chairman, one or more Vice Presidents
(who may be given particular designations with respect to authority, function,
or seniority), and such other officers as the Board may from time to time
determine. Notwithstanding the foregoing, by specific action the Board may
authorize the Chairman or the Chief Executive Officer to appoint any person to
any office other than Chief Executive Officer, President, Secretary, or
Treasurer. The Chairman or the Chief Executive Officer may appoint additional
subordinate officeholders, who shall not be corporate officers, to such
positions, with such limited authority and such titles, as the Chairman or the
Chief Executive Officer may determine. Any person may hold any number of
offices. Any of the offices may be left vacant from time to time as the Board
may determine. In the case of the absence or disability of any officer of the
Corporation or for any other reason deemed sufficient by a majority of the
Board, the Board may delegate the absent or disabled officer's powers or duties
to any other officer or to any Director.
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26. Compensation. The Board shall fix, or delegate to a committee of the
Board the power to fix, the compensation of all executive officers of the
Corporation. The Board shall fix, or delegate to a committee of the Board or an
officer of the Corporation the power to fix, the compensation of other officers
and agents of the Corporation.
27. Succession. The officers of the Corporation will hold office until
their successors are elected and qualified. Any officer may be removed at any
time by the affirmative vote of a majority of the Whole Board. Any vacancy
occurring in any office of the Corporation may be filled by the Board or by the
Chairman as provided in Bylaw 25.
28. Authority and Duties. Each of the officers of the Corporation will
have such authority and will perform such duties as are customarily incident to
their respective offices or as may be specified from time to time by the Board.
STOCK
29. Certificates. Certificates representing shares of stock of the
Corporation will be in such form as is determined by the Board, subject to
applicable legal requirements. Each such certificate will be numbered and its
issuance recorded in the books of the Corporation, and such certificate will
exhibit the holder's name and the number of shares and will be signed by, or in
the name of, the Corporation by the Chairman and the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer. Any or all of the
signatures and the seal of the Corporation, if any, upon such certificates may
be facsimiles, engraved, or printed. Such certificates may be issued and
delivered notwithstanding that the person whose facsimile signature appears
thereon may have ceased to be such officer at the time the certificates are
issued and delivered.
30. Classes of Stock. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of stock
or series thereof, and the qualifications, limitations, or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Corporation issues to represent its stock or, in lieu thereof, such
certificates will set forth the office of the Corporation from which the holders
of certificates may obtain a copy of such information.
31. Lost, Stolen, or Destroyed Certificates. The Secretary may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact, satisfactory
to the Secretary, by the person claiming the certificate of stock to be lost,
stolen, or destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the Secretary may require the owners of such lost,
stolen, or destroyed certificate or certificates to give the Corporation a bond
in such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed or
the issuance of the new certificate.
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32. Record Dates. (a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which will not be more
than 60 nor less than 10 calendar days before the date of such meeting. If no
record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders will be at the
close of business on the calendar day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the calendar day
next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of the
stockholders will apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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 may fix a record date, which record date will not be more than
60 calendar days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose will be at the close of
business on the calendar day on which the Board adopts the resolution relating
thereto.
(c) The Corporation will be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes, and will
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Corporation has notice
thereof, except as expressly provided by applicable law.
INDEMNIFICATION
33. Damages and Expenses. (a) Without limiting the generality or effect of
Article Tenth of the Certificate of Incorporation, the Corporation will to the
fullest extent permitted by applicable law as then in effect indemnify any
person (an "Indemnitee") who is or was involved in any manner (including without
limitation as a party or a witness) or is threatened to be made so involved in
any threatened, pending, or completed investigation, claim, action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
without limitation any action, suit, or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was or had agreed to become a Director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Board or an officer of the Corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
entity, whether for profit or not for profit, or anything done or not by such
person in any such capacity, against all expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such proceeding. Such indemnification
will be a contract right and will include the right to receive payment in
advance of any expenses incurred by an
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Indemnitee in connection with such Proceeding upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized by this Bylaw 33 or otherwise.
(b) The right of indemnification provided in this Bylaw 33 will not be
exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled and will be applicable to Proceedings commenced or
continuing after the adoption of this Bylaw 33, whether arising from acts or
omissions occurring before or after such adoption.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Bylaw 33 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person.
34. Insurance, Contracts, and Funding. The Corporation may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines, and amounts paid in settlement or incurred by any Indemnitee
in connection with any Proceeding referred to in Bylaw 33 or otherwise, to the
fullest extent permitted by applicable law as then in effect. The Corporation
may enter into contracts with any person entitled to indemnification under Bylaw
33 or otherwise, and may create a trust fund, grant a security interest, or use
other means (including without limitation a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in Bylaw 33.
GENERAL
35. Fiscal Year. The fiscal year of the Corporation will end the last day
of December of each year or such other date as may be fixed from time to time by
the Board.
36. Seal. The Board may adopt a corporate seal and use the same by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
37. Reliance upon Books, Reports, and Records. Each Director, each member
of a committee designated by the Board, and each officer of the Corporation
will, in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Corporation and upon such information,
opinions, reports, or statements presented to the Corporation by any of the
Corporation's officers or employees, or committees of the Board, or by any other
person or entity as to matters the Director, committee member, or officer
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
38. Time Periods. In applying any provision of these Bylaws that requires
that an act be done or not be done a specified number of days prior to an event
or that an act be done during a period of a specified number of days prior to an
event, calendar days will be
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used unless otherwise specified, the day of the doing of the act will be
excluded, and the day of the event will be included.
39. Amendments. Except as otherwise provided by law or by the Certificate
of Incorporation or these Bylaws, these Bylaws or any of them may be amended in
any respect or repealed at any time, either (a) at any meeting or by written
consent of stockholders, provided that any amendment or supplement proposed to
be acted upon at any such meeting has been described or referred to in the
notice of such meeting, or (b) at any meeting or by written consent of the
Board, provided that no amendment adopted by the Board may vary or conflict with
any amendment adopted by the stockholders.
40. Certain Defined Terms. Terms used herein with initial capital letters
that are not otherwise defined are used herein as defined in the Certificate of
Incorporation.
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