EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
SELECT MEDICAL CORPORATION
(a Delaware corporation and successor by merger to EGL Acquisition Corp.)
ARTICLE I.
OFFICES
The registered office of the Corporation in the State of Delaware shall be
located in the City of Wilmington, County of New Castle. The Corporation may
establish or discontinue, from time to time, such other offices within or
without the State of Delaware as may be deemed proper for the conduct of the
Corporation's business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
Section 2. Annual Meeting. The annual meeting of stockholders for
the election of Directors and the transaction of other business shall be held on
such date and at such place as may be designated by the Board of Directors. At
each annual meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before the
meeting.
Section 3. Special Meetings. A special meeting of the stockholders,
or of any class thereof entitled to vote, for any purpose or purposes, may be
called at any time by the Chairman of the Board of Directors, if any, or the
Chief Executive Officer or by order of the Board of Directors and shall be
called by the Secretary upon the written request of stockholders holding of
record such number of the outstanding shares of stock of the Corporation
representing at least 50% of the total number of votes entitled to be voted at
such meeting. Such written request shall state the purpose or purposes for which
such meeting is to be called.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
stating the place, date and hour of the meeting shall be given not less than ten
days or more than 60 days before the date on
which the meeting is to be held to each stockholder of record entitled to vote
thereat by delivering a notice thereof to him personally or by mailing such
notice in a postage prepaid envelope directed to him at his address as it
appears on the records of the Corporation, unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for him be
directed to another address, in which case such notice shall be directed to him
at the address designated in such request. Notice shall not be required to be
given to any stockholder who shall waive such notice in writing, whether prior
to or after such meeting, or who shall attend such meeting in person or by proxy
unless such attendance is for the express purpose of objecting, at the beginning
of such meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Every notice of a special meeting of the
stockholders, besides the time and place of the meeting, shall state briefly the
objects or purposes thereof.
Section 5. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of the stock
ledger to prepare and make, at least ten days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in his name. 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 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 be kept and produced at
the time and place of the meeting during the whole time thereof and subject to
the inspection of any stockholder who may be present. The original or duplicate
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
Section 6. Quorum. At each meeting of the stockholders, the holders
of record of such number of the issued and outstanding shares of stock of the
Corporation representing at least 50% of the total number of votes entitled to
be voted at such meeting, present in person or by proxy, shall constitute a
quorum for the transaction of business, except where otherwise provided by law,
the Certificate of Incorporation of the Corporation or these Bylaws. In the
absence of a quorum, any officer entitled to preside at, or act as secretary of,
such meeting shall have the power to adjourn the meeting from time to time until
a quorum shall be constituted.
Section 7. Voting. Unless otherwise provided in the Certificate of
Incorporation of the Corporation, every stockholder of record who is entitled to
vote shall at every meeting of the stockholders be entitled to one vote for each
share of stock held by him on the record date; provided, that 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 of such other
corporation is held by the Corporation, shall neither be entitled to vote nor
counted for quorum purposes. Nothing in this section shall be construed as
limiting the right of the Corporation to vote its own stock held by it in a
fiduciary capacity. At all meetings of the stockholders, a quorum being present,
all matters shall be decided by majority of the number of votes with respect to
the shares of stock held by stockholders present in person or by proxy, except
as otherwise required by law or the Certificate of Incorporation of the
Corporation. Unless demanded by a stockholder of the Corporation present in
person or by proxy at any meeting of the stockholders and entitled to vote
thereat or so directed by the chairman of the meeting or required by law, the
vote thereat on any question need not be by written ballot. On a vote by written
ballot, each ballot shall be signed by the stockholder voting, or in his name by
his proxy, if there be such proxy, and shall state the number of shares voted by
him and the number of votes to which each share is entitled.
Section 8. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period.
Section 9. Action Without a Meeting. Any action required to be taken
at any annual or special meeting of stockholders or any action which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing, it being
understood that any such action so taken by written consent shall be effective
upon the execution and delivery of such consent by the requisite holders
described above.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors.
Section 2. Election and Term. Except as otherwise provided in the
Certificate of Incorporation of the Corporation or as otherwise provided by law,
Directors shall be elected at the annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their successors
are elected and qualify, or until they sooner die, resign or are removed. Except
as otherwise provided in the Certificate of Incorporation of the Corporation, at
each annual meeting of stockholders, at which a quorum is present, the persons
receiving a plurality of the votes cast shall be the Directors. Acceptance of
the office of Director may be expressed orally or in writing, and attendance at
the organization meeting shall constitute such acceptance.
Section 3. Number. The number of Directors shall be such number as
shall be determined from time to time by the Board of Directors and shall be not
less than two (2) and not greater than twelve (12).
Section 4. Quorum and Manner of Acting. Unless otherwise provided by
law, the presence of 50% of the whole Board of Directors (or any committee
thereof) shall be necessary to constitute a quorum for the transaction of
business. In the absence of a quorum, a
majority of the Directors present may adjourn the meeting from time to time
until a quorum shall be present. Notice of any adjourned meeting need not be
given. At all meetings of the Board of Directors (or any committee thereof), a
quorum being present, all matters shall be decided by the affirmative vote of a
majority of the Directors present, except as otherwise required by law. The
Board of Directors (or any committee thereof) may hold its meetings at such
place or places within or without the State of Delaware as the Board of
Directors (or such committee) may from time to time determine or as shall be
specified in the respective notices, or waivers of notice, thereof.
Section 5. Organization Meeting. Immediately after each annual
meeting of stockholders for the election of Directors, the Board of Directors
shall meet at the place of the annual meeting of stockholders for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver of the
notice thereof signed by, or the attendance at such meeting of, all Directors
who may not have received such notice.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors (or any committee thereof) may be held at such place, within or
without the State of Delaware, as shall from time to time be determined by the
Board of Directors (or such committee). After there has been such determination,
and notice thereof has been once given to each member of the Board of Directors
(or such committee) as hereinafter provided for special meetings, regular
meetings may be held without further notice being given.
Section 7. Special Meetings; Notice. Special meetings of the Board
of Directors (or any committee thereof) shall be held whenever called by the
Chairman of the Board of Directors (or such committee), if any, the Chief
Executive Officer or by any two Directors. Notice of each such meeting shall be
mailed to each Director, addressed to him at his residence or usual place of
business, at least five days before the date on which the meeting is to be held,
or shall be sent to him at such place by e-mail or facsimile, or be delivered
personally or by telephone, not later than the day before the day on which such
meeting is to be held. Each such notice shall state the time and place of the
meeting and, as may be required, the purposes thereof. Notice of any meeting of
the Board of Directors (or any committee thereof) need not be given to any
Director if he shall sign a written waiver thereof either before or after the
time stated therein for such meeting, or if he shall be present at the meeting.
Unless limited by law, the Certificate of Incorporation of the Corporation,
these Bylaws or the terms of the notice thereof, any and all business may be
transacted at any meeting without the notice thereof having specifically
identified the matters to be acted upon.
Section 8. Removal of Directors. Except as otherwise provided in the
Certificate of Incorporation of the Corporation, any Director or the entire
Board of Directors may be removed, with or without cause, at any time, by action
of the holders of record of the issued and outstanding stock of the Corporation
representing a majority of the number of votes of all issued and outstanding
stock of the Corporation (a) present in person or by proxy at a meeting of
holders of such stock and entitled to vote thereon or (b) by a consent in
writing in the manner contemplated in Section 9 of Article II, and the vacancy
or vacancies in the Board of Directors
caused by any such removal may be filled by action of such a majority at such
meeting or at any subsequent meeting or at any time by consent.
Section 9. Resignations. Any Director of the Corporation may resign
at any time by giving written notice to the Chairman of the Board of Directors,
if any, the Chief Executive Officer, the President, any Vice President or the
Secretary of the Corporation. The resignation of any Director shall take effect
upon receipt of notice thereof or at such later time as shall be specified in
such notice, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 10. Vacancies. Except as otherwise provided in the
Certificate of Incorporation of the Corporation, any newly created directorships
and vacancies occurring in the Board of Directors by reason of death,
resignation, retirement, disqualification or removal, with or without cause, may
only be filled by the action of the holders of record of issued and outstanding
stock of the Corporation representing a majority of the number of votes of all
issued and outstanding stock of the Corporation (a) present in person or by
proxy at a meeting of holders of such stock and entitled to vote thereon or (b)
by a consent in writing in the manner contemplated in Section 9 of Article II.
The Director so chosen, whether selected to fill a vacancy or elected to a new
directorship, shall hold office until the next meeting of stockholders at which
the election of Directors is in the regular order of business, and until his
successor has been elected and qualifies, or until he sooner dies, resigns or is
removed.
Section 11. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors (or any committee
thereof) may be taken without a meeting if a written consent thereto is signed
by all members of the Board of Directors (or any committee thereof), and such
written consent is filed with the minutes or proceedings of the Board of
Directors.
Section 12. Telephonic Participation in Meetings. Members of the
Board of Directors (or any committee thereof) may participate in a meeting of
the Board of Directors (or any committee thereof) by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 13. Committees. The Board of Directors may appoint such
committees of the Board of Directors as it may deem appropriate, and such
committees shall exercise the authority delegated to them. The membership of any
such committee shall consist of such Directors as the Board of Directors may
deem advisable from time to time to serve. The Board of Directors may fill any
vacancies on any committee as they occur. Each committee shall meet as often as
its business may require.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be
designated by the Board of Directors and shall include such officers as the
Directors may from time to time determine, which officers may (but need not)
include a Chairman of the Board, a Vice Chairman of the Board, a Chief Executive
Officer, a President, one or more Vice Presidents (and in the case of each such
Vice President, with such descriptive title, if any, as the Directors shall deem
appropriate), a Secretary, an Assistant Secretary, and a Treasurer. The Board of
Directors also may elect one or more other officers as the Board of Directors
may determine. Any number of offices may be held by the same person. No officer
need be a Director of the Corporation.
Section 2. Election. Officers shall be chosen in such manner and
shall hold their offices for such terms as determined by the Board of Directors.
Each officer shall hold office until his or her successor has been elected and
qualified in his stead, or until his or her earlier death, resignation,
retirement, disqualification, or removal from office.
Section 3. Compensation. The Corporation shall have the authority to
pay and provide compensation and other benefits to its officers and employees.
The compensation and benefits of all officers of the Corporation shall be fixed
from time to time by the Board of Directors, unless otherwise delegated by the
Board of Directors to a particular committee or officer.
Section 4. Removal and Resignation; Vacancies. Any officer may be
removed for or without cause at any time by the Board of Directors, the Chief
Executive Officer or the President, if such powers of removal have been
expressly conferred by the Board of Directors, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Designation
of an officer shall not itself create contract rights. Any officer may resign at
any time by delivering a written notice of resignation, signed by such officer,
to the Board of Directors, the Chief Executive Officer or the President. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the Board of Directors. The Board of
Directors may abolish any office at any time unless prohibited by law or
statute.
Section 5. Authority and Duties of Officers. In addition to any
specifically enumerated duties, services, and powers, the officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified by law or statute, by the Certificate of
Incorporation, and by these Bylaws, or as the Board of Directors may from time
to time determine or as may be assigned to such officers by any competent
superior officer. The Board of Directors may also at any time limit or
circumvent the enumerated duties, services and powers of any officer. In
addition to the designation of officers and the enumeration of their respective
duties, services and powers, the Board of Directors may grant powers of
attorneys to individuals to act as agent for or on behalf of the Corporation, to
do any act which would be binding on the Corporation, to incur any expenditures
on behalf of or for the Corporation, or to
execute, deliver and perform any agreements, acts, transactions or other matters
on behalf of the Corporation. Such powers of attorney may be revoked or modified
as deemed necessary by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board shall,
if one is designated by the Board of Directors and if present, preside at all
meetings of the stockholders and of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned by the
Board of Directors. He shall assist the Directors in the formulation of the
policies of the Corporation, and shall be available to other officers for
consultation and advice.
Section 7. Vice Chairman of the Board. The Vice Chairman of the
Board, if one is designated by the Board of Directors, shall, in the absence of
the Chairman of the Board, preside at all meetings of the stockholders and of
the Board of Directors and exercise and perform such other powers and duties as
may be from time to time assigned by the Board of Directors.
Section 8. Chief Executive Officer. The Chief Executive Officer
shall have day-to-day supervision of the affairs of the Corporation, such powers
and duties subject at all times to the authority of the Board of Directors. In
the absence or disability of the Chairman of the Board and the Vice Chairman of
the Board, the Chief Executive Officer shall exercise the powers and perform the
duties of the Chairman of the Board.
Section 9. President. The President, if one is designated by the
Board of Directors, shall generally assist the Chief Executive Officer and shall
have such powers and perform such duties and services as shall from time to time
be prescribed or delegated to him by the Chief Executive Officer or the Board of
Directors. In the absence or disability of the Chief Executive Officer, the
President shall exercise the powers and perform the duties of the Chief
Executive Officer.
Section 10. Vice Presidents. Each Vice President that is designated
by the Board of Directors shall generally assist the President and shall have
such powers and perform such duties and services as shall from time to time be
prescribed or delegated to him by the President or the Board of Directors.
Section 11. Secretary. The Secretary, if one is designated by the
Board of Directors, shall have the following powers and duties:
(a) He or she shall keep or cause to be kept a record of all
the proceedings of the meetings of the stockholders and of the Board
of Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in
accordance with the provisions of these Bylaws and as required by
law.
(c) Whenever any committee shall be appointed pursuant to a
resolution of the Board of Directors, he or she shall furnish a copy
of such resolution to the members of such committee.
(d) He or she shall be the custodian of the records and of the
seal of the Corporation and cause such seal (or a facsimile thereof)
to be affixed to all certificates representing shares of the
Corporation prior to the issuance thereof and to all instruments the
execution of which on behalf of the Corporation under its seal shall
have been duly authorized in accordance with these Bylaws, and when
so affixed he or she may attest the same.
(e) He or she shall properly maintain and file all books,
reports, statements, certificates and all other documents and
records required by law, the Certificate of Incorporation or these
Bylaws.
(f) He or she shall have charge of the stock books and ledgers
of the Corporation and shall cause the stock and transfer books to
be kept in such manner as to show at any time the number of shares
of stock of the Corporation of each class issued and outstanding,
the names (alphabetically arranged) and the addresses of the holders
of record of such shares, the number of shares held by each holder
and the date as of which each became such holder of record.
(g) He or she shall sign (unless the Treasurer, an Assistant
Treasurer or an Assistant Secretary shall have signed) certificates
representing shares of the Corporation the issuance of which shall
have been authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties incident
to the office of Secretary and such other duties as may be specified
in these Bylaws or as may be assigned to him or her from time to
time by the Board of Directors, the Chief Executive Officer or the
President.
Section 12. Assistant Secretary. The Assistant Secretary, if one is
designated by the Board of Directors, shall generally assist the Secretary.
Section 13. Treasurer. The Treasurer, if one is designated by the
Board of Directors, or such other officer as may be designated by the Board of
Directors, shall be the chief accounting and financial officer of the
Corporation and have custody of all the funds, securities and other valuables of
the Corporation which may have or shall come into his or her hands. The
Treasurer shall have active control of and shall be responsible for all matters
pertaining to the accounts and finances of the Corporation and shall have such
powers and perform such duties as may be prescribed by the Chief Executive
Officer, the President, the Board of Directors or elsewhere in these Bylaws.
Section 14. Additional Officers. The Board of Directors may appoint
such other officers and agents as it may deem appropriate, and such other
officers and agents shall
hold their offices for such terms and shall exercise such powers and perform
such duties as may be determined from time to time by the Board of Directors.
The Board of Directors from time to time may delegate to the Chief Executive
Officer or President the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him or her, for or without cause.
Section 15. Security. The Board of Directors may require any
officer, agent or employee of the Corporation to provide security for the
faithful performance of his or her duties, in such amount and of such character
as may be determined from time to time by the Board of Directors.
ARTICLE V
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. Nature of Indemnity. 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 (a Proceeding),
whether civil, criminal, administrative, arbitrative, or investigative, or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was or has agreed to become a Director
or officer of the Corporation, or is or was serving or has agreed to serve at
the request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, limited liability company, partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise, or by
reason of any action alleged to have been taken or omitted in such capacity,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, provided that he or she acted in good faith and in a manner he or she
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 or her conduct was unlawful. The indemnification
provided in this Article V could involve indemnification for negligence or under
theories of strict liability. In the case of an action or suit by or in the
right of the Corporation to procure a judgment in its favor (1) the
indemnification of a Director or officer shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) 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
Delaware Court of Chancery or the court in which such 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 the Delaware Court of
Chancery or such other court shall deem proper. Notwithstanding the foregoing,
but subject to Section 5 of this Article V, the Corporation shall not be
obligated to indemnify a Director or officer of the Corporation in respect of a
Proceeding (or part thereof) instituted by such Director
or officer, unless such Proceeding (or part thereof) has been authorized by the
Board of Directors.
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 or she 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 his or her
conduct was unlawful.
The rights granted pursuant to this Article V shall be deemed contract
rights. No amendment, modification or repeal of this Article V shall have the
effect of limiting or denying any such rights with respect to actions taken or
Proceedings arising prior to any such amendment, modification or repeal.
Section 2. Successful Defense. To the extent that a present or
former Director or officer of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 of this Article V or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith.
Section 3. Determination that Indemnification is Proper. Any
indemnification of a present or former Director or officer of the Corporation
under Section 1 of this Article V (unless ordered by a court) shall be made by
the Corporation unless a determination is made that indemnification of the
Director or officer is not proper in the circumstances because he or she has not
met the applicable standard of conduct set forth in Section 1 of this Article V.
Any 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.
Section 4. Advance Payment of Expenses. The right to indemnification
conferred in this Article V shall include the right to be paid or reimbursed by
the Corporation the reasonable expenses incurred by a person of the type
entitled to be indemnified under Sections 1, 2, and 3 of this Article V who was,
is, or is threatened to be made a named defendant or respondent in a Proceeding
in advance of the final disposition of the Proceeding and without any
determination as to the person's ultimate entitlement to indemnification;
provided, however, that the payment of such expenses incurred by any such person
in advance of the final disposition of a Proceeding shall be made only upon
delivery to the Corporation of a written affirmation by such person of his or
her good faith belief that he or she has met the standard of conduct necessary
for indemnification under this Article V and a written undertaking, by or on
behalf of such person, to repay all amounts so advanced if it shall ultimately
be determined that such person is not entitled to be indemnified under this
Article V or otherwise. The Board of Directors may authorize the Corporation's
counsel to represent such present or former Director or officer in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
Section 5. Procedure for Indemnification of Directors and Officers.
Any indemnification of a Director or officer of the Corporation under Sections
1, 2, and 3 of this Article V, or advance of costs, charges and expenses to a
Director or officer under Section 4 of this Article V, shall be made promptly,
and in any event within thirty days, upon the written request of such person. If
a determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article V is required, and the Corporation
fails to respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expenses, in whole or
in part, or if payment in full pursuant to such request is not made within
thirty days, the right to indemnification or advances as granted by this Article
V shall be enforceable by the Director or officer in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 4 of this Article V
where the required undertaking, if any, has been received by or tendered to the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 1 of this Article V, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 1 of this Article V, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to such action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 6. Survival; Preservation of Other Rights. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director or officer who serves in any such capacity at any
time while these provisions are in effect and any repeal or modification thereof
shall not affect any right or obligation then existing with respect to any state
of facts then or previously existing or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Director or officer.
The indemnification and the advancement and payment of expenses provided
by this Article V shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any Bylaw, common or statutory law,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested Directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall 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.
Section 7. Insurance. The Corporation shall purchase and maintain
insurance, at its expense, to protect the Corporation and any person who is or
was or has agreed to become a Director or officer, or is or was serving at the
request of the Corporation as a Director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, limited liability company, partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise against
any expense, liability, or loss asserted against him or her or incurred by him
or her or on his or her behalf in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this Article
V, provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 8. Severability. If this Article V or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify and hold harmless each Director or
officer or any other person indemnified pursuant to this Article V as to costs,
charges and expenses (including reasonable attorneys' fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative to the full extent
permitted by any applicable portion of this Article V that shall not have been
invalidated and to the fullest extent permitted by applicable law.
Section 9. Limitation on Liability. No Director or officer shall be
personally liable, as such, for any action taken or omitted from being taken
unless: (i) such Director or officer breached or failed to perform the duties of
his office; and (ii) the breach or failure to perform constituted recklessness,
self-dealing or willful misconduct. The foregoing shall not apply to any
responsibility or liability under a criminal statute or liability for the
payment of taxes under Federal, state, or local law.
Section 10. Appearance as a Witness. Notwithstanding any other
provision of this Article V, the Corporation shall pay or reimburse expenses
incurred by a Director or officer in connection with his appearance as a witness
or other participation in a Proceeding at a time when he is not a named
defendant or respondent in the Proceeding.
Section 11. Indemnification of Employees and Agents. The
Corporation, by adoption of a resolution of the Board of Directors, may
indemnify and advance expenses to an employee or agent of the Corporation to the
same extent and subject to the same conditions under which it may indemnify and
advance expenses to Directors and officers under this Article V; and, the
Corporation may indemnify and advance expenses to persons who are not or were
not Directors, officers, employees or agents of the Corporation but who are or
were serving at the request of the Corporation as director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, limited liability company, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise
against any liability asserted against him or her and incurred by him or her in
such a capacity or arising out of his or her status as such a person to the same
extent that it may indemnify and advance expenses to Directors and officers of
the Corporation under this Article
ARTICLE VI.
SHARES AND THEIR TRANSFER
Section 1. Certificate for Stock. Every stockholder of the
Corporation shall be entitled to a certificate or certificates, to be in such
form as the Board of Directors shall prescribe, certifying the number of shares
of the capital stock of the Corporation owned by him. No certificate shall be
issued for partly paid shares.
Section 2. Stock Certificate Signature. The certificates for such
stock shall be numbered in the order in which they shall be issued and shall be
signed by the Chairman of the Board of Directors, if any, or the Chief Executive
Officer or any Vice President and by the Secretary or an Assistant Secretary or
the Treasurer of the Corporation, and its seal shall be affixed thereto. If such
certificate is countersigned (1) by a transfer agent other than the Corporation
or its employee, or, (2) by a registrar other than the Corporation or its
employee, the signatures of such officers of the Corporation may be facsimiles.
In case any officer of the Corporation who has signed, or whose facsimile
signature has been placed upon, any such certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
Section 3. Stock Ledger. A record shall be kept by the Secretary or
by any other officer, employee or agent designated by the Board of Directors of
the name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any such
certificate, the respective dates of cancellation.
Section 4. Cancellation. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be canceled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except,
subject to Section 7 of this Article VI, in cases provided for by applicable
law.
Section 5. Registrations of Transfers of Stock. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on the
books of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer clerk or a transfer agent
appointed as in Section 6 of this Article VI provided, and on 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; provided, that whenever any transfer of shares shall be made
for collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented to the Corporation
for transfer, both the transferor and the transferee request the Corporation to
do so.
Section 6. Regulations. The Board of Directors may make such rules
and regulations as it may deem expedient, not inconsistent with the Certificate
of Incorporation of the Corporation or these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any principal officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates of stock to bear
the signature or signatures of any of them.
Section 7. Lost, Stolen, Destroyed or Mutilated Certificates. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which shall become mutilated or shall be lost, stolen or destroyed,
proper evidence of such loss, theft, mutilation or destruction shall be procured
for the Board of Directors, and a sufficient indemnity bond in favor of the
Corporation shall be provided by the applicable stockholder, in each case, if it
so requires.
Section 8. Record Dates. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of 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, in advance, a date as a
record date for any such determination of stockholders. Such record date shall
not be more than sixty or less than ten days before the date of such meeting, or
more than sixty days prior to any other action. If a record date is not fixed by
the Board of Directors as aforesaid, (i) the date for determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the close of business on the day next preceding the day on which notice is
given, or if no notice is given, the day next preceding the day on which the
meeting is held, and (ii) the record date for determining stockholders for any
purpose other than that specified in clause (i) shall be the close of business
on the day on which the resolution of the Board of Directors relating thereto is
adopted.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 1. Corporate Seal. The Board of Directors shall authorize a
corporate seal, which shall be in such form as the Board of Directors may
decide. The Secretary shall be the custodian of the seal. The Board of Directors
may authorize a duplicate seal to be kept and used by any other officer.
Section 2. Voting of Stocks Owned by the Corporation. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may hold stock.
Section 3. Dividends. Subject to the provisions of the Certificate
of Incorporation of the Corporation, the Board of Directors may, out of funds
legally available therefor, at any regular or special meeting declare dividends
upon the capital stock of the Corporation as and when they deem expedient.
Before declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time
to time in their discretion deem proper for working capital or as a reserve
fund to meet contingencies or for equalizing dividends or for such other purpose
as the Board of Directors shall deem conducive to the interests of the
Corporation.
ARTICLE VIII.
AMENDMENTS
These Bylaws may be altered, amended or repealed by the Board of
Directors at any regular or special meeting of the Board of Directors or by the
affirmative vote of the holders of record of the issued and outstanding stock of
the Corporation representing a majority of the number of votes of all issued and
outstanding shares of the Corporation (i) present in person or by proxy at a
meeting of holders of such stock or (ii) by a consent in writing in the manner
contemplated in Section 9 of Article II; provided, that notice of the proposed
alteration, amendment or repeal is contained in the notice of such meeting.
Bylaws, whether made or altered by the stockholders or by the Board of
Directors, shall be subject to alteration or repeal by the stockholders as in
this Article VIII above provided.
* * * * *