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Exhibit 3.5
BY-LAWS
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OF
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HEALTHWATCH, INC.
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ARTICLE I
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Offices
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Section 1. Principal Executive Office. The principal executive office of
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the corporation shall be in the City of Boulder, County of Boulder, Colorado.
Section 2. Registered Office. The location and address of the registered
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office of the corporation is 300 Roanoke Building, Minneapolis, Minnesota. The
registered office need not be identical with the principal executive office of
the corporation and may be changed from time to time by the Board of Directors.
Section 3. Other Offices. The corporation may have other offices at such
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places within and without the State of Minnesota as the Board of Directors may
from time to time determine.
ARTICLE II
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Meetings of Shareholders
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Section 1. Place of Meeting. All meetings of the shareholders of this
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corporation shall be held at its principal executive office unless some other
place for any such meeting within or without the State of Minnesota be
designated by the Board of Directors in the notice of meeting. Any regular or
special meeting of the shareholders of the corporation called by or held
pursuant to a written demand of shareholders shall be held in the county where
the principal executive office is located.
Section 2. Regular Meetings. Regular meetings of the shareholders of
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this corporation may be held at the discretion of the Board of Directors on an
annual or less frequent periodic basis on such date and at such time and place
as may be designated by the Board of Directors in the notice of meeting. At
regular meetings the shareholders shall elect a Board of Directors and transact
such other business as may be appropriate for action by shareholders. If a
regular meeting of shareholders has not been held for a period of fifteen (15)
months, one or more shareholders holding not less than three percent (3%) of the
voting power of all shares of the corporation entitled to vote may call a
regular meeting of shareholders by delivering to the President or Treasurer a
written demand for a regular meeting within thirty (30) days after the receipt
of such written demand by the President or Treasurer, the Board of Directors
shall cause a regular meeting of shareholders to be called and held on notice no
later than ninety (90) days after the receipt of written demand, all at the
expense of the corporation.
Section 3. Special Meetings. Special meetings of the shareholders, for
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any purpose or purposes appropriate for action by shareholders, may be called by
the president, by the vice President in the absence of the President, by the
Treasurer, or by the Board of Directors or any two or more members thereof.
Such meeting shall be held on such date and at such time and place as shall be
fixed by the person or persons calling the meeting and designated in the notice
of meeting. Special meetings may also be called by one or more shareholders
holding not less than ten percent (10%) of the voting power of all shares of the
corporation entitled to vote by delivering to the President or Treasurer a
written demand for a special meeting, which demand shall contain the purposes of
the meeting. Within thirty (30) days after the receipt of a written demand for a
special meeting of shareholders by the President or Treasurer, the Board of
Directors shall cause a special meeting of shareholders to be called and held on
notice no later than ninety (90) days after the receipt of such written demand,
all at the expense of the corporation. Business transacted at any
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special meeting of shareholders shall be limited to the purpose or purposes
stated in the notice of meeting. Any business transacted at any special meeting
of shareholders that is not included among the stated purposes of such meeting
shall be voidable by or on behalf of the corporation unless all of the
shareholders have waived notice of the meeting.
Section 4. Notice of Meetings. Except where a meeting of shareholders is
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an adjourned meeting and the date, time, and place of such meeting were
announced at the time of adjournment, notice of all meetings of shareholders
stating the date, time, and place thereof, and any other information required by
law or desired by the Board of Directors or by such other person or persons
calling the meeting, and in the case of special meetings, the purpose thereof,
shall be given to each shareholder of record entitled to vote at such meeting
not less than three (3) nor more than sixty (60) days prior to the date of such
meeting. In the event, that a plan of merger or the sale or other disposition of
all or substantially all of the assets of the corporation is to be considered at
a meeting of shareholders, notice of such meeting shall be given to every
shareholder, whether or not entitled to vote, not less than fourteen (14) days
prior to the date of such meeting.
Notices of meeting shall be given to each shareholder entitled thereto by
oral communication, by mailing a copy thereof to such shareholder at an address
he has designated or to the last known address of such shareholder, by handing a
copy thereof to such Shareholder, or by any other delivery that conforms to law.
Notice by mail shall be deemed given when deposited in the United States mail
with sufficient postage affixed.
Any shareholder may waive notice of any meeting of shareholders. Waiver of
notice shall be effective whether given before, at, or after, the meeting and
whether given orally, in writing, or by attendance. Attendance by, a shareholder
at a meeting is a waiver of notice of that meeting, except where the shareholder
objects at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened and does not participate
thereafter in the meeting, or objects before a vote on an item of business
because the item may not lawfully be considered at that meeting and does not
participate in the consideration of that item at the meeting.
Section 5. Record Date. For the purpose of determining shareholders
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entitled to notice of and to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors of the corporation may, but need not, fix
a date as the record date for any such determination of shareholders, which
record date, however, shall in no event be more than sixty (60) days prior to
any such intended action or meeting.
Section 6. Quorum. The holders of a majority of the voting power of all
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shares of the corporation entitled to vote at a meeting shall constitute a
quorum at a meeting of shareholders for the purpose of taking any action other
than adjourning such meeting. Representation of the holders of any outstanding
shares of the corporation entitled to vote shall constitute a quorum for the
sole purpose of adjourning such meeting, and the holders of a majority of the
shares so represented may adjourn the meeting to such date, time, and place as
they shall announce at the time of adjournment. Any business may be transacted
at the meeting held pursuant to such an adjournment and at which a quorum shall
be represented, which might have been transacted at the adjourned meeting if a
quorum is present when a duly called or held meeting is convened, the
shareholders present may continue to transact business until adjournment, even
though the withdrawal of a number of shareholders originally represented leaves
less than the number otherwise required for a quorum.
Section 7. Voting and Proxies. At each meeting of the shareholders every
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shareholder shall be entitled to one vote in person or, by proxy for each share
of capital stock held by such shareholder, but no appointment of a proxy shall
be valid for any purpose more than eleven (11) months after the date of its
execution, unless a longer period is expressly provided in the appointment.
Every appointment of a proxy shall be in writing (which shall include
telegraphing, cabling, or telephotographic transmission), and shall be filed
with the Secretary of the corporation before or at, the meeting at which the
appointment is to be effective. An appointment of a proxy for shares held
jointly by two or more shareholders shall be valid if signed by any one of them,
unless the Secretary of the corporation receives from any one
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of such shareholders written notice either denying the authority of that person
to appoint a proxy or appointing a different proxy. All questions regarding the
qualification of voters, the validity of appointments of proxies, and the
acceptance or rejection of votes shall be decided by the presiding officer of
the meeting. The shareholders shall take action by the affirmative vote of the
holders of a majority of the voting power of the shares present, in person or
represented by proxy, and entitled to vote, except where a different vote is
required by law, the Articles of Incorporation, or these By-Laws.
Section 8. Action Without Meeting by Shareholders. Any action required or
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permitted to be taken at a meeting of the shareholders may be taken without a
meeting by written action signed by all of the shareholders entitled to vote on
such action. Such written action shall be effective when signed by all of the
shareholders entitled to vote thereon or at such different effective time as is
provided in the written action.
ARTICLE III
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Directors
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Section 1. General Powers. The business and affairs of the corporation
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shall be managed by or under the direction of its Board of Directors. The
directors may exercise all such powers and do all such things as may be
exercised or done by the corporation, subject to the provisions of applicable
law, the Articles of Incorporation, and these By-Laws.
Section 2. Number, Tenure, and Qualification. The number of directors
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which shall constitute the whole Board of Directors shall, be fixed from time to
time by resolution of the shareholders, subject to increase by resolution of the
Board of Directors. In the event that the shareholders fail to fix the number of
directors, the number of directors shall be the number provided for in the
Articles of Incorporation, subject to increase by resolution of the Board of
Directors. No decrease in the number of directors pursuant to this section shall
effect the removal of any director then in office except upon compliance with
the provisions of Section 7 of this Article. Each director shall be elected at a
regular meeting of shareholders, except as provided in Sections 6 and 7 of this
Article, and shall hold office until the next regular meeting of shareholders
and thereafter until his successor is duly elected and qualified, unless a prior
vacancy shall occur by reason of his death, resignation, or removal from office.
Directors shall be natural persons but need not be shareholders.
Section 3. Meetings. Meetings of the Board of Directors shall be held
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immediately after, and at the same place as, regular meetings of shareholders.
Other meetings of the Board of Directors may be held at such times and places as
shall from time to time be determined by the Board of Directors. Meetings of the
Board of Directors also may be called by the President, by the Vice President in
the absence of the President, or by any director, in which case the person or
persons calling such meeting may fix the date, time, and place thereof, either
within or without the State of Minnesota, and shall cause notice of meeting to
be given.
Section 4. Notice of Meetings. If the date, time, and place of a meeting
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of the Board of Directors has been announced at a previous meeting, no notice is
required. In all other cases three (3) days notice of meetings of the Board of
Directors, stating the date and time thereof and any other information required
by law or desired by the person or persons calling such meeting, shall be given
to each director. If notice of meeting is required, and such notice does not
state the place of the meeting, such meeting shall be held at the principal
executive office of the corporation. Notice of meetings of the Board of
Directors shall be given to directors in the manner provided in these By-Laws
for giving notice to shareholders of meetings of shareholders.
Any director may waive notice of any meeting. A waiver of notice by a
director is effective whether given before, at, or after the meeting, and
whether given orally, in writing, or by attendance. The attendance of a director
at any meeting shall constitute a waiver of notice of such meeting, unless such
director objects at the beginning of the meeting to the transaction of business
on grounds that the meeting is not lawfully called or convened and does not
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participate thereafter in the meeting.
Section 5. Quorum and Voting. A majority of the directors currently
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holding office shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum is
present. If a quorum is present when a duly called or held meeting is convened,
the directors present may continue to transact business until adjournment, even
though the withdrawal of a number of directors originally present leaves less
than the number otherwise required for a quorum.
The Board of Directors shall take action by the affirmative vote of a
majority of the directors present at any duly held meeting, except as to any
question upon which any different vote is required by law, the Articles of
Incorporation, or these By-Laws. A director may give advance written consent or
objection to a proposal to be acted upon at a meeting of the Board of Directors.
If the proposal acted on at the meeting is substantially the same or has
substantially the same effect as the proposal to which the director has
consented or objected, such consent or objection shall be counted as a vote for
or against the proposal and shall be recorded in the minutes of the meeting.
Such consent or objection shall not be considered in determining the existence
of a quorum.
Section 6. Vacancies and Newly Created Directorships. Any vacancy
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occurring in the Board of Directors may be filled by the affirmative vote of a
majority of the directors remaining in office, even though said remaining
directors be less than a quorum. Any newly created directorship resulting from
an increase in the authorized number of directors by action of the Board of
Directors may be filled by a majority vote of the directors serving at the time
of such increase. Any vacancy or newly created directorship may be filled by
resolution of the shareholders. Unless a prior vacancy occurs by reason of his
death, resignation, or removal from office, any director so elected hold office
until the next regular meeting of shareholders and until his successor is duly
elected and qualified.
Section 7. Removal of Directors. The entire Board of Directors or any
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director or directors may be removed from office, with or without cause, at any
special meeting of the shareholders, duly called for that purpose as provided in
these By-Laws, by a vote of the shareholders holding a majority of the shares
entitled to vote at an election of directors. At such meeting, without further
notice, the shareholders may fill any vacancy or vacancies created by such
removal as provided in Section 6 of this Article. Any such vacancy not so filled
may be filled by the directors as provided in Section 6 of this Article. Any
director named by the Board of Directors to fill a vacancy may be removed at any
time, with or without cause, by an affirmative vote of a majority of the
remaining directors, even though said remaining directors be less than a quorum,
if the shareholders have not elected directors in the interval between the
appointment to fill the vacancy and the time of removal.
Section 8. Committees. The Board of Directors, by a resolution approved by
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the affirmative vote of a majority of the directors then holding office, may
establish one or more committees of one or more persons having the authority of
the Board of Directors in the management of the business of the corporation to
the extent provided in such resolution. Such committees, however, shall at all
times be subject to the direction and control of the Board of Directors.
Committee members need not be directors and shall be appointed by the
affirmative vote of a majority of the directors present. A majority of the
members of any committee shall constitute a quorum for the transaction of
business at a meeting of any such committee. In other matters of procedure the
provisions of these By-Laws shall apply to committees and the members thereof to
the same extent they apply to the Board of Directors and directors, including,
without limitation, the provisions with respect to meetings and notice thereof,
absent members, written actions, and valid acts. Each committee shall keep
regular minutes of its proceedings and report the same to the Board of
Directors.
Section 9. Action in Writing. Any action required or permitted to be
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taken at a meeting of the Board of Directors or of a lawfully constituted
committee thereof may be taken by written action signed by all of the directors
then in office or by all of the members of such committee, as the case may be.
If the action does not require shareholder approval, such action shall be
effective if signed by the number of directors or members of such committee that
would be required to take the same action at a meeting at which all directors or
committee members were present. If any
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written action is taken by less than all directors, all directors shall be
notified immediately of its text and effective date. The failure to provide such
notice, however, shall not invalidate such written action.
Section 10. Meeting by Means of Electronic Communication. Members of the
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Board of Directors of the corporation, or any committee designated by such
Board, may participate in a meeting of such Board or committee by means of
conference telephone or similar means of communication by which all persons
participating in the meeting can simultaneously hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at such meeting.
ARTICLE IV
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Officers
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Section 1. Number and Qualification. The officers of the corporation
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shall be elected by the Board of Directors and shall include a President, a
Secretary, and a Treasurer. The Board of Directors may also appoint one or more
Vice Presidents or such other officers and assistant officers as it may deem
necessary. Except as provided in these By-Laws, the Board of Directors shall
fix the powers, duties, and compensation of all officers. Officers may, but need
not, be directors of the corporation. Any number of offices may be held by the
same person.
Section 2. Term of Office. An officer shall hold office until his
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successor shall have been duly elected, unless prior the order of their
election, shall perform the duties of the thereto he shall have resigned or been
removed from office as hereinafter provided.
Section 3. Removal and Vacancies. Any officer or agent elected or
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appointed by the Board of Directors shall hold office at the pleasure of the
Board of Directors and may be removed, with or without cause, at any time by the
vote of a majority of the Board of Directors. Any vacancy in an office of the
corporation shall be filled by the Board of Directors.
Section 4. Chairman of the Board. The Chairman of the Board of Directors
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shall preside at all meetings of the shareholders and the Board of Directors
when present, and shall have such other powers and perform such other duties as
the Board of Directors may from time to time prescribe.
Section 5. President. The President shall be the chief executive officer
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of the corporation shall have general and active management of the business of
the corporation, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall have the general powers and duties
usually vested in the office of the President and shall have such other powers
and perform such other duties as the Board of Directors may from time to time
prescribe.
Section 6. Vice Presidents. The Vice President, if any, or Vice Presidents
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in case there be more than one, shall have such powers and perform such duties
as the President or the Board of Directors may from time to time prescribe. In
the absence of the President or in the event of his death, inability, or refusal
to act, the Vice President, or in the event there be more than one Vice
President, the Vice presidents in the order designated by the Board of
Directors, or, in the absence of any designation, in the order of their
election, shall perform the duties of the President, and, when so acting, shall
have all the powers of and be subject to all of the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
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of Directors and of the shareholders and shall maintain records of, and whenever
necessary, certify all proceedings of the Board of Directors and of the
shareholders. He shall keep the stock books of the corporation, and, when so
directed by the Board of Directors, shall give or cause to be given notice of
meetings of the shareholders and of meetings of the Board of Directors. He shall
also perform such other duties and have such other powers as the President or
the Board of Directors may from time to time prescribe.
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Section 8. Treasurer. The Treasurer shall be the chief financial officer
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of the corporation. He shall have the care and custody of the corporate funds
and securities of the corporation and shall disburse the funds of the
corporation as may be ordered from time to time by the President or the Board of
Directors. He shall keep full and accurate financial records for the
corporation and shall have such other powers and perform such other duties as
the President or the Board of Directors may from time to time prescribe.
Section 9. Other Officers. The Assistant Secretaries and Assistant
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Treasurers in the order of their seniority, unless otherwise determined by the
Board of Directors, shall, in the absence or disability of the Secretary or
Treasurer, perform the duties and exercise the powers of the Secretary and
Treasurer respectively. Such Assistant Secretaries and Assistant Treasurers
shall have such other powers and perform such other duties as the President or
the Board of Directors may from time to time prescribe. Any other officers
appointed by the Board of Directors shall hold office at the pleasure of the
Board of Directors and shall have such powers, perform such duties, and be
responsible to such other officers as the Board of Directors may from time to
time prescribe.
ARTICLE V
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Certificates and Ownership of Shares
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Section 1. Certificates. All shares of the corporation shall be
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represented by certificates. Each certificate shall contain on its face (a) the
name of the corporation, (b) a statement that the corporation is incorporated
under the laws of the State of Minnesota, (c) the name of the person to whom it
is issued, and (d) the number and class of shares, and the designation of the
series, if any, that the certificate represents. Certification shall also
contain any other information required by law or desired by the Board of
Directors, and shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by either the President, a Vice
President, the Secretary, or an Assistant Secretary. If a certificate is signed
(1) by a transfer agent or an assistant transfer agent or (2) by a transfer
clerk acting an behalf of the corporation and a registrar, the signature of any
such President, Vice President, Secretary, or Assistant Secretary may be a
facsimile. If a person signs or has a facsimile signature placed upon a
certificate while an Officer, transfer agent, or registrar of a corporation, the
certificate may be issued by the corporation, even if the person has ceased to
have that capacity before the certificate is issued, with the same effect as if
the person had that capacity at the date of its issue. All certificates for
shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued with the
number of shares and date of issue shall be entered on the stock transfer books
of the corporation. All certificates surrendered to the corporation or the
transfer agent for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed, or
mutilated certificate, a new one may he issued therefor upon such terms and
indemnity to the corporation as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation
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shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his legal representative who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the corporation,
and on surrender of such shares to the corporation or the transfer agent of the
corporation.
Section 3. Ownership. Except as otherwise provided in this Section, the
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person in whose name shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all purposes. The Board of
Directors, however, by a resolution approved by the affirmative vote of a
majority of directors then in office, may establish a procedure whereby a
shareholder may certify in writing to the corporation that all or a portion of
the shares registered in the name of the shareholder are held for the account of
one or more beneficial owners. Upon receipt by the corporation of the writing,
the persons specified as beneficial owners, rather than the actual shareholder,
shall be deemed the shareholders for such purposes as are permitted by the
resolution of the Board of Directors and are specified in the writing.
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ARTICLE VI
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Contracts, Loans, Checks, and Deposits
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Section 1. Contracts. The Board of Directors may authorize such officers
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or agents as they shall designate to enter into contracts or execute and deliver
instruments in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
Section 2. Loans. The corporation shall not lend money to, guarantee the
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obligation of, become a surety for, or otherwise financially assist any person
unless the transaction, or class of transactions to which the transaction
belongs, has been approved by the affirmative vote of a majority of directors
present, and (a) is in the usual and regular course of business of the
corporation, (b) is with, or for the benefit of, a related corporation, an
organization in which the corporation has a financial interest, an organization
with which the corporation has a business relationship, or an organization to
which the corporation has the power to make donations, (c) is with, or for the
benefit of, an officer or other employee of the corporation or a subsidiary,
including an officer or employee who is a director of the corporation or a
subsidiary, and may reasonably be expected, in the judgment of the Board of
Directors, to benefit the corporation, or (d) has been approved by the
affirmative vote of the holders of two-thirds of the outstanding shares,
including both voting and nonvoting shares.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders for
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the payment of money, notes, or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officers or agents of the
corporation as shall be designated and in such manner as shall be determined
from time to time by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise employed
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shall be deposited from time to time to the credit of the corporation in such
banks or other financial institutions as the Board of Directors may select.
ARTICLE VII
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Miscellaneous
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Section 1. Dividends. The Board of Directors may from time to time
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declare, and the corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law.
Section 2. Reserves. There may be set aside out of any funds of the
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corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, deem proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or for the purchase of additional property, or
for such other purpose as the directors shall deem to be consistent with the
interests of the corporation, and the directors may modify or abolish any such
reserve.
Section 3. Fiscal Year. The fiscal year of the corporation shall be such
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twelve-month period as may be set by a resolution of the Board of Directors,
provided, however, that the first fiscal year of the corporation may be a
shorter period if permitted by law and set by a resolution of the Board of
Directors.
Section 4. Amendments. Except as limited by the Articles of incorporation,
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these By-Laws may be altered or amended by the Board of Directors at any meeting
of directors to the full extent permitted by law, subject, however, to the power
of the shareholders of this corporation to alter or repeal such By-Laws.
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