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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) November 22, 1996
--------------------
OnTrak Systems, Inc.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
0-26222 77-0074302
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(Commission File Number) (I.R.S. Employer Identification No.)
1010 Rincon Circle, San Jose, CA 95131
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(Address of Principal Executive Offices)
(408) 577-1010
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(Registrant's Telephone Number, Including Area Code)
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On November 22, 1996, OnTrak Systems, Inc. (the "Company") completed the
change in its state of incorporation from California to Delaware by merging into
its wholly-owned-subsidiary, OnTrak Systems, Inc., a Delaware corporation
("OnTrak Delaware"). OnTrak Delaware will continue to operate the business of
the Company under the name OnTrak Systems, Inc. The reincorporation was
approved by the Company's shareholders at the Annual Meeting of Shareholders
held on November 21, 1996.
As a result of the merger, each outstanding share of the Company's Common
Stock was automatically converted into one share of OnTrak Delaware Common
Stock, $.0001 par value. Each stock certificate representing issued and
outstanding shares of the Company's Common Stock will continue to represent the
same number of shares of Common Stock of OnTrak Delaware. The OnTrak Delaware
Common Stock will continue to be traded on the Nasdaq National Market without
interruption under the symbol "ONTK." A description of the capital stock of
OnTrak Delaware is set forth in the Company's Proxy Statement dated October 21,
1996 for the Annual Meeting of Shareholders, under the caption "Proposal No. 2 -
Reincorporation in Delaware - The Charters and Bylaws of OnTrak California and
OnTrak Delaware," which description is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibits:
Exhibit 2.1 -- Agreement and Plan of Merger of OnTrak Systems, Inc., a
Delaware corporation, and OnTrak Systems, Inc., a
California corporation.
Exhibit 3.3 -- Certificate of Incorporation of OnTrak Systems, Inc., a
Delaware corporation
Exhibit 3.4 -- Bylaws of OnTrak Systems, Inc., a Delaware corporation
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ONTRAK SYSTEMS, INC.
By: PATRICK C. O'CONNOR
---------------------------------------------
Patrick C. O'Connor
Vice President and Chief Financial Officer
Dated: November 22, 1996
3
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AGREEMENT AND PLAN OF MERGER
OF ONTRAK SYSTEMS, INC.,
A DELAWARE CORPORATION,
AND
ONTRAK SYSTEMS, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of November 6, 1996 (the
"Agreement") is between OnTrak Systems, Inc., a Delaware corporation ("OnTrak
Delaware"), and OnTrak Systems, Inc., a California corporation ("OnTrak
California"). OnTrak Delaware and OnTrak California are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. OnTrak Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 30,000,000 shares
of "Common Stock," $0.0001 par value, and 3,000,000 shares of "Preferred Stock,"
$0.0001 par value. As of November 6, 1996, 100 shares of Common Stock were
issued and outstanding, all of which are held by OnTrak California.
B. OnTrak California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 30,000,000
shares of "Common Stock," no par value, and 3,000,000 shares of "Preferred
Stock," no par value. As of November 6, 1996, 7,530,915 shares of Common Stock
and no shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of OnTrak California has determined that, for
the purpose of effecting the reincorporation of OnTrak California in the State
of Delaware, it is advisable and in the best interests of OnTrak California that
OnTrak California merge with and into OnTrak Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of OnTrak Delaware and OnTrak
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, OnTrak Delaware and OnTrak California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
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I.
MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
OnTrak California shall be merged with and into OnTrak Delaware (the "Merger"),
the separate existence of OnTrak California shall cease and OnTrak Delaware
shall be, and is herein sometimes referred to as, the "Surviving Corporation,"
and the name of the Surviving Corporation shall be OnTrak Systems, Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions shall have been completed:
(A) This Agreement and the Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(B) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(C) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation Law
shall have been filed with the Secretary of State of the State of Delaware; and
(D) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the California General Corporation
Law shall have been filed with the Secretary of State of the State of
California.
The Merger shall become effective on November 22, 1996, or such later date
as the foregoing actions have been completed (the "Effective Date of the
Merger").
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of OnTrak California shall cease and OnTrak Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
OnTrak California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of OnTrak California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of OnTrak California in the same manner as if
OnTrak Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
2
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II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
OnTrak Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of OnTrak Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of OnTrak Delaware
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 ONTRAK CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of OnTrak California Common Stock, no par value, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.0001 par value, of the Surviving
Corporation.
3.2 ONTRAK CALIFORNIA OPTIONS. Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue, on the terms provided therein,
the OnTrak Systems, Inc. 401(k) Plan, stock option and stock purchase plans
(including the 1992 Stock Option Plan, as amended, the 1995 Director Stock
Option Plan, and the 1995 Employee Stock Purchase Plan) and all other employee
benefit plans of OnTrak California. Each outstanding and unexercised option to
purchase OnTrak California Common Stock shall become an option to purchase the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of OnTrak California Common Stock
issuable pursuant to any such option to purchase on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such OnTrak California option at the Effective Date of the
Merger.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the conversion or exercise of options equal to the
number of shares of OnTrak California Common Stock so reserved immediately prior
to the Effective Date of the Merger.
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3.3 ONTRAK DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, $.0001 par value, of OnTrak Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by OnTrak Delaware, the holder of such shares or any other person, be
cancelled and returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of OnTrak California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to The First National Bank of Boston, as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock into which the surrendered shares were
converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of OnTrak California Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of OnTrak California
Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or the Exchange Agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of OnTrak California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of OnTrak Delaware stock is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of the issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of OnTrak Delaware that such tax has been paid or is not payable.
IV.
GENERAL
4.1 COVENANTS OF ONTRAK DELAWARE. OnTrak Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
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(A) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
General Corporation Law;
(B) File any and all documents with the California Franchise Tax
Board necessary for the assumption by OnTrak Delaware of all of the franchise
tax liabilities of OnTrak California; and
(C) Take such other actions as may be required by the California
General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by OnTrak
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of OnTrak California such deeds and other instruments, and there shall
be taken or caused to be taken by it such further and other actions, as shall be
appropriate or necessary in order to vest or perfect in or conform of record or
otherwise by OnTrak Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of OnTrak California and otherwise to carry out the purposes of this
Agreement, and on or after the Effective Date the officers and directors of
OnTrak Delaware are fully authorized in the name and on behalf of OnTrak
California or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either OnTrak California or OnTrak
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of OnTrak California or by the sole stockholder of OnTrak Delaware,
or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not: (1)
alter or change the amount or kind of shares, securities, cash, property and/or
rights to be received in exchange for or on conversion of all or any of the
shares of any class or series thereof of such Constituent Corporation, (2) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of such Constituent
Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is located at 1013 Centre Road, in the City of
Wilmington, Delaware 19805, County of New Castle, and The Prentice-Hall
Corporation System, Inc. is the registered agent of the Surviving Corporation at
such address.
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4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 1010 Rincon Circle,
San Jose, California 95131 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of OnTrak Delaware and OnTrak California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
ATTEST: ONTRAK SYSTEMS, INC.,
a Delaware corporation
JERAULD J. CUTINI By: JAMES W. BAGLEY
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Jerauld J. Cutini, Secretary James W. Bagley
Chairman and
Chief Executive Officer
ATTEST: ONTRAK SYSTEMS, INC.,
a California corporation
JERAULD J. CUTINI By: JAMES W. BAGLEY
- ----------------------------- -------------------------
Jerauld J. Cutini, Secretary James W. Bagley
Chairman and
Chief Executive Officer
6
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CERTIFICATE OF INCORPORATION
OF
ONTRAK SYSTEMS, INC.
The undersigned, for purposes of incorporating and organizing a corporation
under the General Corporation Law of the State of Delaware, does hereby certify
as follows:
FIRST: The name of the corporation (which is hereinafter referred to as
the "Corporation") is OnTrak Systems, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, Zip Code 19805. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "GCL").
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Thirty-Three Million (33,000,000),
consisting of Three Million (3,000,000) shares of Preferred Stock, $.0001 par
value (hereinafter referred to as "Preferred Stock"), and Thirty Million
(30,000,000) shares of Common Stock, $.0001 par value (hereinafter referred to
as "Common Stock").
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of
shares of Preferred Stock in one or more series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter referred to
as "Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations and restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to, determination
of the following:
(a) The designation of the series, which may be by distinguishing number,
letter or title.
(b) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation)
<PAGE>
increase or decrease (but not below the number of shares thereof then
outstanding). If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the Preferred Stock Designation originally fixing the number
of shares of such series.
(c) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series.
(d) Whether that series shall have voting rights and, if so, the terms of
such voting rights, or if such shares shall have no voting rights.
(e) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine.
(f) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates.
(g) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund.
(h) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series.
(i) Any other relative rights, preferences and limitations of that series.
FIFTH: The name of the incorporator of the Corporation is Patrick C.
O'Connor, whose mailing address is c/o OnTrak Systems, Inc., 1010 Rincon Circle,
San Jose, California 95131.
SIXTH: In furtherance of, and not in limitation of, the powers conferred
by law, the Board of Directors of the Corporation is expressly authorized and
empowered to make, adopt, amend and repeal the Bylaws of the Corporation,
subject to the power of the stockholders of the Corporation entitled to vote
with respect thereto to adopt, alter, amend and repeal Bylaws made by the Board
of Directors.
SEVENTH: The number of directors of the Corporation shall be fixed by the
Bylaws of the Corporation and may be increased or decreased from time to time in
such a manner as may be prescribed by the Bylaws.
2
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EIGHTH: The election of directors of the Corporation need not be by
written ballot unless a stockholder demands election by written ballot at a
meeting of stockholders and before voting begins or unless the Bylaws of the
Corporation shall so provide.
NINTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the GCL as the same exists or may
hereafter be amended. Neither any amendment, modification or repeal of the
foregoing sentence, nor the adoption of any provision inconsistent with this
Article Ninth, shall adversely affect any right or protection of a director of
the Corporation under this Article Ninth in respect of any act or omission
occurring prior to the time of such amendment, modification, repeal, or adoption
of an inconsistent provision.
TENTH: The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this
Article Tenth; PROVIDED, HOWEVER, that any amendment or repeal of Article Ninth
of this Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal; and PROVIDED, FURTHER that no Preferred Stock
Designation shall be amended after the issuance of any shares of the series of
Preferred Stock created thereby, except in accordance with the terms of such
Preferred Stock Designation and the requirements of applicable law.
ELEVENTH: Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) outside of the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws of the Corporation.
TWELFTH: The powers of the incorporator are to terminate upon the filing
of this Certificate of Incorporation with the Secretary of State of the State of
Delaware. The name and mailing address of the person who is to serve as the
initial director of the Corporation (with the exact number of directors to be as
specified in the Bylaws) until the first annual meeting of stockholders of the
Corporation, or until his successor is elected and qualified, is:
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Patrick C. O'Connor
c/o OnTrak Systems, Inc.
1010 Rincon Circle
San Jose, CA 95131
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed on this 24th day of October,
1996.
PATRICK C. O'CONNOR
---------------------------------
Patrick C. O'Connor, Incorporator
4
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BYLAWS
OF
ONTRAK SYSTEMS, INC.,
A DELAWARE CORPORATION
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I CORPORATE OFFICES . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Registered Office . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Other Offices.. . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II MEETINGS OF STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . .1
2.1 Place of Meetings.. . . . . . . . . . . . . . . . . . . . . . .1
2.2 Annual Meetings.. . . . . . . . . . . . . . . . . . . . . . . .1
2.3 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . .1
2.4 Notice of Stockholders' Meetings. . . . . . . . . . . . . . . .2
2.5 Manner of Giving Notice; Affidavit of Notice. . . . . . . . . .2
2.6 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2.7 Adjourned Meeting; Notice.. . . . . . . . . . . . . . . . . . .3
2.8 Conduct of Business.. . . . . . . . . . . . . . . . . . . . . .3
2.9 Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.10 Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . .3
2.11 Stockholder Action by Written Consent Without a Meeting.. . . .4
2.12 Record Date for Stockholder Notice. . . . . . . . . . . . . . .4
2.13 Proxies.. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.14 List of Stockholders Entitled to Vote.. . . . . . . . . . . . .5
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.1 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.2 Number of Directors.. . . . . . . . . . . . . . . . . . . . . .6
3.3 Election, Qualification and Term of Office of Directors.. . . .6
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TABLE OF CONTENTS
(continued)
Page
----
3.4 Resignation and Vacancies.. . . . . . . . . . . . . . . . . . .6
3.5 Place of Meetings; Meetings by Telephone. . . . . . . . . . . .7
3.6 Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . .7
3.7 Special Meetings; Notice. . . . . . . . . . . . . . . . . . . .7
3.8 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.9 Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . .8
3.10 Board Action by Written Consent Without a Meeting.. . . . . . .8
3.11 Fees and Compensation of Directors. . . . . . . . . . . . . . .9
3.12 Approval of Loans to Officers.. . . . . . . . . . . . . . . . .9
3.13 Removal of Directors. . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Committees of Directors.. . . . . . . . . . . . . . . . . . . .9
4.2 Committee Minutes.. . . . . . . . . . . . . . . . . . . . . . 10
4.3 Meetings and Action of Committees.. . . . . . . . . . . . . . 10
ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Appointment of Officers.. . . . . . . . . . . . . . . . . . . 11
5.3 Subordinate Officers. . . . . . . . . . . . . . . . . . . . . 11
5.4 Removal and Resignation of Officers.. . . . . . . . . . . . . 11
5.5 Vacancies in Offices. . . . . . . . . . . . . . . . . . . . . 11
5.6 Chairman of the Board.. . . . . . . . . . . . . . . . . . . . 11
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TABLE OF CONTENTS
(continued)
Page
----
5.7 President.. . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.8 Vice Presidents.. . . . . . . . . . . . . . . . . . . . . . . 12
5.9 Secretary.. . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.10 Chief Financial Officer.. . . . . . . . . . . . . . . . . . . 13
5.11 Assistant Secretary.. . . . . . . . . . . . . . . . . . . . . 13
5.12 Assistant Treasurer.. . . . . . . . . . . . . . . . . . . . . 13
5.13 Authority and Duties of Officers. . . . . . . . . . . . . . . 13
5.14 Representation of Shares of Other Corporations. . . . . . . . 14
ARTICLE VI INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 Right to Indemnification. . . . . . . . . . . . . . . . . . . 14
6.2 Prepayment of Expenses. . . . . . . . . . . . . . . . . . . . 14
6.3 Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4 Nonexclusivity of Rights. . . . . . . . . . . . . . . . . . . 15
6.5 Other Sources.. . . . . . . . . . . . . . . . . . . . . . . . 15
6.6 Amendment or Repeal.. . . . . . . . . . . . . . . . . . . . . 15
6.7 Other Indemnification and Prepayment of Expenses. . . . . . . 15
ARTICLE VII RECORDS AND REPORTS. . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Maintenance and Inspection of Records.. . . . . . . . . . . . 15
7.2 Inspection by Directors.. . . . . . . . . . . . . . . . . . . 16
7.3 Annual Statement to Stockholders. . . . . . . . . . . . . . . 16
ARTICLE VIII GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . 16
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TABLE OF CONTENTS
(continued)
Page
----
8.1 Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.2 Execution of Corporate Contracts and Instruments. . . . . . . 17
8.3 Stock Certificates; Partly Paid Shares. . . . . . . . . . . . 17
8.4 Special Designation on Certificates.. . . . . . . . . . . . . 17
8.5 Lost Certificates.. . . . . . . . . . . . . . . . . . . . . . 18
8.6 Construction; Definitions.. . . . . . . . . . . . . . . . . . 18
8.7 Dividends.. . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.8 Fiscal Year.. . . . . . . . . . . . . . . . . . . . . . . . . 18
8.9 Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.10 Transfer of Stock.. . . . . . . . . . . . . . . . . . . . . . 19
8.11 Stock Transfer Agreements.. . . . . . . . . . . . . . . . . . 19
8.12 Registered Stockholders.. . . . . . . . . . . . . . . . . . . 19
ARTICLE IX AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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BYLAWS
OF
ONTRAK SYSTEMS, INC.,
A DELAWARE CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE. The registered office of the corporation shall be
in the City of Wilmington, County of New Castle, State of Delaware. The name of
the registered agent of the corporation at such location is The Prentice-Hall
Corporation System, Inc.
1.2 OTHER OFFICES. The board of directors may at any time establish other
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the board of
directors. In the absence of any such designation, stockholders' meetings shall
be held at the registered office of the corporation.
2.2 ANNUAL MEETINGS. The annual meeting of stockholders shall be held
each year on a date and at a time designated by the board of directors. At the
meeting, directors shall be elected and any other proper business may be
transacted.
2.3 SPECIAL MEETINGS. A special meeting of the stockholders may be called
at any time by the board of directors, the chairman of the board, the president,
or by one or more stockholders holding shares in the aggregate entitled to cast
not less than ten percent (10%) of the votes at that meeting.
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If a special meeting is called by any person or persons other than the
board of directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of the board, the president or the
secretary of the corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The officer receiving the
request shall cause notice to be promptly given to the stockholders entitled to
vote, in accordance with the provisions of Sections 2.4 and 2.5 of this
Article II, that a meeting will be held at the time requested by the person or
persons who called the meeting, not less than thirty-five (35) nor more than
sixty (60) days after the receipt of the request. If the notice is not given
within twenty (20) days after the receipt of the request, the person or persons
requesting the meeting may give the notice. Nothing contained in this paragraph
of this Section 2.3 shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the board of directors
may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of
stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting. The notice shall specify 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.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written notice of any
meeting of stockholders, if mailed, is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the corporation. An affidavit of the secretary or an
assistant secretary or of the transfer agent of the corporation that the notice
has been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
2.6 QUORUM. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then either (i) the chairman of the meeting or (ii)
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have 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 is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed.
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When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws or of the Certificate of
Incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of the question.
2.7 ADJOURNED MEETING; NOTICE. When a meeting is adjourned to another
time or place, unless these bylaws otherwise require, notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business that might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.8 CONDUCT OF BUSINESS. The chairman of any meeting of stockholders
shall determine the order of business and the procedures at the meeting,
including such matters as the regulation of the manner of voting and the conduct
of business.
2.9 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of
Section 2.12 of these bylaws, subject to the provisions of Sections 217 and 218
of the General Corporation Law of Delaware (relating to voting rights of
fiduciaries, pledgors and joint owners of stock and to voting trusts and other
voting agreements). Voting at meetings of stockholders need not be by written
ballot and, unless otherwise required by law, need not be conducted by
inspectors of election unless so determined by the holders of shares of stock
having a majority of the votes which could be cast by the holders of all
outstanding shares of stock entitled to vote thereon which are present in person
or by proxy at such meeting.
Except as may be otherwise provided in the certificate of incorporation,
each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect.
2.10 WAIVER OF NOTICE. Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of the certificate of
incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
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
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the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless
otherwise provided in the certificate of incorporation, any action required by
this article to be taken at any annual or special meeting of stockholders of the
corporation, or any action that may be taken at any annual or special meeting of
such stockholders, may be taken without a meeting, without prior notice, and
without a vote if a consent or consents in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
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 as provided under Section 228(d) of the General
Corporation Law of Delaware. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE. 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, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the board of directors and
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(i) The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next
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preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held.
(ii) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is delivered to the corporation.
(iii) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
2.13 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by a
written proxy, signed by the stockholder and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewritten, telegraphic or facsimile transmission or
otherwise) by the stockholder or the stockholder's attorney-in-fact. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(e) of the General Corporation Law of
Delaware.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE. 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, and 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
specified 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. Such list shall presumptively
determine the identify of the stockholders entitled to vote at the meeting and
the number of shares held by each of them.
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ARTICLE III
DIRECTORS
3.1 POWERS. Subject to the provisions of the General Corporation Law of
Delaware and any limitation in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
3.2 NUMBER OF DIRECTORS. The board of directors shall consist of not less
than four (4) nor more than seven (7) members, with the exact number thereof to
be determined by resolution of the board of directors. The exact number of
directors shall initially be five (5), until changed by a resolution of the
board of directors or by an amendment to this bylaw.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS. Except as
provided in Section 3.4 of these bylaws, directors shall be elected at each
annual meeting of stockholders to hold office until the next annual meeting.
Directors need not be stockholders unless so required by the certificate of
incorporation or these bylaws, wherein other qualifications for directors may be
prescribed. Each director, including a director elected to fill a vacancy,
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal or death. Elections of directors need not be by
written ballot.
3.4 RESIGNATION AND VACANCIES. Any director may resign at any time upon
written notice to the attention of the secretary of the corporation. When one
or more directors so resigns and the resignation is effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office as provided in this section in the
filling of other vacancies.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
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(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or any executor, administrator, trust or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the whole board
(as constituted immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. The board of directors of
the corporation may hold meetings, both regular and special, either within or
outside the State of Delaware. Unless otherwise restricted by the certificate
of incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 REGULAR MEETINGS. Regular meetings of the board of directors may be
held at such times and at such places as shall from time to time be determined
by the board, and if so determined notices thereof need not be given.
3.7 SPECIAL MEETINGS; NOTICE. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board, the president, or any two (2) directors.
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Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
facsimile, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. If the notice is
mailed, it shall be deposited in the United States mail at least four (4) days
before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or by facsimile, it shall be delivered personally or
by telephone or to the facsimile telephone number at least twenty-four (24)
hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The notice need not
specify the purpose or the place of the meeting, if the meeting is to be held at
the principal executive office of the corporation.
3.8 QUORUM. At all meetings of the board of directors, a majority of the
authorized number of directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the board of
directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.9 WAIVER OF NOTICE. Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of the certificate of
incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
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. Neither the business to be transacted at, nor other purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice unless so required
by the certificate of incorporation or these bylaws.
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless otherwise
restricted by the certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the board of directors, or
of any committee thereof, may be taken without a meeting if all members of the
board or
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committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the board or committee.
3.11 FEES AND COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the certificate of incorporation or these bylaws, the board of directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
3.12 APPROVAL OF LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiaries, including any officer or employee who
is a director of the corporation or its subsidiaries, whenever, in the judgment
of the directors, such loan, guaranty or assistance may reasonably be expected
to benefit the corporation. The loan, guaranty or other assistance may be with
or without interest and may be unsecured, or secured in such manner as the board
of directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
3.13 REMOVAL OF DIRECTORS. Unless otherwise restricted by statute, by the
certificate of incorporation or by these bylaws, any director or the entire
board of directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors. No
reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS. The board of directors may, by resolution
passed by a majority of the whole board, designate one or more committees, with
each committee to consist of one or more of the directors of the corporation.
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 the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or
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they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors or in the bylaws of the corporation, 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, and may authorize the
seal of the corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (i) approve, adopt or
recommend to the stockholders any action or matter that the Delaware General
Corporation Law expressly requires be submitted to stockholders for approval, or
(ii) adopt, amend or repeal bylaws of the corporation; and, unless the board
resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, 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 pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 COMMITTEE MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of
Article III of these bylaws, Section 3.5 (place of meetings and meetings by
telephone), Section 3.6 (regular meetings), Section 3.7 (special meetings and
notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and Section 3.10
(action without a meeting), with such changes in the context of those bylaws as
are necessary to substitute the committee and its members for the board of
directors and its members; provided, however, that the time of regular meetings
of committees may be determined either by resolution of the board of directors
or by resolution of the committee, that special meetings of committees may also
be called by resolution of the board of directors and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of the corporation shall be a president, a
secretary, and a chief financial officer. The corporation may also have, at the
discretion of the board of directors, a chairman of the board, one or more vice
presidents, one or more assistant vice presidents, one or more assistant
secretaries, and one or more assistant
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treasurers, and any such other officers as may be appointed in accordance with
the provisions of Section 5.3 of these bylaws. Any number of offices may be
held by the same person.
5.2 APPOINTMENT OF OFFICERS. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Sections 5.3
or 5.5 of these bylaws, shall be appointed by the board of directors, subject to
the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS. The board of directors may appoint, or empower
the president to appoint, such other officers and agents as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in these bylaws or as
the board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
board of directors at any regular or special meeting of the board or, except in
the case of an officer chosen by the board of directors, by any officer upon
whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.6 CHAIRMAN OF THE BOARD. The chairman of the board, or the president if
there is no chairman of the board, shall preside at all meetings of the
stockholders and of the board of directors. The chairman of the board or the
president, as the case may be, shall be responsible for the general management
of the affairs of the corporation and shall perform all duties incidental to his
office which may be required by law and all such other duties as are properly
required of him by the board of directors. Except where by law the signature of
the president is required, the chairman of the board shall possess the same
power as the president to sign all certificates, contracts, and other
instruments of the corporation which may be authorized by the board of
directors. The chairman or the president, as the case may be, shall make
reports to the board of
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directors and the stockholders, and shall perform all such other duties as are
properly required of him by the board of directors. The chairman or the
president shall see that all orders and resolutions of the board of directors
and of any committee thereof are carried into effect.
5.7 PRESIDENT. The president shall act in a general executive capacity
and oversee the administration and operation of the corporation's business and
general supervision of its policies and affairs. The president shall, in the
absence of or because of the inability to act of the chairman of the board,
perform all duties of the chairman of the board and preside at all meetings of
stockholders and of the board of directors. The president may sign, alone or
with the secretary, or an assistant secretary, or any other proper officer of
the corporation authorized by the board of directors, certificates, contracts,
and other instruments of the corporation as authorized by the board of
directors.
5.8 VICE PRESIDENTS. In the absence or disability of the president, the
vice presidents, if any, in order of their rank as fixed by the board of
directors or, if not ranked, a vice president designated by the board of
directors, shall perform all the duties of the president and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
board of directors, these bylaws, the president or the chairman of the board.
5.9 SECRETARY. The secretary shall keep or cause to be kept, at the
principal executive office of the corporation or such other place as the board
of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show
the time and place of each meeting, whether regular or special (and, if special,
how authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
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The secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the board of directors required to be given by law or by
these bylaws. He shall keep the seal of the corporation, if one be adopted, in
safe custody and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by these bylaws.
5.10 CHIEF FINANCIAL OFFICER. The chief financial officer shall be the
treasurer of the corporation. The chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all his
transactions as chief financial officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
5.11 ASSISTANT SECRETARY. The assistant secretary, or, if there is more
than one, the assistant secretaries in the order determined by the stockholders
or board of directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the secretary or in the event of his
or her inability or refusal to act, perform the duties and exercise the powers
of the secretary and shall perform such other duties and have such other powers
as may be prescribed by the board of directors or these bylaws.
5.12 ASSISTANT TREASURER. The assistant treasurer, or, if there is more
than one, the assistant treasurers, in the order determined by the stockholders
or board of directors (or if there be no such determination, then in the order
of their election), shall, in the absence of the chief financial officer or in
the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the chief financial officer and shall perform such other
duties and have such other powers as may be prescribed by the board of directors
or these bylaws.
5.13 AUTHORITY AND DUTIES OF OFFICERS. In addition to the foregoing
authority and duties, all officers of the corporation shall respectively have
such authority and perform such duties in the management of the business of the
corporation as may be designated from time to time by the board of directors or
the stockholders.
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5.14 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairman of the
board, the president, the chief financial officer, the secretary of this
corporation, or any other person authorized by the board of directors or the
president, is authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
ARTICLE VI
INDEMNIFICATION
6.1 RIGHT TO INDEMNIFICATION. The corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (an "Indemnitee") who was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director of the corporation or,
while a director or officer of the corporation, is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in Section 6.3, the corporation shall be required to
indemnify an Indemnitee in connection with a proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such proceeding (or
part thereof) by the Indemnitee was authorized by the board of directors of the
corporation.
6.2 PREPAYMENT OF EXPENSES. The corporation shall pay the expenses
(including attorneys' fees) incurred by an Indemnitee in defending any
proceeding in advance of its final disposition, provided, however, that, to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Indemnitee to repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be indemnified under this
Article VI or otherwise.
6.3 CLAIMS. If a claim for indemnification or payment of expenses under
this Article VI is not paid in full within sixty days after a written claim
therefor by the Indemnitee has been received by the corporation, the Indemnitee
may file suit to
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recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the corporation shall have the burden of proving that the Indemnitee is
not entitled to the requested indemnification or payment of expenses under
applicable law.
6.4 NONEXCLUSIVITY OF RIGHTS. The rights conferred on any Indemnitee by
this Article VI shall not be exclusive of any other rights which such Indemnitee
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, these bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
6.5 OTHER SOURCES. The corporation's obligation, if any, to indemnify or
to advance expenses to any Indemnitee who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Indemnitee may collect as indemnification or advancement of expenses from
such other corporation, partnership, joint venture, trust, enterprise or
nonprofit enterprise.
6.6 AMENDMENT OR REPEAL. Any repeal or modification of the foregoing
provisions of this Article VI shall not adversely affect any right or protection
hereunder of any Indemnitee in respect of any act or omission occurring prior to
the time of such repeal or modification.
6.7 OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES. This Article VI
shall not limit the right of the corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Indemnitees when and as authorized by appropriate corporate action.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS. The corporation shall, either
at its principal executive office or at such place or places as designated by
the board of directors, keep a record of its stockholders listing their names
and addresses and the number and class of shares held by each stockholder, a
copy of these bylaws as amended to date, accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's
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interest as a stockholder. In every instance where an attorney or other agent
is the person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing that authorizes the
attorney or other agent so to act on behalf of the stockholder. The demand
under oath shall be directed to the corporation at its registered office in
Delaware or at its principal place of business.
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 specified 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.
7.2 INSPECTION BY DIRECTORS. Any director shall have the right to examine
the corporation's stock ledger, a list of its stockholders, and its other books
and records for a purpose reasonably related to his position as a director. The
Court of Chancery is hereby vested with the exclusive jurisdiction to determine
whether a director is entitled to the inspection sought. The Court may
summarily order the corporation to permit the director to inspect any and all
books and records, the stock ledger, and the stock list and to make copies or
extracts therefrom. The Court may, in its discretion, prescribe any limitations
or conditions with reference to the inspection, or award such other and further
relief as the Court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS. The board of directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS. From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts, other
orders for payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only the persons so
authorized shall sign or endorse those instruments.
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8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. The board of
directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES. The shares of the corporation
shall be represented by certificates, provided that the board of directors of
the corporation may provide by resolution or resolutions that some or all of any
or all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the board of directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of, the corporation by
the chairman or vice-chairman of the board of directors, or the president or
vice president, and by the chief financial officer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation representing the
number of shares registered in certificate form. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES. If the corporation is authorized
to issue more than one class of stock or more than one series of any class, then
the powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or
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summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES. Except as provided in this Section 8.5, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation and cancelled at
the same time. The corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the corporation may require
the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the Delaware
General Corporation Law shall govern the construction of these bylaws. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
8.7 DIVIDENDS. The directors of the corporation, subject to any
restrictions contained in (i) the General Corporation Law of Delaware or
(ii) the corporation's certificate of incorporation, may declare and pay
dividends upon the shares of its capital stock. Dividends may be paid in cash,
in property, or in shares of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds of
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not
be limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 FISCAL YEAR. The fiscal year of the corporation shall be fixed by
resolution of the board of directors and may be changed by the board of
directors.
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8.9 SEAL. The corporation may adopt a corporate seal, which shall be
adopted and which may be altered by the board of directors, and may use the same
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
8.10 TRANSFER OF STOCK. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction in its books.
8.11 STOCK TRANSFER AGREEMENTS. The corporation shall have power to enter
into and perform any agreement with any number of stockholders of any one or
more classes of stock of the corporation to restrict the transfer of shares of
stock of the corporation of any one or more classes owned by such stockholders
in any manner not prohibited by the General Corporation Law of Delaware.
8.12 REGISTERED STOCKHOLDERS. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, shall be entitled to
hold liable for calls and assessments the person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of another person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended or
repealed by a majority of the stockholders entitled to vote; provided, however,
that the corporation may, in its certificate of incorporation, confer the power
to adopt, amend or repeal bylaws upon the directors. The fact that such power
has been so conferred upon the directors shall not divest the stockholders of
the power, nor limit their power to adopt, amend or repeal bylaws.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
ONTRAK SYSTEMS, INC., A DELAWARE CORPORATION
CERTIFICATE BY SECRETARY OF ADOPTION BY BOARD OF DIRECTORS
The undersigned hereby certifies that he is the duly elected, qualified,
and acting Secretary of OnTrak Systems, Inc., a Delaware corporation, and that
the foregoing bylaws, comprising twenty (20) pages, were adopted as the Bylaws
of the corporation as of October 25, 1996, by the Board of Directors of the
corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed
the corporate seal as of the 1st day of November, 1996.
JERAULD J. CUTINI
----------------------------
Jerauld J. Cutini, Secretary
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