COMPREHENSIVE CARE CORPORATION
(a Delaware corporation)
RESTATED BYLAWS
Adopted March 24, 1994
As Amended January 18, 1994
ARTICLE I
OFFICES
Section 1.01 Registered office. The registered
office of Comprehensive Care Corporation (hereinafter called
the "Corporation") in the State of Delaware shall be at 229
South State Street, City of Dover, County of Kent, and the
name of the registered agent in charge thereof shall be The
Prentice-Hall Corporation Systems, Inc.
Section 1.02 Principal Office. The principal
office for the transaction of the business of the Corporation
shall be at 16305 Swingley Ridge Drive, Suite 100,
Chesterfield, Missouri 63017. The Board of Directors
(hereinafter called the "Board") is hereby granted full power
and authority to change said principal office from one
location to another.
Section 1.03 Other Offices. The Corporation may
also have an office or offices at such other place or places,
either within or without the State of Delaware, as the Board
may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 Annual Meetings. Annual meetings
of the stockholders of the Corporation for the purpose of
electing directors and for the transaction of such other
proper business as may come before such meetings may be held
at such time, date and place as the Board shall determine by
resolution.
Section 2.02 Special Meetings. Special meetings
of the Corporation's stockholders for the transaction of any
proper business may be called at any time by the Board, the
Chairman of the Board, the Vice Chairman, or by the
President.
Section 2.03 Place of Meetings. All meetings of
the stockholders shall be held at such places, within or
without the State of Delaware, as may from time to time be
designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of
notice thereof.
Section 2.04 Notice of Meetings. Except as
otherwise required by law, notice of each meeting of the
stockholders, whether annual or special, shall be given not
less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of record entitled to
vote at such meeting by delivering a typewritten or printed
notice thereof to him personally, or by depositing such
notice in the United States mail, in a postage prepaid
envelope, directed to him at his post office address
furnished by him to the Secretary of the Corporation for such
purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his post office address
last known to the Secretary, or by transmitting a notice
thereof to him at such address by telegraph, cable,
telecopier or wireless. Except as otherwise expressly
required by law, no publication of any notice of a meeting of
the stockholders shall be required. Every notice of a
meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting,
shall also state the purpose or purposes for which the
meeting is called. Notice of any meeting of stockholders
shall not be required to be given to any stockholder who
shall have waived such notice and such notice shall be deemed
waived by any stockholder who shall attend such meeting in
person or by proxy, except a stockholder who shall attend
such 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.
Except as otherwise expressly required by law, notice of any
adjourned meeting of the stockholders need not be given if
the time and place thereof are announced at the meeting at
which the adjournment is taken. Whenever notice is required
to be given to any stockholder to whom (i) notice of two (2)
consecutive annual meetings, and all notices of meetings or
of the taking of action by written consent at a meeting to
such person between such two (2) consecutive annual meetings,
or (ii) all, and at least two (2) payments (if sent by First
Class Mail) of dividends or interest on securities during a
twelve-month period, have been mailed addressed to such
person at his address as shown on the records of the
Corporation and have been returned undeliverable, the giving
of such notice to such person shall not be required. Any
action or meeting which shall be taken or held without notice
to such person shall have the same force and effect as if
such notice had been duly given. If any person shall deliver
to the Corporation a written notice setting forth his then
current address, the requirement that notice be given to such
person shall be reinstated.
Section 2.05 Notice of Stockholder Business at
Annual Meeting. At an annual meeting of the stockholders,
only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought
before an annual meeting business must be (a) specified in
the notice of meeting (or any supplement thereto) given by or
at the direction of the Board, (b) otherwise properly brought
before the meeting by or at the direction of the Board, or
(c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal
executive offices of the Corporation, not less than sixty
(60) days nor more than ninety (90) days prior to the
meeting; provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later
than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the business
desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting,
(b) the name and address, as they appear on the books of the
Corporation, of the stockholder proposing such business, (c)
the class and number of shares of stock of the Corporation
which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section
2.05. The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business
was not properly brought before the meeting and in accordance
with the provisions of this Section 2.05, and if he should so
determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 2.06 Notice of Stockholder Nominees for
Director. Only persons who are nominated in accordance with
the procedures set forth in this Section 2.06 shall be
eligible for election as directors. Nominations of persons
for election to the Board of the Corporation may be made at
a meeting of stockholders by or at the direction of the Board
or by any stockholder of the Corporation entitled to vote for
the election of directors at the meeting who complies with
the notice procedures set forth in this Section 2.06. Such
nominations, other than those made by or at the direction of
the Board, shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than
ninety (90) days prior to the meeting; provided, however,
that in the event that less than seventy (70) days, notice or
prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of
business on the tenth (10th) day following the day on which
such notice of the date of the meeting was mailed or such
public disclosure was made. Such stockholder's notice shall
set forth (a) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, (i) the
name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of stock of the
Corporation which are beneficially owned by such person and
(iv) any other information relating to such person that is
required to be disclosed in solicitations of proxies for
reelection of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including without limitation such
person's written consent to being named in the proxy
statement as a nominee and to serving as a director if
elected) ; and (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the books of the
Corporation, of such stockholder, and (ii) the class and
number of shares of stock of the Corporation which are
beneficially owned by such stockholder. At the request of
the Board any person nominated by the Board for election as
a director shall furnish to the Secretary of the Corporation
that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. The
chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the
Bylaws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be
disregarded.
Section 2.07 Quorum. Except in the case of any meeting
for the election of directors summarily ordered as provided
by law, the holders of record of a majority in voting
interest of the shares of stock of the Corporation entitled
to be voted thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at any
meeting of the stockholders of the Corporation or any
adjournment thereof. In the absence of a quorum at any
meeting or any adjournment thereof, a majority in voting
interest of the stockholders present in person or by proxy
and entitled to vote thereat or, in the absence therefrom of
all the stockholders, any officer entitled to preside at, or
to act as secretary of, such meeting may adjourn such meeting
from tune to time. At any such adjourned meeting at which a
quorum is present any business may be transacted which might
have been transacted at the meeting as originally called.
Section 2.08 Voting.
(a) Each stockholder shall, at each
meeting of the stockholders, be entitled to vote in person or
by each share or fractional share of the stock of the proxy
Corporation having voting rights on the matter in question
and which shall have been held by him and registered in his
name on the books of the Corporation:
(i) On the date fixed pursuant
to Section 6.05 of the Bylaws as the record date for the
determination of stockholders entitled to notice of and to
vote at such meeting, or
(ii) If no such record date shall
have been so fixed, then (a) at the close of business on the
day next preceding the day on which notice of the of the
meeting shall be given or (b) if notice of the meeting shall
be waived, at the close of business on the day next preceding
the day on which the meeting shall be held.
(b) Shares of its own stock belonging
to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of directors
in such other corporation is held, directly or indirectly, by
the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the
Corporation in a fiduciary capacity shall be entitled to vote
such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books
of the Corporation he shall have expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or
his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two
(2) or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by
entirety or otherwise, or with respect to which two (2) or
more persons have the same fiduciary relationship, shall be
voted in accordance with the provisions of the General
Corporation Law of the State of Delaware.
(c) Any such voting rights may be
exercised by the stockholder entitled thereto in person or by
his proxy appointed by an instrument in writing, subscribed
by such stockholder or by his attorney thereunto authorized
and delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after
three (3) years from its date unless said proxy shall provide
for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless he shall in
writing so notify the secretary of the meeting prior to the
voting of the proxy. At any meeting of the stockholders all
matters, except as otherwise provided in the Certificate of
Incorporation, in the Bylaws or by law, shall be decided by
the vote of a majority in voting interest of the stockholders
present in person or by proxy and entitled to vote thereat
and thereon, a quorum being present. The vote at any meeting
of the stockholders on any question need not be by ballot,
unless so directed by the chairman of the meeting. On a vote
by ballot each ballot shall be signed by the stockholder
voting, or by his proxy, if there be such proxy, and it shall
state the number of shares voted.
Section 2.09 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) days
before every meeting of the 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 entire duration thereof,
and may be inspected by any stockholder who is present.
Section 2.10 Judges. If at any meeting of the
stockholders a vote by written ballot shall be taken on any
question, the chairman of such meeting may appoint a judge or
judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute
the duties of a judge at such meeting with strict
impartiality and according to the best of his ability. Such
judges shall decide upon the qualification of the voters and
shall report the number of shares represented at the meeting
and entitled to vote on such question, shall conduct and
accept the votes, and, when the voting is completed, shall
ascertain and report the number of shares voted respectively
for and against the question. Reports of judges shall be in
writing and subscribed and delivered by them to the Secretary
of the Corporation. The judges need not be stockholders of
the Corporation, and any officer of the Corporation may be a
judge on any question other than a vote for or against a
proposal in which he shall have a material interest.
Section 2.11 Stockholder Action By Written Consent
Without A Meeting.
(a) Any action which may be taken at
any annual or special meeting of stockholders may be taken
without a meeting and without prior notice, if a consent in
writing, setting forth the action so taken, is signed by the
holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize
or take that action at a meeting at which all shares entitled
to vote on that action were present and voted. All such
consents shall be filed with the Secretary of the Corporation
and shall be maintained in the corporate records. Any
stockholder giving a written consent, or the stockholder's
proxy holders, or a transferee of the shares or a personal
representative of the stockholder or their respective proxy
holders, may revoke the consent by a writing received by the
Secretary before written consents of the number of shares
required to authorize the proposed action have been filed
with the Secretary of the Corporation.
(b) If, in the case of an action taken
pursuant to Section 2.11(a), the consents of all stockholders
entitled to vote have not been solicited in writing, or if
the unanimous written consent of all such stockholders shall
not have been received, the Secretary of the Corporation
shall give prompt notice of the corporate action approved by
the stockholders without a meeting. This notice shall be
given in the manner specified in Section 2.04. In the case of
the approval of any (i) amendment to the Certificate of
Incorporation of the Corporation; (ii) election to
voluntarily wind up and dissolve the Corporation; or (iii)
distribution in dissolution other than in accordance with the
rights of holders of outstanding preferred stock as set forth
in the Certificate of Incorporation of the Corporation, the
notice shall be given at least ten (10) days before the
consummation of any action authorized by that approval.
(c) Cumulative voting shall apply to any
proposed election of directors by written consent of
stockholders to fill vacancies and/or newly created
directorships in the Board of Directors of the Corporation,
so that each stockholder shall be entitled to cast by written
consent as many votes as shall equal the number of votes
which (except for this provision and Article FOURTH, Section
1 of the Restated Certificate of Incorporation of the
Corporation) he would be entitled to cast for the election of
directors with respect to his shares of stock multiplied by
the number of vacancies and/or newly created directorships in
the Board of Directors to be filled, and he may cast by
written consent all of such votes for a single such director
or may distribute them among the number of directors to be
voted for, or any two or more of them, as he may see fit.
For purposes of this Section 2.11, when action relating to
the election of directors is taken by stockholders by written
consent, stockholders taking such action by written consent
shall be referred to as having "cast vote(s)" for the
election of such director(s).
Section 2.12 Record Date For Stockholder Notice, Voting
and Giving Consents.
(a) For purposes of determining the
stockholders entitled to notice of or to vote at any meeting
or any adjournment thereof, the Board may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board,
and which record date shall not be more than sixty (60) days
or less than ten (10) days before the date of any such
meeting, and only stockholders of record on the date so fixed
are entitled to notice and to vote, notwithstanding any
transfer of any shares on the books of the Corporation after
the record date, except as otherwise provided in the General
Corporation Law of the State of Delaware. If the Board does
not so fix a record date, the record date for determining
stockholders entitled to notice of or to vote at the meeting
of stockholders shall be at the close of business on the
business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that
the Board may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may
determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board may fix a
record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted
by the Board, and which date shall not be more than ten (10)
days after the date upon which the resolution fixing the
record date is adopted by the Board. Any stockholder of
record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice
to the Secretary, request the Board to fix a record date.
The Board shall promptly, but in all events within ten (10)
days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date
has been fixed by the Board within ten (10) days of the date
on which such a request is receive, the record date for
determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by
the Board is required by applicable law, shall be the first
date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or any officer
or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be
by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board and
prior action by the Board is required by applicable law, the
record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at
the close of business on the date on which the Board adopts
the resolution taking such prior action.
(c) In the event of the delivery to the
Corporation of a written consent or consents purporting to
authorize or take corporate action and/or related revocations
(each such written consent or related revocation is referred
to in this Section 2.12 as a "Consent"), the Secretary of the
Corporation shall provide for safekeeping of such Consent and
shall immediately appoint duly qualified and objective
inspectors to conduct, as promptly as practical, such
reasonable ministerial review as they deem necessary or
appropriate for the purpose of ascertaining the sufficiency
and validity of such Consent and all matters incident
thereto, including, without limitation, whether holders of
shares having the requisite voting power to authorize or take
the action specified in the Consent have given consent. if
after such investigation the Secretary shall determine that
the Consent is valid, that fact shall be certified on the
records of the Corporation kept for the purpose of recording
the proceedings of meetings of stockholders, and the Consent
shall be filed in such records, at which time the Consent
shall become effective as stockholder action.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 Powers. The business and affairs of the
Corporation shall be carried on by or under the direction of
the Board of Directors, which shall have all the power
authorized by the laws of the State of Delaware, subject to
such limitations as may be provided by the Certificate of
Incorporation or these Bylaws.
Section 3.02 Number, Election and Qualification. The
number of directors shall be not less than three (3) and not
more than eleven (11), the exact number within such minimum
and maximum limits to be fixed and determined from time to
time by resolution of a majority at the annual meeting of
stockholders, directors shall be elected by a plurality of
the shares of stock present in person or represented by proxy
at the meeting and entitled to vote on the election of
directors. Each director shall serve until the election and
qualification of his or her successor or until his or her
earlier death, resignation, retirement, disqualification or
removal as provided in the Certificate of Incorporation or
these Bylaws. In the case of an increase in the number of
directors between elections by the stockholders, the
additional directorships shall be considered vacancies and
shall be filled in the manner prescribed in Article V of
these Bylaws. Directors need not be stockholders.
Section 3.03 Compensation. The Board of Directors, or
a committee thereof, may from time to time by resolution
authorize the payment of fees or other compensation to the
directors for services as such to the Corporation, including,
but not limited to, fees for attendance at all meetings of
the Board of Directors or any committee thereof, and
determine the amount of such fees and compensation. No
compensation shall preclude any director from serving the
Corporation in any other capacity and receiving compensation
thereof.
Section 3.04 Notices, Meetings and Quorum. Except as
otherwise expressly provided in these Bylaws, the Certificate
of Incorporation or the laws of the State of Delaware,
meetings of the Board of Directors, both regular and special,
may be held either in or outside of the State of Delaware.
At all meetings of the Board of Directors, a majority of the
fixed number of directors shall constitute a quorum for the
transaction of business. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting, without notice or an
announcement at such meeting, until a quorum shall be
present.
The Board of Directors shall, at the close
of each annual meeting of stockholders and without further
notice other than these Bylaws, if a quorum of directors is
then present or as soon thereafter as may be convenient, hold
a regular meeting for the election of officers and the
transaction of any other business.
The Board of Directors may from time to
time provide for the holding of regular meetings with or
without notice and may fix the times and places at which such
meetings are to be held. Meetings other than regular
meetings may be called at any time by the Chairman of the
Board of Directors, the Chief Executive Officer or the
President, and may and must be called by the Secretary or an
Assistant Secretary upon the written request of at least one-
half (1/2) of the members of the Board of Directors.
Notice of each meeting other than a regular
meeting (unless required by the Board of Directors), shall be
given to each director (i) by mailing the same to each
director at his or her residence or business address at least
five (5) days before the meeting; (ii) by sending the same by
overnight courier to each director at his or her residence or
business address at least three (3) days before the meeting;
(iii) by facsimile transmission at his or her business
facsimile number and telephonic confirmation of receipt at
least two (2) days before the meeting; or (iv) by delivering
the same personally or by telephone or telegraph at least two
(2) days before the meeting.
Notwithstanding the preceding sentence, in
the case of exigency, the Chairman of the Board of Directors,
the Chief Executive Officer, the President or the Secretary
shall be authorized to prescribe a shorter notice to be given
personally or by telephone, telegraph, cable, facsimile
transmission or wireless to all or any one or more of the
directors at their respective residences or place of
business.
Notice of any meeting shall state the time
and place of such meeting, but need not state the purposes
thereof unless otherwise required by the laws of the State of
Delaware, the Certificate of Incorporation or the Board of
Directors.
Section 3.05 Committees.
(a) General Provisions. The Board of
Directors may, by resolution adopted by a majority of the
whole Board of Directors, designate one or more
committees. Each committee shall consist of two or more
directors and the Board of Directors shall elect the
members thereof to serve at the pleasure of the Board of
Directors and may designate each of such members to act as
chairperson. The Board of Directors may at any time
change the membership of any such committee, fill
vacancies in it, designate alternate members to replace
any absent or disqualified members at any meeting of any
such committee, or dissolve it. Each such committee shall
have the powers and perform such duties, not inconsistent
with law, as may be assigned to it by the Board of
Directors, and shall keep regular minutes of its meetings
and report the same to the Board of Directors when
required. Each committee may determine its rules of
procedure and the notice to be given of its meeting. A
majority of the members of each committee shall constitute
a quorum.
(b) Executive Committee. The Board of
Directors shall, by resolution adopted by a majority of
the whole Board of Directors, provide for an Executive
Committee. Subject to such limitations as may be imposed
by the laws of the State of Delaware, during the intervals
between the meeting of the Board of Directors, the
Executive Committee shall possess and may exercise any or
all of the power of the Board of Directors in the
management or direction of the business and affairs of the
Corporation, including the full power and authority to
declare dividends, of any kind whatsoever, to authorize
the issuance of capital stock, of any class or series, of
the Corporation and to adopt a certificate of ownership
and merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware, as it may be
amended from time to time.
Section 3.06 Conference Telephone Meetings. Except as
may be otherwise prescribed by the laws of the State of
Delaware, the Certificate of Incorporation or these Bylaws,
any one or more members of the Board of Directors or any
committee thereof may participate in a meeting by means of a
conference telephone or similar communication 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 such meeting.
Section 3.07 Action Without Meeting. Except as may be
otherwise prescribed by the laws of the State of Delaware,
the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board
of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 3.08 Directors Elected by Preferred
Stockholders. Notwithstanding anything in these Bylaws to
the contrary, whenever the holders of any one or more classes
or series of preferred stock issued by the Corporation shall
have the right, voting separately by class or series, to
elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be
governed by the terms of the Certificate of Incorporation or
the resolutions or the resolutions of the Board of Directors
creating such class or series, as the case may be, applicable
thereto.
ARTICLE IV
OFFICERS
Section 4.01 Titles and Election. The officers of the
Corporation shall be the Chairman of the Board of Directors,
the Chief Executive Officer, the President, the Treasurer,
one or more Vice Presidents and the Secretary. The officers
of the Corporation, in the absence of earlier resignations or
removals, shall be elected at the first meeting of the Board
of Directors following each annual meeting of stockholders.
Each officer shall hold office at the pleasure of the Board
of Directors except as may otherwise be approved by the Board
of Directors, or until his or her earlier resignation,
removal under these Bylaws or other termination of his
employment. Any person may hold more than one office if the
duties can be consistently performed by the same person.
The Board of Directors, in its discretion,
may also at any time elect or appoint Assistant Secretaries
and Assistant Treasurers and such other officers as it may
deem advisable, each of whom shall hold office at the
pleasure of the Board of Directors, except as may otherwise
be approved by the Board of Directors, or until his or her
resignation, removal or other termination of employment, and
shall have such authority and shall perform such duties as
may be prescribed or determined from time to time by the
Board of Directors or, in the case of officers other than the
Chairman of the Board, if not prescribed or determined by the
Board of Directors, as the Chairman of the Board, the Chief
Executive Officer, the President or then senior executive
officer may prescribe or determine.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 Execution of Contracts. The Board, except
as in the Bylaws otherwise provided, may authorize any
officer or officers, agent or agents, to enter into any
contract or execute any instrument in the name of and on
behalf of the Corporation, and such authority may be general
or confined to specific instances; and unless so authorized
by the Board or by the Bylaws, 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 in any amount.
Section 5.02 Checks, Drafts, Etc. All checks, drafts or
other orders for payment of money, notes or other evidence of
indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such officer,
assistant, agent or attorney shall give such bond, if any, as
the Board may require.
Section 5.03 Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to
the credit of the Corporation in such banks, trust companies
or other depositories as the Board may select, or as may be
selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation
to whom such power shall have been delegated by the Board.
For the purpose of deposit and for the purpose of collection
for the account of the Corporation, the Chairman, Vice
Chairman, President, any Vice President or the Treasurer (or
any other officer or officers, assistant or assistants, agent
or agents, or attorney or attorneys of the Corporation who
shall from time to time be determined by the Board) may
endorse, assign and deliver checks, drafts and other orders
for the payment of money which are payable to the order of
the Corporation.
Section 5.04 General and Special Bank Accounts. The
Board may from time to time authorize the opening and keeping
of general and special bank accounts with such banks, trust
companies or other depositories as the Board may select or as
may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the
Corporation to whom such power shall have been delegated by
the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may
deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 6.01 Certificates for Stock. Every owner of
stock of the Corporation shall be entitled to have a
certificate or certificates, to be in such form as the Board
shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the
order in which they shall be issued and shall be signed in
the name of the Corporation by the Chairman, Vice Chairman,
President or a Vice President, and by the Secretary or an
Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any of or all of the signatures on the
certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon, any such
certificate, shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, such
certificate may nevertheless be issued by the Corporation
with the same effect as though the person who signed such
certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or
registrar at the date of issue. A record shall be kept of
the respective names of the persons, firms or corporations
owning the stock represented by such certificates, the number
and class of shares represented by such certificates,
respectively, and the respective dates thereof, and in case
of cancellation, the respective dates of cancellation. Every
certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or
certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been
so canceled, except in cases provide for in Section 6.04
hereof.
Section 6.02 Transfers of Stock. Transfers of shares of
stock of the Corporation shall be made only on the books of
the Corporation by the registered holder thereof, or by his
or her attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a
transfer clerk or a transfer agent appointed as provided in
Section 6.03 hereof, and upon surrender of the certificate or
certificates for such shares properly endorsed and the
payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the Corporation shall
be deemed the owner thereof for all purposes as regards the
Corporation. Whenever any transfer of shares shall be made
for collateral security, and not absolutely, such fact shall
be so expressed in the entry of transfer if, when the
certificate or certificates shall be presented to the
Corporation for transfer, both the transferror and the
transferee request the Corporation to do so.
Section 6.03 Regulations. The Board may make such rules
and regulations as it may deem expedient, not inconsistent
with the Bylaws, concerning the issue, transfer and
registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or
officers to appoint, one (1) or more transfer clerks or one
(1) of more transfer agents and one (1) or more registrars,
and may require all certificates for stock to bear the
signature or signatures of any of them.
Section 6.04 Lost, Stolen, Destroyed, and Mutilated
Certificates. In any case of loss, theft, destruction, or
mutilation of any certificate of stock, another may be issued
in its place upon proof of such loss, theft, destruction, or
mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may
direct; provided, however, that a new certificate may be
issued without requiring any bond when, in the judgment of
the Board, it is proper so to do.
Section 6.05 Record Date for Purposes Other Than Notice
and Voting. For purposes of determining the stockholders
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 (other than action by stockholders by written consent
without a meeting), the Board may fix a record date which
record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which shall
not be more than sixty (60) days before any such action, and
in that case only stockholders of record on the date so fixed
are entitled to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the
books of the Corporation after the record date so fixed,
except as otherwise provided in the General Corporation Law
of the State of Delaware. If the Board does not so fix a
record date, the record date for determining stockholders for
any such purpose shall be at the close of business on the day
on which the Board adopts the resolution relating thereto.
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnification of Directors and Officers.
The Corporation shall, to the fullest extent permitted by
law, indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including without
limitation an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer
of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, that he had reasonable cause
to believe that his conduct was unlawful.
Section 7.02 Advance of Expenses. Costs and expenses
(including attorneys' fees) incurred by or on behalf of a
director, officer, employee or agent in defending or
investigating any action, suit, proceeding or investigation
shall be paid by the Corporation in advance of the final
disposition of such matter, if such director, officer,
employee or agent shall undertake in writing to repay any
such advances in the event that it is ultimately determined
that he is not entitled to indemnification. Notwithstanding
the foregoing, no advance shall be made by the Corporation if
a determination is reasonably and promptly made by the Board
of Directors by a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs)
by independent legal counsel, that, based upon the facts
known to the Board or counsel at the time such determination
is made, (a) the director, officer, employee or agent acted
in bad faith or deliberately breached his duty to the
Corporation or its stockholders, and (b) as a result of such
actions by the director, officer, employee or agent, it is
more likely than not that it will ultimately be determined
that such director, officer, employee or agent is not
entitled to indemnification.
Section 7.03 Insurance. The Corporation may purchase
and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or as
a member of any committee or similar body against any
liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article
or applicable law.
Section 7.04 Non-Exclusivity. The right of indemnity
and advancement of expenses provided herein shall not be
exclusive, and the Corporation may provide indemnification or
advancement of expenses to any person, by agreement or
otherwise, on such terms and conditions as the Board of
Directors may approve. Any agreement for indemnification of
or advancement of expenses to any director, officer, employee
or other person may provide to any rights of indemnification
or advancement of expenses which are broader or otherwise
different from those set forth herein.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Seal. The Board shall provide a corporate
seal, which shall be in the form of a circle and shall bear
the name of the Corporation and words and figures showing
that the Corporation was incorporated in the State of
Delaware and the year of incorporation.
Section 8.02 Waiver of Notices. Whenever notice is
required to be given by these Bylaws or the Certificate of
Incorporation or by law, the person entitled to said notice
may waive such notice in writing, either before or after the
time stated therein, and such waiver shall be deemed
equivalent to notice.
Section 8.03 Amendments. Except as otherwise provided
in the Bylaws, the Bylaws, or any of them, may be altered,
amended or repealed, and new Bylaws may be made (i) by the
Board, by vote of a majority of the number of directors then
in office as directors, acting at any meeting of the Board,
or (ii) by the vote of the holders of a majority of the total
voting power of all outstanding shares of voting stock of the
Corporation, at any annual meeting of stockholders, without
previous notice, or at any special meeting of stockholders,
provided that notice of such proposed amendment,
modification, repeal or adoption is given in the notice of
special meeting. Except as otherwise provided in these
Bylaws, any Bylaws made or altered by the stockholders may be
altered or repealed by either the Board or the stockholders.