EXHIBIT 3.2.2
AMENDED AND RESTATED
BYLAWS
OF
SKILLED HEALTHCARE GROUP, INC.
(A DELAWARE CORPORATION)
AMENDED AND RESTATED
BYLAWS
OF
SKILLED HEALTHCARE GROUP, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The initial registered office of Skilled
Healthcare Group, Inc. (the "Corporation") in the State of Delaware shall be in
the City of Wilmington, County of New Castle.
SECTION 2. OTHER OFFICES. The Corporation shall also have and maintain an
office or principal place of business at such place as may be fixed by the Board
of Directors, and may also have offices at such other places, both within and
outside the State of Delaware, as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 1. LOCATION 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 principal executive office of the Corporation.
SECTION 2. NOTICE OF STOCKHOLDERS' MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given, which notice shall state 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the meeting. Notice may be given by
such delivery means (mail, telecopy, electronic or other) as the Secretary of
the Corporation deems appropriate and in compliance with law and shall be
delivered to the stockholder's address as it appears
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on the stock transfer records of the Corporation. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his, her or its address as it appears on the stock transfer
records of the Corporation. Any waiver of such notice given by the person
entitled thereto, whether before or after the time stated therein, shall be
deemed equivalent notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, and such person objects at the beginning of
the meeting, to the transaction of any business because the meeting was not
lawfully called or convened.
SECTION 3. ANNUAL MEETINGS OF STOCKHOLDERS.
(a) The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting,
directors shall be elected and only such other business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business (including the nominations of persons for
election to the Board of Directors of the Corporation and any other business to
be considered by the stockholders) must be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise brought before the meeting by or at the direction of
the Board of Directors, (iii) otherwise properly brought before the meeting by
any stockholder of the Corporation or (iv) in the case of a meeting held before
the Transition Date (as defined in the Certificate of Incorporation), otherwise
brought before the meeting by a holder of at least 10% of the outstanding Class
B Common Stock.
(b) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a) of
this Section 3, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice (a
"Stockholder Notice") shall be delivered to or mailed and received at the
principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on
the one-hundred and twentieth (120th) day prior to the first anniversary of the
preceding year's annual meeting (provided, however, that in the event that the
date of the annual meeting is more than thirty (30) days before or more than
seventy (70) days after such anniversary date, the Stockholder Notice must be so
delivered not earlier than the close of business on the one-hundred and
twentieth (120th) day prior to such annual meeting and not later than the close
of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation). For purposes of
the first annual meeting of stockholders of the Corporation following the
initial public offering of its capital stock, the first anniversary of the
preceding year's annual meeting shall be deemed to be April 26, 2008. In no
event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period) for the
giving of a Stockholder Notice as described above. Such Stockholder Notice shall
set forth: (i) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (and such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (ii) as
to any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the text of the proposal or business (including the text of any
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resolutions proposed for consideration and in the event that such business
includes a proposal to amend the Certificate of Incorporation or the Bylaws of
the Corporation, the language of the proposed amendment) and the reasons for
conducting such business at the meeting; and (iii) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (A) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (B) the class and number
of shares of capital stock of the Corporation which are owned of record and
beneficially by such stockholder and such beneficial owner, (C) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, (D) any material interest of the
stockholder in such business and (E) a representation whether the stockholder or
the beneficial owner, if any, intends, or is part of a group which intends to:
(1) deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (2) otherwise solicit proxies
from stockholders in support of such proposal or nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation. The foregoing notice requirements of
this Section 3(b) shall be deemed satisfied by a stockholder if the stockholder
has notified the Corporation of his or her intention to present a nomination or
other matter at an annual meeting in compliance with applicable rules and
regulations promulgated under the Exchange Act and such stockholder's nomination
or other matter has been included in a proxy statement that has been prepared by
the Corporation to solicit proxies for such annual meeting.
(c) Notwithstanding the foregoing provisions of this Section 3,
unless otherwise required by applicable law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination or the
proposed business, such nomination or proposed business shall be disregarded,
notwithstanding that proxies in respect of such vote may have been received by
the Corporation. For purposes of this Section 3(c), to be considered a qualified
representative of a stockholder, a person must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting
of stockholders.
SECTION 4. SPECIAL MEETINGS.
(a) Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may only be called in
accordance with the provisions of the Certificate of Incorporation. Business
transacted at any special meeting of stockholders shall be limited to only such
business brought before the meeting pursuant to the Corporation's notice of
meeting.
(b) Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected (1) by or at the direction of the Board of Directors in accordance with
the Certificate of Incorporation or (2) provided that the Board of Directors has
specified in its notice of meeting that directors shall be
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elected at such meeting, by any stockholder of the Corporation who provides a
timely Stockholder Notice to the Secretary of the Corporation that complies with
the notice procedures set forth in paragraph (b) of Section 3 hereof. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
SECTION 5. COMPLIANCE WITH PROCEDURES. Only such persons who are nominated
in accordance with the procedures set forth in Section 3 or Section 4 hereof, as
applicable, shall be eligible to be elected at an annual or special meeting of
stockholders of the Corporation to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in Section 3 or
Section 4 hereof, as applicable. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the chairman of the meeting shall
have the power and duty to (i) determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in Section 3 or Section 4
hereof, as applicable and (ii) if any proposed nomination or business is not in
compliance with Section 3 or Section 4 hereof, as applicable (including whether
the stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicits (or is part of a group which solicits), or fails to so
solicit (as the case may be), proxies in support of such stockholder's proposal
in compliance with such stockholder's representation as required by clause
(iii)(E) of paragraph (b) of Section 3 hereof), to declare that such defective
nomination shall be disregarded or that such proposed business shall not be
transacted.
The meetings of the stockholders shall be presided over by the
Chief Executive Officer, or if he or she is absent or unable to preside, by the
Chairman and if neither the Chief Executive Officer nor the Chairman is present
or able to preside, then by a Vice Chairman; if more than one Vice Chairman is
present and able to preside, the Vice Chairman who shall have held such office
for the longest period of time shall preside; if neither the Chief Executive
Officer nor the Chairman nor a Vice Chairman is present and able to preside,
then the President shall preside; if none of the above is present and able to
preside, then another person shall be elected at the meeting to preside over
same. The Secretary of the Company, if present, shall act as secretary of such
meetings or, if he or she is not present, an Assistant Secretary shall so act;
if neither the Secretary nor an Assistant Secretary is present, then a secretary
shall be appointed by the person presiding over the meeting. If necessary,
electing the chairman of the meeting and appointing the secretary of the meeting
shall be the first order of business at each meeting.
SECTION 6. COMPLIANCE WITH THE EXCHANGE ACT. Notwithstanding the provisions
of Section 3 and Section 4 hereof, a stockholder shall also comply with all
applicable requirements of the Exchange Act, and the rules and regulations
thereunder, with respect to the matters set forth in Section 3 and Section 4
hereof. Nothing in either Section 3 or Section 4 hereof shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 7. QUORUM, ADJOURNMENT. At any meeting of the stockholders, the
presence, in person or by proxy, of stockholders entitled to cast at least a
majority of the votes which all stockholders are entitled to vote upon a matter
shall constitute a quorum for the
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transaction of business upon such matter, except as otherwise provided by law,
by the Certificate of Incorporation or by these Bylaws, and the stockholders
present at a duly organized meeting can continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum. If a meeting cannot be organized because a quorum has not
attended, a majority of the voting power represented in person or by proxy may
adjourn the meeting to such time and place as they may determine, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. 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 thereat.
SECTION 8. VOTE REQUIRED. All questions submitted to the stockholders and
all actions by the stockholders shall be decided by the affirmative vote of the
stockholders present, in person or by proxy, entitled to cast at least a
majority of the votes which all stockholders present are entitled to vote on the
matter, unless otherwise provided by express provision of the Certificate of
Incorporation, by these Bylaws or by law, in which case such express provision
shall govern and control the decision of such question. At all meetings of
stockholders for the election of directors, directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors.
SECTION 9. VOTING PROCEDURES. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his, her or its name on the books of the Corporation on the record date set by
the Board of Directors as provided in Article VI, Section 4 hereof.
SECTION 10. 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 that appears on the records of the Corporation 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.
SECTION 11. INSPECTORS. Prior to each meeting of the stockholders, one or
more inspectors shall be appointed by the Board of Directors, or, if no such
appointment shall have been made, such inspectors shall be appointed by the
chairman of the meeting, to act thereat.
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Each inspector so appointed shall first subscribe an oath or affirmation
faithfully to execute the duties of an inspector at such meeting with strict
impartiality and according to the best of his or her ability. Such inspector(s)
shall take charge of the ballots at such meeting, count the ballots cast on any
question and deliver a written report of the results thereof to the secretary of
such meeting. The inspector(s) need not be stockholders of the Corporation. Any
officer of the Corporation may be an inspector on any question other than a vote
for or against his or her election to any position with the Corporation or on
any other question in which he or she may be directly interested other than as a
stockholder.
SECTION 12. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Effective from and after the closing of the Transition Date (as defined in the
Certificate of Incorporation), no stockholder action may be taken except at a
duly called annual or special meeting of stockholders of the Corporation and
stockholders of the Corporation may not take any action by written consent in
lieu of a meeting.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER. The number of directors which shall constitute the whole
Board shall be determined from time to time by resolution adopted by affirmative
vote of a majority of the entire Board of Directors. Directors need not be
stockholders of the Corporation.
SECTION 2. POWERS. The powers of the Corporation shall be exercised, its
business conducted and its property controlled, by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation. The Chairman of the Board, or an appointee of the Chairman, shall
preside at all meetings of the Board of Directors and all meetings of the
stockholders.
SECTION 3. ELECTION AND TENURE. Each director shall be elected in the
manner specified in the Certificate of Incorporation and shall hold office until
such time as is set forth therein.
SECTION 4. VACANCIES. Any vacancies on the Board of Directors shall be
filled only in the manner specified in the Certificate of Incorporation. A
vacancy in the Board of Directors shall be deemed to exist under this Bylaw in
the case of the death, disability, disqualification, removal or resignation of
any director.
SECTION 5. RESIGNATION. Any director may resign at any time by delivering
his or her notice in writing or by electronic transmission to the Secretary,
such resignation to specify whether it will be effective at a particular time,
upon receipt by the Secretary or at the pleasure of the Board of Directors. If
no such specification is made, it shall be deemed effective at the pleasure of
the Board of Directors.
SECTION 6. REMOVAL. A director may be removed from the Board of Directors
only in satisfaction of, and in accordance with, the provisions of the
Certificate of Incorporation.
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SECTION 7. MEETINGS.
(a) REGULAR MEETINGS. Unless otherwise restricted by the Certificate
of Incorporation, regular meetings of the Board of Directors shall be held
without notice other than this Section 7(a) immediately after, and at the same
place as, each annual meeting of stockholders. The Board of Directors may, by
resolution, provide the time, date and place (within or outside the State of
Delaware) for the holding of additional regular meetings without notice other
than such resolution. The directors may have one or more offices and keep the
books of the Corporation outside of the State of Delaware.
(b) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate
of Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board, the President or a majority of the members of the Board
of Directors.
(c) NOTICE OF SPECIAL MEETINGS. Notice of the time and place of all
special meetings of the Board of Directors shall be given orally or in writing,
by telephone, facsimile, telegraph or telex, or by electronic mail or other
electronic means, during normal business hours, at least twenty-four (24) hours
before the date and time of the meeting. If notice is sent by U.S. mail, it
shall be sent by first-class mail, postage prepaid at least three (3) days
before the date of the meeting. Notice of any meeting may be waived in writing
or by electronic transmission at any time before or after the meeting and will
be waived by any director by attendance thereat, except when the director
attends the 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.
(d) WAIVER OF NOTICE. The transaction of all business at any meeting
of the Board of Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though transacted at a meeting duly held
after regular call and notice, if a quorum be present and if, either before or
after the meeting, each of the directors not present who did not receive notice
shall sign a written waiver of notice or shall waive notice by electronic
transmission. All such waivers shall be filed with the corporate records or made
a part of the minutes of the meeting.
(e) MEETINGS BY ELECTRONIC COMMUNICATIONS EQUIPMENT. Any member of
the Board of Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
SECTION 8. QUORUM AND VOTING.
(a) Except as may be otherwise specifically provided by statute, the
Certificate of Incorporation or these Bylaws, a quorum of the Board of Directors
shall consist of a majority of the exact number of directors fixed from time to
time by the Board of Directors; provided, however, at any meeting, whether a
quorum be present or otherwise, a majority of the directors present may adjourn
such meeting to another time and place. At least one day's notice
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of any adjourned meeting of the Board of Directors shall be given to each
director, whether or not present at the time of the adjournment, if such notice
shall be given orally or in writing, by telephone, facsimile, telegraph or
telex, or by electronic mail or other electronic means, during normal business
hours, and at least three days' notice if by mail. Any business may be
transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
(b) At each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by the affirmative vote
of a majority of the directors present, unless a different vote shall be
required by law, the Certificate of Incorporation or these Bylaws.
SECTION 9. ACTION WITHOUT 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 of Directors or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and such writing or writings or transmission or transmissions are
filed with the minutes of proceedings of the Board of Directors or committee.
Such filing shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in electronic
form.
SECTION 10. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
SECTION 11. COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate one or more committees, each such
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. 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 Bylaws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend
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or to authorize the issuance of stock. Each committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when required.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS DESIGNATED. The officers of the Corporation shall
include, if and when designated by the Board of Directors, a President, a
Secretary and a Treasurer, all of whom shall be elected at the annual
organizational meeting of the Board of Directors. The Board of Directors may
also appoint other officers as are desired, including a Chief Executive Officer,
a Chief Financial Officer, a Controller, one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers, Assistant Controllers and such other officers
and agents as may be appointed in accordance with the provisions of Section 3(h)
of this Article IV. The Board of Directors may assign such additional titles to
one or more of the officers as it shall deem appropriate. In the event there are
two or more Vice Presidents, then the directors may, at the time of the election
of the officers, by resolution determine the order of their rank. Any one person
may hold any number of offices of the Corporation at any one time unless
specifically prohibited therefrom by law.
SECTION 2. COMPENSATION OF OFFICERS. The Board of Directors shall have
authority (a) to fix the compensation, whether in the form of salary, bonus,
stock options or otherwise, of all officers or employees and (b) to authorize
officers of the Corporation to fix the compensation of subordinate employees.
SECTION 3. TENURE AND DUTIES OF OFFICERS.
(a) ELECTION, REMOVAL AND VACANCIES. All officers shall hold office
at the pleasure of the Board of Directors and until their successors shall have
been duly elected and qualified, unless their earlier resignation or removal.
Any officer elected or appointed by the Board of Directors may be removed at any
time by the Board of Directors. If the office of any officer becomes vacant for
any reason, the vacancy may be filled by the Board of Directors.
(b) CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the Board of Directors to the Chairman of the Board, if
any, the Chief Executive Officer, if such officer is appointed, shall, subject
to the control of the Board of Directors, have general supervision, direction
and control of the business and officers of the Corporation. In the event of the
death, disability or other absence of the Chairman of the Board, the duties of
the Chairman of the Board may be performed by the Chief Executive Officer,
including presiding at any meeting of the Board of Directors or the stockholders
of the Corporation. The Chief Executive Officer may execute (in facsimile or
otherwise) and deliver certificates for shares of the Corporation, any deeds,
mortgages, bonds, contracts or other instruments that the Board of Directors has
authorized to be executed and delivered, except in cases where the execution and
delivery thereof shall be required by applicable law to be executed and
delivered by another person. The Chief Executive Officer shall have the power
and authority to appoint one or more Vice Presidents of various rank or other
officers of the
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Corporation, which power shall not be exclusive of any right of the Board of
Directors to elect or appoint such officers.
(c) PRESIDENT(S). Individuals appointed to the office of President
shall perform, under the direction and subject to the control of the Board of
Directors and the Chief Executive Officer, all duties incident to the office of
President and such other duties as the Board of Directors or Chief Executive
Officer may assign to such President from time to time. The President may
execute (in facsimile or otherwise) and deliver certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts or other instruments that
the Board of Directors or the Chief Executive Officer has authorized to be
executed and delivered, except in cases where the execution and delivery thereof
shall be expressly and exclusively delegated to one or more other officers or
agents of the Corporation by the Board of Directors or these Bylaws, or where
the execution and delivery thereof shall be required by applicable law to be
executed and delivered by another person. Individuals appointed to the office of
President of an organizational unit of the Corporation shall perform, under the
direction and subject to the control of the Board of Directors, the Chief
Executive Officer and the President of the Corporation and shall have such other
duties as the Board of Directors, Chief Executive Officer or President of the
Corporation may assign to such officers from time to time.
(d) VICE PRESIDENTS. Each Vice President of the Corporation shall
perform, under the direction and subject to the control of the Board of
Directors, the Chief Executive Officer or President, such duties as the Board of
Directors, the Chief Executive Officer, any President or such other officer or
officers may assign to such Vice President from time to time. Vice Presidents of
the Corporation may be further designated as Corporate Executive Vice
Presidents, Executive Vice Presidents, Senior Vice Presidents, Corporate Vice
Presidents, Assistant Vice Presidents or such other similar title as the Board
of Directors, the Chief Executive Officer, any President or such other officer
or officers may designate.
(e) SECRETARY. The Secretary of the Corporation or his or her
designee shall attend all meetings of the stockholders of the Corporation, the
Board of Directors and committees established by the Board of Directors and
shall record correctly the proceedings of such meetings in a book suitable for
such purposes. The Secretary shall attest with a signature and the seal of the
Corporation (in facsimile or otherwise) all stock certificates issued by the
Corporation and shall keep or cause to be kept a stock ledger in which all
transactions pertaining to shares of all classes and series of capital stock of
the Corporation shall be correctly recorded. The Secretary shall also attest
with a signature and the seal of the Corporation (in facsimile or otherwise) all
deeds, conveyances or other instruments requiring the seal of the Corporation.
The Chairman of the Board, the Chief Executive Officer or the Secretary shall
give, or cause to be given, notice of all meetings of the stockholders of the
Corporation and special meetings of the Board of Directors or committees
established by the Board of Directors. The Secretary is authorized to issue
certificates, to which the corporate seal may be affixed, attesting to the
incumbency of officers of the Corporation or to actions duly taken by the
stockholders of the Corporation, the Board of Directors or any committee
established by the Board of Directors. The Secretary shall perform, under the
direction and subject to the control of the Board of Directors and the Chief
Executive Officer, all duties incident to the office of Secretary and such other
duties as the Board of Directors or the Chief Executive Officer may assign to
the Secretary from time to time. The duties of the Secretary may also be
performed by any Assistant Secretary of the Corporation. The Secretary shall
have the power and authority to appoint one or more Assistant Secretaries
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of the Corporation, which power shall not be exclusive of any right of the Board
of Directors to elect or appoint such officer.
(f) CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the
Corporation in general shall supervise all of the financial affairs of the
Corporation, under the direction and subject to the control of the Board of
Directors and the Chief Executive Officer, all duties incident to the office of
Chief Financial Officer and such other duties as the Board of Directors or the
Chief Executive Officer may assign to the Chief Financial Officer from time to
time.
(g) TREASURER. The Treasurer of the Corporation shall have the care
and custody of all the funds, notes, bonds, debentures, stock and other
securities of the Corporation that may come into the hands of the Treasurer,
acting in such capacity. The Treasurer shall be responsible for the investment
and reinvestment of funds of the Corporation in accordance with general
investment policies determined from time to time by the Corporation and shall
ensure that the Corporation is adequately funded at all times by arranging,
under the direction and subject to the control of the Board of Directors, the
Chief Executive Officer and the Chief Financial Officer, for the issuance of
debt, equity and other forms of securities that may be necessary or appropriate.
The Treasurer may endorse (in facsimile or otherwise) checks, drafts, notes,
bonds, debentures and other instruments for the payment of money for deposit or
collection when necessary or appropriate and may deposit the same to the credit
of the Corporation in such banks or depositories as the Board of Directors may
designate from time to time, and the Treasurer may endorse (in facsimile or
otherwise) all commercial documents requiring endorsements for or on behalf of
the Corporation. The Treasurer may deliver instructions to financial
institutions by facsimile or otherwise. The Treasurer may execute (in facsimile
or otherwise) all receipts and vouchers for payments made to the Corporation.
The Treasurer shall render an account of the Treasurer's transactions to the
Board of Directors or its Audit Committee as often as the Board of Directors or
its Audit Committee shall require from time to time. The Treasurer shall enter
regularly in the books to be kept by the Treasurer for that purpose, a full and
adequate account of all monies received and paid by the Treasurer on account of
the Corporation. If required by the Board of Directors, the Treasurer shall give
a bond to the Corporation for the faithful performance of the Treasurer's
duties, the expenses of which bond shall be borne by the Corporation. The
Treasurer shall perform, under the direction and subject to the control of the
Board of Directors, the Chief Executive Officer and the Chief Financial Officer,
all duties incident to the office of Treasurer and such other duties as the
Board of Directors, the Chief Executive Officer or the Chief Financial Officer
may assign to the Treasurer from time to time. The duties of the Treasurer may
be performed by any Assistant Treasurer of the Corporation. The Treasurer shall
have the power and authority to appoint one or more Assistant Treasurers of the
Corporation, which power shall not be exclusive of any right of the Board of
Directors to elect or appoint such officer.
(h) CONTROLLER. The Controller of the Corporation shall be the chief
accounting officer of the Corporation, shall maintain adequate records of all
assets, liabilities and transactions of the Corporation and shall be responsible
for the design, installation and maintenance of accounting and cost control
systems and procedures throughout the Corporation. The Controller also shall
keep in books belonging to the Corporation full and accurate accounts of
receipts of, and disbursements made by, the Corporation. The Controller shall
render an
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account of the Controller's transactions to the Board of Directors or its Audit
Committee as often as the Board of Directors or its Audit Committee shall
require from time to time. The Controller shall perform, under the direction and
subject to the control of the Board of Directors, the Chief Executive Officer
and the Chief Financial Officer, all duties incident to the office of Controller
and such other duties as the Board of Directors, the Chief Executive Officer and
the Chief Financial Officer, may assign to the Controller from time to time. The
duties of the Controller may also be performed by any Assistant Controller of
the Corporation. The Controller shall have the power and authority to appoint
one or more Assistant Controllers of the Corporation, which power shall not be
exclusive of any right of the Board of Directors to elect or appoint such
officer.
(i) SUBORDINATE OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 4. DELEGATION OF AUTHORITY. The Board of Directors may from time to
time delegate the powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving
notice in writing or by electronic transmission notice to the Board of
Directors, the President or to the Secretary. Any such resignation shall be
effective when received by the person or persons to whom such notice is given,
unless a later time is specified therein, in which event the resignation shall
become effective at such later time. Unless otherwise specified in such notice,
the acceptance of any such resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights, if any, of
the Corporation under any contract with the resigning officer.
SECTION 6. REMOVAL. Any officer may be removed from office at any time,
either with or without cause, by the affirmative vote of a majority of the
directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
SECTION 1. EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors may,
in its discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the Corporation
any corporate instrument or document, or to sign on behalf of the Corporation
the corporate name without limitation, or to enter into contracts on behalf of
the Corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the Corporation.
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All checks and drafts drawn on banks or other depositaries on funds to the
credit of the Corporation or in special accounts of the Corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
Unless 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.
SECTION 2. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and
other securities of other corporations owned or held by the Corporation for
itself, or for other parties in any capacity, shall, if permitted by law, be
voted, and all proxies with respect thereto shall be executed, by the person
authorized so to do by resolution of the Board of Directors, or, in the absence
of such authorization, by the Chairman of the Board, the President, if elected,
or the Chief Executive Officer, if elected.
ARTICLE VI
SHARES OF STOCK
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. Shares of the Corporation's
Stock may be certificated or uncertificated, as provided under Delaware law.
Certificates for the shares of stock of the Corporation shall be in such form as
is consistent with the Certificate of Incorporation and applicable law. Every
holder of stock in the Corporation shall be entitled to have a certificate
signed by or in the name of the Corporation by the President or vice-president
and by the Treasurer or an assistant treasurer or the Secretary or an assistant
secretary, certifying the number of shares owned by such holder in the
Corporation. Any or all of the signatures on the certificate may be facsimiles.
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 with the same effect as if he or she were such officer, transfer
agent, or registrar at the date of issue.
SECTION 2. 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 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 Delaware General Corporation Law (the "DGCL"), 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.
SECTION 3. LOST CERTIFICATES. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost,
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stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. The
Corporation may require, as a condition precedent to the issuance of a new
certificate or certificates, the owner of such lost, stolen, or destroyed
certificate or certificates, or the owner's legal representative, to agree to
indemnify the Corporation in such manner as it shall require and to give the
Corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen, or destroyed.
SECTION 4. TRANSFERS.
(a) Transfers of record of shares of stock of the Corporation shall
be made only upon its books by the holders thereof, in person or by attorney
duly authorized, and, in the case of stock represented by a certificate, upon
the surrender of a properly endorsed certificate or certificates for a like
number of shares.
(b) 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 DGCL.
SECTION 5. FIXING RECORD DATES. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, 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 a
record date 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. 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.
SECTION 6. 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, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
DIVIDENDS
SECTION 1. DECLARATION OF DIVIDENDS. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation
and applicable law, if any, may be declared by the Board of Directors pursuant
to law at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of capital stock, subject to the provisions of the
Certificate of Incorporation and applicable law.
SECTION 2. DIVIDEND RESERVE. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board
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of Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Board of Directors shall think conducive to the interests of the
Corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
ARTICLE VIII
FISCAL YEAR
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. INDEMNIFICATION.
(a) The Corporation shall 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 (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer 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 the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person 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 the person's 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 the person 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 reasonable cause to believe that the person's
conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such
15
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of
the Corporation shall be successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b) of this Section
1, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Section
1 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director or officer is proper in the circumstances because the
person has met the applicable standard of conduct set forth in paragraphs (a)
and (b) of this Section 1. Such determination shall be made (1) by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
or (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Section 1. Such expenses
(including attorneys' fees) incurred by former directors and officers may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section 1 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) The Board of Directors may authorize the Corporation to purchase
and maintain insurance on behalf of any person who is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under this Section 1 of this
Article IX.
(h) For purposes of this Section 1 of this Article IX, references to
"the Corporation" shall include, in addition to the resulting corporation, any
constituent corporation
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(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors or officers, so that any person who is or
was a director or officer of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Section 1 of this
Article IX with respect to the resulting or surviving corporation as the person
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Section 1 of this Article IX, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner the person reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Section 1 of this Article
IX.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 1 of this Article IX shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this Section 1 or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine the Corporation's obligation to advance expenses
(including attorneys' fees).
SECTION 2. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may have
or hereafter acquire under any applicable statute, provision of the Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The Corporation is specifically
authorized to enter into individual contracts with any or all of its directors
or officers respecting indemnification and advances, to the fullest extent not
prohibited by the DGCL or any other applicable law.
SECTION 3. AMENDMENTS. Any repeal or modification of this Article IX shall
only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the Corporation.
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ARTICLE X
INDEMNIFICATION OF EMPLOYEES AND AGENTS
The Corporation may indemnify every person who was or is a party or is or
was threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
or she 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 an employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
counsel fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding, to the extent permitted by applicable law.
ARTICLE XI
NOTICES
SECTION 1. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Written notice to stockholders of
stockholder meetings shall be given as provided in Article II, Section 2 herein.
Without limiting the manner by which notice may otherwise be given effectively
to stockholders under any agreement or contract with such stockholder, and
except as otherwise required by law, written notice to stockholders for purposes
other than stockholder meetings may be sent by United States mail or nationally
recognized overnight courier, or by facsimile, telegraph or telex or by
electronic mail or other electronic means.
(b) NOTICE TO DIRECTORS. Any notice required to be given to any
director may be given by the method stated in subsection (a), or as provided for
in Article III, Section 7 of these Bylaws. If such notice is not delivered
personally, it shall be sent to such address as such director shall have filed
in writing with the Secretary, or, in the absence of such filing, to the last
known post office address of such director.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the Board of Directors or by the stockholders subject to and only in
accordance with the provisions of the Certificate of Incorporation. The power to
adopt, amend or repeal Bylaws conferred upon the Board of Directors by the
Certificate of Incorporation shall not divest or limit the power of the
stockholders to adopt, amend or repeal Bylaws as set forth therein.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify that:
(1) I am the duly elected and acting Secretary of Skilled Healthcare
Group, Inc., a Delaware corporation; and
(2) the foregoing Amended and Restated Bylaws, comprising 18 pages,
constitute the Bylaws of said corporation as duly adopted by Board of Directors
of said corporation on April 19, 2007.
IN WITNESS WHEREOF, I have hereunto subscribed my name this ____ day
of April, 2007.
____________________________
Roland Rapp, Secretary