EXHIBIT 3.2
SECOND AMENDED AND RESTATED BY-LAWS
OF
VENCOR, INC.
ARTICLE I
OFFICES
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1.1. REGISTERED OFFICE. The registered office of the Corporation shall
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be in the City of Wilmington, County of New Castle, State of Delaware.
1.2. OTHER OFFICES. The Corporation may also have offices at such other
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places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
1.3. FISCAL YEAR. The Board of Directors of the Corporation shall have
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the power to fix, and from time to time change, the fiscal year of the
Corporation.
ARTICLE II
STOCKHOLDERS
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2.1. ANNUAL MEETING. The annual meeting of the stockholders of the
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Corporation, for the election of directors, the consideration of financial
statements and other reports, and the transaction of such other business as may
properly be brought before such meeting, shall be held no later than six months
following the end of the Corporation's fiscal year. The meeting shall be held
at such time and on such date as may be designated by the Board of Directors of
the Corporation. In the event the annual meeting is not held or if directors
are not elected at the annual meeting, a special meeting may be called and held
for that purpose.
2.2. BUSINESS TO BE CONDUCTED. At an annual meeting of stockholders,
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only such business shall be conducted, and only such proposals shall be acted
upon, as shall have been properly brought before the annual meeting of
stockholders (a) by, or at the direction of, the Board of Directors or (b) by a
stockholder of the Corporation who complies with the procedures set forth in
Article II. For business or a proposal to be properly brought before an annual
meeting of stockholders 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 60 days nor more
than 90 days prior to the scheduled date of the annual meeting, regardless of
any postponement, deferral or adjournment of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the annual meeting is given or made to stockholders, notice by
the stockholder to be timely must be so delivered or received not later than the
close of business on the 10th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed or (ii) the day on which 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 an annual meeting of stockholders (i) a
description, in 500 words or less, of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business and any other stockholders known by
such stockholder to be supporting such proposal, (iii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder on
the date of such stockholder's notice and by any other stockholders known by
such stockholder to be supporting such proposal on the date of such
stockholder's notice, (iv) a description, in 500 words or less, of any interest
of the stockholder in such proposal, and (v) a representation that the
stockholder is a holder of record of stock of the Corporation and intends to
appear in person or by proxy at the meeting to present the proposal specified in
the notice. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at a meeting of stockholders except in accordance
with the procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that the business was not properly brought before the
meeting in accordance with the procedures prescribed by this Article II, 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.
Notwithstanding the foregoing, nothing in this Article II shall be interpreted
or construed to require the inclusion of information about any such proposal in
any proxy statement distributed by, at the direction of, or on behalf of, the
Board of Directors.
2.3. SPECIAL MEETINGS. Special meetings of stockholders, unless
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otherwise prescribed by statute, may be called at any time only by the Board of
Directors or the Chairman of the Board of the Corporation.
2.4. PLACE OF MEETING. All meetings of the stockholders for the election
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of directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place either within or without the State of
Delaware as shall be stated in the notice of such meeting.
2.5. NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Written notice of the
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annual meeting or a special meeting stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
2.6. STOCKHOLDERS LIST. The officer who has charge of the stock ledger
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of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of
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each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
2.7. QUORUM AND ADJOURNMENT. At any meeting of stockholders, the holder
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of a majority of the issued and outstanding shares of stock entitled to vote
present in person or represented by proxy shall constitute a quorum. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the chairman of the meeting or a majority of the stockholders
entitled to vote at the meeting, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be presented or
represented.
2.8. VOTING. When a quorum is present or represented at any meeting, the
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vote of the holders of a majority of the shares of stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the Delaware General Corporation Law or of the Certificate of Incorporation
or of these By-Laws a different vote is required, in which case such express
provision shall govern and control the decision of such question.
2.9. PROXIES. At each meeting of the stockholders, each stockholder
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shall, unless otherwise provided by the Certificate of Incorporation, be
entitled to one vote in person or by proxy for each share of stock held by him
which has voting power upon the matter in question, but no proxy shall be voted
after three years from its date, unless the proxy provides for a longer period.
2.10. ACTION OF STOCKHOLDERS WITHOUT A MEETING.
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A. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken for or in connection with any corporate
action, whether by any provision of the Delaware General Corporation Law or of
the Certificate of Incorporation or these By-Laws or otherwise, such corporate
action 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 eighty percent of outstanding stock. 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.
B. In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, 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 of
Directors. 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 of Directors to fix a record date. The Board of
Directors 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 of Directors within ten (10) days
of the date on which such a request is received, the record date for determining
stockholders entitled to
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consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors 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
stockholders meetings are recorded, to the attention of the Secretary of the
Corporation. Delivery shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by 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 of Directors adopts the resolution taking such
prior action.
ARTICLE III
BOARD OF DIRECTORS
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3.1. MANAGEMENT OF CORPORATION. The business affairs of the Corporation
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shall be managed by its Board of Directors.
3.2. NUMBER OF DIRECTORS. The number of directors of the Corporation
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(exclusive of directors to be elected by the holders of one or more series of
the Preferred Stock of the Corporation which may be outstanding, voting
separately as a series or class) shall be fixed from time to time by action of
not less than a majority of the members of the Board of Directors then in
office, but in no event shall be less than three nor more than eleven.
3.3. ELECTION OF DIRECTORS. The directors shall be elected at the annual
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meeting of stockholders, or if not so elected, at a special meeting of
stockholders called for that purpose; provided, however, that if the Corporation
shall have no stockholders, directors may be appointed by the incorporators. At
any meeting of stockholders at which directors are to be elected, only persons
nominated as candidates shall be eligible for election, and the candidates
receiving the greatest number of votes shall be elected.
3.4. TERM. Each director shall hold office until the next annual meeting
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of the stockholders and until his successor has been elected or until his
earlier resignation, removal from office, or death.
3.5. REMOVAL. Any director or the entire Board of Directors may be
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removed with or without cause, at any time, by the affirmative vote of the
holders of record of a majority of the outstanding shares of stock entitled to
vote in the election of directors, at a special meeting of the stockholders
called for the purpose.
3.6. VACANCIES. Any vacancy occurring on the Board of Directors for any
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reason, including, but not limited to, the resignation, removal, or death of a
director or an increase in the number of authorized directors, a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his successor is elected and
qualified.
3.7. ANNUAL MEETING. After each annual election of directors, on the
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same day, the Board of Directors may meet for the purpose of organization, the
election of officers and the
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transaction of such other business at the place where the annual meeting of the
stockholders for the election of directors is held. Notice of such meeting need
not be given. Such meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or in a consent and waiver of notice thereof signed by all
the directors.
3.8. REGULAR MEETINGS. Regular meetings of the Board of Directors may be
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held at such places either within or without the State of Delaware and at such
time as the Board shall 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 which would otherwise be held on that day shall be held at such
place at the same hour and on the next succeeding business day not a legal
holiday. Notice of regular meetings need not be given.
3.9. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
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be held whenever called by the Chairman of the Board, Chief Executive Officer, a
majority of the directors or stockholders owning a majority in amount of the
entire capital stock of the Corporation issued and outstanding and entitled to
vote. Notice of each such meeting shall be given to each director, at least 24
hours before the day on which the meeting is to be held, in accordance with
Article IV of these By-Laws. Each such notice shall state the time and place
either within or without the State of Delaware of the meeting but need not state
the purpose thereof, except as otherwise provided by the Delaware General
Corporation Law or by these By-Laws. Notice of any meeting of the Board need not
be given to any director who is present at such meeting; and any meeting of the
Board shall be a legal meeting without any notice thereof having been given if
all of the directors then in office are present at the meeting unless a director
attends a 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.
3.10. QUORUM. Except as otherwise provided by the Delaware General
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Corporation Law or by the Certificate of Incorporation, a majority of the total
number of directors shall be required to constitute a quorum for the transaction
of business at any meeting, and the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present shall be necessary
for the adoption of any resolution or the taking of any other action.
3.11. TELEPHONE COMMUNICATIONS. Members of the Board of Directors or any
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committee thereof may participate in a meeting of such Board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute presence
in person at such meeting.
3.12. ACTION OF DIRECTORS WITHOUT A MEETING. Any action required or
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permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
of such committee, as the case may be, consent thereto in writing and such
written consent is filed with the minutes of proceedings of the Board or such
committee.
3.13. COMPENSATION. By resolution of the Board of Directors, each
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director may be paid his expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a stated annual stipend as director or a
fixed sum for attendance at each meeting of the Board of Directors. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
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3.14. COMMITTEES. The Board of Directors may, by resolution passed by a
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majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution and not prohibited by
the Delaware General Corporation Law, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it, and shall have the power and authority to declare a
dividend, to authorize the issuance of stock, and to adopt a certificate of
ownership and merger pursuant to Section 253 of the Delaware General Corporation
Law. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
3.15. GOVERNING BODIES. Each hospital owned or operated by the
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Corporation shall have a governing body consisting of three persons (the
"Governing Board"). Unless the Board of Directors otherwise directs, the
Governing Board for each hospital operated or owned by the Corporation shall be
comprised of the Corporation's Vice President, Finance; Vice President,
Operations; and the local hospital administrator. To the extent not prohibited
by Delaware law or by resolution of the Board of Directors, the Governing Board
of each hospital shall have the authority, and shall be responsible for, the
day-to-day operations and conduct of the hospital as an institution.
Additionally, the Governing Board shall carry out, with respect to the hospital,
the functions specified in 42 C.F.R. Part 482, as may be amended from time to
time or any successor section thereto, as such section may pertain to the
governing bodies of the hospitals.
ARTICLE IV
NOTICES
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4.1. NOTICES. Whenever, under the provisions of the Delaware General
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Corporation Law or of the Certificate of Incorporation or of these By-Laws,
notice is required to be given to any director or stockholder, such notice shall
be in writing, and shall be hand-delivered or sent by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon pre-paid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail
or, in the case of notice mailed from the United States to an overseas address,
ten (10) days after the same is deposited in the United States mail. Notice to
directors may also be given orally, in person or by telephone, or by telegram or
telex, and such notice shall be deemed to be given upon transmission, in the
case of a notice by telegram, or upon receipt of the answer back of the telex
machine of the receiving party, in the case of a notice by telex.
4.2. WAIVER OF NOTICE. Whenever any notice is required to be given under
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the provisions of the Delaware General Corporation Law or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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ARTICLE V
OFFICERS
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5.1. OFFICERS. The officers of the Corporation shall be a Chairman of
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the Board, Vice Chairman, Chief Executive Officer, President, one or more Vice
Presidents, a Secretary, a Treasurer, and, if the Board shall so determine, an
Assistant Secretary and an Assistant Treasurer. Any two or more offices may be
held by the same person.
5.2. ELECTION OF OFFICERS. The officers shall be elected by the Board of
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Directors and each shall hold office at the pleasure of the Board of Directors
until his successor shall have been duly elected and qualified, or until his
death, or until he shall resign or until he shall have been removed in the
manner hereinafter provided.
5.3. OTHER OFFICERS. In addition to the officers named in Article I, the
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Corporation may have such other officers and agents as may be deemed necessary
by the Board of Directors. Such other officers and agents shall be appointed in
such manner, have such duties and hold their offices for such terms, as may be
determined by resolution of the Board of Directors.
5.4. RESIGNATION. Any officer may resign at any time by giving written
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notice of his resignation to the Board of Directors or to the Chairman of the
Board of the Corporation. Any such resignation shall take effect at the time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.5. REMOVAL. Any officer may be removed, either with or without cause,
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by action of the Board of Directors.
5.6. VACANCY. A vacancy in any office because of death, resignation,
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removal or any other cause shall be filled by the Board of Directors.
5.7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
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all meetings of the stockholders and of the Board of Directors. Unless the Board
of Directors designates otherwise, the Chairman shall be the Chief Executive
Officer of the Corporation. He may sign certificates for shares of stock of the
Corporation, any deeds, mortgages, bonds, contracts, or other instruments which
the Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the Corporation,
or shall be required by law to be otherwise signed or executed. The Chairman of
the Board shall, in general, perform all duties incident to the office of
chairman of the board and such other duties as may be set forth in the By-Laws
or may be prescribed by the Board of Directors from time to time.
5.8. PRESIDENT. In the absence of the Chairman of the Board, the
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President shall preside at meetings of the stockholders and of the Board of
Directors. If the Board of Directors does not appoint a Chairman of the Board,
the President shall have the authority given the Chairman of the Board in these
By-Laws and shall be considered the Chief Executive Officer of the Corporation
unless the Board of Directors otherwise designates. The President may sign, with
the Secretary or an Assistant Secretary, certificates for shares of stock of the
Corporation; and shall perform such other duties as from time to time may be
assigned to him by the Chairman of the Board or by the Board of Directors.
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5.9. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have
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direct charge of the business of the Corporation, subject to the general control
of the Board of Directors, and shall be the chief executive officer of the
Corporation unless otherwise determined by the Board of Directors. The Chief
Executive Officer shall have direct charge of the daily operational aspects of
the Corporation's business, unless otherwise determined by the Board of
Directors, and shall have such other duties as may be assigned to him from time
to time by the Board of Directors or its Chairman.
5.10. VICE PRESIDENT. In the absence of the President, or in the event of
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his inability or refusal to act, the Vice President (or, in the event there be
more than one Vice President, the Vice Presidents in the order designated at the
time of their election, or in the absence of any designation, then in the order
of their election), shall perform all the duties of the President and such other
duties as from time to time may be assigned by the Board of Directors. The Vice
President may sign, with the Secretary or an Assistant Secretary, certificates
for shares of stock of the Corporation.
5.11. TREASURER. The Treasurer shall have charge and custody of and be
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responsible for all funds and securities of the Corporation; receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever, and deposit all such monies in the name of the Corporation in such
banks, trust companies and other depositories as shall be selected in accordance
with the provisions of Section 6.3; and, in general, perform all the duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him by the Chairman of the Board, the Chief Executive Officer
or the Board of Directors. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board of Directors shall determine.
5.12. SECRETARY. The Secretary shall (a) keep the minutes of the
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stockholders' meetings and of the Board of Directors' meetings in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by law; (c) be
custodian of the corporate records and of the seal, if any, of the Corporation;
(d) keep a register of the mailing address of each stockholder; (e) sign with
the Chairman of the Board or Vice-Chairman or President or Vice President
certificates for shares of stock of the Corporation; (f) have general charge of
the stock transfer books of the Corporation; and, in general, perform all duties
as from time to time may be assigned to him by the Chairman of the Board, the
Chief Executive Officer or by the Board of Directors.
5.13. POWERS AND DUTIES. In the absence of any officer of the
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Corporation, or for any reason the Board of Directors may deem sufficient, the
Board of Directors may delegate for the time being, the powers or duties of such
officer, or any of them, to any other officer or to any director. The Board of
Directors may from time to time delegate to any officer authority to appoint and
remove subordinate officers and to prescribe their authority and duties.
5.14. COMPENSATION. The compensation of the officers shall be fixed from
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time to time by the Board of Directors. Nothing contained herein shall preclude
any officer from serving the Corporation in any other capacity, including that
of director, or from serving any of its stockholders, subsidiaries or affiliated
corporations in any capacity, and receiving proper compensation therefor.
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ARTICLE VI
LOANS, CHECKS, DEPOSITS, ETC.
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6.1. GENERAL. All checks, drafts, bills of exchange or other orders for
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the payment of money, issued in the name of the Corporation, shall be signed by
such person or persons and in such manner as may from time to time be designated
by the Board of Directors, which designation may be general or confined to
specific instances.
6.2. LOANS AND EVIDENCES OF INDEBTEDNESS. No loan shall be contracted on
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behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors. Such authorization may be
general or confined to specific instances. Loans so authorized by the Board of
Directors may be effected at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual. All
bonds, debentures, notes and other obligations or evidences of indebtedness of
the Corporation issued for such loans shall be made, executed and delivered as
the Board of Directors shall authorize. When so authorized by the Board of
Directors, any part of or all the properties, including contract rights, assets,
business or good will of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligation or evidences of indebtedness of the Corporation, and of the interest
thereon, by instruments executed and delivered in the name of the Corporation.
6.3. BANKING. All funds of the Corporation not otherwise employed shall
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be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may authorize.
The Board of Directors may make such special rules and regulations with respect
to such bank accounts, not inconsistent with the provisions of these By-Laws, as
it may deem expedient. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders
for the payment of money which are payable to the order of the Corporation shall
be endorsed, assigned and delivered by such person or persons and in such manner
as may from time to time be authorized by the Board of Directors.
6.4. SECURITIES HELD BY THE CORPORATION. Unless otherwise provided by
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resolution adopted by the Board of Directors, the Chairman of the Board may from
time to time appoint an attorney or attorneys, or an agent or agents, to
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation to vote or to consent in respect of such stock or other
securities; and the Chairman of the Board may instruct the person or persons so
appointed as to the manner of exercising such powers and rights and the Chairman
of the Board may execute or cause to be executed in the name and on behalf of
the Corporation and under its corporate seal, or otherwise, all such written
proxies, powers of attorney or other written instruments as he may deem
necessary in order that the Corporation may exercise such powers and rights.
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ARTICLE VII
STOCK CERTIFICATES
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7.1. STOCK CERTIFICATES. Every stockholder shall be entitled to have a
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certificate certifying the number of shares of stock of the Corporation owned by
him, signed by, or in the name of the Corporation by the Chairman of the Board,
or Vice-Chairman, President or a Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation (except that when any such certificate is countersigned by a
transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee the signature of any such officers
may be facsimiles). If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except in the
case of restrictions on transfer of securities which are required to be noted on
the certificate, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
7.2. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may
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direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
7.3. RECORD DATES. In order that the Corporation may determine the
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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 record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
7.4. PROTECTION OF CORPORATION. The Corporation shall be entitled to
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recognize the exclusive right of a person registered on its books as the owner
of stock to receive dividends and shall not be bound to recognize any equitable
or other claim to or interest in such stock on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
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ARTICLE VIII
CORPORATE SEAL
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The Corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
EMERGENCY REGULATIONS
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The Board of Directors may adopt, either before or during an emergency, as
that term is defined by the Delaware General Corporation Law, any emergency
regulations permitted by the Delaware General Corporation Law which shall be
operative only during an emergency. In the event the Board of Directors does not
adopt any such emergency regulations, the special rules provided in the Delaware
General Corporation Law shall be applicable during an emergency as therein
defined.
ARTICLE X
AMENDMENTS
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These By-Laws may be amended or repealed or new by-laws adopted (a) by the
affirmative vote of the holders of at least 66 2/3% of the voting power of all
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class or (b) by action of the Board of
Directors at a regular or special meeting thereof. Any by-law made by the Board
of Directors may be amended or repealed by action of the stockholders at any
annual or special meeting of stockholders.
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