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EXHIBIT 3.2
COMPREHENSIVE CARE CORPORATION
(a Delaware corporation)
RESTATED BYLAWS
Adopted March 24, 1994
As Amended January 18, 1994
ARTICLE I
OFFICES
Section 1.01 Registered office. The registered office of
Comprehensive Care Corporation (hereinafter called the "Corporation") in the
State of Delaware shall be at 229 South State Street, City of Dover, County of
Kent, and the name of the registered agent in charge thereof shall be The
Prentice-Hall Corporation Systems, Inc.
Section 1.02 Principal Office. The principal office for the
transaction of the business of the Corporation shall be at 16305 Swingley Ridge
Drive, Suite 100, Chesterfield, Missouri 63017. The Board of Directors
(hereinafter called the "Board") is hereby granted full power and authority to
change said principal office from one location to another.
Section 1.03 Other Offices. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 Annual Meetings. Annual meetings of the stockholders
of the Corporation for the purpose of electing directors and for the
transaction of such other proper business as may come before such meetings may
be held at such time, date and place as the Board shall determine by
resolution.
Section 2.02 Special Meetings. Special meetings of the
Corporation's stockholders for the transaction of any proper business may be
called at any time by the Board, the Chairman of the Board, the Vice Chairman,
or by the President.
Section 2.03 Place of Meetings. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of notice thereof.
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Section 2.04 Notice of Meetings. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of record entitled to vote at such
meeting by delivering a typewritten or printed notice thereof to him
personally, or by depositing such notice in the United States mail, in a
postage prepaid envelope, directed to him at his post office address furnished
by him to the Secretary of the Corporation for such purpose or, if he shall not
have furnished to the Secretary his address for such purpose, then at his post
office address last known to the Secretary, or by transmitting a notice thereof
to him at such address by telegraph, cable, telecopier or wireless. Except as
otherwise expressly required by law, no publication of any notice of a meeting
of the stockholders shall be required. Every notice of a meeting of the
stockholders shall state the place, date and hour of the meeting, and, in the
case of a special meeting, shall also state the purpose or purposes for which
the meeting is called. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall have waived such notice and
such notice shall be deemed waived by any stockholder who shall attend such
meeting in person or by proxy, except a stockholder who shall attend such
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened. Except as otherwise expressly required by law, notice of any
adjourned meeting of the stockholders need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken.
Whenever notice is required to be given to any stockholder to whom (i) notice
of two (2) consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent at a meeting to such person between such
two (2) consecutive annual meetings, or (ii) all, and at least two (2) payments
(if sent by First Class Mail) of dividends or interest on securities during a
twelve-month period, have been mailed addressed to such person at his address
as shown on the records of the Corporation and have been returned
undeliverable, the giving of such notice to such person shall not be required.
Any action or meeting which shall be taken or held without notice to such
person shall have the same force and effect as if such notice had been duly
given. If any person shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be given to such
person shall be reinstated.
Section 2.05 Notice of Stockholder Business at Annual Meeting. At
an annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board,
(b) otherwise properly brought before the meeting by or at the direction of the
Board, or (c) otherwise properly brought before the meeting by a stockholder.
For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than sixty (60) days nor more than ninety (90) days
prior to the meeting; provided, however, that in the event that less than
seventy (70) days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description
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of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address,
as they appear on the books of the Corporation, of the stockholder proposing
such business, (c) the class and number of shares of stock of the Corporation
which are beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business. Notwithstanding anything in the Bylaws to
the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2.05. The Chairman of
an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Section 2.05, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 2.06 Notice of Stockholder Nominees for Director. Only
persons who are nominated in accordance with the procedures set forth in this
Section 2.06 shall be eligible for election as directors. Nominations of
persons for election to the Board of the Corporation may be made at a meeting
of stockholders by or at the direction of the Board or by any stockholder of
the Corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this Section 2.06. Such
nominations, other than those made by or at the direction of the Board, shall
be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than seventy (70) days, notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as
a director, (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of stock of the Corporation which are beneficially
owned by such person and (iv) any other information relating to such person
that is required to be disclosed in solicitations of proxies for reelection of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including without
limitation such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected) ; and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
books of the Corporation, of such stockholder, and (ii) the class and number of
shares of stock of the Corporation which are beneficially owned by such
stockholder. At the request of the Board any person nominated by the Board for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the Bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
Section 2.07 Quorum. Except in the case of any meeting for the
election of directors summarily ordered as provided by law, the holders of
record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted thereat, present in person or by proxy,
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shall constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. In the absence of
a quorum at any meeting or any adjournment thereof, a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat or, in the absence therefrom of all the stockholders, any officer
entitled to preside at, or to act as secretary of, such meeting may adjourn
such meeting from tune to time. At any such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 2.08 Voting.
(a) Each stockholder shall, at each meeting of
the stockholders, be entitled to vote in person or by each share or fractional
share of the stock of the proxy Corporation having voting rights on the matter
in question and which shall have been held by him and registered in his name on
the books of the Corporation:
(i) On the date fixed pursuant to
Section 6.05 of the Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such meeting, or
(ii) If no such record date shall have
been so fixed, then (a) at the close of business on the day next preceding the
day on which notice of the of the meeting shall be given or (b) if notice of
the meeting shall be waived, at the close of business on the day next preceding
the day on which the meeting shall be held.
(b) Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors in such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the Corporation in a
fiduciary capacity shall be entitled to vote such stock. Persons whose stock
is pledged shall be entitled to vote, unless in the transfer by the pledgor on
the books of the Corporation he shall have expressly empowered the pledgee to
vote thereon, in which case only the pledgee, or his proxy, may represent such
stock and vote thereon. Stock having voting power standing of record in the
names of two (2) or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by entirety or
otherwise, or with respect to which two (2) or more persons have the same
fiduciary relationship, shall be voted in accordance with the provisions of the
General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by
the stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized and delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three (3) years from
its date unless said proxy shall provide for a longer period. The attendance
at any meeting of a stockholder who may theretofore have given a proxy shall
not have the effect of revoking the same unless he shall in writing so notify
the secretary of the meeting prior to the voting of the proxy. At any meeting
of the stockholders all matters, except as otherwise provided in the
Certificate of Incorporation, in the Bylaws or by law, shall be decided by the
vote of a majority in voting interest of the stockholders present in person or
by proxy and entitled to vote thereat
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and thereon, a quorum being present. The vote at any meeting of the
stockholders on any question need not be by ballot, unless so directed by the
chairman of the meeting. On a vote by ballot each ballot shall be signed by
the stockholder voting, or by his proxy, if there be such proxy, and it shall
state the number of shares voted.
Section 2.09 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of the stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the entire duration thereof, and may be inspected by any
stockholder who is present.
Section 2.10 Judges. If at any meeting of the stockholders a vote
by written ballot shall be taken on any question, the chairman of such meeting
may appoint a judge or judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of his
ability. Such judges shall decide upon the qualification of the voters and
shall report the number of shares represented at the meeting and entitled to
vote on such question, shall conduct and accept the votes, and, when the voting
is completed, shall ascertain and report the number of shares voted
respectively for and against the question. Reports of judges shall be in
writing and subscribed and delivered by them to the Secretary of the
Corporation. The judges need not be stockholders of the Corporation, and any
officer of the Corporation may be a judge on any question other than a vote for
or against a proposal in which he shall have a material interest.
Section 2.11 Stockholder Action By Written Consent Without A
Meeting.
(a) Any action which may be taken at any annual
or special meeting of stockholders may be taken without a meeting and without
prior notice, if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take that action at a
meeting at which all shares entitled to vote on that action were present and
voted. All such consents shall be filed with the Secretary of the Corporation
and shall be maintained in the corporate records. Any stockholder giving a
written consent, or the stockholder's proxy holders, or a transferee of the
shares or a personal representative of the stockholder or their respective
proxy holders, may revoke the consent by a writing received by the Secretary
before written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary of the Corporation.
(b) If, in the case of an action taken pursuant
to Section 2.11(a), the consents of all stockholders entitled to vote have not
been solicited in writing, or if the unanimous written consent of all such
stockholders shall not have been received, the Secretary of the Corporation
shall give prompt notice of the corporate action approved by the stockholders
without a meeting. This notice shall be given in the manner specified in
Section 2.04. In the
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case of the approval of any (i) amendment to the Certificate of Incorporation
of the Corporation; (ii) election to voluntarily wind up and dissolve the
Corporation; or (iii) distribution in dissolution other than in accordance
with the rights of holders of outstanding preferred stock as set forth in the
Certificate of Incorporation of the Corporation, the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
(c) Cumulative voting shall apply to any proposed
election of directors by written consent of stockholders to fill vacancies
and/or newly created directorships in the Board of Directors of the
Corporation, so that each stockholder shall be entitled to cast by written
consent as many votes as shall equal the number of votes which (except for this
provision and Article FOURTH, Section 1 of the Restated Certificate of
Incorporation of the Corporation) he would be entitled to cast for the election
of directors with respect to his shares of stock multiplied by the number of
vacancies and/or newly created directorships in the Board of Directors to be
filled, and he may cast by written consent all of such votes for a single such
director or may distribute them among the number of directors to be voted for,
or any two or more of them, as he may see fit. For purposes of this Section
2.11, when action relating to the election of directors is taken by
stockholders by written consent, stockholders taking such action by written
consent shall be referred to as having "cast vote(s)" for the election of such
director(s).
Section 2.12 Record Date For Stockholder Notice, Voting and Giving
Consents.
(a) For purposes of determining the stockholders
entitled to notice of or to vote at any meeting or any adjournment thereof, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board, and which
record date shall not be more than sixty (60) days or less than ten (10) days
before the date of any such meeting, and only stockholders of record on the
date so fixed are entitled to notice and to vote, notwithstanding any transfer
of any shares on the books of the Corporation after the record date, except as
otherwise provided in the General Corporation Law of the State of Delaware. If
the Board does not so fix a record date, the record date for determining
stockholders entitled to notice of or to vote at the meeting of stockholders
shall be at the close of business on the business day next preceding the day on
which notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine
the stockholders entitled to consent to corporate action in writing without a
meeting, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board, and which date shall not be more than ten (10) days after the date upon
which the resolution fixing the record date is adopted by the Board. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary,
request the Board to fix a record date. The Board shall promptly, but in all
events within ten (10) days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been fixed by
the Board within ten (10) days of the date on which such a request is receive,
the record date for
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determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board is required by applicable
law, shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or any officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required by applicable law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
date on which the Board adopts the resolution taking such prior action.
(c) In the event of the delivery to the
Corporation of a written consent or consents purporting to authorize or take
corporate action and/or related revocations (each such written consent or
related revocation is referred to in this Section 2.12 as a "Consent"), the
Secretary of the Corporation shall provide for safekeeping of such Consent and
shall immediately appoint duly qualified and objective inspectors to conduct,
as promptly as practical, such reasonable ministerial review as they deem
necessary or appropriate for the purpose of ascertaining the sufficiency and
validity of such Consent and all matters incident thereto, including, without
limitation, whether holders of shares having the requisite voting power to
authorize or take the action specified in the Consent have given consent. if
after such investigation the Secretary shall determine that the Consent is
valid, that fact shall be certified on the records of the Corporation kept for
the purpose of recording the proceedings of meetings of stockholders, and the
Consent shall be filed in such records, at which time the Consent shall become
effective as stockholder action.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 General Powers. The property, business and affairs
of the Corporation shall be managed by the Board.
Section 3.02 Number and Term of Office. The Corporation shall not
have less than three (3), nor more than fifteen (15) directors, with the exact
number at any given time to be fixed within these limits by approval of the
directors. The above-stated range and the number of authorized directors may
be changed only by an amendment of the Certificate of Incorporation or by an
amendment to this Section 3.02 duly adopted by the vote or written consent of
the holders of a majority of the outstanding shares entitled to vote.
Directors need not be stockholders. Each of the directors of the Corporation
shall hold office until his successor shall have been duly elected and shall
qualify or until he shall resign or shall have been removed in the manner
hereinafter provided.
Section 3.03 Election of Directors. The directors shall be
elected annually by the stockholders of the Corporation and at each such
election the persons receiving the greatest number of votes, up to the number
of directors to be elected, shall be the directors then elected. The election
of directors is subject to any provisions contained in the Certificate of
Incorporation
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relating thereto, including any provisions for a classified board and for
cumulative voting.
Section 3.04 Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately
upon its receipt; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.05 Vacancies. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors,
or any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until his successor shall have been elected and shall
qualify or until he shall resign or shall have been removed in the manner
hereinafter provided.
Section 3.06 Place of Meeting, Etc. The Board may hold any of its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution designate or as shall be designated
by the person or persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors may participate in any regular or
special meeting of the Board by means of a conference telephone or similar
communications equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 3.07 First Meeting. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
Section 3.08 Regular Meetings. Regular meetings of the Board may
be held at such times as the Board shall from time to time by resolution
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at
the same hour and place on the next succeeding business day not a legal
holiday. Except as provided by law, notice of regular meetings need not be
given.
Section 3.09 Special Meetings. Special meetings of the Board
shall be held whenever called by the Chairman, Vice Chairman, President or a
majority of the authorized number of directors to be held at the principal
office of the Corporation, or at such other place or places within or without
the State of Delaware as the person or persons calling the meeting shall
designate. Except as otherwise provided by law or by the Bylaws, notice of the
time and place of each such special meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least two (2)
days before the day on which the meeting is to be held, or shall be sent to him
at such place by telegraph, telecopier or cable or be delivered personally not
less than forty-eight (48) hours before the time at which the meeting is to be
held. Except where otherwise required by law or by the Bylaws, notice of the
purpose of a special meeting need not be given. Notice of any meeting of the
Board shall not be required to be given to any director who is present at such
meeting, except a director who shall attend such meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
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Section 3.10 Quorum and Manner of Acting. Except as otherwise
provided in the Bylaws or by law, the presence of a majority of the authorized
number of directors shall be required to constitute a quorum for the
transaction of business at any meeting of the Board, and all matters shall be
decided at any such meeting, a quorum being present, by the affirmative votes
of a majority of the directors present. In the absence of a quorum, a majority
of directors present at any meeting may adjourn the same from time to time
until a quorum shall be present. Notice of any adjourned meeting need not be
given. The directors shall act only as a Board, and the individual directors
shall have no power as such.
Section 3.11 Action By Consent. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board or committee.
Section 3.12 Removal of Directors. Subject to the provisions of
the Certificate of Incorporation, any director may be removed at any time,
either with or without cause, by the affirmative vote of the stockholders
having a majority of the voting power of the Corporation given at a special
meeting of the stockholders called for the purpose, except, if less than the
entire Board is to be removed, no director may be removed without cause if the
votes cast against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire Board of Directors.
Section 3.13. Compensation. No stated salary need be paid
directors, as such, for their services, but, by resolution of the Board, a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of the Board and an annual directors fee may be
paid. However, neither the payment of such compensation nor the reimbursement
of such expenses shall be construed to preclude any director from serving the
Corporation or its subsidiaries in any other capacity or in receiving
compensation therefor. Members of committees may be provided an allowance, by
Board resolution, for attending committee meetings.
Section 3.14. Committees. The Board may constitute and appoint
special committees to advise and assist in the supervision and management of
the affairs of the Corporation as provided by the Board in the resolution of
appointment or in subsequent directives. Such committees shall include an
audit committee and such other committees as the Board shall see fit. Each
committee constituted and appointed by the Board shall serve at the pleasure of
the Board and each committee shall include at least one member of the Board and
such further persons as the Board may designate. Each committee shall from
time to time report to and advise the Board on corporate affairs for its
particular area of responsibility and interest. The committees shall not take
action on behalf of the Corporation but shall make recommendations to the Board
of Directors.
ARTICLE IV
OFFICERS
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Section 4.01 Number. The officers of the Corporation shall be a
Chairman of the Board, a Vice Chairman, a President, one (1) or more vice
Presidents (the number thereof and their respective titles to be determined by
the Board), a Secretary, a Treasurer and such other officers as may be
appointed by the Board as the business of the Corporation may require. Any
number of offices may be held by the same person.
Section 4.02 Election, Term of Office and Qualifications. The
officers of the Corporation, except such officers as may be appointed in
accordance with Section 4.03, shall be elected annually by the Board at the
first meeting thereof held after the election thereof. Each officer shall hold
office until his or her successor shall have been duly chosen and shall qualify
or until his or her resignation or removal in the manner hereinafter provided.
Section 4.03 Assistants, Agents and Employees, Etc. In addition
to the officers specified in Section 4.01, the Board may appoint other
assistants, agents and employees as it may deem necessary or advisable,
including one (1) or more Assistant Secretaries, and one (1) or more Assistant
Treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as the Board may from time to time
determine. The Board may delegate to any officer of the Corporation or any
committee of the Board the power to appoint, remove and prescribe the duties of
any such assistants, agents or employees.
Section 4.04 Removal. Any officer, assistant, agent or employee
of the Corporation may be removed, with or without cause, at any time: (i) in
the case of an officer, assistant, agent or employee appointed by the Board,
only by resolution of the Board; and (ii) in the case of an officer, assistant,
agent or employee appointed by any officer of the Corporation or committee of
the Board, by any officer of the Corporation or committee of the Board upon
whom or which such power of removal may be conferred by the Board.
Section 4.05 Resignations. Any officer or assistant may resign at
any time by giving written notice of his or her resignation to the Board or the
Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein, or, if the time be not specified, upon receipt thereof
by the Board or the Secretary, as the case may be; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or other cause, may be filled for the
unexpired portion of the term thereof in the manner prescribed in the Bylaws
for regular appointments or elections to such office.
Section 4.07 Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board.
Section 4.08 Vice Chairman. The Vice Chairman shall be the Chief
Administrative Officer of the Corporation. At the request of the Chairman, or
in case of the Chairman's absence or inability to act upon the request of the
Board, the Vice Chairman shall also perform the duties of Chairman and when so
acting, shall have all the powers of, and be subject to all restrictions upon,
the Chairman.
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Section 4.09 The President. The President of the Corporation
shall be the Chief Executive Officer of the Corporation and shall have, subject
to the control of the Board, general and active supervision and management over
the business of the Corporation and over its several officers, assistants,
agents and employees.
Section 4.10 The Vice Presidents. Each Vice President shall have
such powers and perform such duties as the Board may from time to time
prescribe.
Section 4.11 The Secretary. The Secretary shall, if present,
record the proceedings of all meetings of the Board, of the stockholders, and
of all committees of which a secretary shall not have been appointed in one (1)
or more books provided for that purpose; shall see that all notices are duly
given in accordance with the Bylaws and as required by law; shall be custodian
of the seal of the Corporation and shall affix and attest the seal to all
documents to be executed on behalf of the Corporation under its seal; and, in
general, shall perform all the duties incident to the office of Secretary and
such other duties as may from time to time be assigned to the Secretary by the
Board.
Section 4.12 The Treasurer. The Treasurer shall have the general
care and custody of the funds and securities of the Corporation, and shall
deposit all such funds in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected by the Board. The
Treasurer shall receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever. The Treasurer shall exercise general
supervision over expenditures and disbursements made by officers, agents and
employees of the Corporation and the preparation of such records and reports in
connection therewith as may be necessary or desirable. The Treasurer shall, in
general, perform all other duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to the Treasurer by the
Board.
Section 4.13 Compensation. None of the officers shall be
prevented from receiving compensation by reason of the fact that he is also a
director of the Corporation. Nothing contained herein shall preclude any
officer from serving the Corporation, or any subsidiary corporation, in any
other capacity and receiving such compensation by reason of the fact that he is
also a director of the Corporation. Nothing contained herein shall preclude
any officer from serving the Corporation, or any subsidiary corporation, in any
other capacity and receiving proper compensation therefor.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 5.01 Execution of Contracts. The Board, except as in the
Bylaws otherwise provided, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by the Bylaws, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
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Section 5.02 Checks, Drafts, Etc. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board. Each such officer, assistant, agent or attorney
shall give such bond, if any, as the Board may require.
Section 5.03 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select,
or as may be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to whom such power
shall have been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the Chairman, Vice
Chairman, President, any Vice President or the Treasurer (or any other officer
or officers, assistant or assistants, agent or agents, or attorney or attorneys
of the Corporation who shall from time to time be determined by the Board) may
endorse, assign and deliver checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation.
Section 5.04 General and Special Bank Accounts. The Board may
from time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board
may select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 6.01 Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman, Vice Chairman, President or a Vice President, and by the Secretary or
an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any of
or all of the signatures on the certificates may be a facsimile. In case any
officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon, any such certificate, shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued,
such certificate may nevertheless be issued by the Corporation with the same
effect as though the person who signed such certificate, or whose facsimile
signature shall have been placed thereupon, were such officer, transfer agent
or registrar at the date of issue. A record shall be kept of the respective
names of the persons, firms or corporations owning the stock represented by
such certificates, the number and class of shares represented by such
certificates, respectively, and the respective dates thereof, and in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be canceled, and
no new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have
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been so canceled, except in cases provide for in Section 6.04 hereof.
Section 6.02 Transfers of Stock. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by his or her attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.03
hereof, and upon surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon. The person in whose
name shares of stock stand on the books of the Corporation shall be deemed the
owner thereof for all purposes as regards the Corporation. Whenever any
transfer of shares shall be made for collateral security, and not absolutely,
such fact shall be so expressed in the entry of transfer if, when the
certificate or certificates shall be presented to the Corporation for transfer,
both the transferror and the transferee request the Corporation to do so.
Section 6.03 Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with the Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one (1) or more transfer clerks or one (1) of more
transfer agents and one (1) or more registrars, and may require all
certificates for stock to bear the signature or signatures of any of them.
Section 6.04 Lost, Stolen, Destroyed, and Mutilated Certificates.
In any case of loss, theft, destruction, or mutilation of any certificate of
stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper so to do.
Section 6.05 Record Date for Purposes Other Than Notice and
Voting. For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action (other than
action by stockholders by written consent without a meeting), the Board may fix
a record date which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which shall not be more than
sixty (60) days before any such action, and in that case only stockholders of
record on the date so fixed are entitled to receive the dividend, distribution
or allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation
after the record date so fixed, except as otherwise provided in the General
Corporation Law of the State of Delaware. If the Board does not so fix a
record date, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
ARTICLE VII
INDEMNIFICATION
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Section 7.01 Indemnification of Directors and Officers. The
Corporation shall, to the fullest extent permitted by law, indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including without limitation an action by or
in the right of the Corporation) by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that he
had reasonable cause to believe that his conduct was unlawful.
Section 7.02 Advance of Expenses. Costs and expenses (including
attorneys' fees) incurred by or on behalf of a director, officer, employee or
agent in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if such director, officer, employee or agent shall
undertake in writing to repay any such advances in the event that it is
ultimately determined that he is not entitled to indemnification.
Notwithstanding the foregoing, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board of Directors by a
majority vote of a quorum of disinterested directors, or (if such a quorum is
not obtainable or, even if obtainable, a quorum of disinterested directors so
directs) by independent legal counsel, that, based upon the facts known to the
Board or counsel at the time such determination is made, (a) the director,
officer, employee or agent acted in bad faith or deliberately breached his duty
to the Corporation or its stockholders, and (b) as a result of such actions by
the director, officer, employee or agent, it is more likely than not that it
will ultimately be determined that such director, officer, employee or agent is
not entitled to indemnification.
Section 7.03 Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or as a member of any
committee or similar body against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article or applicable law.
Section 7.04 Non-Exclusivity. The right of indemnity and
advancement of expenses provided herein shall not be exclusive, and the
Corporation may provide indemnification or advancement of expenses to any
person, by agreement or otherwise, on such terms and conditions as the Board
of Directors may approve. Any agreement for indemnification of or advancement
of expenses to any director, officer, employee or other person may provide to
any
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rights of indemnification or advancement of expenses which are broader or
otherwise different from those set forth herein.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Seal. The Board shall provide a corporate seal,
which shall be in the form of a circle and shall bear the name of the
Corporation and words and figures showing that the Corporation was incorporated
in the State of Delaware and the year of incorporation.
Section 8.02 Waiver of Notices. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice.
Section 8.03 Amendments. Except as otherwise provided in the
Bylaws, the Bylaws, or any of them, may be altered, amended or repealed, and
new Bylaws may be made (i) by the Board, by vote of a majority of the number
of directors then in office as directors, acting at any meeting of the Board,
or (ii) by the vote of the holders of a majority of the total voting power of
all outstanding shares of voting stock of the Corporation, at any annual
meeting of stockholders, without previous notice, or at any special meeting of
stockholders, provided that notice of such proposed amendment, modification,
repeal or adoption is given in the notice of special meeting. Except as
otherwise provided in these Bylaws, any Bylaws made or altered by the
stockholders may be altered or repealed by either the Board or the
stockholders.
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