COMMUNITY HEALTH SYSTEMS, INC. - FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
September 14, 2007 (September 12, 2007)
Date of Report (date of earliest event reported)
COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of Registrant as specified in charter)
|
|
|
|
|
Delaware
|
|
001-15925
|
|
13-3893191 |
(State or other jurisdiction
|
|
(Commission File Number)
|
|
(I.R.S. Employer |
of incorporation)
|
|
|
|
Identification No.) |
4000 Meridian Boulevard
Franklin, Tennessee 37067
(Address of principal executive offices)
Registrants telephone number, including area code: (615) 465-7000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (l7 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 12, 2007, the Board of Directors of Community Health Systems, Inc. (the Company),
amended Article V of its by-laws to incorporate the requirement of the New York Stock Exchange that listed companies participate
in the direct registration system administered by The Depository Trust Company. This requirement in turn
requires that the holders of the Companys stock be permitted to elect to have their shares held in
book-entry form rather than in certificate form. On that same date, the Board of Directors of the
Company also adopted a resolution that allows holders of the Companys Common Stock, par value $.01
per share, to hold their shares in book-entry form.
ITEM 9.01. Financial Statements and Exhibits.
|
|
|
Exhibit 3(ii).1
|
|
Amended and Restated By-Laws of Community Health Systems, Inc. (as of September 12, 2007) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this Report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
Date: September 14, 2007 |
COMMUNITY HEALTH SYSTEMS, INC.
(Registrant)
|
|
|
By: |
/s/ Wayne T. Smith |
|
|
|
Wayne T. Smith |
|
|
|
Chairman of the Board,
President and Chief Executive Officer
(principal executive officer) |
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ W. Larry Cash |
|
|
|
W. Larry Cash |
|
|
|
Executive Vice President, Chief
Financial Officer and Director
(principal financial officer) |
|
|
EX-3.(II) AMENDED AND RESTATED BYLAWS
Exhibit 3(ii).1
AMENDED AND RESTATED BY-LAWS
OF
COMMUNITY HEALTH SYSTEMS, INC.
(hereinafter called the Corporation)
(As of September 12, 2007)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation within
the State of Delaware shall be in the City of Wilmington, County of New Castle.
Section 2. Other Offices. The Corporation may also have an office or offices
other than said registered office at such place or places, either within or without the State of
Delaware, as the Board of Directors shall from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at any such time and 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 or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be held on
such date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver thereof. At such annual meetings,
the stockholders shall elect by a plurality vote the directors standing for election and transact
such other business as may properly be brought before the meeting in accordance with these Restated
By-Laws.
Section 3. Special Meetings. Special meetings of stockholders, for any
purpose or purposes, unless otherwise prescribed by statute may be called by the Board of
Directors, the Chairman of the Board of Directors, if one shall have been elected, or the
President.
Section 4. Notice of Meetings. Except as otherwise expressly required by
statute, notice of each annual and special meeting of stockholders stating the date, place 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 of record entitled to vote thereat not less
than ten nor more than sixty days before the date of the meeting. Business transacted at any
special
meeting of stockholders shall be limited to the purposes stated in the notice. Notice of
any meeting shall not be required to be given to any person who attends such meeting (except when
such person attends the meeting in person or by proxy 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) or who, either before or after the meeting, shall submit a signed written
waiver of notice, in person or by proxy. Neither the business to be transacted at, nor the purpose
of, an annual or special meeting of stockholders need be specified in any written waiver of notice.
Section 5. Organization. At each meeting of stockholders, the Chairman of the
Board, if one shall have been elected, or, in the event of such persons absence or if one shall
not have been elected, the President, shall act as chairman of the meeting. The Secretary or, in
the event of such persons absence or inability to act, the person whom the chairman of the meeting
shall appoint secretary of the meeting, shall act as secretary of the meeting and keep the minutes
thereof.
Section 6. Conduct of Business. The chairman of any meeting of stockholders
shall determine the order of business and the procedure at the meeting, including such regulation
of the manner of voting and the conduct of discussion as seems to him or her in order. The date
and time of the opening and closing of the polls for each matter upon which the stockholders will
vote at a meeting shall be announced at the meeting.
Section 7. Quorum, Adjournments. The holders of a majority of the voting
power of the issued and outstanding shares of capital stock of the Corporation entitled to vote
thereat, 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
Restated Certificate of Incorporation. If, however, such quorum shall not be present or
represented by proxy at any meeting of stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum shall be present or
represented by proxy. At such adjourned meeting at which a quorum shall be present or represented
by proxy, any business may be transacted which might have been transacted at the meeting as
originally called. If the adjournment is for more than thirty days, or, if after adjournment a new
record date is set, a notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 8. Voting. Except as otherwise provided by statute or the Restated
Certificate of Incorporation and these Restated By-Laws, each stockholder of the Corporation shall
be entitled at each meeting of stockholders to one vote for each share of capital stock of the
Corporation standing in such stockholders name on the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of Article V of
these Restated By-Laws as the record date for the determination of the stockholders
who shall be entitled to notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the close of
business on the day next preceding the day on which notice thereof shall be given,
or, if notice is waived, at the close of business on the date next preceding the day
on which the meeting is held.
-2-
Each stockholder entitled to vote at any meeting of stockholders may authorize another person or
persons to act for such stockholder by a proxy signed by such stockholder or such stockholders
attorney-in-fact, or as otherwise authorized in accordance with the Delaware General Corporation
Law, but no proxy shall be voted after three years from its date, unless the proxy provides for a
longer period. Any such proxy shall be delivered to the secretary of the meeting at or prior to
the time designated in the order of business for so delivering such proxies. When a quorum is
present at any meeting, the affirmative vote of the holders of a majority of the voting power of
the shares of the Corporation which are present in person or represented by proxy at the meeting
and entitled to vote thereon, shall decide any question brought before such meeting, unless the
question is one upon which by express provision of statute or of the Restated Certificate of
Incorporation or of these Restated By-Laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. Unless required by
statute, or determined by the chairman of the meeting to be advisable, the vote on any question
need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting,
or by such stockholders proxy, if there be such proxy.
Section 9. List of Stockholders Entitled to Vote. At least ten days before
each 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 shall be prepared. 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, as required by the Delaware
General Corporation Law. 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 of the Corporation
who is present.
Section 10. Inspectors. The Board of Directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting or any adjournment
thereof. If any of the inspectors so appointed shall fail to appear or act, the chairman of the
meeting shall, or if inspectors shall not have been appointed, the chairman of the meeting may
appoint one or more inspectors. Each inspector, before entering upon the discharge of such
inspectors duties, shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of such inspectors ability. The
inspectors shall determine the number of shares of capital stock of the Corporation outstanding and
the voting power of each, 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 results, 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, 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 an inspector of an election of directors.
Inspectors need not be stockholders.
Section 11. Consent of Stockholders in Lieu of Meeting. Unless otherwise
provided by statute or in the Restated Certificate of Incorporation, any action required to be
taken or which may be taken at any annual or special meeting of the stockholders of the Corporation
may be taken without a meeting, without prior notice and without a vote, if a consent in writing,
-3-
setting forth the action so taken, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the
taking of any such corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
Section 12. Advance Notice Provisions for Election of Directors. Only persons
who are nominated in accordance with the following procedures shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the Board of Directors may be
made at any annual meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in this Section 12 and
on the record date for the determination of stockholders entitled to vote at such meeting and (ii)
who complies with the notice procedures set forth in this Section 12.
In addition to any other applicable requirements, for a nomination to be made by a stockholder
such stockholder must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation (a) in the case of an annual
meeting, not less than 45 or more than 75 days prior to the first anniversary of the date on which
the Corporation first mailed its proxy materials for the preceding years annual meeting of
stockholders; provided, however, that if the date of the annual meeting is advanced more than 30
days prior to or delayed by more than 30 days after the anniversary of the preceding years annual
meeting, to be timely, notice by the stockholder must be so delivered not later than the close of
business on the later of the 90th day prior to such annual meeting or the
10th day following the day on which public announcement of the date of such meeting is
first made; and (b) in the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public announcement is
first made of the date of the special meeting. For purposes of this Section 12 and Section 13,
public announcement shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the Exchange Act).
To be in proper written form, a stockholders notice to the Secretary must set forth (a) as to
each person whom the stockholder proposes to nominate for election as a director (i) the name, age,
business address and residence address of the person, (ii) the principal occupation or employment
of the person, (iii) the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person and (iv) any other information relating to
the person that would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder; and (b) as to
the stockholder giving the notice (i) the name and record address of such
-4-
stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by such stockholder,
(iv) a representation that such stockholder intends to appear in person or by proxy at the meeting
to nominate the persons named in its notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to be named as a nominee and to
serve as a director if elected.
No person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 12. If the Chairman of the meeting
determines that a nomination was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such defective nomination shall
be disregarded.
Section 13. Advance Notice Provisions for Business to be Transacted at Annual
Meeting. No business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 13 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 13.
In addition to any other applicable requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than 45 or more than 75
days prior to the first anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding years annual meeting of stockholders; provided, however, that if the
date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days
after the anniversary of the preceding years annual meeting, to be timely notice by the
stockholder must be so delivered not later than the close of business on the later of the
90th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made.
To be in proper written form, a stockholders notice to the Secretary must set forth as to
each matter such stockholder proposes to bring before the annual meeting (i) a brief description of
the business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
-5-
are owned
beneficially or of record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders except business brought
before the annual meeting in accordance with the procedures set forth in this Section 13. If the
Chairman of an annual meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman shall declare to the meeting that
the business was not properly brought before the meeting and such business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Place of Meetings. Meetings of the Board of Directors shall be
held at such place or places, within or without the State of Delaware, as the Board of Directors
may from time to time determine or as shall be specified in the notice of any such meeting.
Section 2. Annual Meeting. The Board of Directors shall meet for the purpose
of organization, the election of officers and the transaction of other business, as soon as
practicable after each annual meeting of stockholders, on the same day and at the same place where
such annual meeting shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may be held at such
other time or place (within or without the State of Delaware) as shall be specified in a notice
thereof given as hereinafter provided in Section 5 of this Article III.
Section 3. Regular Meetings. Regular meetings of the Board of Directors shall
be held at such time and place as the Board of Directors may fix. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting
which would otherwise be held on that day shall be held at the same hour on the next succeeding
business day.
Section 4. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board, if one shall have been elected, or by two or more directors
of the Corporation or by the President.
Section 5. Notice of Meetings. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by law or these Restated By-Laws. Notice
of each special meeting of the Board of Directors for which notice shall be required, shall be
given by the Secretary as hereinafter provided in this Section 5, in which notice shall be stated
the time and place of the meeting. Except as otherwise required by these By-Laws, such notice need
not state the purposes of such meeting. Notice of any special meeting, and of any regular or
annual meeting for which notice is required, shall be given to each director at least (a) four
hours before the meeting if by telephone or by being personally delivered or sent by telex,
telecopy, or
-6-
similar means or (b) two days before the meeting if delivered by mail to the
directors residence or usual place of business. Such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage prepaid, or when transmitted if sent
by telex, telecopy, or similar means. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Any director may waive notice of any meeting by a writing signed by the
director entitled to the notice and filed with the minutes or corporate records. The attendance at
or participation of the director at a meeting shall constitute waiver of notice of such meeting,
unless the director at the beginning of the meeting or promptly upon such directors arrival
objects to holding the meeting or transacting business at the meeting.
Section 6. Organization. At each meeting of the Board of Directors, the
Chairman of the Board, if one shall have been elected, or, in the absence of the Chairman of the
Board or if one shall not have been elected, the President (or, in the Presidents absence, another
director chosen by a majority of the directors present) shall act as chairman of the meeting and
preside thereat. The Secretary or, in such persons absence, any person appointed by the chairman
shall act as secretary of the meeting and keep the minutes thereof.
Section 7. Quorum and Manner of Acting. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business at any meeting of the Board of
Directors, and, except as otherwise expressly required by statute or the Restated Certificate of
Incorporation or these Restated By-Laws, the affirmative vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the Board of Directors. In
the absence of a quorum at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn such meeting to another time and place. Notice of the time and place
of any such adjourned meeting shall be given to all of the directors unless such time and place
were announced at the meeting at which the adjournment was taken, in which case such notice need
only be given to the directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been transacted at the meeting
as originally called. The directors shall act only as a Board and the individual directors shall
have no power as such.
Section 8. Action by Consent. Unless restricted by the Restated Certificate
of Incorporation, any action required or permitted to be taken by the Board of Directors or any
committee thereof may be taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of the Board of Directors or such committee, as the case may
be.
Section 9. Telephonic Meeting. Unless restricted by the Restated Certificate
of Incorporation, any one or more 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 a conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute presence in person at a
meeting.
Section 10. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, including an
-7-
executive
committee, each committee to consist of one or more of the 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 the absence of
disqualification of any member of a committee, the member or members 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.
Each such committee, to the extent provided in the resolution creating it, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which require it; provided, however, that no such committee shall have the
power or authority in reference to the following matters: (a) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (b) adopting, amending or repealing
any by-law of the Corporation. Each such committee shall serve at the pleasure of the Board of
Directors and have such name 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.
Section 11. Fees and Compensation. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement for expenses, as may
be fixed or determined by the Board of Directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor.
Section 12. Resignations. Any director of the Corporation may resign at any
time by giving written notice of such directors resignation to 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 its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IV
OFFICERS
Section 1. General. The executive officers of the Corporation shall be chosen
by the Board of Directors and shall include a President, one or more Vice Presidents (including
Senior, Executive, Group or other classifications of Vice Presidents), a Treasurer and a Secretary.
The Board of Directors, in its discretion, may also choose as an officer of the Corporation the
Chairman of the Board and any Vice Chairman of the Board. The President shall appoint other
officers (including, one or more Vice Presidents, Assistant Secretaries and one or more Assistant
Treasurers) as may be necessary or desirable. The officers of the Corporation shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors
or, to the extent appointed by the President, the President. The Board of Directors may also
delegate to any officer of the Corporation the power to appoint such other officers and to
proscribe their respective duties and powers. Any number of offices may be held by the same
-8-
person, unless otherwise prohibited by law, the Restated Certificate of Incorporation or these
Restated By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board and Vice Chairman of the Board of Directors, need
such officers be directors of the Corporation.
Section 2. Term. All officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or removal. Any
vacancy occurring in any office of the Corporation shall be filled by the Board of Directors,
except that any vacancy in any office that have been appointed by the President or any other
officer of the Corporation may be filled by the person who has the authority to fill that office.
Section 3. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of such officers resignation to 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. Unless otherwise specified
therein, the acceptance of any such resignation shall not be necessary to make it effective.
Section 4. Removal. Any officer may be removed at any time by the Board of
Directors with or without cause, except that any officer appointed by the President or any other
officer of the Corporation may also be removed at any time by the President or any other officer
who had appointed that officer with or without cause.
Section 5. Compensation. The compensation for the five (5) most highly
compensated executive officers of the Corporation for their services as such officers shall be
fixed from time to time by the Board of Directors. The compensation for all other officers of the
Corporation shall be fixed from time to time by the President; compensation for other executive
officers shall be in consultation with the Board of Directors. An officer of the Corporation shall
not be prevented from receiving compensation by reason of the fact that such officer is also a
director of the Corporation.
Section 6. Chairman of the Board. The Chairman of the Board, if one shall
have been elected, shall be a member of the Board, an officer of the Corporation (if the Board of
Directors, in its discretion, chooses to make the Chairman of the Board an officer of the
Corporation) and, if present, shall preside at each meeting of the Board of Directors or the
stockholders. The Chairman of the Board shall advise and counsel with the President, and in the
Presidents absence with other executives of the Corporation, and shall perform such other duties
as may from time to time be assigned to the Chairman of the Board by the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
Section 1. Stock Certificates. The shares of the Corporation shall be
represented by certificates, provided that the Board may provide by resolution that some or all of
any classes or series of the Corporations stock shall be uncertificated shares. 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
-9-
of stock or series thereof and the qualifications, limitations or restriction
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 Delaware General Corporation Law,
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.
Section 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile, engraved or printed. In case 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 was such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost 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. 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 the owners legal representative, to give the Corporation a bond in
such sum as it may direct sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 4. Transfers of Stock. Except as contemplated by the first sentence
of Section 1 of this Article V, 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, it shall be the duty of the Corporation to 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.
Section 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.
Section 6. Regulations. The Board of Directors may make such additional rules
and regulations, not inconsistent with these Restated By-Laws, as it may deem expedient concerning
the issue, transfer and registration of certificates for shares of stock of the Corporation.
Section 7. Fixing the Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
-10-
adjournment thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record date, which shall not
precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall be not more than 10 days after the date upon which the
resolution fixing the record date is adopted. If no record date has been fixed by the Board of
Directors and no prior action by the Board of Directors is required by the Delaware General
Corporation Law, the record date shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Secretary of the Corporation at
the Corporations principal executive offices. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the Delaware General
Corporation Law with respect to the proposed action by written consent of the stockholders, the
record date for determining stockholders entitled to consent to corporate action in writing shall
be at the close of business on the day on which the Board of Directors adopts the resolution taking
such prior action.
Section 8. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its records as the owner of shares of stock
to receive dividends and to vote as such owner, 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 law.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. General. Each person who was or is made a party or is threatened
to be made a party to or is involved (including, without limitation, as a witness) in any
threatened, pending or completed action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative (Proceeding) brought by reason of the fact that such person (the
Indemnitee) is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an employee benefit
plan, whether the basis of such Proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as such a director or officer, shall be
indemnified and held harmless by the Corporation (unless such Proceeding was brought by or in the
right of the Indemnitee without the prior written approval of the Board of Directors) to the
fullest extent permitted by the laws of the State of Delaware in effect on the date hereof or as
such laws may from time to time
-11-
hereafter be amended to increase the scope of such permitted
indemnification, against all expenses, liabilities, losses and claims (including attorneys fees,
judgments, fines, excise taxes under the Employee Retirement Income Security Act of 1974, as
amended from time to time, penalties and amounts to be paid in settlement) actually incurred or
suffered by such Indemnitee in connection with such Proceeding (collectively, Losses). Without
diminishing the scope of the indemnification provided by this Section 1, the rights of
indemnification of an Indemnitee provided hereunder shall include but not be limited to those
rights set forth in this Article VI.
Section 2. Derivative Actions. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any Proceeding brought by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person (also an Indemnitee) is or
was a director or officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, against
Losses actually incurred or suffered by the Indemnitee in connection with the defense or settlement
of such action or suit if the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Corporation, provided that
no indemnification shall be made in respect of any claim, issue or matter as to which Delaware law
expressly prohibits such indemnification by reason of an adjudication of liability of the
Indemnitee 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, the Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Indemnification in Certain Cases. Notwithstanding any other
provision of this Article VI, to the extent that an Indemnitee has been wholly successful on the
merits or otherwise in any Proceeding referred to in Sections 1 or 2 of this Article VI on any
claim, issue or matter therein, the Indemnitee shall be indemnified against Losses actually
incurred or suffered by the Indemnitee in connection therewith. If the Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Corporation shall indemnify the
Indemnitee, against Losses actually incurred or suffered by the Indemnitee in connection with each
successfully resolved claim, issue or matter. In any review or Proceeding to determine such extent
of indemnification, the Corporation shall bear the burden of proving any lack of success and which
amounts sought in indemnity are allocable to claims, issues or matters which were not successfully
resolved. For purposes of this Section 3 and without limitation, the termination of any such
claim, issue or matter by dismissal with or without prejudice shall be deemed to be a successful
resolution as to such claim, issue or matter.
Section 4. Procedure. (a) Any indemnification under Sections 1 and 2 of this
Article VI (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 Indemnitee is proper (except that
the right of the Indemnitee to receive payments pursuant to Section 5 of this Article VI shall not
be subject to this Section 4) in the circumstances because the Indemnitee has met the applicable
standard of conduct. Such determination shall be made promptly, but in no event later than 60 days
after receipt by the Corporation of the Indemnitees written request for indemnification. The
-12-
Secretary of the Corporation shall, promptly upon receipt of the Indemnitees request for
indemnification, advise the Board of Directors that the Indemnitee has made such request for
indemnification.
(b) The entitlement of the Indemnitee to indemnification shall be determined, with respect to
a person who is a director or officer at the time of such determination, in the specific case (1)
by the Board of Directors by a majority vote of the directors who are not parties to such
Proceeding (the Disinterested Directors), even though less than a quorum, or (2) by a committee
of the Disinterested Directors designated by majority vote of the Disinterested Directors, even
though less than a quorum, or (3) if there are no Disinterested Directors, or if such Disinterested
Directors so direct, by independent legal counsel, or (4) by the stockholders. The entitlement of
the Indemnitee to indemnification shall be determined with respect to any person who is not a
director or officer at the time of such determination by any means reasonably determined by the
Corporation.
(c) In the event the determination of entitlement is to be made by independent legal counsel,
such independent legal counsel shall be selected by the Board of Directors and approved by the
Indemnitee. Upon failure of the Board of Directors to so select such independent legal counsel or
upon failure of the Indemnitee to so approve, such independent legal counsel shall be selected by
the American Arbitration Association in New York, New York or such other person as such Association
shall designate to make such selection.
(d) If a determination is made pursuant to Section 4(b) of this Article VI that the Indemnitee
is not entitled to indemnification to the full extent of the Indemnitees request, the Indemnitee
shall have the right to seek entitlement to indemnification in accordance with the procedures set
forth in Section 6 of this Article VI.
(e) If a determination pursuant to Section 4(b) of this Article VI with respect to entitlement
to indemnification shall not have been made within 60 days after receipt by the Corporation of such
request, the requisite determination of entitlement to indemnification shall be deemed to have been
made and the Indemnitee shall be absolutely entitled to such indemnification, absent (i)
misrepresentation by the Indemnitee of a material fact in the request for indemnification or (ii) a
final judicial determination that all or any part of such indemnification is expressly prohibited
by law.
(f) The termination of any proceeding by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, adversely affect
the rights of the Indemnitee to indemnification hereunder except as may be specifically provided
herein, or create a presumption that the Indemnitee did not act in good faith and in a manner which
the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation
or create a presumption that (with respect to any criminal action or proceeding) the Indemnitee had
reasonable cause to believe that the Indemnitees conduct was unlawful.
(g) For purposes of any determination of good faith hereunder, the Indemnitee shall be deemed
to have acted in good faith if the Indemnitees action is based on the records or books of account
of the Corporation or an affiliate, including financial statements, or on information supplied to
the Indemnitee by the officers of the Corporation or an affiliate in the course of their duties, or
on the advice of legal counsel for the Corporation or an affiliate or on
-13-
information or records
given or reports made to the Corporation or an affiliate by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care to the Corporation or
an affiliate. The Corporation shall have the burden of establishing the absence of good faith.
The provisions of this Section 4(g) of this Article VI shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in these Restated By-Laws.
(h) The knowledge and/or actions, or failure to act, of any other director, officer, agent or
employee of the Corporation or an affiliate shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification under these Restated By-Laws.
Section 5. Advances for Expenses and Costs. All expenses (including attorneys
fees) incurred by or on behalf of the Indemnitee (or reasonably expected by the Indemnitee to be
incurred by the Indemnitee within three months) in connection with any Proceeding shall be paid by
the Corporation in advance of the final disposition of such Proceeding within twenty days after the
receipt by the Corporation of a statement or statements from the Indemnitee requesting from time to
time such advance or advances whether or not a determination to indemnify has been made under
Section 4 of this Article VI. The Indemnitees entitlement to such advancement of expenses shall
include those incurred in connection with any Proceeding by the Indemnitee seeking an adjudication
or award in arbitration pursuant to these By-Laws. The financial ability of an Indemnitee to repay
an advance shall not be a prerequisite to the making of such advance. Such statement or statements
shall reasonably evidence such expenses incurred (or reasonably expected to be incurred) by the
Indemnitee in connection therewith and shall include or be accompanied by a written undertaking by
or on behalf of the Indemnitee to repay such amount if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified therefor pursuant to the terms of this Article VI.
Section 6. Remedies in Cases of Determination not to Indemnify or to Advance
Expenses. (a) In the event that (i) a determination is made that the Indemnitee is not
entitled to indemnification hereunder, (ii) advances are not made pursuant to Section 5 of this
Article VI or (iii) payment has not been timely made following a determination of entitlement to
indemnification pursuant to Section 4 of this Article VI, the Indemnitee shall be entitled to seek
a final adjudication either through an arbitration proceeding or in an appropriate court of the
State of Delaware or any other court of competent jurisdiction of the Indemnitees entitlement to
such indemnification or advance.
(b) In the event a determination has been made in accordance with the procedures set forth in
Section 4 of this Article VI, in whole or in part, that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration referred to in paragraph (a) of this
Section 6 shall be de novo and the Indemnitee shall not be prejudiced by reason of
any such prior determination that the Indemnitee is not entitled to indemnification, and the
Corporation shall bear the burdens of proof specified in Sections 3 and 4 of this Article VI in
such proceeding.
(c) If a determination is made or deemed to have been made pursuant to the terms of Sections 4
or 6 of this Article VI that the Indemnitee is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding or arbitration in the
-14-
absence of (i) a
misrepresentation of a material fact by the Indemnitee or (ii) a final judicial determination that
all or any part of such indemnification is expressly prohibited by law.
(d) To the extent deemed appropriate by the court, interest shall be paid by the Corporation
to the Indemnitee at a reasonable interest rate for amounts which the Corporation indemnifies or is
obliged to indemnify the Indemnitee for the period commencing with the date on which the Indemnitee
requested indemnification (or reimbursement or advancement of expenses) and ending with the date on
which such payment is made to the Indemnitee by the Corporation.
Section 7. Rights Non-Exclusive. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such persons official capacity and as to action in
another capacity while holding such office.
Section 8. Insurance. The Corporation shall have power to 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,
including service with respect to an employee benefit plan, against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of such persons
status as such, whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article VI.
Section 9. Definition of Corporation. For purposes of this Article VI,
references to the Corporation shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such 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, including service with respect
to an employee benefit plan, shall stand in the same position under this Article VI with respect to
the resulting or surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
Section 10. Other Definitions. For purposes of this Article VI, 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 which 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 such person
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 referred to in this Article VI.
-15-
Section 11. Survival of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to this Article VI shall, unless otherwise provided when
authorized or ratified, 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. No amendment, alteration, rescission or replacement of these By-Laws or any provision
hereof shall be effective as to an Indemnitee with respect to any action taken or omitted by such
Indemnitee in Indemnitees position with the Corporation or any other entity which the Indemnitee
is or was serving at the request of the Corporation prior to such amendment, alteration, rescission
or replacement.
Section 12. Indemnification of Employees and Agents of the Corporation. The
Corporation may, by action of the Board of Directors from time to time, grant rights to
indemnification and advancement of expenses to employees and agents of the Corporation with the
same scope and effect as the provisions of this Article VI with respect to the indemnification of
directors and officers of the Corporation.
Section 13. Savings Clause. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each person entitled to indemnification under the first paragraph of this
Article VI as to all losses actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this Article VI to the full extent
permitted by any applicable portion of this Article VI that shall not have been invalidated and to
the full extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of statute and the Restated
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 Restated Certificate of Incorporation.
Section 2. 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, think 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 think 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.
Section 3. Seal. The seal of the Corporation shall be in such form as shall
be approved by the Board of Directors.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be December
31 and may be changed by resolution of the Board of Directors.
-16-
Section 5. 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.
Section 6. 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 deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to specific instances.
Section 7. 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 shareholder or otherwise in any other corporation, any of whose shares
or 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 and under its seal or otherwise, such written
proxies, consents, waivers or other instruments as may be necessary or proper in the circumstances.
ARTICLE VIII
AMENDMENTS
These Restated By-Laws may be repealed, altered, amended or rescinded in whole or in part, or
new By-Laws may be adopted by either the affirmative vote of the holders of at least a majority of
the voting power of all of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereon or by the Board of Directors.
Adopted by resolution of
the Board of Directors on
September 12, 2007
|
|
|
|
|
|
|
|
|
/s/ Rachel A. Seifert
|
|
|
Rachel A. Seifert, Secretary |
|
|
|
|
|
-17-