<PAGE>
Exhibit 3.2
RESTATED BY-LAWS
OF
COMMUNITY HEALTH SYSTEMS, INC.
(hereinafter called the "Corporation")
(As of June 14, 2000)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle.
SECTION 2. OTHER OFFICES. The Corporation may also have an
office or offices other than said registered office at such place or places,
either within or without the State of Delaware, as the Board of Directors shall
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at any such
time and place, either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. Annual meetings of stockholders
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a
duly executed waiver thereof. At such annual meetings, the stockholders shall
elect by a plurality vote the directors standing for election and transact such
other business as may properly be brought before the meeting in accordance with
these Restated By-Laws.
SECTION 3. SPECIAL MEETINGS. Special meetings of stockholders,
for any purpose or purposes, unless otherwise prescribed by statute may be
called by the Board of Directors, the Chairman of the Board of Directors, if one
shall have been elected, or the President.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise expressly
required by statute, notice of each annual and special meeting of stockholders
stating the date, place and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
to each stockholder of record entitled to vote thereat not less than ten nor
more than sixty days before the date of the meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice. Notice of any meeting shall not be required to be given to any person
who attends such meeting (except when such person attends the meeting in person
or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened) or who, either before or after the meeting, shall submit a
signed written waiver of notice, in person or by proxy. Neither the business to
be transacted at,
25
<PAGE>
nor the purpose of, an annual or special meeting of stockholders need be
specified in any written waiver of notice.
SECTION 5. ORGANIZATION. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in the event of such
person's absence or if one shall not have been elected, the President, shall act
as chairman of the meeting. The Secretary or, in the event of such person's
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting, shall act as secretary of the meeting and keep
the minutes thereof.
SECTION 6. CONDUCT OF BUSINESS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seems to him or her in order. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting.
SECTION 7. QUORUM, ADJOURNMENTS. The holders of a majority of
the voting power of the issued and outstanding shares of capital stock of the
Corporation entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by the Restated
Certificate of Incorporation. If, however, such quorum shall not be present or
represented by proxy at any meeting of stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented by proxy. At such
adjourned meeting at which a quorum shall be present or represented by proxy,
any business may be transacted which might have been transacted at the meeting
as originally called. If the adjournment is for more than thirty days, or, if
after adjournment a new record date is set, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 8. VOTING. Except as otherwise provided by statute or
the Restated Certificate of Incorporation and these Restated By-Laws, each
stockholder of the Corporation shall be entitled at each meeting of stockholders
to one vote for each share of capital stock of the Corporation standing in such
stockholder's name on the record of stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of
Section 7 of Article V of these Restated By-Laws as the record
date for the determination of the stockholders who shall be
entitled to notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed,
then at the close of business on the day next preceding the
day on which notice thereof shall be given, or, if notice is
waived, at the close of business on the date next preceding
the day on which the meeting is held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for such stockholder by a proxy signed by such
stockholder or such stockholder's attorney-in-fact, or as otherwise authorized
in accordance with the Delaware General Corporation Law, but no proxy shall be
voted after three years from its date, unless the proxy provides for a longer
period. Any such proxy shall be delivered to the secretary of the meeting at or
prior to the time designated in the order of business for so delivering such
proxies. When a quorum is present at any meeting, the affirmative vote of the
holders of a majority of the voting power of the shares of the Corporation which
are present in person or represented by proxy at the meeting and entitled to
vote thereon, shall decide any question brought before such meeting, unless the
question is one upon which by express provision of statute or of the Restated
Certificate of Incorporation or of these Restated By-Laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Unless required by statute, or determined by the
chairman of the meeting to be advisable, the vote on any question need not be by
26
<PAGE>
ballot. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, if there be such proxy.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least ten
days before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder shall be prepared. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, as
required by the Delaware General Corporation Law. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
SECTION 10. INSPECTORS. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
such meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if inspectors
shall not have been appointed, the chairman of the meeting may appoint one or
more inspectors. Each inspector, before entering upon the discharge of such
inspector's duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the best
of such inspector's ability. The inspectors shall determine the number of shares
of capital stock of the Corporation outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
SECTION 11. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided by statute or in the Restated Certificate of Incorporation,
any action required to be taken or which may be taken at any annual or special
meeting of the stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of any such corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
SECTION 12. ADVANCE NOTICE PROVISIONS FOR ELECTION OF
DIRECTORS. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may be made at any
annual meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 12 and on the record date
for the determination of stockholders entitled to vote at such meeting and (ii)
who complies with the notice procedures set forth in this Section 12.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than 45 or more than
75 days prior to the first anniversary of the date on which the Corporation
first
27
<PAGE>
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to or delayed by more than 30 days after the
anniversary of the preceding year's annual meeting, to be timely, notice by the
stockholder must be so delivered not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made; and
(b) in the case of a special meeting of stockholders called for the purpose of
electing directors, not later than the close of business on the later of the
90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting. For
purposes of this Section 12 and Section 13, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to be named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 12. If the Chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
SECTION 13. ADVANCE NOTICE PROVISIONS FOR BUSINESS TO BE
TRANSACTED AT ANNUAL MEETING. No business may be transacted at an annual meeting
of stockholders, other than business that is either (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 13 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 13.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
28
<PAGE>
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 45 or more than 75 days prior to the first anniversary
of the date on which the Corporation first mailed its proxy materials for the
preceding year's annual meeting of stockholders; provided, however, that if the
date of the annual meeting is advanced more than 30 days prior to or delayed by
more than 30 days after the anniversary of the preceding year's annual meeting,
to be timely notice by the stockholder must be so delivered not later than the
close of business on the later of the 90th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 13. If the Chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
ARTICLE III
DIRECTORS
SECTION 1. PLACE OF MEETINGS. Meetings of the Board of
Directors shall be held at such place or places, within or without the State of
Delaware, as the Board of Directors may from time to time determine or as shall
be specified in the notice of any such meeting.
SECTION 2. ANNUAL MEETING. The Board of Directors shall meet
for the purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may
be held at such other time or place (within or without the State of Delaware) as
shall be specified in a notice thereof given as hereinafter provided in Section
5 of this Article III.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise be
held on that day shall be held at the same hour on the next succeeding business
day.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
SECTION 5. NOTICE OF MEETINGS. Notice of regular meetings of
the Board of Directors need not be given except as otherwise required by law or
these Restated By-Laws. Notice of each
29
<PAGE>
special meeting of the Board of Directors for which notice shall be required,
shall be given by the Secretary as hereinafter provided in this Section 5, in
which notice shall be stated the time and place of the meeting. Except as
otherwise required by these By-Laws, such notice need not state the purposes of
such meeting. Notice of any special meeting, and of any regular or annual
meeting for which notice is required, shall be given to each director at least
(a) four hours before the meeting if by telephone or by being personally
delivered or sent by telex, telecopy, or similar means or (b) two days before
the meeting if delivered by mail to the director's residence or usual place of
business. Such notice shall be deemed to be delivered when deposited in the
United States mail so addressed, with postage prepaid, or when transmitted if
sent by telex, telecopy, or similar means. Neither the business to be transacted
at, nor the purpose of, any special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting. Any director may
waive notice of any meeting by a writing signed by the director entitled to the
notice and filed with the minutes or corporate records. The attendance at or
participation of the director at a meeting shall constitute waiver of notice of
such meeting, unless the director at the beginning of the meeting or promptly
upon such director's arrival objects to holding the meeting or transacting
business at the meeting.
SECTION 6. ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board, if one shall have been elected, or, in the
absence of the Chairman of the Board or if one shall not have been elected, the
President (or, in the President's absence, another director chosen by a majority
of the directors present) shall act as chairman of the meeting and preside
thereat. The Secretary or, in such person's absence, any person appointed by the
chairman shall act as secretary of the meeting and keep the minutes thereof.
SECTION 7. QUORUM AND MANNER OF ACTING. A majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and, except as otherwise
expressly required by statute or the Restated Certificate of Incorporation or
these Restated By-Laws, the affirmative vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. In the absence of a quorum at any meeting of the Board of
Directors, a majority of the directors present thereat may adjourn such meeting
to another time and place. Notice of the time and place of any such adjourned
meeting shall be given to all of the directors unless such time and place were
announced at the meeting at which the adjournment was taken, in which case such
notice need only be given to the directors who were not present thereat. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. The
directors shall act only as a Board and the individual directors shall have no
power as such.
SECTION 8. ACTION BY CONSENT. Unless restricted by the
Restated Certificate of Incorporation, any action required or permitted to be
taken by the Board of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or such committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board of Directors or such committee, as
the case may be.
SECTION 9. TELEPHONIC MEETING. Unless restricted by the
Restated Certificate of Incorporation, any one or more members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting.
SECTION 10. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, including an executive committee, each committee to consist
of one or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence of disqualification of any member of a committee, the member or
members present at any meeting and not disqualified from
30
<PAGE>
voting, whether or not such members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
Each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which require it; PROVIDED, HOWEVER, that no such committee shall have
the power or authority in reference to the following matters: (a) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the Delaware General Corporation Law to be submitted to stockholders
for approval or (b) adopting, amending or repealing any by-law of the
Corporation. Each such committee shall serve at the pleasure of the Board of
Directors and have such name as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors.
SECTION 11. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 12. RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice of such director's resignation to
the Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, one or more Vice
Presidents (including Senior, Executive, Group or other classifications of Vice
Presidents) and a Secretary. The Board of Directors, in its discretion, may also
choose as an officer of the Corporation the Chairman of the Board and any Vice
Chairman of the Board and may choose other officers (including a Treasurer, one
or more Assistant Secretaries and one or more Assistant Treasurers) as may be
necessary or desirable. Such officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any
officer of the Corporation the power to choose such other officers and to
proscribe their respective duties and powers. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Restated Certificate
of Incorporation or these Restated By-Laws. The officers of the Corporation need
not be stockholders of the Corporation nor, except in the case of the Chairman
of the Board and Vice Chairman of the Board of Directors, need such officers be
directors of the Corporation.
SECTION 2. TERM. All officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their earlier
resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
SECTION 3. RESIGNATIONS. Any officer of the Corporation may
resign at any time by giving written notice of such officer's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it effective.
31
<PAGE>
SECTION 4. REMOVAL. Any officer may be removed at any time by
the Board of Directors with or without cause.
SECTION 5. 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 such officer is
also a director of the Corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board,
if one shall have been elected, shall be a member of the Board, an officer of
the Corporation (if the Board of Directors, in its discretion, chooses to make
the Chairman of the Board an officer of the Corporation) and, if present, shall
preside at each meeting of the Board of Directors or the stockholders. The
Chairman of the Board shall advise and counsel with the President, and in the
President's absence with other executives of the Corporation, and shall perform
such other duties as may from time to time be assigned to the Chairman of the
Board by the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board or a Vice Chairman of the Board
or 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 such holder in the Corporation. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restriction of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 202 of
the Delaware General Corporation Law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 2. FACSIMILE SIGNATURES. Any or all of the signatures
on a certificate may be a facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person was such officer, transfer
agent or registrar at the date of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate or certificates, or the owner's 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
32
<PAGE>
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its records; PROVIDED,
HOWEVER, that the Corporation shall be entitled to recognize and enforce any
lawful restriction on transfer. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to do
so.
SECTION 5. TRANSFER AGENTS AND REGISTRARS. The Board of
Directors may appoint, or authorize any officer or officers to appoint, one or
more transfer agents and one or more registrars.
SECTION 6. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Restated By-Laws,
as it may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation.
SECTION 7. FIXING THE RECORD DATE. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; PROVIDED, HOWEVER, that the Board of Directors may fix a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than 10 days after the date upon which the
resolution fixing the record date is adopted. If no record date has been fixed
by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Secretary of the Corporation at the
Corporation's principal executive offices. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the Delaware General Corporation Law with respect to the proposed action by
written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
SECTION 8. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares of stock on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. GENERAL. Each person who was or is made a party or
is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") brought by reason of the fact
that such person (the "Indemnitee") is or was a director or officer of the
33
<PAGE>
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan,
whether the basis of such Proceeding is alleged action in an official capacity
as a director or officer or in any other capacity while serving as such a
director or officer, shall be indemnified and held harmless by the Corporation
(unless such Proceeding was brought by or in the right of the Indemnitee without
the prior written approval of the Board of Directors) to the fullest extent
permitted by the laws of the State of Delaware in effect on the date hereof or
as such laws may from time to time hereafter be amended to increase the scope of
such permitted indemnification, against all expenses, liabilities, losses and
claims (including attorneys' fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended from time to time,
penalties and amounts to be paid in settlement) actually incurred or suffered by
such Indemnitee in connection with such Proceeding (collectively, "Losses").
Without diminishing the scope of the indemnification provided by this Section 1,
the rights of indemnification of an Indemnitee provided hereunder shall include
but not be limited to those rights set forth in this Article VI.
SECTION 2. DERIVATIVE ACTIONS. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any Proceeding brought
by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person (also an "Indemnitee") is or was a director
or officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, against Losses actually incurred or suffered by the
Indemnitee in connection with the defense or settlement of such action or suit
if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation,
provided that no indemnification shall be made in respect of any claim, issue or
matter as to which Delaware law expressly prohibits such indemnification by
reason of an adjudication of liability of the Indemnitee unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 3. INDEMNIFICATION IN CERTAIN CASES. Notwithstanding
any other provision of this Article VI, to the extent that an Indemnitee has
been wholly successful on the merits or otherwise in any Proceeding referred to
in Sections 1 or 2 of this Article VI on any claim, issue or matter therein, the
Indemnitee shall be indemnified against Losses actually incurred or suffered by
the Indemnitee in connection therewith. If the Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such Proceeding,
the Corporation shall indemnify the Indemnitee, against Losses actually incurred
or suffered by the Indemnitee in connection with each successfully resolved
claim, issue or matter. In any review or Proceeding to determine such extent of
indemnification, the Corporation shall bear the burden of proving any lack of
success and which amounts sought in indemnity are allocable to claims, issues or
matters which were not successfully resolved. For purposes of this Section 3 and
without limitation, the termination of any such claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a successful
resolution as to such claim, issue or matter.
SECTION 4. PROCEDURE. (a) Any indemnification under Sections 1
and 2 of this Article VI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper (except that the right of the
Indemnitee to receive payments pursuant to Section 5 of this Article VI shall
not be subject to this Section 4) in the circumstances because the Indemnitee
has met the applicable standard of conduct. Such determination shall be made
promptly, but in no event later than 60 days after receipt by the Corporation of
the Indemnitee's written request for indemnification. The Secretary of the
Corporation shall, promptly upon receipt of the Indemnitee's request for
indemnification, advise the Board of Directors that the Indemnitee has made such
request for indemnification.
34
<PAGE>
(b) The entitlement of the Indemnitee to indemnification shall
be determined, with respect to a person who is a director or officer at the time
of such determination, in the specific case (1) by the Board of Directors by a
majority vote of the directors who are not parties to such Proceeding (the
"Disinterested Directors"), even though less than a quorum, or (2) by a
committee of the Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum, or (3) if there are no
Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel, or (4) by the stockholders. The entitlement of the
Indemnitee to indemnification shall be determined with respect to any person who
is not a director or officer at the time of such determination by any means
reasonably determined by the Corporation.
(c) In the event the determination of entitlement is to be
made by independent legal counsel, such independent legal counsel shall be
selected by the Board of Directors and approved by the Indemnitee. Upon failure
of the Board of Directors to so select such independent legal counsel or upon
failure of the Indemnitee to so approve, such independent legal counsel shall be
selected by the American Arbitration Association in New York, New York or such
other person as such Association shall designate to make such selection.
(d) If a determination is made pursuant to Section 4(b) of
this Article VI that the Indemnitee is not entitled to indemnification to the
full extent of the Indemnitee's request, the Indemnitee shall have the right to
seek entitlement to indemnification in accordance with the procedures set forth
in Section 6 of this Article VI.
(e) If a determination pursuant to Section 4(b) of this
Article VI with respect to entitlement to indemnification shall not have been
made within 60 days after receipt by the Corporation of such request, the
requisite determination of entitlement to indemnification shall be deemed to
have been made and the Indemnitee shall be absolutely entitled to such
indemnification, absent (i) misrepresentation by the Indemnitee of a material
fact in the request for indemnification or (ii) a final judicial determination
that all or any part of such indemnification is expressly prohibited by law.
(f) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, adversely affect the rights of the Indemnitee to
indemnification hereunder except as may be specifically provided herein, or
create a presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Corporation or create a presumption that (with respect to
any criminal action or proceeding) the Indemnitee had reasonable cause to
believe that the Indemnitee's conduct was unlawful.
(g) For purposes of any determination of good faith hereunder,
the Indemnitee shall be deemed to have acted in good faith if the Indemnitee's
action is based on the records or books of account of the Corporation or an
affiliate, including financial statements, or on information supplied to the
Indemnitee by the officers of the Corporation or an affiliate in the course of
their duties, or on the advice of legal counsel for the Corporation or an
affiliate or on information or records given or reports made to the Corporation
or an affiliate by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care to the Corporation or an
affiliate. The Corporation shall have the burden of establishing the absence of
good faith. The provisions of this Section 4(g) of this Article VI shall not be
deemed to be exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of conduct set
forth in these Restated By-Laws.
(h) The knowledge and/or actions, or failure to act, of any
other director, officer, agent or employee of the Corporation or an affiliate
shall not be imputed to the Indemnitee for purposes of determining the right to
indemnification under these Restated By-Laws.
SECTION 5. ADVANCES FOR EXPENSES AND COSTS. All expenses
(including attorneys fees) incurred by or on behalf of the Indemnitee (or
reasonably expected by the Indemnitee to be incurred
35
<PAGE>
by the Indemnitee within three months) in connection with any Proceeding shall
be paid by the Corporation in advance of the final disposition of such
Proceeding within twenty days after the receipt by the Corporation of a
statement or statements from the Indemnitee requesting from time to time such
advance or advances whether or not a determination to indemnify has been made
under Section 4 of this Article VI. The Indemnitee's entitlement to such
advancement of expenses shall include those incurred in connection with any
Proceeding by the Indemnitee seeking an adjudication or award in arbitration
pursuant to these By-Laws. The financial ability of an Indemnitee to repay an
advance shall not be a prerequisite to the making of such advance. Such
statement or statements shall reasonably evidence such expenses incurred (or
reasonably expected to be incurred) by the Indemnitee in connection therewith
and shall include or be accompanied by a written undertaking by or on behalf of
the Indemnitee to repay such amount if it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified therefor pursuant to the terms
of this Article VI.
SECTION 6. REMEDIES IN CASES OF DETERMINATION NOT TO INDEMNIFY
OR TO ADVANCE EXPENSES. (a) In the event that (i) a determination is made that
the Indemnitee is not entitled to indemnification hereunder, (ii) advances are
not made pursuant to Section 5 of this Article VI or (iii) payment has not been
timely made following a determination of entitlement to indemnification pursuant
to Section 4 of this Article VI, the Indemnitee shall be entitled to seek a
final adjudication either through an arbitration proceeding or in an appropriate
court of the State of Delaware or any other court of competent jurisdiction of
the Indemnitee's entitlement to such indemnification or advance.
(b) In the event a determination has been made in accordance
with the procedures set forth in Section 4 of this Article VI, in whole or in
part, that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration referred to in paragraph (a) of this Section 6 shall
be DE NOVO and the Indemnitee shall not be prejudiced by reason of any such
prior determination that the Indemnitee is not entitled to indemnification, and
the Corporation shall bear the burdens of proof specified in Sections 3 and 4 of
this Article VI in such proceeding.
(c) If a determination is made or deemed to have been made
pursuant to the terms of Sections 4 or 6 of this Article VI that the Indemnitee
is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration in the absence of (i) a
misrepresentation of a material fact by the Indemnitee or (ii) a final judicial
determination that all or any part of such indemnification is expressly
prohibited by law.
(d) To the extent deemed appropriate by the court, interest
shall be paid by the Corporation to the Indemnitee at a reasonable interest rate
for amounts which the Corporation indemnifies or is obliged to indemnify the
Indemnitee for the period commencing with the date on which the Indemnitee
requested indemnification (or reimbursement or advancement of expenses) and
ending with the date on which such payment is made to the Indemnitee by the
Corporation.
SECTION 7. RIGHTS NON-EXCLUSIVE. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other Sections
of this Article VI shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any law, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
SECTION 8. INSURANCE. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article VI.
36
<PAGE>
SECTION 9. DEFINITION OF CORPORATION. For purposes of this
Article VI, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, shall stand in the same position under this Article VI with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
SECTION 10. OTHER DEFINITIONS. For purposes of this Article
VI, references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VI.
SECTION 11. SURVIVAL OF RIGHTS. The indemnification and
advancement of expenses provided by, or granted pursuant to this Article VI
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person. No amendment, alteration, rescission or replacement of these By-Laws or
any provision hereof shall be effective as to an Indemnitee with respect to any
action taken or omitted by such Indemnitee in Indemnitee's position with the
Corporation or any other entity which the Indemnitee is or was serving at the
request of the Corporation prior to such amendment, alteration, rescission or
replacement.
SECTION 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, by action of the Board of Directors from time
to time, grant rights to indemnification and advancement of expenses to
employees and agents of the Corporation with the same scope and effect as the
provisions of this Article VI with respect to the indemnification of directors
and officers of the Corporation.
SECTION 13. SAVINGS CLAUSE. If this Article VI or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
entitled to indemnification under the first paragraph of this Article VI as to
all losses actually and reasonably incurred or suffered by such person and for
which indemnification is available to such person pursuant to this Article VI to
the full extent permitted by any applicable portion of this Article VI that
shall not have been invalidated and to the full extent permitted by applicable
law.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Subject to the provisions of statute and
the Restated Certificate of Incorporation, dividends upon the shares of capital
stock of the Corporation may be declared by the Board of Directors at any
regular or special meeting. Dividends may be paid in cash, in property or in
shares of stock of the Corporation, unless otherwise provided by statute or the
Restated Certificate of Incorporation.
37
<PAGE>
SECTION 2. RESERVES. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may modify
or abolish any such reserve in the manner in which it was created.
SECTION 3. SEAL. The seal of the Corporation shall be in such
form as shall be approved by the Board of Directors.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed, and once fixed, may thereafter 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 any and
all deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific instances.
SECTION 7. VOTING OF STOCK IN OTHER CORPORATIONS. Unless
otherwise provided by resolution of the Board of Directors, the Chairman of the
Board or the President, from time to time, may (or may appoint one or more
attorneys or agents to) cast the votes which the Corporation may be entitled to
cast as a shareholder or otherwise in any other corporation, any of whose shares
or securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent. The Chairman of the Board or the President may, or
may instruct the attorneys or agents appointed to, execute or cause to be
executed in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
ARTICLE VIII
AMENDMENTS
These Restated By-Laws may be repealed, altered, amended or
rescinded in whole or in part, or new By-Laws may be adopted by either the
affirmative vote of the holders of at least a majority of the voting power of
all of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereon or by the Board of Directors.
38
