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EXHIBIT 3.10
AMENDED AND RESTATED BYLAWS
OF
ALTERRA HEALTHCARE CORPORATION
(f/k/a ALTERNATIVE LIVING SERVICES, INC.)
A Delaware Corporation
(effective February 13, 2001)
ARTICLE 1
OFFICES
Section 1.1 Registered office. The registered office of the Corporation
in the State of Delaware shall be at Corporation Trust Center, 1209 Orange
Street, Wilmington, DE 19801. The name of the Corporation's registered agent at
such address shall be CT Corporation System.
Section 1.2 Other offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors (the "Board") may from time to time determine or the business of
the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1 Place and Time of Meetings. An annual meeting of the
stockholders shall be held for the purpose of electing directors and conducting
such other business as may properly come before the meeting. The date, time and
place of the annual meeting, either within or without the State of Delaware,
shall be determined by resolution of the Board of Directors. Special meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof. Special meetings of the
stockholders may be called by the Chief Executive Officer for any purpose and
shall be called by the Secretary if directed by the Board of Directors.
Section 2.2 Notice of Meetings. Except as otherwise required by law,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting by
delivering a written notice thereof to the stockholder personally, or by
depositing such notice in the United States mail, in a postage prepaid envelope,
directed to the stockholder at stockholder's post office address furnished by
stockholder to the Secretary of the Corporation for such purpose or, if
stockholder has not furnished to the Secretary stockholder's address for such
purpose, then at stockholder's post office address last known to the Secretary,
or by transmitting a notice thereof to stockholder at such address by telegraph,
cable or facsimile
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telecommunication. Notice shall be deemed given upon delivery (if by hand) or
upon deposit in the mail (if by mail) or upon stockholder's receipt (if by
telegraph, cable or facsimile).
Except as otherwise expressly required by law, no publication of any
notice of a meeting of the stockholders shall be required. Every notice of a
meeting of the stockholders shall state the place, date and hour of the meeting,
and, in the case of a special meeting, shall also state the purpose or purposes
for which the meeting is called. Notice of any meeting of stockholders shall not
be required to be given to any stockholder who waives such notice, and such
notice shall be deemed waived by any stockholder who attends such meeting in
person or by proxy, except by a stockholder who attends such meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 2.3 Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place and notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken,
unless such notice is otherwise expressly required by law or hereunder. At the
adjourned meeting, the Corporation may transact any business that might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, the notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the adjourned meeting. At the adjourned meeting,
the Corporation may transact any business that might have been transacted at the
original meeting.
Section 2.4 List of Stockholders. The Secretary shall make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and specifying the address and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the Directors to produce such a
list at any meeting for the election of Directors, they shall be ineligible for
election to any office at such meeting. The stock ledger shall be the only
evidence of which stockholders are entitled to examine the stock ledger, the
list required by this section or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section 2.5 Quorum. Except as otherwise provided by law or the
Certificate of Incorporation, at each meeting of stockholders the presence in
person or by proxy of the holders of shares of stock having a majority of the
votes that could be cast by the holders of all outstanding shares of stock of
all classes of capital stock entitled to vote at the meeting shall be necessary
and sufficient to constitute a quorum. If a quorum is not present, the holders
of the shares present in person or represented by proxy at the meeting, and
entitled to vote thereat, shall
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have the power to adjourn the meeting to another time and/or place by the
affirmative vote of the holders of a majority of such shares.
Section 2.6 Voting; Proxies.
(a) At each meeting of the stockholders, each
stockholder shall be entitled to vote in person or by proxy
each share or fractional share of the stock of the Corporation
having voting rights on the matter in question and held by the
stockholder and registered in the stockholder's name on the
books of the Corporation:
(i) on the date fixed pursuant to Section
7.5 of these Bylaws as the record date for the
determination of stockholders entitled to notice of
and to vote at such meeting; or
(ii) if no such record date is so fixed,
then (a) at the close of business on the day next
preceding the day on which notice of the meeting is
given or (b) if notice of the meeting is waived, at
the close of business on the day next preceding the
day on which the meeting is held.
(b) Unless otherwise provided in a shareholders
agreement, persons holding stock of the Corporation in a
fiduciary capacity shall be entitled to vote such stock.
Persons whose stock is pledged shall be entitled to vote such
shares, unless in the pledgor's transfer on the books of the
Corporation he expressly empowered the pledgee to vote such
shares, in which case only the pledgee or the pledgee's proxy
may represent and vote such stock. Stock having voting power
standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants
in common, tenants by entirety or otherwise, or with respect
to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions
of the General Corporation Law of the State of Delaware.
(c) Unless otherwise provided in a shareholders
agreement, voting rights may be exercised by the stockholder
entitled thereto in person or by the stockholder's proxy
appointed by an instrument in writing, subscribed by such
stockholder or by his attorney thereunto authorized and
delivered to the secretary of the meeting; provided, however,
that no proxy shall be voted or acted upon after three years
from its date, unless that proxy shall provide for a longer
period. A duly executed proxy shall be irrevocable if it so
states and if, and only for so long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A
stockholder who may have given a proxy prior to any meeting
shall not, solely by attending such meeting, revoke the same
unless he notifies the secretary of the meeting of his intent
to revoke the proxy, in writing, prior to the voting of the
proxy. At any meeting of the stockholders at which a quorum is
present, all matters (except as otherwise provided in the
Certificate of Incorporation, in these Bylaws or by law) shall
be decided by the vote of a
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majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat and thereon.
Voting at any meeting of the stockholders on any question need
not be by ballot, unless so directed by the chairman of the
meeting. On a vote by ballot each ballot shall be signed by
the stockholder voting, or by his proxy, if there be such
proxy, and it shall state the number of shares voted.
Section 2.7 Conduct of Meetings. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his or her absence by
the Chief Executive Officer, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the foregoing
persons by a Chairman designated by the Board of Directors, or in the absence of
such designation by a Chairman chosen at the meeting by the stockholders
attending. The Corporation's Secretary shall act as secretary of the meeting,
but in his or her absence the Chairman of the meeting may appoint any person to
act as secretary of the meeting.
Section 2.8 Meetings of Series A Stockholders. In addition to meetings
of stockholders held pursuant to the provisions of Sections 2.1 to 2.7 hereof,
special meetings ("Series A Stockholders Meetings") of the holders of shares of
the Corporation's Series A 9.75% Cumulative Convertible Pay-in-Kind Preferred
Stock (the "Series A Stock") may be called from time to time, for the purpose of
considering any matter or taking any action with respect to which the holders of
Series A Stock are entitled to a vote pursuant to the terms of the Certificate
of Designations, Rights and Preferences of the Series A Stock, by the Chief
Executive Officer and shall be called by the Secretary if requested in writing
by at least two (2) members of the Board or by the holders of not less than ten
percent (10%) of the issued and outstanding shares of Series A Preferred Stock
(any such request complying with the terms hereof being referred to as a "Series
A Meeting Request").
Upon receipt of a Series A Meeting Request, the Corporation shall take such
action as is required under the Delaware General Corporation Law to duly hold
and call a Series A Stockholders Meeting, including, but not limited to, the
setting of the date, time and place of such meeting. Until such time as any
shares of Series A Stock are registered pursuant to the Securities Exchange Act
of 1934, as amended, the Corporation shall schedule a Series A Stockholders
Meeting within 15 days of receipt of a Series A Meeting Request at a location
within Grand Rapids, Michigan; provided, however, that if the provisions of any
applicable laws (including applicable securities laws) or of any rules or
regulations of any exchange on which the Corporation's shares are listed require
the Corporation to provide notice or take other action that cannot be reasonably
completed in such 15 day period, such meeting shall be held as soon thereafter
as is reasonably practicable. Except as expressly set forth in this Section 2.8,
any Series A Stockholders Meeting shall be called and held in accordance with
and subject to the other provisions of these Bylaws.
ARTICLE 3
BOARD OF DIRECTORS
Section 3.1 General Powers. The property, business and affairs of the
Corporation shall be managed by the Board of Directors.
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Section 3.2 Number and Term of Office. For so long as the Senior
Securities Condition (hereinafter defined) is met, the Board of Directors shall
be comprised of nine (9) directors, four (4) of whom shall be elected by the
holders of the Series A Stock (the "Series A Directors"), and five (5) of whom
shall be elected by the holders of the Common Stock, $.01 par value (the "Common
Stock") of the Corporation (the "At-Large Directors"). At such time as the
Senior Securities Condition is no longer met, the Board of Directors shall be
comprised of nine (9) directors elected by the holders of the Common Stock, all
of whom shall be At-Large Directors. Directors need not be stockholders of the
Corporation. The directors of the Corporation shall hold office until their
successors shall have been duly elected or appointed and shall qualify or until
their resignation or removal in the manner hereinafter provided.
Section 3.3 Election of Directors. At each annual meeting of the
stockholders, the holders of the Common Stock, voting together as a class, shall
elect the At-Large Directors and, for so long as the Senior Securities Condition
is met, the holders of the Series A Stock shall elect the Series A Directors,
each of whom shall hold office for a term of one year or until a successor is
elected and qualified.
Section 3.4 Resignations; Removal. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein or, if the time is not specified, immediately upon its receipt by the
Board or Secretary. Unless otherwise specified in the notice, the acceptance of
such resignation shall not be necessary to make it effective. Any director may
be removed at any time, with or without cause, by the holders of a majority of
shares of (i) Common Stock, in the case of an At-Large Director and (ii) Series
A Stock, in the case of a Series A Director.
Section 3.5 Vacancies. Any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors or
any other cause, may be filled by the remaining At-Large Directors (in the case
of an At-Large Director), the remaining Series A Directors (in the case of a
Series A Director) or by the holders of the Common Stock (in the case of an
At-Large Director), or the holders of the Series A Stock (in the case of a
Series A Director), in each case by a plurality of the votes cast at a meeting
of such stockholders. Each director so chosen to fill a vacancy shall hold
office until his successor shall have been elected and shall qualify or until he
shall resign or shall have been removed in the manner provided herein.
Section 3.6 Place of Meeting, Etc. The Board may hold any of its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution designate or as shall be designated by
the person or persons calling the meeting or in the notice or a waiver of notice
of any such meeting.
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Directors may participate in any regular or special meeting of the
Board by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board can hear
each other, and such participation shall constitute presence in person at such
meeting.
Section 3.7 Annual Meeting. The Board shall meet as soon as practicable
after each annual election of directors, and notice of such annual meeting shall
not be required.
Section 3.8 Regular Meetings. Regular meetings of the Board may be held
at such times as the Board shall from time to time by resolution determine. If
any day fixed for a regular meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting shall be held at the same hour and
place on the next succeeding business day not a legal holiday. Except as
required by law, notice of regular meetings need not be given.
Section 3.9 Special Meetings. Special meetings of the Board shall be
held whenever called by the Chairman of the Board, Chief Executive Officer or a
majority of the authorized number of directors. Except as otherwise provided by
law or by these Bylaws, notice of the time and place of each such special
meeting shall be mailed to each director, addressed to him at his residence or
usual place of business, at least three (3) days before the day on which the
meeting is to be held, or shall be sent to him at such place by facsimile
telecommunication, telegraph or cable or be delivered personally not less than
forty-eight (48) hours before the time at which the meeting is to be held.
Except where otherwise required by law or by these Bylaws, notice of the purpose
of a special meeting need not be given. Notice of any meeting of the Board shall
not be required to be given to any director who is present at such meeting other
than a director who attends such meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
Section 3.10 Quorum and Manner of Acting. Except as otherwise provided
in these Bylaws (including, without limitation, Section 3.11 hereof) or by law,
the presence of a majority of the authorized number of directors shall be
required to constitute a quorum for the transaction of business at any meeting
of the Board, and all matters shall be decided at any such meeting, a quorum
being present, by the affirmative votes of a majority of the directors present.
If no quorum exists, a majority of directors present at any meeting may adjourn
the same from time to time until a quorum is present. Notice of any adjourned
meeting need not be given.
Section 3.11 Special Majority Approval. For so long as (A) in the
aggregate, in excess of $50 million of face amount (or stated value, as
applicable) of (i) Series A Stock, (ii) Series A 9.75% Pay-in-Kind Convertible
Debentures, and (iii) Series B 9.75% Non-Voting, Pay-in-Kind Preferred
Convertible Debentures of the Corporation (collectively, the "Senior
Securities") remain outstanding and (B) any shares of Series A Stock remain
outstanding (this state of affairs referred to herein as the "Senior Securities
Condition"), the following actions of the Corporation or, if applicable, of the
Subsidiaries (hereinafter defined), shall require the approval of at least seven
(7) of the nine (9) members of the Board of Directors (such approval referred to
herein as a "Special Majority"):
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(i) The addition, deletion or amendment of any provision in the
bylaws or certificate of incorporation of the Corporation or
any restatement of the bylaws or certificate of incorporation
of the Corporation;
(ii) Any change in the size or structure of the Board of Directors
of the Corporation;
(iii) The appointment or election of the Chairman of the Board of
the Corporation;
(iv) Adoption of annual operating and capital budgets for the
Corporation and its Subsidiaries;
(v) Any borrowings or renewals or extensions of borrowings by the
Corporation or Subsidiaries involving, or the establishment of
any credit facilities contemplating borrowings of, in excess
of $5,000,000, unless such action is approved by the Executive
Committee established pursuant to Section 3.17 of this Article
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(vi) Issuance of any capital stock by the Corporation or any
Subsidiary that after the event or events described herein
will not be a wholly owned Subsidiary ( a "Partial Sub") or of
any security convertible into, or exchangeable for, shares of
capital stock of the Corporation or any Partial Sub or the
issuance by the Corporation or any Partial Sub of any option,
warrant or right to purchase any such capital stock or
securities or of any arrangement that provides a share or
interest in their capital or earnings, excluding (i) the
approval of employee stock option plans or the grant of
options thereunder to employees; (ii) the issuance of the
Series A Preferred Stock, the Series A 9.75% Convertible
Pay-in-Kind Debentures ("Series A Debentures"), the Series B
9.75% Convertible Pay-in-Kind Debentures (the "Series B
Debentures") and the Series C Convertible Pay-in-Kind
Debentures ("Series C Debentures") pursuant to the Purchase
Agreement dated as of April 26, 2000 related thereto, as
amended; (iii) the issuance of any pay-in-kind dividend or
coupon on the Series A Preferred Stock, the Series A
Debentures, the Series B Debentures and the Series C
Debentures, together with the issuance of any securities upon
the conversion, exchange or exercise of any other related
right in accordance with the terms thereof (any such
securities so issued, the "Derivative Securities"); (iv) the
issuance of any securities upon the conversion, exchange or
exercise of any other related right in accordance with the
terms of any Derivative Securities issued; and (v) the
issuance of such shares or securities pursuant to the exercise
of convertible securities or options outstanding as of the
effective date of these Amended and Restated Bylaws or
subsequently issued with the approval of a Special Majority;
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(vii) The guaranty by the Corporation or any of its Subsidiaries of
the debts, liabilities or obligations of any third party
(other than the Corporation or any wholly-owned Subsidiary) or
the lending by them of funds to any third party, in either
case where the amount involved exceeds $5,000,000, unless such
action is approved by the Executive Committee established
pursuant to Section 3.17 of this Article 3;
(viii) The declaration of dividends on any class of the capital stock
of the Corporation or the redemption of any shares of capital
stock of the Corporation excluding dividends payable on the
Series A Preferred Stock and excluding any mandatory
redemption of the Series A Preferred Stock or any capital
stock that are Derivative Securities;
(ix) The establishment of committees of the Board of Directors of
the Corporation and the election or appointment of members of
all committees of the Board of Directors of the Corporation;
(x) Any matter or series of related matters involving capital
expenditures or commitments by the Corporation and
Subsidiaries exceeding $5,000,000 in the aggregate, unless
such action is approved by the Executive Committee established
pursuant to Section 3.17 of this Article 3;
(xi) Any disposition by the Corporation or any Subsidiary of assets
resulting in net proceeds to the Corporation and Subsidiaries
of $5,000,000 or more or a loss of $2,000,000 or more, unless
such action is approved by the Executive Committee established
pursuant to Section 3.17 of this Article 3;
(xii) Any merger, consolidation, share exchange, business
combination, recapitalization or other similar transaction to
which the Corporation is a party or in which capital stock of
the Corporation would be issued, converted or otherwise
modified;
(xiii) The taking or instituting of proceedings for the winding-up,
dissolution or liquidation of the Corporation;
(xiv) Any modification of the Corporation's shareholder rights plan;
and
(xv) The employment of or termination of any of the Chief Executive
Officer, President, Chief Operating Officer or Chief Financial
Officer of the Corporation, the terms of employment thereof
and the approval of the annual compensation and bonuses of
such officers.
"Subsidiary" means, for purposes hereof, any corporation, limited partnership,
limited liability company or other business entity in which the Corporation or
one or more of its Subsidiaries or the Corporation and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as
a group) ordinarily, in the absence of contingencies, to elect a majority of the
directors (or persons performing similar functions) of such entity, and any
partnership or
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joint venture if more than a 50% interest in the profits or capital thereof is
owned by the Corporation or one or more of its Subsidiaries or the Corporation
and one or more of its Subsidiaries. Notwithstanding anything in this Section
3.11 to the contrary, any action referenced in this Section 3.11 as requiring
the approval of a Special Majority shall not require the approval of a Special
Majority if (i) the Board's authority with respect to the approval of such
action is delegated to a committee of the Board established in accordance with
Section 3.14 hereof, such delegation being approved by Special Majority and (ii)
such Board committee approves such action.
Section 3.12 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of the proceedings of the Board or committee.
Section 3.13 Compensation. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse each
director for any expense incurred on account of attendance at any meetings of
the Board or committees of the Board. Neither the payment of such compensation
nor the reimbursement of such expenses shall be construed to preclude any
director from serving the Corporation or its subsidiaries in any other capacity
and receiving compensation therefor.
Section 3.14 Committees. By resolution passed by a Special Majority,
the Board may designate one or more committees. Any such committee, to the
extent provided in the Board's resolution and except as otherwise limited by
law, shall have and may exercise all the powers and authority of the Board 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 requiring it. Any such
committee shall keep written minutes of its meetings and report the same to the
Board at the next regular meeting of the Board. In the absence or
disqualification of a member of a committee and that member's alternate, if the
Board appoints alternates, the member or members thereof present at any meeting
and not disqualified from voting (whether or not the member or members
constitute a quorum) may unanimously appoint another member of the Board to act
at the meeting in the place of any such absent or disqualified member. The
Corporation has elected to be governed by Section 141(c)(2) of the General
Corporation Law of the State of Delaware.
Section 3.15 Committee Rules. Each committee of the Board of Directors
may elect from its members a chairman of the committee and may fix its own rules
of procedure and shall hold its meetings as provided by such rules, except as
may otherwise be provided by resolution of the Board designating such committee,
but in all cases the presence of at least a majority of the members of such
committee shall be necessary to constitute a quorum.
The members of each committee of the Board of Directors may participate
in committee proceedings by means of conference telephone or similar
communications equipment by means of which all persons participating in the
proceeding can hear each other, and such participation shall constitute presence
in person at such proceedings.
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Section 3.16 Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors or any committee designated by
the Board at which action on any corporate matter is taken shall be deemed to
have assented to the action taken unless his dissent is entered in the minutes
of the meeting or unless he files his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof or
forwards such dissent by registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
Section 3.17 Executive Committee. The Corporation may appoint, acting
by Special Majority, an executive committee (the "Executive Committee")
comprised of at least three (3) members. The presence of all the members of the
Executive Committee shall be required to constitute a quorum for the transaction
of any business at any meeting of the Executive Committee, and all matters shall
be decided at any such meeting by the affirmative vote of all of the members of
the Executive Committee.
Subject to any limitation, reduction or elimination of this delegation
of authority by the Board of Directors in the manner set forth herein, the
Executive Committee shall have authority (i) to approve the Corporation: (a)
making an equity investment, capital expenditure or capital commitment or
otherwise providing equity funding, (b) borrowing funds, incurring indebtedness,
guaranteeing indebtedness or amending any existing indebtedness or guaranty or
(c) entering into or amending sale/leaseback transactions, in each case in
connection with the development, construction, acquisition, financing,
refinancing or operation of any assisted living, dementia care or related
specialty care facility (each a "Facility" and collectively "Facilities")
provided that as to any such transaction the aggregate equity investment or
capital expenditure to be made by the Corporation and its Subsidiaries (as
defined in Section 3.11) together with the aggregate indebtedness to be incurred
by the Corporation and its Subsidiaries (or in the case of an amendment of
existing indebtedness, the amount of such existing indebtedness) shall not
exceed $25 million in the aggregate (or, in the case of a sale/leaseback
transaction or of an amendment to the terms thereof, the value of the Facility
or Facilities that are the subject of such transaction shall not exceed $25
million in the aggregate) (all such transactions described in this clause (i)
referred to as "Authorized Transactions"); (ii) in connection with and pursuant
to any Authorized Transaction, to authorize any officer, employee or agent of
the Corporation to create, convey and establish liens and collateral interests
in the real and personal property of and relating to such Facility or Facilities
as are designated by the Executive Committee to collateralize indebtedness
incurred, including, without limitation, security deeds, mortgages, deeds of
trust, pledges, collateral assignments, security interests and title retention
arrangements and, with respect to sale/leaseback transactions, convey title to
and enter into lease agreements with respect to such Facility or Facilities;
(iii) to authorize any officer, employee or agent of the Corporation to take all
other such action as may be necessary or appropriate, in the judgement of the
Executive Committee, to consummate any Authorized Transaction; (iv) to authorize
any officer, employee or agent of the Corporation to dispose of assets of the
Corporation so long as such transaction does not result in net proceeds to the
Corporation and its Subsidiaries of in excess of $25 million or a net loss of in
excess of $2 million; (v)
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to authorize any officer, employee or agent of the Corporation to cause any
Subsidiary or other corporation, partnership, limited liability company or other
business entity controlled by the Corporation to take any action that, if taken
directly by the Corporation, could be approved by the Executive Committee
pursuant to this Section 3.17; and (vi) to perform such other functions as shall
be appropriate to the effective discharge of the duties and responsibilities
assigned to the Executive Committee by these Bylaws or by the Board from time to
time. Notwithstanding anything in this Section 3.17 or otherwise in these Bylaws
to the contrary, the Board of Directors, acting by simple majority vote in
accordance with Section 3.10 hereof, may from time to time limit, reduce or
eliminate any authority granted to the Executive Committee by this Section 3.17,
whereupon the Board of Directors shall have the exclusive authority with respect
to such matters until such time as such authority is again delegated to a
committee of the Board pursuant to Section 3.14 hereof.
The Executive Committee shall meet from time to time on call of the
Chairman of the Executive Committee or by two or more members of the Executive
Committee. Meetings of the Executive Committee may be held at such place or
places, within or without the State of Delaware, as the Executive Committee
shall determine or as may be specified or fixed in the notices or waivers of
notice of such meetings. The Executive Committee may fix its own rules of
procedure, including provision for notice of its meetings and shall keep a
record of its proceedings.
The members of the Executive Committee may participate in Executive
Committee proceedings by means of conference telephone or similar communications
equipment by means of which all persons participating in the proceeding can hear
each other, and such participation shall constitute presence in person at such
proceedings.
Any action of the Executive Committee may be taken by a written
instrument signed by all the members of the Executive Committee, and such action
shall be fully effective as if taken at a meeting of the Executive Committee.
ARTICLE 4
OFFICERS
Section 4.1 Number. The officers of the Corporation shall be chosen by
the Board and shall consist of a Chairman of the Board, a Chief Executive
Officer, a President, a Secretary, a Treasurer and such other officers and
assistant officers as may be deemed necessary or desirable by the Board of
Directors. Any number of offices may be held by the same person. In its
discretion, the Board of Directors may choose not to fill any office for any
period as it may deem advisable, except the offices of President and Secretary.
Section 4.2 Election; Term of Office; Qualifications. The officers of
the Corporation, except such officers as may be appointed in accordance with
Section 4.3, shall be elected annually by the Board at the first meeting thereof
held after the election of the Board. Each officer shall hold office until his
successor has been duly chosen and qualifies or until his resignation or removal
in the manner hereinafter provided.
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Section 4.3 Assistants, Agents and Employees, Etc. In addition to the
officers specified in Section 4.1, the Board may appoint such other assistants,
agents and employees as it may deem necessary or advisable, including one or
more Assistant Secretaries, and one or more Assistant Treasurers, each of whom
shall hold office for such period, have such authority and perform such duties
as the Board may from time to time determine. The Board may delegate to any
officer of the Corporation or any committee of the Board the power to appoint,
remove and prescribe the duties of any such assistants, agents or employees.
Section 4.4 Resignation; Removal. Any officer or agent may resign at
any time upon written notice to the Board or the Secretary of the Corporation.
Any officer or agent elected or appointed by the Board of Directors may be
removed by the Board of Directors whenever in its judgment the best interests of
the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Section 4.5 Vacancies. A vacancy in any office caused by death,
resignation, removal, disqualification or otherwise, may be filled by the Board
for the unexpired portion of the term of that office by a majority vote of the
directors then in office.
Section 4.6 Chairman of the Board ("Chairman"). The Chairman, if one is
elected, shall preside at all meetings of the Board and stockholders; and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe. The Board may also elect a Vice Chairman who, in the absence
of the Chairman, shall preside at all meetings of the Board and stockholders;
and shall perform such other duties and have such other powers as the Board may
from time to time prescribe. References herein to the Chairman shall mean, in
circumstances in which the Chairman is absent or unavailable, the Vice Chairman.
Section 4.7 The Chief Executive Officer. The Chief Executive Officer
("CEO"), if one is elected, shall be the chief executive officer of the
Corporation; shall have general and active management of the business of the
Corporation; shall, in the absence of the Chairman, preside at meetings of the
Board and stockholders; and shall see that all orders and resolutions of the
Board are carried into effect. In addition to the Chairman and the President,
the CEO shall have authority to execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof are expressly delegated by the Board to some other
officer or agent of the Corporation.
Section 4.8 The President. The President, subject to the direction of
the CEO, if one is elected, shall have general and active management of the
business of the Corporation; shall, in the absence of the Chairman and the CEO,
preside at meetings of the Board and stockholders; and shall see that all orders
and resolutions of the Board and the CEO are carried into effect. In addition to
the Chairman and the CEO, the President shall have authority to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof is expressly
delegated by the Board to some other officer or agent of the Corporation.
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Section 4.9 Chief Operating Officer. The Chief Operating Officer
("COO"), subject to the direction of the President, shall have general
management responsibility for the day-to-day business and operations of the
Corporation, and shall perform such other duties and exercise such other powers
as the Board, the CEO or the President may, from time to time, determine or
these Bylaws may prescribe.
Section 4.10 Vice President. The Vice President, or if there shall be
more than one, the vice presidents shall perform such other duties and have such
other powers as the Board, the CEO or the President may, from time to time,
determine or these bylaws may prescribe.
Section 4.11 Secretary and Assistant Secretaries. The Secretary shall
attend all meetings of the Board and all meetings of the stockholders; shall
record all the proceedings of the meetings of the stockholders and of the Board
in a book to be kept for that purpose; and shall perform like duties for the
Board's standing committees when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board; shall perform such other duties as may be prescribed by the Board, the
CEO or the President, under whose supervision he or she shall act; shall have
custody of the corporate seal of the Corporation; and shall have authority to
affix the same to any instrument requiring it and, when it is so affixed, may
attest it by his or her signature. The Board may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his or her signature. The Assistant Secretary, or if there be more than one, the
assistant secretaries in the order determined by the Board, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
Section 4.12 Treasurer and Assistant Treasurer. The Treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the Corporation as may be ordered by the Board taking proper
vouchers for such disbursements; and shall render to the CEO, the President and
the Board, at its regular meetings or when the Board so requires, an account of
the Corporation. If required by the Board, the Treasurer shall give the
Corporation a bond (which shall be renewed every six (6) years) in such sums and
with such surety or sureties as shall be satisfactory to the Board for the
faithful performance of the duties of the office of Treasurer and for the
restoration to the Corporation, in case of death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in the possession or under the control of the Treasurer belonging
to the Corporation. The Assistant Treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the Board, shall, in the
absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as the Board may from time to time prescribe.
Section 4.13 Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. None of such officers
shall be prevented from receiving such compensation by reason of the fact that
he or she is also a director of the
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Corporation. Nothing contained herein shall preclude any officer from serving
the Corporation, or any subsidiary corporation, in any other capacity and
receiving such compensation by reason of the fact that he or she is also a
director of the Corporation.
ARTICLE 5
INDEMNIFICATION
Section 5.1 Action, Etc. Other Than by or in the Right of the
Corporation. The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contenders or its equivalent, shall not of
itself create a presumption that the person did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, that he
had reasonable cause to believe that his or her conduct was unlawful.
Section 5.2 Actions, Etc., by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys, fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; provided, however, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the Court of Chancery
of the State of Delaware 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 as the Court of Chancery of
the State of Delaware or such other court shall deem proper.
Section 5.3 Determination of Right of Indemnification. Any
indemnification under Section 5.1 or 5.2 (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
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employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.1 or 5.2. Such
determination shall be made (i) by the Board by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion or (iii) by the stockholders.
Section 5.4 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 5.1 or 5.2, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 5.5 Right to Advancement of Expenses. Expenses (including
attorneys' fees) incurred by a director in defending any civil, criminal,
administrative or investigative action, suit or proceeding by reason of the fact
that he or she is or was a director, shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding; provided, however,
that any such advancement of expenses shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified for such expenses. Expenses (including attorneys' fees) incurred by
an officer in defending a civil, criminal, administrative, or investigative
action, suit or proceeding by reason of the fact that he or she is or was an
officer, employee or agent of the Corporation may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding if and as
authorized by the Board in the specific case upon receipt of an undertaking by
or on behalf of the officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
as authorized in this Article. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid or advanced by the
Corporation if and as authorized by the Board in the specific case and upon such
terms and conditions as the Board deems appropriate.
Section 5.6 Other Rights and Remedies. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section 5.7 Insurance. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such
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capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
Section 5.8 Constituent Corporations. For the purposes of this Article,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
Section 5.9 Other Enterprises, Fines, and Serving at Corporation's
Request. For the purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation that
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as used in this Article.
Section 5.10 Right of Indemnitee to Bring Suit or Proceeding. The
rights to indemnification and to the advancement of expenses conferred in this
Article 5 shall be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
Any repeal or modification of the provisions of this Article 5 shall be
prospective only and shall not adversely affect any right or protection
hereunder of any person with respect to any action, suit or proceeding arising
out of or relating to any act or omission occurring prior to the time of such
repeal or modification. If a claim under this Article 5 is not paid in full by
the Corporation within sixty (60) days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of expenses
by a director, in which case the applicable period shall be twenty (20) days,
the indemnitee may at any time thereafter bring a suit or other proceeding
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit or proceeding, or in a suit or proceeding
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses (including attorneys' fees) of prosecuting or defending such suit or
proceeding. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit or proceeding that
indemnification of the indemnitee is proper under the circumstances because the
indemnitee has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable
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standard of conduct or, in the case of such a suit or proceeding brought by the
indemnitee, be a defense to such suit or proceeding. In any such suit or
proceeding brought by the indemnitee to enforce a right to indemnification or to
an advancement of expenses hereunder, or brought by the Corporation to recover
the advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article 5 or otherwise, shall be on the
Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 6.1 Execution of Contracts. The Board, except as otherwise
provided in these Bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name and on
behalf of the Corporation, and such authority may be general or confined to
specific instances. It may appoint, or authorize any 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 for stock to bear the
signature or signatures of any of them.
Section 6.2 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such officer, assistant, agent or attorney shall
give such bond, if any, as the Board may require.
Section 6.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select, or
as may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power is
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the CEO, the President, any Vice
President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation who
shall from time to time be determined by the Board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money that are
payable to the order of the Corporation.
Section 6.4 General and Special Bank Accounts. The Board may from time
to time authorize the opening and keeping of general and special bank accounts
with such banks, trust companies or other depositories as the Board may select
or as may be selected by any officer or officers, assistant or assistants, agent
or agents, or attorney or attorneys of the Corporation to whom such power is
delegated by the Board. The Board may make such special rules and regulations
with respect to such bank accounts, not inconsistent with the provisions of
these Bylaws, as it may deem expedient.
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ARTICLE 7
STOCK
Section 7.1 Certificates for Stock. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
are issued and shall be signed in the name of the Corporation by the CEO, the
President or a Vice President, and by the Secretary or an Assistant Secretary or
by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificates may be a facsimile. If any officer, transfer agent or registrar who
has signed, or whose facsimile signature has been placed upon, any such
certificate, has ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may nevertheless be issued by the
Corporation with the same effect as though the person who signed such
certificate, or whose facsimile signature was placed thereupon, were such
officer, transfer agent or registrar at the date of issue. A record shall be
kept of the respective names of the persons, firms or corporations owning the
stock represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or transfer shall
be cancelled, and no new certificate or certificates shall be issued in exchange
for any existing certificate until such existing certificate shall have been so
cancelled, except as provided in Section 7.4.
Section 7.2 Transfers of Stock. Transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 7.3, and upon surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed by the Corporation to be the owner thereof
for all purposes. Whenever any transfer of shares is made for collateral
security, and not absolutely, such fact shall be so expressed in the entry of
transfer if, when the certificate or certificates are presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
Section 7.3 Regulations. The Board may make such rules and regulations
as it may deem expedient (if not inconsistent with these Bylaws) concerning the
issue, transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
Section 7.4 Lost, Stolen, Destroyed and Mutilated Certificates. In any
case of loss, theft, destruction or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction
or mutilation and upon the giving of a bond of indemnity to the Corporation in
such form and in such sum as the Board may direct; provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper to do so.
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Section 7.5 Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders (or any adjournment thereof) or to
express consent to corporate action in writing without a meeting, 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 other change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board 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. If, in any case involving the
determination of stockholders for any purpose other than notice of or voting at
a meeting of stockholders or expressing consent to corporate action without a
meeting, the Board shall not fix such a record date, then the record date for
determining stockholders for such purpose shall be the close of business on the
day on which the Board adopts the resolution relating thereto. A determination
of stockholders entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of such meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board.
Section 8.2 Seal. The Board shall provide a corporate seal, which shall
be in the form of a circle and shall bear the name of the Corporation and words
and figures showing that the Corporation was incorporated in the State of
Delaware and the year of incorporation.
Section 8.3 Waiver of Notices. Whenever notice is required to be given
by these Bylaws, by the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or after
the time stated therein, and such waiver shall be deemed equivalent to notice.
Section 8.4 Amendments. Except as expressly provided herein, these
Bylaws, or any of them, may be amended, modified, repealed or adopted and new
Bylaws may be made (i) by the Board, acting at any meeting of the Board, acting
by Special Majority, or (ii) by the holders of the Common Stock and Series A
Stock, each voting as a separate class, at any annual meeting of stockholders,
without previous notice, or at any special meeting of stockholders, provided
that notice of such proposed amendment, modification, repeal or adoption is
given in the notice of special meeting. Except as expressly provided herein, any
Bylaws made or altered by the stockholders may be altered or repealed by either
the Board or the stockholders.
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