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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
RAINTREE HEALTHCARE CORPORATION (FORMERLY UNISON
HEALTHCARE CORPORATION) (Exact name of registrant
as specified in its charter)
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<S> <C>
DELAWARE 86-0684011
(State of incorporation or organization) (I.R.S. Employer Identification No.)
15300 N. 90TH ST., SUITE 100
SCOTTSDALE, ARIZONA 85260
(Address of principal executive officers) (Zip Code)
</TABLE>
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box.
[ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective simultaneously
with the effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A.(d), please check the
following box.
[x]
Securities Act registration statement file number to which this form
relates: ________________ (If applicable).
Securities to be registered pursuant to Section 12(b)
of the Act:
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Title of each class Name of each exchange on which each
to be so registered class is to be registered
NONE N/A
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.001 PAR VALUE
(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
The Company's authorized capital stock consists of 25,000,000 shares
of Common Stock, par value $.001 per share, and 1,000,000 shares of Preferred
Stock, par value $.001 per share (the "Preferred Stock").
COMMON STOCK
Each share of Common Stock entitles the holder thereof to one vote in
the election of directors and all other matters submitted to a vote of the
Company's stockholders. Holders of Common Stock do not have cumulative voting
rights.
Subject to any preferential rights of any outstanding shares of
Preferred Stock, holders of shares of Common Stock are entitled to receive, pro
rata based on the number of shares held, cash dividends when, as and if declared
by the Board of Directors from funds legally available for such purpose. The
indenture, the Amendment to Omega Master Lease and the Loan and Security
Agreements with HCFP, which the Company entered into in connection with Debtors'
First Amended Joint Plan of Reorganization, dated October 15, 1998, as
supplemented and amended (the "Plan"), which Plan was confirmed by a final order
(the "Confirmation Order") of the United States Bankruptcy Court for the
District of Arizona (Case No. B-98-06583-PHX-GBN), dated January 29, 1999, which
order has become final and non-appealable, restricts the payment of dividends.
In the event of a liquidation of the Company, holders of shares of
Common Stock are entitled to receive, pro rata based on the number of shares
held, all of the assets remaining available for distribution to holders of
Common Stock after payment of all prior claims, including any preferential
liquidation rights of any Preferred Stock then outstanding.
Holders of shares of Common Stock have no preemptive rights to
subscribe to additional shares of Common Stock or any other securities of the
Company. All outstanding shares of Common Stock are fully paid and
nonassessable.
The shares of Common Stock will be, when issued, fully paid and
nonassessable and will not be subject to any future call or assessment.
PREFERRED STOCK
The Certificate of Incorporation authorizes the Board of Directors to
establish one or more series of Preferred Stock and to determine, with respect
to any series of Preferred Stock, the terms and rights of such series, including
(i) the designation of the series, (ii) the number of shares of the series,
(iii) whether dividends, if any, will be cumulative or noncumulative and the
dividend rate of the series, (iv) the dates on which dividends, if any, will be
payable, (v) the redemption rights and redemption price or prices, if any, for
shares of the series, (vi) the terms and amounts of any sinking fund provided
for with respect to the purchase or redemption of shares in the series, (vii)
the amounts payable on shares of the series in the event of any
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voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company, (viii) whether the shares of the series will be convertible into
shares of any other class or series, or any other security, of the Company or
any other corporation, and if so, the specification of such other class or
series or such other security, the conversion price or prices or rate or rates,
any adjustments thereof, the date or dates as of which such shares shall be
convertible and all other terms and conditions upon which such conversion may be
made, and (ix) the voting rights, if any, of the holders of such series. The
authorized shares of Preferred Stock, as well as shares of Common Stock, will be
available for issuance without further action by the Company's stockholders,
unless such action is required by applicable law or the rules of any stock
exchange or automated quotation system on which the Company's securities may be
listed or traded.
ANTI-TAKEOVER CONSIDERATIONS.
GENERAL. It is possible that the Company's ability to issue Preferred
Stock, the provisions of Section 203 of the Delaware General Corporation Law
(the "GCL") as summarized below, and certain provisions of the Company's
Certificate of Incorporation and Bylaws may discourage other persons from making
a tender offer for or acquisitions of substantial amounts of the Company's
Common Stock. This could have the incidental effect of inhibiting changes in
management. In addition, the limited liability and indemnification provisions of
the Company's Certificate of Incorporation and the indemnity agreements which
the Company intends to enter into with each of its directors and executive
officers may discourage stockholders from bringing a lawsuit against directors
for breaches of fiduciary duty and may also have the effect of reducing the
likelihood of derivative litigation against directors and officers even though
such action, if successful, might otherwise have benefited the Company and its
stockholders. Furthermore, a stockholder's investment in the Company may be
adversely affected to the extent that costs of settlement and damage awards
against the Company's directors and officers are paid by the Company pursuant to
the indemnification provisions of the Certificate of Incorporation or the
indemnity agreements described above.
THE DELAWARE GENERAL CORPORATION LAW. The Company is a Delaware
corporation subject to Section 203 of the GCL. Section 203 provides that,
subject to certain exceptions specified therein, a corporation shall not engage
in any business combination with any "interested stockholder" for a three-year
period following the date that such stockholder becomes an interested
stockholder unless (i) prior to such date, the Board of Directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding certain shares) or (iii) on or subsequent to such date, the
business combination is approved by the Board of Directors of the corporation
and by the affirmative vote of at least 66-2/3% of the outstanding voting stock
which is not owned by the interested stockholder. Except as specified in Section
203 of the GCL, an interested stockholder is defined to include (x) any person
that is the owner of 15% or more of the outstanding voting stock of the
corporation, or is an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation, at any
time within three years immediately prior to the relevant date and (y) the
affiliates and associates of any such person.
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CERTIFICATE OF INCORPORATION; BYLAWS. The Certificate of
Incorporation and the Bylaws of the Company contain certain provisions that
could make the acquisition of the Company by means of a tender offer, a proxy
contest or otherwise more difficult.
Special Voting Requirements. Except for any transaction approved by the
Board of Directors, provided that a majority of the members of the Board of
Directors voting for the approval of such transaction are Continuing Directors
(as hereinafter defined), the affirmative vote of the holders of two-thirds of
the outstanding stock of the Company entitled to is required for:
(i) Any merger or consolidation to which the Company, or any of
its subsidiaries, and an Interested Person (as hereinafter
defined) are parties;
(ii) Any sale or other disposition by the Company, or any of its
subsidiaries, of all or substantially all of its assets to an
Interested Person;
(iii) Any purchase or other acquisition by the Company, or any of
its subsidiaries, of all or substantially all of the assets or
stock of an Interested Person; and
(iv) Any other transaction with an Interested Person that requires
the approval of the stockholders of the Company under the GCL,
as in effect from time to time.
"Continuing Director" is any member of the Board of Directors of the Company who
is not the Interested Person, and not an affiliate, associate, representative or
nominee of the Interested Person that is involved in the relevant transaction,
and (i) was a member of the Board of Directors on January 31, 1998, or (ii) was
a member of the Board of Directors prior to the date that the person, firm or
corporation, or any group thereof, with whom such transaction is proposed,
became an Interested Person, or (iii) whose initial election as a director of
the Company succeeds a Continuing Director or is a newly created directorship,
and in either case was recommended by a majority vote of the Continuing
Directors then in office. "Interested Person" is any person, firm or
corporation, or any group thereof, acting or intending to act in concert,
including any person directly or indirectly controlling or controlled by or
under direct or indirect common control with such person, firm or corporation or
group, which owns of record or beneficially, directly or indirectly, 5% or more
of any class of voting securities of the Company.
Stockholder Action. The Certificate of Incorporation and Bylaws
provide that, subject to the rights of holders of any series of Preferred Stock,
special meetings of stockholders can be called only by the Chairman of the Board
of Directors, the President, the Board pursuant to a resolution adopted by a
majority of the total number of directors or by the President when requested in
writing by stockholders owning 25% or more in amount of the capital stock issued
and outstanding and entitled to vote. Moreover, the business permitted to be
conducted at any special meeting of stockholders is limited to the matters set
forth in the notice of meeting given by the Company.
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Liability of Directors; Indemnification. The Certificate of
Incorporation provides that a director will not be personally liable for
monetary damages to the Company or its stockholders for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for paying a dividend or approving a stock repurchase or redemption
in violation of Section 174 of the GCL or (iv) for any transaction from which
the director derived an improper personal benefit. The Certificate of
Incorporation also provides that such indemnification provisions are not to be
deemed exclusive of any other rights to which those indemnified may be entitled.
The Company plans to enter into new indemnification agreements with each of its
directors and executive officers pursuant to which it will agree, among other
things, to indemnify such individuals for settlements in derivative suits. The
Company also has a directors' and officers' liability insurance policy in the
amount of $5 million for matters occurring prior to the effective date of the
Plan and $10 million for matters occurring after the effective date of the Plan,
which include coverage for liabilities of the Company's directors and officers
arising under the federal securities laws.
Amendment. The Certificate of Incorporation provides that the
affirmative vote of the holders of at least 66-2/3% of the voting power of the
outstanding shares of voting stock, voting together as a single class, is
required to amend provisions of the Certificate of Incorporation relating to
election and removal of the Company's directors, special meetings of
stockholders, special voting requirements, liability of directors, and the
limitation of stockholders' ability to act by written consent. The Certificate
of Incorporation further provides that the Bylaws may be amended by the Board of
Directors or by the affirmative vote of the holders of at least 66-2/3% of the
outstanding shares of voting stock, voting together as a single class.
The description set forth above is intended as a summary only and is
qualified in its entirety by reference to the Certificate of Incorporation and
the Bylaws, copies of which have been filed as exhibits.
Item 2. Exhibits.
(1) Specimen certificate for the Common Stock of the Registrant.
(2) Certificate of Incorporation of the Registrant, as amended and
restated.
(3) Bylaws of the Registrant, as amended and restated.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this Amendment No. 1 to registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
RAINTREE HEALTHCARE CORPORATION
By /s/ CLAYON KLOEHR
Clayton Kloehr
Senior Vice President and
Treasurer
Date: April 8, 1999
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RAINTREE HEALTHCARE CORPORATION
* * * * *
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM 8-A/A
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<CAPTION>
Exhibit
Number Description
- ------ -----------
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(1) Specimen certificate for the Common Stock
(2) Certificate of Incorporation, as amended and
restated
(3) Bylaws, as amended and restated
</TABLE>
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EXHIBIT 1
NUMBER SHARES
RAINTREE
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HEALTHCARE CORPORATION
----------------------
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE CUSIP
IN CHICAGO, IL OR NEW YORK, NY 75101P104
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT
Is the record owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK,
PAR VALUE $.001 PER SHARE, OF
RAINTREE HEALTHCARE CORPORATION
- --------------------------------------------------------------------------------
(herein called the "Corporation") transferable on the books of the Corporation
by the holder hereof in person or by duly authorized attorney upon surrender of
this certificate properly endorsed. This certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
/s/ Nir E. Margalit /s/ Michael A. Jeffries
- --------------------------- -----------------------------
NIR E. MARGALIT MICHAEL A. JEFFRIES
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
BY TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
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RAINTREE HEALTHCARE CORPORATION
THE CORPORATION IS AUTHORIZED TO ISSUE STOCK IN ONE OR MORE CLASSES OR
SERIES. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO ANY STOCKHOLDER WHO SO
REQUESTS A STATEMENT AS TO THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTI0NS OF SUCH PREFERENCES
AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
---------- ----------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
--------------------------
(State)
UNIF GIFT MIN ACT -- Custodian (until age )
---- ----
(Cust)
under Uniform Transfers
--------
(Minor)
To Minors Act
-------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
- ------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ----------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
----------------------
X
--------------------------------------------
X
--------------------------------------------
THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
NOTICE: THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By
- ------------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT TO
S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED, THE
CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A
REPLACEMENT CERTIFICATE.
<PAGE> 1
Exhibit 2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UNISON HEALTHCARE CORPORATION
Unison HealthCare Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
The name of the Corporation is Unison HealthCare Corporation. The date
of the filing of its original Certificate of Incorporation with the Secretary of
State of the State of Delaware was February 22, 1991 (the "Original Certificate
of Incorporation"). The name under which the Corporation filed the Original
Certificate of Incorporation was SunQuest HealthCare Corporation. The name of
the Corporation was changed to Unison HealthCare Corporation on November 14,
1995, by way of amendment to the Original Certificate of Incorporation. Pursuant
to this Amended and Restated Certificate of Incorporation, the name of the
Corporation is hereby changed to RainTree Healthcare Corporation.
This Amended and Restated Certificate of Incorporation (the
"Certificate") amends, restates and integrates the provisions of the Original
Certificate of Incorporation in accordance with the applicable provisions of
Section 303 of the General Corporation Law of Delaware, as it may be amended
from time to time ("GCL").
The text of the Original Certificate of Incorporation, as amended to
date, is hereby amended and restated in its entirety to provide as herein set
forth in full.
1. NAME. The name of the corporation is RainTree Healthcare
Corporation.
2. REGISTERED OFFICE AND AGENT. The name and address of the registered
office and registered agent of the corporation is Corporation Service Company,
1013 Centre Road, Wilmington, New Castle County, Delaware 19805.
3. PURPOSE. The purpose for which this Corporation is organized is the
transaction of any or all lawful activity for which corporations may be
organized under the GCL.
4. AUTHORIZED CAPITAL. The Corporation shall have the authority to
issue 25,000,000 shares of common stock, par value $.001 par value per share
(the "Common Stock"), and 1,000,000 shares of preferred stock, $.001 par value
per share (the "Preferred Stock").
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5. PREFERRED STOCK.
5.1 SERIES. The Board of Directors is authorized, subject to
limitations prescribed by law and this Certificate of Incorporation, to provide
for the issuance of the shares of preferred stock in series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
5.2 RIGHTS AND LIMITATIONS. The authority of the Board of Directors
with respect to each series of preferred stock shall include, without
limitation, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(c) Whether that series shall have voting rights, in addition to
the voting rights provided by law, and if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and if
so, the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be redeemable,
and if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and if so, the terms and amount
of such sinking fund;
(g) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(h) Any other relative rights, preferences and limitations of that
series.
6. DIRECTORS. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors consisting of not less than three
directors nor more than nine directors, the exact number of directors to be
determined from time to time as provided in the Bylaws of the Corporation.
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Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the applicable resolutions or
resolutions adopted by the Board of Directors pursuant to Article 5.
7. ELECTION OF DIRECTORS. Advance notice of stockholder nominations for the
election of directors shall be given in the manner provided in the Bylaws of the
Corporation. Election of directors at an annual or special meeting of
stockholders shall be by written ballot unless the Bylaws of the Corporation
shall provide otherwise.
8. REMOVAL OF DIRECTORS. Subject to the rights, if any, of any Preferred Stock
then outstanding to elect directors under specified circumstances, any director
may be removed from office at any time by the affirmative vote of the holders of
a majority of the then outstanding shares of stock entitled to vote generally in
the election of directors, voting together as a single class.
9. SPECIAL MEETINGS. Special meetings of the stockholders of the Corporation for
any purpose or purposes may be called at any time only by the Chairman of the
Board, the President or the Board of Directors pursuant to a resolution approved
by a majority of the whole Board of Directors, and shall be called by the
President when requested in writing by stockholders owning 25% or more in amount
of the capital stock issued and outstanding and entitled to vote. Special
meetings of the stockholders may not be called by any other person or persons.
Business transacted by any special meeting of the stockholders shall be limited
to the purposes stated in the notice of such meeting.
10. SPECIAL VOTING REQUIREMENTS.
10.1 TWO-THIRDS VOTE. Except as set forth in Subsection 10.2 of this
Article, the affirmative vote of the holders of two-thirds of the outstanding
stock of the Corporation entitled to vote shall be required for;
(a) Any merger or consolidation to which the Corporation, or any of
its subsidiaries, and an Interested Person (as hereinafter defined) are parties;
(b) Any sale or other disposition by the Corporation, or any of its
subsidiaries, of all or substantially all of its assets to an Interested Person;
(c) Any purchase or other acquisition by the Corporation, or any of
its subsidiaries, of all or substantially all of the assets or stock of an
Interested Person; and
(d) Any other transaction with an Interested Person that requires
the approval of the stockholders of the Corporation under the GCL, as in effect
from time to time.
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10.2 CONTINUING DIRECTORS. The provisions of Subsection 10.1 shall
not be applicable to any transaction described therein if such transaction is
approved by resolution of the Corporation's Board of Directors, provided that a
majority of the members of the Board of directors voting for the approval of
such transaction are Continuing Directors. The term "Continuing Director" shall
mean any member of the Board of Directors of the Corporation who is not the
Interested Person, and not an affiliate, associate, representative or nominee of
the Interested Person that is involved in the relevant transaction, and (1) was
a member of the Board of Directors on January 31, 1998, or (2) was a member of
the Board of Directors prior to the date that the person, firm or corporation,
or any group thereof, with whom such transaction is proposed, became an
Interested Person, or (3) whose initial election as a director of the
Corporation succeeds a Continuing Director or is a newly created directorship,
and in either case was recommended by a majority vote of the Continuing
Directors then in office.
10.3 INTERESTED PERSON. As used in this Article 10, the term
"Interested Person" shall mean any person, firm or corporation, or any group
thereof, acting or intending to act in concert, including any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person, firm or corporation or group, which owns of record or
beneficially, directly or indirectly, 5% or more of any class of voting
securities of the Corporation.
11. LIABILITY OF DIRECTORS. No director of the Corporation shall have
personal liability to the Corporation or its stockholders for monetary damages
for any breach of fiduciary duty by such a director as a director.
Notwithstanding the foregoing sentence, a director shall be liable to the extent
provided by applicable law (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of a law,
(iii) pursuant to Section 174 of the GCL, or (iv) for any transaction from which
such director derived an improper personal benefit. No amendment to or repeal of
this Article 11 shall apply to or have an effect on the liability of a director
of the Corporation with respect to any act or omission occurring prior to the
time of such repeal or modification.
12. AMENDMENT OF CERTIFICATE. Subject to the other terms of this
Certificate of Incorporation, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute and the
Certificate of Incorporation, and all rights conferred on stockholders herein
are granted subject to the reservations in this Article 12; provided, however,
the affirmative vote of the holders of at least two-thirds of the voting power
of the outstanding stock of the Corporation entitled to vote thereon shall be
required to alter, amend or adopt any provision inconsistent with or repeal
Articles 7, 8, 9, 10, 11, 13, 14 and this Article 12; provided, if the
Continuing Directors, as defined in Subsection 10.2, shall by a two-thirds
affirmative vote of such Continuing Directors have adopted a resolution
approving the amendment or repeal proposal and have determined to recommend it
for approval by the holders of stock entitled to vote thereon, then the vote
required shall be the affirmative vote of the holders of at least a majority of
the outstanding shares entitled to vote thereon.
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13. BYLAWS. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors expressly is authorized by a
majority vote of the whole Board of Directors to adopt, repeal, alter, amend or
rescind the Bylaws of the Corporation. In addition, the Bylaws of the
Corporation may be adopted, repealed, altered, amended or rescinded by the
affirmative vote of two-thirds of the outstanding stock of the Corporation
entitled to vote thereon; provided if the Continuing Directors, as defined in
Article 10, shall by two-thirds affirmative vote of such Continuing Directors
have adopted a resolution approving the amendment or repeal proposal and have
determined to recommend such amendment or repeal proposal for approval by the
holders of stock entitled to vote thereon, then the vote required shall be the
affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote thereon.
14. ACTION BY CONSENT OF STOCKHOLDERS. Any action required or permitted
to be taken by the stockholders must be effected at a duly called and noticed
annual or special meeting of such stockholders and may not be effected by any
consent in writing of such stockholders.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
January, 1999.
/s/ Michael A. Jeffries
______________________________
Michael A. Jeffries, President
ATTEST:
/s/ Nir E. Margalit
____________________________
Nir E. Margalit, Secretary
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Exhibit 3
BYLAWS
OF
RAINTREE HEALTHCARE CORPORATION
(As amended and restated January 31, 1999)
ARTICLE I
OFFICES
SECTION 1.1 Registered Office.
The registered office of the Corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 1.2 Other Offices.
The Corporation also may have offices at such other places both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 Stockholder Meetings.
(a) Time and Place of Meetings. Meetings of the stockholders shall be
held at such times and places, either within or without the State of Delaware,
as may from time to time be fixed by the Board of Directors and stated in the
notices or waivers of notice of such meetings.
(b) Annual Meeting. The annual meeting of the stockholders shall be
held when designated by the Board of Directors, for the election of directors
and the transaction of such other business properly brought before such annual
meeting of the stockholders and within the powers of the stockholders.
(c) Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time only by the
Chairman of the Board, the President, or the Board of Directors pursuant to a
resolution approved by a majority of the whole Board of Directors, or by the
President upon the request in writing of holders owning at least 25% of the
capital stock issued and outstanding and entitled to vote. Business transacted
at any special meeting of the stockholders shall be limited to the purposes
stated in the notice of such meeting.
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(d) Notice of Meetings. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, written notice of each meeting of
the stockholders shall be given not less than ten days nor more than 60 days
before the date of such meeting to each stockholder entitled to vote thereat,
directed to such stockholder's address as it appears upon the books of the
Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice shall be deemed to be given
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his address as it appears on the stock ledger of the Corporation.
When a meeting of the stockholders is adjourned to another time and/or place,
notice need not be given of such adjourned meeting if the time and place thereof
are announced at the meeting of the stockholders at which the adjournment is
taken, unless the adjournment is for more than 30 days or unless after the
adjournment a new record date is fixed for such adjourned meeting, in which
event a notice of such adjourned meeting shall be given to each stockholder of
record entitled to vote thereat. Notice of the time, place and purpose of any
meeting of the stockholders may be waived in writing either before or after such
meeting and will be waived by any stockholder by such stockholder's attendance
thereat in person or by proxy. Any stockholder so waiving notice of such a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Quorum. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than a majority of the
shares entitled to vote at any meeting of the stockholders, present in person or
by proxy, shall constitute a quorum and the affirmative vote of the majority of
such quorum shall be deemed the act of the stockholders. If a quorum shall fail
to attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
SECTION 2.2 Determination of Stockholders Entitled to Notice and to Vote.
To determine the stockholders entitled to notice of any meeting of the
stockholders or to vote thereat, the Board of Directors may fix in advance a
record date as provided in Article VII, Section 7.1 of these Bylaws, or if no
record date is fixed by the Board of Directors, a record date shall be
determined as provided by law.
SECTION 2.3 Voting.
(a) Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote for each full share
of stock registered in the name of such stockholder at the
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time fixed by the Board of Directors or by law at the record date of the
determination of stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the stockholders
may do so either (i) in person or (ii) by one or more agents authorized by a
written proxy executed by the person or such stockholder's duly authorized
agent, whether by manual signature, typewriting, telegraphic transmission or
otherwise as permitted by law. No proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
(c) Voting may be by voice or by ballot as the presiding officer of the
meeting of the stockholders shall determine. On a vote by ballot, each ballot
shall be signed by the stockholder voting, or by such stockholder's proxy, and
shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the Chairman
of the Board or President shall appoint one or more persons as inspectors of
election (the "Inspectors") to act at such meeting. Such Inspectors shall take
charge of the ballots at such meeting. After the balloting, the Inspectors shall
count the ballots cast and make a written report to the secretary of such
meeting of the results. Subject to the direction of the presiding officer of the
meeting, the duties of such Inspectors may further include without limitation:
determining the number of shares outstanding and the voting power of each; the
shares represented at the meeting; the existence of a quorum; the authenticity,
validity, and effect of proxies; receiving votes, ballots, or consents; hearing
and determining all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all votes of consents and
determining when the polls shall close; determining the result; and doing such
acts as may be proper to conduct the election or vote with fairness to all
stockholders. An Inspector need not be a stockholder of the Corporation and any
officer of the Corporation may be an Inspector on any question other than a vote
for or against such officer's election to any position with the Corporation or
on any other questions in which such officer may be directly interested.
If there are three or more Inspectors, the determination, report or certificate
of a majority of such Inspectors shall be effective as if unanimously made by
all Inspectors.
SECTION 2.4 List of Stockholders.
The officer who has charge of the stock ledger of the Corporation shall
prepare and make available, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of each such stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to such meeting, either
at a place within the city where such meeting is to be held and which place
shall be specified in the notice of such meeting, or, if not so specified, at
the place where such meeting is to be held. The list also shall be produced and
kept at the time and place of the meeting of the stockholders during the whole
time thereof, and may be inspected by any stockholder who is present.
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SECTION 2.5 Conduct of Meetings.
The presiding officer of the meeting shall have full and complete
authority to determine the agenda, to set the procedures and order the conduct
of meetings, all as deemed appropriate by such person in his sole discretion
with due regard to the orderly conduct of business.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 General Powers.
Unless otherwise restricted by law, the Certificate of Incorporation or
these Bylaws as to action which shall be authorized or approved by the
stockholders, and subject to the duties of directors as prescribed by these
Bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be controlled by, the
Board of Directors.
SECTION 3.2 Election of Directors.
(a) Number, Qualification and Term of Office. The authorized number of
directors of the Corporation shall be fixed from time to time by a resolution
duly adopted by a majority of the whole Board of Directors, but shall not be
less than three nor more than nine. Until changed by resolution of the Board of
Directors or the stockholders, the Board of Directors shall be set at five
members.
(b) Resignation. Any director may resign from the Board of Directors at
any time by giving written notice to the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or if the time when
such resignation shall become effective shall not be so specified, then such
resignation shall take effect immediately upon its receipt by the Secretary;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
(c) Nomination of Directors. Candidates for director of the Corporation
shall be nominated (i) by the Board of Directors or a committee appointed by the
Board of Directors or (ii) at any stockholders meeting by or on behalf of any
stockholder entitled to vote thereat.
(d) Preferred Stock Provisions. Notwithstanding the foregoing, whenever
the holders of any one or more classes or series of stock issued by the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of the stockholders, the election,
term of office, filling of vacancies, nomination, terms of removal and other
features of such directorships shall be governed by the terms of the Article of
the Certificate of Incorporation authorizing the preferred stock and the
resolution or resolutions establishing such class or series adopted pursuant
thereto.
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SECTION 3.3 Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors shall
be held without call at such times as the Board of Directors shall from time to
time by resolution determine. Notice of all such regular meetings hereby is
dispensed with.
(b) Special Meetings. Special meetings of the Board of Directors may be
called by the Chairman, the Chief Executive Officer, or the Board of Directors
pursuant to a resolution approved by a majority of the whole Board of Directors.
Notice of the time and place of special meetings of the Board of Directors shall
be given by the Secretary or an Assistant Secretary of the Corporation, or by
any other officer authorized by the Board of Directors. Such notice shall be
given to each director personally or by mail, messenger, telecopy, telephone or
telegraph at such director's business or residence address. Notice by mail shall
be deposited in the United States mail, postage prepaid, not later than the
fifth day prior to the date fixed for such special meeting. Notice by telecopy,
telephone or telegraph shall be sent, and notice given personally or by
messenger shall be delivered at least twenty-four hours prior to the time set
for such special meeting. Notice of a special meeting of the Board of Directors
need not contain a statement of the purpose of such special meeting.
(c) Adjourned Meetings. A majority of directors present at any regular
or special meeting of the Board of Directors or any committee thereof, whether
or not constituting a quorum, may adjourn any meeting from time to time until a
quorum is present or otherwise. Notice of the time and place of holding any
adjourned meeting shall not be required if the time and place are fixed at the
meeting adjourned.
(d) Place of Meetings. Meetings of the Board of Directors, both regular
and special, may be held within or without the State of Delaware.
(e) Participation by Telephone. Members of the Board of Directors or
any committee may participate in any meeting of the Board of Directors or
committee through the use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another, and such participation shall constitute presence in person at such
meeting.
(f) Quorum. At all meetings of the Board of Directors or any committee
thereof, a majority of the total number of directors of the entire then
authorized Board of Directors or such committee shall constitute a quorum for
the transaction of business and the act of a majority of the directors present
at any such meeting at which there is a quorum shall be the act of the Board of
Directors or any committee, except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these Bylaws. A meeting of the Board of
Directors or any committee at which a quorum initially is present may continue
to transact business notwithstanding the withdrawal of directors so long as any
action is approved by at least a majority of the required quorum for such
meeting.
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(g) Waiver of Notice. The transactions of any meeting of the Board of
Directors or any committee for which notice is required, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice, if a quorum be present and if, either before or
after the meeting, each of the directors not present signs a written waiver of
notice, or a consent to hold such meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
SECTION 3.4 Action Without Meeting.
Any action required or permitted to be taken by the Board of Directors
at any meeting or at any meeting of a committee may be taken without a meeting
if all members of the Board of Directors or such committee consent in writing
and the writing or writings are filed with the minutes of the proceedings of the
Board of Directors or such committee.
SECTION 3.5 Compensation of Directors.
Unless otherwise restricted by law, the Certificate of Incorporation or
these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
SECTION 3.6 Committees of the Board.
(a) Committees. The Board of Directors may, by resolution adopted by a
majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these Bylaws, shall have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. 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 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
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. The Board of Directors shall have the power, at any time for any reason,
to change the members of any such committee, to fill vacancies, and to
discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
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(c) Audit Committee. The Board of Directors shall appoint an Audit
Committee consisting of at least two non-employee directors. The Audit Committee
shall review the financial affairs and procedures of the Corporation from time
to time with management and meet with the auditors of the Corporation to review
the financial statements and procedures.
(d) Compensation Committee. The Board of Directors shall designate a
Compensation Committee which shall consist of two or more non-employee
directors. With respect to bonuses, the Compensation Committee shall have and
may exercise the powers to determine the amounts annually available for bonuses
pursuant to any bonus plan or formula approved by the Board of Directors, to
determine bonus awards to executive officers and to exercise such further powers
with respect to bonuses as may from time to time be conferred by the Board of
Directors. With respect to salaries, the Compensation Committee shall have and
may exercise the power to fix and determine from time to time all salaries of
the executive officers of the Corporation, and such further powers with respect
to salaries as may from time to time be conferred by the Board of Directors. The
Compensation Committee shall administer the Corporation's stock incentive plans
and from time to time may grant, consistent with the plans, stock options and
other awards permissible under such plans. The Compensation Committee shall fix
its own rules of procedure. The Compensation Committee shall keep minutes of its
meetings, and all action taken by it shall be reported to the Board of
Directors.
(e) Executive Committee. There may be an executive committee consisting
of at least three members of the Board of Directors elected by the whole Board.
Members of the executive committee shall serve at the pleasure of the Board of
Directors and each member of the executive committee may be removed with or
without cause at any time by the Board of Directors. Vacancies shall be filled
by the Board of Directors. The executive committee may exercise the powers of
the Board of Directors and the management of the business and affairs of the
corporation, but shall not possess any authority prohibited to it by law.
SECTION 3.7 Interested Directors.
In addition to the statutory and corporate common law of Delaware, no
contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose if (i) the material facts as to his or
their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction
by the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a committee thereof or the stockholders. Interested
directors
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may be counted in determining the presence of a quorum at a meeting of the Board
of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 4.1 Officers.
(a) Number. The officers of the Corporation shall be chosen by the
Board of Directors and may include a Chairman of the Board of Directors (who
must be a director as chosen by the Board of Directors) and shall include a
Chief Executive Officer, a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors also may appoint one or more Assistant
Secretaries or Assistant Treasurers and such other officers and agents with such
powers and duties as it shall deem necessary. Any Vice President may be given
such specific designation as may be determined from time to time by the Board of
Directors. Any number of offices may be held by the same person, unless
otherwise required by law, the Certificate of Incorporation or these Bylaws. The
Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and
powers.
(b) Election and Term of Office. The officers shall be elected annually
by the Board of Directors at its annual meeting and each officer shall hold
office until the next annual election of officers and until such officer's
successor is elected and qualified, or until such officer's death, resignation
or removal. Any officer may be removed at any time, with or without cause, by a
vote of the majority of the whole Board of Directors. Any vacancy occurring in
any office may be filled by the Board of Directors.
(c) Salaries. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors or a committee thereof from time to time.
SECTION 4.2 Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be a Chairman, shall
preside at all meetings of the stockholders and the Board of Directors and shall
have such other power and authority as may from time to time be assigned by the
Board of Directors.
SECTION 4.3 Chief Executive Officer.
The Chief Executive Officer shall preside at all meetings of the
stockholders and the Board of Directors (if a Chairman of the Board has not been
elected), and shall see that all orders and resolutions of the Board of
Directors are carried into effect. Subject to the provisions of these Bylaws and
to the direction of the Board of Directors, the Chief Executive Officer shall
have the general and active management of the business of the Corporation, may
execute all contracts and any mortgages, conveyances or other legal instruments
in the name of and on
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behalf of the Corporation, but this provision shall not prohibit the delegation
of such powers by the Board of Directors to some other officer, agent or
attorney-in-fact of the Corporation.
SECTION 4.4 President.
In the absence or disability of the Chief Executive Officer, the
President shall perform all the duties of the Chief Executive Officer, and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the Chief Executive Officer. The President shall have such other powers
and perform such other duties as from time to time may be prescribed by the
Board of Directors or these Bylaws.
SECTION 4.5 Vice Presidents.
In the absence or disability of the Chief Executive Officer and the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them, respectively, by
the Board of Directors or these Bylaws.
SECTION 4.6 Secretary and Assistant Secretaries.
The Secretary shall record or cause to be recorded, in books provided
for that purpose, minutes of the meetings of the stockholders, the Board of
Directors and all committees of the Board of Directors; see that all notices are
duly given in accordance with the provisions of these Bylaws as required by law;
be custodian of all corporate records (other than financial) and of the seal of
the Corporation, and have authority to affix the seal to all documents requiring
it and attest to the same; give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors; and, in
general, shall perform all duties incident to the office of Secretary and such
other duties as may, from time to time, be assigned to him by the Board of
Directors or by the President. At the request of the Secretary, or in the
Secretary's absence or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary.
SECTION 4.7 Treasurer and Assistant Treasurers.
The Treasurer shall keep or cause to be kept the books of account of
the Corporation and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Treasurer, subject to the order of the Board of Directors,
shall have custody of all funds and securities of the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements. The
Treasurer shall perform all other duties commonly incident to his office and
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shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. At the request of
the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the
Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
SECTION 5.1 Right to Indemnification.
Subject to the terms and conditions of this Article V, each officer or
director of the Corporation who was or is made a party or witness or is
threatened to be made a party or witness to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action or inaction in an official capacity while serving
as a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law ("DGCL"), as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that, except as provided herein
with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Section shall include the right to be paid
by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the DGCL requires, an advancement of expenses
incurred by an indemnitee shall be made only upon delivery to the Corporation of
an undertaking in the form then required by the DGCL (if any), by or on behalf
of such indemnitee, with respect to the repayment of amounts so advanced
(hereinafter an "undertaking").
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SECTION 5.2 Right of Indemnitee to Bring Suit.
If a claim under Section 5.1 of this Article is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in the DGCL.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the DGCL, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard or conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified or to such advancement of expenses
under this Section or otherwise shall be on the Corporation.
SECTION 5.3 Specific Limitations on Indemnification.
Notwithstanding anything in this Article to the contrary, the
Corporation shall not be obligated to make any payment to any indemnitee with
respect to any proceeding (i) to the extent that payment is actually made to the
indemnitee under any insurance policy, or is made to indemnitee by the
Corporation or an affiliate thereof otherwise than pursuant to this Article,
(ii) for any expense, liability or loss in connection with a proceeding settled
without the Corporation's written consent, which consent, however, shall not be
unreasonably withheld, (iii) for an accounting of profits made from the purchase
or sale by the indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of any state statutory or common law, or (iv) where prohibited by
applicable law.
SECTION 5.4 Contract.
The provisions of this Article shall be deemed to be a contract between
the Corporation and each director and officer who serves in such capacity at any
time while such Section is in effect, and any repeal or modification thereof
shall not affect any rights or obligations then
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existing with respect to any state of facts then or theretofore existing or any
action, suit or proceeding theretofore or thereafter based in whole or in part
upon any such state of facts.
SECTION 5.5 Partial Indemnity.
If the indemnitee is entitled under any provision of this Article to
indemnification by the Corporation for some or a portion of the expenses,
liabilities or losses incurred in connection with a proceeding but not, however,
for all of the total amount thereof, the Corporation shall nevertheless
indemnify the indemnitee for the portion thereof to which the indemnitee is
entitled. Moreover, notwithstanding any other provision of this Article, to the
extent that the indemnitee has been successful on the merits or otherwise in
defense of any or all claims relating in whole or in part to a proceeding or in
defense of any issue or matter therein, including dismissal without prejudice,
the indemnitee shall be indemnified against all loss, expense and liability
incurred in connection with the portion of the proceeding with respect to which
indemnitee was successful on the merits or otherwise.
SECTION 5.6 Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
SECTION 5.7 Insurance.
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the DGCL.
SECTION 5.8 Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses, to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation, or to such
lesser extent as may be determined by the Board of Directors.
SECTION 5.9 Notice by Indemnitee and Defense of Claim.
The indemnitee shall promptly notify the Corporation in writing upon
being served with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any matter, whether civil, criminal,
administrative or investigative, but the omission so to notify the Corporation
will not relieve it from any liability which it may have to the indemnitee if
such omission does not prejudice the Corporation's rights. If such omission does
prejudice the
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Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve the Corporation
from any liability which it may have to the indemnitee otherwise than under this
Article V. With respect to any proceedings as to which the indemnitee notifies
the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) The Corporation will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to the indemnitee; provided, however, that
the Corporation shall not be entitled to assume the defense of any proceeding
(and this Section 5.9 shall be inapplicable to such proceeding) if the
indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Corporation and the indemnitee with respect to such
proceeding. After notice from the Corporation to the indemnitee of its election
to assume the defense thereof, the Corporation will not be liable to the
indemnitee under this Article V for any expenses subsequently incurred by the
indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The indemnitee shall have the
right to employ its own counsel in such proceeding but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the indemnitee unless:
(i) The employment of counsel by the indemnitee has been authorized
by the Corporation in writing; or
(ii) The Corporation shall not have employed counsel to assume the
defense in such proceeding or shall not have assumed such defense and
be acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel
shall be at the expense of the Corporation.
(c) The Corporation shall not settle any proceeding in any manner which
would impose any penalty or limitation on the indemnitee without the
indemnitee's written consent; provided, however, that the indemnitee will not
unreasonably withhold his consent to any proposed settlement.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1 Certificates for Shares.
Unless otherwise provided by a resolution of the Board of Directors,
the shares of the Corporation shall be represented by a certificate. The
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by or in the name of the
Corporation by (a) the Chairman of the Board of Directors, the President or any
Vice President
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and (b) the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary. Any or all of the signatures on a certificate may be facsimile. In
case any officer of the Corporation, transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon such certificate, shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issuance.
SECTION 6.2 Classes of Stock.
(a) If the Corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualification, limitations, or
restrictions of such preferences or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, that, except as
otherwise provided in Section 202 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate that
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 powers, 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.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 151, 156, 202(a),
or 218(a) of the DGCL) or a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, 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 6.3 Transfer.
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, assignation 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 books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the Corporation.
SECTION 6.4 Record Owner.
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof, and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or
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not it shall have express or other notice thereof, save as expressly provided by
the laws of the State of Delaware.
SECTION 6.5 Lost Certificates.
The Board of Directors may direct a new certificate or certificates or
uncertificated shares to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates or uncertificated shares, the Board
of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the 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 60 nor less than ten days prior to the date of such
meeting nor more than 60 days prior to any other action. If not fixed by the
Board of Directors, the record date shall be determined as provided by law.
(b) A determination of stockholders of record entitled to notice of or
to vote at a meeting of the stockholders shall apply to any adjournments of the
meeting, unless the Board of Directors fixes a new record date for the adjourned
meeting.
(c) Holders of stock on the record date are entitled to notice and to
vote or to receive the dividend, distribution or allotment of rights or to
exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these Bylaws.
SECTION 7.2 Execution of Instruments.
The Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other persons, to execute any
corporate instrument or document or to sign the corporate name without
limitation, except where otherwise provided by law, the
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Certificate of Incorporation or these Bylaws. Such designation may be general or
confined to specific instances.
SECTION 7.3 Voting of Securities Owned by the Corporation.
All stock and other securities of other corporations held by the
Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
SECTION 7.4 Corporate Seal.
A corporate seal shall not be requisite to the validity of any
instrument executed by or on behalf of the Corporation. If a corporate seal is
used, the same shall be at the pleasure of the officer affixing seal either (a)
a circle having on the circumference thereof the words "RAINTREE HEALTHCARE
CORPORATION" and in the center "Incorporated - 1991, Delaware," or (b) a seal
containing the words "Corporate Seal" in the center thereof.
SECTION 7.5 Construction and Definitions.
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the DGCL and the Certificate of Incorporation
shall govern the construction of these Bylaws.
SECTION 7.6 Amendments.
These Bylaws may be altered, amended or repealed as set forth in the
Certificate of Incorporation.
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