Exhibit 3.2
FORM OF
AMENDED AND RESTATED
BY-LAWS
of
EMERGENCY MEDICAL SERVICES CORPORATION
(a Delaware corporation)
Adopted on ________ __, 2005
Table of Contents
ARTICLE I Certain Definitions; Offices; Notices to the Corporation...... 1
Section 1. Certain Definitions............................. 1
Section 2. Offices; Notices to the Corporation............. 3
ARTICLE II Meetings of Stockholders..................................... 3
Section 1. Annual Meetings of Stockholders................. 3
Section 2. Special Meetings of Stockholders................ 3
Section 3. Place and Notice of Meetings of Stockholders.... 3
Section 4. Nominations by Stockholders of Candidates for
Election as Directors........................... 4
Section 5. Advance Notice of Other Matters to be Presented
by Stockholders................................. 4
Section 6. Quorum for Stockholder Meetings................. 5
Section 7. Votes Per Share................................. 5
Section 8. Proxies......................................... 5
Section 9. Required Votes for Stockholder Action........... 6
Section 10. Ballots; Judges of Election..................... 6
Section 11. Action Without a Meeting........................ 6
ARTICLE III The Board of Directors...................................... 6
Section 1. Authority of the Board of Directors............. 6
Section 2. Number of Directors and Selection Thereof....... 6
Section 3. Nomination of Directors......................... 7
Section 4. Vacancies....................................... 7
Section 5. Annual Organizational Meeting of the Board...... 7
Section 6. Other Meetings of the Board..................... 7
Section 7. Quorum.......................................... 8
Section 8. Telephonic Participation........................ 8
Section 9. Chairman and Vice Chairman of the Board......... 8
Section 10. Lead Director................................... 8
Section 11. Committees of the Board......................... 9
Section 12. Director Compensation........................... 9
ARTICLE IV Officers..................................................... 9
Section 1. Officers Generally.............................. 9
Section 2. Chief Executive Officer......................... 10
Section 3. President....................................... 10
Section 4. Vice Presidents................................. 10
Section 5. Chief Financial Officer......................... 10
Section 6. Treasurer....................................... 10
Section 7. General Counsel................................. 11
Section 8. Secretary....................................... 11
Section 9. Assistant Treasurers; Assistant Secretaries..... 11
ARTICLE V Indemnification of Directors, Officers, Employees and Agents.. 11
ARTICLE VI Seal......................................................... 11
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ARTICLE VII Share Certificates and Transfers............................ 11
Section 1. Form of Share Certificates...................... 11
Section 2. Transfers of Record............................. 12
Section 3. Record Dates.................................... 12
ARTICLE VIII Fiscal Year................................................ 12
ARTICLE IX Other Special Approval Requirements.......................... 12
ARTICLE X Amendments.................................................... 12
ARTICLE XI Effective Time............................................... 13
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FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
EMERGENCY MEDICAL SERVICES CORPORATION
(a Delaware corporation)
Adopted as of _________________ _______, 2005
ARTICLE I
Certain Definitions; Offices; Notices to the Corporation
Section 1. Certain Definitions. Unless the context otherwise
requires, the following terms when used herein shall have the following
meanings:
(a) "CERTIFICATE OF INCORPORATION" means the Amended and Restated
Certificate of Incorporation, as filed with the Secretary of State of the State
of Delaware on _________ __, 2005, of the Corporation, as it may from time to
time be amended and in effect in accordance with law, and shall include any
certificate of designations determining the designation, voting rights,
preferences, limitations and special rights of any shares of the Corporation
which have been adopted by the Board as permitted by the certificate of
incorporation and the law, as then in effect.
(b) "BENEFICIAL OWNERSHIP has the same meaning as provided by
Regulation 13D-G under the Exchange Act, as from time to time in effect (and any
successor regulation).
(c) "BOARD" means the Board of Directors of the Corporation as
constituted in accordance with the Certificate of Incorporation and Article III
of the By-laws.
(d) "BUSINESS DAY" means any day other than a Saturday, a Sunday, or
any day on which banking institutions in New York, New York are required or
authorized to close by law or executive order.
(e) "BY-LAWS" means these By-laws, dated as of _________ ____, 2005,
as the same may from time to time be amended and in effect in accordance with
law. References in the By-laws to "herein," "hereof" or "hereto," or any like
reference, shall refer to the By-laws (as amended and in effect from time to
time) as a whole and not to any specific article, section, subsection,
paragraph, sentence or clause of the By-laws unless explicitly provided.
(f) "CLASS A COMMON STOCK" means the Class A Common Stock of the
Corporation, as designated in the Certificate of Incorporation.
(g) "CLASS B COMMON STOCK" means the Class B Common Stock of the
Corporation, as designated in the Certificate of Incorporation.
(h) "CLASS B SPECIAL VOTING STOCK" means the Class B Special Voting
Stock, as designated in the Certificate of Incorporation.
(i) "COMMON STOCK" means all common stock of the Corporation,
consisting of the Class A Common Stock and the Class B Common Stock.
(j) "CORPORATION" means Emergency Medical Services Corporation, the
Delaware corporation incorporated by the filing of a certificate of
incorporation with the Secretary of State of the State of Delaware on November
1, 2005.
(k) "EFFECTIVE TIME" means the effective time of these By-laws as
provided by Article XI hereof.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and as the same may be amended from time to time (and any successor
statute).
(m) "INDEPENDENT DIRECTOR" means a director who meets the criteria
of independence established by the standards for the listing of the Class A
Common Stock of the Corporation on the NYSE in order for such director to be
treated as independent under such listing standards; provided, however, that,
for purposes of Article IX hereof, a director shall not be considered to be
independent unless he or she, in addition to satisfying the foregoing
requirements, has, directly or indirectly, no personal or financial interest,
material to such director, in the transaction or category of transaction he or
she is to review and vote on.
(n) "LP EXCHANGEABLE UNITS" means the units representing limited
partnership interests in Emergency Medical Services L.P. designated as "LP
Exchangeable Units" and exchangeable for Class B Common Stock.
(o) "MINIMUM HOLD CONDITION" means, at any time, the state of
affairs where the number of outstanding shares of Class B Common Stock plus the
number of outstanding LP Exchangeable Units (other than those LP Exchangeable
Units owned by the Corporation or its Subsidiaries) is at least 10% of the
aggregate number of shares of Common Stock and LP Exchangeable Units then
outstanding (other than those LP Exchangeable Units owned by the Corporation or
its Subsidiaries). The Minimum Hold Condition is not satisfied if, at any time,
the foregoing requirement is not satisfied.
(p) "NON-MANAGEMENT DIRECTOR" means a director who is not then
serving as an executive officer of the Corporation or any Subsidiary.
(q) "NYSE" means the New York Stock Exchange.
(r) "SUBSIDIARY" means any company controlled, directly or
indirectly, by the Corporation. Unless otherwise determined by the Board, the
Corporation shall be considered to control any company of which it, directly or
through one of more Subsidiaries, owns a majority of the securities entitled to
vote in the election of the directors thereof (or persons performing similar
functions) or securities entitled to elect a majority of the directors thereof
(or persons performing similar functions) and any partnership of which it owns,
directly or through one or more Subsidiaries, a general partner interest and any
limited liability company of which it owns, directly or through one or more
Subsidiaries, a managing member interest, and the Corporation shall not be
considered to control a company in which it does not own, directly or through
one or more Subsidiaries, such an interest.
(s) "WHOLE BOARD" means all directors of the Corporation then in
office, whether or not present at a meeting of the Board, but disregarding
vacancies.
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Section 2. Offices; Notices to the Corporation. The registered
office of the Corporation is in the City of Wilmington, County of New Castle,
State of Delaware. The Corporation may have its principal office and other
offices at such other places both within and without the State of Delaware as
the Board may from time to time determine or the business of the Corporation may
require, and with the initial location of such principal office of the
Corporation to be located in Greenwood Village, Colorado. All notices to the
Corporation required or permitted by the By-laws may be addressed to the
principal office of the Corporation and shall be marked to the attention of the
Secretary unless otherwise provided herein.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings of Stockholders. An annual meeting of
stockholders shall be held in each year on such date and at such time as may be
set by the Board (or by an officer of the Corporation authorized to do so by the
Board) for the purpose of electing directors and the transaction of such other
business as may properly come before the meeting.
Section 2. Special Meetings of Stockholders. Special meetings of the
stockholders may be called at any time by the Board (or by an officer of the
Corporation authorized to do so by the Board), the Chief Executive Officer or
the Secretary. A special meeting of stockholders may also be called by the
holders having a majority of the voting power of all of the outstanding Common
Stock and Class B Special Voting Stock.
At any time, upon written request of any person or persons entitled
to call and who have duly called a special meeting, it shall be the duty of the
Secretary to set the date of the meeting, if such date has not been set by the
Board, on a day not more than 60 days after the receipt of the request, and to
give due notice of such meeting to the stockholders. If the Secretary shall
neglect or refuse to set the date of the meeting and give notice thereof, the
person or persons calling the meeting may do so.
Section 3. Place and Notice of Meetings of Stockholders. All
meetings of stockholders shall be held at the principal office of the
Corporation unless the Board (or an officer of the Corporation authorized to do
so by the Board) shall decide otherwise, in which case such meetings may be held
at such location within or without the State of Delaware as the Board may from
time to time direct. Written notice of the place, day and hour of all meetings
of stockholders and, in the case of a special meeting, of the general nature of
the business to be transacted at the meeting, shall be given to each stockholder
of record entitled to vote at the particular meeting either personally or by
sending a copy of the notice through the mail or by overnight courier to the
address of the stockholder appearing on the books of the Corporation or supplied
by him to the Corporation for the purpose of notice or by any other means,
including electronic means, permitted by law. Except as otherwise provided by
the By-laws or by law, such notice shall be given at least 10 days before the
date of the meeting by the Chief Executive Officer, President or Secretary. A
waiver in writing of any written notice required to be given, signed by the
person entitled to such notice, whether before or after the time stated, shall
be deemed equivalent to the giving of such notice. Attendance of a person,
either in person or by proxy, at any meeting shall constitute a waiver of notice
of such meeting, except where a person attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting was not
lawfully called or convened.
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Section 4. Nominations by Stockholders of Candidates for Election as
Directors. In addition to the nomination by the Board of candidates for election
to the Board as hereinafter provided, candidates may be nominated by any
stockholder of the Corporation entitled to notice of, and to vote at, any
meeting called for the election of directors. Subject to the last sentence of
this section, nominations, other than those made by or on behalf of the Board,
shall be made in writing and shall be received by the Secretary of the
Corporation not later than (a) with respect to an election of directors to be
held at an annual meeting of stockholders, 120 days prior to the anniversary
date of the immediately preceding annual meeting, provided that, if the date of
the annual meeting is more than 30 days before or after the anniversary date of
the immediately preceding annual meeting, the stockholder nomination shall be
received within 15 days after the public announcement by the Corporation of the
date of the annual meeting, and (b), with respect to an election of directors to
be held at a special meeting of stockholders, the close of business on the 15th
day following the date on which notice of such meeting is first given to
stockholders or public disclosure of the meeting is made, whichever is earlier.
Such nomination shall contain the following information to the extent known to
the notifying stockholder: (i) the name, age, business address and residence
address of each proposed nominee and of the notifying stockholder; (ii) the
principal occupation of each proposed nominee; (iii) a representation that the
notifying stockholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (iv) the class and total
number of shares of capital stock and other securities of the Corporation that
are Beneficially Owned by the notifying stockholder and by the proposed nominee
and, if such securities are not owned solely and directly by the notifying
stockholder or the proposed nominee, the manner of Beneficial Ownership; (v) a
description of all arrangements or understandings between the notifying
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the notifying stockholder; (vi) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Exchange Act had the nominee been nominated, or
intended to be nominated, by the Board; and (vii) the consent of each nominee to
serve as a director of the Corporation if so elected. The Corporation may
request any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the qualifications of the proposed
nominee to serve as a director of the Corporation. Within 15 days following the
receipt by the Secretary of a stockholder notice of nomination pursuant hereto,
the Corporate Governance and Nominating Committee shall instruct the Secretary
of the Corporation to advise the notifying stockholder of any deficiencies in
the notice as determined by the Board. The notifying stockholder shall cure such
deficiencies within 15 days of receipt of such notice. No persons shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the By-laws. Nominations not made in accordance herewith may, in
the discretion of the presiding officer at the meeting and with the advice of
the Corporate Governance and Nominating Committee, be disregarded by the
presiding officer and, upon his or her instructions, all votes cast for each
such nominee may be disregarded. The determinations of the presiding officer at
the meeting shall be conclusive and binding upon all stockholders of the
Corporation for all purposes. So long as the Minimum Hold Condition is
satisfied, the provisions of this section shall not apply to the nomination by
any holder(s) of Class B Common Stock or Class B Special Voting Stock of any
candidate for election as director; any such nominations shall be governed by
clause (a) or (b) of Section 5 of this Article II.
Section 5. Advance Notice of Other Matters to be Presented by
Stockholders. At any annual meeting or special meeting of stockholders, only
such business as is properly brought before the meeting in accordance with this
paragraph may be transacted.
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To be properly brought before any meeting, any proposed business must be either
(a) specified in the notice of the meeting (or any supplement thereto) given by
or at the direction of the Board or, so long as the Minimum Hold Condition is
satisfied, by any holder(s) of Class B Common Stock or Class B Special Voting
Stock, (b) otherwise properly brought before the meeting by or at the direction
of the Board or, so long as the Minimum Hold Condition is satisfied, by any
holder(s) of Class B Common Stock or Class B Special Voting Stock, or (c) if
brought before the meeting by a stockholder other than a holder of Class B
Common Stock or Class B Special Voting Stock, then (1) written notification of
such proposed business (a "STOCKHOLDER NOTIFICATION") must have been received by
the Secretary of the Corporation from a stockholder of record on the record date
for the determination of stockholders entitled to vote at such meeting not later
than (i), with respect to business to be proposed at an annual meeting of
stockholders, 120 days prior to the anniversary date of the immediately
preceding annual meeting (provided, that if the date of the annual meeting is
more than 30 days before or after the anniversary date of the immediately
preceding annual meeting, the Stockholder Notification must have been received
within 15 days after the public announcement by the Corporation of the date of
the annual meeting) and (ii) with respect to business to be proposed at a
special meeting of stockholders, the close of business on the 15th day following
the date on which notice of such meeting is first given to stockholders or
public disclosure of the meeting is made, whichever is earlier. Such Stockholder
Notification shall set forth the nature of and reasons for the proposal in
reasonable detail and, as to the stockholder giving notification, (A) the name
and address of such stockholder and (B) the class and series of all shares of
the Corporation that are owned beneficially by such stockholder.
Within 15 days following receipt by the Secretary of a Stockholder
Notification pursuant hereto, the Corporation shall advise the stockholder of
any deficiencies in the Stockholder Notification. The notifying stockholder may
cure such deficiencies within 15 days after receipt of such advice, failing
which the Stockholder Notification shall be deemed invalid.
Section 6. Quorum for Stockholder Meetings. At any meeting of the
stockholders, the presence, in person or by proxy, of stockholders entitled to
cast at least a majority of the votes which all stockholders are entitled to
vote upon a matter shall constitute a quorum for the transaction of business
upon such matter, and the stockholders present at a duly organized meeting can
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. If a meeting cannot be
organized because a quorum has not attended, those present may, except as
otherwise provided by law, adjourn the meeting to such time and place as they
may determine, but in the case of any meeting called for the election of
directors, those who attend the second of such adjourned meetings, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors.
Section 7. Votes Per Share. Except as otherwise provided in the
Certificate of Incorporation (including in respect of the voting rights of
shares of the Class B Common Stock and the share of Class B Special Voting
Stock), every stockholder of record shall have, at every stockholders' meeting,
one vote for every share standing in his or her name on the books of the
Corporation.
Section 8. Proxies. Every stockholder entitled to vote at a meeting
of stockholders may authorize another person or persons to act for him by proxy.
A proxy may be submitted to the Secretary by a stockholder in writing, by
telephone, electronically or any other means permitted by law.
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Section 9. Required Votes for Stockholder Action. Except in respect
of the election of directors (as to which a plurality of the votes of the shares
entitled to vote on the election of a director and voted in favor thereof shall
be required), all questions submitted to the stockholders and all actions by the
stockholders shall be decided by the affirmative vote of the stockholders
present, in person or by proxy, entitled to cast at least a majority of the
votes which all stockholders present are entitled to vote on the matter, unless
otherwise provided by the Certificate of Incorporation, the By-laws or by law.
For purposes of this section, in the event that a holder of shares of a class or
series which are entitled to vote on a matter is present in person or by proxy
at a meeting but is not permitted by reason of a legal disability or by a
contractual restriction or otherwise to vote the shares such holder holds on
such matter, the shares held by such holder and not so permitted to be voted
shall nevertheless be considered entitled to vote and present for purposes of
determining the number of votes required for stockholder action.
Section 10. Ballots; Judges of Election. Elections for directors
need not be by ballot but the Board of Directors or the presiding officer at a
meeting of stockholders may direct the use of ballots for voting at the meeting.
In advance of any meeting of stockholders, the Board may appoint judges of
election who need not be stockholders to act at such meeting or any adjournment
thereof, and if such appointment is not made, the presiding officer of any such
meeting may, and on request of any stockholder or his proxy shall, make such
appointment at the meeting. The number of judges shall be one or three and, if
appointed at a meeting on request of one or more stockholders or their proxies,
the majority of the shares present and entitled to vote shall determine whether
one or three judges are to be appointed. No person who is a candidate for office
shall act as a judge. In case any person appointed as judge fails to appear or
fails or refuses to act, the vacancy may be filled by appointment made by the
Board in advance of the convening of the meeting or at the meeting by the person
or officer presiding at the meeting. On request of the presiding officer of the
meeting or of any stockholder or his proxy, the judges shall make a report in
writing of any challenge or question or matter determined by them and execute a
certificate of any fact found by them.
Section 11. Action Without a Meeting. To the fullest extent and in
the manner permitted by law, any action required or permitted to be taken at a
meeting of the stockholders or of a class or series of stockholders may be taken
without a meeting of the stockholders or of such class or series of stockholders
upon the consent in writing signed by such stockholders who would have been
entitled to vote the minimum number of votes that would be necessary to
authorize the action at a meeting at which all the stockholders entitled to vote
thereon were present and voting. The consents shall be filed with the Secretary.
ARTICLE III
The Board of Directors
Section 1. Authority of the Board of Directors. Except as otherwise
provided by law and subject to the provisions of the Certificate of
Incorporation and the By-laws, all powers vested by law in the Corporation may
be exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, a Board that shall be
constituted as provided by law, the Certificate of Incorporation and the
By-laws.
Section 2. Number of Directors and Selection Thereof. The Board
shall consist of three or more members, the exact number of members to be
determined from time to time by resolution adopted by the affirmative vote of a
majority of the Whole Board, plus any members who may be elected exclusively by
the holders of one or more series of Preferred Stock of the Corporation, as
provided by the resolution or resolutions adopted by the Board of Directors and
setting the powers, preferences and rights of a series of Preferred
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Stock of the Corporation; provided, that no reduction in the number of members
shall end the term of office of any director earlier than such term of office
would otherwise end. Directors shall be selected as provided by law, the
Certificate of Incorporation and the By-laws (including section 4 of this
article III).
At the time set forth in the Certificate of Incorporation, the Board
shall be divided into three classes to be designated as Class I, Class II and
Class III. The number of directorships shall be apportioned among the classes so
as to maintain the classes as nearly equal in number as possible. The Board, by
resolution, shall designate the class in which each of the directors then in
office shall serve upon such classification. The terms of office of the classes
of directors so designated by the Board shall expire at the times of the annual
meetings of the stockholders as follows: Class I on the first annual meeting of
stockholders following the Effective Time, Class II on the second annual meeting
following the Effective Time and Class III on the third annual meeting following
the Effective Time, or thereafter in each case when their respective successors
are elected and qualified. The directors chosen to succeed those whose terms are
expiring at such annual meetings and thereafter shall be identified as being of
the same class as the directors whom they succeed, and shall be elected for a
term ending at the time of the third succeeding annual meeting of stockholders
following their election, or thereafter in each case when their respective
successors are elected and qualified.
Section 3. Nomination of Directors. Only persons who are nominated
in accordance with the provisions set forth in these By-laws shall be eligible
to be elected as directors at an annual or special meeting of stockholders.
Nomination for election to the Board shall be made by the Board of Directors or
Corporate Governance and the Nominating Committee of the Board. Nomination for
election of any person to the Board may also be made by a stockholder as
provided in Sections 4 and 5 of Article II.
Section 4. Vacancies. Vacancies on the Board (including any vacancy
created by an increase in the size of the Board) may be filled by the
affirmative vote of a majority of directors then in office or by a remaining
sole director. If there are no directors in office, then an election of
directors may be held in the manner provided by statute by a plurality of the
votes cast by the holders of shares of capital stock entitled to vote at a
special meeting of stockholders called for that purpose.
Section 5. Annual Organizational Meeting of the Board. The Board
shall hold an annual organizational meeting immediately following the annual
meeting of the stockholders at the place thereof, without notice in addition to
the notice of the annual meeting of stockholders, or at such other time as soon
as practicable after such meeting as the Board shall determine and shall at the
annual organizational meeting elect a Chief Executive Officer, a President, a
Secretary and a Treasurer of the Corporation and such other officers of the
Corporation as shall be provided by the By-laws or determined by the Board to be
appropriate, shall establish the standing committees of the Board provided by
the By-laws and may take such other action as the Board determines to be
appropriate. Officers of the Corporation and standing and other committees of
the Board may also be elected at any other time by the Board.
Section 6. Other Meetings of the Board. All meetings of the Board,
other than the annual organizational meeting, shall be held at the principal
office of the Corporation unless the Board (or the person or persons entitled to
call and calling the meeting) shall decide otherwise, in which case such
meetings may be held at such location within or without the State
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of Delaware as the Board (or the person or persons entitled to call and calling
the meeting) may from time to time direct. Regular meetings of the Board shall
be held at such time (and place) in accordance with such schedule as the Board
shall have determined in advance and no further notice of regular meetings of
the Board shall be required. The Non-Management Directors may meet in their
discretion without any member of management present to consider the overall
performance of management and the performance of the role of the Non-Management
Directors in the governance of the Corporation; such meetings may be held in
connection with a regularly scheduled meeting of the Board or as the
Non-Management Directors shall otherwise determine. The Independent Directors
shall meet without any other director from time to time as they determine is
appropriate. Special meetings of the Board may be called by the Lead Director
(if any), the Chairman of the Board (if any), a Vice Chairman of the Board, (if
any) the President or by any two or more directors by giving written notice at
least two Business Days in advance of the day and hour of the meeting to each
director (unless it is determined by the President, the Chairman of the Board
(if any) or the Lead Director (if any) to be necessary to meet earlier, in which
case no less than 24 hours written notice shall be given), either personally or
by facsimile, or other means including electronic means permitted by law.
Attendance at any meeting of the Board shall be a waiver of notice thereof,
unless such lack of notice is protested at the outset of the meeting. If all the
members of the Board are present at any meeting, no notice of the meeting shall
be required.
Section 7. Quorum. A majority of the whole number of the directors
then in office and entitled to vote on a particular matter shall constitute a
quorum for the transaction of business with respect to such matter, but if at
any meeting a quorum shall not be present, the meeting may adjourn from time to
time until a quorum shall be present.
Section 8. Telephonic Participation. Directors may participate in a
meeting of the Board or a committee thereof by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
Section 9. Chairman and Vice Chairman of the Board. The Board may,
by resolution adopted by a majority of the Whole Board, at any time designate
one of its members as Chairman of the Board. The Chairman of the Board shall
preside at the meetings of the Board, shall be responsible for the orderly
conduct by the Board of its oversight of the business and affairs of the
Corporation and its other duties as provided by law, the Certificate of
Incorporation and the By-laws and shall have such other authority and
responsibility as the Board may designate. The Board may, by resolution adopted
by a majority of the Whole Board, at any time also designate one or more of its
members as Vice Chairman of the Board. A Vice Chairman of the Board shall assist
the Chairman of the Board in the conduct of his duties, including by presiding
at meetings of the Board in the absence of the Chairman of the Board, and shall
have such other authority and responsibility as the Board may designate. A
Chairman or Vice Chairman of the Board shall not be considered an officer of the
Corporation unless otherwise provided by the Board.
Section 10. Lead Director. The directors may, by resolution adopted
by a majority of the Non-Management Directors, at any time designate one
Non-Management Director as Lead Director of the Board. The Lead Director shall
chair executive sessions of the Non-Management Directors. In his or her absence,
another director selected by a majority of the Non-Management Directors present
at the meeting shall chair the executive session. The Lead Director shall, in
the absence of a Chairman or a Vice Chairman of the Board (if any), preside at
all meetings of the Board. The Lead Director shall meet regularly with the
Chairman of the
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Board and Chief Executive Officer of the Corporation regarding major corporate
strategies and policies.
Section 11. Committees of the Board. The Board may, by resolution
adopted by a majority of the Whole Board, at any time designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation, except as otherwise provided by the By-laws. 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 such resolution, shall have and may
exercise any or all of the authority and responsibility of the Board in the
management of the business and affairs of the Corporation, except as otherwise
provided by law, the Certificate of Incorporation or the By-laws. Except as
otherwise provided by the Certificate of Incorporation, the By-laws or action of
the Board, a quorum for action by a committee shall be a majority of the members
(assuming no vacancy) and action by vote of a majority of the members at a
meeting duly called at which a quorum is present shall constitute action by the
committee. Each committee shall keep a record of its actions and all material
actions taken by a committee on behalf of the Board shall be reported to the
full Board periodically. In all other respects, the Board may, by resolution
adopted by a majority of the Whole Board, establish rules of procedure for a
committee, including designating a member of a committee as its chair. In the
absence of such rules each committee shall conduct its business in the same
manner as the Board conducts its business pursuant to this Article III. In the
absence of the designation by the Board of the chairman of a committee or the
adoption by the Board of rules of procedure for a committee, the committee may
adopt its own rules of procedure and elect its chair. In the event any or all of
the members of any committee are required to be independent under any then
applicable listing standards to which the Company is subject or any other legal
requirement, for the performance of some, but not all, of the duties of such
committee, the Board may establish a separate committee for the performance of
only those duties the performance of which requires such independent directors.
The Board shall approve a charter describing the purposes, functions and
responsibilities of each standing committee of the Board. Each standing
committee of the Board shall prepare and recommend to the Board for its approval
the committee's charter. Each standing committee of the Board shall have the
authority and responsibility provided by its Board-approved charter, subject to
further action by the Board, and no further authorization of the Board shall be
necessary for actions by a committee within the scope of its charter. Any other
committee of the Board may likewise prepare and recommend to the Board a charter
for the committee and shall have the authority and responsibility provided by
its Board-approved charter.
Section 12. Director Compensation. The Board may set the
compensation of directors and members of committees of the Board as permitted by
law.
ARTICLE IV
Officers
Section 1. Officers Generally. The Board shall designate a Chief
Executive Officer, a President, one or more Vice Presidents, a Treasurer, a
Secretary and a General Counsel and shall designate an officer as chief
financial officer and an officer as chief accounting officer and may designate
such other officers, with such titles, authority and responsibility (including
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries), as
the Board considers appropriate for the conduct of the business and affairs of
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the Corporation. Any two or more offices may be held by the same individual.
Unless sooner removed by the Board, all officers shall hold office until the
next annual organizational meeting of the Board and until their successors shall
have been elected. Any officer may be removed from office at any time, with or
without cause, by action of the Board.
Section 2. Chief Executive Officer. Subject to the control of the
Board, the Chief Executive Officer of the Corporation shall have general
management of the business of the Corporation, including the appointment of all
officers and employees of the Corporation for whose election or appointment no
other provision is made in these By-laws; he shall also have the power, at any
time, to discharge or remove any officer or employee of the Corporation other
than those officers and employees whose election or appointment is otherwise
provided for in these By-laws, subject to the action thereon of the Board and
shall perform all other duties appropriate to this office. Unless otherwise
provided by the Board, the Chief Executive Officer shall preside at all meetings
of the stockholders.
Section 3. President. The President shall be the chief operating
officer of the Corporation, shall assist the Chief Executive Officer in the
general supervision of the business and affairs and all other officers of the
Corporation and, subject to the direction of the Board, shall have the authority
and responsibility customary to such office. In the absence of a Chief Executive
Officer and unless otherwise provided by the Board, the President shall preside
at all meetings of the stockholders.
Section 4. Vice Presidents. The Board may elect one or more Vice
Presidents, with such further titles (including designation as President of a
division or operation of the Corporation) and with such authority and
responsibility as the Board may determine. In the absence or disability of the
President, his duties shall be performed by one or more Vice Presidents as
designated by the Board.
Section 5. Chief Financial Officer. The Board shall designate an
officer as the chief financial officer of the Corporation, who shall have
general supervision of the financial affairs and books on accounts of the
Corporation, such other authority and responsibility as the Board may designate
and, subject to the direction of the Board, the authority and responsibility
customary to such office. In the absence or disability of the chief financial
officer, his or her duties may be performed by any other officer designated by
him or her, by the President or by the Board. The Chief Executive Officer shall
be the chief accounting officer of the Corporation having general supervision of
the books and accounts of the Corporation, such other authority and
responsibility as the Board may designate.
Section 6. Treasurer. The Treasurer (who may be the same as or
different from the chief financial officer) shall have supervision and custody
of all funds and securities of the Corporation and keep or cause to be kept
accurate accounts of all money received or payments made by the Corporation, and
shall have such other authority and responsibility as provided by the By-laws or
as the Board may designate and, subject to the direction of the Chief Financial
Officer (if different) and the Board, the authority and responsibility customary
to such office.
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Section 7. General Counsel. The Board shall designate a General
Counsel for the Corporation, who shall be the Corporation's chief legal officer
and shall have general supervision of the legal affairs of the Corporation and
such other authority and responsibility as the Board may designate and, subject
to the direction of the Board, the authority and responsibility customary to
such office.
Section 8. Secretary. The Secretary shall have custody of the
minutes of the meetings of the Board, its committees and the stockholders, of
the Certificate of Incorporation and the By-laws (as amended from time to time)
and such other records of the Corporation as respect its existence and authority
to conduct business, shall have such other authority and responsibility as
provided by the By-laws or as the Board may designate and, subject thereto, the
authority and responsibility customary to such office. The Secretary shall send
out notices of meetings of the Board and stockholders as required by law or the
By-laws. The Secretary shall attend and keep the minutes of the Board except as
the Board may otherwise designate.
Section 9. Assistant Treasurers; Assistant Secretaries. In the
absence or disability of the Secretary, his or her duties may be performed by an
Assistant Secretary. In the absence or disability of the Treasurer, his or her
duties may be performed by an Assistant Treasurer. Such assistant officers shall
also have such authority and responsibility as may be assigned to them by the
Board.
ARTICLE V
Indemnification of Directors, Officers, Employees and Agents
The corporation shall indemnify its officers, directors, employees
and agents to the extent required by the General Corporation Law of Delaware.
ARTICLE VI
Seal
The Corporation shall have a seal that shall contain the words
"Emergency Medical Services Corporation" and may be affixed to documents of the
Corporation as prima facie evidence of the act of the Corporation to the extent
provided by law.
ARTICLE VII
Share Certificates and Transfers
Section 1. Form of Share Certificates. Shares of the Corporation may
be represented by certificates or may be uncertificated, but stockholders shall
be entitled to receive share certificates representing their shares as provided
by law. Share certificates shall be in such form as the Board may from time to
time determine and shall be signed by the Chairman or the President and
countersigned by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary and embossed with the seal of the Corporation or, if not so
signed and sealed, shall bear the engraved or printed facsimile signatures of
the officers authorized to sign and the engraved or printed facsimile of the
seal of the Corporation. The death, incapacity, resignation or removal of an
officer who signed or whose facsimile signature appears on a share certificate
shall not affect the validity of the share certificate.
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Section 2. Transfers of Record. The shares of the Corporation shall,
upon the surrender and cancellation of the certificate or certificates
representing the same, be transferred upon the books of the Corporation at the
request of the holder thereof, named in the surrendered certificate or
certificates, in person or by his legal representatives or by his attorney duly
authorized by written power of attorney filed with the Corporation or its
transfer agent. In case of loss or destruction of a certificate of stock,
another may be issued in lieu thereof in such manner and upon such terms as the
Board shall authorize.
Section 3. Record Dates. The Board may set a time, not more than 60
days nor less than 10 days prior to the date of any meeting of the stockholders,
or not more than 60 days prior to the date set for the payment of any dividend
or distribution or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares stock will be made or go into effect,
as a record date for the determination of the stockholders entitled to notice
of, or to vote at, any such meeting, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect to any such change, conversion, or exchange of
shares of the Corporation. In such case, only such stockholders as shall be
stockholders of record on the date so set shall be entitled to notice of, or to
vote at, such meeting, or to receive payment of such dividend or distribution,
or to receive such allotment of rights, or exercise such rights, as the case may
be, notwithstanding any transfer of shares of the Corporation on the books of
the Corporation after any record date set as aforesaid.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day of
December.
ARTICLE IX
Other Special Approval Requirements
The vote required for any action of the Board or the stockholders
shall be only such vote as is required by law, the Certificate of Incorporation
or other provisions of the By-laws, except that at any time the Minimum Hold
Condition is satisfied any amendment of the By-laws that would repeal or modify,
or would adopt any provision inconsistent with, the provisions of Section 3 of
Article III hereof (as in effect at the Effective Time), or of this Article IX
(as in effect at the Effective Time), shall require, in addition to any other
vote required by law or the Certificate of Incorporation or By-laws, the
affirmative vote of the holders of at least two-thirds of the voting power of
all the outstanding shares of Common Stock and Class B Special Voting Stock.
ARTICLE X
Amendments
The By-laws, as from time to time in effect, may be amended,
modified or repealed, in whole or in part, at any time and from time to time in
any respect either (i) by the stockholders, by the affirmative vote of the
holders of a majority of the voting power of the outstanding shares of Common
Stock and Class B Special Voting Stock or (ii) by the Board, by
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the affirmative vote of a majority of the Whole Board, in either case except as
otherwise provided by law or by the Certificate of Incorporation.
ARTICLE XI
Effective Time
The foregoing By-laws shall be effective upon the filing with the
Secretary of State of the State of Delaware and the effectiveness of the
Certificate of Incorporation in accordance with the law (the "Effective Time").