EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ATRIA COMMUNITIES, INC.
ARTICLE 1
OFFICES
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1.1 REGISTERED OFFICE. The registered office of the Corporation shall be
in the City of Wilmington, County of New Castle, State of Delaware.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE 2
STOCKHOLDERS
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2.1 ANNUAL MEETING. The annual meeting of the stockholders of the
Corporation, for the election of directors, the consideration of financial
statements and other reports, and the transaction of such other business as may
properly be brought before such meeting, shall be held no later than six months
following the end of the Corporation's fiscal year. The meeting shall be held
at such time and on such date as may be designated by the Board of Directors of
the Corporation. In the event the annual meeting is not held or if directors
are not elected at the annual meeting, a special meeting may be called and held
for that purpose.
2.2 SPECIAL MEETINGS. Except as otherwise required by law and subject to
the rights of the holders of any class or series of Preferred Stock, special
meetings of stockholders of the Corporation for any purpose or purposes may be
called only by (i) the Board of Directors pursuant to a resolution stating the
purpose or purposes thereof approved by a majority of the total number of
Directors which the Corporation would have if there were no vacancies (the
"Whole Board"), (ii) by the Chairman of the Board of Directors of the
Corporation, or (iii) by the President of the Corporation. In addition, prior
to the Trigger Date (as defined in the Certificate of Incorporation), the
Corporation will call a special meeting of stockholders promptly upon request by
Vencor, Inc., a Delaware corporation ("Vencor"), or any of its affiliates, in
each case, if such entity is a stockholder of the Corporation. No business
other than that stated in the notice of the Special Meeting shall be transacted
at any special meeting.
2.3 PLACE OF MEETING. All meetings of the stockholders for the election
of directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place either within or without the State of
Delaware as shall be stated in the notice of such meeting.
2.4 NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Written notice of the
annual meeting or a special meeting stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at such person's address as it appears on the stock transfer books
of the Corporation. Such further notice shall be given as may be required by
law. When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting. Any previously scheduled
meeting of the stockholders may be postponed, and any special meeting of the
stockholders may be cancelled, by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
2.5 STOCKHOLDERS LIST. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of 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 days prior to the meeting, either at a place within the city, town or
village where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
2.6 QUORUM; ADJOURNMENTS. At any meeting of stockholders, the holders of
a majority of the issued and outstanding shares of stock entitled to vote at the
meeting of stockholders, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Corporation's
Restated Certificate of Incorporation as the same may be amended from time to
time ("Certificate of Incorporation"). If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the chairman of the
meeting or a majority of the stockholders entitled to vote at the meeting,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without
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notice other than announcement at the meeting, until a quorum shall be
present or represented by proxy.
2.7 VOTING. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the shares of stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the General Corporation Law of the State of Delaware, the Certificate of
Incorporation or these By-Laws a different vote is required, in which case such
express provision shall govern and control the decision of such question.
2.8 PROXIES. At each meeting of the stockholders, each stockholder shall
be entitled to vote in person or by proxy the shares of capital stock having
voting power held by such stockholder, but no proxy shall be voted after three
years from its date, unless the proxy provides for a longer period.
2.9 INTRODUCTION OF BUSINESS AT A MEETING OF STOCKHOLDERS. At an annual
or special meeting of stockholders, only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before an annual or special meeting of stockholders. To be properly brought
before a special meeting of stockholders and acted upon at the meeting, business
must be specified in the notice of the special meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, the Chairman of
the Board or the President, or if prior to the Trigger Date given at the
direction of Vencor, pursuant to Section 2.2 of these By-Laws. At an annual
meeting of stockholders, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before the
annual meeting of stockholders (a) by, or at the direction of, the Board of
Directors, (b) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice of the annual meeting, who is entitled to
vote at the annual meeting and who otherwise complies with all procedures and
requirements set forth in this By-Law, or (c) prior to the Trigger Date only, by
Vencor or any of its affiliates that is a stockholder of the Corporation. For
business to be properly brought before an annual meeting of stockholders by a
stockholder, the stockholder must have given timely notice thereof in writing to
the President or Secretary of the Corporation. To be timely, a stockholder's
notice must be received at the principal executive offices of the Corporation
not fewer than 60 days nor more than 90 days prior to the scheduled date of the
annual meeting regardless of any postponement, deferral or adjournment of that
meeting to a later date; provided, however, that if less than 70 days' notice or
prior public disclosure of the date of the annual meeting is made or given to
stockholders, notice by the stockholder to be timely must be received not later
than the close of business on the tenth day following the earlier of (1) the day
on which such notice of the date of the meeting was mailed or (2) the day on
which such public disclosure was made.
A stockholder's notice shall set forth as to each matter the stockholder
proposes to bring before an annual meeting of stockholders (1) a brief
description of the business desired to be brought before the annual meeting, (2)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business and any other stockholders known by such
stockholder to be supporting such proposal, (3) the class and number of shares
of the Corporation which are beneficially owned by such stockholder on the date
of
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such stockholder's notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, and (4) any material interest of the stockholder in such proposal.
Notwithstanding anything in the By-Laws to the contrary, no business shall
be conducted at a meeting of stockholders except in accordance with the
procedure set forth in this Section 2.9. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
described by the By-Laws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be considered.
2.10 NOMINATION OF DIRECTORS. Only persons nominated in accordance with
the procedures set forth in this section shall be eligible for election as
directors. Nominations of persons for election to the board may be made at a
meeting of stockholders (1) by or at the direction of the Board of Directors,
(2) prior to the Trigger Date, by Vencor or any of its affiliates that is a
stockholder of the Corporation, or (3) by any stockholder of the Corporation
entitled to vote for the election of directors at such meeting who complies with
the notice procedures set forth in this Section 2.10. Such nominations, other
than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the President or Secretary of the
Corporation. To be timely, a stockholder's notice must be received at the
principal executive offices of the Corporation not fewer than 60 days nor more
than 90 days prior to the scheduled date of a meeting, regardless of any
postponement, deferral or adjournment of that meeting to a later date; provided,
however, that if fewer than 70 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so delivered or received not later than the close of
business on the tenth day following the earlier of (1) the day on which such
notice of the date of such meeting was mailed or (2) the day on which such
public disclosure was made.
A stockholder's notice shall set forth (1) as to each person whom the
stockholder proposes to nominate for election or reelection as a director (a)
the name, age, business address and residence address of such person, (b) the
principal occupation or employment of such person, (c) the class and number of
shares of the Corporation which are beneficially owned by such person on the
date of such stockholder's notice and (d) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including without
limitation such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (2) as to the
stockholder giving the notice (a) the name and address, as they appear on the
Corporation's books, of such stockholder and any other stockholders known by
such stockholder to be supporting such nominees and (b) the class and number of
shares of the Corporation which are beneficially owned by such stockholder on
the date of such stockholder's notice and by any other stockholders known by
such stockholder to be supporting such nominees on the date of such
stockholder's notice.
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No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with procedures set forth in this section. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
This Section 2.10 shall not apply to the election of a director to a
directorship which may be filled by the Board of Directors under the General
Corporation Law of the State of Delaware.
2.11 PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE. Election of
directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot, and, subject to the rights of the holders of any
series of Preferred Stock to elect directors under an applicable preferred stock
designation, a plurality of the votes cast thereat shall elect directors.
Except as otherwise provided by law, the Certificate of Incorporation, these By-
Laws, or in the designation of rights of holders of any series of Preferred
Stock in all matters other than the election of directors, the affirmative vote
of a majority of the voting power of the shares present in person or represented
by proxy at the meeting and entitled to vote on the matter shall be the act of
the stockholders.
2.12 INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The Board of
Directors by resolution shall appoint, or shall authorize an officer of the
Corporation to appoint, one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has
been appointed to act or is able to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging such person's duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such person's ability. The
inspector(s) shall have the duties prescribed by law. The Chairman of the
meeting shall fix and announce at the meeting the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting.
2.13 NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Effective as of the
Trigger Date, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in writing by such
holders.
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ARTICLE 3
BOARD OF DIRECTORS
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3.1 GENERAL POWERS. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors. The Board of Directors
may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute, by the Certificate of Incorporation or by these
By-Laws required or directed to be exercised or done by the stockholders.
3.2 NUMBER, CLASSIFICATION AND TERM OF OFFICE. Except as otherwise fixed
by or pursuant to the provisions of Article IV of the Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the number of
the Directors of the Corporation shall be fixed from time to time exclusively
pursuant to a resolution adopted by a majority of the Whole Board (as defined in
the Certificate of Incorporation), but in no event shall be less than three nor
more than fifteen. Commencing with the 1997 annual meeting of stockholders, the
directors shall be divided into three classes, which shall be as nearly equal in
number as possible with the term of office of the first class elected to expire
at the annual meeting of stockholders to be held in 1998, the term of office of
the second class to expire at the annual meeting of stockholders to be held in
1999, and the term of office of the third class to expire at the annual meeting
of stockholders to be held in 2000, with each class to hold office until its
successor is duly elected and qualified. At each succeeding annual meeting of
stockholders after the 1997 annual meeting of stockholders, directors elected to
succeed those directors whose terms then expire shall be elected for a full term
of office to expire at the third succeeding annual meeting of stockholders after
their election or thereafter when their respective successors in each case are
duly elected and qualified. Any director elected to a particular class by the
stockholders or directors shall be eligible, upon resignation or expiration of
their term, to be elected to a different class.
3.3 PLACE OF MEETING. The Board of Directors may hold meetings, both
regular and special, either within or without the State of Delaware.
3.4 REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held, within or without the State of Delaware, without other notice
than this By-Law immediately after, and at the same place as, the annual meeting
of stockholders. The Board of Directors may, by resolution, provide the time
and place, within or without the State of Delaware, for the holding of
additional regular meetings without other notice than such resolution.
3.5 SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the President or a
majority of the Board of Directors then in office. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings. Notice of each special meeting shall be given to each
director, at least three days before the day on which the meeting is to be held,
in accordance with Article IV of these By-Laws. Each such notice shall state
the time and place either within or without the State of Delaware of the meeting
but need not state the purpose thereof, except as otherwise provided by the
General Corporation
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Law of the State of Delaware or by these By-Laws. Notice of any meeting of
the Board need not be given to any director who is present at such meetings; and
any meeting of the Board of Directors shall be a legal meeting without any
notice thereof having been given if all of the directors then in office are
present at the meeting unless a director attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meetings is not lawfully called or convened.
3.6 ACTION BY CONSENT OF BOARD OF DIRECTORS. 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 all members of the Board of Directors
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
3.7 CONFERENCE TELEPHONE MEETINGS. Members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such 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.
3.8 QUORUM. At all meetings of the Board of Directors, a majority of
directors then in office shall constitute a quorum for the transaction of
business, and the act of the majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors, except as
may be otherwise specifically provided by the General Corporation Law of the
State of Delaware or by the Certificate of Incorporation. If a quorum shall not
be present at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting until a quorum shall be present. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
3.9 VACANCIES. Except as otherwise provided for or fixed by or pursuant
to the provisions of Article IV of the Certificate of Incorporation relating to
the rights of the holders of any series of Preferred Stock to elect directors
under specified circumstances, newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other cause
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of Directors constituting the Board of Directors shall shorten the term of any
incumbent Director.
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3.10 COMMITTEES.
a. The Board of Directors may, by resolution adopted by a majority of
the whole Board of Directors, designate one or more committees, each committee
to consist of one or more directors of the Corporation. The Board of Directors
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In addition, in the absence or disqualification of the member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers over business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation under Sections 251 and 252 of the General Corporation Law of the
State of Delaware, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders the dissolution of the Corporation or
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the Resolution so provides, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership or merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
b. A majority of any committee may determine its action and fix the
time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Section 3.5 of these By-Laws. The Board shall have power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
3.11 REMOVAL. Subject to the rights of any series of Preferred Stock
to elect Directors under specified circumstances, any Director may be removed
from office only for cause by the affirmative vote of the holders of at least a
majority of the voting power of all shares of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock") then outstanding,
voting together as a single class; provided, however, that prior to the Trigger
Date, any director or directors may be removed from office, with or without
cause, by the affirmative vote of the holders of at least a majority of the
voting power of all Voting Stock then outstanding, voting as a single class.
3.12 RECORDS. The Board of Directors shall cause to be kept a record
containing the minutes of the proceedings of the meetings of the Board and of
the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
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3.13 COMPENSATION. The Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or stated
salary as director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
ARTICLE 4
NOTICES
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4.1. NOTICES. Whenever, under the provisions of the General Corporation
Law of the State of Delaware or of the Certificate of Incorporation or of these
By-Laws, notice is required to be given to any director or stockholder, such
notice shall be in writing, and shall be hand-delivered or sent by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given orally, in person or by
telephone, or by telegram or telex, and such notice shall be deemed to be given
upon transmission, in the case of a notice by telegram, or upon receipt of the
answer back of the telex machine of the receiving party, in the case of a notice
by telex.
4.2. WAIVER OF NOTICE. Whenever any notice is required to be given under
the provisions of the General Corporation Law of the State of Delaware, the
Certificate of Incorporation or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of the stockholders or the Board of Directors or committee thereof need be
specified in any waiver of notice of such meeting.
ARTICLE 5
OFFICERS
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5.1. OFFICERS. The Corporation may have such officers as the Board of
Directors may determine from time to time, including a Chairman of the Board,
Vice-Chairman, Chief Executive Officer, President, one or more Vice Presidents,
a Secretary, a Treasurer, and, if the Board shall so determine, an Assistant
Secretary and an Assistant Treasurer. Any two or more offices may be held by
the same person. Such other officers and agents shall be appointed in such
manner, have such duties and hold their offices for such terms, as may be
determined by resolution of the Board of Directors.
5.2. ELECTION OF OFFICERS. The officers shall be elected by the Board of
Directors at the first meeting of the Board of Directors after each annual
meeting of stock-
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holders. Each officer shall hold office at the pleasure of the Board of
Directors until his or her successor shall have been duly elected and qualified,
or until his or her death, or until he or she shall have resigned or shall have
been removed or disqualified in the manner hereinafter provided.
5.3. RESIGNATION. Any officer may resign at any time by giving written
notice of his resignation to the Board of Directors or to the Chairman of the
Board of the Corporation. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon receipt by the Board of Directors or
Chairman of the Board. Unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
5.4. REMOVAL. Any officer may be removed, either with or without cause,
at any time, by action of the Board of Directors or the Chairman of the Board.
5.5. CHAIRMAN OF THE BOARD. If the Board of Directors designates a
Chairman of the Board, he shall preside at all meetings of the stockholders and
of the Board of Directors. Unless the Board of Directors designates otherwise,
the Chairman shall be the Chief Executive Officer of the Corporation. He may
sign certificates for shares of stock of the Corporation, any deeds, mortgages,
bonds, contracts or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these By-
Laws to some other officer or agent of the Corporation, or shall be required by
law to be otherwise signed or executed. The Chairman of the Board shall, in
general, perform all duties incident to the office of chairman of the board and
such other duties as may be set forth in the By-Laws or may be prescribed by the
Board of Directors from time to time.
5.6. PRESIDENT. The President shall perform all duties instant to the
office of President and such other duties as may from time to time be assigned
to him or her by the Board of Directors or the Chairman of the Board. At the
request of the Chairman of the Board or in his or her absence, or in the event
of the Chairman of the Board's inability or refusal to act, the President shall
perform the duties of the Chairman of the Board, and, when so acting, shall have
the powers of and be subject to the restrictions placed upon the Chairman of the
Board in respect of the performance of such duties, unless the Board of
Directors otherwise designates.
5.7. CHIEF EXECUTIVE OFFICER. If the Board appoints a Chief Executive
Officer, he or she shall have direct charge of the business of the Corporation,
subject to the general control of the Board of Directors, and shall be the chief
executive officer of the Corporation unless otherwise determined by the Board of
Directors. The Chief Executive Officer shall have direct charge of the daily
operational aspects of the Corporation's business, unless otherwise determined
by the Board of Directors, and shall have such other duties as may be assigned
to him or her from time to time by the Board of Directors or its Chairman.
5.8. VICE-PRESIDENT. Each Vice President shall perform all such duties as
from time to time may be assigned to him or her by the Board of Directors, the
Chairman of the Board, the President or the Chief Executive Officer. At the
request of the President, or in
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the absence of the President, or in the event of his or her inability or refusal
to act, the Vice-President (or, in the event there be more than one Vice-
President, the Vice-Presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order of their
election), shall perform all the duties of the President and, when so acting,
shall have the power of and be subject to the restrictions placed on the
President in respect of the performance of such duties.
5.9. TREASURER. The Treasurer shall have charge and custody of and be
responsible for all funds and securities of the Corporation; receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever, and keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation; deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such banks, trust
companies and other depositories as shall be designated by the Board of
Directors or pursuant to its direction; and, in general, perform all the duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him or her by the Chairman of the Board, the President, the
Chief Executive Officer or the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall supervise the investments of
the Corporation's funds. The Treasurer shall render to the President and to the
Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial
condition of the Corporation.
5.10. SECRETARY. The Secretary shall (a) attend all meetings of the
stockholders and all meetings of the Board of Directors and shall record and
keep, or cause to be recorded and kept, the minutes of the corporate meetings in
one or more books provided for that purpose, and shall perform like duties for
the standing committees when required; (b) see that all notices are duly given
in accordance with the provisions of these By-Laws or as required by law; (c) be
custodian of the corporate records and of the seal, if any, of the Corporation;
(d) keep a register of the mailing address of each stockholder; (e) sign with
the Chairman of the Board, President or Vice-President certificates for shares
of stock of the Corporation; (f) have general charge of the stock transfer books
of the Corporation; and (g) in general, perform all duties as from time to time
may be assigned to him or her by the Chairman of the Board, the President, the
Chief Executive Officer or the Board of Directors.
5.11 ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers in the order determined by the Board of
Directors (or if there shall be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as from time to time
may be assigned by the Board of Directors.
5.12 ASSISTANT SECRETARY. The Assistant Secretary, or if there shall be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there shall be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties
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and exercise the powers of the Secretary and shall perform such other duties as
from time to time may be assigned by the Board of Directors.
5.13. POWERS AND DUTIES. In the absence of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board of Directors may delegate for the time being, the powers or duties of
such officer, or any of them, to any other officer or to any director. The
Board of Directors may from time to time delegate to any officer authority to
appoint and remove subordinate officers and to prescribe their authority and
duties.
5.14 OFFICERS' BOND OR OTHER SECURITY. If required by the Board of
Directors, any officer of the Corporation shall give a bond or other security
for the faithful performance of such officer's duties, in such amount and with
such surety as the Board of Directors may require.
5.15. COMPENSATION. The compensation of the officers shall be fixed from
time to time by the Board of Directors. Nothing contained herein shall preclude
any officer from serving the Corporation in any other capacity, including that
of director, or from serving any of its stockholders, subsidiaries or affiliated
corporations in any capacity, and receiving proper compensation therefor.
ARTICLE 6
CERTIFICATES OF STOCK
---------------------
6.1. STOCK CERTIFICATES. Every holder of stock in the Corporation shall
be entitled to have a certificate signed by, or in the name of the Corporation
by, the Chairman of the Board, the President or a Vice-President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares of stock owned by the holder
in the Corporation. If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.2 FACSIMILE SIGNATURES. Where a certificate of stock is countersigned
(a) by a transfer agent other than the Corporation or its employee, (b) by a
registrar other than the Corporation or its employee, any other signature on the
certificate may be facsimile. In case
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any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
6.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
6.4 TRANSFER OF STOCK. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its records;
provided, however, that the Corporation shall be entitled to recognize and
enforce any lawful restriction on transfer. Whenever any transfer of stock
shall be made for collateral security, and not absolutely, it shall be so
expressed in the entry of transfer if, when the certificates are presented to
the Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
6.5 TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint,
or authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
6.6 REGULATIONS. The Board of Directors may make such additional rules
and regulations, not inconsistent with these By-Laws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
6.7. FIXING THE RECORD DATE . In order that the Corporation may determine
the holders of stock of the Corporation entitled to notice of or to vote at any
meeting of stockholders or any adjournments thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date which shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date, as applicable, shall
not be more than sixty nor less than ten days before the date of the meeting of
stockholders, nor more than sixty days prior to any other action. If no record
date is fixed, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders, or entitled to the benefit of any
such other action, shall be determined pursuant to Section 203 of the General
Corporation Law of the State of Delaware. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any
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adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
6.8. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares of stock to receive dividends and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares of stock, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares of stock on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
ARTICLE 7
GENERAL PROVISIONS
------------------
7.1 AUDITS. The accounts, books and records of the Corporation shall be
audited upon the conclusion of each fiscal year by an independent certified
public accountant selected by the Board of Directors, and it shall be the duty
of the Board of Directors to cause such audit to be done annually.
7.2 BOOKS AND RECORDS. The books and records of the Corporation may be
kept outside the State of Delaware at such place or places as may from time to
time be designated by the Board of Directors.
7.3 CHECKS, NOTES, DRAFTS, ETC.. All checks, notes, drafts or other
orders for the payment of money of the Corporation shall be signed, endorsed or
accepted in the name of the Corporation by such officer, officers, person or
persons as from time to time may be designated by the Board of Directors or by
an officer or officers authorized by the Board of Directors to make such
designation.
7.4 DIVIDENDS. Subject to the provisions of statute and the Certificate
of Incorporation, dividends upon the shares of capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting.
Dividends may be paid in cash, in property or in shares of stock of the
Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
7.5 EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of Directors may
authorize any officer or officers, agent or agents, in the name and on behalf of
the Corporation to enter into or execute and deliver any and all contracts,
deeds, bonds, mortgages and other obligations or instruments, and such authority
may be general or confined to specific instances.
7.6 FISCAL YEAR. The Board of Directors of the Corporation shall have the
power to fix, and from time to time change, the fiscal year of the Corporation.
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7.7 RESERVES. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Board of Directors may, from time to time, in its absolute discretion, determine
to be proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors may deem to be conducive to the
interests of the Corporation. The Board of Directors may modify or abolish any
such reserve in the manner in which it was created.
7.8 SEAL. The seal of the Corporation shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
7.9 VOTING OF STOCK IN OTHER CORPORATIONS. Unless otherwise provided by
resolution of the Board of Directors, the Chairman of the Board or the
President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Corporation may be entitled to cast as a
stockholder or otherwise in any other corporation, any of whose shares of
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board or the President may,
or may instruct the attorneys or agents appointed to, execute or cause to be
executed in the name and on behalf of the Corporation or under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
ARTICLE 8
AMENDMENTS
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These By-Laws may be amended or repealed or new by-laws adopted as provided
by the Certificate of Incorporation.
The foregoing By-Laws are a true and correct
copy of the By-Laws, as amended, as of June
13, 1996.
--------------------------------------------
J. Timothy Wesley, Secretary
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