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EXHIBIT 3
AMENDED AND RESTATED
BYLAWS
OF
OMEGA HEALTHCARE INVESTORS, INC.
As amended on October 15, 1997
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BYLAWS
OF
OMEGA HEALTHCARE INVESTORS, INC.
AS AMENDED AND RESTATED
OCTOBER 15, 1997
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
corporation shall be established and maintained at the office of THE
CORPORATION TRUST INCORPORATED, 32 South Street, Baltimore, Maryland 21202,
and said THE CORPORATION TRUST INCORPORATED be the registered agent of this
corporation in charge thereof.
Section 2. Other Offices. The corporation may establish such other
offices, within or without the State of Maryland, at such place or places as
the Board of Directors from time to time may designate, or which the business
of the corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings. Annual meetings of stockholders for the
election of Directors and for such other business as may be stated in the
notice of the meeting, shall be held on a date and at a time designated by the
Board of Directors at such place, within or without the State of Maryland, as
the Board of Directors by resolution shall determine, and as set forth in the
notice of the meeting.
If the date of the annual meeting shall fall on a legal holiday of
the state in which the meeting is to be held, the meeting shall be held on the
next succeeding business day.
Section 2. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called by the Chairman, the Chief Executive
Officer, the President, or by a majority of the Board of Directors and shall be
called by an officer upon written request of stockholders holding in the
aggregate not less than 10% of the outstanding shares entitled to vote on the
business proposed to be transacted thereat. Such meetings may be held at such
time and place, within or without the State of Maryland, as shall be stated in
the notice of the meeting. The call of a special meeting shall state the
nature of the business to be transacted and no other business shall be
considered at the meeting. A special meeting may be called for the purpose of
removing a Director.
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Section 3. Notice of Meetings. Written or printed notice, stating
the place, date and time of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered to
each stockholder entitled to vote thereat at his address as it appears on the
records of the corporation, by United States mail, postage prepaid, not less
than twenty (20) nor more than sixty (60) days before the date of the meeting.
No business other than that stated in the notice shall be transacted at any
meeting without the unanimous consent of all stockholders entitled to vote
thereat.
Section 4. Voting. At each annual meeting the stockholders entitled
to vote shall elect a Board of Directors, and they may transact such other
corporate business as shall be stated in the notice of the meeting. The vote
for Directors, and, upon the demand of any stockholder, the vote upon any
question before the meeting, shall be by ballot. Unless otherwise provided by
the Articles of Incorporation or by the laws of the State of Maryland, all
elections of Directors shall be by a plurality of the votes cast, and all
substantive questions shall be decided by a majority vote; all procedural
questions shall be decided by the Chairman or Parliamentarian of the meeting.
The Directors may fix a day not more than sixty (60) days prior to
the holding of any such meeting as the date as of which stockholders entitled
to notice of and to vote at such meeting shall be determined; and only
stockholders of record on such day shall be entitled to notice of or to vote at
any such meeting.
Each stockholder entitled to vote, in accordance with the terms of
the Articles of Incorporation and the provisions of these Bylaws, shall be
entitled to one vote, in person or by proxy, for each share of stock entitled
to vote held by such stockholder, but no proxy shall be voted after eleven (11)
months from its date unless such proxy provides for a longer period. In no
case shall any proxy be given for a period in excess of ten (10) years from the
date of its execution.
Section 5. Quorum. Any number of stockholders together holding a
majority of the stock issued and outstanding and entitled to vote thereat, who
shall be present in person or represented by proxy at any meeting duly called,
shall constitute a quorum for the transaction of business. If, at any meeting,
less than a quorum shall be present or represented, those present, either in
person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the
requisite amount of stock shall be present, at which time any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 6. Action Without Meeting. Except for the election of
Directors, any action to be taken by the stockholders may be taken without a
meeting, if, prior to such action, all stockholders entitled to vote thereon
shall consent in writing to such action being taken, and such consent shall be
treated for all purposes as vote at a meeting.
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ARTICLE III
DIRECTORS
Section 1. Number and Term. The number of Directors shall be not
less than five (5) nor more than nine (9) until changed by amendment of these
Bylaws. The exact number of Directors shall be seven (7) until changed, within
the limits specified, by a Bylaw amending this Section duly adopted by the
Board of Directors or stockholders. The Directors shall be elected at the
annual meeting of stockholders, and each Director shall be elected to serve
until his successor shall be elected and shall have qualified. In no case
shall the number of Directors be less than five (5), unless changed by an
amendment to the Articles of Incorporation.
The Board of Directors of this corporation shall be classified into
three groups, with two Directors in Group I, three Directors in Group II, and
two Directors in Group III. Each Director in Group I initially shall serve for
a term ending at the annual meeting of stockholders in 1993; each Director in
Group II shall serve for an initial term ending at the annual meeting of
stockholders in 1994; and each Director in Group III shall serve for an initial
term ending at the annual meeting of stockholders in 1995. After the
respective initial terms of the groups indicated, each such group of Directors
shall be elected for successive terms ending at the annual meeting of
stockholders the third year after election.
Directors need not be stockholders.
Section 2. Quorum. A majority of the Directors shall constitute a
quorum for the transaction of business. If, at any meeting of the Board, there
shall be less than a quorum present, a majority of those present may adjourn
the meeting, from time to time, until a quorum is obtained, and no further
notice thereof need be given other than by announcement at said meeting which
shall be so adjourned.
Section 3. First Meeting. The newly elected Directors may hold
their first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after the annual meeting of
stockholders or the time and place of such meeting may be fixed by written
consent of the entire Board.
Section 4. Election of Officers. At the first meeting, or at any
subsequent meeting called for that purpose, the Directors shall elect the
officers of the corporation, as more specifically set forth in ARTICLE V of
these Bylaws. Such officers shall hold office until the next annual election
of officers, or until their successors are elected and shall have qualified.
Section 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held, without notice, at such places and times as shall be
determined, from time to time, by resolution of the Board of Directors.
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Section 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman, the Chief Executive Officer, the
President, or by the Secretary on four (4) days' notice to each Director. In
case such notice is delivered personally, or by telephone, facsimile or
telegram, it shall be delivered at least twenty-four (24) hours prior to the
time of the holding of the meeting.
Section 7. Place of Meetings. The Directors may hold their
meetings, and have one or more offices, and keep the books of the corporation
outside the State of Maryland at any office or offices of the corporation, or
at any other place as they from time to time by resolution may determine.
Section 8. Dispensing With Notice. The transactions of any meeting
of the Board of Directors, however called and noticed or wherever held, shall
be as valid as though had at a meeting duly held after regular call and notice
if a quorum be present and if, either before or after the meeting, each of the
Directors not present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes thereof. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting. Notice of a meeting need not be given to any
Director who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
Section 9. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or any committee thereof,
may be taken without a meeting if, prior to such action, 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 of Directors or committee.
Section 10. Telephonic Meetings. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 11. General Powers of Directors. The Board of Directors
shall have the management of the business of the corporation, and, subject to
the restrictions imposed by law exercise all the powers of the corporation.
Each Director shall be entitled to rely upon the books and records of the
corporation, and upon information, opinions, reports, or statements, including
financial statements and other financial data, prepared or presented by
officers or employees of the corporation believed to be reliable and competent
in the matters presented, or by counsel, independent accountants, or other
persons as to matters which the Board of Directors believes to be within such
person's professional or expert competence.
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Section 12. Specific Powers of Directors. Without prejudice to such
general powers, it hereby is expressly declared that the Directors shall have
the following powers:
(1) To make and change regulations, not
inconsistent with these Bylaws, for the management of the business
and affairs of the corporation.
(2) To purchase or otherwise acquire for the
corporation any property, rights or privileges which the corporation
is authorized to acquire.
(3) To pay for any property purchased for the
corporation, either wholly or partly in money, stock, bonds,
debentures or other securities of the corporation.
(4) To borrow money and make and issue notes, bonds
and other negotiable and transferable instruments, mortgages, deeds
of trust and trust agreements, and to do every act and thing
necessary to effectuate the same.
(5) To remove any officer for cause, or any officer
summarily, without cause, and, in their discretion, from time to time
to devolve the powers and duties of any officer upon any other person
for the time being.
(6) To appoint and remove or suspend subordinate
officers or agents as they may deem necessary, and to determine their
duties, and to fix and from time to time to change their salaries or
remuneration, and to require security as and when they think fit.
(7) To confer upon any officer of the corporation
the power to appoint, remove and suspend subordinate officers and
agents.
(8) To determine who shall be authorized, on behalf
of the corporation, to make and sign bills, notes, acceptances,
endorsements, contracts and other instruments.
(9) To determine who shall be entitled, in the name
and on behalf of the corporation, to vote upon or to assign and
transfer any shares of stock, bonds or other securities of other
corporations held by this corporation.
(10) To delegate any of the powers of the Board, in
relation to the ordinary business of the corporation, to any standing
or special committee, or to any officer or agent (with power to
sub-delegate), upon such terms as they deem fit.
(11) To call special meetings of the stockholders for any
purpose or purposes.
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(12) To appoint the accountants and attorneys for
the corporation.
Section 13. Compensation. Directors shall receive a stated salary
for their services as Directors and, by resolution of the Board, a fixed fee
and expenses of attendance for attendance at each meeting. Directors may
participate in retirement plans, stock option and restricted stock plans and
other employee benefit plans of the Company which specifically permit
participation by directors.
Nothing herein contained shall be construed to preclude any Director
from serving the corporation in any other capacity as an officer, agent, or
otherwise.
ARTICLE IV
COMMITTEES
Section 1. Appointments and Powers. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate
one or more committees. The Board of Directors may designate one or more
Directors as alternate members of a committee who may replace any absent or
disqualified member at any meeting of the committee. Such alternate members
shall, for purposes of determining a quorum, be counted in the place of the
absent or disqualified member. The committee, to the extent provided in said
resolution or resolutions or in these Bylaws, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the corporation. Such committee or committees shall have such name or names
as may be stated in these Bylaws or as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 2. Minutes. Committees shall keep regular minutes of their
proceedings, and report the same to the Board of Directors when required.
Section 3. Audit Committee. The Audit Committee shall select and
engage in behalf of the corporation, and fix the compensation of, a firm of
certified public accountants whose duty it shall be to audit the books and
accounts of the corporation and its subsidiaries for the fiscal year in which
they are appointed, and who shall report to such Committee. The Audit
Committee shall confer with the auditors and shall determine, and from time to
time shall report to the Board of Directors upon the scope of the auditing of
the books and accounts of the corporation and its subsidiaries. The Audit
Committee shall also be responsible for determining that the business practices
and conduct of employees and other representatives of the corporation and its
subsidiaries comply with the policies and procedures of the corporation. None
of the members of the Audit Committee shall be officers or employees of the
corporation.
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ARTICLE V
OFFICERS
Section 1. Officers. The officers shall be elected at the first
meeting of the Board of Directors after each annual meeting of stockholders.
The Directors shall elect a Chairman, a Chief Executive Officer, a President, a
Secretary and a Treasurer and one or more Vice Presidents as they may deem
proper. Any person may hold two or more offices.
The Board of Directors may appoint such other officers and agents as
it may deem advisable, who shall hold office for such terms and shall exercise
such powers and perform such duties as shall from time to time be determined by
the Board of Directors.
Section 2. Chairman. The Chairman, if one be elected, shall preside
at all meetings of the Board of Directors and stockholders, and he shall have
and perform such other duties as from time to time may be assigned to him by
the Board of Directors.
Section 3. Chief Executive Officer. The Chief Executive Officer
shall have the general powers and duties of supervision and management usually
vested in the office of Chief Executive Officer of a corporation. He shall
have general supervision, direction and control of the business of the
corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he shall execute bonds, mortgages and other
contracts on behalf of the corporation.
Section 4. President. The President shall have the general powers
and duties of supervision and management usually vested in the office of
President of a corporation. He shall have general supervision, direction and
control of the business of the corporation. Except as the Board of Directors
shall authorize the execution thereof in some other manner, he shall execute
bonds, mortgages and other contracts on behalf of the corporation.
Section 5. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties as are usually vested in the office of
Vice President of a corporation. Except as the Board of Directors shall
authorize the execution thereof in some other manner, he shall execute bonds,
mortgages and other contracts on behalf of the corporation.
Section 6. Secretary. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and Directors, and all other
notices required by law or by these Bylaws, and, in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chairman, the Chief Executive Officer, the President,
the Board of Directors, or the stockholders, upon whose requisition the meeting
is called as provided in these Bylaws. He shall record all proceedings of
meetings of the stockholders and of the Board of Directors in a book to be kept
for that purpose, and shall perform such other duties as may be assigned to him
by the Directors or the President.
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Section 7. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation. He shall
deposit all monies and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors or the President, taking proper vouchers for
such disbursements. He shall render to the President and the Board of
Directors, at the regular meetings of the Board, or whenever they may request
it, an accounting of all his transactions as Treasurer, and of the financial
condition of the corporation.
If required by the Board of Directors, he shall give the corporation
a bond for the faithful discharge of his duties, in such amount and with such
surety as the Board shall prescribe.
Section 8. Assistant Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers, if any, shall be appointed by
the Board of Directors or by the Chief Executive Officer, the President or Vice
President and shall have such powers and shall perform such duties as shall be
assigned to them, respectively, by the Secretary and by the Treasurer.
Section 9. General Powers. In addition to the rights and duties set
forth in this Article V, the Chief Executive Officer, President, Secretary or
any other officer of the corporation shall be authorized and empowered to take
such actions and to execute such documents on behalf of the corporation as may,
from time to time, be required.
ARTICLE VI
RESIGNATIONS; FILLING OF VACANCIES;
INCREASE IN NUMBER OF DIRECTORS;
REMOVAL FROM OFFICE
Section 1. Resignations. Any Director, member of a committee, or
other officer may resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified therein, and, if no time
be specified, at the time of its receipt by the Board of Directors, the
President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
Section 2. Filling of Vacancies. If the office of any officer,
Director or member of a committee becomes vacant, the remaining Directors in
office, although less than a quorum, may appoint, by a majority vote, any
qualified person to fill such vacancy, who shall hold office for the unexpired
term of his predecessor, or until his successor is elected and shall have
qualified.
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Any vacancy occurring by reason of an increase in the number of
Directors may be filled by action of a majority of the entire Board, for a term
of office continuing only until the next election by the stockholders of
Directors within the Group to which the new Director is appointed, or may be
filled by the affirmative vote of the holders of a majority of the shares then
entitled to vote at an election of Directors.
Section 3. Removal From Office. At a meeting of stockholders
expressly called for such purpose, any or all members of the Board of Directors
may be removed, with or without cause, by a vote of the holders of not less
than two-thirds (2/3) of the issued and outstanding capital stock entitled to
vote thereon and said stockholders may elect a successor or successors to fill
any resulting vacancies, for the unexpired terms of the removed Directors.
Any officer or agent, or member of a committee elected or appointed
by the Board of Directors, may be removed by said Board whenever, in its
judgment, the best interests of the corporation shall be served thereby.
ARTICLE VII
CAPITAL STOCK
Section 1. Certificates of Stock. Certificates of stock, numbered,
and signed by a member of the Board of Directors, the Chief Executive Officer,
the President or a Vice President, and the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, shall be issued to each
stockholder, certifying to the number of shares owned by him in the
corporation. Whenever any certificate is countersigned, or otherwise
authenticated by a transfer agent or registrar, the signatures of such
Chairman, Chief Executive Officer, President, Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer may be facsimiles.
In case any officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the date of its issue.
Section 2. Lost Certificates. A new certificate of stock may be
issued in place of any certificate theretofore issued by the corporation and
alleged to have been lost or destroyed, and the Directors may, at their
discretion, request the owner of the lost or destroyed certificate, or his
legal representative, to give the corporation a bond, in such sum as they may
direct, but not exceeding double the value of the stock, to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss of any such certificate.
Section 3. Transfer of Shares. Subject to the restrictions that may
be contained in the Articles of Incorporation, the shares of stock of the
corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized representatives.
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Section 4. Dividends. Subject to the provisions of the Articles of
Incorporation and the laws of the State of Maryland, the Board of Directors
may, at any regular or special meeting, declare dividends upon the capital
stock of the corporation, as and when they may deem expedient.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the corporation shall
end on the 31st day of December of each calendar year.
Section 2. Checks, Drafts, Notes. All checks, drafts, or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation, and in such manner as from time
to time shall be determined by resolution of the Board of Directors.
Section 3. Corporate Records. The corporation shall keep correct
and complete books of account and minutes of the proceedings of its
stockholders and Directors.
The corporation shall keep and maintain at its principal offices a
certified copy of its Articles of Incorporation and all amendments thereto, a
certified copy of its Bylaws and all amendments thereto, a stock ledger or
duplicate stock ledger, revised annually, containing the names, alphabetically
arranged, of all stockholders, their residence addresses, and the number of
shares held by them, respectively. In lieu of the stock ledger or duplicate
stock ledger, a statement may be filed in the principal office stating the name
of the custodian of the stock ledger or duplicate stock ledger, and the present
and complete post office address (including street and number, if any) where
such stock ledger or duplicate stock ledger is kept.
The Directors shall take all reasonable steps to assure that a full
and correct annual statement of the affairs of the corporation is prepared
annually, including a balance sheet and a financial statement of operations for
the preceding fiscal year which shall be certified by independent certified
public accountants, and distributed to stockholders within 120 days after the
close of the corporation's fiscal year and a reasonable period of time prior to
the annual meeting of stockholders. The Directors shall also be responsible
for scheduling the annual meeting of stockholders.
Section 4. Notice and Waiver of Notice. Whenever, pursuant to the
laws of the State of Maryland or these Bylaws, any notice is required to be
given, personal notice is not meant unless expressly so stated, and any notice
so required shall be deemed to be sufficient if given by depositing the same in
the United States mail, postage prepaid, addressed to the person entitled
thereto at his address as it appears on the records of the corporation, and
such notice shall be
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deemed to have been given on the day of such mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by statute.
Any notice required to be given may be waived, in writing, by the
person or persons entitled thereto, whether before or after the time stated
therein.
Section 5. Inspectors. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If the inspectors shall not be so
appointed or if any of them shall fail to appear or act, the chairman of the
meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint inspectors. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath to execute faithfully the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares represented
at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting or any stockholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any
fact found by them. No Director or candidate for the office of Director shall
act as inspector of an election of Directors. Inspectors need not be
stockholders.
Section 6. Transactions with Officers and Directors. The
corporation shall not engage in any purchase, sale or lease of property or
other business transaction in which an officer or director of the corporation
has a direct or indirect material interest without the approval by resolution
of a majority of those directors who do not have an interest in such
transaction.
ARTICLE IX
AMENDMENTS TO BYLAWS
Section 1. Amendment by Shareholders. New Bylaws may be adopted or
these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote, provided,
however, that any provision of these Bylaws requiring a vote of greater than a
majority may be amended, repealed or modified only by a vote satisfying such
higher voting requirements.
Section 2. Amendment by Directors. Subject to the right of the
shareholders as provided in Section 1 of this Article IX to adopt, amend, or
repeal Bylaws, Bylaws may be adopted, amended, or repealed by the Board of
Directors; provided, however, that the Board of Directors may adopt an
amendment of a Bylaw changing the authorized number of directors only
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within the limits specified in the Articles of Incorporation or in Section 1 of
Article III of these Bylaws.
ARTICLE X
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. Indemnification. The corporation shall indemnify and
hold harmless, and shall pay expenses incurred by or satisfy a judgment or fine
levied against, each officer, director and other person, in the manner and to
the full extent permitted by the General Corporation Law of the State of
Maryland.
Section 2. Provisions Not Exclusive. This Article shall not be
construed as a limitation upon the power of the corporation to enter
into contracts or undertakings of indemnity with a director, officer, employee
or agent of the corporation, nor shall it be construed as a limitation upon any
other rights to which a person seeking indemnification may be entitled under
any agreement, vote of stockholders or disinterested directors or otherwise,
both as to actions in his official capacity and as to action in another
capacity while holding office.
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CERTIFICATE OF SECRETARY
I, Essel W. Bailey, Jr., Secretary of Omega Healthcare Investors,
Inc., hereby certify that the attached Bylaws consisting of 12 pages,
constitute the Bylaws of this corporation, and the same are in full force and
effect as of the 15th day of October, 1997.
IN WITNESS WHEREOF, I have executed this certificate as of the 15th
day of October, 1997.
/s/ ESSEL W. BAILEY, JR.
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ESSEL W. BAILEY, JR., Secretary
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