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EX-99.2 - EX-99.2 - LEGACY LIFEPOINT HEALTH, INC. | g24685exv99w2.htm |
EX-99.1 - EX-99.1 - LEGACY LIFEPOINT HEALTH, INC. | g24685exv99w1.htm |
8-K - FORM 8-K - LEGACY LIFEPOINT HEALTH, INC. | g24685e8vk.htm |
Exhibit 3.1
THIRD AMENDED AND RESTATED BY-LAWS
OF
LIFEPOINT HOSPITALS, INC.
OF
LIFEPOINT HOSPITALS, INC.
DELAWARE
THIRD AMENDED AND RESTATED BY-LAWS
OF
LIFEPOINT HOSPITALS, INC.
OF
LIFEPOINT HOSPITALS, INC.
Article I
Offices
Offices
Section 1. Registered Office.
The registered office of LifePoint Hospitals, Inc., a Delaware corporation (the Corporation)
shall be within the State of Delaware 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
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 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 meeting or in a duly
executed waiver thereof.
Section 2. Annual Meeting.
The annual meeting of stockholders shall be held at such date and time as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting or in a duly
executed waiver thereof. At such annual meeting and in accordance with the provisions of the
Certificate of Incorporation and these By-Laws, the stockholders shall elect, by a plurality vote,
members of a Board of Directors and transact such other business as may properly be brought before
the meeting.
Section 3. Special Meetings.
Special meetings of the stockholders of the Corporation may be called only by (a) the Chairman
of the Board of Directors (the Chairman), if one shall have been elected, (b) the Lead Director
of the Board of Directors (the Lead Director), if one shall have been elected, (c) the Chief
Executive Officer of the Corporation (the Chief Executive Officer) or (d) the Chairman, the Lead
Director or the Chief Executive Officer at the request in writing of a majority of the Board of
Directors. The ability of the stockholders to call a special meeting is hereby specifically denied.
Section 4. Notice of Meetings.
Except as otherwise expressly required by statute, written 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 shall be given personally or by mail
and, if by mail, shall be sent in a postage prepaid envelope, addressed to the stockholder at the
address appearing on the records of the Corporation. Notice by mail shall be deemed given at the
time when the same shall be deposited in the United States mail, postage prepaid. Notice of any
such meeting need not be given to any person who shall, either before or after the meeting, submit
a signed waiver of notice or who shall attend such meeting in person or by proxy, except when he or
she shall attend 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. 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. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation shall prepare and make, 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, showing the address of 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 meeting,
or, if not specified, at the place where the meeting is to be held. The list shall 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.
Section 6. Quorum.
The holders of a majority of the voting power of the issued and outstanding 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 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 in the manner provided in Section 12 of this Article II, 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 7. Organization.
At each meeting of stockholders, the Chairman, the Lead Director or the Chief Executive
Officer shall act as chairman of the meeting and preside thereat. The Secretary or, in the absence
of the Secretary or if a Secretary shall not have been elected, 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 8. Order of Business.
The order of business at all meetings of the stockholders shall be as determined by the
chairman of the meeting.
Section 9. Voting.
Except as otherwise provided by statute or the Certificate of Incorporation, 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 his or her 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 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 day next preceding the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize another person or
persons to act for him or her by a proxy signed by such stockholder or his or her attorney-in-fact,
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. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission created pursuant to
this paragraph may be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used; provided that such
copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
When a quorum is present at any meeting, the vote of the holders of a majority of the voting
power of the issued and outstanding stock of the Corporation entitled to vote thereon, 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 statute, applicable stock exchange rule, 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. 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 his or her proxy, and shall state the number of shares voted.
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 and make a written report thereof. If
any of the inspectors so appointed shall fail to appear or shall be unable to act, the chairman of
the meeting shall appoint one or more inspectors. Each inspector, before entering upon the
discharge of his or her 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 his or her ability.
The inspectors shall ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each, determine the number of shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots,
determine and retain for a reasonable period a record of the disposition of any challenges
made
to any determination by the inspectors and certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of the duties of the
inspectors. No director or candidate for the office of director shall act as an inspector of an
election of directors, or assist an inspector in the performance of such duties. Inspectors need
not be stockholders.
Section 11. Nominations and Stockholder Business.
Nominations of persons for election to the Board of Directors and the proposal of other
business to be transacted by the stockholders may be made at an annual meeting of stockholders only
(a) pursuant to the Corporations notice with respect to such meeting, (b) by or at the direction
of the Board of Directors or (c) by any stockholder of record of the Corporation who was a
stockholder of record at the time of the giving of the notice required by this Section 11 who is
entitled to vote at the meeting and who has complied with the notice procedures set forth in this
Section 11.
For any nomination or other business to be properly brought before an annual meeting by a
stockholder, whether pursuant to the Corporations notice with respect to such meeting or
otherwise, the stockholder must have given timely notice thereof in writing to the Secretary of the
Corporation, such notice must contain the information specified in this Section 11, such business
must be a proper matter for stockholder action under the Delaware General Corporation Law and, if
the stockholder, the beneficial owner on whose behalf any such proposal or nomination is made or
any Associated Person (as defined below), solicits or participates in the solicitation of proxies
in support of such proposal or nomination, the stockholder must have indicated each such persons
intention to do so in such notice. To be timely, a stockholders notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not less than 90 days prior to the
first anniversary of 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 more than 60
days after such anniversary date, notice by the stockholder to be timely 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 a Public Announcement (as defined below) of the date of such
meeting is first made. In no event shall any adjournment or postponement of an annual meeting or
the announcement thereof commence a new time period for the giving of a stockholders notice as
required by this Section 11.
Such stockholders notice shall set forth:
(a) as to each person whom the stockholder proposes to nominate for election or reelection as
a director (a Proposed Nominee) and each Proposed Nominee Associated Person (as defined below),
(1) the name, age, business address and residence address of such Proposed Nominee and the name and
address of such Proposed Nominee Associated Person, (2) a statement of whether such Proposed
Nominee is proposed for nomination as an independent director and a description of such Proposed
Nominees qualifications to be a director, including, if such director is proposed to be an
independent director, the basis on which such Proposed Nominee would qualify as an independent
director under the listing rules of the NASDAQ Global Select Market or other principal securities
market on which the common stock of the Corporation is then traded, (3) the class and number of all shares of capital stock of the
Corporation that are owned of record by such Proposed Nominee or by such Proposed Nominee
Associated Person, if any, (4) the class and number of, and the nominee holder for, all shares of
capital stock of the Corporation that are owned beneficially but not of record by such Proposed
Nominee or by such Proposed Nominee Associated Person, if any, (5) the date such shares were
acquired and the investment intent in respect thereof and in respect of any Derivative Transactions
described pursuant to clause (7) below, (6) a description of all purchases and sales of securities
of the Corporation by such Proposed Nominee or by such Proposed Nominee Associated Person during
the previous twelve month period, including the date of the transactions, the class and number of
securities involved in the transactions and the consideration involved in the transactions, (7) a
description of all Derivative Transactions by such Proposed Nominee or by such Proposed Nominee
Associated Person during the previous twelve month period, including the date of the transactions
and the class and number of securities involved in, and the material terms of, the transactions,
such description to include, among other material terms, all information that such Proposed Nominee
or Proposed Nominee Associated Person would have been required to report on an Insider Report if
such Proposed Nominee or Proposed Nominee Associated Person had been a director of the Corporation
or the beneficial owner of more than ten percent (10%) of the shares of the Corporation at the time
of the transactions and the effect of such Derivative Transactions on any voting or economic rights
relating to securities of the Corporation as of the date of the notice and all changes in such
voting or economic rights which may arise pursuant to the terms of such Derivative Transactions
under any circumstances whether or not then contingent or subject to conditions precedent or
subsequent, (8) to the extent known by such Proposed Nominee or such Proposed Nominee Associated
Person, the name and address of any other person who owns, of record or beneficially, any shares of
capital stock of the Corporation and who supports the Proposed Nominee for election or reelection
as a director, (9) all other information relating to such Proposed Nominee or such Proposed Nominee
Associated Person that would be required to be disclosed in solicitations of proxies for election
of directors, including such information as would be required to be disclosed in an election
contest (even if an election contest is not involved), pursuant to Regulation 14A (or any
successor provision) under the Securities Exchange Act of 1934, as amended (the Exchange Act),
(10) a description of all agreements, arrangements and understandings between such Proposed Nominee
or such Proposed Nominee Associated Person and any other person (including such other persons
name) in connection with such nomination, (11) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such stockholder, any
Stockholder Associated Person, any Proposed Nominee and / or any Proposed Nominee Associated
Person, including without limitation all information that would be required to be disclosed
pursuant to Item 404 of Regulation S-K if the stockholder making the nomination or any Stockholder
Associated Person were the registrant for purposes of such rule and the Proposed Nominee were a
director or executive officer of such registrant, and (12) such Proposed Nominees notarized
written consent to being named in the proxy statement as a nominee and to serving as a director if
elected;
(b) as to any other business that a stockholder proposes to bring before the meeting, a
detailed description of such business, including the text of any proposal regarding such business
intended to be presented at the meeting, the reasons for conducting such business
at the meeting, whether such stockholder has communicated with any other stockholder or
beneficial owner of shares of capital stock of the Corporation regarding such business and any
material interest in such business of such stockholder or any Stockholder Associated Person (as
defined below);
(c) as to the stockholder giving such notice and each Stockholder Associated Person, (1) the
name and address of such stockholder and any such Stockholder Associated Person, as they appear on
the Corporations stock ledger and the current name and address, if different, of such persons, (2)
the class and number of all shares of capital stock of the Corporation that are owned of record by
such stockholder or by such Stockholder Associated Person, if any, (3) the class and number of, and
the nominee holder for, all shares of capital stock of the Corporation that are owned beneficially
but not of record by such stockholder or by such Stockholder Associated Person, if any, (4) the
date such shares were acquired and the investment intent in respect thereof and in respect of any
Derivative Transactions described pursuant to clause (6) below and a copy of the prospectus,
offering memorandum or similar document, if any, provided to investors or potential investors in
such stockholder or Stockholder Associated Person, (5) a description of all purchases and sales of
securities of the Corporation by such stockholder or by any Stockholder Associated Person during
the previous twelve month period, including the date of the transactions, the class and number of
securities involved in the transactions and the consideration involved in the transactions, (6) a
description of all Derivative Transactions by such stockholder or by any Stockholder Associated
Person during the previous twelve month period, including the date of the transactions and the
class and number of securities involved in, and the material terms of, the transactions, such
description to include, among other material terms, all information that such stockholder or
Stockholder Associated Person would have been required to report on an Insider Report if such
stockholder or Stockholder Associated Person had been a director of the Corporation or the
beneficial owner of more than ten percent (10%) of the shares of the Corporation at the time of the
transactions and the effect of such Derivative Transactions on any voting or economic rights
relating to securities of the Corporation as of the date of the notice and all changes in such
voting or economic rights which may arise pursuant to the terms of such Derivative Transactions
under any circumstances whether or not then contingent or subject to conditions precedent or
subsequent, (7) to the extent known by the stockholder giving the notice, the name and address of
any other person who owns, of record or beneficially, any shares of capital stock of the
Corporation and who supports the Proposed Nominee for election or re-election as a director or the
proposal of such other business that such stockholder proposes to bring before the meeting on the
date of such stockholders notice, and (8) a description of all agreements, arrangements and
understandings between such stockholder or such Stockholder Associated Person and any other person
(including such other persons name) in connection with such nomination or proposal of other
business or involving the voting of any securities of the Corporation.
Notwithstanding anything in this Section 11 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no Public Announcement
naming all of the nominees for director or specifying the size of the increased Board of Directors
made by the Corporation at least 100 days prior to the first anniversary of the preceding years
annual meeting, a stockholders notice required by this Section 11 shall also be considered timely,
but only with respect to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the day on which
such Public Announcement is first made by the Corporation.
Only such business shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting by the Corporation pursuant to the Corporations notice of meeting.
Nominations of persons for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporations notice of meeting
only (a) by or at the direction of the Board of Directors or (b) by any stockholder of record of
the Corporation who is a stockholder of record at the time of giving of notice required by this
Section 11 who shall be entitled to vote at the meeting, who complies with the notice procedures
set forth in this Section 11 and who provides the same information in such stockholders notice
with respect to such nomination as is required by this Section 11 to be provided with respect to a
nomination to be made at an annual meeting of stockholders. Nominations by stockholders of persons
for election to the Board of Directors may be made at such a special meeting of stockholders only
if the stockholders notice required by this Section 11 shall be delivered to the Secretary at the
principal executive offices of the Corporation 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 a Public
Announcement is first made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall any adjournment or
postponement of a special meeting or the announcement thereof commence a new time period for the
giving of a stockholders notice as required by this Section 11.
Only persons nominated in accordance with the procedures set forth in this Section 11 shall be
eligible to serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Section 11. The officer of the Corporation or other person presiding over the meeting
shall have the power and the duty to determine whether a nomination or any business proposed to be
brought before the meeting has been made in compliance with the procedures set forth in this
Section 11 and, if any proposed nomination or business is not in compliance with this Section 11,
to declare that such defective proposed business or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
Notwithstanding the foregoing provisions of this Section 11, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 11. Nothing in this Section 11 shall be deemed to
affect any rights of stockholders to request inclusion of (i) proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) nominees in the Corporations proxy
statement pursuant to Rule 14a-11 under the Exchange Act.
For purposes of this Section 11, (a) Proposed Nominee Associated Person of any Proposed
Nominee shall mean (i) any person acting in concert with such Proposed Nominee, (ii) any beneficial
owner of shares of capital stock of the Corporation owned of record or beneficially by such
Proposed Nominee and (iii) any person directly or indirectly controlling, controlled by or under
common control with such Proposed Nominee or a Proposed Nominee Associated Person, (b) Stockholder
Associated Person of any stockholder shall mean (i) any person acting in concert with such
stockholder, (ii) any beneficial owner of shares of capital stock of the Corporation owned of
record or beneficially by such stockholder and (iii) any person directly or indirectly controlling,
controlled by or under common control with such
stockholder or a Stockholder Associated Person, (c) Associated Person shall mean any
Proposed Nominee Associated Person or Stockholder Associated Person, (d) Derivative Transaction
by a person shall mean any (i) transaction in, or arrangement, agreement, understanding or
relationship with respect to, any option, warrant, convertible or exchangeable security, stock
appreciation right or right similar to any of the foregoing with an exercise, conversion or
exchange privilege, or settlement payment or mechanism related to, any security of the Corporation,
or similar instrument with a value derived in whole or in part from the value of a security of the
Corporation, in any such case whether or not it is subject to settlement in a security of the
Corporation or otherwise, (ii) any transaction, arrangement, agreement, proxy, understanding or
relationship which included or includes an opportunity for such person, directly or indirectly, to
profit or share in any profit derived from any increase or decrease in the value of any security of
the Corporation, to receive or share in the receipt of dividends payable on any securities of the
Corporation separate or separable from the underlying shares, to mitigate any loss or manage any
risk associated with any increase or decrease in the value of any security of the Corporation or to
increase or decrease the number of securities of the Corporation which such person was, is or will
be entitled to vote, in any case whether or not it is subject to settlement in a security of the
Corporation or otherwise, in each case under clauses (i) and (ii) including, without limitation,
any put or call arrangement, short position, borrowed shares or swap or similar arrangement and
(iii) any transaction, arrangement, agreement, understanding or relationship with respect to the
borrowing or lending of securities of the Corporation, (e) Insider Report shall mean a statement
required to be filed pursuant to Section 16 of the Exchange Act (or any successor provisions) by a
person who is a director of the Corporation or who is directly or indirectly the beneficial owner
of more than ten percent (10%) of the shares of the Corporation, and (f) 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 Exchange Act.
Section 12. Adjournments.
Any meeting of stockholders may be adjourned from time to time, whether or not a quorum is
present, by the affirmative vote of a majority of the votes present and entitled to be cast at the
meeting, or by the officer of the Corporation presiding over the meeting, or by the Board of
Directors.
Article III
Board of Directors
Board of 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 (unless the Chairman determines
otherwise). Notice of regular meetings of the Board of Directors need not be given except as
otherwise required by statute or these By-Laws.
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called only by (a) the Chairman, (b) the
Lead Director, (c) two or more members of the Board of Directors or (d) the Chief Executive
Officer.
Section 5. Notice of Meetings.
Notice of each special meeting of the Board of Directors (and of each regular meeting 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 each
such meeting shall be sent to each director, addressed to such director at his or her residence or
usual place of business, by telegraph, cable, telex, telecopier or other similar means, or be
delivered to him or her personally or be given to him or her by telephone or other similar means,
at least two hours before the time at which such meeting is to be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting, submit a signed
waiver of notice or who shall attend such meeting, except when he or she shall attend 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. Neither the business to be transacted at,
nor the purpose of, any such meeting need be specified in any written waiver of notice.
Section 6. Quorum and Manner of Acting.
A majority of the 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,
the Certificate of Incorporation or these By-Laws, the act 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 shall 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 collectively as the Board of Directors and the
individual directors shall have no power as such.
Section 7. Organization.
At each meeting of the Board of Directors, (a) the Chairman, or (b) in the absence of the
Chairman, the Lead Director, or (c) in the absence of the Chairman and Lead Director, then another
director chosen by a majority of the directors present, shall act as chairman of the meeting and
preside thereat. The Secretary or, in the absence of the Secretary or if a Secretary shall not
have been elected, 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 8. Resignations.
Any director of the Corporation may resign at any time by giving written notice of his or her
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 by the Corporation. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 9. Compensation.
The Board of Directors shall have authority to fix the compensation, including fees and
reimbursement of expenses, of directors for services to the Corporation in any capacity.
Section 10. Chairman/Lead Director.
The Board of Directors may, by resolution passed by a majority of the Board of Directors,
designate one of the independent members of the Board of Directors to be the Chairman. Such
Chairman shall not be, or become, an officer of the Corporation. If present, he or she shall
preside at all meetings of the Board of Directors and stockholders. He or she shall advise and
counsel the Chief Executive Officer and, where appropriate, other executives of the Corporation,
and shall perform such other duties as may from time to time be assigned to him or her by the Board
of Directors. If the Board of Directors have chosen a Chairman pursuant to this Section 10 and if
such Chairman is absent or in the event of his or her inability to act, then an independent member
of the Board designated by the other independent members of the Board may serve in such capacity on
a temporary basis.
If the Board of Directors chooses to appoint a Chairman pursuant to Section 4 of Article IV of
these By-Laws (rather than pursuant to this Section 10), then the Board of Directors shall appoint
one of the independent members of the Board of Directors to serve as the Lead Director. The Lead
Director shall preside over each meeting of the independent members of the Board of Directors,
advise and counsel the Chairman, coordinate with the Chairman on the agenda and format for meetings
of the Board of Directors and perform such other duties as may from time to time be assigned to him
or her by the Board of Directors.
Section 11. Committees.
The Board of Directors may, by resolution passed by a majority of the Board of Directors,
designate one or more committees, including an 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 addition, in the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or she or they 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.
Except to the extent restricted by statute or the Certificate of Incorporation, 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. 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 12. Action By Consent.
Unless restricted by the 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 13. Telephonic Meetings.
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 14. Mandatory Retirement Policy for Directors.
No person shall be nominated to a term of office on the Board of Directors who has attained
the age of 75 or more before the first day of the proposed term of office, unless this requirement
has been waived by the Board of Directors or the Corporate Governance and Nominating Committee for
a valid reason.
Article IV
Officers
Officers
Section 1. Number and Qualifications.
The officers of the Corporation shall be elected by the Board of Directors and shall include
the Chief Executive Officer, the President, one or more Vice Presidents (including Senior or
Executive Vice Presidents or other classifications of Vice Presidents), the Secretary and the
Treasurer, and may include the Chairman. If the Board of Directors wishes, it may also elect other
officers (including one or more Assistant Treasurers and one or more Assistant Secretaries) as may
be necessary or desirable for the business of the Corporation. Any two or more offices may be held
by the same person, and no officer except the Chief Executive Officer and the Chairman need be a
director. Each officer shall hold office until his or her successor shall have been duly elected
and shall have qualified, or until his or her death, or until he or she shall have resigned or have
been removed or disqualified, as hereinafter provided in these By-Laws.
Section 2. Resignation and Removal.
Any officer of the Corporation may resign at any time by giving written notice of his or her
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 by the Corporation. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective. Any officer of the Corporation may be
removed, either with or without cause, at any time, by the Board of Directors at any meeting
thereof.
Section 3. Vacancies.
The Board of Directors may fill any vacancy occurring in any office for any reason and may, in
its discretion, leave unfilled for such period as it may determine any offices other than those of
President, Treasurer and Secretary. Each successor shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualified, or until his earlier death,
resignation or removal.
Section 4. Chairman.
The Board of Directors may, pursuant to this Section 4 and by resolution passed by a majority
of the Board of Directors, designate one of the members of the Board of Directors, who also holds
an office of the Corporation, to be the Chairman. In such event, the Chairman shall be an officer
of the Corporation. If the Chairman also holds an office of the Corporation, then the Board of
Directors shall appoint a Lead Director pursuant to Section 10 of Article III of these By-Laws.
If present, the Chairman shall preside at all meetings of the Board of Directors and
stockholders. He or she shall advise and counsel with the Chief Executive Officer, and in his or
her absence with other executives of the Corporation, and shall perform such other duties as may
from time to time be assigned to him or her by the Board of Directors.
Section 5. Chief Executive Officer.
The Chief Executive Officer shall, subject to the oversight of the Board of Directors, have
general executive charge, management, and control of the properties and operations of the
Corporation in the ordinary course of its business, with all such powers with respect to such
properties and operations as may be reasonably incident to such responsibilities. If the Board of
Directors has elected a Chairman pursuant to Section 4 of this Article IV and in his or her the
absence or in the event of his or her inability to act, the Chief Executive Officer shall exercise
all of the powers and discharge all of the duties of the Chairman.
Section 6. President.
The 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 or the Chief Executive Officer. At the request of the Chief
Executive Officer or in his or her absence or in the event of his or her inability or refusal to
act, the President shall perform the duties of the Chief Executive Officer, and, when so acting,
shall have the powers of and be subject to the restrictions placed upon the Chief Executive
Officer.
Section 7. 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, the Chief Executive Officer or the President. At
the request of the President or in his or her absence or in the event of his or her inability or
refusal to act, such officers, in the order determined by the Board of Directors (or if there be no
such determination, then the Executive Vice Presidents in the order of their election, or, if there
are no Executive Vice Presidents, then the Senior Vice Presidents in the order of their election),
shall perform the duties of the President, and, when so acting, shall have the powers of and be
subject to the restrictions placed upon the President.
Section 8. Treasurer.
The Treasurer shall: (a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation; (b) keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation; (c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board of Directors or pursuant to its
direction; (d) receive, and give receipts for, moneys due and payable to the Corporation from any
source whatsoever; (e) disburse the funds of the
Corporation and supervise the investment of its funds, taking proper vouchers therefor; (f)
render to the Board of Directors, whenever the Board of Directors may require, an account of the
financial condition of the Corporation; and (g) in general, perform all 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
Board of Directors, the Chairman, the Chief Executive Officer or the President.
Section 9. Secretary.
The Secretary shall: (a) keep or cause to be kept in one or more books provided for the
purpose, the minutes of all meetings of the Board of Directors, the committees of the Board of
Directors and the stockholders; (b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law; (c) be custodian of the records and the seal of
the Corporation and affix and attest the seal to all certificates for shares of the Corporation
(unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter
provided) and affix and attest the seal to all other documents to be executed on behalf of the
Corporation under its seal; (d) see that the books, reports, statements, certificates and other
documents and records relating to the Board of Directors or the organization and good standing of
the Company required by law to be kept and filed are properly kept and filed; and (e) in general,
perform all duties incident to the office of Secretary and such other duties as from time to time
may be assigned to him or her by the Board of Directors, the Chairman, the Chief Executive Officer
or the President. In the absence of the Secretary at any meeting of the Board of Directors, a
committee of the Board of Directors or the stockholders, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
Section 10. 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 be no such determination, then in the order
of their election), shall, in the absence of the Treasurer or in the event of his or her 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, the Chairman, the
Chief Executive Officer, the President or the Treasurer.
Section 11. 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 be no such determination, then in the order
of their election), shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties 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, the Chairman, the
Chief Executive Officer, the President or the Secretary.
Section 12. Corporate Governance Officer.
The Corporate Governance Officer shall perform all such duties as from time to time may be
assigned to him or her by the Board of Directors, the Chairman, the Chief Executive Officer or the
President. The Board of Directors shall approve the authority, responsibilities and duties of the
Corporate Governance Officer. The Corporate Governance Officer may serve in one or more other
offices of the Corporation.
Section 13. Officers Bonds 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 his or her duties, in such amount and with such
surety as the Board of Directors may require.
Section 14. Compensation.
The compensation of the officers of the Corporation for their services as such officers shall
be fixed from time to time by the Board of Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he or she is also a director of
the Corporation.
Article V
Stock Certificates and Their Transfer
Stock Certificates and Their Transfer
Section 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, the Chief Executive Officer, 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 owned by him or her 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 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 or rights.
Section 2. Facsimile Signatures.
Any or all of the signatures on a certificate may be a facsimile. 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 he, she or it
were 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 his or her 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.
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 a transaction upon its records; provided,
however, that the Corporation shall be entitled to recognize and enforce any lawful restriction on
transfer.
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 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 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
sixty nor less than ten days before the date of such meeting, nor more than sixty 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, in its discretion, fix a new record date for the adjourned meeting.
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, shall
be entitled to hold liable for calls and assessments a person registered on its records 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 Delaware.
Section 9. Legends.
The Board of Directors shall have the power and authority to provide that certificates
representing shares of stock bear such legends as the Board of Directors deems appropriate to
assure that the Corporation does not become liable for violations of Federal or state securities
laws or other applicable law.
Article VI
General Provisions
General Provisions
Section 1. Dividends.
Subject to the provisions of applicable law 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 of the Board of Directors. 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.
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 end on December 31 of each year; provided, however,
that such fiscal year may be changed by resolution of the Board of Directors.
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 all deeds, bonds, mortgages,
contracts and other obligations or instruments, and such authority may be general or confined to
specific instances. The attestation to such execution by the Secretary of the Corporation shall not
be necessary to constitute such deed, bond, mortgage, contract or other instrument a valid and
binding obligation against the Corporation unless the resolutions, if any, of the Board of
Directors authorizing such execution expressly state that such attestation is necessary.
Section 7. Voting of Stock in Other Corporations.
Unless otherwise provided by resolution of the Board of Directors, the Chairman, the Chief
Executive Officer, the President or any Vice 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 another 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, the Chief Executive Officer 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, the Chief
Executive Officer 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.
Section 8. Severability.
Any determination that any provision of these By-Laws is for any reason inapplicable, illegal
or ineffective shall not affect or invalidate any other provision of these By-Laws.
Section 9. Certificate of Incorporation.
All references in these By-Laws to the Certificate of Incorporation shall be deemed to refer
to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.
Article VII
Amendments
Amendments
Section 1. By the Board of Directors.
If the Certificate of Incorporation so provides, these By-Laws may be altered, amended or
repealed or new By-Laws may be adopted by the affirmative vote of a majority of the directors
present at any regular or special meeting of the Board of Directors at which a quorum is present.
Section 2. By the Stockholders.
These By-Laws, including this Section 2 of this Article VII, may be altered, amended or
repealed or new By-Laws may be adopted by the affirmative vote of the holders of at least 80% of
the voting power of all shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
Adopted:
|
April 15, 2005 | |
Amended:
|
October 13, 2006 | |
Amended:
|
May 14, 2008 | |
Amended:
|
September 15, 2010 |