Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 213 1.06M
Business-Combination Transaction
2: EX-2.1 Recapitalization Agreement 78 353K
3: EX-3.1 Articles of Amendment to the Articles of Inc. 6 51K
12: EX-3.10 By-Laws of Imbs, Inc. 20 78K
13: EX-3.11 Articles of Inc. of Inphynet Hospital Services Inc 6 52K
14: EX-3.12 By-Laws of Inphynet Hospital Services, Inc. 14 78K
15: EX-3.13 Certificate of Amendment to Certificate of Inc. 9 56K
16: EX-3.14 By-Laws of Inphynet Medical Management Institute 14 78K
17: EX-3.15 Articles of Incorporation of Karl G. Mangold, Inc. 6 49K
18: EX-3.16 By-Laws of Karl G. Mangold, Inc. 19 99K
19: EX-3.17 Amended and Restated Articles of Incorporation 4 44K
20: EX-3.18 Amendment to By-Laws of Charles L. Springfield Inc 21 92K
21: EX-3.19 Articles of Amendment to the Charter of Clinic Mgt 25 93K
4: EX-3.2 By-Laws of Alliance Corporation 6 55K
22: EX-3.20 By-Laws of Clinic Management Services, Inc. 4 45K
23: EX-3.21 Articles of Incorporation of Daniel & Yeager, Inc. 4 44K
24: EX-3.22 By-Laws of Daniel & Yeager, Inc. 9 58K
25: EX-3.23 Articles of Incorporation of Drs. Sheer, Et Al 16 78K
26: EX-3.24 Amended and Restated By-Laws of Drs. Sheer, Et Al 21 89K
27: EX-3.25 Articles of Amendment to the Charter 14 68K
28: EX-3.26 Amendment to By-Laws of Emergency Coverage Corp. 10 67K
29: EX-3.27 Restated Certificate of Incorporation 74 241K
30: EX-3.28 By-Laws of Emergency Physician Associates, Inc. 16 69K
31: EX-3.29 Articles of Incorporation of Emergency Physicians 3 44K
5: EX-3.3 Articles of Inc. of Emergency Mgmt. Specialist 3 43K
32: EX-3.30 By-Laws of Emergency Physicians of Manatee, Inc. 16 79K
33: EX-3.31 Certificate of Amendment to the Articles of Inc. 9 65K
34: EX-3.32 Code Regulations of Emergency Professional Service 10 65K
35: EX-3.33 Amended and Restated Charter of Emergicare Mgmt. 9 54K
36: EX-3.34 By-Laws of Emergicare Management, Incorporated 16 68K
37: EX-3.35 Articles of Inc. of Emsa Contracting Services Inc. 6 51K
38: EX-3.36 By-Laws of Emsa Contracting Services, Inc. 19 78K
39: EX-3.37 Articles of Amendment to Emsa Louisiana, Inc. 4 47K
40: EX-3.38 By-Laws of Emsa Louisiana, Inc. 19 78K
41: EX-3.39 Articles 0F Amendment to the Charter 3 41K
6: EX-3.4 By-Laws of Emergency Management Specialist, Inc. 6 55K
42: EX-3.40 By-Laws of Hospital Based Physician Services, Inc. 5 45K
43: EX-3.41 Articles of Inc. of Inphynet Anesthesia of Wv, Inc 5 48K
44: EX-3.42 By-Laws of Inphynet Anesthesia of West Virginia 8 58K
45: EX-3.43 Articles If Amendment to the Charter 6 46K
46: EX-3.44 By-Laws of Med: Assure Systems, Inc. 5 46K
47: EX-3.45 Articles of Inc. of Metroamerican Radiology, Inc. 5 46K
48: EX-3.46 By-Laws of Metroamerican Radiology, Inc. 13 76K
49: EX-3.47 Articles of Inc. of Neo-Med, Inc. 2 42K
50: EX-3.48 By-Laws of Neo-Med, Inc. 19 78K
51: EX-3.49 Articles of Inc. of Northwest Emergency Physicians 4 43K
7: EX-3.5 Articles of Incorporation of Emsa South Broward 2 39K
52: EX-3.50 By-Laws of Northwest Emergency Physicians, Inc. 7 59K
53: EX-3.51 Certificate of Amendment of Certificate of Inc. 10 59K
54: EX-3.52 By-Laws of Paragon Anesthesia, Inc. 20 78K
55: EX-3.53 Articles of Inc. of Paragon Contracting Services 7 50K
56: EX-3.54 By-Laws of Paragon Contracting Services, Inc. 20 78K
57: EX-3.55 Certificate of Amendment of Certificate of Inc. 3 45K
58: EX-3.56 By-Laws of Paragon Imaging Consultants, Inc. 8 59K
59: EX-3.57 Articles of Incorporation of Quantum Plus, Inc. 1 39K
60: EX-3.58 By-Laws of Quantum Plus, Inc. 16 92K
61: EX-3.59 Amendment and Restated Articles of Incorporation 11 57K
8: EX-3.6 By-Laws of Emsa South Broward, Inc. 7 60K
62: EX-3.60 Code Regulations of Reich, Seidelmann & Janicki Co 7 56K
63: EX-3.61 Articles of Inc. of Rosendorf, Marguiles, Et Al 70 240K
64: EX-3.62 By-Laws of Rosendorf, Marguiles, Et Al 14 91K
65: EX-3.63 Articles of Amendment to the Articles of Inc. 4 43K
66: EX-3.64 By-Laws of Sarasota Emergency Medical Consultants 18 78K
67: EX-3.65 Articles of Amendment to the Charter 7 49K
68: EX-3.66 By-Laws of Southeastern Emergency Physicians, Inc. 4 48K
69: EX-3.67 Articles of Amendment to the Charter 9 51K
70: EX-3.68 By-Laws of Southeastern Emergency Physicians 5 45K
71: EX-3.69 Charter of Team Health Financial Services, Inc. 2 40K
9: EX-3.7 Articles of Incorporation of Herschel Fischer, Inc 6 50K
72: EX-3.70 By-Laws of Team Health Financial Services, Inc. 8 66K
73: EX-3.71 Articles of Inc. of Team Radiology, Inc. 5 48K
74: EX-3.72 By-Laws of Team Radiology, Inc. 14 82K
75: EX-3.73 Certificate of Incorporation of Thbs, Inc. 2 42K
76: EX-3.74 By-Laws of Thbs, Inc. 8 64K
77: EX-3.75 Amended and Restated Articles of Incorporation 18 79K
78: EX-3.76 By-Laws of the Emergency Associates of Medicine 11 70K
79: EX-3.77 Articles of Inc. of Virginia Emergency Physicians 3 44K
80: EX-3.78 Amended and Restated By-Laws of Virginia Emergency 25 101K
81: EX-3.79 Articles of Incorporation of Emsa Joliet, Inc. 7 48K
10: EX-3.8 By-Laws of Herschel Fischer, Inc. 19 117K
82: EX-3.80 By-Laws of Emsa Joliet, Inc. 19 78K
83: EX-3.81 Certificate of Limited Partnership 2 43K
84: EX-3.82 Certificate of Limited Partnership 1 38K
85: EX-3.83 Certificate of Limited Partnership 1 40K
86: EX-3.84 Partnership Agreement 3 45K
87: EX-3.85 Partnership Agreement 2 42K
11: EX-3.9 Articles of Incorporation of Imbs, Inc. 6 52K
88: EX-4.1 Indenture 120 504K
89: EX-5.1 Opinion of Kirkland & Ellis 5 49K
90: EX-9.1 Stockholders Agreement 17 97K
91: EX-9.2 Securityholders Agreement 22 116K
92: EX-10.1 Registration Rights Agreement 25 118K
101: EX-10.10 Amendment and Restatement 19 89K
102: EX-10.11 Lease Agreement 30 122K
103: EX-10.12 Lease Agreement 26 109K
93: EX-10.2 Purchase Agreement 46 168K
94: EX-10.3 Equity Deferred Compensation Plan 14 87K
95: EX-10.4 Management Services Agreement 6 52K
96: EX-10.5 Registration Agreement 18 103K
97: EX-10.6 Registration Agreement 22 121K
98: EX-10.7 Trust Agreement 10 58K
99: EX-10.8 Credit Agreement 269 896K
100: EX-10.9 Plan Provision Nonqualified Excess Deferral Plan 7 58K
104: EX-12.1 Statement of Ratio of Earnings to Fixed Charges 1 38K
105: EX-21.1 Subsidiaries of the Registrant 2 44K
106: EX-23.1 Consent of Ernst & Young, LLP. 1 38K
107: EX-25.1 Statement of Eligibility of Trustee on Form T-1 14 84K
108: EX-27.1 Financial Data Schedule 1 41K
109: EX-99.1 Form of Letter of Transmittal 9 81K
110: EX-99.2 Form of Letter of Notice of Guaranteed Delivery 4 51K
111: EX-99.3 Form of Tender Instructions 2 41K
EX-3.74 — By-Laws of Thbs, Inc.
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Exhibit 3.74
BYLAWS OF
THBS, INC.
ARTICLE 1
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting 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 at such place, either within or
without the State of Delaware, on such date and at such time as the Board of
Directors may be resolution provide, or, if the Board of Directors fails to
provide, then such meeting shall be held at the principal office of the
Corporation at 10:00 a.m. on the second Tuesday in April of each year or, if
such date is a legal holiday, on the next succeeding business day. The Board of
Directors may specify by resolution prior to any special meeting of stockholders
is held within the year that such meeting shall be in lieu of the annual
meeting.
Section 2. Special Meeting. Special meetings of the stockholders may be
called at any time by the Board of Directors, the President or upon written
request of the holders of at least twenty-five percent (25%) of the outstanding
common stock. Such written request shall specify the time and purpose of the
proposed meeting. Such meeting shall be held at such place, and within or
without the State of Delaware, as is stated in the call and notice thereof .
Section 3. Notice of Meetings. Written notice of each meeting of
stockholders, stating the time and place of the meeting, and the purpose of any
special meeting shall be mailed to each stockholder entitled to vote at or to
notice of such meeting at the address shown on the books of the Corporation in
not less than ten (10) nor more than sixty (60) days prior to such meeting
unless such stockholder waives notice of the meeting. If an agreement of merger
or consolidation or a sale, lease, exchange, or other, disposition of all or
substantially all the property and assets of the corporation is to be considered
at any annual or special meeting, the written notice shall state the purpose of
such meeting and shall be given to the stockholder, whether or not entitled to
vote thereon, not less than twenty (20) days before such meeting. Any
stockholder may execute a waiver of notice in person or by proxy, either before
or after any meeting, and shall be deemed to have waived notice if he is present
at such meeting in person or by proxy. Neither the business transacted at, nor
the purpose of, any meeting need be stated in the waiver of notice of such
meeting.
Notice of any meeting may be given by the President, the Secretary or
the person or persons calling such meeting. No notice need be given of the time
and place of reconvening of any adjourned meeting, if the time and place to
which the meeting is adjourned are announced at the adjourned meeting, unless
the adjournment is for more than thirty days.
Section 4. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of each stockholder and the number of shares registered in the name of
each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specific in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 3. Quorum; Required Stockholder Vote. A quorum for the
transaction of business at any annual or special meeting of stockholders shall
exist when the holders of a majority of the outstanding shares entitled to vote
are represented either in person or by proxy of such meeting. If a quorum is
present, the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless a greater vote is required by law, by the Certificate of
Incorporation or by these Bylaws. When a quorum is once present to organize a
meeting, the stockholders present may continue to do business at the meeting or
at any adjournment thereof notwithstanding withdrawal of enough stockholders to
leave less than a quorum. The holders of a majority of the voting shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
Section 6. Proxies. A stockholder may vote either in person or by a
proxy which such stockholder has duly executed in writing. No proxy shall be
valid after three years from the date of its execution unless a longer period is
expressly provided in the proxy.
Section 7. Action of Stockholders Without Meeting. Any action required
to be, or which may be, taken at a meeting of stockholders, may be taken without
a meeting if written consent, setting forth the action so taken, shall be signed
and dated 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.
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. Such consent shall have the same force and effect as an
affirmative vote of the stockholders and shall be filed with the minutes of the
proceedings of the stockholders.
ARTICLE II
DIRECTORS
Section 1. Power of Directors. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all the powers of the Corporation, subject to any restrictions, imposed by law,
by the Certificate of Incorporation or by these Bylaws.
Section 2. Composition of the Board. The Board of Directors of the
Corporation shall consist of not less than one (1) nor more than ten (10)
natural persons of the age of eighteen or over. The exact number of directors
within the specific minimum and maximum shall be fixed by resolution of the
stockholders from time to time, but no decrease in the number of directors shall
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shorten the term of any incumbent director. Directors need not be residents of
the State of Delaware or stockholders of the Corporation. At each annual meeting
the stockholder shall elect the directors, who shall serve until their
successors are elected and qualified; provided that at any stockholders'
meeting, the entire Board of Directors or any individual director may be
removed, with or without cause, by the affirmative vote of the holders of a
majority of the shares entitled to vote at an election of directors.
Section 3. Meetings of the Board; Notice of Meetings; Waiver of Notice.
The annual meeting if the Board of Directors for the purpose of electing
officers and transacting such other business as may be brought before the
meeting shall be held each year immediately following the annual meeting of
stockholders. The Board of Directors may by resolution provide for the time and
place of other regular meetings and no notice of such regular meetings need be
given. Special meetings of the Board of Directors may be called by the President
or by any two directors unless the Board consists of one director, in which case
special meetings may be called by the sole director. Written notice of the time
and place of such meetings shall be given to each director by first class or air
mail at least four (4) days before the meeting or by telephone, telegraph,
cablegram or in person at least two (2) days before the meeting. Any director
may execute a waiver of notice, either before or after any meeting, and shall be
deemed to have waived notice if he is present at such meeting. Neither the
business to be transacted at, nor the purpose of, any meeting of the Board of
Directors need be stated in the notice or waiver of notice of such meeting. Any
meeting may be held at any place within or without the State of Delaware.
Section 4. Quorum; Vote Requirement. A majority of the number of
directors last fixed by the stockholders shall constitute a quorum for the
transaction of business at any meeting. When a quorum is present, the vote of a
majority of the directors present shall be the act of the Board of Directors,
unless a greater vote is required by law, by the Certificate of Incorporation or
by these Bylaws.
Section 5. Action of Board without Meeting, Any action required or
permitted to be taken at a meeting of the Board of Directors or by committee
thereof may be taken without a meeting if written consent, setting forth the
action so taken, is signed by all the directors or committee members and filed
with the minutes of proceedings of the Board of Directors or committee. Such
consent shall have the same force and effect as a unanimous affirmative vote of
the Board of Directors or committee, as the case may be.
Section 6. Committees. The Board of Directors, by resolution adopted by
a majority of all of the directors, may designate such committees as it deems
necessary or desirable, each composed of one (1) or more of the directors. Any
such committee may authorize the seal of the Corporation to be affixed to all
papers which may require it and, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation; provided that no committee shall have the authority of the Board of
Directors in reference to (1) an amendment to the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution
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or resolutions providing for the issuance of shares of stock adopted by The
Board of Directors as provided in Section 151(a) of the Delaware General
Corporation Law fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes of any other series of the same or any other class
or classes of stock of the corporation), (2) the adoption of an agreement of
merger or consolidation, (3) the sale, lease or exchange or other disposition of
all or substantially all of the property and assets of the Corporation, (4) a
voluntary dissolution of the Corporation or a revocation thereof, or (5) an
amendment to the Bylaws of the Corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provides, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger.
Section 7. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board of Directors or by the sole remaining
director, as the case may be, or if the vacancy is not so filled, or if no
director remains, by the stockholders. A director elected to fill a vacancy
shall serve for the unexpired term of his predecessor in office, or, if such
vacancy occurs by reason of an amendment to these Bylaws increasing the number
of directors, until the next election of directors by the stockholders and the
election and qualification of the successor.
Section 8. Telephone Conference Meetings. Unless the Certificate of
Incorporation otherwise provides, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board or any committee by means of telephone conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 8 shall constitute presence in person at such meeting.
ARTICLE III
OFFICERS
Section 1. Executive Structure of the Corporation. The officers of the
Corporation shall be elected by the Board of Directors and shall consist of a
President, a Secretary, a Treasurer and such other officers or assistant
officers, including Vice President, as may be elected by the Board of Directors.
Each officer shall hold office for the term for which such officer has been
elected or appointed or until such officer's successor has been elected or
appointed and has qualified, or until such officer's earlier resignation,
removal from office, or death. Any two or more officers may be held by the same
person. The Board of Directors may designate a Vice President as an Executive
Vice President and may designate the order in which other Vice Presidents may
act.
Section 2. President. The President shall be the Chief Executive
Officer of the Corporation and shall give general supervision and direction to
the affairs of the Corporation, subject to the direction of the Board of
Directors. The President shall preside at all meetings of the stockholders.
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Section 3. Vice President. The Vice President shall act in the case of
absence or disability of the President.
Section 4. Secretary. The Secretary shall record all the proceedings of
the meetings of the stockholders and of the Board of Directors in a book to be
kept for that purpose, and shall have custody of and attest the seal of the
Corporation.
Section 5. Treasurer. The Treasurer shall be responsible for the
maintenance of proper financial books and records of the Corporation.
Section 6. Other Duties and Authority. Each officer, employee and agent
of the Corporation shall have such other duties and authority as may be
conferred upon such officer, employee or agent by the Board of Directors or
delegated to such officer, employee or agent by the President.
Section 7. Removal of Officers. Any officer may be removed at any time
by the Board of Directors, and such a vacancy may be filled by the Board of
Directors. This provision shall not prevent the making of a contract of
employment for a definite term with any officer and shall have no effect upon
any cause of action which any officer may have as a result of such officer's
removal in breach a of a contract of employment.
Section 8. Compensation. The salaries of the officers shall be fixed
from time to time by the Board of Directors. No officer shall be prevented from
receiving such salary by reason of the fact that such officer is also a director
of the Corporation.
ARTICLE IV
STOCK
Section 1. Stock Certificates. The shares of stock of the Corporation
shall be represented by certificate or shall be uncertificated. Certificates
shall be in such form as may be approved by the Board of Directors, which
certificates shall be issued to stockholders of the Corporation in numerical
order from the stock book of the Corporation, and each of which shall bear the
name of the stockholder, the number of shares represented, and the date of
issue; and which shall be signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, and which shall be sealed with the seal of the Corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth stated on
certificates pursuant to Section 151, 156, 202(a) or 218(a) of the Delaware
General Corporation Law or a statement that the Corporation will furnish without
charge to each stockholder who so requests, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or other
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special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Transfer of Stock. Shares of stock of the Corporation shall
be transferred only on the books of the Corporation upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the stockholder of record or such stockholders duly authorized
attorney-in-fact and with all taxes on the transfer having been paid. The
Corporation may refuse any requested transfer until furnished evidence
satisfactory to it that such transfer is proper. Upon the surrender of a
certificate for transfer of stock, such certificate shall at once be
conspicuously marked on its face "Cancelled" and filed with the permanent stock
records of the Corporation. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be cancelled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the Corporation. The Board of
Directors may make such additional rules concerning the issuance, transfer and
registration of stock and requirements regarding the establishment of lost,
destroyed or wrongfully taken stock certificates (including any requirement of
an indemnity bond prior to issuance of any replacement certificate) as it deems
appropriate.
Section 3. Registered Stockholders. The Corporation may deem and treat
the holder of record of any stock as the absolute owner for all purposes and
shall not be required to take any notice of any right or claim of right of any
other person.
Section 4. Record Date. 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 in order
to make a determination of stockholders for any other purpose, the Board of
Directors of the Corporation may fix in advance a date as the record date for
any such determination of stockholders, such date in any case to be not more
than sixty (60) days and, in the case of a meeting of stockholders, not less
than ten (10) days prior to the date on which the particular action, requiring
such determination of stockholders, is to be taken.
ARTICLE VI
DEPOSITORIES; SIGNATURES AND SEAL
Section 1. Depositories. All funds of the Corporation shall be
deposited in the name of the Corporation in such bank, banks, or other financial
institutions as the Board of Directors may from time to time designate and shall
be drawn out on checks, drafts or other orders signed on behalf of the
Corporation by such person or persons as the Board of Directors may from time to
time designate.
Section 2. Contracts and Deeds. All contracts, deeds and other
instruments shall be signed on behalf of the Corporation by the President or by
such other officer, officers, agent or agents as the Board of Directors may from
time to time by resolution provide.
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Section 3. Seal. The seal of the Corporation shall be as follows:
If the seal is affixed to a document, the signature of the Secretary or
the Assistant Secretary shall attest the seal. The seal and its attestation may
be lithographed or otherwise printed on any document and shall have, to the
extent permitted by law, the same force and effect as if it had been affixed and
attested manually.
ARTICLE VI
INDEMNITY
Section 1. Right to Indemnification. 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 she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or (if
serving for another corporation at the request of the Corporation) agent or in
any other capacity while serving as a director, officer, employee or (if serving
for another corporation at the request of the Corporation) agent or in any other
capacity while serving as a director, officer, employee or (if serving for
another corporation agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment) against all expense, liability
and loss (including, attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or (if serving
for another corporation at the request of the Corporation) agent and shall inure
to the benefit of his or her heirs, executors: and administrators; provided,
however, that except as provided in Section 2 hereof with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such persons seeking indemnification, in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a
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director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of the proceeding shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article VI or otherwise.
Section 2. Payment of Indemnification. If a claim under Section I of
this Article VI is not paid in full by the Corporation within 90 days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. 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 is required, has been tendered in the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or 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 or she
has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or stockholders) that the
claimant has not met such applicable standard of conduct, should be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3. Indemnification Not Exclusive The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article VI 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.
Section 4 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
ARTICLE VII
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal
the Bylaws or adopt new bylaws, but any bylaws adopted by the Board of Directors
may be altered, amended, or repealed and new bylaws adopted by the stockholders.
The stockholders may prescribe that any bylaw or bylaws adopted by them shall
not be altered amended or repealed by the Board of Directors.
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