Exhibit 3.6
BYLAWS
OF
SUMMIT CARE CORPORATION,
A DELAWARE CORPORATION
(ADOPTED AS OF JUNE 13, 2005)
BY-LAWS
OF
SUMMIT CARE CORPORATION
ADOPTED AS OF JUNE 13, 2005
ARTICLE I
IDENTIFICATION; OFFICES
SECTION 1.01. NAME. The name of the corporation is Summit Care Corporation. (the
"Corporation").
SECTION 1.02. PRINCIPAL AND BUSINESS OFFICES. The Corporation may have such
principal and other business offices, either within or outside of the state of
Delaware, as the Board of Directors may designate or as the Corporation's
business may require from time to time.
SECTION 1.03. REGISTERED AGENT AND OFFICE. The Corporation's registered agent
may be changed from time to time by or under the authority of the Board of
Directors. The address of the Corporation's registered agent may change from
time to time by or under the authority of the Board of Directors, or the
registered agent. The business office of the Corporation's registered agent
shall be identical to the registered office. The Corporation's registered office
may be but need not be identical with the Corporation's principal office in the
state of Delaware.
SECTION 1.04. PLACE OF KEEPING CORPORATE RECORDS. The records and documents
required by law to be kept by the Corporation permanently shall be kept at the
Corporation's principal office.
ARTICLE II
STOCKHOLDERS
SECTION 2.01. ANNUAL MEETING. An annual meeting of the stockholders shall be
held on such date as may be determined by resolution of the Board of Directors.
At each annual meeting, the stockholders shall elect directors to hold office
for the term provided in Section 3.01 of these By-Laws.
SECTION 2.02. SPECIAL MEETING. A special meeting of the stockholders may be
called by the President of the Corporation, the Board of Directors, or by such
other officers or persons as the Board of Directors may designate.
SECTION 2.03. PLACE OF STOCKHOLDER MEETINGS. The Board of Directors may
designate any place, either within or without the State of Delaware, as the
place of meeting for any annual meeting or for any special meeting. If no such
place is designated by the Board of Directors, the place of meeting will be the
principal business office of the Corporation.
SECTION 2.04. NOTICE OF MEETINGS. Unless waived as herein provided, whenever
stockholders are required or permitted to take any action at a meeting, written
notice of the meeting shall be given stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Such written notice shall be given not less than
ten (10) days nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at the meeting or in the event of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of all or
substantially all of the Corporation's property, business or assets not less
than twenty (20) days before the date of the meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at the stockholder's address as it appears on the records of the
Corporation.
When a meeting is adjourned to another time or place in accordance with Section
2.05 of these By-Laws, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting in which the adjournment is
taken. At the adjourned meeting the Corporation may conduct any business which
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.
SECTION 2.05. QUORUM AND ADJOURNED MEETINGS. Unless otherwise provided by law or
the Corporation's Certificate of Incorporation, a majority of the shares
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at a meeting of stockholders. If less than a majority of the shares
entitled to vote at a meeting of stockholders is present in person or
represented by proxy at such meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. The stockholders
present at a meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of such number of stockholders as may leave less
than a quorum.
SECTION 2.06. FIXING OF RECORD DATE. (a) For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors 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 of Directors, and which record date shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting. If no record date is fixed by the Board of Directors, 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 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. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
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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.
(b) For the purpose of determining stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is established by the Board of Directors, and which date
shall not be more than ten (10) days after the date on which the resolution
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by 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 office, or an
officer or agent of the Corporation having custody of the book in which the
proceedings of meetings of stockholders are recorded. Delivery 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 of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders' consent to corporate action in writing
without a meeting shall be the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
(c) For the purpose of determining the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect to any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix the record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining the
stockholders for any such purpose shall be the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
SECTION 2.07. VOTING LIST. 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 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 place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.08. VOTING. Unless otherwise provided by the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by each stockholder. In all matters other than the election
of directors, the affirmative vote of the majority of shares present in person
or represented by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders. Directors shall be elected by
plurality of the votes of the shares present in person or represented by a proxy
at the meeting entitled to vote on the election of directors.
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SECTION 2.09. 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
proxy, 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 duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may remain irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
SECTION 2.10. RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS. Except as
otherwise provided by law or by the Certificate of Incorporation of the
Corporation, any transaction or contract or act of the Corporation or of the
directors or the officers of the Corporation may be ratified by the affirmative
vote of the holders of the number of shares which would have been necessary to
approve such transaction, contract or act at a meeting of stockholders, or by
the written consent of stockholders in lieu of a meeting.
SECTION 2.11. INFORMAL ACTION OF STOCKHOLDERS. Any action required to be taken
at any annual or special meeting of stockholders of the Corporation, or any
action which 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, shall be
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. In the event that the action which is consented to is such
as would have required the filing of a certificate with any governmental body,
if such action had been voted on by stockholders at a meeting thereof, the
certificate filed shall state, in lieu of any statement required by law
concerning any vote of stockholders, that written consent had been given in
accordance with the provisions of Section 228 of the Delaware General
Corporation Law, and that written notice has been given as provided in such
section.
SECTION 2.12. ORGANIZATION. Such person as the Board of Directors may designate
or, in the absence of such a designation, the president of the Corporation or,
in his or her absence, such person as may be chosen by the holders of a majority
of the shares entitled to vote who are present, in person or by proxy, shall
call to order any meeting of the stockholders and act as chairman of such
meeting. In the absence of the secretary of the Corporation, the chairman of the
meeting shall appoint a person to serve as secretary at the meeting.
ARTICLE III
DIRECTORS
SECTION 3.01. NUMBER AND TENURE OF DIRECTORS. The number of directors of the
Corporation shall consist of not less than one (1) nor more than five (5)
members, as shall be determined from time to time by resolution of the Board.
The initial Board shall consist of three (3) members. Each director shall hold
office until such director's successor is elected and
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qualified or until such director's earlier resignation or removal. Any director
may resign at any time upon written notice to the Corporation.
SECTION 3.02. ELECTION OF DIRECTORS. Except as otherwise provided in these
By-Laws, directors shall be elected at the annual meeting of stockholders.
Directors need not be residents of the State of Delaware. Elections of directors
need not be by written ballet.
SECTION 3.03. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President or at
least one-third of the number of directors constituting the whole board. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place, either within or without the State of Delaware, as the place
for holding any special meeting of the Board of Directors called by them.
SECTION 3.04. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. Notice of
any special meeting of the Board of Directors shall be given at least two (2)
days previous thereto by written notice to each director at his or her address.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States Mail so addressed, with first-class postage thereon prepaid. If
sent by any other means (including facsimile, courier, or express mail, etc.),
such notice shall be deemed to be delivered when actually delivered to the home
or business address of the director.
SECTION 3.05. QUORUM. A majority of the total number of directors as provided in
Section 3.01 of these By-Laws shall constitute a quorum for the transaction of
business. If less than a majority of the directors are present at a meeting of
the Board of Directors, a majority of the directors present may adjourn the
meeting from time to time without further notice.
SECTION 3.06. VOTING. The vote of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors,
unless the Delaware General Corporation Law or the Certificate of Incorporation
requires a vote of a greater number.
SECTION 3.07. VACANCIES. Vacancies in the Board of Directors may be filled by a
majority vote of the Board of Directors or by an election either at an annual
meeting or at a special meeting of the stockholders called for that purpose. Any
directors elected by the stockholders to fill a vacancy shall hold office for
the balance of the term for which he or she was elected. A director appointed by
the Board of Directors to fill a vacancy shall serve until the next meeting of
stockholders at which directors are elected.
SECTION 3.08. REMOVAL OF DIRECTORS. A 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; provided,
however, that if cumulative voting obtains and less than the entire Board of
Directors is to be removed, no director may be removed without cause if the
votes cast against such director's removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of Directors.
SECTION 3.09. INFORMAL ACTION OF DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, 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
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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 3.10. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of
Directors, or any committee designated by such board, may participate in a
meeting of the Board of Directors, or committee thereof, by means of conference
telephone or similar communications equipment as long as all persons
participating in the meeting can speak with and hear each other, and
participation by a director pursuant to this Section 3.10 shall constitute
presence in person at such meeting.
ARTICLE IV
WAIVER OF NOTICE
SECTION 4.01. WRITTEN WAIVER OF NOTICE. A written waiver of any required notice,
signed by the person entitled to notice, whether before or after the date stated
therein, shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
SECTION 4.02. ATTENDANCE AS WAIVER OF 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, and objects at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE V
COMMITTEES
SECTION 5. GENERAL PROVISIONS. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, 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 at any meeting of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members 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,
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 which may
require it, but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease, or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation, and, unless the
resolution so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a
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certificate of ownership and merger, pursuant to Section 253 of the Delaware
General Corporation Law.
ARTICLE VI
OFFICERS
SECTION 6.01. GENERAL PROVISIONS. The Board of Directors shall elect a President
and a Secretary of the Corporation. The Board of Directors may also elect a
Chairman of the Board, one or more Vice Chairmen of the Board, one or more Vice
Presidents, a Treasurer, one or more Assistant Secretaries and Assistant
Treasurers and such additional officers as the Board of Directors may deem
necessary or appropriate from time to time. Any two or more offices may be held
by the same person. The officers elected by the Board of Directors shall have
such duties as are hereafter described and such additional duties as the Board
of Directors may from time to time prescribe.
SECTION 6.02. ELECTION AND TERM OF OFFICE. Each officer of the Corporation shall
be elected by the Board of Directors and shall hold office until the earliest of
the following events: (i) he is removed pursuant to Section 6.03 of these
By-Laws, (ii) his successor has been duly elected and qualified, or (iii) his
death or resignation. New offices of the Corporation may be created and filled
and vacancies in offices may be filled at any time, at a meeting or by the
written consent of the Board of Directors. Election or appointment of an officer
or agent shall not of itself create contract rights.
SECTION 6.03. REMOVAL OF OFFICERS. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors whenever, in its
judgment, the best interests of the Corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person(s) so removed.
SECTION 6.04. THE CHIEF EXECUTIVE OFFICER. The Board of Directors shall
designate whether the Chairman of the Board, if one shall have been chosen, or
the President shall be the Chief Executive Officer of the Corporation. If a
Chairman of the Board has not been chosen, or if one has been chosen but not
designated Chief Executive Officer, then the President shall be the Chief
Executive Officer of the Corporation. The Chief Executive Officer shall be the
principal executive officer of the Corporation and shall in general supervise
and control all of the business and affairs of the Corporation, unless otherwise
provided by the Board of Directors. The Chief Executive Officer shall preside at
all meetings of the stockholders and of the Board of Directors and shall see
that orders and resolutions of the Board of Directors are carried into effect.
The Chief Executive Officer may sign bonds, mortgages, certificates for shares
and all other contracts and documents whether or not under the seal of the
Corporation except in cases where the signing and execution thereof shall be
expressly delegated by law, by the Board of Directors or by these By-Laws to
some other officer or agent of the Corporation. The Chief Executive Officer
shall have general powers of supervision and shall be the final arbiter of all
differences between officers of the Corporation and his decision as to any
matter affecting the Corporation shall be final and binding as between the
officers of the Corporation subject only to the Board of Directors.
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SECTION 6.05. THE PRESIDENT. In the absence of the Chief Executive Officer or in
the event of his inability or refusal to act, if the Chairman of the Board has
been designated Chief Executive Officer, the President shall perform the duties
of the Chief Executive Officer, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Chief Executive Officer. At all
other times the President shall have the active management of the business of
the Corporation under the general supervision of the Chief Executive Officer.
The President shall have concurrent power with the Chief Executive Officer to
sign bonds, mortgages, certificates for shares and other contracts and
documents, whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board of Directors, or by these By-Laws to some other officer or agent of
the Corporation. In general, the President shall perform all duties incident to
the office of president and such other duties as the Chief Executive Officer or
the Board of Directors may from time to time prescribe.
SECTION 6.06. THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if one is
chosen, shall be chosen from among the members of the board. If the Chairman of
the Board has not been designated Chief Executive Officer, the Chairman of the
Board shall perform such duties as may be assigned to the Chairman of the Board
by the Chief Executive Officer or by the Board of Directors.
SECTION 6.07. VICE CHAIRMAN OF THE BOARD. In the absence of the Chief Executive
Officer or in the event of his inability or refusal to act, if the Chairman of
the Board has been designated Chief Executive Officer, the Vice Chairman, or if
there be more than one, the Vice Chairmen, in the order determined by the Board
of Directors, shall perform the duties of the Chief Executive Officer, and when
so acting shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer. At all other times, the Vice Chairman or Vice
Chairmen shall perform such duties and have such powers as the Chief Executive
Officer or the Board of Directors may from time to time prescribe.
SECTION 6.08. THE VICE PRESIDENT. In the absence of the President or in the
event of his inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Executive Vice President and then the
other Vice President or Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. The Vice Presidents
shall perform such other duties and have such other powers as the Chief
Executive Officer or the Board of Directors may from time to time prescribe.
SECTION 6.09. THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer, under whose supervision
he shall be. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or an Assistant Secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may
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be attested by his signature or by the signature of such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by his signature.
SECTION 6.10. THE ASSISTANT SECRETARY. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the 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
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 the
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
SECTION 6.11. THE TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond (which shall be renewed every six (6) years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 6.12. THE ASSISTANT TREASURER. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Chief Executive Officer or the Board of Directors may from time to time
prescribe.
SECTION 6.13. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, Assistant
Officers and Agents, if any, other than those whose duties are provided for in
these By-Laws, shall have such authority and perform such duties as may from
time to time be prescribed by resolution of the board of directors.
SECTION 6.14. ABSENCE OF OFFICERS. In the absence of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board of Directors may delegate the powers or duties, or any of such powers
or duties, of any officers or officer to any other officer or to any director.
SECTION 6.15. COMPENSATION. The Board of Directors shall have the authority to
establish reasonable compensation of all officers for services to the
Corporation.
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ARTICLE VII
INDEMNIFICATION
SECTION 7.01. RIGHT TO INDEMNIFICATION OF DIRECTORS AND OFFICERS. 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
(a "Covered Person") 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 such person, or a person for whom such person is the legal
representative, is or was a director or officer 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) reason-ably incurred
by such Covered Person in such proceeding. Notwithstanding the preceding
sentence, except as otherwise provided in Section 7.03, the Corporation shall be
required to indemnify a Covered Person in connection with a proceeding (or part
thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized in advance by
the Board of Directors.
SECTION 7.02. PREPAYMENT OF EXPENSES OF DIRECTORS AND OFFICERS. The Corporation
shall pay the expenses (including attorneys' fees) incurred by a Covered Person
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 Covered Person to repay all amounts advanced if
it should be ultimately determined that the Covered Person is not entitled to be
indemnified under this Article VII or otherwise.
SECTION 7.03. CLAIMS BY DIRECTORS AND OFFICERS. If a claim for indemnification
or advancement of expenses under this Article VII is not paid in full within
thirty days after a written claim therefor by the Covered Person has been
received by the Corporation, the Covered Person may file suit to 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 Covered Person is not
entitled to the requested indemnification or advancement of expenses under
applicable law.
SECTION 7.04. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may
indemnify and advance expenses to any person who was or is made or is threatened
to be made or is otherwise involved in any proceeding by reason of the fact that
such person, or a person for whom such person is the legal representative, is or
was an employee or agent of the Corporation or, while an employee or agent 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 attorney's fees) reasonably incurred by such person in
connection with such proceeding. The ultimate determination of entitlement to
indemnification of persons who are non-director or officer employees or agents
shall be made in such manner as is determined by the Board of Directors in
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its sole discretion. Notwithstanding the foregoing sentence, the Corporation
shall not be required to indemnify a person in connection with a proceeding
initiated by such person if the proceeding was not authorized in advance by the
Board of Directors.
SECTION 7.05. ADVANCEMENT OF EXPENSES OF EMPLOYEES AND AGENTS. The Corporation
may pay the expenses (including attorney's fees) incurred by an employee or
agent in defending any proceeding in advance of its final disposition on such
terms and conditions as may be determined by the Board of Directors.
SECTION 7.06. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Article VII shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, these by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 7.07. OTHER INDEMNIFICATION. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director, officer
or employee of another Corporation, partnership, joint venture, trust,
organization or other enterprise shall be reduced by any amount such person may
collect as indemnification from such other Corporation, partnership, joint
venture, trust, organization or other enterprise.
SECTION 7.08. INSURANCE. The Board of Directors may, to the full extent
permitted by applicable law as it presently exists, or may hereafter be amended
from time to time, authorize an appropriate officer or officers to purchase and
maintain at the Corporation's expense insurance: (a) to indemnify the
Corporation for any obligation which it incurs as a result of the
indemnification of directors, officers and employees under the provisions of
this Article VII; and (b) to indemnify or insure directors, officers and
employees against liability in instances in which they may not otherwise be
indemnified by the Corporation under the provisions of this Article VII.
SECTION 7.09. AMENDMENT OR REPEAL. Any repeal or modification of the foregoing
provisions of this Article VII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification. The rights provided hereunder
shall inure to the benefit of any Covered Person and such person's heirs,
executors and administrators.
ARTICLE VIII
CERTIFICATES FOR SHARES
SECTION 8.01. CERTIFICATES OF 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, Chief Executive
Officer, or the President or Vice President, and by the Treasurer or an
Assistant
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Treasurer, or the Secretary or an Assistant Secretary of the Corporation
representing the number of shares registered in certificate form. Any or all the
signatures on the certificate may be a facsimile.
SECTION 8.02. SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have 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 such person or entity
were such officer, transfer agent or registrar at the date of issue.
SECTION 8.03. TRANSFER OF SHARES. Transfers of shares of the Corporation shall
be made only on the books of the Corporation by the holder of record thereof or
by his legal representative, who shall furnish proper evidence of authority to
transfer, or by his or her attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the Corporation, and on surrender
for cancellation of certificate for such shares. Prior to due presentment of a
certificate for shares for registration of transfer, the Corporation may treat a
registered owner of such shares as the person exclusively entitled to vote, to
receive notifications and otherwise have and exercise all of the right and
powers of an owner of shares.
SECTION 8.04. LOST, DESTROYED OR STOLEN CERTIFICATES. Whenever a certificate
representing shares of the Corporation has been lost, destroyed or stolen, the
holder thereof may file in the office of the Corporation an affidavit setting
forth, to the best of his knowledge and belief, the time, place, and
circumstance of such loss, destruction or theft together with a statement of
indemnity sufficient in the opinion of the Board of Directors to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of any such certificate. Thereupon the Board may cause to be issued
to such person or such person's legal representative a new certificate or a
duplicate of the certificate alleged to have been lost, destroyed or stolen. In
the exercise of its discretion, the Board of Directors may waive the
indemnification requirements provided herein.
ARTICLE IX
DIVIDENDS
SECTION 9. DIVIDENDS. The Board of Directors of the Corporation may declare and
pay dividends upon the shares of the Corporation's capital stock in any form
determined by the Board of Directors, in the manner and upon the terms and
conditions provided by law.
ARTICLE X
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 10.01. CONTRACTS. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
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SECTION 10.02. LOANS. No loans shall be contracted on behalf of the Corporation
and no evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
SECTION 10.03. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by one or more officers or agents of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 10.04. DEPOSITS. The funds of the Corporation may be deposited or
invested in such bank account, in such investments or with such other
depositaries as determined by the Board of Directors.
ARTICLE XI
AMENDMENTS
SECTION 11. AMENDMENTS. These By-laws may be adopted, amended or repealed by
either the Corporation's Board of Directors or its stockholders.
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ATTESTATION
The undersigned, being the Secretary of Summit Care Corporation, does
hereby certify the foregoing to be By-Laws of the Corporation.
SUMMIT CARE CORPORATION
/s/ Roland G. Rapp
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Roland G. Rapp
Secretary